NON-DISCLOSURE AND CONFIDENTIAL EVALUATION AGREEMENT
THIS NON-DISCLOSURE AND CONFIDENTIAL EVALUATION AGREEMENT ("Agreement") IS A BINDING AGREEMENT. PLEASE READ ALL TERMS OF THIS AGREEMENT BEFORE ACCEPTING IT. ONCE YOU ACCEPT THIS AGREEMENT, YOU WILL BE BOUND BY ITS TERMS.
YOU ARE REFERRED TO AS THE "Recipient" IN THIS AGREEMENT AND NATIONAL INSTITUTE FOR METALWORKING SKILLS IS REFERRED TO AS THE "Discloser" IN THIS AGREEMENT. THIS AGREEMENT BECOMES EFFECTIVE ON THE DATE YOU ACCEPT IT (the "Effective Date") BUT YOUR CONFIDENTIALITY OBLIGATIONS ALSO APPLY TO ANY INFORMATION YOU HAVE RECEIVED FROM OR ON BEHALF OF NATIONAL INSTITUTE FOR METALWORKING SKILLS BEFORE THE EFFECTIVE DATE.
WHEREAS, Discloser is developing a software as a service platform for training and other services (the "Platform") and Recipient has agreed to test and evaluate the Platform on a confidential basis and provide feedback to Discloser regarding the Platform; and
WHEREAS, Recipient is willing to keep all information regarding the Platform, and all other information shared by Discloser, confidential in accordance with the terms of this Agreement;
NOW, THEREFORE, in consideration of the premises, Discloser and Recipient agree as follows:
- Evaluation of Platform. Discloser hereby permits Recipient during the term of this Agreement to test and evaluate the Platform in accordance with the terms of this Agreement. Recipient shall make no other use of the Platform and Recipient shall not make the Platform available to any third party or disclose any aspect of the Platform to any third party. Discloser and Recipient acknowledge and agree that all use of the Platform by Recipient is solely to test the Platform for experimental purposes and is not an offer for sale or sale of the Platform or any portion thereof. To the extent Recipient provides Discloser any feedback regarding the Platform ("Feedback"), Recipient hereby irrevocably assigns, worldwide and in perpetuity, all Feedback to Discloser. Recipient shall not disclose or provide any Feedback to any third party. In addition, to the extent Recipient enters any content into the Platform or otherwise provides any content to the Platform, Recipient acknowledges and agrees that Discloser may use and incorporate the generic concepts associated with such content in content Discloser provides for use on or with the Platform.
- Confidential Information. For purposes of this Agreement, the term "Confidential Information" shall mean and be deemed to include the Platform (including its existence, functionality and design), all Feedback, this Agreement, and any and all proprietary, trade secret and other confidential or non-public information Discloser discloses or has disclosed to Recipient in any manner (whether orally, in writing, electronically, by inspection or otherwise) before or after the Effective Date, including but not limited to information about Discloser's technology, software, products, services, executives, employees, customers, suppliers, pricing, finances, business methods, business plans, contracts and contractual relationships. Confidential Information also includes Discloser's content and other content provided by Recipient prior to or after the Effective Date.
- Exceptions to Confidential Information. Confidential Information shall not be deemed to include (a) information Recipient lawfully had in its possession prior to disclosure by Discloser, (b) information Recipient can demonstrate by written records it independently developed, (c) information that is or becomes publicly known other than through a breach of this Agreement by Recipient, (d) information Recipient can demonstrate by written records has been lawfully disclosed to it by a third party not bound to a confidentiality obligation to Discloser, and (e) information Discloser authorizes in writing to be publicly disclosed. In addition, nothing in this Agreement prohibits either party from reporting to any governmental authority information concerning possible violations of law or regulation and either party may disclose such information to a government official or to an attorney and use it in certain court proceedings without fear of prosecution or liability, provided such party does so consistent with 18 U.S.C. § 1833.
- Limitation on Disclosure of Confidential Information. Recipient shall retain all Confidential Information strictly in confidence and not disclose any Confidential Information to anyone else. Recipient further agrees not to use the Platform or any other Confidential Information for any purpose other than to test and evaluate the Platform on a confidential basis and provide Feedback to Discloser.
- Compelled Disclosure of Confidential Information. If Recipient becomes legally compelled to disclose any Confidential Information, Recipient will provide Discloser with prompt written notice so that Discloser may seek a protective order or other appropriate remedy or waive compliance with the provisions of this Agreement. If Discloser does not obtain such a protective order or other remedy, or if it does not waive compliance with the provisions of this Agreement, Recipient will furnish only that portion of such Confidential Information which is legally required to be furnished.
- Ownership. Recipient acknowledges and agrees that Discloser is and shall remain the exclusive owner of the Platform, all Feedback and all other Confidential Information, and all patent, copyright, trade secret, trademark and other intellectual property rights therein. Other than the limited right granted to Recipient in Paragraph 1 to use the Platform solely for evaluation and testing purposes, no license or conveyance of any rights to the Platform or any other Confidential Information is granted or implied under this Agreement. Without limiting the generality of the foregoing Discloser shall not: (i) modify, create derivative works of, reverse engineer, or attempt to reverse engineer or derive the source code of, the Platform; (ii) analyze the Platform other than to provide Feedback; or (iii) file any patent application, copyright application or seek any other form of statutory protection or other protection on the Platform or any aspect thereof. To the extent Recipient makes any modifications, derivative works, or creates any analyses of the Platform or any aspect thereof, Recipient hereby irrevocably assigns the same to Discloser, worldwide and in perpetuity, and shall execute such documents as reasonably requested by Discloser to evidence such assignment.
- No Warranties. The Platform, all Confidential Information and all other information and/or data that may be disclosed by Discloser is disclosed without any representations, warranties, assurances, guarantees or inducements, express or implied, including, without limitation, any representations, warranties, assurances, guarantees or inducements, express or implied, with respect to the (a) infringement or non-infringement of any patent or other proprietary right owned or controlled by any third party, (b) the performance of the Platform and/or (c) content or accuracy of any information and/or data provided by Discloser.
- Term of Agreement; Termination. This Agreement shall commence on the Effective Date and shall terminate one (1) year thereafter. Notwithstanding the foregoing, Discloser may terminate this Agreement at any time and for any reason on ten (10) days' notice to Recipient and immediately if Recipient breaches or threatens to breach any provision of this Agreement. Upon termination of this Agreement, Recipient shall immediately cease all use of the Platform and shall return to Discloser or destroy (and certify such destruction in writing to Discloser) all Confidential Information in Recipient's possession, custody or control. Recipient's confidentiality obligations under this Agreement shall survive for five (5) years following termination of this Agreement, provided however that Recipient's confidentiality obligations with respect to matters that are trade secrets of Discloser shall survive for so long as such matters qualify for trade secret protection under applicable law.
- No Third Party Beneficiary. This Agreement is not intended, nor shall it be construed, to create or convey any right in or upon any person or entity not a party to this Agreement.
- Modification and Waiver. No modification or waiver of any of the terms of this Agreement shall be valid unless in writing and executed by both parties. The failure of either party to insist on strict compliance with any of the terms, covenants or conditions of this Agreement by the other party shall not be deemed a waiver of that or any other term, covenant or condition, nor shall any waiver or relinquishment of any right or power at any time be deemed a waiver or relinquishment of that right or power for all or any other times.
- Severability. If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement shall continue in full force and effect.
- Remedies. In the event of Recipient's breach or threatened breach of this Agreement, Discloser may avail itself of all appropriate legal and equitable remedies, including but not limited to injunctive relief. Recipient acknowledges that Discloser will suffer irreparable harm if Recipient breaches this Agreement, that Discloser's legal remedies are inadequate to protect its interests in the event of such breach by Recipient, and that equitable relief is an appropriate remedy for any such breach or threatened breach (without requirement of any bond or security), in addition to any other available remedies.
- Publicity. Neither party shall use the name of the other in publicity releases or advertising, including customer lists, or for other promotional purposes, without securing the prior written approval of the other party.
- Headings. The headings of the sections of this Agreement are inserted for convenience only, and shall not be deemed to constitute a part of this Agreement.
- Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Virginia, excluding its choice of law provisions. Any suit, action or proceeding arising out of or relating to this Agreement shall be brought in the federal or state courts located in Fairfax County, Virginia, and both parties consent to venue and jurisdiction in such courts for purposes of any suit, action or proceeding arising out of or relating to this Agreement.
- Authority. Any individual executing this Agreement on behalf of a party represents and warrants that they have authority to do so.
- Binding Effect. This Agreement shall be binding upon the parties hereto and their respective successors and assigns.
- Assignment. Recipient may not assign this Agreement or any of its rights or obligations under this Agreement. Discloser may assign this Agreement without Recipient's consent.
- Entire Agreement. This Agreement contains the entire understanding of the parties with respect to the matters provided for in this Agreement and supersedes any and all other prior agreements, covenants, arrangements, communications, representations or warranties, whether oral or in writing, by any of the parties or by any officer, employee or representative of any party with respect to such matters.
I HEREBY ACCEPT AND AGREE TO BE BOUND BY THE ABOVE TERMS. I UNDERSTAND THIS IS A BINDING AGREEMENT THAT MAY BE ENFORCED IN ACCORDANCE WITH ITS TERMS. IF I AM ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ORGANIZATION, I HEREBY CONFIRM I AM AUTHORIZED TO ACT ON BEHALF OF MY ORGANIZATION AND HAVE THE LEGAL AUTHORITY TO BIND MY ORGANIZATION TO THE TERMS OF THIS AGREEMENT.