This Non-Disclosure Agreement (hereinafter “Agreement”) is made and entered into between Akruto, Inc., (hereinafter “Akruto”) and you (hereinafter “Participant”), and is effective as of the date of acceptance by the Participant.
Participant is an individual or business that desires to participate in “beta testing”, which provides access to confidential materials or services currently in development by Akruto. Akruto wishes to obtain the benefit of Participant’s reports as a beta tester of Akruto’s materials. In consideration of the premises, and of the mutual covenants and conditions, the parties, agree to the following terms and conditions:
1.0 CONFIDENTIAL INFORMATION.
A) “Confidential Information” means all information, whether written or oral, and in any form (including, without limitation, software (in source or object code), engineering documents, manuals, reports, designs, drawings, plans, flowcharts, program listings, data file printouts, processes, product information, new product plans, sales and marketing plans and/or programs, and pricing information) relating to Akruto’s beta-tested products or services which is disclosed either directly or indirectly to Participant.
B) Participant acknowledges that as a beta tester, Participant may have access to, and Akruto may disclose to Participant, certain Confidential Information. Participant shall use the Confidential Information solely for testing purposes and, for a period of three (3) years from Participant’s receipt of the Confidential Information, shall not disclose, without Akruto’s written consent, such Confidential Information to third parties or use such Confidential Information for its own benefit or for the benefit of third parties.
C) This Agreement shall impose no obligation of confidentiality upon Participant with respect to any portion of the Confidential Information which: (i) now or hereafter, through no act or failure to act on Participant’s part, becomes generally known or available; (ii) is known to Participant at the time Participant receives same from Akruto as evidenced by written records; (iii) is hereafter furnished to Participant by a third party who legally obtained Confidential Information and without restriction on disclosure.
D) Participant agrees to secure and protect the Confidential Information and all copies thereof in a manner consistent with the maintenance of Akruto’s rights therein and to take appropriate actions by instruction or agreement with any of its employees or agents permitted access thereto to satisfy its obligations hereunder.
2.0 PROPRIETARY RIGHTS; NO RIGHT TO COPY, MODIFY, OR DISASSEMBLE.
A) The Confidential Information provided by Akruto and all copies thereof, are proprietary to and the property of Akruto. All applicable rights in all copyrights, trademarks, trade secrets, trade names, patents and other intellectual property rights in or associated with the Confidential Information are and will remain in Akruto. Participant shall have no such intellectual property rights in the Confidential Information.
B) Participant may not copy or reproduce the Confidential Information without Akruto’s prior written consent, except as reasonably needed to perform its obligations as a beta tester and subject to the following restrictions. Each copy of software or documentation made by Participant must contain Akruto’s proprietary and copyright notices in the same form as on the original. Participant shall not remove or deface any portion of any legend provided on any part of the Confidential Information.
C) Participant shall not reverse engineer, alter, modify, disassemble or decompile any Confidential Information, or any part thereof, without Akruto’s prior written consent.
3.0 GOVERNING LAW.
The laws of the State of Massachusetts govern this agreement.
This Agreement will be binding upon and will inure to the benefit of the parties hereto and their respective representatives, successors and assigns except as otherwise provided herein.
5.0 DISCLAIMER OF WARRANTIES
ALL MATERIALS PROVIDED BY AKRUTO TO PARTICIPANT (INCLUDING WITHOUT LIMITATION, AKRUTO SOFTWARE AND SERVICES AND THIRD PARTY SOFTWARE AND SERVICES) ARE PROVIDED “AS IS,” WITH NO WARRANTIES WHATSOEVER. AKRUTO AND SUCH THIRD PARTIES EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS AND ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE SOFTWARE OR SERVICE AND SUCH THIRD PARTY SOFTWARE OR SERVICES. AKRUTO DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE OR SERVICE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE OR SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE OR SERVICE WILL BE CORRECTED. AKRUTO DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE OR SERVICE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE. AKRUTO DOES NOT REPRESENT OR WARRANT THAT USERS WILL BE ABLE TO ACCESS OR USE THE SOFTWARE AT TIMES OR LOCATIONS OF THEIR CHOOSING, OR THAT AKRUTO WILL HAVE ADEQUATE CAPACITY FOR ANY USER’S REQUIREMENTS. NO ORAL OR WRITTEN STATEMENT, INFORMATION OR ADVICE GIVEN BY AKRUTO, OR ITS RESPECTIVE EMPLOYEES, DISTRIBUTORS, DEALERS, OR AGENTS SHALL CREATE ANY WARRANTIES.
YOU UNDERSTAND AND AGREE THAT YOUR DOWNLOAD AND/OR USE OF THE SOFTWARE IS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF THE SOFTWARE OR SERVICE AND SUCH THIRD PARTY SOFTWARE AND SERVICES.
SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.
6.0 LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL AKRUTO, OR ITS SUPPLIERS, RESELLERS, PARTNERS OR THEIR RESPECTIVE AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING FROM OR RELATED TO THE SOFTWARE, WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER THEORY OF LIABILITY, (EVEN IF ANY SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). WITHOUT LIMITING THE FOREGOING, THE TOTAL AGGREGATE LIABILITY OF AKRUTO, AND ITS SUPPLIERS, RESELLERS, PARTNERS AND THEIR RESPECTIVE AFFILIATES ARISING FROM OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT, IF ANY, PAID BY YOU TO AKRUTO. IF THE SOFTWARE IS PROVIDED WITHOUT CHARGE, THEN AKRUTO AND ITS SUPPLIERS SHALL HAVE NO LIABILITY TO YOU WHATSOEVER.
THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE SOFTWARE, FROM INABILITY TO USE THE SOFTWARE, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SOFTWARE (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). SUCH LIMITATION SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, OR DIRECT DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
THE SOFTWARE IS NOT INTENDED FOR USE IN CONNECTION WITH ANY NUCLEAR, AVIATION, MASS TRANSIT, OR MEDICAL APPLICATION OR ANY OTHER INHERENTLY DANGEROUS APPLICATION THAT COULD RESULT IN DEATH, PERSONAL INJURY, CATASTROPHIC DAMAGE, OR MASS DESTRUCTION, AND LICENSEE AGREES THAT AKRUTO WILL HAVE NO LIABILITY OF ANY NATURE AS A RESULT OF ANY SUCH USE OF THE SOFTWARE.
If any provision in this Agreement should be held illegal or unenforceable by a court of competent jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this Agreement if no such modification is possible, and other provisions of this Agreement shall remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof.
1 August, 2020