This Non-Disclosure Agreement (“Agreement”) entered into by and between the Beta Test user and Keep or Toss, LLC, a California Limited Liability Corporation shall govern the disclosure of information by and between the parties as of the time of acceptance to the Beta Test program (the “Effective Date”).
- As used herein, “Confidential Information” shall mean any and all technical and non- technical information provided by either party to the other, including, but not limited to, patent and patent applications, information that constitutes a trade secret, propriety information and ideas, product descriptions, samples, media, techniques, sketches, drawings, designs, works of authorship, models, inventions, know-hows, processes, apparatuses, equipment, algorithms, software programs, software source documents and formulae related to the current, future and proposed products and services of each of the parties, and including without limitation, their respective information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, sales and merchandising, marketing plans and information the disclosing party provides regarding third parties. Such information shall be deemed Confidential Information whether or not the information is specifically labeled, marked, or otherwise denoted with the words “confidential” or “proprietary.”
- Each party agrees that at all times and notwithstanding any termination or expiration of this Agreement, it shall hold in strict confidence and shall not disclose to any third party the Confidential Information of the other, except as approved in advance and in writing by the other party to this Agreement. Each party further agrees to use the Confidential Information of the other party for no purpose other than evaluating or pursuing a business relationship with the other party to this Agreement. Notwithstanding the above, the party to whom Confidential Information was disclosed (“the Recipient”) shall not be in violation of this Section 2 with regard to a disclosure that was in response to a valid and enforceable order from a court, governmental body, or other regulatory authority, provided that the Recipient provides the other party with prior written notice of such disclosure in order to permit the other party to seek confidential treatment of such information. Each party shall only permit access to Confidential Information of the other party to those of its employees or authorized representatives having a need to know and who have signed confidentiality agreements or are otherwise bound by confidentiality obligations at least as restrictive as those contained herein.
- Each party shall immediately notify the other upon discovery of any loss or unauthorized disclosure of the Confidential Information of the other party.
- Each party’s obligations under this agreement with respect to any portion of the other party’s Confidential Information shall terminate when the Recipient can document that (a) it was in the public domain at the time it was communicated to the Recipient by the other party; (b) it entered the public domain subsequent to the time it was communicated to the Recipient by the other party through no fault of the Recipient.
- Upon termination or expiration of the Agreement, or upon written request of the other party, each party shall promptly return to the other all documents and other tangible materials representing the other’s Confidential Information and all copies thereof.
- The parties recognize and agree that nothing contained in this Agreement shall be construed as granting any property rights, by license or otherwise, to any Confidential Information of the other party disclosed pursuant to this Agreement, or to any invention or patent, copyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information. Neither party shall make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any Confidential Information of the other party.
- Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any reproduction of any Confidential Information of the other party by either party shall remain the property of the disclosing party and shall contain any and all confidential or proprietary notices of legends which appear on the original, unless otherwise authorized in writing by the other party.
- This Agreement may be terminated by either party at any time upon thirty (30) days written notice to the other party. The Recipient’s obligations under this Agreement shall survive termination of the Agreement between the parties and shall be binding upon the Recipient’s heirs, successors and assigns. The Recipient’s obligations hereunder shall continue in full force and effect with respect to non-technical sales, marketing, and financial Confidential Information for five (5) years from the date of disclosure of such Confidential Information. The Recipient’s obligations with respect to all technical Confidential Information shall be terminated only pursuant to Section 4.
- This Agreement shall be governed by and construed in accordance with the laws of California without reference to conflict of laws principles. Any disputes under this Agreement may be brought in the state courts located in San Mateo County, California or in the federal courts located in the Northern District of California, and the parties hereby consent to the personal jurisdiction and venue of these courts.
- This Agreement may not be amended except by a writing signed by both parties hereto.
- Each party acknowledges that its breach of the Agreement may cause irreparable damage and hereby agrees that the other party shall be entitled to seek injunctive relief under this Agreement, as well as such further relief as may be granted by a court of competent jurisdiction.
- If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole and in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of the applicable law or applicable court decisions.
- Neither party shall communicate any information to the other in violation of the proprietary rights of any third party.
- Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party.
- Neither party shall export, directly or indirectly, any technical data acquired from the other pursuant to this Agreement or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining such license or approval.
- All notices or reports permitted or required under this Agreement shall be in writing and shall be delivered by personal delivery, electronic mail, facsimile transmission or by United States Post Office certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, five (5) days after deposit in the mail, or upon acknowledgment of receipt of electronic transmission. Notices shall be sent to the addresses set forth at the end of this Agreement or such other address as either party may specify in writing.
- Each party represents and warrants to the other that the person signing this Agreement is duly authorized and has the legal capacity to enter into this Agreement on behalf of the entity it purports to so bind.