By clicking the box on the prior page, you, as the “Participant,” hereby agrees as follows:
1. As used herein, “Confidential Information” shall mean any information disclosed by Boa Technology, Inc. (“Boa”) to the Participant, including but not limited to test results, inventions, ideas, know-how, works of authorship, samples, media, techniques, sketches, drawings, models, processes, apparatuses, equipment, algorithms, software programs, software source documents, and formulae related to Boa’s current, future, and proposed products and services, and further including, without limitation, Boa’s information concerning research (including notes prepared by the Participant regarding the products being tested), 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 Boa provides regarding third parties. Confidential Information may be disclosed in written or other tangible form (including on electronic/digital media) or by oral, visual or other means.
2. The Participant agrees that at all times and notwithstanding any termination or expiration of this Agreement it will hold in strict confidence and not disclose Confidential Information to any third party, except as approved in writing by Boa, and will use the Confidential Information for no purpose other than evaluating Boa’s new products and providing feedback to Boa regarding such products. To the extent that the Participant is an entity, the Participant shall only permit access to Confidential Information 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. The right to permit access to the Confidential Information of Boa shall cease when the Participant ceases to be an authorized product tester for Boa.
3. The Participant shall immediately provide written notice to Boa in the event Participant becomes aware of any loss or unauthorized disclosure of any Confidential Information.
4. The Participant’s obligations under this Agreement shall not apply to any portion of the Confidential Information that the Participant can document that such information: (a) was in the public domain at the time it was communicated to the Participant; (b) entered the public domain subsequent to the time it was communicated to the Participant through no fault of the Participant; (c) was in the Participant’s possession free of any obligation of confidence at the time it was communicated to the Participant; or (d) was rightfully communicated to the Participant free of any obligation of confidence subsequent to the time it was communicated by the disclosing party to the Participant. Further, the obligation not to disclose any Confidential Information shall not apply to any Confidential Information that is disclosed by the Participant in response to a valid order by a court or other governmental body or in response to legislation, provided that Participant, to the extent reasonably possible, provided Boa with prior written notice of such disclosure in order to permit Boa to seek confidential treatment of such information.
5. Upon termination or expiration of the Agreement, or upon written request of Boa, the Participant shall promptly return to Boa all samples, test results, documents, notes and other tangible materials representing the Confidential Information and all copies thereof.
6. The Participant recognizes and agrees that nothing contained in this Agreement shall be construed as granting any property rights, by license or otherwise, to any Confidential Information disclosed pursuant to this Agreement, or to any invention or any patent, copyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information. The Participant shall not make, have made, use (other than products provided by Boa for Participant’s testing) or sell for any purpose any product or other item using, incorporating or derived from any Confidential Information without the express consent of Boa. Participant assumes all risk in, and Boa will not be liable for any damages arising out of, use of the Confidential Information including, without limitation, business decisions made or inferences drawn by the Participant in reliance on the Confidential Information or the fact of the disclosure of the Confidential Information.
7. Confidential Information shall not be reproduced in any form except as required to accomplish the business intent of the parties to this Agreement. Any reproduction of any Confidential Information shall remain the property of Boa and shall retain any and all confidential or proprietary notices or legends which appear on the original, unless otherwise authorized in writing by Boa.
8. The Participant hereby releases from all liability and holds harmless Boa and any of its employees representing or related to Boa. This liability release is for any and all liability for personal injuries including death and property losses or damage in connection with any product testing activity by the Participant. The undersigned does hereby further agree to abide by all the rules and regulations that are presented by Boa.
FOR CALIFORNIA RESIDENTS ONLY: Participant acknowledges that he, she or it is familiar with Section 1542 of the California Civil Code, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
9. This Agreement shall terminate upon the cessation of the business relationship between the parties, or may be terminated by either party at any time upon thirty (30) days written notice to the other party. The Participant’s obligations under this Agreement shall survive termination of the Agreement between the parties and shall be binding upon the Participant’s heirs, successors and assigns. The Participant’s obligations with respect to all Confidential Information shall be terminated only pursuant to Section 4.
10. This Agreement shall be governed by and construed in accordance with the laws of Colorado without reference to conflict of laws principles. Any disputes under this Agreement may be brought in the state courts and the Federal courts located in City and County of Denver, Colorado, and the parties hereby consent to the personal jurisdiction and venue of these courts.
11. This Agreement may not be amended except by a writing signed by both the Participant and Boa.
12. The Participant hereby agrees that material breach of this Agreement will cause Boa irreparable damage for which recovery of damages would be inadequate, and that Boa shall therefore be entitled to obtain timely injunctive relief under this Agreement without the need of posting a bond, as well as such further relief as may be granted by a court of competent jurisdiction.
13. 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 applicable law or applicable court decisions.
14. The Participant will not assign, license, or otherwise transfer any rights or obligations under this Agreement without the prior written consent of Boa, which consent shall not be unreasonably withheld. Boa shall be entitled to assign, license or otherwise transfer any of its right under this Agreement.
15. The Participant shall not knowingly export, directly or indirectly, any technical data acquired 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, and the Participant shall take all reasonable steps to determine whether such export is subject to export license or government approval.
16. 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 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 to Boa shall be sent to 3459 Ringsby Court Suite 300. Denver, CO 80216 and notices to the Participant shall be sent to the address designated by the Participant in his, her or its tester application.