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SOFTWARE BETA TESTING
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.
WHAT IS A BETA TEST?
CONSIDERATION #1:WHAT ARE THE RISKS TO CONDUCTING A BETA TEST?
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
CONSIDERATION #2: WHO OWNS YOUR PROTOTYPE?
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
CONSIDERATION #3:WHAT IS THE SCOPE OF THE EVALUATION?
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
CONSIDERATION #4:WHO SHOULD EVALUATE YOUR PROTOTYPE?
What role should evaluators have in the market?◦ Direct Customers◦ Indirect Customers ◦ Competitors◦ Academics
EVALUATORS SHOULD BE DIVERSE CONSIDER AVOIDING COMPETITORS
CONSIDERATION #5:WHAT CONFIDENTIALITY OBLIGATIONS SHOULD EVALUATORS HAVE?
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
CONSIDERATION #6:WHO SHOULD HAVE ACCESS TO THE PROTOTYPE?
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
CONSIDERATION #7:WHAT CAN EVALUATORS SAY ABOUT YOUR PROTOTYPE?
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
CONSIDERATION #8:WHO IS RESPONSIBLE FOR BUGS AND ERRORS ?
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
CONSIDERATION #9:WHAT HAPPENS WHEN THINGS GO WRONG?
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
