Software Beta Tester Non Disclosure Agreement (NDA)
This agreement (“Agreement”) is made and entered into on the date that you confirm your acceptance to these terms (“Effective Date”), by and between StickyLock Holding B.V., StickyLock Studios B.V. and StickyLock Games B.V. (hereinafter collectively referred to as ‘STICKYLOCK’) located at Zekeringstraat 17A 1014BM Amsterdam, The Netherlands (“STICKYLOCK”) and you (“Beta Tester”); and the company and Beta Tester are collectively, the “Parties” or each separately, a “Party”).
WHEREAS, (i) this Agreement is being entered into by STICKYLOCK and Beta Tester for the purposes of disclosure of certain assets to enable the Beta Tester to participate in Beta testing environments for video games developed by STICKYLOCK and other related product testing (“Purpose of Disclosure”); and (ii) in connection with the Purpose of Disclosure, STICKYLOCK may disclose to Beta Tester certain Confidential Information, as defined below.
BY AGREEING TO TAKE PART IN ANY BETA TESTING, YOU HEREBY ACKNOWLEDGE, ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS NON DISCLOSURE AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the rights and obligations set forth herein, the Parties hereby agree as follows:
1. Definition of Confidential Information.
“Confidential Information” means the following items: (a) the contents of this Agreement and the fact that the Parties may negotiate, are negotiating, or have negotiated with each other with respect to the Purpose of Disclosure or this Agreement; and (b) any and all information from StickyLock or its Representatives, as defined below, or its affiliates or subsidiaries or any of their respective Representatives, to Beta Tester or its Representatives, in any form, whether or not reduced to writing or other tangible form, including, but not limited to, mask works, ideas, samples, media, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, algorithms, software programs, software source documents, and formulae related to the current, future, and proposed products and services of StickyLock, including, but not limited to, information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, sales and merchandising, marketing plans, information StickyLock provides regarding third parties, and any other information of a similar nature, including, but not limited to, any other trade secret or nonpublic business information, patents or copyrights pending, and patent and copyright applications pending and all analyses, compilations, studies, abstracts, summaries, interpretations and other materials prepared by Beta Tester or its Representatives or on their respective behalves which contain, are based on, or otherwise reflect, in whole or in part, any of the foregoing. Information disclosed by StickyLock and/or its representatives to Beta Tester or its Representatives need not be identified as “confidential” in order to be deemed Confidential Information hereunder. For purposes hereof, “Representatives” means any person, its directors, officers, employees, agents and advisors (including, without limitation, financial advisors, banks, attorneys, accountants and their respective Representatives) and “Person” shall be broadly interpreted to include, without limitation, any corporation, Beta Tester, partnership, other entity or Beta Tester.
2. Tester’s Obligation.
Beta Tester and its Representatives, and its affiliates and subsidiaries and their respective Representatives, shall at all times: (a) Keep all of the Confidential Information strictly confidential and prevent any unauthorised access to, reproduction of, disclosure of, or use of the Confidential Information; (b) Disclose the Confidential Information only to those Representatives of Beta Tester who need to know such information in order to carry out the Purpose of Disclosure and who are made aware of the confidentiality provisions contained herein and agree to be bound by the provisions hereof to the same extent as if it were a party hereto. In the event the employment or appointment of any Representative is terminated, Beta Tester shall recover any Confidential Information in such Representative’s custody or control; (c) Not remove any copyright notice, trademark notice, and/or other proprietary legend or indication of confidentiality set forth on or contained in any of the Confidential Information; (d) Not copy any Confidential Information, except as necessary to effect the Purpose of the Disclosure unless otherwise approved in writing in advance by StickyLock, and any copies made by Beta Tester shall be identified as the property of StickyLock and marked “confidential,” “proprietary” or similar; (e) Not use any of the Confidential Information other than for the Purpose of the Disclosure and then only in strict compliance with the provisions hereof; (f) To the maximum extent permitted by applicable law, refrain from disassembling or decompiling software, peeling semiconductor components, or otherwise attempting to reverse engineer the design and function of any of the Confidential Information or any portion thereof, or determine or attempt to determine any source code, algorithms, methods or techniques embodied in any Confidential Information or any portion thereof by any means, including, without limitation, the requirements for compatibility with the system(s) and compatible software; and (g) Take the same degree of care that Beta Tester uses to protect its own confidential and proprietary information of similar nature and importance (but in no event less than reasonable care) to protect the confidentiality and avoid the unauthorised use, disclosure, publication or dissemination of the Confidential Information.
3. Representative Responsibility.
Beta Tester shall be responsible for any breach of this Agreement by any of its Representatives or its affiliates or subsidiaries or their respective Representatives.
4. Exclusion from the Confidential Information.
Any confidentiality obligation of Beta Tester under this Agreement shall not apply to any information that: (a) is in the public domain at the time of disclosure by STICKYLOCK; (b) becomes available in the public domain after the time of disclosure by STICKYLOCK through no fault of Beta Tester or any of its Representatives; (c) Beta Tester can demonstrate, with documentary evidence, is developed independently, without any reference to the Confidential Information, by officers, employees or agents of Beta Tester; or (d) is rightfully in Beta Tester’s possession from a third party that shall not be obliged to keep it secret; provided, however, that Beta Tester shall document, or otherwise prove, the facts set forth in subsections (a), (b), (c), and (d) of this Section.
5. Ownership of the Confidential Information.
Beta Tester understands and agrees that all right, title, and interest in and to the Confidential Information shall be, and shall remain, vested in STICKYLOCK. Nothing in this Agreement (other than the right to review and evaluate the Confidential Information, solely for the Purpose of Disclosure), shall grant to Beta Tester or any of its Representatives any right, interest, option or licence, of any kind, with respect to the Confidential Information or any portion thereof.
6. Disclaimer of Warranty
Tester understands and acknowledges that the Software is a test product and its accuracy and reliability
are not guaranteed. Owing to its experimental nature, Tester is advised not to rely exclusively on the
Software for any reason. Tester waives any and all claims it may have against the Company arising out of
the performance or nonperformance of the Software.
THE SOFTWARE IS PROVIDED AS IS, AND THE COMPANY DISCLAIMS ANY AND ALL
REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH
RESPECT TO IT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE
7. Limitation of Liability
The Company shall not be responsible for any loss or damage to Tester or any third parties caused by
the Software or by the Company’s performance of this Agreement.
Beta Tester agrees to indemnify, defend, and hold STICKYLOCK, its parent and affiliated companies, Representatives, affiliates, and subsidiaries and their respective Representatives, and its and their successors and assigns harmless from and against all claims, losses, liabilities, damages, expenses, costs, fines and penalties (including, without limitation, reasonable fees and costs for attorneys, expert witnesses, and court costs), which, directly or indirectly, result from or are in any way related to an actual breach or threatened breach of this Agreement by Beta Tester or any of its Representatives or its affiliates and subsidiaries or their respective Representatives. Such indemnification shall be in addition to any injunctive relief or other remedies to which STICKYLOCK may be entitled at law or in equity.
THE COMPANY SHALL NOT BE LIABLE FOR ANY DIRECT INDIRECT, SPECIAL, INCIDENTAL OR
CONSQUENTIAL DAMAGE, WHETHER BASED ON CONTRACT OR TORT OR ANY OTHER LEGAL
THEORY, ARISING OUT OF ANY USE OF THE SOFTWARE OR ANY PERFORMANCE OF THIS
8. Return of Confidential Information.
Beta Tester agrees that it shall promptly upon STICKYLOCK’s request: (a) return any and all of the tangible media in or on which the Confidential Information is described or recorded which is in its possession or in the possession of its Representatives, affiliates, or subsidiaries or their respective Representatives; and (b) destroy all copies of any and all analyses, compilations, studies, abstracts, summaries, interpretations and other materials prepared by Beta Tester or its Representatives or on their respective behalves, which contain, are based on, or otherwise reflect, in whole or in part, any of the Confidential Information and deliver to STICKYLOCK an officer’s certificate of Beta Tester certifying such destruction.
9. No Announcements.
Each of the Parties agrees that it will not, and will direct its Representatives not to, disclose to any person: (a) either the fact that discussions or negotiations have taken place, are taking place, or will take place concerning the Purpose of Disclosure or this Agreement; or (b) any of the terms, conditions, or other facts with respect to the Purpose of Disclosure or this Agreement, including the status thereof.
10. General Provisions.
10.a. Relationship of the Parties. Nothing contained in this Agreement, and no action taken by any Party to this Agreement, will be deemed to: (i) create any partnership, joint venture, association, or syndicate among or between any of the Parties; or (ii) confer on any Party any express or implied right, power, or authority to enter into any agreement or commitment, express or implied, or to incur any obligation or liability on behalf of any other Party.
10.b. Final Agreement. This Agreement sets forth the entire and final agreement and understanding of the Parties with respect to the subject matter hereof. Any and all prior agreements or understandings, whether written or oral, with respect to the subject matter of this Agreement, are hereby terminated.
10.c. Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation, in any jurisdiction, shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If the final judgment of a court of competent jurisdiction declares that any term or provision hereof is invalid or unenforceable, the Parties agree that the court making the determination of said invalidity or unenforceability shall have the power to limit the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision. This Agreement shall be enforceable as so modified.
10.d. Amendments and Waivers. No amendment or waiver of any provision of this Agreement shall be valid unless the same shall be in writing (not by email or the like) and signed by each Party. No waiver by either Party with respect to any default, misrepresentation, or breach of warranty or covenant hereunder shall be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect, in any way, any rights arising by virtue of any such prior or subsequent occurrence. Any failure or delay by either Party in exercising any right or privilege hereunder shall not operate as a waiver of such right or privilege, nor will any single or partial exercise of any right or privilege preclude any other or further exercise of the same or any other right or privilege.
10.e. Notice. Any notice or other communication, if any, required hereunder will be effective only if given in writing, evidenced by a delivery receipt. Any notice or other communication, if given personally, will be effective upon the date shown on the delivery receipt.
10.f. Captions. The captions in this Agreement are for convenience only and will not be considered a part of, or be deemed to affect the construction or interpretation of, any provision of this Agreement.
10.g. Expenses. Each Party shall bear its own costs and expenses (including legal fees and expenses), unless otherwise explicitly noted in this Agreement, incurred in connection with this Agreement and any transactions contemplated hereby.
10.h. Construction. The language used in this Agreement has been fully negotiated by both Parties and shall be deemed to be the language chosen by the Parties to express their mutual intent. No rule of strict construction shall be applied against either Party. Any reference herein to the word “including” shall be interpreted as the words “including without limitation” and the word “or” shall not be construed in its exclusive sense.
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STICKYLOCK GAMES, HISTERA ARE REGISTERED TRADEMARK OF STICKYLOCK GAMES 2021. ALL RIGHTS RESERVED. ALL OTHER COPYRIGHTS AND TRADEMARKS ARE THE PROPERTY OF THEIR RESPECTIVE OWNERS.