Teal General Terms and Conditions (Ts & Cs)
Effective March 1, 2023
SECTION 1: DEFINITIONS/GENERAL INTRO
- “Teal” means Teal Communications, Inc.
- “Service” means any service and/or hosted software application provided by Teal via the Website, including but not limited to, the Teal API, the Teal VPN, cellular connectivity provided by the Teal OneChip eSIM, and any other software services offered by Teal.
- “Customer” means Customer or the legal entity Customer named as a user when Customer registered on the Website and/or purchased Products.
- “Device” means a product of Customer using a Teal SIM. Active Connected Device” means a device equipped with a Teal eUICC Product and that has connected or registered on a Teal platform network(s) during an invoicing period.
- “End User” means Customer’s customers.
- “Products” means all products sold by Teal. Products include subscriber identification modules “SIMs” and embedded subscriber identification module “eSIMs”. Products also include the embedded universal integrated circuit cards “eUICCs,” which are the software component of a SIM/eSIM that run on a UICC and provides the capability to store multiple network profiles..
- “Website” means any web domain owned, operated, branded or co-branded by Teal.
- “Teal API” means any application programming interface (API) owned and operated by Teal, including the REST (Representational State Transfer) API (for communicating with servers, software developers, web applications, and mobile applications).
- “Order” means a written order for Products and/or Services, mutually agreed upon by Teal and Customer.
SECTION 2: UPDATES AND SUPPLEMENTAL TERMS
- Customer use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be posted on Teal’s Website or will be presented to Customer for Customer acceptance when Customer sign up to use the supplemental Service. If these Terms and Conditions are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. The Terms and Conditions and any applicable Supplemental Terms are referred to herein as the “Terms.”
SECTION 3. ACCOUNT CREATION AND USE
- In order to access certain Services, Customer must create an account with Teal with a valid email address and password (an “Account”).
- By creating and using an Account, Customer is confirming that any and all information Customer provides is accurate and complete. Customer is also certifying that Customer is (1) over the age of 13, and (2) allowed to legally use these services in the United States and other countries and are not barred from doing so by any legal entities.
- Only one Account may be created per unique email address.
- Customer is responsible for the confidentiality of Customer login information and is fully responsible for the activities of Customer Account, as well as all activities, communications or behaviors that occur under Customer Account and with End Users or with any Products and Services connected to Customer Account.
- Customer agrees to notify Teal immediately if Customer has reason to believe Customer Account has been compromised or Customer suspects unauthorized use of Customer Account. Teal will not be liable for any loss or damage arising from Customer failure to comply with the above requirements.
- Teal reserves the right to revoke Customer access to Customer Account, and/or suspend a Device and/or the Services if it believes Customer or End Users are engaged in (1) activities that violate these Terms, or any (2) unauthorized or illegal activities. Teal may suspend Active Connected Devices in the subsequent billing cycle period following at least one billing cycle period in which the Device did not register on any network and which therefore had no usage of the Services.
- After Account has been initially set-up, these Terms will be binding on any End Users of Product or Services. Customer, the Account creator, will continue to be responsible for all Connected Products, including any access to or use of Connected Products by any End Users of Customer Account. All End Users of Customer Account are subject to and bound by these Terms.
- Customer is solely responsible for informing all End Users and any person and/or entity to whom Customer provide access to Connected Products of their responsibilities and obligations hereunder. Customer agrees to indemnify, defend and hold harmless Teal and its affiliates, and their respective officers, directors, employees, contractors, agents, successors and assigns (collectively, “Teal Parties”) from and against any damages, liabilities, losses, judgments, settlements, penalties, costs and expenses (including reasonable attorneys’ fees) (“Losses”) that are incurred by the Teal Parties in connection with or related to breach of this Section.
- Customer is solely responsible for Customer Connected Products and related issues. Customer acknowledges and agrees that Customer must obtain PCS Type Certification Review Board (“PTCRB”) certification for all Connected Products prior to using our Services. In the event Customer Connected Products are not PTCRB certified, Teal reserves the right to suspend our Services to, and ban from our networks, such Connected Products.
SECTION 4: USE OF TEAL PRODUCTS AND SERVICES
- Terms of the attached Mutual Non-Disclosure Agreement govern these Terms and Customer’s use of the Service.
- Customer agrees to abide by all applicable laws and regulations of local, state, and the United States in connection with End User’s and Customer’s access to and use of the Products and Services, along with those of any international jurisdiction in which End Users or Customers access or use the Products and Services.
- Customer further agrees to not use any Products or Services to:
- interfere with or disrupt the services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Products or Services;
- engage in or assist with, or enable others to engage in, illegal or fraudulent activities;
- access or attempt to access the accounts, materials, information, computer systems, networks or devices owned or created by Teal or otherwise, through password mining or any other means;
- violate, tamper with, or circumvent the encryption codes or technological protection measures of the Services;
- solicit personal information from anyone under the age of 18;
- provide remote monitoring to provide life-sustaining medical care for any individual, including without limitation, use of the Service in health care and assisted living environments;
- use the Service to convey obscene or unlawful information and content; or
- monitor third parties without their permission.
- Customer acknowledges and agrees that Customer is solely responsible for compliance with all legal, regulatory and safety-related requirements related to Customer products and projects, and any use of the Products or Services. Customer has established, implemented, and will maintain programs to address privacy risks related its End User’s use of the Service, protect the privacy and confidentiality of End User’s and Teal’s confidential information, and address security risks. By creating products and projects using Teal Products and Services, Customer represents and agrees that Customer has all the necessary expertise to: (1) create and implement safeguards which anticipate dangerous consequences of failures; (2) monitor failures and their consequences; (3) lessen the likelihood of failures that might cause harm; and (4) take appropriate remedial actions.
- The Services may enable Customer to access and use Teal APIs, including the REST API (Application Program Interface), in order to control, access or provision access to Customer Account and Connected Products. Customer may only use the Teal APIs for sole purpose of accessing and using the Services for Customer internal business purposes. Abuse or excessively frequent requests to any Teal API may result in the temporary or permanent suspension of Customer Account’s access to the API and other Services. Teal, at its sole discretion, will determine abuse or excessive usage. Teal reserves the right at any time to modify or discontinue, temporarily or permanently, Customer access to the API (or any part of Services thereof) with or without notice.
- Customer shall not: (a) modify, translate, adapt, merger, make derivative works of, disassemble, decompile, reverse compile, or reverse engineer any part of the Website, Products, Teal APIs or Services; (b) access the Website or Services in order to build a similar or competitive website, application or service; (c) disrupt, overburden, or aid or assist in the disruption or overburdening of (i) any computer or server used to offer or support the Services, or (ii) the enjoyment of the Services by any other person; (d) institute, assist, or become involved in any type of attack, including, but not limited to, distribution of a virus, denial of service attacks upon the Website or Services, or other attempts to disrupt the Website or Services or any other person’s use or enjoyment of the Website or Services; (e) attempt to gain unauthorized access to the Website or Services, accounts registered to others, or to the computers, servers or networks connected to the Website or Services by any means other than the user interface provided by Teal, including, but not limited to, by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device or software that is part of the Website or Services; (f) attempt to probe, scan or test the vulnerability of the Website or Services or network, or breach any security or authentication measures; or (g) avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Teal or any of Teal’s providers or any other third party to protect the Website and/or Services.
- Customer acknowledge and agree that: (a) Customer will comply with all applicable laws, rules and regulations in relation to Customer use of the Website, Products, APIs and Services; (b) Customer access to and use of any Products or Services, or any portion thereof, may be withdrawn or suspended in order to comply with applicable laws, rules and regulations; (c) Customer will not use the Products or Services to send any communications that are offensive, abusive, menacing, obscene, annoying, incite hatred, panic or anxiety or which are otherwise unlawful; or (d) access, transmit, publish, display, advertise or make available material that infringes copyright or any other intellectual property right held in any country, is obscene or pornographic, contains threats of any kind, is defamatory in any way or breaches confidence, which is illegal or infringes any third party’s rights of any kind.
- The Website, Products, APIs and Services are the sole and exclusive property of Teal and its suppliers. Except as expressly set forth herein, no other rights are granted to Customer.
- Customer hereby grants to Teal a non-exclusive, transferable, sublicensable (through multiple tiers), irrevocable, royalty-free and fully paid-up right and license to access and use any data, information, files or other content (“Customer Data”) that Customer, or any End Users of Connected Products upload, transfer, provide, transmit, or otherwise make available to Teal via the Services, for the purpose of providing the Services. Teal acknowledges and agrees that, as between Customer and Teal, Customer is the sole and exclusive owner of Customer Data. For the avoidance of doubt, Teal does not collect, intercept or interpret Customer application data. Customer represents and warrants that Customer has provided all notices and obtained all rights and consents necessary to grant Teal the foregoing license.
SECTION 5: PURCHASES AND PAYMENT TERMS
- Customer agrees to pay all fees or charges to Customer Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable, or as specifically set forth in Customer’s Pricing or any applicable Order. Any disputes relating to payment must be made within 30 days from the time Teal billed or invoiced Customer. Customer must provide Teal with a valid credit card (Visa, MasterCard, Stipe, or any other issuer accepted by Teal) (“Payment Provider”), or purchase order information as a condition to signing up for the Services. Customer Payment Provider agreement governs Customer use of the designated credit card, and Customer must refer to that agreement and not the Terms to determine Customer rights and liabilities. By providing Teal with Customer credit card number and/or other payment information, Customer agrees that Teal is authorized to immediately invoice Customer Account for all fees and charges due and payable to Teal hereunder and that no additional notice is required. Customer agrees to immediately notify Teal of any change in Customer billing address, payment info, or the credit card used for payment hereunder. Other than what is explicitly stated in Customer’s Pricing, Teal reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Website or by email delivery to Customer.
- Customer will be responsible for all charges and any taxes associated with the use of any Teal services, including cellular connectivity, on a rating plan selected by the Customer from the Website (or if Customer does not select a rating plan the default rating plan and connectivity configuration assigned by Teal), or applied to the Customer’s and End User’s devices or account by Teal based on the Customer’s request or other requirement. In the event Customer fails to make payment in full by the specified payment due date, Customer will pay to Teal a late charge on all past due amounts of one percent (1%) per month (or such lower rate that is then the maximum rate allowed by law), calculated on a daily basis from the first day when said amount became due and owing until paid. In addition, Customer is liable for all collection costs, including without limitation reasonable attorney’s fees, collection agency, and other third party costs.
- Customer agrees that any redundant, fallback, bootstrap, supplementary or otherwise non-primary connectivity provided to the Customer from Teal is provided as a courtesy and is at Teal’s discretion to enable or disable. Customer also agrees that should this redundant, fallback, bootstrap, or supplementary usage exceed more than 5% of total monthly usage on a per-device basis, that they may be responsible for additional data usage costs at Teal’s discretion according to the latest fallback connectivity pricing sheet maintained by Teal.
- Customer will be responsible for payment of the applicable fee for any Services (each, a “Service Subscription Fee”) at the time Customer creates a Customer Account and select Customer monthly or annual package, as applicable, or as otherwise set forth in any applicable Order (each, a “Service Commencement Date”). Except as set forth in the Terms or any applicable Order, all fees for the Services are non-refundable. No contract will exist between Customer and Teal for the Services until Teal accepts Customer order by a confirmatory e-mail, SMS/MMS message, or other appropriate means of communication.
- Customer subscription will continue indefinitely until terminated in accordance with the Terms, or as set forth in any applicable Order. Unless otherwise set forth in an applicable Order, after Customer initial Term or subscription period, and again after any subsequent subscription period, Customer subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at Teal’s then-current price for such subscription. Unless otherwise set forth in an applicable Order, Customer agrees that Customer Account will be subject to this automatic renewal feature unless Customer cancel Customer subscription at least (a) thirty (30) days prior to the Renewal Commencement Date (or in the event that Customer receive a notice from Teal that Customer subscription will be automatically renewed, Customer will have thirty days from the date of the Teal notice). If Customer does not wish Customer Account to renew automatically, or if Customer wants to change or terminate Customer subscription, please contact Teal at email@example.com. If Customer cancels Customer subscription, Customer may use Customer subscription until the end of Customer then-current subscription term; Customer subscription will not be renewed after Customer then-current term expires. However, Customer will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. By subscribing, Customer authorizes Teal to charge Customer Payment Provider now, and again at the beginning of any subsequent subscription period. Upon renewal of Customer subscription, if Teal does not receive payment from Customer Payment Provider, (i) Customer agrees to pay all amounts due on Customer Account upon demand, and/or (ii) Customer agrees that Teal may either terminate or suspend Customer subscription and continue to attempt to charge Customer Payment Provider until payment is received (upon receipt of payment, Customer Account will be activated and for purposes of automatic renewal, Customer new subscription commitment period will begin as of the day payment was received).
- Teal reserves the right to charge Customer any overage fees accrued or incurred in accordance with Customer Order. Customer acknowledges and agree that overage fees may not be invoiced in the month used and that any failure by Teal to bill or invoice for overage and related charges on a timely basis will not be a basis for Customer to dispute payment of such charges.
- Teal reserves the right to change carriers, network access and coverage plans at any time. Other than the committed carrier or data rate configuration that are expressly stated in the Pricing Terms below, in the event any carrier, network access and/or coverage plans rates are increased by the applicable carrier or service provider, Teal reserves the right to increase its fees upon 30 days notice to Customer.
- If Customer has agreed to terms including committed volume pricing, then Customer is liable for MRC charges according to the device volume and date committed in the “Additional Terms” section of this agreement and will promptly pay for any MRC shortfall following the end of the commitment period.
SECTION 6: WARRANTY; WARRANTY DISCLAIMER
- Except as set forth below in Section 6.4 Teal does not warrant that (i) Services and Products will meet Customer specific requirements, (ii) Services and Products will be uninterrupted, timely, secure, or error-free, (iii) the results that may be obtained from the use of Services and Products will be accurate or reliable, (iv) the quality of any Services, Products, information, or other material purchased or obtained by Customer through Teal will meet Customer expectations, and (v) any errors in the Service or Products will be corrected.
- Services may be subject to sporadic interruptions and failures for a variety of reasons beyond Teal’s control, including, but not limited to, cellular intermittency, service provider uptime, mobile notifications and carriers, among others. Customer acknowledges these limitations and agree that Teal is not responsible for any damages allegedly caused by the failure or delay of the Services.
- Customer acknowledges that Teal uses third party service providers to enable aspects of the Services and Products – such as, for example, but not limited to, data storage, synchronization, and communication through third-party servers, and mobile device notifications through mobile operating system vendors and mobile carriers, and that Teal does not control and is not responsible for the acts or omissions of such third-party service providers.
- Continuity Assurance: In the event that Teal ceases to operate its business, or files or has filed against it a petition under bankruptcy or insolvency law which remains undismissed after sixty (60) days, Teal warrants that it will undertake commercially reasonable efforts to ensure cellular connectivity provided by the Teal OneChip eSIM will remain active. Teal will undertake commercially reasonable efforts to ensure that pricing and service contracts will be honored by Teal’s cellular carrier partners under the same pricing and terms as conveyed by Teal. Teal will take commercially reasonable efforts to transfer the full title of their licenses and agreements to Customer insofar as they pertain to cellular connectivity provided by the Teal OneChip eSIM.
SECTION 7: LIMITATION OF LIABILITY
- Customer expressly understands and agrees that neither Teal nor its suppliers will be liable for any indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if Teal has been advised of the possibility of such damages). Neither Teal nor its suppliers will be liable for any damages resulting from: (i) the cost of procurement for substitute products or services; (ii) the interruption of use or loss or corruption of data; (iii) actions or choices by any third parties using Services or Products; (iv) the interruption of access to or inability to access Services; (vi) Access, authorized or unauthorized, to Customer or End User data, or Customer or End User devices (Teal Products or otherwise) making use of Services (v) Customer or End User use of the Services (including the APIs or Third-Party Products that access data via the APIs) or Products. In no event shall Teal or its suppliers’ aggregate liability to Customer exceed an amount equal to the amounts paid by Customer during the six (6) month period immediately preceding the event(s) giving rise to liability hereunder. Customer will obtain and maintain commercial general liability insurance covering all operations relating to Teal with commercially reasonable coverage scopes and coverage amounts.
- Force Majeure: Teal will not be liable for delays in processing or other nonperformance caused by such events as fires, telecommunications failures, utility failures, power failures, equipment failures, labor strife, riots, war, terrorist attack, nonperformance of our vendors or suppliers, acts of God, or other causes over which Teal has no reasonable control.
SECTION 8: INDEMNIFICATION
- Customer agrees to indemnify, defend and hold the Teal Parties harmless from and against any and all Losses incurred by the Teal Parties in connection with any action, claim or suit arising out of or relating to Customer or End User breach of these Terms; Customer or End User violation of any applicable laws, rules or regulations; any dispute between Customer and any of Customer suppliers, vendors, distributors, OEMs, resellers or customers; or Customer or End User use of Products or Services, including without limitation, Customer or End User use of Products or Services in a project, product, device or any other item that Customer sell, pass or give to another person.
SECTION 9: TERMINATION
- If Teal becomes aware of any possible violations by Customer or End User of the Terms, Teal reserves the right to investigate such violations. If, as a result of the investigation, Teal believes that unlawful activity has occurred, Teal reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Teal is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Website or Services, including Customer Data, in Teal’s possession in connection with Customer or End User use of the Website or Services, to (1) comply with applicable laws, legal process or governmental request, (2) enforce the Terms, (3) respond to any claims that Customer Data violates the rights of third parties, (4) respond to Customer requests for customer service, or (5) protect the rights, property or personal safety of Teal, its users or the public, and all enforcement or other government officials, as Teal in its sole discretion believes to be necessary or appropriate.
- In the event Teal determines, in its sole discretion, that Customer or an End User has breached any portion of these Terms, or have otherwise demonstrated conducted inappropriate for the Website and/or Services, Teal reserves the right to: Warn Customer via email that Customer has violated the Terms; Delete Customer Data; Discontinue Customer subscription to any Services; Notify and/or send Customer and/or End User Data to and/or fully cooperate with the proper law enforcement authorities for further action; and/or; Pursue any other action which Teal deems to be appropriate.
- These Terms commence on the date when Customer accepts them (as described in the preamble above) and remain in full force and effect while Customer use the Website and/or Services, unless terminated earlier in accordance with the Terms.
- If payment cannot be charged to Customer Payment Provider for any reason, if Customer has materially breached any provision of the Terms, or if Teal is required to do so by law (e.g. where the provision of the Website and/or Services is, or becomes, unlawful), Teal has the right to, immediately and without notice, suspend or terminate any Services provided to Customer. Customer agrees that all terminations for cause shall be made in Teal’s sole discretion and that Teal shall not be liable to Customer or any End User or any third party for any termination of Customer Account.
- Termination of the Teal service by the Customer is permitted at any time under the following conditions: 1) documented and notified non-performance or underperformance of the Teal network where adjustment or remediation is not available in a reasonable amount of time, or: 2) a lack of network coverage or technical feature availability required by the Customer project. Termination of this agreement and the Teal service due to either of the above conditions being met may be done by the Customer by (a) notifying Teal at any time, and (b) closing Customer Account for all of the Services Customer utilize. Customer notice should be sent, via email, to Customer’s designated account manager or sales representative. If Customer closes Customer Account in accordance with this Section 9.5, Customer will be entitled to continue to use the Services until the end of the applicable subscription period (if any), and Customer will not be entitled to a refund.
- Termination of the Teal service and/or this Agreement by Teal is permitted (i) in the event that Teal ceases to provide the Service to customers generally; (ii) upon written notice of at least 30 days at the end of the Term set forth in Customer’s Pricing Exhibit; (iii) immediately upon Customer’s material breach of this Agreement; (iv) immediately terminate or partially or wholly suspend Customer’s account(s) should Customer be more than 45 days late paying an undisputed invoice, or Customer’s creditworthiness has significantly deteriorated and Teal therefore has a reasonable belief that Customer may be unable to pay for Services; or (v) upon written notice of at least 30 days after at least 36 months have passed from the Effective Date of this Agreement.
- Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of Customer password and all related information, files and Customer Data associated with or inside Customer Account (or any part thereof). Subject to Section 10.5, upon termination of any Service, Customer right to use such Service will automatically terminate immediately. Customer understands that any termination of Services may involve deletion of Customer Data associated therewith from Teal’s databases. Teal will not have any liability whatsoever to Customer for any suspension or termination, including for deletion of Customer Data. Should Customer have agreed to a Minimum Annual Commitment and at the time of termination have any shortfall between the amount Customer has actually paid and the amount of the Minimum Annual Commitment(s), then Customer will be invoiced and will within 30 days from the date of termination pay the difference between the minimum commitment(s) and the actual amount spent in the commitment period(s). All provisions of the Terms which by their nature should survive, shall survive termination of the Services, including without limitation, ownership provisions, warranty disclaimers and limitation of liability.
SECTION 10: MISCELLANEOUS
- Customer agrees, upon Teal’s reasonable request, to participate in the reasonable marketing activities of Teal related to the Service, including providing references to Teal’s potential customers. Customer further agrees that Teal may use Customer name(s) and logo(s) on Teal’s website and promotional materials, and that Teal may disclose the fact that Customer is a customer of Teal.
- The Terms shall be governed by the laws of the State of Washington, USA, without reference to conflicts of law principles.
- All claims and disputes arising under or relating to the Terms are to be settled in the state of Washington, King County, or another location mutually agreeable by the parties. Binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules using a single arbitrator will be used for any dispute in which the total amount under dispute is less than $3,000,000; for amounts equal to or over three million dollars, any litigation will be filed in the state or federal courts located in King County, Washington.
- Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- The Terms, and Customer rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by Customer without Teal’s written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Customer will promptly notify Teal in writing upon the execution of any definitive agreement or understanding that will provide any new third party, company, entity or investor with the right to acquire more than twenty five percent of Customer’s outstanding equity or voting interests. Nothing herein is to be construed to give any person or entity other than the parties or their permitted successors and assigns expressly provided in these Terms any legal or equitable right, remedy or claim under or with respect to this Agreement.
- Questions about these Terms can be directed toward firstname.lastname@example.org.
- If any portion of these Terms is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
- Where Teal requires that Customer provides an email address, Customer is responsible for providing Teal with Customer’s most current email address. In the event that the last email address Customer provided to Teal is not valid, or for any reason is not capable of delivering to Customer any notices required/permitted by the Terms, Teal’s dispatch of the email containing such notice will nonetheless constitute effective notice. Customer may give notice to Teal at the following address: 1700 Westlake Avenue North Ste. 700, Seattle, WA 98109 Such notice shall be deemed given when received by Teal by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
- The Terms are the final, complete, and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter. This agreement may be executed by clickthrough on the Website or by original, facsimile, or electronic signatures (complying with the U.S. Federal ESIGN Act of 2000, 15 U.S.C. 96) All notices may be effectuated electronically (e.g. via email) so long as confirmation of receipt is verified.
Mutual Non-Disclosure Agreement (NDA)
Each party has disclosed and/or may further disclose its Confidential Information (as defined below) to the other in connection with the Relationship (as defined below) pursuant to the terms and conditions of this Agreement. As used herein, the term “Discloser” shall refer to the Company whenever the context refers to the Company’s Confidential Information being disclosed to Counterparty, which is referred to as “Recipient” in that context. Conversely, the term “Discloser” shall refer to Counterparty whenever the context refers to Counterparty’s Confidential Information being disclosed to the Company, which is referred to as “Recipient” in that context.
The parties wish to explore a possible business opportunity of Counterparty potentially buying hardware, software, and/or services from Company, (the “Relationship”) in connection with which Discloser has disclosed and/or may further disclose its Confidential Information (as defined below) to Recipient. This Agreement is intended to allow the parties to continue to discuss and evaluate the Relationship while protecting Discloser’s Confidential Information (including Confidential Information previously disclosed to Recipient) against unauthorized use or disclosure.
In consideration of the premises and mutual covenants herein, the parties hereby agree as follows:
- Definition of Confidential Information. “Confidential Information” means information and physical material not generally known or available outside Discloser and information and physical material entrusted to Discloser in confidence by third parties. Confidential Information includes, without limitation: technical data, trade secrets, know-how, research, product or service ideas or plans, software codes and designs, algorithms, developments, inventions, patent applications, laboratory notebooks, processes, formulas, techniques, mask works, engineering designs and drawings, hardware configuration information, agreements with third parties, lists of, or information relating to, employees and consultants of the Discloser (including, but not limited to, the names, contact information, jobs, compensation, and expertise of such employees and consultants), lists of, or information relating to, suppliers and customers, price lists, pricing methodologies, cost data, market share data, marketing plans, licenses, contract information, business plans, financial forecasts, historical financial data, budgets or other business information disclosed by Discloser (whether by oral, written, graphic or machine-readable format), which Confidential Information is designated in writing to be confidential or proprietary, or if given orally, is confirmed in writing as having been disclosed as confidential or proprietary within a reasonable time (not to exceed thirty (30) days) after the oral disclosure, or which information would, under the circumstances, appear to a reasonable person to be confidential or proprietary.
- Nondisclosure of Confidential Information. Recipient shall not use any Confidential Information disclosed to it by Discloser for its own use or for any purpose other than to carry out discussions concerning, and the undertaking of, the Relationship. Recipient shall not disclose or permit disclosure of any Confidential Information of Discloser to third parties or to employees of Recipient, other than directors, officers, employees, consultants and agents of Recipient who are required to have the information in order to carry out the discussions regarding the Relationship. Recipient shall take reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of Discloser in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized under this Agreement to have any such information. Such measures shall include the degree of care that Recipient utilizes to protect its own Confidential Information of a similar nature. Recipient shall notify Discloser of any misuse, misappropriation or unauthorized disclosure of Confidential Information of Discloser which may come to Recipient’s attention.
- Exceptions. Notwithstanding the above, information disclosed hereunder shall not be considered “Confidential Information” as defined herein where Recipient can prove that such information:
(a) was in the public domain at the time it was disclosed or has entered the public domain through no fault of Recipient;
(b) was known to Recipient, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure;
(c) was independently developed by Recipient without any use of the Confidential Information, as demonstrated by files created at the time of such independent development;
(d) is disclosed generally to third parties by Discloser without restrictions similar to those contained in this Agreement;
(e) becomes known to Recipient, without restriction, from a source other than Discloser without breach of this Agreement by Recipient and otherwise not in violation of Discloser’s rights;
(f) is disclosed with the prior written approval of Discloser; or
(g) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that Recipient shall provide prompt notice of such court order or requirement to Discloser to enable Discloser to seek a protective order or otherwise prevent or restrict such disclosure.
- Return of Materials. Recipient shall, except as otherwise expressly authorized by Discloser, not make any copies or duplicates of any Confidential Information. Any materials or documents that have been furnished by Discloser to Recipient in connection with the Relationship shall be promptly returned by Recipient, accompanied by all copies of such documentation, within ten (10) days after (a) the Relationship has been rejected or concluded or (b) the written request of Discloser.
- No Rights Granted. Except for temporary limited duration use during any trial period, nothing in this Agreement shall be construed as granting any rights under any patent, copyright or other intellectual property right of Discloser, nor shall this Agreement grant Recipient any rights in or to Discloser’s Confidential Information other than the limited right to review such Confidential Information solely for the purpose of determining whether to enter into the Relationship.
- No Representations Made. Recipient acknowledges that neither Discloser, nor any of its representatives, in the course of providing the Confidential Information as contemplated hereunder, is making any representation or warranty (express or implied) as to the accuracy or completeness of any such information, and Recipient assumes full responsibility for all conclusions derived from such information.
- No Publicity. Neither party shall, without the prior consent of the other party, disclose to any other person the fact that Confidential Information of Discloser has been and/or may be disclosed under this Agreement, that discussions or negotiations are taking place between the parties.
- Notice of Compelled Disclosure. In the event that Recipient or any person to whom they or their representatives transmit or have transmitted Confidential Information become legally compelled (by oral questions, interrogatories, requests for information or documents, subpoenas, civil investigative demands or otherwise) to disclose any such Confidential Information, the Recipient shall provide the Discloser with prompt written notice so that the Discloser may seek a protective order or other appropriate remedy, or both, or waive compliance with the provisions of this Agreement. In the event that the Discloser is unable to obtain a protective order or other appropriate remedy, or if it so directs the Recipient, the Recipient shall furnish only that portion of the Confidential Information that the Recipient is advised by written opinion of its counsel is legally required to be furnished by it and shall exercise its reasonable best efforts to obtain reliable assurance that confidential treatment shall be accorded such Confidential Information.
- Term. The foregoing commitments of each party shall survive any termination of the Relationship between the parties, and shall continue for a period terminating three (3) years from the date on which Confidential Information is last disclosed under this Agreement.
- Independent Contractors. The parties 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.
- Remedies. Due to the unique nature of Discloser’s Confidential Information, monetary damages may be inadequate to compensate Discloser for any breach by Recipient of its covenants and agreements set forth in this Agreement. Accordingly, the parties each agree and acknowledge that any such violation or threatened violation may cause irreparable injury to Discloser and, in addition to any other remedies that may be available, in law, in equity or otherwise, Discloser shall be entitled to obtain injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by Recipient.
(a) Governing Law. The validity, interpretation, construction and performance of this Agreement, and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the state of Washington, without giving effect to principles of conflicts of law. Venue will be the state or federal courts in King County, Washington.
(b) Notices. Any notice, demand or request required or permitted to be given under this Agreement shall be in writing and shall be deemed sufficient when delivered personally or by overnight courier, with a copy also sent by email; or 48 hours after being deposited in the U.S. mail as certified or registered mail with postage prepaid, addressed to the party to be notified at such party’s address as set forth on the signature page, as subsequently modified by written notice, or if no address is specified on the signature page, at the most recent address set forth in the Company’s books and records.