This Nondisclosure Agreement ("Agreement") is entered into by and between BitJazz Inc. ("Company"), a corporation duly organized in and validly existing under the laws of the State of California, and ________________________________________________ ("Recipient"), an individual, effective as of this ____ day of __________________, 2011 (the "Effective Date").
1. Definition of Confidential Information
"Confidential Information," as used in this Agreement, shall mean all confidential and/or proprietary information of the Company, including without limitation any and all information concerning software and source code (including without limitation the software modules currently called BitJazz, PhotoJazz, PhotoJazz QT, PhotoJazz XT, SheerPhoto, SheerVideo, and Synchromy), patents, inventions, trade secrets, copyrightable works, techniques, approaches, processes, know-how, designs, models, drawings, engineering, methods, formulas, discoveries, improvements, research, development, experiments, test results, specifications, statistics, data, products, programs, services, plans, forecasts, marketing, financials, identity of and information relating to customers, suppliers, or employees, pricing, budgets, projections or related information concerning past, present, anticipated, or future business activities of Company.
2. Confidentiality/Non-Disclosure Obligations
Recipient will hold in strict confidence and will not disseminate or disclose in any way to any third party any Confidential Information, unless expressly authorized to do so by Company in a writing executed by a duly authorized representative of Company. Recipient will further use the same degree of care as it uses to protect its own information of a like nature, but in any event no less than a reasonable degree of care, to prevent disclosure of any Confidential Information to any third party; and if Recipient is not an individual, Recipient will not disclose any Confidential Information to any of its employees unless they have executed a confidentiality/non-disclosure agreement in the same form as this Agreement and only on a need-to-know basis. Recipient will not possess or use any Confidential Information except to the extent necessary to evaluate the contemplated possibility of entering into further discussions or a business relationship with Company; and Recipient will not reverse engineer or otherwise attempt to derive the composition or underlying information, structure, or ideas of any Confidential Information. Recipient will give prompt written notice to Company of any unauthorized disclosure of Confidential Information of which it becomes aware.
This Agreement imposes no obligations on Recipient with respect to information, whether or not such information is Confidential Information, if such information: (a) was rightfully in Recipient's possession free of any obligation of confidence to Company prior to the time it was communicated to Recipient by Company; (b) was publicly available or in the public domain at the time it was communicated to Recipient by Company; (c) is or becomes publicly available or in the public domain subsequent to the time it was communicated to Recipient by Company through no fault of Recipient; (d) is rightfully communicated to Recipient by a third party free of any obligation of confidence subsequent to the time it was communicated to Recipient by Company through no fault of Recipient; (e) is independently developed by Recipient; and/or (f) is disclosed pursuant to the order of a court or government, provided that Recipient gives Company reasonable written notice of such order prior to disclosure.
4. Scope and Term
This Agreement shall govern all communications between Company and Recipient from the Effective Date and three (3) years thereafter. Sections 1, 2, 3, 5, 6, 7, and 8 shall survive any termination or expiration of this Agreement.
5. OwnershipAll Confidential Information, and any derivatives thereof, including without limitation any copyright, patent, trade-secret, or other intellectual-property or proprietary rights therein, will remain the property of Company. Nothing in this Agreement constitutes a license or grant of any rights in or to any Confidential Information to Recipient, except as expressly stated herein. Upon the earlier of termination of this Agreement or Company's request, Recipient will promptly return all Confidential Information in its possession, custody, or control, together with any copies thereof.
6. Disclaimer Of Warranty
COMPANY PROVIDES ANY CONFIDENTIAL INFORMATION "AS IS," WITHOUT ANY WARRANTY WHATSOEVER, WHETHER EXPRESS, IMPLIED, OR OTHERWISE.
7. Indemnification; Relief
Recipient agrees to indemnify and hold harmless Company, its officers, directors, shareholders, employees, agents and representatives (collectively, "Indemnitee") from and against any and all claims, damages, losses, liabilities, recoveries, settlements, costs, and expenses (including interest, penalties, attorneys' fees, accounting fees, and expert witness fees) incurred by Indemnitee, known or unknown, contingent or otherwise, directly or indirectly arising out of or related to: (i) any unauthorized use or disclosure of any Confidential Information by Recipient; or (ii) any other breach of this Agreement by Recipient. Due to the unique nature of the Confidential Information, any breach of this Agreement would cause Company irreparable harm for which damages are not an adequate remedy; and therefore, for any such breach, Company will be entitled, without the requirement of posting a bond or other security, to equitable relief, in addition to any other remedies available to Company.
In witness whereof, the parties hereto, intending to be legally bound hereby, sign below.