Beta Tester Agreement (NDA)


NON-DISCLOSURE AGREEMENT


THIS AGREEMENT is entered into today (the “Effective Date”) between MicaSense, Inc., located at 1300 N. Northlake Way, Suite 100, Seattle WA 98103 ("MicaSense") and the submitter of this form ("Beta Tester"), located at the address submitted below.

BACKGROUND

A. MicaSense will provide Beta Tester with limited, revocable, temporary access to and certain information regarding unreleased MicaSense products and services, solely and exclusively for the purpose of testing, improving and gathering feedback regarding the same (the "Authorized Purpose").  This may expose Beta Tester to certain confidential and proprietary inventions, ideas, processes, trade secrets, research and development activities, information technology systems, specifications, designs, know-how, drawings, business and marketing plans, financial data, policies, procedures, and other information in written, oral and/or physical/sample form (collectively "Confidential Information").


B. In consideration of this opportunity to have such access, the sufficiency of which is hereby acknowledged and agreed, Beta Tester agrees to be bound by the terms hereby.

NOW, THEREFORE,


1. Scope. The Beta Tester shall use the Confidential Information exclusively for the Authorized Purpose, and for no other purpose.  MicaSense retains the exclusive ownership and intellectual property rights to its Confidential Information, and no license or any other interest in Confidential Information is granted or implied by this Agreement.  Any Confidential Information disclosed hereunder is provided AS-IS with all faults and defects, and without any express or implied representation or warranty of any kind whatsoever, including without limitation that it does not infringe any third party’s intellectual property rights, that it is accurate or complete, or that such information will be suitable for Beta Tester’s purposes.


2. Restrictions. Beta Tester agrees to protect the Confidential Information with the same degree of care, but no less than a reasonable degree of care, that it uses to protect its own Confidential Information.  In addition, subject to Section 3 of this Agreement, Beta Tester shall not disclose or otherwise distribute the Confidential Information to any third party at any time or for any reason. Beta Tester agrees that it will disclose the Confidential Information only to its employees, agents, consultants, or contractors who have a specific need to know regarding the Authorized Purpose and only to the extent necessary for such purpose, and that it will first require any recipients of Confidential Information to agree in writing to the non-disclosure and confidentiality restrictions imposed upon the Confidential Information by this Agreement.

3. Exceptions. The obligations and restrictions herein shall not apply to Confidential Information that falls within any of the following exceptions, provided a receiving party proves by credible written evidence that such information:


(a)        is or becomes part of the public domain through no fault of a receiving party;

(b)    was known by receiving party prior to the disclosure by MicaSense;

(c)         was independently developed without use of or reference to MicaSense’s Confidential Information by a receiving party’s employees who had no access to MicaSense’s Confidential Information;

(d)        has been properly received from a third party who is not under any obligation to maintain the confidentiality of such information, and without breach of this Agreement by a receiving party; and/or


(e)         is required to be disclosed by law.


 If Confidential Information is required to be disclosed by law, such as by an order or notice from a court or regulatory agency, Beta Tester will notify MicaSense in writing of such requirement.

4. Enforcement. Beta Tester agrees that MicaSense may be irreparably harmed and money damages may be inadequate compensation in the event the Beta Tester breaches any provision of this Agreement.  In such event, MicaSense may have the right, in addition to other available remedies, to seek specific performance and injunctive and other equitable relief.  The provisions of this Section shall survive the termination of this Agreement.

5.Return of Materials.  Upon the MicaSense’s request, the Beta Tester shall promptly return or uninstall all copies of MicaSense's Confidential Information, whether in tangible or machine readable form.  Beta Tester shall thereafter retain no copies, transcriptions or summaries of the MicaSense's Confidential Information. Beta Tester shall discontinue use of any beta application or features.


6. Governing Law/Venue.   This Agreement shall be governed by and construed in accordance with the laws of the State of Washington as it applies to contracts executed and performed within the State of Washington by parties domiciled in the State of Washington, without reference or regard to the choice of law or conflict of laws rules of any jurisdiction.  The Beta Tester hereby irrevocably and unconditionally agrees to submit any legal action or proceeding relating to this Agreement to the non-exclusive general jurisdiction of the courts of the State of Washington located in King County and the courts of the United States located in the Western District of Washington and, in any such action or proceeding, consent to jurisdiction in such courts and waive any objection to the venue in any such court.  The Beta Tester agrees that service of process upon any of them in any such action or proceeding may be made by United States mail, certified or registered, return receipt requested, postage prepaid.

7. Entire Agreement.  This Agreement constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all prior or contemporaneous understandings, oral or written.  This Agreement can only be amended by a writing signed by both parties.


8. Assignment.  Beta Tester shall not have the right to assign or otherwise transfer, in whole or in part, any of its rights or obligations under this Agreement.


9. Validity.  If any provision hereof is found by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall remain in full force and effect, and the affected provisions shall be revised so as to reflect the original intent of the parties hereunder to the extent permitted by applicable law.


10. Further Obligations.   Neither party is obligated to disclose any information or to enter into any further agreement or business relationship with the other party.  Neither party is prohibited from entering into any discussions or agreements with third parties with respect to the same or similar purposes as this Agreement, provided that no Confidential Information of a providing party hereunder is shared by a receiving party with any other party, and provided that no Confidential Information was used to instigate the discussions or agreements with third parties.  This Agreement is not an inducement for either party to expend funds or resources.

11. Waiver, The failure to enforce any provisions of this Agreement shall not be deemed a waiver or a continuing waiver of the same or other provision of this Agreement unless such waiver is in writing and signed by the party to be charged.


12. Counterparts.  This Agreement may be executed in several counterparts that together shall constitute one and the same instrument.


13. Survival.  The confidentiality and non-disclosure obligations shall survive indefinitely any termination of this Agreement.



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