Test and Evaluation Agreement Template

Use Template

Test and Evaluation Agreement

 

This agreement sets forth the terms and conditions under which [TESTING ORGANIZATION] will test and evaluate the [PRODUCT NAME AND VERSION] (“Product”) provided by [DEVELOPER ORGANIZATION].

 

The objective of the testing and evaluation is to assess the Product’s compliance with the requirements specified in the attached document titled “Requirements fo [PRODUCT NAME AND VERSION]” (“Requirements”).

 

NAME AND ADDRESS OF COMPANY: [FILL IN]

NAME OF TEST OR NATURE OF TEST SERVICES: [FILL IN NAME/TITLE].

SPECIFIC DEVICE TO BE TESTED (“TEST ITEM”):

[LIST ITEM(S)]

PURPOSE:

WHEREAS, 10 USC §2539b(a)(3) gives the Secretaries of the Military Departments authority to

make available to any person or entity, at an appropriate fee, the services of any government laboratory,

center, range or other testing facility for testing materials, equipment, models, computer software and

other items; and

WHEREAS, [FILL IN COMPANY NAME], hereinafter referred to as the “COMPANY,” and

the United States of America, hereinafter referred to as the “GOVERNMENT,” have agreed to conduct

and/or furnish, certain test services as described herein;

NOW, THEREFORE, the COMPANY and the GOVERNMENT do now hereby agree to the

following terms and conditions governing the conduct and/or furnishing of such tests and/or test services:

  1. It is understood that the GOVERNMENT will accept the above-listed TEST ITEM to be tested

for the specified tests and any information submitted for use in such test shall not be disclosed

outside the GOVERNMENT without the consent of the COMPANY.

  1. The test and/or test services shall be conducted and/or furnished at the U.S. Army Information

Systems Engineering Command (USAISEC), Technology Integration Center, Bldg. 53302 of

Ft. Huachuca, Arizona, to begin on a date and time convenient to the GOVERNMENT and

agreed to by both parties. The beginning and estimated completion dates are set forth below

for planning purposes. The GOVERNMENT may, in its discretion, change such test dates or

terminate the test prior to completion, with or without notice to COMPANY, based upon

Army testing needs and other factors. The GOVERNMENT shall not be liable to the

COMPANY as a result of, or because of such changes or termination of testing.

TEST BEGINNING DATE: [FILL IN]

TEST COMPLETION DATE: [FILL IN]

The GOVERNMENT and COMPANY will cooperatively test, evaluate, and analyze the TEST

ITEM supplied by COMPANY. The GOVERNMENT will provide the appropriate facilities

and the test instrumentation, as well as test personnel, when required to perform the test(s).

The COMPANY will provide the specific device or software to be tested, any required support

equipment and documentation, and their own test personnel, if agreed to by the

GOVERNMENT.

  1. The USAISEC Facility is located in a GOVERNMENT secured area. The COMPANY shall

not bring any video, audio, cell phones, laptop computers, handheld computers or similar

devices within the secured area without the inspection and approval of appropriate security

personnel. The COMPANY will provide any documentation necessary for entrance in the

secured areas, be escorted within the secured area at all times, and only have access to

specified designated areas. Any COMPANY personnel so admitted must be U.S. citizens and

provide proof of said citizenship. The COMPANY agrees to use due care while on the

GOVERNMENT’S premises, to comply with all posted environmental, safety, health, and

security rules and regulations during the term of this Agreement, and to enter only those areas

so designated by GOVERNMENT personnel.

 

  1. “Confidential Information” means all information or material that has or could have commercial value or other utility in the business in which [DEVELOPER ORGANIZATION] is engaged. If Confidential Information is in written form, the Disclosing Party shall label or stamp the materials with the word “Confidential” or some similar warning. If Confidential Information is transmitted orally, the Disclosing Party shall promptly provide writing indicating that such oral communication constituted Confidential Information.

 

“Disclosing Party” means the party disclosing Confidential Information under this Agreement.

 

“Evaluation Period” means the period during which the testing and evaluation will take place, which is from [DATE] to [DATE].

 

“Receiving Party” means the party receiving Confidential Information under this Agreement.

 

  1. Exclusions from Confidential Information. Receiving Party's obligations under this Agreement do not extend to information that is:

 

(a) publicly known at the time of disclosure or subsequently becomes publicly known through no fault of the Receiving Party;

(b) discovered or created by the Receiving Party before disclosure by Disclosing Party;

(c) learned by the Receiving Party through legitimate means other than from the Disclosing Party or Disclosing Party's representatives; or

(d) is disclosed by Receiving Party with Disclosing Party's prior written approval.

 

  1. Obligations of Receiving Party. Receiving Party shall hold and maintain the Confidential Information in strictest confidence for the sole and exclusive benefit of the Disclosing Party. Receiving Party shall carefully restrict access to Confidential Information to employees, contractors and third parties as is reasonably required and shall require those persons to sign nondisclosure restrictions at least as protective as those in this Agreement. Receiving Party shall not, without the prior written approval of Disclosing Party, use for Receiving Party's benefit, publish, copy, or otherwise disclose to others, or permit the use by others for their benefit or to the detriment of Disclosing Party, any Confidential Information. Receiving Party shall return to Disclosing Party any and all records, notes, and other written, printed, or tangible materials in its possession pertaining to Confidential Information immediately if Disclosing Party requests it in writing.

 

It is further agreed by the GOVERNMENT and the COMPANY that:

  1. The COMPANY shall:
  2. Provide, install, interface, and system familiarization for the TEST ITEM and related

necessary equipment at no cost to the GOVERNMENT.

  1. Be responsible for the transportation, installation, interface, and system

familiarization of all equipment at the specified location at Ft. Huachuca, Arizona.

  1. Bear all costs for transportation, packing, crating, and drayage, including that which

the GOVERNMENT may, for its own convenience, perform or cause to be

performed.

  1. Promptly remove the TEST ITEM and any related equipment from the

GOVERNMENT’S premises upon completion or termination of the test and/or test

services. Upon the COMPANY’S failure to do within a reasonable time, the

GOVERNMENT is authorized the removal of the TEST ITEM and any related

equipment and bill the COMPANY accordingly.

  1. Be responsible for all maintenance and repair of the TEST ITEM and any related

equipment and system(s) while under test and while located at the

GOVERNMENT’S facility.

  1. Convey no ownership rights, entitlements or title to any TEST ITEM and/or related

equipment.

  1. Not circulate, refer to, or otherwise use for publicity or advertising purposes

(including press releases and the like) the results of the test conducted by the

GOVERNMENT in any manner that will state or imply that the GOVERNMENT

endorses any product or TEST ITEM.

  1. Reimburse the GOVERNMENT for any losses or damages arising out of or in

conjunction with the use of government property.

 

  1. The GOVERNMENT shall:
  2. Provide all test site facilities and utilities which are required for the conduct of

all tests under this agreement.

  1. Acquire no ownership rights, entitlements or title to any TEST ITEM and/or

equipment described herein.

  1. Interface or connect any equipment furnished to applicable test sets/equipment

as necessary to perform the required tests.

  1. Not modify the equipment/software provided by the COMPANY. Any

modifications to the equipment/software provided for testing purposes shall be

accomplished only by the COMPANY unless otherwise explicitly authorized

by written addendum to this agreement, signed by both the GOVERNMENT

and the COMPANY.

  1. Not assume any responsibility for, or be liable for any loss or destruction of, or

damage to COMPANY’S TEST ITEM and/or related equipment or system(s),

or for any other damages, whether direct, consequential, for delays or

otherwise.

  1. Protect and safeguard information that the COMPANY has identified in writing

as proprietary, confidential, or as a COMPANY trade secret. The

GOVERNMENT may divulge such information only to those GOVERNMENT

personnel directly involved in the tests and evaluation and the supervision of

that personnel and then only on a bona fide need –to-know basis.

  1. Have the sole and unilateral decision whether to release any information or data

generated as a result of tests and evaluation to GOVERNMENT personnel.

  1. Not release information or data generated under this Agreement outside the

GOVERNMENT without the written consent of the COMPANY.

  1. Not be obligated to purchase any equipment, materials, or services from the

COMPANY as a result of the test and evaluation activity.

  1. The COMPANY agrees to hold harmless and indemnify the GOVERNMENT against the

following insofar as they may result from the performance and/or furnishing of the test and/or

test services described above:

  1. Claims (including reasonable expense of litigation or settlement) by third persons

(including COMPANY’S servants, agents, or employees) for any loss, death, bodily

injury (including sickness or disease) or property damage, including loss of, or damage

to, or use of property (including software or the TEST ITEM and any related

equipment), except as may be caused by gross negligence or willful misconduct on the

part of any GOVERNMENT officers or employees who have supervision or direction

of all, or substantially all, of the test facilities or services in the execution of this

Agreement;

  1. Loss of or damage to GOVERNMENT property, or property in its custody, and loss of

use of such property; and

  1. The GOVERNMENT reserves the right to limit the number and terms of visits of observers

and other participants.

  1. In consideration of the test and/or test services to be conducted and furnished by the

GOVERNMENT, the COMPANY agrees to pay to the GOVERNMENT the cost thereof as

determined by the GOVERNMENT. The cost will include the amount necessary to recoup

both the direct and indirect costs involved that are incurred by the GOVERNMENT to provide

for the test and/or test services, in accordance with policies, accounting procedures, and

GOVERNMENT regulations in effect at the time of this agreement.

  1. The GOVERNMENT estimates that the cost of the test and/

 

 

  1. Time Periods. The nondisclosure provisions of this Agreement shall survive the termination of this Agreement and Receiving Party's duty to hold Confidential Information in confidence shall remain in effect until the Confidential Information no longer qualifies as a trade secret or until Disclosing Party sends Receiving Party written notice releasing Receiving Party from this Agreement, whichever occurs first.

 

  1. Nothing contained in this Agreement shall be deemed to constitute either party a partner, joint venture or employee of the other party for any purpose.

 

  1. 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.

 

  1. 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 writing signed by both parties.

 

  1. The failure to exercise any right provided in this Agreement shall not be a waiver of prior or subsequent rights.

 

  1. Notice of Immunity. Employee is provided notice that an individual shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual (i) files any document containing the trade secret under seal; and (ii) does not disclose the trade secret, except pursuant to court order.

 

  1. No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to confer on any person other than the parties hereto any rights, remedies, obligations or liabilities under or by reason of this Agreement.

 

  1. Governing Law. This Agreement shall be construed in accordance with the laws of the State of [STATE/PROVINCE] without regard to its conflict of laws rules.

 

  1. Any controversy or claim arising out of or relating to this Agreement shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in [CITY, STATE/PROVINCE], and judgment on the arbitration award may be entered into any court having jurisdiction thereof.

 

  1. Entire Agreement. This Agreement and the Requirements attached hereto constitute the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersede and replace all prior or contemporaneous proposals, understandings, agreements, representations, and warranties, both written and oral.

 

  1. This Agreement may not be assigned by either party without the prior written consent of the other, but may be assigned without consent by either party in connection with a merger, consolidation, or sale of all or substantially all of its assets.

 

  1. Any assignment in violation of this provision shall be void. [SIGNATURE PAGE FOLLOWS] IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above.

 

DEVELOPER ORGANIZATION:

 

Signature: ________________________________________

Typed or Printed Name: _____________________________

Title: ____________________________________________

 

TESTING ORGANIZATION:

Signature: ________________________________________

Typed or Printed Name: _____________________________

Title: ____________________________________________