NON-DISCLOSURE AND USE RESTRICTIONS TERMS
By signing into this web-interface and requesting a CAD drawing, the requestor agrees to use such drawings only subject to these Non-Disclosure and Use Restrictions Terms ("Use Terms"
) and warrants that it is a customer of Elo Touch Solutions, Inc. and/or any of its subsidiaries (collectively "Elo"
) or is exploring designing Elo products into its products ("Company"
) and that all information submitted to Elo Touch Solutions, Inc. ("Elo"
) as part of the CAD drawings request form is accurate and complete.
The Elo CAD drawings are being shared with Company for the sole purpose of Company designing and/or exploring a potential design of Elo products into Company's touch screens, touch monitors and all-in-one touch computers and related and ancillary products and/or services (collectively, "Purpose"
Now therefore, in consideration for the mutual promises and provisions herein, the Parties agree as follows:
1. "Confidential Information"
means all proprietary and non-public information, and information that by its nature is reasonably expected to be confidential and that is provided to Company, whether in written, oral, electronic, or other form including, but not limited to, inventions, prototypes, computer programs, ideas, data, designs, sketches, product concepts, benchmark and business and financial information, and any summaries or portion thereof. Confidential Information does not include information which: (a) is publicly available prior to the time of disclosure; (b) becomes publicly available to Company after disclosure through no fault of, or breach of these Use Terms by, Company; (c) is in the possession of Company at the time of disclosure; (d) is obtained by Company from a third party who is not bound by a confidentiality restriction; (e) is independently developed by Company without use of or reference to Confidential Information. All CAD drawings of Elo products requested by Company and provided hereunder are deemed Confidential Information.
2. Confidentiality Obligations, Restrictions and Related Rights:
a. Not disclose any Confidential Information to any third party for any reason, or use any Confidential Information for any reason other than for the Purpose, except where required to be disclosed in accordance with applicable laws, regulations or court order, provided the Company shall give Elo prompt notice prior to such disclosure and assist with seeking and comply with any applicable protective order.
b. Limit access to Confidential Information to employees, Affiliates and onsite consultants and their employees who (i) have a need to know solely for the Purpose, and (ii) are obligated to Company to maintain Confidential Information under confidentiality terms no less protective than those contained herein. As used herein, "Affiliate"
means any entity that now or hereafter controls, is controlled by or is under common control with a specified entity, where "control" means beneficial ownership, directly or indirectly, of more than 50% of the outstanding shares or other ownership interest (representing the right to elect directors or other managing authority or the right to make the decisions for such entity, as applicable), only for so long as such control exists.
c. Use the same degree of care, but in any case no less than a reasonable degree of care, to prevent unauthorized use, dissemination or publication thereof as it uses to protect its own Confidential Information of similar nature.
d. Not make copies of Confidential Information without Elo's prior written consent.
e. Notify Elo of any unauthorized use or disclosure of Confidential Information of which Company may become aware.
f. Comply with applicable export control regulations.
g. Promptly upon Elo's written request return or destroy, and confirm such destruction, all tangible Confidential Information, including any copies, except that Company may retain a single copy in a secure file for record keeping purposes only.
h. Company may provide suggestions, comments, or other feedback ("Feedback"
) to Elo with respect to Elo's Confidential Information. Company will not give Feedback that is subject to any license terms that require any of Elo's intellectual property, products, technology, services or documentation derived from such Feedback to be licensed by or shared with any third party. Elo shall be free to use, disclose, reproduce, license, distribute or otherwise exploit Feedback as it sees fit without obligation or restriction of any kind.
: All Confidential Information remains Elo's property. For clarity, Company does not acquire any intellectual property rights, including licenses, under these Use Terms. Company agrees not to use, reverse engineer, decompile or disassemble any Confidential Information.
: Confidential Information is provided "AS IS" and Elo disclaims all warranties regarding Confidential Information disclosed hereunder and nothing herein will create any rights or commitments to enter into any business transaction. All Elo products are purchased under the Elo Terms of Sale posted at www.elotouch.com
. These Use Terms shall be governed by and construed in accordance with the laws of the State of California, excluding conflict of law rules and principles. The United Nations Convention on Contracts for the International Sale of Goods (1980) is specifically excluded and shall not apply. These Use Terms are prepared, executed and will be interpreted in English only. Any dispute arising out of or connected with these Use Terms, including a dispute as to the validity or existence thereof and/or this Section 4, shall be subject to the sole and exclusive jurisdiction of the California courts, or if the Company is headquartered outside the U.S. resolved by (i) arbitration in Hong Kong pursuant to the Hong Kong International Arbitration Centre ("HKIAC") Administered Arbitration Rules ("Rules") in force when the Notice of Arbitration is received by the HKIAC, if the Company is headquartered in Asia; or (ii) administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules in New York, New York if the Company is headquartered elsewhere, and in any event conducted in the English language by three arbitrators, save that the parties agree to waive any right of appeal against the arbitration award. Nothing contained in this Section shall preclude Elo from seeking or obtaining preliminary injunctive relief pending resolution of the dispute in issue. Company acknowledges that any actual or threatened breach of these Use Terms may constitute immediate, irreparable harm to the other party for which monetary damages would be an inadequate remedy, and that injunctive relief may be an appropriate remedy for such breach. Accordingly, in the event of any breach of this Agreement, the non-breaching party may seek immediate injunctive relief without the necessity of posting bonds. These Use Terms do not create any agency or partnership relationship. Any failure to enforce any provision of these Use Terms shall not constitute a waiver of any other provision. These Use Terms shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns. Company will not assign or transfer any rights or obligations under these Use Terms without the prior written consent of Elo which will not be unreasonably withheld. If any provision is held to be illegal, invalid, or unenforceable, the remaining provisions shall remain in full force and effect. These Use Terms contain the entire agreement between the Parties with respect to the subject matter hereof. These Use Terms may not be amended, nor any obligation waived, except by a writing signed by the Parties hereto. All notices under these Use Terms shall be in writing and delivered to the respective addresses set forth herein. The Parties hereto accept and agree to the execution of the Agreement electronically and in counterparts, each of which shall be deemed an original.