Last revised: December 15, 2021
ATLAS.ti Scientific Software Development GmbH (hereinafter referred to as “ATLAS.ti” or “Licensor”) is manufacturer of the “ATLAS.ti” standard software (hereinafter referred to as “Software”) and offers training Courses (hereinafter referred to as “Courses”) regarding the use of the Software. The Licensor is the holder of the copyright thereto, but not seller of the Software or the Courses. Unless defined otherwise, the seller and therefore contractual partner of the Customer (hereinafter referred to as the “Customer”) is Cleverbridge AG, Cologne, Germany.
The validity of the Customer’s general terms and conditions of contract or business is expressly excluded. This also applies if the Licenser has not expressly contradicted the conditions of the Customer and/or provides services without contradiction.
In order to use the Software, both Desktop software or Web Software, each user must first register and create a user account. Every user will have to accept the End-User License Agreement (EULA) upon registration and/or installation.
ATLAS.ti offers the Software as a desktop version for Windows and Mac (hereinafter referred to as “Desktop Software”), as a Web version for use as Software-as-a-Service (hereinafter referred to as “Web Software”) and as a mobile version (iOS and Android App).
The Software consists of the program and the user manual. The software is provided as a file on DVD or online for download or via the Web platform.
In the event of data communication, the Customer shall, if necessary, be granted access to the area where the data is stored and from where the data can be downloaded.
The Customer shall receive the Software in machine code.
The Customer shall not be entitled to demand delivery of the source code and shall have no rights in the source code. The Customer itself shall install the Desktop Software in its software environment.
Any presentation or rendering in test programs, product and project descriptions shall not be deemed to constitute any warranty of properties unless explicitly referred to as such.
ATLAS.ti currently offers the use of the Software in the following types of licenses:
The Licensor reserves the right to offer further license types in the future or to discontinue license types. The current license models can be found on the Licensor’s website.
Furthermore, the Customer can receive free patches (“updates”) and purchase further developments of the Software (“upgrades”), if the Licensor produces them. The Licensor is not obligated to produce such upgrades. In case of patching or further development, the new version of the Desktop Software will be made available to the Customer on a suitable data medium or online by his seller.
The Licensor grants the Customer a non-exclusive, locally unlimited right to use the Software, limited in time, in the case of time-limited contracts, for the term of the respective contract, and limited in content in accordance with the respective selected license.
The Licensor hereby informs the Customer that open source components from third parties (hereinafter “OSS”) are used within the scope of the Software. The Customer acknowledges that the OSS is subject to the terms of the respective OSS license of the third party provider. OSS is subject to the terms of the respective OSS license, accessible at www.atlasti.com/oss.
If the terms of the applicable OSS licenses require Licensor to make an offer to provide the source code of the OSS used in conjunction with the Software, such offer is hereby made. Upon written request, the Licensor shall make the source code of the OSS concerned available to the Customer against reimbursement of the data carrier shipping costs.
The Customer may load the Desktop Software onto the main data memory and hard disk of the hardware used by him and create backups as necessary for safe operation. These are to be labelled as such and (in so far as technically possible) marked with the copyright notice of the original data medium.
The user’s manual may be copied only for internal purposes. The copyright notices and trademarks contained in the Software, any other reservations of rights, serial numbers and other program identification features may not be altered or obliterated.
The Customer shall be entitled to make the number of backup copies of the Desktop Software necessary for reliable operation. Such backup copies shall be marked as such and (as far as technically possible) shall be provided with the same copyright notice which also appears on the original data medium. The Customer shall not be entitle d to copy the user’s manual for any purposes other than the Customer’s internal purposes.
Any other form of using the Software, including, but not limited to, its compiling, editing, arranging, or modifying in any other manner whatsoever (other than decompiling pursuant to section 69e of the German Copyright Law; § 69 UrhG) or the (offline or online) dissemination of the Software in any other manner shall be subject to the written consent of the Licensor.
The Licensor retains all rights to the Software, even if the Customer modifies the Software or combines the Software with his own programs or those of a third party. The documentation provided to the Customer also remains the exclusive property of the Licensor.
The Customer and each user must register online on the Licensor’s website, indicating the serial number. Only in this way it will be ensured that the Customer may use Software upgrades and updates and newsletters and/or may participate in forums throughout the term of this agreement,
to the extent that such services are offered by the Licensor and that the Licensor is able to establish that the Software has been properly acquired and used.
The Customer shall backup his data according to the state of the art. He shall ensure that current data from his data stock kept in machine-readable form are reproducible with reasonable effort. The Customer shall take reasonable measures in order to protect the Software against unauthorized access by third parties. The Customer shall be obliged to download from the Licensor’s homepage the relevant Software updates by data transmission on condition that the Licensor notifies the
Customer that new updates are available.
If the customer is an entrepreneur within the meaning of § 14 para. 1 BGB (“Unternehmer”), the Customer shall be obliged to immediately inspect the Software and Software updates
supplied and to report any defects in writing, including a detailed description (Section 377 of the German Commercial Code; § 377 HGB).
The Customer shall, in its defect notification, provide written information concerning the type of fault or error, the module where such fault or error occurred, as well as the work carried out at the time the fault or error occurred. 1.8 Defects in Quality and Defects in Title
The Licensor shall supply the Software to the Customer in a condition free from defects in quality or defects in title. Defects affecting the suitability for use of the Software to a minor extent only shall not be considered as defects for the purposes of this agreement. Functional impairment caused by the hardware and software environment made available by the Customer, operator error, defective external data, computer network malfunction or any other reason belonging to the Customer’s sphere of responsibility shall not be considered as defects for the purposes of this agreement.
The Licensor shall eliminate any defects in quality by repair or replacement. Such repair or replacement can, in particular, be carried out by delivering new Software or by the Licensor showing ways to avoid such defect from reoccurring. The Customer shall be obliged to accept new Software even if this means a reasonable adaptation effort on the part of the Customer.
Repair or replacement in the case of defects in title shall be carried out by the Licensor providing the Customer with a lawful way to use the Software. The Licensor shall be at liberty to replace the Software concerned by equivalent Software in conformity with the terms and conditions hereof if this is acceptable for the Customer. In the event that any third party claims any industrial property rights in relation to the Customer, the Customer shall immediately notify the Licensor thereof in writing. The Licensor shall, as he may elect and after consultation with the Customer, either defend or satisfy such claims. The Customer shall not be entitled to accept any such claims raised by third parties. The Licensor shall defend at its own cost any such claims by a third party and shall hold the Customer harmless with regard to any costs and any damage related to the defending of such claims as aforesaid unless these are caused by the Customer violating its obligations. If the customer is an entrepreneur within the meaning of § 14 para. 1 BGB (“Unternehmer”), any claims which the Customer may have for reason of defects in quality or defects hereof shall become statute-barred within one year after delivery. In the event that a defect in title consists of a material right of any third party entitling such third party to claim the surrendering of the Software, the statutory periods of limitation shall apply.
The Licensor is entitled to advertise or promote the conclusion of this contract and the business relationship with the Customer in any form (e.g. in reference lists). The Customer hereby expressly agrees to the use of the firm, trademarks and other protected signs by the Licensor for the aforementioned purpose. The Customer has the right to revoke this consent at any time with effect for the future.
Delivery dates shall be extended by the period during which the Licensor is for any circumstances beyond its control (labour dispute, force majeure or any other hindrance beyond the Licensor’s control) prevented from performing ist obligations hereunder, plus a reasonable start-up period
following elimination of such hindrance.
Partial shipments shall be permitted on condition that the parts delivered can be fully used in their own right. The Licensor shall be entitled to issue a separate invoice for every partial shipment.
Subject to the further provisions of this Clause 11.1, Licensor shall only be liable if and to the extent that Licensor, its legal representatives, executives, employees or other vicarious agents are charged with intent or gross negligence.
However, in the event of default of the Licensor by the debtor or impossibility of performance for which the Licensor is responsible, as well as in the event of breach of essential contractual obligations (so-called cardinal obligations), the Licensor shall be liable for any own culpable conduct or that of its legal representatives, executives, employees or other vicarious agents. Essential contractual obligations are defined abstractly as those obligations whose fulfilment is essential for the proper execution of the contract and on whose compliance the customer may regularly rely. Except in the case of intent or gross negligence on the part of Licensor, its legal representatives, executives, employees or other vicarious agents, the liability of Licensor shall be limited in amount to the damages typically foreseeable at the time of conclusion of the contract. The exclusions and limitations of liability regulated in the preceding paragraphs of this Clause 11.1 shall not apply in the event of the assumption of express guarantees, in the event of claims for lack of warranted characteristics and for damages resulting from injury to life, body or health as well as in the event of mandatory statutory regulations.
Furthermore, the limitations of liability provided for in the second paragraph of this Clause 11.1 shall not apply to claims for interest on arrears, to the lump sum for arrears pursuant to § 288 para. 5 BGB and to compensation for damage caused by arrears arising from legal action costs in the event of arrears on the part of the Licensor.
Claims under the Product Liability Act (Produkthaftungsgesetz) shall remain unaffected by the provisions of this Clause 11.1.
The parties undertake to keep all protected or confidential information of the other party – unless required for the performance of the contractual cooperation – secret from third parties even after the end of the contractual cooperation and not to pass it on or exploit it to third parties. Protected or
confidential information of the parties is all information about or by one party which has been disclosed or disclosed in writing, orally or in any other way to the other party and has been marked as confidential or is to be regarded as confidential under the circumstances. The protected or confidential information of the parties also includes, independently of this, business relationships, information about business processes, know-how, calculation bases, concepts, business plans, software algorithms, software concepts, product and program specifications, trategies, sales and marketing data and/or marketing plans as well as other trade and business secrets of the respective parties.
These confidentiality obligations do not apply to protected or confidential information, insofar as and to the extent that it were already publicly known before being notified or disclosed by either party to the other party; became public knowledge after notification or disclosure by one party without the participation of the other party and independently of any failure of the other party; made known or disclosed to the parties by a third party who is not subject to any direct or indirect obligation of confidentiality towards the respective party; or must be disclosed within the framework of legal or official proceedings or due to other mandatory legal regulations.
ATLAS.ti processes personal data provided in connection with the creation of a user account with respect to users of the Software and personal data related to the use of the Software. These personal data are processed by ATLAS.ti as a controller in order to enable the users to use the Software.
Licensor hereby draws Customer’s attention to the European Commission’s Online Dispute Resolution (OS) page with the following link: ec.europa.eu/consumers/odr the possibility of conducting the complaint procedure via this site.
Attachments shall form an integral part of this agreement.
The place of performance for entrepreneurs within the meaning of § 14 para. 1 BGB is the registered office of the Licensor.
All contractual texts are accessible to the Customer on the website or in the software of the Licensor only in the current version. However, the respective contract text is sent to the Customer by e-mail upon conclusion of the contract and can thus be saved or printed out by the Customer.
2.1 If the Customer leases the Desktop Software for a specific period, as defined in the contract, the lease is, upon expiry of the initial term, automatically renewed by another year, unless the Customer cancels the lease in writing no later than 8 weeks before the end of the respective lease period. In case of a renewal of the lease the Customer is obligated to pay the lease fee listed at that time.
2.2 The Customer is obligated to return the original Desktop Software (CD-ROM/DVD) and user’s manual to the Licensor or the lessor once the lease is terminated, regardless of the reason of the termination. The Customer is also obligated to delete the Desktop Software from all hard disks, main data memory banks and workstations and to ensure that the Desktop Software can no longer be used by him, by his employees and staff or by registered users. The Customer shall give the Licensor or lessor written assurance of compliance with this provision.
3.1 ATLAS.ti shall make the Web Software available to the Customer in a logically separated account for remote access via the Internet. The Web Software shall not be distributed to the Customer.
3.2 The Web Software is made available to the Customer in its current version/release only.
3.3 ATLAS.ti shall make the Web Software available to the Customer with an availability of at least 99 % of the respective calendar month (hereinafter “Minimum Availability”). In this context, the Web Software shall be available if there is an uninterrupted connection between the servers on which the Web Software is hosted and the transfer point to the Internet and if the Customer is able to log on and has access to the Web Software. The minimum availability does not apply to test and development servers.
3.4 For the use of the Web Software the Customer requires a current established standard web browser. The Customer is responsible for the provision and operation of all hardware and operating software and for a secure and fast Internet connection.
3.5 If and to the extent that the provision of a new version or a change to the Web Software is accompanied by a change in functionalities of the Web Software, workflows supported by the Web Software and/or restrictions in the usability of previously generated data, the Licensor shall notify the Customer in writing at least six weeks before such a change takes effect. If the Customer does not object to the change in writing within a period of four weeks from receipt of the notification of change, the change becomes an integral part of the contract. The Licensor shall draw the Customer’s attention to the aforementioned deadline and the legal consequences of its expiry in the event that the possibility of objection is not exercised whenever changes are announced.
3.6 The Web Software and the application data resulting from the use of the Web Software are regularly backed up on the server, at least every calendar day. The Customer shall be responsible for compliance with retention periods under commercial and tax law.
3.7 The transfer point for the Web Software is the router output of the Licensor’s data center.
3.8 As a technical service provider, ATLAS.ti stores content and data for the Customer. The Customer undertakes to ATLAS.ti not to process any illegal content and data and/or content and data that infringe the rights of third parties with the Web Software and not to use any programs containing viruses or other malicious software in connection with the Web Software. In particular, the Customer undertakes not to use the Web Software to offer or in connection with illegal services or goods.
3.9 The Customer is solely responsible for all content and data processed and/or used by the Customer or its users as well as the legal positions that may be required for this. ATLAS.ti does not take note of contents of the Customer or its users and does not monitor the contents used with the Web Software.
3.10 In this context, the Customer undertakes to indemnify ATLAS.ti against all liability, damages and costs, including possible and actual costs of legal proceedings, if claims are made against ATLAS.ti by third parties, including employees of the Customer, as a result of alleged acts or omissions of the Customer. ATLAS.ti shall notify the Customer of the claim and, to the extent legally possible, give the Customer the opportunity to defend itself against the asserted claim. At the same time, the Customer shall immediately provide ATLAS.ti with all information available to the Customer on the facts of the case which are the subject of the claim. Any further claims for damages of ATLAS.ti shall remain unaffected.
3.11 The no-fault legal liability for defects in relation to the Web Software is expressly excluded, subject to the provision in Clause 1.11, in the area of tenancy law and similar usage relationships for errors already existing at the time of conclusion of the contract (see § 536a Para.1 Alt. 1 BGB).
3.12 In the course of using the Web Software, the Customer may process personal data. The Customer is the controller of such personal data and ATLAS.ti is a processor. Such processing is regulated in the ATLAS.ti Data Processing Agreement (DPA), accessible at www.atlasti.com/dpa. The DPA shall be part of the agreement and is expressly incorporated into the agreement by the parties.
3.13 As soon as the agreement on the use of the Web Software ends, Licensor will block the Customer’s access to the Web Software. The same applies in case the Customer deletes its user account. ATLAS.ti shall irrevocably delete all data stored in the Web Software upon expiration of three months after blocking access to the Web Software unless the Customer requests immediate deletion.
4.1 A Multi-User License entitles the Customer to place the Software at the disposal of his employees. If the Customer is a training institution under the terms of Clause 6, he purchases the Software on the basis of an “educational multi-user license” and can thus place it at the disposal of students, staff members etc. In any case, use of the Software is restricted to a maximum number of persons corresponding to the number of multi-user licenses ordered.
4.2 A multi-user license allows for installation and concurrent use of the Software on several individual computers of the license holder and/or on several workstations of a LAN (server installation plus lightweight client installation).
4.3 Concurrent Use: Our licenses are based on concurrent use. Each named user is permitted up to two installations on their own personal devices. Only one of the two installations may be in use at any given time. — If installing under a multi-user license in a pool environment (no named users), you are allowed up to twice the nominal number of installations with the express provision that you must have suitable means in place to limit concurrent access to the license maximum. Otherwise, only the number of standalone installations named in the license is permitted.
If the Customer wishes to purchase an individual license as a lower-priced student license, he/she must guarantee that he/she is a full-time student at a recognized educational institution / university. The purchase of a student license requires written evidence of entitlement (for instance a student card). Student licenses are PERSONAL licenses and may NOT be purchased by or through organisations or institutions (e.g. universities). A program purchased on the basis of a student license may NOT be installed or used on the computer of an organisation or institution and not be used in any context other than the Customer’s personal academic or vocational training. Student licenses are not transferable under any circumstances.
6.1 Educational licenses of the Software can be purchased only by officially accredited educational institutions, i.e. only by institutions recognized by nationally competent accrediting bodies. This includes specifically universities and similar degree-granting institutions of higher learning (including distance learning and continuing education programs), academic and technical schools and colleges as well as vocational training institutions. To the extent that the Customer is one of these educational institutions, he guarantees that he is recognized as such by the state.
6.2 Non-profit organizations and government agencies are NOT automatically eligible for discounted educational licenses. An organization wishing to be considered for a discount will need to contact ATLAS.ti directly. Government agencies and supra-national institutions (such as EU, UN, etc.) will need to obtain standard licenses exclusively.
6.3 By ordering an educational license, the Customer agrees that upon request he shall provide without delay legally valid written evidence showing his status as an accredited educational institution pursuant to this Clause 6. If such evidence is not provided or not adequately provided, he shall not be entitled to purchase the Software at the conditions and prices offered exclusively to educational institutions.
6.4 Educational licenses can be purchased not only by educational institutions but also by their officially employed teaching and research staff solely for use in the immediate context of the teaching and research duties that constitute the academic relation between the individual and the institution.
6.5 To the extent that the Software is ordered by employees of the Customer, the guarantee declaration and the obligation to provide evidence of status as described above shall also apply to these persons.
6.6 An educational license prohibits any and all commercial uses of the program. This explicitly includes commercial training Courses, and any side businesses of individuals and instiutions such as coaching, training, consulting, and similar activities. Educational licenses are available only to recognized non-commercial educational institutions and their staff.
6.7 Use of the program under an educational license is explicitly restricted to academic teaching and research. Administrative use of the program at a non-commercial educational institution shall be deemed a commercial use and is therefore not permissible under an educational license.
6.8 Only recognized educational institutions (see above) and full-time employees of such recognized institutions who are engaged in research and teaching are entitled to purchase and use educational licenses, and only for these purposes.
6.9 By placing an order for an educational license you agree (i) to abide by the above conditions in this Clause 6, and (ii) to furnish formal proof of your elibility when requested to do so. Failure to provide proof or insufficient proof will lead to immediate invalidation of licenses as well as legal persecution for fraud.
Government/non-commercial licenses can only be obtained by official national or local government institutions, registered NGOs, and their official employees. We reserve the right to request proof.
Government/non-commercial licenses are 100% identical to „full“ licenses in functionality.
Government/non-commercial licenses can only be obtained by official national or local government institutions, registered NGOs, and their official employees. Upon request of the Licensor, the Customer must confirm and prove his status as an official national or local government institution or registered NGO. The Licensor reserves the right to check the status as official national or local government institution or registered NGO and to refuse a Government/non-commercial license in case of insufficient proof.
When purchasing or leasing a Campus License, Licensor grants the Customer a license to use the Software, which entitles the Customer to make the Software available to its employees, students and research assistants, subject to the following provisions.
As regards the number of the Customer’s employees, students and academic associates who are authorized to use the Software, the details stated in the Customer’s Software order form under the designation “units” shall be conclusive and binding. During the term of the agreement, the Customer shall also receive adapted versions and upgrades of the Software which the Licensor may, at its sole discretion, implement. In the case of any such adaptation or upgrade as aforesaid, such version shall be made available to the Customer on data media or by way of online data communication.
The Customer assures that it is an educational institution (as defined in Clause 6).
Before the Software is supplied or provided, the Customer shall provide the Licensor with a legally binding written document showing beyond any doubt such approval as a public institution (university, technical college of higher education, etc.).
9.1 The Licensor provides training programs as services and is therefore not liable for a particular outcome or a concrete eventual result. The Licensor reserves the right to modify or adapt the content of its trainings to the latest state of the technology. This can result in some cases in deviations from the published Course descriptions. The Licensor also reserves the right to make other minor changes.
9.2 The specific training measures are conducted by the Licensor via training centers, whether conducted as webinars (web-based training using a computer) or face-toface training (on-site training with a personal presence of the Customer and the trainer). The Licensor also provides training measures at the Customer’s own or rented premises at the Customer’s request.
9.3 If the Customer’s computer systems are used for conducting training measures, it is the Customer’s responsibility to safeguard his data and programs from loss, destruction, or damage by taking appropriate and sufficient measures.
9.4 Course dates are published online at atlasti.com/trainings. Prices for training measures are also published at this site. Accommodation, expenses, and travel costs are not included in the Course price.
9.5 The Licensor may also withdraw from the contract if the training measures must be canceled due to illness of the trainer, for technical reasons, or for any other reasons beyond the of the Licensor’s control. The Licensor will make a reasonable attempt to either reschedule the training event or find other suitable staff to conduct the training if this is possible and the Customer agrees. The Licensor will immediately notify the Customer in case of such changes.
9.6 In the event of cancellation by the Licensor, the Customer will be refunded any fees that have been paid for the cancelled training.
9.7 The Customer may cancel the contract at any time prior to the agreed start of the training in writing. If a cancellation is received more than 14 calendar days before the event, the Customer is not charged for the withdrawal. If a cancellation is received fourteen calendar days or less before the event, the Customer will be charged 80% of the total price. If the cancellation is received five calendar days or less before the event, the Customer will be charged 100% of the total price.
9.8 The Licensor grants the Customer a non-exclusive right to use hardware and Software products supplied to him during the Courses in their original form and only for the purposes of the training. The Customer will not keep, reverse-engineer, translate, copy, extract any program parts, or utilize in any other, unauthorized manner the Software products thus supplied.
9.9 The Customer may not – not even in part – copy, reprint, or translate documentation and training materials (hereinafter referred to as “Documents”). Also, disclosure, use, or communication of the documents and their contents is not permitted.
9.10 Training participants must adhere to applicable safety and accident prevention regulations at training sites and must comply with all applicable legal provisions, including access regulations.
9.11 If the Customer provides free text information as part of an electronic ordering process, all such information is used exclusively for internal order processing. Free text addenda provided on the order documents will not be noted and are used and reproduced unchanged solely for internal
order processing. Such addenda therefore have no impact on the contractual relationship and are not legally binding.
The following terms and conditions shall apply if the Customer participates in a beta test of a new version of the software (hereinafter "Test Software").
10.1 Licensor provides the Tester with the Test Software as a test product. The Test Software is not a marketable software product, but a product with possible software errors and crashes. For this reason, the Licensor cannot guarantee the accuracy and reliability of the Test Software. Tester shall not rely exclusively on Test Software for any reason.
10.2 TEST SOFTWARE IS PROVIDED AS IS, AND LICENSOR 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.
10.3 Licensor shall provide Tester with a copy of the Test Software and any necessary documentation and instruct Tester on how to use it and what test data is desired by Licensor. Upon satisfactory completion of the testing, Licensor may decide to furnish Tester with a discounted or free copy of the production version of the Test Software, contingent upon Licensor’s decision to proceed with
production of the Test Software or other factors.
10.4 Tester shall test the Test Software under normally expected operating conditions in Tester’s environment during the test period. Tester shall gather and report test data as agreed upon with Licensor. Tester shall allow Licensor access to the Test Software for inspection, modifications and maintenance and/or provide requested information, including system reports or descriptions of behavior. Tester shall regularly update the Test Software and for this purpose ensure http access on standard port 80.
10.5 The Test Software is proprietary to, and a valuable trade secret of, Licensor. It is entrusted to Tester only for the purpose set forth in this Agreement. Tester shall maintain the Test Software as well as access to beta test download and beta test program version in the strictest confidence.
10.6 Tester will not, without Licensor’s prior written consent:
• disclose any information about the Test Software, its design and performance specifications, its code, and the existence of the beta test and its results to anyone other than Tester’s employees if they are performing the testing and who shall then be subject to nondisclosure restrictions at least as protective as those set forth in this Agreement;
• copy any portion of the Test Software or documentation, except to the extent necessary to perform beta testing; or
• reverse engineer, decompile or disassemble the Test Software or any portion of it.
• disclose or share access data to beta test download site
• disclose or share beta test version of the Test Software with any third party.
10.7 Tester shall take reasonable security precautions to prevent the Test Software from being seen or accessed by unauthorized individuals whether stored on Tester’s hard drive or on physical copies (including, but not limited to, servers; removable, physical, virtual or cloud drives; or other
10.8 The test period shall begin with download of the Test Software and last until notified by Licensor, or release of the production version of the Test Software, whichever occurs first. This Agreement shall terminate at the end of the test period or when Licensor asks Tester to return the Test Software, whichever occurs first.
10.9 If so requested, upon the conclusion of the testing period or at Licensor’s request, Tester shall within 10 days return the original and all copies of the Test Software and all related materials to Licensor and delete all portions of the Test Software from computer memory.
10.10 The participation in a test does not constitute a grant or an intention or commitment to grant any right, title or interest in the Test Software or Licensor’s trade secrets to Tester. Tester may not sell or transfer any portion of the Test Software to any third party or use the Test Software in any manner to produce, market or support its own products.
Tester shall not identify the Test Software as coming from any source other than Licensor.