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NINE KEY CONSIDERATIONS
Prepared By: Ony Okoro
 A beta test is the final stage of testing a software
prototype before it is ready for launch.
 Disclosure of your trade secrets.
 Third party rights to your prototype.
 Damage to a third party as a result of the beta test.
MANAGE YOUR COMPANY’S RISK AND PROTECT
YOUR COMPANY’S INTELLECTUAL
 Will evaluators have rights to improvements?
 Who will own the data resulting from the evaluation?
 How can you prevent evaluators from reverse
engineering or modifying your prototype?
PROTECT YOUR COMPANY’S INTELLECTUAL PROPERTY
CONTRACTUALLY
 What constitutes proper use of the prototype?
 Will the evaluator have rights to use the prototype
for commercial purposes?
LIMITING THE SCOPE OF THE EVALUATION MAY OFFER
GREATER PROTECTION FOR YOUR COMPANY
 What role should evaluators have in the market?
◦ Direct Customers
◦ Indirect Customers
◦ Competitors
◦ Academics
EVALUATORS SHOULD BE DIVERSE
CONSIDER AVOIDING COMPETITORS
 How long will confidentiality obligations last?
 Under what circumstances will confidentiality
obligations no longer apply?
 How limited should access to the prototype be?
STRONG CONFIDENTIALITY AGREEMENTS OFFER GREATER
PROTECTION FOR YOUR COMPANY’S TRADE SECRETS
 Will the evaluation take place at a single site or at
multiple sites?
 Will affiliates of the evaluator have access to the
prototype?
 Will consultants/contractors/agents have access
to the prototype?
LIMITED ACCESS TO THE PROTOTYPE OFFERS GREATER
PROTECTION FOR YOUR COMPANY’S TRADE SECRETS
 Will evaluators have any rights to include data in
publications?
◦ If so, what type of data can be included?
◦ How will the publications be reviewed?
 Will evaluators have any rights to mention their
involvement in the beta test?
 Will evaluators have any rights to publicly comment
about the prototype?
BALANCE BETWEEN THE INTERNAL NEEDS OF THE EVALUATOR AND
YOUR COMPANY’S COMMERCIAL NEEDS IS IMPORTANT
 Will the prototype be provided “AS IS”?
 Is it appropriate to limit your company’s liability?
◦ If so, what is the scope of the limitation?
LIMITED LIABILITY ENABLES YOUR COMPANY TO MANAGE RISK AND
OFFERS GREATER PROTECTION FOR YOUR COMPANY
 Will the evaluator have any obligation to protect
your company from their use of the prototype?
 Will you be able to act quickly if your trade secrets
are disclosed?
 How will disputes be handled?
◦ Negotiation/Mediation/Arbitration/Litigation
 Who should bear the costs of breaches, errors and
mistakes?
CONSIDER AVOIDING RISK FOR ACTIVITIES OVER WHICH
YOUR COMPANY HAS NO AUTHORITY OR CONTROL
 For more information contact:
 Ony Okoro at okoro.ony@apex-legal.com

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Software Beta Testing

  • 2.  A beta test is the final stage of testing a software prototype before it is ready for launch.
  • 3.
  • 4.  Disclosure of your trade secrets.  Third party rights to your prototype.  Damage to a third party as a result of the beta test. MANAGE YOUR COMPANY’S RISK AND PROTECT YOUR COMPANY’S INTELLECTUAL
  • 5.
  • 6.  Will evaluators have rights to improvements?  Who will own the data resulting from the evaluation?  How can you prevent evaluators from reverse engineering or modifying your prototype? PROTECT YOUR COMPANY’S INTELLECTUAL PROPERTY CONTRACTUALLY
  • 7.
  • 8.  What constitutes proper use of the prototype?  Will the evaluator have rights to use the prototype for commercial purposes? LIMITING THE SCOPE OF THE EVALUATION MAY OFFER GREATER PROTECTION FOR YOUR COMPANY
  • 9.
  • 10.  What role should evaluators have in the market? ◦ Direct Customers ◦ Indirect Customers ◦ Competitors ◦ Academics EVALUATORS SHOULD BE DIVERSE CONSIDER AVOIDING COMPETITORS
  • 11.
  • 12.  How long will confidentiality obligations last?  Under what circumstances will confidentiality obligations no longer apply?  How limited should access to the prototype be? STRONG CONFIDENTIALITY AGREEMENTS OFFER GREATER PROTECTION FOR YOUR COMPANY’S TRADE SECRETS
  • 13.
  • 14.  Will the evaluation take place at a single site or at multiple sites?  Will affiliates of the evaluator have access to the prototype?  Will consultants/contractors/agents have access to the prototype? LIMITED ACCESS TO THE PROTOTYPE OFFERS GREATER PROTECTION FOR YOUR COMPANY’S TRADE SECRETS
  • 15.
  • 16.  Will evaluators have any rights to include data in publications? ◦ If so, what type of data can be included? ◦ How will the publications be reviewed?  Will evaluators have any rights to mention their involvement in the beta test?  Will evaluators have any rights to publicly comment about the prototype? BALANCE BETWEEN THE INTERNAL NEEDS OF THE EVALUATOR AND YOUR COMPANY’S COMMERCIAL NEEDS IS IMPORTANT
  • 17.
  • 18.  Will the prototype be provided “AS IS”?  Is it appropriate to limit your company’s liability? ◦ If so, what is the scope of the limitation? LIMITED LIABILITY ENABLES YOUR COMPANY TO MANAGE RISK AND OFFERS GREATER PROTECTION FOR YOUR COMPANY
  • 19.
  • 20.  Will the evaluator have any obligation to protect your company from their use of the prototype?  Will you be able to act quickly if your trade secrets are disclosed?  How will disputes be handled? ◦ Negotiation/Mediation/Arbitration/Litigation  Who should bear the costs of breaches, errors and mistakes? CONSIDER AVOIDING RISK FOR ACTIVITIES OVER WHICH YOUR COMPANY HAS NO AUTHORITY OR CONTROL
  • 21.  For more information contact:  Ony Okoro at okoro.ony@apex-legal.com