This Beta Program Agreement (the “Agreement”) set forth the terms and conditions for participation in the beta program (the “Program”) offered by Nanotein, Inc. (“Nanotein”), including access to Nanotein’s proprietary products prior to commercial release (the “Beta Products”) along with accompanying documentation and/or other materials (collectively with the Beta Products, the “Nanotein Materials”) solely for internal research purposes. The individual indicating acceptance of this Agreement via click through, electronic signature, or other electronic means offered by Nanotein, or otherwise using the Nanotein Materials, hereby agrees, on his or her own behalf or, if applicable, on behalf of his or her company, to be bound by the terms and conditions of this Agreement as of such applicable date (the “Effective Date”). Such individual hereby represents and warrants that he or she has the authority to enter into this Agreement and, if applicable, to bind his or her company to this Agreement (collectively, such individual and, if applicable his or her company, “you”). If you do not agree with any provision of this Agreement, do not join the Program or use the Nanotein Materials.
1.1. Access to Beta Products. Subject to confirmation of eligibility pursuant to Section 1.2 below, once you have accepted this Agreement and have been accepted into the Program, Nanotein will send you limited quantities of the Beta Products and other Nanotein Materials and hereby authorizes you to use such Nanotein Materials while participating in the Program, in accordance with the terms and conditions set forth herein.
1.2. Program Eligibility. Nanotein may, but is not obligated to, use commercially reasonable efforts to verify that you are eligible to participate in the Program. If Nanotein is not able to verify that you are eligible to participate, Nanotein shall have the right, in its sole discretion, to elect not to ship you Nanotein Materials. In order to participate in the Program, you must: (i) be engaged in research and development in a field related to the Beta Products, (ii) be located in the Territory, and (iii) not be employed by a company or other organization or entity that offers or is developing products competitive with the Beta Products. As used herein, “Territory” means the United States of America and any additional territories approved in advance by Nanotein in writing.
1.3. Communication and Feedback. Nanotein will provide you with, and you hereby consent to receive, periodic communications regarding the Program and/or the Beta Products. You have the option to provide Feedback regarding any aspect of the Beta Products at any time. From time to time, Nanotein may request that you provide Feedback in a specified form, manner and/or frequency. You agree, at minimum, to respond to one (1) follow up survey regarding the Beta Products; provided, however, that in no event will you be obligated to share with Nanotein any information regarding your research that you consider to be confidential. All other Feedback is provided in your sole discretion. You hereby grant Nanotein a non-exclusive, perpetual, irrevocable, and sublicensable license to use and exploit such Feedback for any purpose, including to incorporate such Feedback within Nanotein’s products and services, without providing payment or any other consideration to you. Notwithstanding the foregoing, Nanotein will not publicly attribute to you any Feedback provided by you without your prior written consent in each instance. As used herein, “Feedback” means any feedback, suggestions or comments provided by you or on your behalf related to the Nanotein Materials, Program, or Nanotein’s business, including recommendations for improvements and commercialization.
1.4. Support; Documentation. Nanotein may voluntarily provide support services to you in order to help facilitate your use of the Beta Products. However, Nanotein is not obligated to provide any such support and may decline to do so in its sole discretion. The technical information, data, documentation or other materials provided by Nanotein as part of the Nanotein Materials are intended for persons with knowledge and technical skills sufficient to assess and apply their own informed judgment to the information therein. Nanotein does not warrant the accuracy or completeness of any such Nanotein Materials.
1.5. Revocation. Nanotein reserves the right to restrict or revoke your participation in all or a portion of the Program at any time without prior notice, including any access to or use of any Nanotein Materials. Nanotein will not be liable for any such restriction or revocation. Upon request by Nanotein, you will immediately return any Nanotein Materials to Nanotein in accordance with Nanotein’s reasonable instructions.
2.1. License to Nanotein Materials. Subject to the terms of this Agreement, Nanotein grants you, during the Term and in the Territory, a limited, revocable, non-exclusive, non-transferable, non-sublicensable license, under any Intellectual Property Rights Nanotein may have, to use the Nanotein Materials provided to you by Nanotein solely for your internal research purposes. As used herein, “Intellectual Property Rights” means all patent rights, copyrights, trademark rights, rights in trade secrets (if any), design rights, database rights, domain name rights, moral rights, and any other intellectual property or proprietary rights (registered or unregistered) throughout the world.
2.2. Restrictions. You will only access and use the Nanotein Materials as necessary to exercise rights granted in this Section 2. Unless you receive Nanotein’s prior written approval in each instance, you will not (directly or indirectly): (a) sell, distribute, rent, lease, lend, sublicense, or otherwise commercialize any of the Nanotein Materials; (b) use the Nanotein Materials for any therapeutic, diagnostic or other clinical purposes; (c) reverse engineer or reproduce any of the Nanotein Materials; (d) publicly release or disclose the results of your use, development, or evaluation of the Nanotein Materials; or (e) remove or alter any proprietary notices or labels on or in the Nanotein Materials.
2.3. Ownership. Except for the limited rights granted under this Section 2, Nanotein and/or its licensors retain, and will own, all rights (including Intellectual Property Rights), title, and interest in and to the Program, the Nanotein Materials (including any updates, modifications or enhancements thereto), and Nanotein’s Confidential Information (as defined below)(collectively, the “Nanotein IP”). There are no implied licenses and, except as expressly set forth in this Agreement, this Agreement will not be interpreted or construed as granting any license of any Intellectual Property Rights to you.
Your represent and warrant to Nanotein that: (a) your execution and delivery of this Agreement and performance of your obligations under this Agreement will not result in your breach of or default under any agreement or arrangement by which you are bound; (b) this Agreement is valid, binding and enforceable against you in accordance with its terms; and (c) you will comply with all applicable laws in connection with your performance and the exercise of your rights under this Agreement. Further, if an individual is accepting this Agreement on behalf of his or her company, you represent and warrant that (i) the person signing this Agreement on has been duly authorized and empowered to enter into this Agreement, (ii) the company has full corporate power and authority to execute, deliver and perform its obligations under this Agreement, and (iii) the company is validly existing and in good standing under the laws of the place of its establishment or incorporation, if applicable.
4.1. Definition. “Confidential Information” means all information disclosed (whether in oral, written, or other tangible or intangible form) by Nanotein to you (or otherwise learned by you) concerning or related to this Agreement or Nanotein (whether before, on or after the date upon which this Agreement was accepted) that you know or should know, given the facts and circumstances surrounding the disclosure of the information, is confidential information of Nanotein. Confidential Information includes, but is not limited to, all Nanotein Materials, including any information developed or learned by you regarding the Nanotein Materials as a result of your access to and/or use of such Nanotein Materials. Confidential Information will not include information that: (a) is in or enters the public domain without breach of this Agreement by you or any breach of a confidentiality obligation by a third party; (b) you can reasonably demonstrate was in your possession prior to first receiving it from, or on behalf of, Nanotein; (c) you can demonstrate was developed by you independently, and without use of or reference to, the Confidential Information; or (d) you receive from a third party without breach of a nondisclosure obligation or restriction on disclosure.
4.2. Confidentiality Obligations. You will maintain in confidence the Confidential Information during the Term and thereafter and will not disclose Confidential Information to any third parties other than Permitted Disclosees (as defined below) without Nanotein’s prior written consent. You will use the same degree of care in protecting the Confidential Information as you use to protect your own confidential and proprietary information from unauthorized use or disclosure, but in no event less than reasonable care. You will use Confidential Information solely for the purposes specified in this Agreement. In addition, you will not reproduce Confidential Information in any form except as required for such purposes and will only disclose Confidential Information to your personnel, directors, officers, employees and/or legal and professional advisors who (a) have a need to know such Confidential Information in order for you to perform your duties or exercise your rights under this Agreement, and (b) are bound by confidentiality obligations no less restrictive than the use and non-disclosure obligations contained in this Section 4 prior to receiving any Confidential Information (collectively, “Permitted Disclosees”). You will be responsible for breaches of this Section 4 by your Permitted Disclosees. In addition, you may disclose Confidential Information that is required to be disclosed by law or by a subpoena or order issued by a court of competent jurisdiction (“Order”) but solely on the conditions that you: (i) give Nanotein written notice of the Order within 48 business hours after receiving the Order (if legally permitted); and (ii) cooperate fully with Nanotein before disclosure to provide Nanotein with the opportunity to interpose any objections it may have to the disclosure of the information required by the Order and seek a protective order or other appropriate Upon termination of this Agreement, or at any time upon Nanotein’s request, you will promptly return or, if permitted by Nanotein, delete all copies of Confidential Information that are in your possession.
4.3. Remedies. You acknowledge that each obligation in this Section 4 is necessary and reasonable in order to protect the Confidential Information, and that monetary damages would be inadequate to compensate Nanotein for any breach of this Section 4. Accordingly, you acknowledge and agree that: (a) any such violation or threatened violation will cause irreparable injury to Nanotein; and (b) in addition to any other remedies that may be available to Nanotein at law, in equity or otherwise, Nanotein will be entitled to seek injunctive relief against any threatened breach of this Section4 or the continuation of any such breach, from any court of competent jurisdiction, without being required to show any actual damage or irreparable harm, prove the inadequacy of its legal remedies, or post any bond or other
4.4. Publicity. You will not issue press releases relating to Nanotein or this Agreement, or use any name, trademark, service mark, logo or commercial symbol of Nanotein or its affiliates for any purposes, including in any brochures, advertisements, client lists or other promotional materials without prior written authorization by Nanotein in each instance.
You hereby acknowledge and agree that the Nanotein Materials provided to you may be designated as beta, development, or pre-release versions, that the Nanotein Materials have not been fully tested, and that the Nanotein Materials are not intended for diagnostic, therapeutic or other clinical use. THE NANOTEIN MATERIALS ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND. NANOTEIN AND ITS LICENSORS DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE NANOTEIN MATERIALS, WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL (A) WARRANTIES OF MERCHANTABILITY, (B) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT NANOTEIN OR ITS LICENSORS KNOW, HAVE REASON TO KNOW, HAVE BEEN ADVISED OR ARE OTHERWISE AWARE OF ANY SUCH PURPOSE), AND (C) WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE. YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE NOT RELIED ON ANY WARRANTIES REGARDING THE NANOTEIN MATERIALS, THAT YOU HAVE READ AND UNDERSTOOD ALL DOCUMENTATION PROVIDED WITH THE NANOTEIN MATERIALS, AND THAT YOU ARE SOLELY RESPONSIBLE FOR DETERMINING IF THE NANOTEIN MATERIALS ARE SUITABLE FOR YOUR PARTICULAR PURPOSE AND APPLICATION. YOU HEREBY ASSUME ALL RISK ASSOCIATED WITH USE OF THE NANOTEIN MATERIALS TO THE FULLEST EXTENT PERMITTED BY LAW.
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, NANOTEIN WILL NOT BE LIABLE (WHETHER IN CONTRACT, AT LAW OR IN TORT) UNDER ANY CIRCUMSTANCES FOR ANY INDIRECT, CONSEQUENTIAL (INCLUDING LOST OPPORTUNITIES OR PROFITS), OR PUNITIVE DAMAGES, EVEN IF NANOTEIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE LIABILITY OF NANOTEIN ARISING FROM OR RELATING TO THE AGREEMENT, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), WILL NOT EXCEED five hundred DOLLARS (USD $500.00).
7.1. Term. The term of this Agreement begins on the Effective Date and will continue until terminated in accordance with Section 7.2 (the “Term”).
7.2. Termination. Either party may terminate this Agreement, with or without cause, immediately upon notice to the other party.
7.3. Effect of Termination. Upon any termination of this Agreement, (a) you must immediately discontinue using and return the Beta Products in accordance with Nanotein’s instructions, and delete any copies of Confidential Information in your possession or control; (b) all obligations or liabilities that accrued prior to the effective date of termination and all remedies for breach of this Agreement will survive; and (c) except as specified in 8.4, all other rights, obligations, and licenses of the parties under this Agreement will terminate.
7.4. Survival. The following terms will survive any termination of this Agreement: Sections 1.3, 2.2, 2.3, 3-6, 7.3, and 8.
8.1. Export Control. You will fully comply with all applicable U.S. export control laws, including ensuring that (a) no products or technical data received from Nanotein are exported or re-exported to any country, person or entity in violation of any U.S. sanctions or export controls (including to sanctioned or restricted entities); and/or (b) that anything received from Nanotein is not used or re-exported for a prohibited use under U.S. export control laws. Further, you represent and warrant that you are not located in a country that is subject to U.S. Government sanctions or that has been designated by the U.S. Government as a “terrorist supporting” country and that you have not been identified as a “Specially Designated National” by the Office of Foreign Assets Control, have not been placed on the U.S. Commerce Department’s Denied Persons List, and have not been listed on any other U.S. Government or other applicable sanctions lists.
8.2. Notices. Notices under this Agreement are sufficient if given in writing and in English to (i) in Nanotein’s case, firstname.lastname@example.org, or (ii) in your case, the email address provided by you when you registered for the Program. Notice will be treated as given on receipt, as verified by written or automated receipt or by electronic log (as applicable). A party may change its notice information by giving notice in accordance with this Section.
8.3. Assignment. You will not assign, including by operation of law, contract or otherwise, any part or all of this Agreement without Nanotein’s prior written consent. For the avoidance of doubt, the consummation of any change of control transaction (e.g., merger or acquisition of your business or any portion of your business to which this Agreement relates) will be deemed an assignment requiring Nanotein’s prior written consent under this Section 8.3. Any such attempted assignment without Nanotein’s prior written consent will be void. Subject to the foregoing limitation, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
8.4. Choice of Law; Venue. This Agreement will be governed by the laws of the State of California, without reference to rules governing choice of laws or the U.N. Convention on Contracts for the International Sale of Goods. You hereby irrevocably consent to and waive any objection to the exclusive jurisdiction and venue of the federal and state courts located at Santa Clara County, California with respect to any claims, suits or proceedings arising out of or in connection with this agreement or the transactions contemplated hereby.
8.5. Amendments and Waivers. No modification, addition or deletion under this Agreement will be binding on a party unless made in an agreement clearly understood by the parties to be a modification or waiver, and signed by a duly authorized representative of each party. No failure or delay (in whole or in part) on the part of a party to exercise any right or remedy hereunder will operate as a waiver thereof or affect any other right or remedy. All rights and remedies hereunder are cumulative and are not exclusive of any other rights or remedies provided hereunder or by law. The waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default.
8.6. Severability; Construction; Remedies. If any provision of this Agreement is held invalid by a court with jurisdiction over the parties to this Agreement, such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remainder of this Agreement will remain in full force and effect. When used in this Agreement, the words “including” or “include” will be interpreted to mean “without limitation.” Except as otherwise provided, the rights and remedies of the parties under this Agreement are cumulative, and either party may enforce any of its rights or remedies under this Agreement or other rights and remedies available to it at law or in equity. This Agreement will be fairly interpreted and construed in accordance with its terms and without strict interpretation or construction in favor of or against either party.
8.7. Independent Contractors. You and Nanotein are independent contractors and this Agreement will not be construed as creating a partnership, joint venture or agency relationship.
8.8 Entire Agreement; Counterparts. This Agreement, including any exhibits and addenda attached hereto, constitutes the complete and final agreement of the parties pertaining to the matters addressed herein and supersedes the parties’ prior agreements, understandings and discussions relating the subject matter hereto, except that any non-disclosure, confidentiality or other similar agreement entered into by the parties will continue in effect for the scope and subject matter thereof. This Agreement may be executed by facsimile, electronic signature and in counterparts, each of which (including signature pages) will be deemed an original, but all of which together will constitute one and the same instrument.