Please mail two copies to: Bryan Burns/Alfred Hubler 3047 Beckman Institute 405 N. Mathews Urbana, IL 61801 _______________________________________________________________________ UNIVERSITY OF ILLINOIS AT URBANA-CHAMPAIGN NON-DISCLOSURE AND BETA TEST AGREEMENT (PRE-RELEASE PRODUCT-CYBERPROF' Software Development Kit) Agreement is entered into effective as of the _________ day of _____, 1998, ("Effective Date") between The Board of Trustees of the University of Illinois, a body corporate and politic of the State of Illinois, with principle offices at 354 Henry Administration Building, 506 South Wright Street, Urbana, Illinois, 61820 USA (hereinafter referred to as "UI") and _______________________________________________, with principle offices at _______________________________________________________________________ _______________________________________________________________________ (hereinafter referred to as "Recipient"). UI desires to collaborate with Recipient in the conduct of beta tests designed to further evaluate software called CYBERPROFTM. CYBERPROFTM allows instructors the flexibility to develop and display interactive course and testing material. The parties hereto agree as follows: Upon receipt by the University of Illinois ("UI") of this Agreement, signed and completed by the individual or organization indicated below ("Recipient"), UI may elect, at UI sole discretion, to provide Recipient with a pre-release beta-test copy of CYBERPROF (tm) and related documentation and information (collectively the "Product"). UI may, in its sole discretion, also provide further pre-releases of the Product or related information to Recipient hereunder, in which case such further pre-releases and related information shall also be covered hereunder as "Product". UI's designated technical contact hereinafter referred to as Technical Representative shall be Alfred Hubler unless recipient is notified otherwise by UI in writing. 1. GRANT OF LICENSE. (a) UI grants to Recipient a limited, non-exclusive, nontransferable, royalty-free license to use one copy of the executable code of the Product software provided such copy is used only on a single server located on Recipient's premises at the address provided below only for the purpose of developing and testing prerelease versions of computer software applications, and to provide feedback thereon to UI. If Recipient plans on utilizing the commercial version of product, Recipient shall acquire the commercial version of the Product (at a special discounted rate for Recipient's involvement in Beta Tests). Development and distribution of such applications shall be governed by the license agreement accompanying the final commercial release of CYBERPROF(tm). Recipient acknowledges that UI will not be obligated to make the Product available as a final commercial product. All other rights are reserved to UI. Recipient shall not rent, lease, sell, sublicense, assign, or otherwise transfer the Product including any accompanying printed materials. Recipient shall not reverse engineer, decompile or disassemble the Product except to the extent that hiss restriction is expressly prohibited by applicable law. UI and its suppliers shall retain title and all ownership rights to the Product. (b) Recipient agrees to provide reasonable feedback to UI, including but not limited to usability, bug reports and test results, with respect to the Product testing. Recipient will use reasonable efforts to review and comment on all documentation supplied. All bug reports, test results and other feedback made by Recipient shall be the property of UI and may be used by UI for any purpose. Due to the nature of the development work. UI is not certain as to when errors or discrepancies in the Products may be corrected. (c) Recipient may disclose the Product only to its employees who have a need to know in order to accomplish the purposes identified in Section 1(a) and such employees' use of the Product shall take place solely at Recipient's site. Recipient will have executed appropriate written agreements with its employees sufficient to enable it to comply with the terms of this Agreement. Recipient agrees that, for a period of up to six (6) months after commercial release of the Product, it will maintain a list of all employees who have had access hereunder to the Product or related information. 2. TERM OF AGREEMENT. The term of this Agreement shall commence on the Effective Date and shall continue until terminated by UI or Recipient in writing at any time, with or without cause. It is the intent of UI that the release of the commercial Product will be Summer 1997. Upon the termination of this Agreement, Recipient shall promptly return to UI, or certify destruction of, all full or partial copies of the Product and related material provided by UI. Section 6 shall survive termination or expiration of this Agreement with respect to any information that has not been made public by UI as of the commercial release of the Product. 3. COST OF TESTING. There is no charge to Recipient for testing of the Product. UI shall bear all transportation expenses relating to the shipment of the Product to Recipient's place of business and Recipient shall pay any return transportation expenses. University reserves the right to charge a fee on later versions of Product. 4. PRODUCT MAINTENANCE. UI is not obligated to provide maintenance or updates to Recipient for the Product. However, any maintenance or updates provided by UI at UI's discretion shall be covered by this Agreement. 5. SECURE SERVER. Recipient shall conduct the Beta Test on a secured server but shall allow UI Technical Representative access to Recipient's server to facilitate possible updates and maintenance, if any. 6. CONFIDENTIALITY. The Product and related information is proprietary and confidential information to UI and its suppliers. Recipient agrees not to disclose or provide the Product, documentation, or any related information (including the Product features or the results of use or testing) to any third party or use the product for any purpose other that as provided in this Agreement. However, Recipient may disclose confidential information in accordance with judicial or other governmental order, provided Recipient shall give UI reasonable written notice prior to such disclosure and shall comply with any applicable protective order or equivalent. Further, Recipient shall not be obligated to maintain the confidentiality of information which Recipient can prove (i) is already known to Recipient without an obligation to maintain the same as confidential; (ii) becomes publicly known through no wrongful act of Recipient, (iii) is rightfully received from a third party without breach of an obligation of confidentiality owed to UI; or (iv) is independently developed by Recipient. This provision shall survive the termination or expiration of this Agreement with respect to any information that has not been made public by UI as of the commercial release of the Product. 7. RECIPIENT'S TECHNICAL CONTACT. Recipient shall designate one member who possesses technical capability to facilitate smooth and consistent flow of information to and from UI as Recipient's Technical Contact person as set forth at the end of this agreement. 8. DISCLAIMER OF WARRANTY. Product is deemed accepted by Recipient. The Product constitutes pre-release code and may be changed substantially before commercial release. the PRODUCT is provided "AS IS" WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UI FURTHER DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE PRODUCT AND DOCUMENTATION REMAINS WITH RECIPIENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL UI OR ITS SUPPLIERS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE PRODUCT, EVEN IF UI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO RECIPIENT. 9. GOVERNING LAW: This Agreement shall be governed by the laws of the State of Illinois. 10. U.S. GOVERNMENT RESTRICTED RIGHTS. The Product is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restriction as set forth in subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software clause of DFARS 252.227- 7013 or subparagraphs (c)(i) and (2) of the commercial Computer Software--Restricted Rights at 48 CFR 52,227- I9, as applicable. 11. EXPORT RESTRICTIONS. Recipient acknowledges that the Product licensed hereunder is subject to the export control laws and regulation of the USA, and any amendments thereof. Recipient confirms that with respect to the Product, it will not export or re-export it, directly or indirectly, either to (i) any countries that are subject to USA export restriction (currently including, but not necessarily limited to, Cuba, the Federal Republic of Yugoslavia (Serbia and Montenegro), Haiti, Iran, Iraq, Libya, North Korea, and Syria); (ii) any end user who Recipient knows or has reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons; or (iii) any end user who has been prohibited from participating in the USA export transactions by any federal agency of the USA government. Recipient further acknowledges that the Product may include technical data subject to export and re-export restrictions imposed by USA law. 12. ENTIRE AGREEMENT. This Agreement constitutes the complete and exclusive agreement between UI and Recipient with respect to the subject matter hereof, and supersedes all prior oral or written understandings, communications or agreements not specifically incorporated herein.. This Agreement may not be modified except in a writing duly signed by an authorized representative of UI and Recipient. 13. PARTIES BOUND. If "Institution Name" or a institution address is filled in below, then the individual signing this Agreement represents the he/she has authority to execute that agreement on behalf of such institution and agrees that Product (and any copies thereof) shall remain on the institution premises, unless otherwise agreed by UI. IN WITNESS WHEREOF, Recipient has caused this Agreement to be executed by its duly authorized representative. ________________________________________________________________________ Institution Name ________________________________________________________________________ Beta Tester's Signature ________________________________________________________________________ Beta Tester's printed name ________________________________________________________________________ Beta Tester's Course / Development Area ________________________________________________________________________ Institution Authorized Representative's Signature (If not same as beta tester) ________________________________________________________________________ Print Authorized Representative's Name and Title (if not same as beta tester) ________________________________________________________________________ Physical Address (No P.O. Boxes) ________________________________________________________________________ City, State, Zip ________________________________________________________________________ Phone Number ________________________________________________________________________ Fax ________________________________________________________________________ E-mail Address Date ________________________________________________________________________ Technical Consultant Email Phone Approved for legal form Friday, October 25, 1996: M.A.R. and is further defined in Exhibit A which is made a part of this Agreement EXHIBIT A Specification/Description of Program Materials Title: CYBERPROF(tm) Creator(s): Alfred Hubler Version Number or Release Date (if applicable): Hardware Requirements: See requirements document