Beta Tester Non-Disclosure Agreement
Last updated: December 10, 2022
In connection with INVESMITH, LLC., or its subsidiaries and affiliates (“INVESMITH”) research and development or testing activities, as proposed or agreed to by INVESMITH from time to time, you, as a tester, participant or in such activities, (“Tester”) hereby agree with INVESMITH that:
- INVESMITH may disclose to Tester in tangible or intangible form (a) product plans, products in development, prototypes, beta products, and associated materials, data, or information (collectively, “Beta Products”), (b) other information that is marked as confidential, or (c) other information that INVESMITH considers confidential and that would, under the circumstances, appear to a reasonable person to be confidential (“Confidential Information”). For the avoidance of doubt, Confidential Information also includes all notes, analyses, compilations, studies, interpretations, feedback, photos, videos, audio clips, audio visuals, other media or documents prepared by Tester or its Representatives (as defined below) that contain, reflect, or are based in whole or in part on Confidential Information. Confidential Information does not include information that (i) was known to Tester without restriction before receipt, as demonstrated by files in existence before receipt, of that information from INVESMITH, (ii) is publicly available through no fault of Tester, (iii) becomes known to Tester, rightfully and without restriction, from a source other than INVESMITH without breach of this agreement and otherwise not in violation of INVESMITH’s rights, or (iv) is independently developed by Tester without any use of Confidential Information, as demonstrated by files in existence at the time Tester independently developed that information.
- Tester may use Confidential Information only internally to evaluate the Beta Products in accordance with this Agreement and the INVESMITH Agreement Tester has agreed to or will agree to as a condition to creating a INVESMITH account or using any INVESMITH services (the “INVESMITH Agreement”) and any other requirements specified orally or in writing by INVESMITH (the “Purpose”). Tester will not copy any Confidential Information. Tester will treat Confidential Information with at least the highest degree of care with which it treats similar materials of its own, and in any case no less than a reasonable degree of care. Tester may disclose Confidential Information only to its employees and contractors (collectively, its “Representatives”) as necessary for the Purpose and under a written agreement at least as protective of Confidential Information as this agreement. Tester will notify INVESMITH immediately in writing if Tester becomes aware of any misuse or unauthorized disclosure of Confidential Information.
- Beta Products have not yet been publicly released and are offered for the sole purpose of internal testing and non-commercial evaluation. Beta Products may not perform at the level of a commercially available service; may not operate as expected and maybe modified prior to release. BETA PRODUCTS ARE, THEREFORE, OFFERED “AS IS” WITHOUT WARRANTY OF ANY KIND. INVESMITH DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN ADVICE BY AGENTS OR EMPLOYEES OF INVESMITH MAY GIVE RISE TO A WARRANTY. THE TESTER ACCEPTS ALL RISKS ARISING OUT OF THE DOWNLOAD, ACCESS AND USE OF THE BETA PRODUCTS. INVESMITH MAY, IN ITS SOLE DISCRETION, AT ANY TIME, TERMINATE OR DISCONTINUE THE BETA PRODUCT(S), DISCONTINUE TESTER'S PARTICIPATION, OR REMOVE TESTER'S FEEDBACK.
- INVESMITH SHALL NOT BE LIABLE FOR LOSS OF USE, LOST PROFITS, LOST DATA, BUSINESS INTERRUPTION OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN RELATION TO THE BETA PRODUCTS.
- Upon the termination of INVESMITH’s internal evaluation or within two (2) days of INVESMITH’s written request, Tester will destroy all Confidential Information, delete or return any tangible Beta Products, and update any beta version of a INVESMITH mobile app to the latest released version of such INVESMITH mobile app. This agreement’s provisions will survive as to all Confidential Information disclosed.
- This agreement doesn’t impose any obligation on INVESMITH to disclose any Confidential Information or grant Tester any rights in INVESMITH intellectual property, except the limited right to use Confidential Information for the Purpose.
- All bug or error reports, feedback, photos, videos, audio clips, audiovisuals, other media, comments, or ideas Tester submits to INVESMITH about the Confidential Information will be considered “Ideas” under the INVESMITH Seller Agreement, and INVESMITH will have the right to use and disclose such Ideas to the same extent as other Ideas Tester submits under the INVESMITH Seller Agreement.
- Tester’s obligations in this agreement are necessary and reasonable in order to protect INVESMITH and its business. Due to the unique nature of Confidential Information, monetary damages would be inadequate to compensate INVESMITH for any breach by Tester of this agreement. Accordingly, Tester agrees that any breach or threatened breach may cause irreparable injury to INVESMITH and, in addition to any other remedies available at law, in equity, or otherwise, INVESMITH will be entitled to obtain injunctive relief against Tester’s threatened or continuing breach of this agreement.
- This agreement is not assignable or transferable by Tester without the prior written consent of INVESMITH. This agreement is the parties’ entire agreement on this topic, superseding any prior or contemporaneous agreements (provided that this agreement supplements, and does not supersede, any other INVESMITH Agreement), and any amendments must be in writing and executed by the parties. Failure to enforce any of provisions of this agreement will not constitute a waiver. If any provision is unenforceable, the other provisions will remain effective.
- This agreement is governed by the laws of the State of Illinois, excluding its choice of law rules. The exclusive venue for any dispute relating to this agreement shall be Cook County, Illinois.