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Release Notes

Product Beta Test Agreement

This is an agreement between Hirschmann Automation and Control GmbH ("Company") and the Beta Testing Customer ("Tester"), in which Tester agrees to test a hardware and/or software beta product (the "Product") and keep Company aware of the test results.

§1. Company's Obligations

Company is owner of a prototype product identified (list name of product) which it desires to have tested by a prospective user in what is commonly referred to as “Test”. The Product contains valuable, confidential, trade secret information owned by Company.

Company shall provide Tester with a Product and any necessary documentation and instruct Tester on how to use it and what test data is desired by Company.

§2. Tester's Obligations

Tester desires to test and evaluate the Product for suitability for use in its business.

Tester shall test Product under normally expected operating conditions in Tester's test environment during the test period. Tester shall evaluate the Product and gather and report test data with respect to the usefulness and functionality of the Product as agreed upon with Company. Tester shall allow Company access to Product during normal working hours for inspection, modifications and maintenance.

Tester shall report to Company, as soon as practical, any perceived defect in the Product and, following the discovery of any material defect, shall terminate its use of the Product. At the conclusion of the test, Tester shall provide to Company an evaluation of the Product, including both positive and negative aspects.

Tester is aware that the Product represents a prototype product that may be faulty and/or not fit for use and that Company uses this Test to find out the fitness and bugs of its Product. Therefore Tester also understands and hereby explicitly accepts that Company is warranting nothing with respect to the Product and fully excludes any liability in this respect (see Sections 7 and 8).

§3. Product a Trade Secret

(a) Product is proprietary to, and a valuable trade secret of, Company. It is entrusted to Tester only for the purpose set forth in this Agreement. Tester shall maintain Product in the strictest confidence. Tester will not, without Company's prior written consent:

(a) Disclose or use for own purposes (other than the test described herein) any information about Product, its design and performance specifications, its code, and the existence of the beta test and its results to anyone other than Tester's employees who are performing the testing and who shall be subject to written nondisclosure restrictions at least as protective as those set forth in this Agreement (the disclosure to other persons than Tester`s employees (e.g. consultants etc.) requires the prior written consent of Company and is only permitted after such consent if the other requirements mentioned in this paragraph are met;

(b) Copy any portion of Product or documentation, except to the extent necessary to perform beta testing; or

(c) Reverse engineer, decompile or disassemble Product or any portion of it.

(d) Disclose or use for own purposes (other than the test described herein) any other information – no matter what kind and related to what – about the Company or Product without prior written consent of the Company.

b) Tester has the obligation to hand over any test results, observations and any other findings that are a result of the testing to Company.

c) The nondisclosure obligation does not end with the termination/end of this agreement but will continue for a term of 5 (five) years after the termination / end of this agreement.

d) Tester has to return or destroy (at the choice of Company) all information including all copies after the effective date of the termination / end of this agreement to the Company. Tester has to confirm in writing that all information has been returned or destroyed and that neither he nor his employees or consultants etc. has any information (or part of it) left in his possession.

e) Tester will be liable for any damage of the Company resulting out of the breach of this confidentiality clause caused by himself or his employees or consultants etc.

§4. Security Precautions

Tester shall take reasonable security precautions to prevent Product from being seen by unauthorized individuals. This includes software whether stored on Tester's hard drive or on physical copies such as CD-ROMS, diskettes or other media. Tester shall lock all copies of Product and associated documentation in a desk or file cabinet when not in use.

§5. Term of Agreement

The test period shall last from receipt of Product by Tester, until Product is released for general sale. This Agreement shall terminate at the end of the test period or when Company asks Tester to return Product, whichever occurs first. Company may terminate this Agreement upon notice to Tester, subject to Tester`s obligation to return (or destroy – as the case may be) the Product, Confidential Information and all copies thereof.

The restrictions and obligations contained in Clauses 3, 4, 7, 8, 9 and 10 shall survive the expiration, termination or cancellation of this Agreement, and shall continue to bind Tester, its successors, heirs and assigns.

§6. Return of Product and Materials

Upon the conclusion of the testing period or at Company's request (e.g. after termination of this agreement), Tester shall within 10 days return the hardware, original and all copies of software and all related materials to Company and delete all portions of software from device electronic memory. At the choice of Company Tester can be obliged to destroy and confirm destruction of Product and all related confidential information (including any copies of it). Section 3 d) is fully applicable.

§7. Disclaimer of Warranty

Product is a test product and its accuracy and reliability are not guaranteed. Tester shall not rely exclusively on Product for any reason. Tester waives any and all claims Tester may have against Company arising out of the performance or nonperformance of Product.

PRODUCT IS PROVIDED AS IS, AND COMPANY DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO IT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

§8. Limitation of Liability

Insofar as nothing is stipulated to the contrary in this § 8, claims of the Tester based on breaches of an obligation arising from contractual obligations and/or on material defects or defects in title - for whatever legal reason - are hereby excluded. The Company shall not be liable for damage which has not occurred to the Product itself. In particular, the Company shall not be liable for loss of profits or other pecuniary loss suffered by the Tester in this respect.

The foregoing no-liability declaration shall not apply in circumstances where the Company is compulsorily liable, for example (1) pursuant to the German Product Liability Act, (2) due to loss of life, personal injury or damage to health which is attributable to a negligent or intentional breach of obligation by the Company or one of the Company’s legal representatives or vicarious agents, (3) if the cause of damage or loss was due to intentional behaviour or gross negligence by the Company or one of the Company’s legal representatives or vicarious agents, (4) if the Tester asserts rights based on a defect arising from a guarantee regarding the product qualities or the particular duration of a product quality, (5) the Company negligently breaches a fundamental contractual obligation whose fulfilment is what makes the due performance of the contract possible at all and whose fulfilment may be usually relied upon by the Tester (cardinal obligation), (6) recourse claims in the consumer goods purchase delivery chain (§ 478 of the German Civil Code (BGB)) are involved.

If the Company negligently breaches a cardinal obligation, its obligation to pay damages is limited to the contract-typical, foreseeable loss, if no intentional or grossly negligent behaviour is involved, and/or the Company is not liable due to loss of life, personal injury or damage to health.

§9. No Rights Granted

This Agreement does not constitute a grant or an intention or commitment to grant any right, title or interest in Product or Company's trade secrets to Tester. Product and all related trade secrets and other rights stay in the ownership of Company. Tester may not sell or transfer any portion of Product to any third party or use Product in any manner to produce, market or support its own products. Tester shall not identify Product as coming from any source other than Company.

§10. No Assignments

This Agreement is personal to Tester. Tester shall not assign or otherwise transfer any rights or obligations under this Agreement.

§11. General Provisions

(a) Relationships: Nothing contained in this Agreement shall be deemed to constitute either party a partner, joint venturer or employee of the other party for any purpose.

(b) Severability: If a court finds any provision of this Agreement invalid or unenforceable, the remainder of this Agreement shall be interpreted so as best to affect the intent of the parties.

(c) Integration: This Agreement expresses the complete understanding of the parties with respect to the subject matter and supersedes all prior proposals, agreements, representations and understandings. This Agreement may not be amended except in a writing signed by both parties.

(d) Waiver: The failure to exercise any right provided in this Agreement shall not be a waiver of prior or subsequent rights.

(e) Attorney Fees and Expenses: In a dispute arising out of or related to this Agreement, the prevailing party shall have the right to collect from the other party its reasonable attorney fees and costs and necessary expenditures.

(f) Governing Law: This Agreement shall be governed in accordance with the laws of the Federal Republic of Germany.

(g) Jurisdiction: The parties consent to the exclusive jurisdiction and venue of the federal and state courts located in Stuttgart Germany in any action arising out of or relating to this Agreement. The parties waive any other venue to which either party might be entitled by domicile or otherwise.