BY ACCESSING, USING, OR ENGAGING WITH THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT AS WELL AS OUR END USER AGREEMENT. IF YOU DO NOT AGREE TO ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT OR THE END USER AGREEMENT, PLEASE DO NOT ACCESS, USE, OR ENGAGE WITH OUR SERVICES.
If any provision of this Agreement conflicts with any provision of the End User Agreement, the provision of this Agreement shall control during the term hereof.
The parties wish to explore a business opportunity of mutual interest and in connection therewith, you desire to participate in a short-term trial of Argyle’s products and services (collectively, the “Services”). In connection with the foregoing, each party may disclose to the other certain confidential technical and business information that the disclosing party desires the receiving party to treat as confidential.
“Confidential Information” means any information disclosed by either party to the other party, directly or indirectly, in writing, orally, or by inspection of tangible objects (including documents, prototypes, samples, plant, and equipment), that is designated by the disclosing party as confidential or proprietary, that reasonably appears to be confidential due to the nature of the information or circumstances of disclosure, or that is customarily considered confidential in business dealings, including, without limitation, customer, product, financial, and strategic information. Argyle’s Confidential Information includes, without limitation, the Services. “Confidential Information” may also include information disclosed to the disclosing party by third parties. Confidential Information will not, however, include any information that (i) was publicly known and made generally available to the public prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available to the public after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party, as shown by the receiving party’s files and records; (iv) is obtained by the receiving party from a third party without a breach of the third party’s obligations of confidentiality; or (v) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession.
3. Non-use and Nondisclosure
Each party will take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the other party’s Confidential Information. Without limiting the foregoing, each party will take at least those measures that it takes to protect its own most highly confidential information. Each party will not use the other party’s Confidential Information for any purpose except to evaluate and engage in discussions concerning a potential business relationship between the parties, or otherwise as required in connection with your trial of the Services during the Term (defined below). The receiving party may disclose, distribute or disseminate the Confidential Information to any of its officers, directors, members, managers, partners, employees, or agents (its “Representatives”), provided that the receiving party reasonably believes that those Representatives have a need to know and such Representatives are bound by confidentiality obligations at least as restrictive as those contained herein. The receiving party shall not disclose, distribute, or disseminate the Confidential Information to any third party, other than its Representatives, without the prior written consent of the disclosing party. The receiving party shall at all times remain responsible for any violations of this Agreement by any of its Representatives. Neither party will make any copies of the other party’s Confidential Information unless approved in writing by the other party. Each party will reproduce the other party’s proprietary rights notices on any approved copies.
4. Compelled Disclosure
In the event the receiving party becomes or may become legally compelled to disclose any Confidential Information (whether by deposition, interrogatory, request for documents, subpoena, civil investigative demand or other process), the receiving party shall provide to the disclosing party prompt prior written notice of such requirement so that the disclosing party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Agreement. In the event that such protective order or other remedy is not obtained, or that the disclosing party waives compliance with the provisions hereof, the receiving party shall furnish only that portion of the Confidential Information which it is advised by counsel is legally required to be disclosed, and shall use commercially reasonable efforts to insure that confidential treatment shall be afforded such disclosed portion of the Confidential Information.
5. Trial Use of the Services
During the Term, Argyle hereby grants you a limited, non-transferable, non-sublicensable, royalty-free, revocable right and license to use the Services for testing purposes, and only as expressly instructed by an authorized Argyle representative. You shall not (i) allow any third party to use the Services or your login credentials; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Services; (iii) modify, adapt, or make any copies of the Services; (iv) resell, distribute, or sublicense the Services, or use the Services for the benefit of anyone other than yourself; (v) remove or modify any proprietary markings or restrictive legends placed on the Services; (vi) use the Services in violation of any applicable law, rule, or regulation, or in order to build a competitive product or service; or (vii) circumvent any processes, procedures, or technologies that Argyle has put in place to safeguard the Services.
You acknowledge and agree that Argyle shall monitor the performance and use of the Services, and shall collect certain data related to your use of the Services, and that Argyle may create data records from such data by subjecting it to anonymization through the removal of all personal information (“Anonymous Data”). Anonymous Data does not identify you or any individual. You hereby agree that we may collect, reproduce, execute, use, store, archive, modify, enhance, perform, display, distribute, sell, rent, vend, license, or otherwise exploit Anonymous Data for any lawful purpose; provided, however, that such usage does not identify you. Anonymous Data is Argyle’s Confidential Information. Any data that Argyle collects from you that has not been subjected to anonymization is your Confidential Information.
The receiving party acknowledges and agrees that, as between the receiving party and the disclosing party, the Confidential Information, together with all intellectual property rights embodied therein (including, but not limited to, all concepts, ideas, patents, copyrights, copyrightable works, trade secrets, know-how, trademarks, software, source code, and object code), are the sole and exclusive property of the disclosing party. The disclosing party shall retain all right and title to all proprietary rights in the Confidential Information and to any other intellectual property owned or otherwise provided by the disclosing party. For avoidance of doubt, the Services are and shall remain the exclusive property of Argyle. The receiving party shall not have the right to use the intellectual property rights embodied in the Confidential Information for any purpose other than as expressly permitted in this Agreement. Nothing in this Agreement is intended to grant any rights to either party under any patent, copyright, or other intellectual property right of the other party, nor will this Agreement grant any party any rights in or to the Confidential Information of the other party, except as expressly set forth in this Agreement.
Any ideas, suggestions, guidance, or feedback provided by you to Argyle related to the Services (or any of Argyle’s Confidential Information) and any intellectual property rights relating to the foregoing shall be collectively referred to herein as “Feedback” Argyle shall own all Feedback, and you hereby assign and agree to assign to Argyle all of your right, title, and interest in and to such Feedback. To the extent that the foregoing assignment is ineffective for whatever reason, you hereby grant to Argyle an exclusive, perpetual, irrevocable, royalty free, fully paid, worldwide license (with the right to grant and authorize sublicenses) to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform and otherwise exploit such Feedback for any purpose without restriction, and without compensation or attribution to you.
9. No Warranty
ALL CONFIDENTIAL INFORMATION, AND ARGYLE’S SERVICES, ARE PROVIDED “AS IS,” AND “AS AVAILABLE.” THE DISCLOSING PARTY SHALL HAVE NO LIABILITY TO THE RECEIVING PARTY OR ANY OTHER PERSON OR ENTITY FOR ANY RELIANCE UPON THE CONFIDENTIAL INFORMATION BY THE RECEIVING PARTY OR SUCH OTHER PERSON OR ENTITY. NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS, IMPLIED, OR OTHERWISE, REGARDING THE ACCURACY, COMPLETENESS, OR PERFORMANCE OF ITS CONFIDENTIAL INFORMATION. FURTHER, ARGYLE MAKES NO WARRANTIES WITH RESPECT TO THE SERVICES OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
10. Limitation of Liability
EXCEPT IN CONNECTION WITH A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (I) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY ORDER FORM REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF; AND (II) EACH PARTY’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID BY ARGYLE TO YOU HEREUNDER DURING THE PERIOD SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
11. Return of Materials
All documents and other tangible objects containing or representing Confidential Information and all copies of them will be and remain the property of the disclosing party. Upon the disclosing party’s request, the receiving party will promptly deliver to the disclosing party all Confidential Information, without retaining any copies.
12. Term; Termination
The term of this Agreement commences on the Effective Date and shall expire only when requested (the “Term”). Either party may terminate this Agreement at any time, for any reason or no reason, upon five (5) days’ prior written notice to the other party. Upon termination or expiration of this Agreement, or at any other time following the request of the disclosing party, the receiving party and its Representatives shall return to the disclosing party, or, at the disclosing party’s option, destroy all materials that are in written, electronic, or other tangible form (including, without limitation, all written or printed documents, notes, memoranda, email, computer disks, or tapes (whether machine or user readable), or computer memory, whether or not prepared by receiving party) that contain, summarize or abstract any portion of the disclosing party’s Confidential Information, including, without limitation, all copies, extracts, and derivations of such materials, and upon the request of the disclosing party, the receiving party shall certify to the disclosing party in writing the receiving party’s and its Representatives’ compliance with the foregoing obligations. In addition, upon expiration or termination of this Agreement, you shall immediately cease all use of the Services. The obligations of each receiving party with respect to the disclosing party’s Confidential Information under this Agreement will survive indefinitely, or until all Confidential Information of the other party becomes publicly known and made generally available through no action or inaction of the receiving party.
In consideration for your trial use of the Services and Argyle’s collection of data therefrom, Argyle shall pay you an amount in one lump sum payment within thirty (30) days of the Effective Date. Thereafter, Argyle shall pay you a monthly payments, payable within the first fifteen (15) days of each calendar month during the Term (and pro-rated for any partial calendar months). Argyle shall owe you no other compensation in connection with this Agreement.
The receiving party acknowledges that in the event of a breach of this Agreement by the receiving party or its Representatives, substantial injury could result to the disclosing party and money damages will not be a sufficient remedy for such breach. Therefore, in the event that the receiving party or its Representatives engage in, or threaten to engage in any act which violates any provision of this Agreement, the disclosing party shall be entitled, in addition to all other remedies which may be available to it under law, to seek injunctive relief (including, without limitation, temporary restraining orders, or preliminary or permanent injunctions) and specific enforcement of the terms of this Agreement. The disclosing party shall not be required to post a bond or other security in connection with the granting of any such relief.
As between you and Argyle, the parties are independent contractors. Neither party will be deemed to be an employee, agent, partner, joint venturer, or legal representative of the other party for any purpose, and neither party will have any right, power, or authority to obligate the other party. You shall not assign or otherwise transfer any of your rights or obligations under this Agreement without Argyle’s prior, written consent. Argyle may assign or transfer its rights or obligations under this Agreement upon written notice to you. This Agreement will bind and inure to the benefit of the parties and their successors and permitted assigns. This Agreement will be governed by the laws of the state of New York, without reference to conflict of laws principles that would result in the application of the laws of another jurisdiction. This Agreement is the entire agreement between the parties with respect to the subject matter of this Agreement, and shall supersede any prior or contemporaneous communications, representations, or agreements between the parties, whether oral or written. Any failure to enforce any provision of this Agreement will not constitute a waiver of that provision or of any other provision. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties. If any provision of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, that provision will be amended to achieve as nearly as possible the same economic effect as the original provision, and the remainder of this Agreement will remain in full force and effect. Any provision of this Agreement which is unenforceable in any jurisdiction, will be ineffective only as to that jurisdiction, and only to the extent of such unenforceability, without invalidating the remaining provisions hereof. This Agreement may be executed in two or more counterparts, each of which is deemed to be an original, but all of which constitute the same agreement.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.