Confidentiality Agreement with Distributor Dealer or Remarketer

[From: Free Document Downloads at TheSmallBusinessOwnersManual.com] 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. [Find, then fill-in, or delete text in brackets like this: “[NNN]” If there are dates in this document, they will automatically change to today’s date. For additional assistance mailto:LegalHelp@TheSmallBusinessOwnersManual.com or call 888/872-6601) Otherwise the following text should be reviewed and edited as needed: [COMPANY LETTERHEAD] Program License Agreement CONFIDENTIALITY AGREEMENT WITH PROSPECTIVE OEM/REMARKETER Date: February 7, 2008 Authorized Recipient: [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]: WITNESSETH: WHEREAS, Owner is engaged in the development of proprietary computer software products; 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 follows: 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, nonexcluusive 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 by Owner. 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 Owner. 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. Miscellaneous. 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 forth below. For :[Company] For :Recipient: (Please sign above and print name and title here) (Please sign above and print name and title here) Date: February 7, 2008 Date: February 7, 2008