Software Testing Agreement
This Agreement is made and entered into this day of <month>, by and between Iowa
Department of Transportation, Motor Vehicle Division (hereinafter "Owner") having its principal offices
at 100 East Euclid Avenue, Des Moines, Iowa 50313, and the <agency name> , a <state> State agency,
having its principal offices at <agency address> .
WITNESSETH:
WHEREAS, the Owner has developed certain computer software, entitled "Traffic and Criminal
Software, a.k.a. as TraCS," "Software Development Tool Kit, a.k.a. SDK" and related documentation
(collectively, the "Program");
WHEREAS, the Program embodies and reflects certain trade secrets of the Owner;
WHEREAS, the User wishes to test and evaluate the Program; and
WHEREAS, the Owner is willing to deliver a copy of the Program in object code form to the User,
for the sole purpose of conducting such testing and evaluation on the terms and conditions of this
Agreement;
NOW, THEREFORE, in consideration of the premises hereof, and the mutual promises and
obligations herein, the parties hereto, intending to be legally bound, hereby agree as follows:
Section 1
DELIVERY, DEMONSTRATION, AND EVALUATION
1.1 The Owner shall deliver to the User, on or about <date> , one copy of the Program in
object code form, accompanied by one set of end-user documentation, sufficient to allow operation of
the Program by the User on the User's computers.
1.2 The User shall conduct an evaluation of the Program on the basis of the testing and
demonstration of the object code form of the Program that takes place at its facility. The User shall
complete the evaluation by <date> . User acknowledges that the program is not being offered for sale
or license for commercial use.
1.3 The User shall not provide either the TraCS or SDK software to a third party (including all
consulting software developers and vendors) without the written approval of the Owner. Upon
approval by the Owner, the third party shall execute a testing agreement with the Owner.
Section 2
PROPRIETARY PROTECTION
2.1 The Program in object code form and the documentation are furnished to the User for the
sole purpose of testing and evaluation. The User shall use the Program and the documentation solely
for such purpose, and shall not, without the prior written approval of the Owner, either allow any third
party to use, or itself use, the Program or such documentation for any other purpose or for the benefit of
any third party.
2.2 This Agreement conveys to the User only a limited right of use, fully revocable in
accordance with the provisions of this Agreement. Except for such right of use, the User shall not assert
any right, title, or interest in or to the Program or any pertinent documentation.
2.3 The Owner hereby represents, and the User hereby acknowledges, that the Program
contains substantial trade secrets of the Owner (including without limitation algorithms, methods, and
structure and design elements); such trade secrets have been entrusted to the User for use only as
expressly authorized under this Agreement. User agrees to hold all of Owner's trade secrets in
confidence, and not disclose them to third parties. Under no circumstances may the User decompile,
reverse engineer, or "unlock" (as the term is generally used in the industry) the Program.
2.4 User is not permitted to modify, alter or adopt the Program or the documentation.
2.5 The Owner claims and reserves to itself all rights and benefits afforded under U.S.
copyright law and all international copyright conventions in the Program and any pertinent
documentation as restricted, unpublished works.
2.6 The User shall devote its best efforts, consistent with the practices and procedures under
which it protects its own most valuable proprietary information and materials, to protect the Program
and any pertinent documentation and associated trade secrets against any unauthorized disclosure or
unlawful use or copying.
2.7 The User shall make no hard copies of the Program or the pertinent documentation, and
may store in memory only so much programming as may be necessary for the normal operation of the
Program on not more than four (4) CPUs and terminals.
2.8 Upon termination of this Agreement the User shall return to the Owner the Program and
any pertinent documentation. All copies of the Program shall be deleted from the User CPUs.
2.9 Owner's trade secrets shall not include information that User can conclusively establish:
(i) entered or subsequently enters the public domain without User's breach of any obligation owed
Owner; (ii) became known to User prior to Owner's disclosure of such information to User; (iii) became
known to User from a source other than Owner other than by the breach of an obligation of
confidentiality owed to Owner; (iv) is disclosed by Owner to a third party without restrictions on its
disclosure; or (v) is independently developed by User.
2.10 User is allowed to publish and present results of its evaluation but cannot publish or
present Owner’s confidential information. User will furnish copies of any publication or presentation to
the Owner at least 10 days before submission of the proposed publication or presentation. During that
time, Owner will have the right to review the material for confidential information provided by the
Owner.
Section 3
TERM OF AGREEMENT; TERMINATION
3.1 The term of this Agreement shall commence upon the date first stated in the beginning
paragraph and shall continue during the testing and review, unless sooner terminated by provisions
hereunder.
3.2 Any obligations that by their nature continue after the termination of this Agreement shall
remain binding upon the parties.
Section 4
LIMITATION OF REMEDIES
4.1 The owner disclaims any and all promises, representations, and warranties, except as
expressly set forth in this agreement, with respect to any data, programs, information, or other material
furnished to the state agency hereunder, including their condition; conformity to any representation or
description; the existence of any latent or patent defects; and title, merchantability or fitness for a
particular purpose or use.
4.2 In no event shall the Owner be liable to the State of <state> for any loss of profits; any
incidental, special, exemplary, or consequential damages; or any claims or demands brought against the
Owner, even if Owner has been advised of the possibility of such damages.
Section 5
MISCELLANEOUS
5.1 Neither party may assign or transfer its rights or obligations under this Agreement
without the prior written consent of the other party.
5.2 This Agreement shall be governed and construed in all respects in accordance with the
substantive laws of the State of Iowa.
5.3 All remedies available to either party for one or more breaches by the other party shall be
cumulative and may be exercised separately or concurrently without waiver of any other remedies. The
failure of either party to act on a breach of this Agreement by the other party shall not be deemed a
waiver of said breach or a waiver of future breaches, unless such waiver is in writing and is signed by
the party against whom enforcement is sought.
5.4 This Agreement constitutes the entire agreement of the parties hereto.
Signatures on this Agreement, if transmitted by facsimile, will be accepted by both parties as
original.
IN WITNESS WHEREOF, both parties have caused this Agreement to be executed by their duly
authorized representatives.
