INTUIT INC. Pre-Release Software Agreement
This Agreement for Pre-Release Software ("Agreement") is between Intuit Inc. ("Intuit") and you (hereinafter referred to as "Tester"). If applicable, the Tester shall designate certain of its employees to use the Pre-Release Software, including any features, services or content either in or accessible through the Pre-Release Software, any related materials or documentation made available in connection with the Pre-Release Software and any updates or new versions that Tester may receive from Intuit or is made available by Intuit during the term of this Agreement as specified below ("Pre-Release Software") and such employees shall also be considered a Tester for the purpose of this Agreement. Such employees shall be identified in Exhibit A attached hereto which may be amended from time to time in writing by the parties. This Agreement is effective immediately upon Tester accessing the Pre-Release Software via a url provided by Intuit.
Tester agrees that use of any Intuit or third party features, services or content either in or accessible through the Pre-Release Software shall be subject to any applicable Intuit and/or third party terms and conditions.
Tester agrees to use the Pre-Release Software solely for the purposes of evaluation in accordance with the following terms and conditions:
1.0 Confidential Information and Scope of Use.
1.1 Tester agrees that the Pre-Release Software, including the existence of this Pre-Release Software, performance, features, capabilities, related materials or documentation and potential shipment dates of the Pre-Release Software, and any other information which is identified by Intuit as confidential or proprietary information is "Confidential Information." Tester agrees not to disclose to or allow any third party to access or use the Confidential Information. Tester further agrees that Tester will be the only one authorized to use the Confidential Information for evaluation and/or testing and discussions with authorized representatives of Intuit. Tester agrees to have employees sign a confidentiality agreement in order to protect the confidential information disclosed as a result of participation in the Pre-Release Software program as specified herein; provided, however, in the event that such employees are otherwise covered under confidentiality agreements which would reasonably include the confidential information contemplated under this Agreement, a separate agreement shall not be necessary. Tester agrees that Tester is not an employee or contractor of Intuit competitors including but not limited to: Abacus Tax Software, AccountantsWorld.com, ACCPAC, AccTrak21, Inc., ACT, Advanced Micro Solutions, Altiris, ATX Inc., Bestware, BMC Software, BNA Tax Management Inc., BridgeTrak, CaseWare, International, Inc., CCH Incorporated, Centennial UK Ltd., CFS Tax Software, Commercial Logic Inc., CA, Cougar Mountain Software, CPA Software, Creative Solutions, CYMA Systems, Inc., DATA TXT Corporation, Deltek Systems, Inc., DPC, a division of CCH, Drake Enterprises, Ltd., Dunphy Systems, Electronic Accountant, eledger.com, Elite Information Systems, Inc., ePace! Software, eTEK International, Inc., ExacTax, Inc., Express Software, Financial MicroSystems, Inc., Giardina & Associates, Inc., Great Plains, H&R Block, Help Desk Technology International Corp., HelpStar, HMS Software, IGG Software, LLC, Intacct Corporation, Kemma Software, Kleinrock Publishing, Laser Systems, Meca, Micro Information Products (MIP), Micro Vision Software, Inc., Microsoft, Modeless Software, Inc., MultiActive, MYOB, netledger.com, Network Associates, On-Q Software, Open Systems, Inc., Oracle, Oracle Small Business Solution, OrrTax Software, Inc., PC Software Accounting, Inc., Peachtree, Peachtree Software, Peoples Income Tax, SweetCocoa, Practitioners Publishing Co., Public-Sector Solutions, RareVision, Red Wing Accounting Software, Reilly Technologies, LLC, Remedy, RIA, Sage, Software Technology, Inc., Solution & North America, Symantec, TAS Books, TaxACT, Tax-Aid Inc., Time Value Software, TPS Software, Inc., UniLink, Inc., Unipress Software, Universal Tax Systems, Inc., Virginian Accounting Software Technologies, Inc., Visa, Ziegner Technologies, Inc. (Ztech), and/or any of the subsidiaries thereof and Tester shall not use the Confidential Information for the creation and/or the development of any competing products. Tester agrees that any unauthorized disclosure of the Confidential Information would cause irreparable harm to Intuit, and that in the event of any breach or threatened breach of the confidentiality obligations, Intuit shall be entitled to obtain equitable relief in addition to any other remedy.
1.2. Tester is hereby permitted to copy, or provide access to, the Pre-Release Software for each employee who shall be considered a Tester for the purposes of this Agreement, subject to the number of authorized users for which Tester has paid the applicable fee(s). Tester otherwise agrees not to make any copies of, or provide access to, the Pre-Release Software, in whole or in part, except as expressly allowed by an authorized representative of Intuit. This Agreement does not authorize Tester to make any modifications to or adaptations of any part or whole of the Pre-Release Software or to merge the Pre-Release Software into other programs or other materials, and any such modification, adaptation or merging is expressly prohibited. Tester agrees not to decompile, disassemble, or otherwise reverse engineer the Pre-Release Software.
1.3 To the extent that Tester provides any information, including but not limited to health information, to Intuit or its Representatives (as defined below), Tester warrants that (i) Tester is providing only Tester’s own information or the information of others which Tester is authorized to provide on their behalf to third parties; and (ii) the use of such information by Intuit and its Representatives will not infringe or misappropriate the intellectual property rights or otherwise violate the rights of any third parties.
1.4 Tester hereby acknowledges and agrees that information Tester may provide to Intuit or its affiliates shall not be considered to be “Protected Health Information” or “Individually Identifiable Health Information” for the purposes of the Health Insurance Portability and Accountability Act of 1996 (Pub. L. 104-191).
1.5 As a condition of use of the Pre-Release Software, Tester agrees that in the event of an error of the Pre-Release Software, a designated Pre-Release Software program technician shall be permitted to access Tester information as necessary.
2.0 Intuit License Grant and Obligations.
Intuit grants Tester a non-exclusive, non-transferable, royalty free license to use the Pre-Release Software solely for the purpose of evaluation in accordance to the terms provided in this Agreement. Intuit shall supply Tester with a copy of the Pre-Release Software and any necessary information regarding use of the Pre-Release Software.
2.1 Warranty Disclaimer.
Tester understands that the Pre-Release Software is a pre-release version and does not represent a final product from Intuit. Tester also understands that the Pre-Release Software may contain, errors, “bugs” and other problems which may result in system failure or failure in the use of the Pre-Release Software or loss of data. Consequently, it is provided to Tester "AS IS", and Intuit disclaims any warranty or liability obligations to Tester of any kind. Tester understands and agrees that NEITHER INTUIT NOR ANY PARTICIPATING FINANCIAL INSTITUTION, ANY INTUIT AFFILIATE, OR ANY THIRD PARTY SERVICE OR DATA PROVIDER, LICENSORS OR DISTRIBUTORS ("REPRESENTATIVES") MAKE ANY EXPRESS, IMPLIED, OR STATUTORY WARRANTY OR CONDITION OF ANY KIND FOR THE PRE-RELEASE SOFTWARE INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OR CONDITION WITH REGARD TO PRE-RELEASE PERFORMANCE, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, SECURITY OR NON-INFRINGEMENT. IN NO EVENT WILL INTUIT OR ANY OF ITS REPRESENTATIVES BE LIABLE TO TESTER OR ANY OTHER PARTY FOR (i) PUNITIVE, EXEMPLARY OR AGGRAVATED DAMAGES; (ii) ANY DIRECT OR INDIRECT DAMAGES, INCLUDING ANY LOST PROFITS, LOST SAVINGS, LOST OR DAMAGED DATA, OTHER ECONOMIC OR COMMERCIAL LOSS OR ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES EVEN IF INTUIT OR ANY OF ITS REPRESENTATIVES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (iii) FOR ANY CLAIM BY ANY OTHER PARTY. TESTER ACKNOWLEDGES AND AGREES THAT IT BEARS THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PRE-RELEASE SOFTWARE. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, AND SO PARTS OF THE ABOVE LIMITATION MAY NOT APPLY TO TESTER.
3.0 Feedback; Idea Submission.
3.1 Tester acknowledges and agrees that Tester may be providing and submitting feedback, statements, suggestions and ideas (“Ideas”) in connection with Testers’ use of the Pre-Release Software to Intuit which Intuit may use in future modifications and/or final versions of the Pre-Release Software, multimedia works and/or advertising and promotional materials relating thereto.
3.2 Tester acknowledges and agrees that submission of Ideas to Intuit, either orally or in writing, will not in any way establish a confidential relationship with Intuit, nor will it place Intuit in the position of receiving a disclosure in trust. Intuit will not be obligated and makes no commitment to treat or maintain Ideas which Tester submits as confidential. In addition, Tester does not expect any type of payment or remuneration from Intuit for Ideas. Tester agrees that all documents and materials submitted to Intuit will become the property of Intuit, unless Intuit agrees otherwise in writing. No obligation is assumed or may be implied on the part of Intuit by receipt or examination of the idea submission to use the Ideas, compensate Tester or otherwise enter into another agreement with Tester.
4.0 Term and Termination.
4.1 Tester obligations with respect to the Confidential Information as set forth above shall terminate when Tester either (i) receives written notice from Intuit that Tester can disclose the Confidential Information to someone or the public; (ii) the Confidential Information has been disclosed to the public by Intuit; or (iii) twelve (12) months following the date of the public release of the Pre-Release Software as a final product.
4.2 (a) Tester may terminate the license but not the confidentiality obligations at any time by notifying Intuit and by either returning to Intuit or destroying the Pre-Release Software and related information.
(b) Intuit may terminate Tester’s license immediately if Tester fails to comply with any term or condition of this Agreement.
(c) Intuit further reserves the right to terminate this Agreement on fifteen (15) days prior notice.
(d) Tester agrees that upon any termination, Tester will promptly return or destroy the Pre-Release Software and related information if requested by Intuit and provide Intuit with an officer’s certificate verifying such destruction. The provisions of Paragraphs 1, 2.1, 3, 4, 5, 6 and 7 shall survive any termination of this Agreement.
5.0 Proprietary Rights.
All Confidential Information, the Pre-Release Software, and any materials furnished to Tester by Intuit and any information or materials which are designated in writing to be the property of Intuit shall remain the sole property of Intuit.
Tester acknowledges and agrees that the Pre-Release Software is subject to restrictions and controls imposed by the Export Administration Act and the Export Administration Regulations ("the Acts"). Tester agrees and certifies that neither the Software nor any direct product thereof is being or will be used for any purpose prohibited by the Acts. Tester agrees and certifies that Tester is not a citizen or permanent resident of the following countries: Cuba, Iran, North Korea, Sudan or Syria.
7.0 General Provisions.
7.1 This Agreement shall be governed in all respects by the internal laws of the State of California excluding its conflicts or choice of law provisions and Tester agrees to submit to personal jurisdiction in the State of California.
7.2 Notices between the parties shall be by personal delivery, facsimile transmission, or certified or registered mail, return receipt requested, and shall be deemed given upon receipt at the address of the recipient party or ten days after deposit in the mail. Addresses used shall be the ones set forth below or such other address as a party hereto shall notify the other in writing. If the notice is to Intuit, it shall be sent to the attention of the Legal department.
7.3 In the event of any invalidity of any provision of this Agreement, the parties agree that such invalidity shall not affect the validity of the remaining portions of this Agreement, and further agree to substitute for the invalid provision a valid provision which most closely approximates the intent and economic effect of the invalid provision.
7.4 This Agreement constitutes the entire understanding and agreement between the parties with respect to the subject matter addressed herein and supercedes any and all prior or contemporaneous oral or written communications with respect to the subject matter hereof, all of which are merged herein. Tester may not assign Tester's rights and obligations under this agreement without the prior written consent of an authorized representative of Intuit.