By clicking on the box labeled “I have read and agree to the Confidentiality and Nondisclosure Agreement for Communities Beta Testers” or by using the Communities Tools during this Beta Period, you agree to enter into this CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT (the “Agreement”) between Crowdpac, Inc., a Delaware corporation (the “Company”), and you (“Recipient”).
- Purpose. In furtherance of the purpose or purposes stated below, the Company may disclose its Confidential Information to Recipient. This Agreement is intended to bind Recipient and prevent it from disclosing the Confidential Information as herein provided or from using the Confidential Information for purposes other than beta testing Company’s Communities tools.
- Definition. “Confidential Information” means any information, data, or know-how, including, without limitation, ideas, business plans, concepts, trade secrets, technical know-how, product specifications and pricing, systems, plans, processes, procedures, techniques, methods, designs, and any other information that the Company considers and treats as confidential, which is obtained directly or indirectly from the Company in any form, including without limitation,, tangible, oral, visual or electronic. The amount and type of Confidential Information to be disclosed is completely within the sole discretion of the Company. Confidential Information does not include information, technical data or know-how which (i) at the time of disclosure, is available to the general public, (ii) at a later date, becomes available to the general public through no fault of Recipient and then only after such later date, (iii) is received by Recipient at any time from a third party without breach of a non-disclosure or confidentiality obligation to the Company, (iv) as shown by proper documentation, is known to Recipient at the time of disclosure, (v) as shown by proper documentation, is developed independently by Recipient, or (vi) is approved for disclosure by prior written permission of a corporate officer of the Company. Information shall not be deemed to be available to the general public for the purposes of the above exclusions from the definition of Confidential Information (x) merely because it is embraced by more general information in the prior possession of Recipient or of others, or (y) merely because it is expressed in public literature in general terms not specifically in accordance with the Confidential Information. Recipient’s obligations set forth herein and the definition of Confidential Information contained herein shall be equally applicable to Confidential Information disclosed to Recipient by the Company prior to the execution of this Agreement.
- Nondisclosure and Non-Use of Confidential Information.
- Recipient agrees not to disclose the Confidential Information to third parties. Recipient agrees that it will exercise the same degree of care regarding the secrecy and confidentiality of the Confidential Information as similar information of Recipient is treated by Recipient, but Recipient agrees that it will take no less than all reasonable steps to protect the secrecy of and avoid disclosure or use of Confidential Information in order to prevent it from falling into the public domain or the possession of unauthorized persons. Recipient agrees to notify the Company in writing of any misuse or misappropriation of such Confidential Information which may come to its attention. If Recipient is required by a government body or court of competent jurisdiction to disclose any Confidential Information, Recipient agrees to give the Company reasonable advance notice so that the Company may contest the disclosure or seek a protective order, but no such disclosure shall constitute a breach of this Agreement. The Confidential Information shall remain the property of the Company.
- Recipient further agrees not to use the Confidential Information provided to it by the Company for any purposes other than the Permitted Purpose.
- Recipient acknowledges that neither the Company nor any of its directors, officers, agents or employees shall be liable for errors, omissions or inaccuracies of any kind in the Confidential Information and Recipient shall be responsible for verifying the accuracy and correctness of the Confidential Information. Recipient acknowledges that no warranty of any kind is given regarding the Confidential Information, the same being “as is,” where is and with all faults and the warranties of merchantability and fitness for a specific purpose to the extent applicable, are excluded. The foregoing in no way modifies the retention by the Company of all right, title and interest in the Confidential Information.
- Recipient agrees to indemnify the Company for damages arising from any breach of the terms of this Agreement by Recipient, including, without limitation, unauthorized use of the Confidential Information or disclosure of the Confidential Information by Recipient
- Return of Materials. Any materials or documents which have been furnished to Recipient by the Company shall be promptly returned, accompanied by all copies of such documentation, within five (5) days after receipt by Recipient of a written notice from the Company requesting the return of the Confidential Information.
- Continuing Nondisclosure and Confidentiality Obligation. Whether or not Recipient and the Company enter into or continue a business relationship, the covenants pertaining to confidentiality, nondisclosure and non-use in this Agreement shall nevertheless remain in full force, unless and until the Company specifically agrees in writing to release all or part of the Confidential Information from the confidential restrictions imposed by this Agreement.
- No Other Obligations. This Agreement imposes no obligation on either party to disclose Confidential Information or to purchase, sell, license, transfer or otherwise make use of any technology, service or products or to enter into any other agreements. No party acquires intellectual property rights under this Agreement. Subject to the obligations of this Agreement, no party shall be precluded from independently developing technology or pursuing business opportunities similar to those covered by this Agreement.
- Miscellaneous.
- No Publicity. Recipient shall not disclose to any person or entity the fact that Confidential Information has been disclosed, that discussions or negotiations between Company and Recipient are taking place, or the status thereof.
- Captions. Captions in this Agreement are for ease of reference only, and should not be considered in the construction of this Agreement.
- Governing Law and Jurisdiction. This Agreement shall be governed by and construed under the laws of the State of California without giving effect to any choice of law rule that would result in the application of the laws of any jurisdiction other than the internal laws of the State of California to this Agreement. The federal and state courts within San Francisco County in the State of California shall be the exclusive venue and shall have the exclusive jurisdiction to adjudicate any dispute arising out of this Agreement. Recipient hereby agrees to accept service of process by U.S. certified or registered mail, return receipt requested, or by any other methods authorized by California law.
- Remedies. Recipient agrees that its obligations hereunder are necessary and reasonable in order to protect the Company, and expressly agrees that monetary damages would be inadequate to compensate the Company for any breach of any covenant or agreement set forth herein. Accordingly, Recipient agrees and acknowledges that any such violation or threatened violation will cause irreparable injury to the Company and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the Company shall be entitled to obtain injunctive relief against the threatened breach of this Agreement or the continuation of any such breach, without the necessity of proving actual damages or posting any bond.
- Attorneys’ Fees. If the Company prevails in an action to enforce the provisions of this Agreement by obtaining substantially the relief sought, the Company shall be entitled to attorneys’ fees and court costs.
- Compliance with Laws. Recipient agrees that it will comply with all applicable laws, including without limitation, those relating to the export of technical information or data.
- Binding Effect. This Agreement shall be binding upon and inure to the benefit of the undersigned parties, their successors and assigns.
- No Waiver. Failure to enforce any provision of this Agreement shall not constitute a waiver of any term hereof. No waiver of a breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless granted in writing and signed by an authorized representative of the waiving party.
- Partial Invalidity. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the other provisions shall remain in full force and effect, and the illegal, invalid or unenforceable provision shall be deemed replaced by a legal, valid and enforceable provision that most nearly reflects the intent of the parties in entering into this Agreement.
- Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous communications, understandings and agreements.