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This document should be used as a confidentiality agreement
with prospective distributors, dealers, or remarketers.
The following text of this document should be reviewed and
edited to fit your purposes.
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Program License Agreement
CONFIDENTIALITY AGREEMENT WITH PROSPECTIVE OEM/REMARKETER
Date: August 20, 2012
[NAME AND ADDRESS]
THIS AGREEMENT, made and entered into this [DATE] by and between [COMPANY
NAME] (hereinafter "Owner"), a [ORGANIZATION’S DESCRIPTION] having a
principal place of business at [COMPANY ADDRESS], and [REMARKETER/
DISTRIBUTOR/ DEALER NAME], (hereinafter "Recipient"), a [ORGANIZATION’S
DESCRIPTION] having a principal place of business at [REMARKETER/
DISTRIBUTOR/ DEALER ADDRESS]:
WHEREAS, Owner is engaged in the development of proprietary computer
WHEREAS, Recipient is engaged in the business of marketing computer systems
in the [VERTICAL MARKET];
WHEREAS, Owner and Recipient desire to commence negotiations respecting a
business relationship under which Recipient would act as a system integrator with
respect to certain proprietary computer software developed by Owner and certain
computer hardware and computer software products manufactured and developed
by third parties and would offer, for the purpose of marketing, integrated systems
to end-users in the [VERTICAL MARKET] on an OEM basis;
WHEREAS, the parties agree that in order to commence such negotiations, it will
be necessary for Owner to disclose to Recipient certain confidential proprietary
software (the "Program") and related materials, including system and end-user
documentation (the Program and related materials collectively being referred to as
"Proprietary Information") of Owner; and
WHEREAS, the parties further agree that the execution of this Agreement is
necessary in order to protect Owner's Proprietary Information;
NOW, THEREFORE, in consideration of the premises hereof, and the mutual
promises, the parties hereto, intending to be legally bound, hereby agree as
1. Scope of Agreement. This Agreement shall apply to all Proprietary
Information disclosed by and on behalf of Owner to Recipient and its
personnel during the term hereof.
2. Limited Use. Recipient is granted a personal, non-assignable, non-
exclusive, fully revocable license to install the Program delivered to
Recipient on Recipient's [COMPUTER’S MAKE, MODEL, AND
SERIAL NUMBER] (the "Designated Computer") and to use the Program
and the Proprietary Information furnished to Recipient during the term of
this Agreement for the sole purpose of evaluating the performance of the
Program in order to determine whether Recipient wishes to proceed with
negotiation for appointment as a remarketer of the Program.
3. Title. Recipient acknowledges that the Proprietary Information includes
commercially valuable, substantial trade secrets of Owner, the design and
development of which reflect the effort of skilled development experts and
required the investment of considerable amounts of time and money.
Recipient further acknowledges that Owner has treated such Proprietary
Information as confidential and secret information that Owner entrusts to
Recipient in confidence to use only for the purpose of evaluation whether
Recipient wishes to proceed with negotiations with Owner to be appointed
as a remarketer of the Program. Recipient also acknowledges that Owner
claims and reserves all rights and benefits afforded under U.S. and
international copyright law in all Proprietary Information furnished to
Recipient as unpublished works. This Agreement does not affect any
transfer of title in or to the Program, any Proprietary Information of
Owner, or any other materials produced or furnished by Owner hereunder.
Recipient acknowledges that it is granted only a limited right of use of the
Program and such Proprietary Information as set forth in Section 2 hereof.
4. Protection of Proprietary Information
4.1 Obligations of Confidentiality; Limitations of Use. Recipient
shall neither disclose nor disseminate the Proprietary Information
of Owner furnished to Recipient to (1) any other person, firm, or
organization or (2) any employee or agent of Recipient who does
not need to obtain access thereto for the sole purpose of permitting
Recipient to evaluate the Program. Under no circumstances may
Recipient modify, decompile, or reverse assemble any object code
contained within the Program. Unless specifically authorized in
writing by Owner, Recipient shall not copy or otherwise reproduce
the Program or any other materials containing any Proprietary
Information of Owner. Under no circumstances may Recipient
disclose or disseminate the Program or any Proprietary Information
to any competitor of Owner. Recipient shall devote its best efforts
to ensure that all persons afforded access to the Program or any
materials containing Proprietary Information refrain from any such
unauthorized use, copying, or disclosure.
4.2 Legends. Recipient shall reproduce and include in all copies of
the Program or other materials containing Proprietary Information
prepared by Recipient the copyright notices and proprietary
legends of Owner as they appear therein as furnished to Recipient
4.3 Secure Handling. Recipient shall require that all copies of the
Program and other materials containing Proprietary Information be
kept in separate, secured, and locked drawers or cabinets, which
shall be maintained in a manner so as to reasonably preclude
unauthorized persons from having access thereto. Recipient shall
permit such drawers or cabinets to be open to access only as
necessary for Recipient's use thereof in accordance with the terms
of this Agreement.
4.4 Obligations of Parties Having Access. Recipient shall limit use
of and access to the Program and all other materials containing
Proprietary Information to such Recipient personnel as are directly
involved with the evaluation thereof. Recipient shall use its best
efforts to disclose such materials only to Recipient personnel
whom Recipient has no reason to believe are untrustworthy or may
violate the provisions of this Agreement or the provisions of any
Owner Restrictive Disclosure Agreement executed as referred to in
Section 4.5 hereof.
4.5 Listing of Personnel. Recipient shall, as requested by Owner,
(1) give Owner written notice of all Recipient personnel who are
accorded access to the Program or any other materials containing
Proprietary Information and (2) obtain and retain for its file from
all such personnel at least two signed copies of an Owner
Restrictive Disclosure Agreement executed substantially in the
form of Exhibit A hereto [omitted].
4.6 Assistance of Recipient. At the request and expense of Owner,
Recipient shall use reasonable efforts to assist Owner in
identifying any use, copying, or disclosure of the Program or any
other materials containing Proprietary Information by any current
or former personnel of Recipient in any manner that is contrary to
the provisions of this Agreement, so long as Owner shall have
provided Recipient with information supporting the reasonable
suspicion that such actions may have occurred.
4.7 Survival of Confidentiality Obligations. Recipient's obligations
respecting the confidentiality of the Program and other materials
containing Proprietary Information shall survive termination of this
Agreement and shall remain in effect for as long as Recipient
continues to possess or control the Program or any Proprietary
Information furnished by Recipient.
5. Term and Termination. This Agreement shall be in effect for a period
of one (1) year from the date hereof unless sooner terminated by Owner, in
its discretion, by written notice to Recipient. Upon receipt of such notice
of termination, Recipient shall, as requested by Owner, return or destroy
the Program and all other materials containing Proprietary Information.
Recipient shall, upon Owner's request, certify to Owner that it has not
retained any copies of any materials containing Proprietary Information of
6. Injunctive Relief. In recognition of the fact that the unauthorized
disclosure, copying, or use of the Program or any materials containing
Proprietary Information could cause irreparable harm and significant
injury to Owner, which may be difficult to measure with certainty or to
compensate through damages, Recipient agrees that any court of
competent jurisdiction shall grant such injunctive or other equitable relief
as Owner may seek to enforce the provisions of this Agreement.
7.1 No Agency. The parties hereto are independent contractors,
and nothing herein shall be construed to create an agency, joint
venture, partnership, or other form of business association between
the parties hereto.
7.2 Multiple Counterparts. This Agreement may be executed in
several counterparts, all of which taken together shall constitute
one single agreement between the parties.
7.3 Section Headings; Exhibits. The section and subsection
headings used herein are for reference and convenience only and
shall not enter into the interpretation hereof. The exhibit referred to
herein and attached [omitted] is incorporated herein to the same
extent as if set forth in full herein.
7.4 No Waiver. No delay or omission by either party hereto to
exercise any right or power occurring upon any noncompliance or
default by the other party with respect to any of the terms of this
Agreement shall impair any such right or power or be construed to
be a waiver thereof. A waiver by either of the parties hereto of any
of the covenants, conditions, or agreements to be observed by the
other shall not be construed to be a waiver of any succeeding
breach thereof or of any covenant, condition, or agreement herein
contained. Unless stated otherwise, all remedies provided for in
this Agreement shall be cumulative and in addition to, and not in
lieu of, any other remedies available to either party at law, in
equity, or otherwise.
7.5 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of [STATE].
7.6 Entire Agreement. This Agreement constitutes the entire
Agreement between the parties, and there are no understandings or
agreements relative hereto other than those that are expressed
herein. No change, waiver, or discharge hereof shall be valid
unless in writing and executed by the party against whom such
change, waiver, or discharge is sought to be enforced.
7.7 No Assignment. Neither party shall assign or transfer this
Agreement without the prior written consent of the other party, and
any attempt to do so shall be void and of no force and effect.
IN WITNESS WHEREOF, the parties have caused this agreement to be executed as set
For :[Company] For :Recipient:
(Please sign above and print name and (Please sign above and print name and
title here) title here)
Date: August 20, 2012 Date: August 20, 2012