| Carelli International Corporation
IMPORTANT: PLEASE READ CAREFULLY THE NON-DISCLOSURE
AGREEMENT BELOW. BY USING THE PASSWORD TO ACCESS THE
PARTNER MEMBERS WEBSITE, YOU INDICATE YOUR ACCEPTANCE
OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
General information
Important: The following “Non-disclosure Agreement”
applies exclusively to Partner Members and use of the
Partner Members Website (“Site”). It does
not apply to any other restricted area, unrestricted
area or Site provided by Carelli International Corporation.
The Partner Members Website is a restricted area containing
confidential content. By using the password to access
the Partner Members Site, you indicate your acceptance
of the terms and conditions set forth in the following
“Non-disclosure Agreement.” If you are not
sure about your legal obligations, do not access or
use the Partner Members Site.
Partner Members (Recipient) are required to print the
entire Non-disclosure Agreement (“NDA”),
provide Company Legal Name and Address, and return the
NDA in its entirety to Carelli International Corporation.
Ways
to contact Partner Member Services
CARELLI INTERNATIONAL CORPORATION NON-DISCLOSURE AGREEMENT
This Non-Disclosure Agreement ("Agreement")
is made and entered into as of the later of the two
signature dates below by and between CARELLI INTERNATIONAL
CORPORATION, a California corporation ("CI"),
and _______________________________ ("Recipient").
IN CONSIDERATION OF THE MUTUAL PROMISES AND COVENANTS
CONTAINED IN THIS AGREEMENT AND THE DISCLOSURE OF CONFIDENTIAL
INFORMATION, THE PARTIES HERETO AGREE AS FOLLOWS:
1. Definition of Confidential Information and Exclusions
(a) "Confidential Information" means nonpublic
information that CI designates as being confidential
or which, under the circumstances surrounding disclosure
ought to be treated as confidential by Recipient. "Confidential
Information" includes, without limitation, information
in tangible or intangible form relating to and/or including
released or unreleased CI products and/or conceptual
designs, prototypes, samples, models, blueprints, pictorial
descriptions or software code, the marketing or promotion
of any CI product, CI’s business policies or practices,
and information received from others that CI is obligated
to treat as confidential. Except as otherwise indicated
in this Agreement, "CI" also includes all
Affiliates of CI and, except as otherwise indicated,
the term "Recipient" also includes all Affiliates
of the Recipient. An “Affiliate" means any
person, partnership, joint venture, corporation or other
form of enterprise, domestic or foreign, including but
not limited to subsidiaries, that directly or indirectly,
control, are controlled by, or are under common control
with a party.
(b) Confidential Information shall not include any
information, however designated, that: (i) is or subsequently
becomes publicly available without Recipient's breach
of any obligation owed to CI; (ii) became known to Recipient
prior to CI’s disclosure of such information to
Recipient pursuant to the terms of this Agreement; (iii)
became known to Recipient from a source other than CI
other than by the breach of an obligation of confidentiality
owed to CI; (iv) is independently developed by Recipient;
or (v) constitutes Feedback (as defined in Section 5).
2. Obligations Regarding Confidential Information
(a) Recipient shall:
(i) Refrain from disclosing any Confidential Information
to third parties for ten (10) years following the date
that CI first discloses such Confidential Information
to Recipient, except as expressly provided in Sections
2(b) and 2(c) of this Agreement;
(ii) Take reasonable security precautions, at least
as great as the precautions it takes to protect its
own confidential information, but no less than reasonable
care, to keep confidential the Confidential Information;
(iii) Refrain from disclosing, reproducing, summarizing
and/or distributing Confidential Information except
in pursuance of Recipient's business relationship with
CI, and only as otherwise provided hereunder; and
(iv) Refrain from reverse engineering, decompiling
or disassembling any unreleased CI products and/or conceptual
designs, prototypes, samples, models, blueprints, pictorial
descriptions or software code disclosed by CI to Recipient
under the terms of this Agreement, except as expressly
permitted by applicable law.
(b) Recipient may disclose Confidential Information
in accordance with a judicial or other governmental
order, provided that Recipient either (i) gives the
undersigned CI representative reasonable notice prior
to such disclosure to allow CI a reasonable opportunity
to seek a protective order or equivalent, or (ii) obtains
written assurance from the applicable judicial or governmental
entity that it will afford the Confidential Information
the highest level of protection afforded under applicable
law or regulation. Notwithstanding the foregoing, Recipient
shall not disclose any computer content that contains
Confidential Information in accordance with a judicial
or other governmental order unless it complies with
the requirement set forth in sub-section (i) of this
Section 2(b).
(c) The undersigned Recipient may only disclose Confidential
Information to its employees and consultants, and to
the undersigned Recipient's Affiliates and their employees
and consultants, on a need-to-know basis. Prior to the
time that any confidential Information is shared with
its employees or consultants, or the undersigned Recipient's
Affiliates or their employees or consultants, the undersigned
Recipient shall have entered into appropriate written
agreements sufficient to enable CI and/or the undersigned
Recipient to enforce all of the provisions of this Agreement
against such Affiliates, employees and consultants.
(d) Recipient shall notify the undersigned CI representative
immediately upon discovery of any unauthorized use or
disclosure of Confidential Information or any other
breach of this Agreement by Recipient and its employees
and consultants, and will cooperate with CI in every
reasonable way to help CI regain possession of the Confidential
Information and prevent its further unauthorized use
or disclosure.
(e) Recipient shall, at CI’s request, return
all originals, copies, reproductions and summaries of
Confidential Information and all other tangible materials
and devices provided to Recipient as Confidential Information,
or at CI’s option, certify destruction of the
same.
3. Remedies
Recipient acknowledges that monetary damages may not
be a sufficient remedy for unauthorized disclosure of
Confidential Information and that CI shall be entitled,
without waiving any other rights or remedies, to such
injunctive or equitable relief as may be deemed proper
by a court of competent jurisdiction.
4. Miscellaneous
(a) All Confidential Information is and shall remain
the property of CI. By disclosing Confidential Information
to Recipient, CI does not grant any express or implied
right to Recipient to or under any patents, copyrights,
trademarks, or trade secret information except as otherwise
provided herein. CI reserves without prejudice the ability
to protect its rights under any such patents, copyrights,
trademarks, or trade secrets except as otherwise provided
herein.
(b) In the event that CI provides any prototype, sample,
models, and/or device to Recipient as Confidential Information
under the terms of this Agreement, such prototype, sample,
model, and/or device may only be used by the Recipient
for evaluation and providing Feedback to CI (as defined
in Section 5 of this Agreement). Unless otherwise agreed
by CI and the Recipient, any such prototype, sample,
model, and/or device is provided “AS IS"
without warranty of any kind, and Recipient agrees that
neither CI nor its suppliers shall be liable for any
damages whatsoever arising from or relating to Recipient's
use or inability to use such prototype, sample, model,
and/or device.
(c) The parties agree to comply with all applicable
international and national laws that apply to (i) any
Confidential Information, or (ii) any product (or any
part thereof), process or service that is the direct
product of the Confidential Information, including the
U.S. Export Administration Regulations, as well as end-user,
end-use and destination restrictions issued by U.S.
and other governments.
(d) This Agreement constitutes the entire agreement
between the parties with respect to the subject matter
hereof. It shall not be modified except by a written
agreement dated subsequent to the date of this Agreement
and signed by both parties. None of the provisions of
this Agreement shall be deemed to have been waived by
any act or acquiescence on the part of CI, the Recipient,
their agents, or employees, but only by an instrument
in writing signed by an authorized representative of
CI and the Recipient. No waiver of any provision of
this Agreement shall constitute a waiver of any other
provision(s) or of the same provision on another occasion.
(e) If either party employs attorneys to enforce any
rights arising out of or relating to this Agreement,
the prevailing party shall be entitled to recover reasonable
attorneys' fees and costs. This Agreement shall be construed
and controlled by the laws of the State of California,
and the parties further consent to exclusive jurisdiction
and venue in the federal courts sitting in Los Angeles
County, California, unless no federal subject matter
jurisdiction exists, in which case the parties consent
to the exclusive jurisdiction and venue in the Superior
Court of Los Angeles County, California. Recipient waives
all defenses of lack of personal jurisdiction and forum
non conveniens. Process may be served on either party
in the manner authorized by applicable law or court
rule.
(f) This Agreement shall be binding upon and inure
to the benefit of each party's respective successors
and lawful assigns; provided, however, that Recipient
may not assign this Agreement (whether by operation
of law, sale of securities or assets, merger or otherwise),
in whole or in part, without the prior written approval
of CI. Any purported assignment in violation of this
Section shall be void.
(g) If any provision of this Agreement shall be held
by a court of competent jurisdiction to be illegal,
invalid or unenforceable, the remaining provisions shall
remain in full force and effect.
(h) CI may terminate this Agreement with or without
cause upon thirty (30) days prior written notice to
the Recipient. All sections of this Agreement relating
to the rights and obligations of the parties concerning
Confidential Information disclosed during the term of
the Agreement shall survive any such termination.
5. Suggestions and Feedback
The Recipient may from time to time provide suggestions,
comments or other feedback ("Feedback") to
CI with respect to the Confidential Information provided
by CI. Recipient agrees that all Feedback is and shall
be given entirely voluntarily. Feedback, even if designated
as confidential by Recipient, shall not, absent a separate
written agreement, create any confidentiality obligation
for or upon CI. Recipient will not give Feedback that
is subject to license terms that seek to require any
CI product, technology, service or documentation incorporating
or derived from such Feedback, or any CI intellectual
property, to be licensed or otherwise shared with any
third party. Furthermore, except as otherwise provided
herein or in a separate subsequent written agreement
between the parties, CI shall be free to use, disclose,
reproduce, license or otherwise distribute, and exploit
the Feedback provided to it as it sees fit, entirely
without obligation or restriction of any kind on account
of intellectual property rights or otherwise.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement.
RECIPIENT:
Address:
By:
Name:
Title:
Date:
CARELLI INTERNATIONAL CORPORATION
One Park Plaza
Irvine California 92614 USA
By:
Name:
Title:
Date:
Revised September 2003
Publication Ref. 0392.9391 EN form PNDA 9391.2/V406
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