Software Evaluation Template

In plain language: Identifies the vendor and evaluator as legal entities, describes the software being evaluated, and defines the permitted scope of the trial — internal testing only, named users, and specific systems.

Common mistake: Using a trade name instead of the registered legal entity name for either party — causing enforcement ambiguity if a dispute arises over IP or confidentiality obligations after the evaluation ends.

In plain language: States the start date, the fixed end date, and the conditions under which the evaluation may be extended — typically by mutual written consent only.

Common mistake: Omitting an end date and using language like 'until the parties agree otherwise.' Without a hard expiration, evaluators have operated software for years without a license, creating infringement exposure for the vendor.

In plain language: Lists what the evaluator may and may not do with the software — typically permitting internal testing by named users and prohibiting sublicensing, reverse engineering, production deployment, and benchmarking publication.

Common mistake: No restriction on production use — evaluators who begin running live workflows on evaluation software are effectively using a commercial license without paying for one, and the vendor has no contractual basis to stop them.

In plain language: Requires each party to protect the other's confidential information disclosed during the evaluation — including source code, pricing, technical architecture, and business data — using at least the same care they apply to their own confidential information.

Common mistake: Omitting a mutual confidentiality obligation — the vendor focuses on protecting its software but forgets that the evaluator's test data, business processes, and integration specifications are equally sensitive.

In plain language: Confirms the vendor retains all IP in the software and grants the vendor a royalty-free license to use any feedback, suggestions, or bug reports the evaluator provides during the trial.

Common mistake: No feedback license at all — leaving the vendor legally exposed when it incorporates evaluator suggestions into the product, since the evaluator could later claim co-authorship or an implied license fee.

In plain language: States that the software is provided 'as is' during the evaluation, with no warranties regarding fitness, merchantability, accuracy, or uptime — protecting the vendor from warranty claims arising from evaluation-period defects.

Common mistake: Using lowercase warranty disclaimer text — in many jurisdictions, warranty exclusions must be conspicuous (capitalized or bold) to be enforceable against a commercial counterparty.

In plain language: Caps the total damages either party may recover from the other in connection with the evaluation, typically limiting recovery to direct damages only and excluding consequential, incidental, or punitive losses.

Common mistake: Setting the liability cap at zero or omitting it entirely on the assumption that no fees are exchanged. Courts have awarded substantial damages for data loss and business disruption during unpaid evaluations when no cap was in place.

In plain language: Addresses how any data the evaluator loads into the software during the trial is handled, protected, and deleted — particularly critical when the evaluation involves personally identifiable information or regulated data.

Common mistake: No data handling clause at all — evaluators routinely load real customer or employee records into trial environments, creating GDPR, HIPAA, or CCPA exposure for both parties with no contractual framework in place.

In plain language: States when and how either party may end the evaluation early, what obligations survive termination, and what the evaluator must do with the software and confidential information upon expiration or termination.

Common mistake: No return-or-destroy obligation — vendors have discovered evaluators retaining copies of proprietary software or configuration files years after an evaluation ended, with no contractual basis to demand deletion.

In plain language: Specifies which jurisdiction's law governs the agreement, how disputes are resolved, and confirms the written contract supersedes all prior discussions, emails, or term sheets about the evaluation.

Common mistake: Choosing a governing jurisdiction with no connection to where either party operates — causing enforceability challenges and practical inconvenience if a dispute over IP or data deletion ever needs to be litigated.

A software evaluation agreement is a legally binding contract between a software vendor and a prospective customer that governs a time-limited trial of the vendor's software. It establishes permitted uses, confidentiality obligations, IP ownership, warranty disclaimers, liability caps, and data handling rules for the evaluation period. Without one, a vendor's proprietary code and a prospect's sensitive data are both unprotected during the trial.

No law mandates a written software evaluation agreement, but operating without one creates substantial legal exposure. A vendor who provisions access without a signed agreement has no contractual basis to enforce confidentiality, demand return of the software, or limit liability for defects discovered during the trial. Most enterprise procurement teams require a signed evaluation agreement before an IT environment will permit access to a trial system.

A software evaluation agreement grants temporary, restricted access for testing purposes only — typically with no fees, no production use, and strong warranty disclaimers. A software license agreement is the commercial contract that governs ongoing, production use after a purchase decision. A well-drafted evaluation agreement should include a conversion clause that describes how the relationship transitions to a full license if the evaluation is successful.

Evaluation periods typically run 30 to 90 days for enterprise software trials, with 30 days common for SaaS products and 60 to 90 days for complex on-premise or deeply integrated platforms. The period should be long enough to test the specific acceptance criteria agreed in the contract, but short enough that the vendor can enforce conversion or termination without a protracted negotiation. Always use specific calendar dates rather than rolling day counts.

Yes. While many vendors offer free evaluations to reduce friction in the sales process, a nominal fee — even $1 — can provide additional consideration that strengthens the enforceability of restrictive covenants in some jurisdictions. Paid evaluations are more common for enterprise deployments requiring vendor resources for setup, integration support, or customization during the trial period.

Best practice is to restrict evaluations to anonymized or synthetic test data that does not include personally identifiable information, protected health information, or regulated financial records. If real data is operationally necessary, the agreement should require execution of a separate Data Processing Agreement and specify the data categories permitted, the security controls the vendor must maintain, and the deletion timeline after the evaluation ends.

Under a well-drafted evaluation agreement, the vendor retains ownership of all derivative works, modifications, and improvements — including those developed in response to evaluator feedback or test results. The evaluator grants the vendor a feedback license covering any suggestions, bug reports, or integration ideas contributed during the trial. Without this clause, evaluators have successfully argued co-authorship interests in features they helped design during a pilot.

Upon expiration or termination, the evaluator's access rights should cease immediately. The evaluator is typically required to destroy or return all copies of the software, documentation, and confidential materials within 10 business days and certify compliance in writing. The vendor should delete all evaluator data loaded during the trial within a defined window — commonly 30 days — unless the parties transition to a commercial license.

For straightforward SaaS trials with standard scope, a high-quality template is usually sufficient. Engage a lawyer when the evaluation involves regulated data such as PHI or financial records, when the software contains export-controlled technology, when the evaluator operates in a jurisdiction with strict data protection laws such as the EU or California, or when the commercial opportunity is significant enough to warrant a fully negotiated agreement. A 1–2 hour review typically costs $300–$600 and is worthwhile for enterprise pilots.