IMPORTANT - READ CAREFULLY:

BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE YOU INDICATE ACCEPTANCE OF AND AGREE TO THE TERMS AND CONDITIONS OF THIS ALPHA AND BETA TESTING AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE.

The purpose of this Alpha and Beta Testing Agreement (“Agreement”) is to set forth the terms and conditions under which dynaTrace software ("dynaTrace"), at its sole discretion will provide to you ("Company") a copy of dynaTrace's product known as Ajax Edition which contains additional pre-release features, enhancements or upgrades that are not contained in the commercially available version of dynaTrace's editions and are not intended for use in a production environment ("Software"). Use of the Software shall be for the sole purpose of ongoing pre-release evaluations and testing by Company only. The terms, conditions and covenants pertaining to this evaluation of Software are as follows:

1. Grant of License.

dynaTrace grants to Company, during the term of this Agreement as specified in Section 2 below, the nontransferable, nonexclusive right to use one (1) copy of the Software for the sole purpose of internal pre-release evaluation and testing only. This right is subject to the following additional specific agreements and covenants by Company concerning the use of the Software:

1. Company agrees that the Software is for its own internal, non-production use only and that it shall not sell or transfer any copies of the Software, shall not relicense, rent or lease the Software, use the Software for third party training, commercial time-sharing or service bureau use, or otherwise make the Software available to third parties;
2. Company agrees to make no copy of the Software except for backup purposes;
3. Company agrees not to cause or permit the disassembly, reverse compilation, or reverse engineering of the Software;
4. Company agrees to not integrate or embed the Software, in whole or in part, in any other software without dynaTrace' prior written consent in writing;
5. Company hereby acknowledges dynaTrace' copyright in the Software regardless of whether the copyright notice appears on the Software or whether it has been filed with any relevant copyright office, and Company does not acquire any rights in the Software, express or implied, other than those specified in this Agreement; and
6. Company agrees and confirms that it understands that, if and when the Software is made commercially available by dynaTrace, the features, performance and configuration of the Software shall be determined by dynaTrace at its sole discretion.

2. Company's Feedback.

To the maximum extent possible, Company will provide dynaTrace with comprehensive information regarding the Software (“Feedback”) as soon as possible after Company learns of such Feedback. Feedback may include, but is not limited to, all information regarding any problems or defects in the Software encountered by Company. Company may transmit Feedback to dynaTrace in any medium reasonably proposed by dynaTrace. For greater certainty, all Feedback shall become the sole and exclusive property of dynaTrace and may be used by dynaTrace in any way without restriction or obligation to Company. dynaTrace shall be free to use for any purpose any ideas, concepts, know-how, or techniques resulting from dynaTrace’ access to or work with any information exchanged pursuant to this Agreement.

3. Term and Termination.

(a) Company's right to use the Software will terminate on the earlier of (i) termination of this Agreement by dynaTrace or (ii) the date of general commercial availability of the Software. dynaTrace shall have the right, at its sole discretion, to terminate this Agreement with or without cause upon written notice to Company.

(b) Nothing in this Agreement shall be deemed to require dynaTrace to make the Software commercially available on any particular date nor does dynaTrace make any such representation or warranty, express or implied, regarding any such commercially available version. Nothing in this Agreement shall be deemed to convey to Company the rights to use a commercially released version of the Software or any components thereof, if and when such are available. Use of such commercial product shall be subject to a separate agreement between dynaTrace and Company.

(c) Upon termination of this Agreement as provided above, Company shall cease using and shall return the Software, including all copies, or shall certify in writing that the Software and all copies have been destroyed within ten (10) calendar days of termination of the right to use the Software hereunder. dynaTrace’ warranty disclaimers set forth in Section "DISCLAIMERS" hereafter and Company’s non-disclosure obligations set forth in Section "Confidentiality" herebelow shall survive the termination of this Agreement.

4. DISCLAIMERS.

COMPANY UNDERSTANDS THAT THE SOFTWARE IS EXPERIMENTAL AND THAT DYNATRACE DOES NOT WARRANT THE SOFTWARE IN ANY WAY, INCLUDING BUT NOT LIMITED TO PERFORMANCE OR FEATURES OF THE SOFTWARE. ALL WARRANTIES REGARDING THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, OR ANY OTHER WARRANTY, WHETHER EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED BY DYNATRACE.

THE SOFTWARE IS PROVIDED “AS IS” FOR EVALUATION AND TESTING PURPOSES ONLY, AND OWING TO ITS EXPERIMENTAL NATURE, COMPANY IS ADVISED NOT TO RELY ON THE FEATURES OR PERFORMANCE OF THE SOFTWARE FOR ANY REASON. COMPANY AGREES TO USE THE SOFTWARE WITH ALL DUE CAUTION, AND TO TAKE EVERY PRECAUTION TO ENSURE THE INTEGRITY OF DATA, HARDWARE, AND SOFTWARE IN THE SOFTWARE'S OPERATING ENVIRONMENT. COMPANY FURTHER AGREES THAT DYNATRACE SHALL NOT BE HELD LIABLE FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY COMPANY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF DYNATRACE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL DYNATRACE’S LIABILITY FOR DAMAGES HEREUNDER EXCEED THE AMOUNTS RECEIVED BY DYNATRACE AS A RESULT OF THIS TRANSACTION OR USD 1'000 (ONE THOUSAND US DOLLARS), WHICHEVER IS THE LOWER. THESE WARRANTY DISCLAIMERS SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.

5. Confidentiality.

In evaluating the Software, Company recognizes that the Software is confidential and proprietary to and a trade secret owned and/or licensed by dynaTrace. Company hereby agrees not to disclose any information relating to Software (including, but not limited to, its design and performance capabilities, the results of any performance/benchmark tests, and any authorization codes or license keys) to third parties without the prior written permission from dynaTrace. Company shall treat all information regarding the Software provided by dynaTrace as dynaTrace’s “Confidential Information”, including without limitation the Software, source code, object code, documentation and any proprietary tools, proprietary knowledge or proprietary methodologies disclosed by dynaTrace to Company under this Agreement. Company shall hold such Confidential Information in the strictest confidence and take all reasonable steps to protect such from any use, reproduction, publication, disclosure or distribution except as specifically authorized by this Agreement.

6. Support and Updates.

(a) dynaTrace shall have no obligation to support or provide support services to Company relating to the Software. dynaTrace may, however, make such services available to Company at its sole discretion.

(b) dynaTrace may from time to time make available updates, enhancements and/or modifications to the Software and may, at its sole discretion, provide such updates to Company which will be identified by a change in the Software version number, but is under no obligation to do so. The provision by dynaTrace to Company of such updates, enhancements and/or modifications to the Software shall be subject to all covenants and conditions of this Agreement, including, but not limited to, the restrictions on Company's use of the Software and dynaTrace's disclaimer of warranties.

7. Miscellaneous.

(a) Governing Law. The laws of Austria shall govern this Agreement. However, dynaTrace shall have the right to seek relief in any court of competent jurisdiction in order to protect its proprietary rights in the Software.

(b) Export Administration. Company agrees to comply fully with all relevant export laws and regulations of the United States (“Export Laws”) to assure that neither the Software or any direct product thereof are (1) exported, directly or indirectly, in violation of Export Laws; or (2) are intended to be used for any purpose prohibited by the Export Laws, including, without limitation, nuclear, chemical or biological weapons proliferation.

(c) Entire Agreement. This Agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. This Agreement shall also supersede all terms of any unsigned or “shrink wrap” license included in any package, media or electronic version of Software provided under this Agreement.