NDA for the Intelligent Type Assistant Beta Program
Confidentiality and Non-Disclosure Agreement.
This Confidentiality and Non-Disclosure Agreement (the “Agreement”) becomes a binding contract between the user (“User”) and Monotype Imaging Inc. (“Monotype”) when User clicks on the area marked “ACCEPT LICENSE AGREEMENT,” or similar language. If User is an entity or corporation, User is indicating that User is authorized to bind such entity or corporation to the terms of this Agreement when User accepts these terms. Each party to this Agreement may be referred to herein individually as a “Party” or collectively as the “Parties.”
- Background and Purpose. It is contemplated that Monotype may disclose Confidential Information (as defined in Section 3) to User in connection with certain programs, products or services to be developed and/or provided by Monotype to its customers (the “Purpose”). By using the such programs, products or services, User indicates that it agrees to these terms. Please read this entire Agreement before agreeing to be bound. If User does not wish to be bound by the Agreement, User cannot download, use, access or install the programs, products or services.
- Term; Survival of Confidentiality Obligations. This Agreement shall remain in effect for so long as User is engaged as a beta tester of Monotype programs, products or services, during which time the User may use the Confidential Information disclosed to it hereunder. Either Party may terminate this Agreement for any reason upon prior written notice. Upon the expiration or termination of this Agreement, User shall cease all use of Confidential Information and the obligation to return or destroy Confidential Information (see Section 8 below) shall apply immediately. The obligations of User under this Agreement to maintain the confidentiality of Confidential Information (see Sections 6 and 7 below) shall survive the termination of this Agreement, subject to the exclusions set forth in Section 4 below.
- Confidential Information. Confidential Information shall mean all trade secret, confidential and proprietary information that is disclosed in written, oral, visual or electronic form and which is designated as such, either orally or in writing, at the time of disclosure by Monotype or should reasonably be understood to be confidential because of the nature of the information and the circumstances surrounding the disclosure including, without limitation, inventions, know-how, patent applications, trade secrets, technical information, methods, processes, computer programs in object code or source code, engineering design approaches, technical documentation, products, new product features, business and marketing plans, financial information, business operations, third party relationships including information about Monotype’s partners and customers, pricing information, proposed or actual contract pricing, proposed contract terms and conditions and similar information which is disclosed by Monotype under this Agreement.
- Exclusions to Confidential Information. Information shall not be considered to be Confidential Information to the extent such information: (a) has been, is now, or later becomes publicly available through no fault of User; (b) has been, is now, or later becomes rightfully learned by User or its related companies from a third party which has received it lawfully and without restrictions on disclosure or use; (c) was known to User or its related companies prior to the date it received such information from Monotype and is not subject to other restrictions on disclosure or use; or (d) has been, is now, or later is developed independently by User or its related companies, without use of or resort to any Confidential Information. If only a portion of the Confidential Information falls under one of the subsections above, then only that portion shall be excluded from the definition of Confidential Information. If User claims that Confidential Information falls under one of the above subsections, User has the burden of establishing the fact of such exception by clear and convincing evidence.
- Use and Copy Restrictions. User agrees that all Confidential Information shall be used solely during the term of this Agreement for the Purpose and that User shall not otherwise use, practice, or exploit Confidential Information of Monotype. User shall not copy or otherwise duplicate any Confidential Information except as is necessary to fulfil the Purpose. All copies shall include the proprietary notices as set forth on the originals. Except as expressly authorized in this Agreement, User shall not modify, reverse engineer, decompile or attempt to recreate Confidential Information or attempt to access the source code of any computer program which is disclosed as object code. User acknowledges that the Confidential Information provided to it by Monotype is subject to U.S. export control laws and regulations and User agrees that it will abide by all U.S. export controls laws and regulations in its use and dissemination of such Confidential Information.
- Confidentiality Obligations. User shall hold all Confidential Information in confidence and shall not disclose Confidential Information to any other party. User shall not disclose any portion of the Confidential Information to any party without the prior written consent of Monotype, even if such party is under similar restriction of disclosure with Monotype. User agrees to protect the confidentiality of Confidential Information by using the same degree of care, but no less than a reasonable degree of care, as it uses to protect its own valuable, confidential information of a like nature. Notwithstanding the foregoing, User may disclose Confidential Information to the extent that it is required to be produced or disclosed pursuant to applicable laws, regulations or court order, provided User has given Monotype prior notice of such requirement and the opportunity to defend, limit or protect such production or disclosure.
- Return or Destruction of Confidential Information. User shall return all Confidential Information and copies, summaries or other information and materials created using the Confidential Information either upon expiration or termination of this Agreement or within ten (10) days of Monotype’s written request for such return, whichever occurs sooner; provided, however, that User may destroy the original and all copies of Confidential Information and such other information and materials in lieu of returning it, so long as User sends a written certification attesting to such destruction.
- Ownership. All Confidential Information disclosed under this Agreement, including any copies and derivative works thereof, shall remain the sole property of Monotype and User shall have no right, title, or interest in or to Confidential Information except the rights expressly set forth in this Agreement. Nothing contained in this Agreement shall be construed as granting or conferring upon User any license under patents or copyrights of Monotype, and no such license or other rights shall arise from this Agreement or from any acts, statements or dealings resulting from or related to the execution of this Agreement or performance of the obligations of the Parties hereunder. User agrees not to use Confidential Information to guide or aid a search and evaluation for purposes of showing Confidential Information provided hereunder is in the public domain. User agrees that it will not include Confidential Information in any application for patent or utility model or design protection in any country filed by it or on its behalf.
- Disclaimer of Warranties. All Confidential Information is supplied “AS IS,” without a warranty of any kind. Monotype shall not be obliged by this Agreement to disclose any Confidential Information to User. This Agreement does not obligate either Party to enter into any further agreement with the other. MONOTYPE SPECIFICALLY DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- Remedies for Breach. The Parties agree that any breach of this Agreement shall result in an injury to Monotype for which an award of money damages would be inadequate. Both Parties agree that in the event of a breach by User, in addition to any other remedies available in equity or at law, Monotype has the right to seek both preliminary and permanent injunctive relief, without the posting of any bond or surety. In any proceeding to enforce rights under this Agreement, the prevailing Party shall be awarded its reasonable attorneys’ fees and costs, including the fees of expert witnesses.
- Governing Law; Forum. This Agreement shall be deemed to be a contract made under the laws of the Commonwealth of Massachusetts and shall be interpreted and construed in its entirety in accordance with the laws of said Commonwealth (without regard to applicable conflict of laws provisions). The United States District Court for the District of Massachusetts or, if federal subject matter jurisdiction is lacking, the Superior Court of the Commonwealth of Massachusetts in Middlesex County, shall be the exclusive forum for any disputes arising out of or related to this Agreement.
- General. This Agreement embodies the entire understanding between the Parties pertaining to the subject matter hereof. The Parties acknowledge that they are not relying on any representation, promise, or other statement, whether written or oral, that is not expressly contained in this Agreement. This Agreement shall not be modified except by a writing signed and dated by both Parties. Neither Party may assign this Agreement (with a change in control of such Party by merger, consolidation or similar transaction constituting an assignment), except with the prior written consent of the other Party. This Agreement is binding upon each Party and their successors and assigns. No agency or partnership relationship between the Parties is created by this Agreement and neither Party obligates itself in any manner to enter into any other or further agreement or undertaking with the other regarding any matter including, but not limited to, the Confidential Information.
LAST UPDATED: January 20, 2021