This Non-Disclosure Agreement (this 'Agreement') is made on this date, between Haystack Technologies, Inc., a Delaware corporation on behalf of itself and its affiliates, whose address is 313 Seville Way, San Mateo, CA 94402 ('Haystack'), and the company listed above ('Company').
Company desires to evaluate and discuss certain Haystack software products for DASH7 ('Business Purpose'). In connection with such evaluation, Haystack and Company recognize that there is a need for Haystack to disclose certain confidential information to be used only for the Business Purpose and to protect such confidential information from unauthorized use and disclosure.
1. For purposes of this Agreement, "Confidential Information" means any technical or business information disclosed by Haystack that: (i) if disclosed in writing, is marked "confidential" or "proprietary" at the time of such disclosure; (ii) if disclosed orally, is identified as "confidential" or "proprietary" at the time of such disclosure, and is summarized in a writing sent by Haystack to Company within thirty (30) days after any such disclosure; or (iii) under the circumstances of disclosure, a person exercising reasonable business judgment would understand to be confidential or proprietary.
2. The obligations under Section 3 will not apply to any Confidential Information that Company can demonstrate: (i) is now or thereafter becomes generally known or available to the public, through no act or omission on the part of Company; (ii) was known by Company prior to receiving such information from Haystack and without restriction as to use or disclosure; (iii) is thereafter rightfully acquired by Company from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; or (iv) is independently developed by Company without access to any Confidential Information of Haystack.
3. Company will: (i) maintain Haystack's Confidential Information in strict confidence; (ii) not disclose such Confidential Information to any third parties without Haystack's express written permission; and (iii) not use such Confidential Information for any purpose except for the Business Purpose. Company may disclose Haystack's Confidential Information to its employees, consultants, contractors or agents, who have a bona fide need to know such Confidential Information for the Business Purpose, but solely to the extent necessary to pursue the Business Purpose and for no other purpose; provided that each such employee, consultant, contractor or agent first executes a written agreement (or is otherwise already bound by a written agreement) that contains use and nondisclosure restrictions at least as protective of Haystack's Confidential Information as those set forth in this Agreement. The provisions of this Section 3 will not restrict Company from disclosing Haystack's Confidential Information to the extent required by any law or regulation; provided that Company uses reasonable efforts to give Haystack reasonable advance notice of such required disclosure in order to enable Haystack to prevent or limit such disclosure.
4. Upon Haystack's request, Company will immediately return to Haystack all tangible items and embodiments containing or consisting of Haystack's Confidential Information and all copies thereof (including electronic copies).
5. All Confidential Information remains the sole and exclusive property of Haystack. Company acknowledges and agrees that nothing in this Agreement will be construed as granting any rights to Company, by license or otherwise, in or to any Confidential Information of Haystack, or any patent, copyright or other intellectual property or proprietary rights of Haystack, except as specified in this Agreement.
6. ALL CONFIDENTIAL INFORMATION IS PROVIDED BY Haystack "AS IS".
7. Company acknowledges that the unauthorized use or disclosure of Haystack's Confidential Information would cause Haystack to incur irreparable harm and significant damages, the degree of which may be difficult to ascertain. Accordingly, Company agrees that Haystack will have the right to obtain immediate equitable relief to enjoin any unauthorized use or disclosure of its Confidential Information, in addition to any other rights and remedies that it may have at law or otherwise.
8. This Agreement will be construed, interpreted, and applied in accordance with the internal laws of the State of California (excluding its body of law controlling conflicts of law). This Agreement is the complete and exclusive statement regarding the subject matter of this Agreement and supersedes all prior agreements, understandings and communications, oral or written, between the parties regarding the subject matter of this Agreement. Company may not assign this Agreement, in whole or in part, without Haystack's prior written consent, and any attempted assignment without such consent will be void.
9. Company will comply with all laws and regulations applicable to its performance under this Agreement. Without limiting the generality of the foregoing, Company specifically acknowledges that the Confidential Information may be subject to United States export control laws or regulations, and Company shall comply at all times with all such laws and regulations.
10. This Agreement will commence on the date first set forth above and will remain in effect for five (5) years from the date of last disclosure of Confidential Information by Haystack, at which time it will terminate.
IN WITNESS WHEREOF, Company has caused this Non-Disclosure Agreement to be executed by an officer or duly authorized representative as of the Effective Date.