Testing Agreement: Definition & Sample

A testing agreement, sometimes referred to as a test plan or a quality assurance plan, is a document that outlines the expectations and deliverables for a software testing project. The agreement should be created before any testing begins, and should be agreed upon by all stakeholders involved in the project. The document should outline the scope of the project, who will be responsible for what tasks, and how the testing process will be conducted. It should also include an estimate of how long the project will take to complete. Having a testing agreement in place can help ensure that all parties are aware of their responsibilities and expectations, and that the testing process runs smoothly.

Common Sections in Testing Agreements

Below is a list of common sections included in Testing Agreements. These sections are linked to the below sample agreement for you to explore.

Testing Agreement Sample

JOINT TESTING AND EVALUATION AGREEMENT

THIS JOINT TESTING AND EVALUATION AGREEMENT ( this “Agreement”) is made by and between PA LLC , a Delaware limited liability company having offices at 1901 S. Harbor City Boulevard, Suite 300, Melbourne, Florida 32901, (“PA”), and CRI CATALYST COMPANY LP , a Delaware limited partnership having offices at 16825 Northchase Drive, Two Greenspoint Plaza, Suite 1020, Houston, Texas 77060 (“CRICC”), and is effective on the 11th day of July, 2011 (the “Effective Date”).

A. PA is a company engaged in the business of developing proprietary processes and technologies used in the growth and harvesting of lemna for uses including biofeed and biocrude applications. PA has developed proprietary technology, know-how and intellectual property used in the “PA System” (as defined below) which is a part of the PA Intellectual Property and Technology (as defined below) that has been used in developing a proprietary production system for the growth and harvesting of lemna to be used in the production of biomass and a protein concentrate, including a protein by-product.

B. CRICC is a global catalyst technology company engaged in the business of developing, manufacturing and selling catalysts and in developing and licensing catalytic processes. CRICC has acquired rights to and/or developed certain proprietary technology, know-how and intellectual property hereinafter referred to as the “IH 2 Technology” for the purpose of converting various forms of biomass into hydrocarbon products.

C. On the terms and conditions stated herein, PA and CRICC desire to enter into this Agreement to jointly test, evaluate and optimize the integration of the IH 2 Technology with the PA System for the purpose of developing, evaluating and optimizing a process to convert lemna biomass into hydrocarbon products on a commercially viable scale to be used as transportation fuels.

NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. Incorporation of Introductory Material . The above preamble and recitals (including the definitions contained in each), are incorporated into the numbered sections of this Agreement by this reference.

2. Definitions . For purposes of this Agreement, the following terms have the meanings ascribed to them below:

“CRICC Affiliate” shall mean Royal Dutch Shell plc and any company (other than CRICC) which is from time to time directly or indirectly controlled by Royal Dutch Shell plc; wherein an entity controls another entity if the first entity owns fifty percent or more of the ownership interest of, or the voting or contractual rights in, the other entity, whether directly or indirectly, through one or more intermediaries or otherwise, and whether by ownership of shares or other equity interests, the holding of voting rights or contractual rights, by being the general partner of a limited partnership, or otherwise.

“Confidential Information” shall mean:

(i) with respect to CRICC, CRICC Intellectual Property and Technology, including but not limited to the IH 2 Technology, the CRICC Improvements, and capital and operation cost estimates, yield and product quality relating to the IH 2 Technology and its use, and information relating to catalyst useful with the IH 2 Technology (including but not limited to catalyst composition, properties and performance), disclosed to PA by CRICC and/or Affiliates of CRICC (or on behalf of CRICC or such Affiliates) either directly or indirectly, orally or in writing or by drawings or samples or by visual inspection of equipment or facilities, or in any other way; and

(ii) with respect to PA, PA Intellectual Property and Technology, including the PA System, and PA Improvements and capital and operation cost estimates, yield and product quality and composition relating to PA’s photosynthetic harvested lemna and lemna cultivation processes disclosed to CRICC by PA either directly or indirectly, orally, in writing, by software, by drawings, samples, or by visual inspection of equipment or facilities, or in any other way.

Without limiting the foregoing, the term Confidential Information shall be construed broadly to include any and all inventions, improvements, non-published copyrightable works, designs, algorithms, computer software, documentation, test data, analysis, techniques, works of authorship, trade secrets, know-how, data, information identifying actual or prospective customers, licensees, licensors, vendors, customer lists, cost information, pricing information, business plans, marketing information, computer software, licensing arrangements and any and all technical and/or business intelligence relating to (i) or (ii) above, as applicable, regardless of the form, mode or medium in which it may be embodied, represented or stored and by which such may be transmitted and/or displayed, communicated or accessed, including but not limited to oral, written, graphic, pictorial, electromagnetic, computerized or telephonic communication, as well as physical models, information and/or computer programs stored in any form of machine-readable media, specimens, graphs, pictures, drawings, sketches and/or blueprints, prototypes, samples, valuation copies and the like. Notwithstanding the foregoing, Confidential Information shall be in a tangible form, or accompanied by a tangible form, marked as “Confidential,” or if disclosed visually or orally, shall be identified at the time as Confidential Information subject to this Agreement and thereafter reduced to a writing marked “Confidential” describing the nature of the information deemed by the disclosing Party to be Confidential Information and transmitted in a tangible form to the receiving Party within thirty (30) days of the oral or visual disclosure.

“Conversion Process” shall mean the integration of the IH 2 Technology with PA System for converting lemna biomass into hydrocarbon products to be used as transportation fuels.

“CRICC Improvements” shall mean any and all improvements, modifications, enhancement, alterations, variations, updates and design changes to CRICC Intellectual Property or Technology, including without limit the IH 2 Technology made, developed, reduced to practice, authored or discovered, in whole or part by CRICC or PA, pursuant to work under this Agreement.

“CRICC Intellectual Property and Technology” shall mean any and all patents, trade secrets, copyrights, trademarks and other intellectual property, data, know-how, processes and methods, work products and materials and other CRICC Confidential Information, proprietary information or technology possessed, owned, controlled, licensed or used by CRICC, including without limit the IH 2 Technology and products made therefrom, and CRICC Improvements.

“Development” shall mean the scope of activities under this Agreement, as further detailed in Section 3.

“Disclosure Agreement” shall mean that certain Confidential Disclosure Agreement between the Parties dated February 17, 2011, a copy of which is attached hereto as Exhibit A .

“Evaluation Plan” shall mean the schedule and milestones set forth in a separate Testing and Evaluation plan.

“IH 2 Technology” shall mean certain Integrated Hydropyrolysis and Hydroconversion (IH 2 ) technology, which converts biomass directly into cellulosic gasoline and diesel hydrocarbon blendstocks and is protected by various patents, and such term includes catalyst useful therein, including without limit catalyst properties, compositions and performance.

“PA Affiliate” shall mean PetroAlgae, Inc. and any company (other than PA) which is from time to time directly or indirectly controlled by PetroAlgae, Inc.; wherein an entity controls another entity if the first entity owns fifty percent or more of the ownership interest of, or the voting or contractual rights in, the other entity, whether directly or indirectly, through one or more intermediaries or otherwise, and whether by ownership of shares or other equity interests, the holding of voting rights or contractual rights, by being the general partner of a limited partnership, or otherwise.

“PA Improvements” shall mean any and all improvements, modifications, enhancement, alterations, variations, updates and design changes to any PA Intellectual Property and Technology, including without limit the PA System made, developed, reduced to practice, authored or discovered, whether jointly or alone by CRICC or PA, pursuant to this Agreement, but, for avoidance of doubt, does not include any improvements, modifications, enhancement, alterations, variations, updates or design changes relating to the production of cellulosic hydrocarbons through the use of IH 2 Technology.

“PA Intellectual Property and Technology” shall mean any and all patents, trade secrets, copyrights, trademarks and other intellectual property, data, technological and product know-how, biological matter, processes and methods, work products and materials and other PA Confidential Information, proprietary information or technology possessed, owned, controlled, licensed or used by PA, including without limit the PA System, but, for avoidance of doubt, does not include any patents, trade secrets, copyrights, trademarks or other intellectual property, data, technological, know-how, processes, methods, work product, material, information or technology relating to the production of cellulosic hydrocarbons through the use of IH 2 Technology.

“PA System” shall mean the proprietary production system developed by PA utilizing certain PA Intellectual Property and Technology for the growth and harvesting of lemna to be used in the production of biomass and a protein product that is intended for animal feed, human food and fuel uses and is protected by certain patents and patent applications, know-how and trade secrets. The PA System is understood to include all phases of lemna product production including growth in open bioreactors, harvesting of material and processing the material to obtain an end product, but, for avoidance of doubt, does not include production of cellulosic hydrocarbons through the use of IH 2 Technology.

“Party” shall mean CRICC or PA, as the context requires, and “Parties” shall mean both of them.

“Specifications” shall mean specifications for lemna biocrude produced using the PA System for use as feedstock for the IH 2 conversion process.

“Term” shall mean the term of this Agreement, as further defined in Section 8.

“Testing and Evaluation” shall mean testing and evaluation by the Parties as part of the Development to determine the commercial potential of the Conversion Process.

3. Joint Development and Testing .

(a) Purposes of Joint Development and Testing . During the Term, PA and CRICC shall work together to jointly test, evaluate and optimize various technologies and processes, including the Conversion Process. The Parties are interested in cooperating to (i) optimize conversion of lemna biocrude to hydrocarbon products through the use of the IH 2 process; (ii) establish Specifications, and (iii) use the IH2 Technology with the PA System to convert lemna biocrude to transportation fuels for certification purposes.

(b) Testing and Evaluation . PA and CRICC shall establish and conduct a Testing and Evaluation program, within 30 days of execution of this Agreement. The Testing and Evaluation shall be conducted in accordance with the schedule and milestones set forth in a separate Evaluation Plan. The results of the Testing and Evaluation shall be jointly evaluated for

commercial feasibility. During the Term, the testing schedule and the Evaluation Plan shall be reviewed, updated and/or modified by mutual agreement of the Parties not less frequently than once every six (6) month period from and after the Effective Date.

(c) Development Activities . The Parties will identify any further development and refinement to the PA System or IH 2 Technology necessary to achieve the mutual objectives. Each Party will be responsible for further development of its own technology with cooperation from the other Party. The testing schedule will be adjusted to address any changes required by development activities.

4. Allocation of Costs . Except as otherwise agreed in writing, during the Term, each Party shall be solely and exclusively responsible for providing at its sole cost and expense all materials, equipment, facilities, labor, expertise, communications, third party software, licenses and other tangible and intangible property necessary to perform the Development, conduct the Testing and Evaluation and enable each Party to perform its obligations under this Agreement. However, if at any time performing the Development or conducting the Testing and Evaluation will require substantial revision to the PA System, PA shall evaluate, in its sole discretion, whether the cost of such revisions make the expected result of further development and Testing and Evaluation commercially infeasible. In that case, PA may terminate this Agreement immediately upon written notice to CRICC.

(a) Improvements to Specifications, PA Intellectual Property and Technology . All inventions (whether or not patented or patentable), improvements, discoveries, conceptions, designs, ideas, algorithms, methods, processes, business methods, trade secrets, know-how, utility models and works of authorship of any kind, including without limitation computer software (source code and object code), databases, documentation, manuals, brochures, website designs, web page designs, photographs, artwork, text, pictorial, graphic and/or sculpture works, video recordings, sound recordings, multi-media works, icons, graphics, animations and/or other works of authorship of any kind, whether constituting “works for hire” as defined under the copyright laws of the United States or otherwise, and all other intellectual property rights of any kind related to the Specifications of the PA System or that are made, developed, reduced to practice or discovered while attempting to study, produce or test lemna biomass feedstock under this Agreement, including any PA Improvements, shall be owned by and be the exclusive property of PA (by assignment or as applicable “works made for hire” and immediately become part of the PA Intellectual Property and Technology. CRICC agrees to and does hereby assign to PA all of its right, title and interest in all such PA Improvements and related intellectual property rights. In addition, any PA Improvements which qualifies as a work made for hire under the U.S. Copyright laws will be a work made for hire and will be owned by PA.

(b) Protection of PA Improvements . PA shall have the exclusive right to file any and all patent applications related to PA Improvements and shall have exclusive ownership to any patents granted as a result of any such applications, including any renewals, divisions, reissues, continuations, or extensions thereof subject to Gas Technology Institute’s pending U.S. Patent application titled, Hydropyrolysis of Biomass for Producing high Quality Liquid fuels” GTI-1729 US patent application No12/419535 filed April 7, 2009 (“535

Application”) relating to use of the IH 2 Technology that contemplates certain uses of lemna, and any additional patent applications filed by CRICC and/or Gas Technology Institute based on the 535 Application or relating to use of the IH 2 Technology that contemplates certain uses of lemna and whether or not such applications are currently filed or are filed in the future. During the Term and for a reasonable period of time following the expiration or termination of this Agreement and to the extent that CRICC is a co-inventor, CRICC shall cooperate with PA, at PA’s cost and as may reasonably be requested to confirm, record or otherwise perfect PA’s title to the PA Improvements. Such cooperation shall include, without limitation, review and execution of such applications for copyright registration, patent applications, assignments or the like, confirmatory assignments as may be reasonable and appropriate to confirm, record and/or otherwise perfect PA’s ownership and performing such acts as may be necessary, useful or convenient to secure or enforce for PA statutory protection including patent, trademark, trade secret or copyright protection throughout the world for all intellectual property assigned to PA pursuant to this Section.

(c) Improvements to IH 2 Technology . All inventions (whether or not patented or patentable), improvements, discoveries, conceptions, designs, ideas, algorithms, methods, processes, business methods, trade secrets, know-how, utility models and works of authorship of any kind, including without limitation computer software (source code and object code), databases, documentation, manuals, brochures, website designs, web page designs, photographs, artwork, text, pictorial, graphic and/or sculpture works, video recordings, sound recordings, multi-media works, icons, graphics, animations and/or other works of authorship of any kind, whether constituting “works for hire” as defined under the copyright laws of the United States or otherwise, and all other intellectual property rights of any kind related to the IH 2 Technology or developed or discovered while attempting to study, implement or test the 2 Technology, including any CRICC Improvements, shall be owned by CRICC (by assignment or as applicable “works made for hire”) and immediately become part of the CRICC Intellectual Property. PA agrees to and does hereby assign to CRICC all of its right, title and interest in all such CRICC Improvements and related intellectual property rights. In addition, any CRICC Improvement which qualifies as a work made for hire under the U.S. Copyright laws will be a work made for hire and will be owned by CRICC.

(d) Protection of Improvements to IH 2 Technology . CRICC shall have the exclusive right to file any and all patent applications related to the IH 2 Technology and CRICC Improvements and shall have exclusive ownership in any patents granted as a result of any such applications, including any renewals, divisions, reissues, continuations, or extensions thereof. During the Term and for a reasonable period of time following the expiration or termination of this Agreement and to the extent that PA is a co-inventor, PA shall cooperate with CRICC, at CRICC’s expense and as may reasonably be requested to confirm, record or otherwise perfect CRICC’s title to the CRICC Improvements. Such cooperation shall include, without limitation, review and execution of such applications for copyright registration, patent applications, assignments or the like, confirmatory assignments as may be reasonable and appropriate to confirm, record and/or otherwise perfect CRICC’s ownership and performing such acts as may be necessary, useful or convenient to secure or enforce for CRICC statutory protection including patent, trademark, trade secret or copyright protection throughout the world for all intellectual property assigned to CRICC pursuant to this Section.

(e) CRICC and PA as Exclusive Lemna Development Partners . To the extent that these efforts produce a commercially viable technology which the Parties wish to license or sell to third parties, PA and CRICC will establish a cooperative marketing agreement through which the IH 2 Technology for use with systems to grow harvest and process lemna as a protein source and source and source for biocrude will, for a term of five (5) years (subject to agreed sales goals), be exclusively offered by CRICC to PA and licensees of the PA System for use with the PA System. The Parties will include in the marketing agreement appropriate structures of licensing or sublicensing the IH 2 Technology to licensees of the PA System. The cooperative marketing agreement shall not preclude CRICC from licensing the IH 2 Technology or the CRICC Improvements to any person or entity for use other than with systems to grow harvest and process lemna as a protein source and source and source for biocrude, nor shall it preclude CRICC from forming any type of relationship with any other person or entity that does not incorporate or use of any form of lemna, or any derivative thereof, in any way, during any phase of production of nutraceuticals or biocrude.

5. Demonstration Facility . PA will use commercially reasonable efforts to identify a suitable PA customer and PA and CRICC will seek to enter into a license agreement with the PA customer to permit such customer to construct and operate the IH 2 Technology in conjunction with such PA customer’s PA System with the intent that PA and CRICC will be able to use the modified system to demonstrate the combined capability of the PA System and the IH 2 Technology. The capital cost of such demonstration facilities will be paid by PA customers; however, CRICC will undertake to minimize the license fee for, and costs associated with provision of the process design package of, the IH 2 Technology in order to encourage the aforementioned suitable PA customer to build such demonstration facility. For the avoidance of doubt, the Parties agree there will be only one facility to demonstrate the combined capability of the PA System and the IH 2 Technology and, thereafter, all other facilities shall be considered commercial facilities.

6. Representations and Warranties .

(a) Representations and Warranties of PA. PA represents and warrants to CRICC that, to its knowledge, PA owns or controls the rights to the PA System to have the right and power to enter into this Agreement; that there are no other agreements with any other party in conflict with this Agreement; and that, to the best of PA’s knowledge, use of the PA System will not infringe any valid U.S. patent or copyright or other proprietary right of any other person or entity.

(b) DISCLAIMER OF WARRANTIES BY PA . EXCEPT AS SET FORTH IN SECTION 6(a), PA DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO THE PA INTELLECTUAL PROPERTY AND TECHNOLOGY. ADDITIONALLY, ALL PA INTELLECTUAL PROPERTY AND TECHNOLOGY PROVIDED AND USED PURSUANT TO THIS AGREEMENT SHALL BE DELIVERED AND USED IN THE DEVELOPMENT AND TESTING, ON AN “AS-IS” BASIS, INCLUDING WITHOUT ANY WARRANTIES AS TO FUNCTION, DATA, PERFORMANCE OR RESULTS.

(c) Representations and Warranties of CRICC. CRICC represents and warrants to PA that, to its knowledge, CRICC holds an exclusive license to use the IH 2 technology for the purposes of this Agreement and; that CRICC has the right and power to enter into this Agreement; that there are no other agreements with any other party in conflict with this Agreement or the rights conferred herein; and that the use of the IH 2 Technology in Testing and Evaluation, to the best of CRICC’s knowledge will not infringe any valid U.S. patent or copyright, or other proprietary right of any other person or entity.

(d) DISCLAIMER OF WARRANTIES BY CRICC. EXCEPT AS SET FORTH IN SECTION 6(c), CRICC DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO THE CRICC INTELLECTUAL PROPERTY AND TECHNOLOGY. ADDITIONALLY, ALL CRICC INTELLECTUAL PROPERTY AND TECHNOLOGY PROVIDED AND USED PURSUANT TO THIS AGREEMENT SHALL BE DELIVERED AND USED ON AN “AS-IS” BASIS INCLUDING WITHOUT ANY WARRANTIES AS TO FUNCTION, DATA, PERFORMANCE OR RESULTS.