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This
SynTest Technologies, Inc. Nondisclosure Agreement (“Agreement”) governs
the disclosure of information by SynTest Technologies, Inc. (“SynTest”) to
_______________________ (“Recipient”), and is entered into by the parties
as of ______________, 200_ (“Effective Date”). 1.
As used in
this Agreement, “Confidential Information” means any and all technical and
non-technical information oral, written, graphic, and machine‑readable
information provided by SynTest to Recipient hereunder, including, but not
limited to, all information relating to SynTest patents, patent applications,
research, product plans, products, developments, inventions, processes,
designs, drawings, engineering, formulae, markets, software (including source
and object code), hardware, computer programs, algorithms, business plans,
services, customers, marketing, or financial information, or third party
information, designated in writing to be confidential and/or proprietary, or
if given orally, which is confirmed in writing as having been disclosed as
confidential and/or proprietary within thirty (30) days after disclosure, or
which information would, under the circumstances, appear to a reasonable
person to be confidential and/or proprietary.
2.
Recipient
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
SynTest. Recipient agrees to use
the Confidential Information for no purpose other than evaluating a business
relationship with SynTest and use of SynTest’s products and services. Notwithstanding the foregoing, Recipient shall not be in
violation of this Agreement with regard to any disclosure that was in response
to a valid order by a court or other governmental body, provided that
Recipient provides SynTest with prior written notice of such disclosure in
order to permit SynTest to seek confidential treatment of such information.
In addition, Recipient 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 with
confidentiality obligations at least as restrictive as those contained herein. 3.
Recipient
shall immediately notify SynTest in the event of any loss or unauthorized
disclosure of any Confidential Information. 4.
Recipient’s
obligations under this Agreement with respect to any portion of the
Confidential Information shall terminate when Recipient can prove with
documentation that: (a) it was in the public domain at the time it was
communicated to Recipient; (b) it entered the public domain subsequent to the
time it was communicated to Recipient through no fault of Recipient; (c) it
was in the Recipient’s possession free of any obligation of confidence at
the time it was communicated to Recipient; (d) it was rightfully communicated
to Recipient free of any obligation of confidence subsequent to the time it
was communicated to Recipient; or (e) it was developed by employees of
Recipient who had no access to any Confidential Information and without any
violation of any obligation set forth herein. 5.
Upon
termination or expiration of this Agreement, or upon SynTest’s request,
Recipient shall promptly return to SynTest all Confidential Information, along
with all documents, notes, and other tangible materials representing the
Confidential Information, and all copies thereof. 6.
Recipient
acknowledges and agrees that nothing contained in this Agreement shall be
construed as granting any rights, by license or otherwise, to any Confidential
Information disclosed pursuant to this Agreement, or to any SynTest invention,
or any SynTest patent, copyright, trademark, or other intellectual property
right that has issued or that may issue, based on the Confidential
Information. Recipient shall not
make, have made, use or sell any product or other item using, incorporating,
or derived from any Confidential Information. Further, Recipient acknowledges
that SynTest’s software programs contain valuable confidential information
and agrees not to modify, reverse engineer, decompile, create other works
from, or disassemble any software programs contained in the Confidential
Information unless otherwise expressly permitted to do so in advance in
writing by SynTest. 7.
Neither
party shall have any obligation to enter into a business relationship with or
sell or purchase any item from the other party, and nothing in this Agreement
shall restrict either party’s right to develop or acquire information that
is the same as or similar to the Confidential Information, provided neither
party does so in breach of this Agreement or in violation of any obligation
set forth herein. 8.
Confidential
Information shall not be reproduced in any form or transferred to any media
except as authorized by SynTest and as required to accomplish the intent of
this Agreement described in Section 2 above.
Any reproduction of any Confidential Information shall remain the
property of SynTest, and shall contain any and all confidential or proprietary
notices or legends which appear on the original, unless otherwise expressly
permitted in writing by SynTest. 9.
This
Agreement shall terminate five (5) years after the Effective Date.
Notwithstanding the foregoing, Recipient’s confidentiality
obligations under this Agreement shall survive expiration or termination of
the Agreement indefinitely and shall be binding upon the parties’ heirs,
successors, and assigns. 10.
This
Agreement shall be governed by and construed in accordance with the laws of
California 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 Santa Clara County, California, and the
parties hereby consent to the personal jurisdiction and venue of these courts.
This Agreement may not be modified or amended except by a writing
signed by both parties. 11.
Recipient
agrees that breach of this Agreement will cause SynTest irreparable damage for
which recovery of damages would be inadequate, and, as such, in addition to
all other remedies available to SynTest, SynTest will be entitled to seek
timely injunctive relief under this Agreement, as well as any further relief
as may be granted by a court of competent jurisdiction. 12.
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. 13.
Recipient
will not assign or transfer any rights or obligations under this Agreement
without SynTest’s prior written consent. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the parties’
respective successors and assigns. 14.
Recipient
shall not 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. 15.
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 shall be sent to the addresses set forth at the end of this Agreement
or such other address as either party may specify in writing. 16.
SynTest and
Recipient are independent contractors, and nothing contained in this Agreement
shall be construed to constitute the parties as partners, joint venturers,
co-owners or otherwise as participants in a joint or common undertaking. 17.
This
Agreement constitutes the entire agreement between the parties concerning its
subject matter. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original and all of which together shall
constitute one instrument. In
Witness Whereof, the parties hereto have caused this SynTest Technologies,
Inc. Nondisclosure Agreement to be executed as of the Effective Date. SynTest Technologies, Inc.
Recipient: _____________________________ By: ___________________________________
By: _________________________________ Name: ________________________________
Name: ______________________________ Title: __________________________________
Title: _______________________________ Address:
SynTest Technologies, Inc.
Address: _____________________________ 505 S.
Pastoria Ave, Suite 101
_____________________________ Sunnyvale,
CA 94086
_____________________________ Facsimile:
408-720-9960 |
