v.2019.01.23
THIS AGREEMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY. THIS AGREEMENT DOES NOT CONSTITUTE AN OFFER BY SMARTDRIVE TO PROVIDE PRODUCTS OR SERVICES, IS SUBJECT TO ACCEPTANCE BY SMARTDRIVE, AND MAY BE REJECTED FOR ANY REASON OR NO REASON BY SMARTDRIVE. BY CHECKING THE BOX NEXT TO “I AGREE TO THE SR4 PORTABLE TERMS & CONDITIONS” AND CLICKING “REQUEST YOUR PORTABLE SR4” YOU EXPRESSLY ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
THIS AGREEMENT REQUIRES A COURT TRIAL WITHOUT A JURY TO RESOLVE DISPUTES, RATHER THAN A JURY TRIAL.
BY PLACING AN ORDER FOR PRODUCTS OR SERVICES FROM THIS WEBSITE, YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT, AND YOU ACCEPT AND ARE BOUND BY THIS AGREEMENT. YOU AFFIRM THAT IF YOU PLACE AN ORDER ON BEHALF OF AN ORGANIZATION OR COMPANY, YOU HAVE THE LEGAL AUTHORITY TO BIND ANY SUCH ORGANIZATION OR COMPANY TO THIS AGREEMENT.
YOU MAY NOT ORDER OR OBTAIN PRODUCTS OR SERVICES FROM THIS WEBSITE IF YOU (i) DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, (ii) ARE NOT THE OLDER OF (A) AT LEAST 18 YEARS OF AGE OR (B) LEGAL AGE TO FORM A BINDING CONTRACT WITH SMARTDRIVE, OR (iii) ARE PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS WEBSITE’S CONTENTS, PRODUCTS OR SERVICES BY APPLICABLE LAW.
This Evaluation and Non-Disclosure Agreement (the “Agreement”) is entered into and is effective as of the date of acceptance by SmartDrive (the “Effective Date”) by and between the company set forth on the website order form, having the address set forth on such order form (“Licensee”), and SmartDrive Systems Inc., with its principal place of business located at 9515 Towne Centre Drive, San Diego, CA 92121 (“SmartDrive”).
- Right to Evaluate. SmartDrive grants to Licensee a limited, non-exclusive, non-transferable right to use, examine and undertake an evaluation of any software, hardware, data, and/or other materials delivered by SmartDrive to Licensee hereunder and as further described below (the “Licensed Materials”), for the limited purpose of Licensee’s internal evaluation and testing of the Licensed Materials for potential use in Licensee’s commercial vehicle fleet (collectively, the “Evaluation”).
- Licensed Materials: 1 SR4 Portable System, SR4 Portable User Guide, accompanying documentation/training, and information related to SmartDrive products and services.
- Replacement cost for unreturned/damaged SR4 Portable System: $1,174.00
- Confidential Information. “Confidential Information” as used herein shall mean any non-public information which one party (“Discloser”) discloses to the other party (“Recipient”) in the course of their communications regarding the Evaluation, including but not limited to non-public product and/or service plans, designs, costs, prices, names, finances, marketing plans, business opportunities, contract discussions, forecasts, orders, personnel, customer information, research, development, know-how or third party confidential information, and the terms and conditions of this Agreement; provided such information is clearly designated as “Confidential”: (i) in writing, if communicated in writing, or (ii) at the time of disclosure, if disclosed orally or visually. The Licensed Materials shall be SmartDrive Confidential Information irrespective of whether such materials are designated as such. Confidential Information shall not include information that: a) is now or subsequently becomes generally known by or generally available to the public through no fault or breach on the part of Recipient; b) Recipient can demonstrate to have had rightfully in its possession prior to disclosure to Recipient by Discloser; c) is independently developed by Recipient without the use of any Confidential Information; or d) Recipient rightfully obtains from a third party who has the right to transfer or disclose it.
- Nondisclosure Of Confidential Information.Each party agrees to use reasonable care, but in no event less than the same degree of care that it uses to protect its own confidential information of similar importance, to prevent the unauthorized use, disclosure, publication or dissemination of Confidential Information of the other party. Each party agrees not to disclose Confidential Information of the other party to anyone, other than its employees, contractors or agents who have a need to know and who are subject to a written confidentiality agreement that protects such Confidential Information to at least the same extent as this Agreement. Recipient’s duty to protect Discloser’s Confidential Information expires five (5) years from the date on which that Confidential Information was disclosed to Recipient.
- Feedback. Notwithstanding any other provision in this Agreement, if Recipient provides any ideas, suggestions or recommendations to Discloser regarding Discloser’s Confidential Information (“Feedback”), Discloser is free to use and incorporate such Feedback in Discloser’s products, without payment of royalties or other consideration to Recipient, so long as Discloser does not infringe Recipient’s patents, copyrights or trademark rights in the Feedback. Nothing in this Agreement is intended to grant a license or waive any rights in either party’s patents, copyrights or trademarks.
- Term And Termination. The term of this Agreement will commence on the effective date and continue for thirty days. Either party may terminate this Agreement immediately at any time by written notice to the other party. In the event of termination, Licensee will: (i) promptly return any hardware to SmartDrive in good working condition, and (ii) return or destroy any Licensed Materials that do not contain hardware to SmartDrive, upon SmartDrive’s request. Licensee agrees to pay the replacement cost specified in Section 1 above for any Licensed Materials not returned in good working order within 30 days of invoice.
- No Warranty/Liability. Discloser warrants that it has the right to disclose the Confidential Information to Recipient. Otherwise, all information is provided “AS IS” and without any warranty, express, implied or otherwise, regarding its accuracy or performance. NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES; OR DAMAGES FOR LOSS OF PROFITS, REVENUE, BUSINESS, SAVINGS, DATA, OR USE, OR COST OF SUBSTITUTE PROCUREMENT, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES ARE FORESEEABLE. SMARTDRIVE’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED ONE THOUSAND UNITED STATES DOLLARS ($1,000). THE PARTIES ACKNOWLEDGE THAT THE FOREGOING LIMITATIONS OF LIABILITY AND THE ALLOCATION OF RISK HEREIN ARE AN ESSENTIAL ELEMENT OF THE BARGAIN, WITHOUT WHICH SMARTDRIVE WOULD NOT HAVE ENTERED INTO THIS AGREEMENT. SMARTDRIVE’S PRICING REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.
- Return of Documents. Within ten (10) business days of receipt of Discloser’s written request, and at Discloser’s option, Recipient will either return to Discloser all tangible Confidential Information, including but not limited to all electronic files, documentation, notes, plans, drawings, and copies thereof, or will provide Discloser with written certification that all such tangible Confidential Information of Discloser has been destroyed.
- Governing law and Venue. This Agreement and all matters arising under or related hereto will be governed by and construed in accordance with the laws of the State of Delaware as applied to residents of Delaware without regard to its conflict of laws principles.The parties consent to the personal jurisdiction and venue in the state and federal courts located in New Castle County, Delaware with respect to this Agreement. SMARTDRIVE AND LICENSEE EACH HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, OR RELATED TO, THE SUBJECT MATTER OF THIS AGREEMENT, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. SMARTDRIVE AND LICENSEE AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. THIS WAIVER IS KNOWINGLY, INTENTIONALLY AND VOLUNTARILY MADE.
- Entire Agreement. This Agreement constitutes the entire agreement with respect to the subject matter hereof and supersedes all prior or contemporaneous, oral or written, agreements concerning such subject matter. No amendment to or modification of this Agreement will be binding unless in writing and signed by the duly authorized representatives of each party. No other obligations, express or implied, are created or assumed by either party except as stated herein.