By creating an account or using the software or services provided by Small Wins, Inc., doing business as Begin (the “Corporation”), you (the “Recipient”) expressly accept and agree to be bound by all of the terms and conditions below. If you do not accept these terms, you must not use our software or services.
The Corporation and the Recipient (the “Parties”) intend to engage in discussions and negotiations concerning the possible establishment of a business relationship between them, including the beta use of the Corporation’s software or services. In the course of such discussions and negotiations and in the course of any such business relationship, it is anticipated that the Corporation will disclose or deliver to the Recipient and to the Recipient’s directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers, financial advisors and members of advisory boards) (collectively, “Representatives”) certain of the Corporation’s trade secrets or confidential or proprietary information for the purposes of enabling the Recipient to evaluate the feasibility of such business relationship and to perform its obligations and exercise its rights under any such business relationship that is agreed to between the Parties (the “Purposes”). The Parties have entered into this Agreement in order to assure the confidentiality of such trade secrets and confidential or proprietary information in accordance with the terms of this Agreement.
As used in this Agreement, the term “Proprietary Information” shall mean all trade secrets or confidential or proprietary information designated as such in writing by the Corporation, whether by letter or by the use of an appropriate proprietary stamp or legend, prior to or at the time any such trade secret or confidential or proprietary information is disclosed by the Corporation to the Recipient, including, but not limited to the Corporation’s software or services. Notwithstanding the foregoing, information which is orally or visually disclosed to the Recipient by the Corporation, or is disclosed in writing without an appropriate letter, proprietary stamp or legend, shall constitute Proprietary Information if (i) it would be apparent to a reasonable person, familiar with the Corporation’s business and the industry in which it operates, that such information is of a confidential or proprietary nature the maintenance of which is important to the Corporation or if (ii) the Corporation, within 30 days after such disclosure, delivers to the Recipient a written document or documents describing such Proprietary Information and referencing the place and date of such oral, visual or written disclosure and the names of the Representatives of the Recipient to whom such disclosure was made. In addition, the term “Proprietary Information” shall be deemed to include: (a) any notes, analyses, compilations, studies, interpretations, memoranda or other documents prepared by the Recipient or its Representatives which contain, reflect or are based upon, in whole or in part, any Proprietary Information furnished to the Recipient or its Representatives pursuant hereto; and (b) the existence or status of, and any information concerning, the discussions between the Parties concerning the possible establishment of a business relationship.
The Recipient and its Representatives shall use the Proprietary Information only for the Purposes and such Proprietary Information shall not be used for any other purpose without the prior written consent of the Corporation. The Recipient and its Representatives shall hold in confidence, and shall not disclose to any person outside its organization, any Proprietary Information or exploit such Proprietary Information for its own benefit or the benefit of another without the prior written consent of the Corporation. Without limitation of the foregoing, the Recipient shall not cause or permit reverse engineering of any Proprietary Information or decompilation or disassembly of any software programs which are part of the Proprietary Information. The Recipient shall disclose Proprietary Information received by it under this Agreement only to persons within its organization who have a need to know such Proprietary Information in the course of the performance of their duties and who are bound by a written agreement, enforceable by the Corporation, to protect the confidentiality of such Proprietary Information. The Recipient shall adopt and maintain programs and procedures that are reasonably calculated to protect the confidentiality of Proprietary Information and shall be responsible to the Corporation for any disclosure or misuse of Proprietary Information that results from a failure to comply with this provision. The Recipient will promptly report to the Corporation any actual or suspected violation of the terms of this Agreement and will take all reasonable further steps requested by the Corporation to prevent, control or remedy any such violation. Notwithstanding anything contained in this Agreement to the contrary, this Agreement shall not prohibit the Recipient from disclosing Proprietary Information to the extent required in order for the Recipient to comply with applicable laws and regulations, provided that the Recipient provides prior written notice of such required disclosure to the Corporation and takes reasonable and lawful actions to avoid and/or minimize the extent of such disclosure.
The obligations of the Recipient specified in Section 3 shall not apply, and the Recipient shall have no further obligations, with respect to any Proprietary Information to the extent the Recipient can demonstrate, by clear and convincing evidence, that such Proprietary Information:
- (a) is generally known to the public at the time of disclosure or becomes generally known without the Recipient or its Representatives violating this Agreement;
- (b) is in the Recipient’s possession at the time of disclosure otherwise than as a result of Recipient’s breach of any legal obligation; or
- (c) becomes known to the Recipient through disclosure by sources other than the Corporation having the legal right to disclose such Proprietary Information.
The Recipient agrees that it shall not receive any right, title or interest in, or any license or right to use, the Proprietary Information or any patent, copyright, trade secret, trademark or other intellectual property rights therein, by implication or otherwise.
The Recipient shall, upon the termination of this Agreement or the request of the Corporation, return to the Corporation all Proprietary Information received by the Recipient or its Representatives from the Corporation (and all copies and reproductions thereof). In addition, the Recipient shall destroy: (i) any notes, reports or other documents prepared by the Recipient which contain Proprietary Information; and (ii) any Proprietary Information (and all copies and reproductions thereof) which is in electronic form or cannot otherwise be returned to the Corporation. Alternatively, upon written request of the Corporation, the Recipient shall destroy all Proprietary Information received by the Recipient or its Representatives from the Corporation (and all copies and reproduction thereof) and any notes, reports or other documents prepared by the Recipient that contain Proprietary Information. Notwithstanding the return or destruction of the Proprietary Information, the Recipient and its Representatives will continue to be bound by their obligations of confidentiality and other obligations hereunder.
- (a) This Agreement supersedes all prior agreements, written or oral, between the Parties relating to the subject matter of this Agreement. This Agreement may not be modified, changed or discharged, in whole or in part, except by an agreement in writing signed by the Parties.
- (b) This Agreement will be binding upon and inure to the benefit of the Parties and their respective heirs, successors and assigns.
- (c) This Agreement shall be construed and interpreted in accordance with the internal laws of the State of California, without giving effect to the principles of conflicts of law thereof.
- (d) The provisions of this Agreement are necessary for the protection of the business and goodwill of the Corporation and are considered by the Recipient to be reasonable for such purpose. The Recipient agrees that any breach of this Agreement will cause the Corporation substantial and irreparable injury and, therefore, in the event of any such breach, in addition to other remedies, which may be available, the Corporation shall have the right to specific performance and other injunctive and equitable relief.
- (e) The confidentiality obligations imposed by this Agreement shall continue with respect to a particular item of Proprietary Information in perpetuity.