Waiver, NDA, and IP Assignment for App Testers
Date of last revision: May 1, 2019
This agreement for non-disclosure of information, waiver of claims, and assignment of intellectual property (“Agreement”) is effective on the date you downloaded the app (“Effective Date”), between the person participating in the testing of the web application (“App Tester”) and Huck Adventures, Inc., a Delaware company, (“Huck”) (individually, a “Party” and collectively, the “Parties”), to assure the protection and preservation of certain information to be disclosed or made available by the Parties to each other for the purposes of testing Huck’s new web application (“Test”); and
Under this Agreement, Huck may disclose to the App Tester certain information that it considers to be its confidential and/or proprietary information. In consideration of the disclosure of confidential and/or proprietary information referred to as “Proprietary Information,” and the mutual covenants of the Parties, it is hereby agreed as follows:
Section A. Terms of Information Exchange
- Proprietary Information. “Proprietary Information” shall mean all confidential and proprietary information or data furnished by Huck (the “Disclosing Party”) to the App Tester (the “Receiving Party”) as a consequence of or through the exchange of information between the Parties as described in this Agreement. Specifically, the Proprietary Information includes, but is not limited to, technical and business information relating to Huck’s web application, patentable ideas, copyrights and/or trade secrets; existing and/or contemplated products and services; software; schematics; any other information provided as part of the test, regardless of whether such information is designated as “confidential” at the time of its disclosure.
- Exceptions. The term “Proprietary Information” shall not include information that: (a) was or becomes generally available to the public other than as a result of a disclosure by the Disclosing Party and its officers, affiliates, associates, partners, employees, agents or advisors; (b) was or becomes available to a Party on a non-confidential basis from a source other than the Disclosing Party or its officers, affiliates, associates, partners, employees, agents or advisors; (c) was within a Party’s possession prior to its being furnished to that Party by or on behalf of the App Tester, provided that the source of such information was not bound by a confidentiality agreement with, or other obligation of secrecy to, the Disclosing Party in respect thereof; or (d) is information the Disclosing Party has authorized the disclosure of.
- Use. The Parties agree to use the Proprietary Information received from each other only for the limited purposes of the Test. The Receiving Party shall not disclose any Proprietary Information to any person or entity without the express, written consent of the CEO of Huck Adventures, Inc.
- Care. The Receiving Party will exercise reasonable care in protecting and preventing the disclosure of the Disclosing Party’s Proprietary Information.
- No License or Transfer of Rights. All Proprietary Information, unless otherwise specified in writing, shall remain the property of the Disclosing Party. Nothing in this Agreement shall be construed to convey to the Receiving Party any right, title, interest, patent, or copyright in any of the Disclosing Party’s Proprietary Information, or any license to use, sell, disseminate, copy, or alter that information.
- Return and Destruction of Materials. The Receiving Party agrees it will return all materials provided to it in relation to the Test. All copies, paper or electronic, provided to Receiving Party will be destroyed to an unrecoverable state, whether contained on a physical drive, in e-mail, or stored on the internet or remote server as soon as possible after the Test have ceased, not to exceed forty-eight hours.
- Indemnification. The Receiving Party shall indemnify, defend, and hold harmless the Disclosing Party from and against any and all losses, liabilities, claims, actions, lawsuits, demands, damages, costs, money judgments, and expenses (including reasonable attorneys’ fees) arising out of the Receiving Party’s breach of this Agreement.
- Termination. This non-disclosure provisions of this Agreement shall terminate immediately when the web application becomes accessible by the general public. Until that time, the Parties will adhere to all restrictions set forth in this Agreement, including those restricting use and dissemination. The provisions in Section B survive termination of the non-disclosure provisions and do not have a termination date.
Section B. Intellectual Property Assignment
- Inventions, Definition. Inventions (“Inventions”) means any form of intellectual property or creation whatsoever, such as inventions, ideas, and discoveries, including without limitation, patent, copyright, trademark rights whether acquired by common law or registration at the federal or state level, trade secret and other intellectual property rights, including developments, mask works, moral rights, concepts, designs, improvements, and other original works of authorship, and derivative works, whether or not patentable, copyrightable or otherwise legally protectable. App Tester also understands this includes, but is not limited to any new product, machine, system, formulation, or product improvement.
- Consideration. App Tester acknowledges that the right to use Huck’s web application at no cost, prior to the general public, is sufficient consideration for entering into this Agreement, and hereby waives any legal claims of lack of consideration regarding this Agreement and Intellectual Property Assignment specifically.
- Assignment. App Tester hereby irrevocably assigns and grants to the Company all right, title, and interest to all Inventions rights developed during the scope of App Tester’s work or involvement in the Test that relate in any way to the Company’s actual or proposed businesses, products, and services. App Tester hereby waives to the Company or its designee all claims, of any nature whatsoever, that App Tester now has or may have for infringement of all of these Inventions. App Tester further acknowledges that all Inventions that are made by App Tester or with others developed during the work that relate in any way to the Company’s actual or proposed businesses, products, and services and during the period of App Tester’s work are “works made for hire” (to the greatest extent permitted by applicable law) and are compensated by the consideration App Tester received from the Company, as set forth herein.
- Waiver. App Tester hereby forever waives all rights or claims of ownership to any Inventions related to the Company’s web application or any part of the Test. Further, App Tester here waives and releases Company and its legal representatives, executors, administrators, successors, agents, and assigns (“Released Parties”) from all claims, controversies, demands, obligations, debts, damages, and liabilities of any kind or nature whatsoever, known or unknown, arising out of the Test.
Section C. Miscellaneous Provisions
- Notices. Any notices or communication required under this Agreement shall be provided to the other Party in writing.
- Counterparts. This Agreement may be executed via electronic signature and in two or more counterparts, each of which shall be considered an original, but all of which together shall constitute the same instrument. The Parties acknowledge and agree to accept and be bound by facsimile transmitted copies of this Agreement and its counterparts.
- Assignees of Successors. This Agreement shall be binding upon the Parties hereto and their respective assigns and successors. The Parties may assign this Agreement in the event of a merger, acquisition, or sale of substantially all of the assets of its business.
- Modification. This Agreement shall not be amended, modified, or replaced except by a written instrument executed by the Parties.
- Legal Disclosures. If required by valid law or court order, a Party may disclose information under this Agreement to a third party, provided that disclosure is limited to what is required.
- Governing Law. This Agreement shall be governed in all respects by the laws of the State of Colorado. The venue for any dispute shall be Colorado. The Parties hereby agree to waive the following defenses to any action brought in Colorado: forum non conveniens or lack of personal jurisdiction.
- Remedies. The Parties agree that in the case of the Receiving Party’s breach of this Agreement, the Parties would be irreparably harmed, would have no adequate remedy at law, and would be entitled to injunctive and other equitable relief.
- Severability. If any provision of this Agreement is invalid or unenforceable, whether by the decision of an arbitrator or court, by passage of a new law, or otherwise, the remainder of this Agreement will remain in effort and be construed and enforced consistent with the purpose of this Agreement.
- Waiver. If one Party waives any term or provision of this Agreement at any time, that waiver will only be effective for the specific instance and specific purpose for which the waiver was given. If either Party fails to exercise or delays exercising any of its rights or remedies under this Agreement, that Party retains the right to enforce that term or provision at a later time.
Section E. Signature Page
By clicking accept on the login screen, both Parties acknowledge that they have read and agree to be bound by the foregoing Agreement.