Beta Non-Disclosure Agreement
In connection with Square AU Pty Ltd, its parent company Square, Inc, or its subsidiaries and affiliates (“Square”) research and development or testing activities, as proposed or agreed to by Square from time to time, you, as a tester, participant or in such activities, (“Recipient”) hereby agree with Square that:
1. Square may disclose to Recipient 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 Square 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 Recipient 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 Recipient without restriction before receipt, as demonstrated by files in existence before receipt, of that information from Square, (ii) is publicly available through no fault of Recipient, (iii) becomes known to Recipient, rightfully and without restriction, from a source other than Square without breach of this agreement and otherwise not in violation of Square’s rights, or (iv) is independently developed by Recipient without any use of Confidential Information, as demonstrated by files in existence at the time Recipient independently developed that information.
2. Recipient has agreed to, or will agree to, as a condition to creating a Square account, or using any Square services, any other requirements specified orally or in writing by Square (the “Square Agreement”).
3. Recipient may use Confidential Information only internally to evaluate the Beta Products in accordance with this Agreement and the Square Agreement (the “Purpose”). Recipient will not copy any Confidential Information. Recipient 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. Recipient 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. Recipient will notify Square immediately in writing if Recipient becomes aware of any misuse or unauthorised disclosure of Confidential Information.
4. 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 may be modified prior to release. BETA PRODUCTS ARE, THEREFORE, OFFERED “AS IS” WITHOUT WARRANTY OF ANY KIND. SQUARE 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 SQUARE MAY GIVE RISE TO A WARRANTY. THE RECIPIENT ACCEPTS ALL RISKS ARISING OUT OF THE DOWNLOAD, ACCESS AND USE OF THE BETA PRODUCTS. SQUARE MAY, IN ITS SOLE DISCRETION, AT ANY TIME, TERMINATE OR DISCONTINUE THE BETA PRODUCT(S), DISCONTINUE RECIPIENT’S PARTICIPATION, OR REMOVE RECIPIENT’S FEEDBACK.
5. SQUARE SHALL NOT BE LIABLE FOR LOSS OF USE, LOST PROFITS, LOST DATA, BUSINESS INTERRUPTION OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN RELATION TO THE BETA PRODUCTS.
6. Upon the termination of Square’s internal evaluation or within two (2) days of Square’s written request, Recipient will destroy all Confidential Information, delete or return any tangible Beta Products, and update any beta version of a Square mobile app to the latest released version of such Square mobile app. This agreement’s provisions will survive as to all Confidential Information disclosed.
7. This agreement doesn’t impose any obligation on Square to disclose any Confidential Information or grant Recipient any rights in Square intellectual property, except the limited right to use Confidential Information for the Purpose.
8. All bug or error reports, feedback, photos, videos, audio clips, audiovisuals, other media, comments, or ideas Recipient submits to Square about the Confidential Information will be considered “Ideas” under the Square Agreement, and Square will have the right to use and disclose such Ideas to the same extent as other Ideas Recipient submits under the Square Agreement.
9. Recipient’s obligations in this agreement are necessary and reasonable in order to protect Square and its business. Due to the unique nature of Confidential Information, monetary damages may be inadequate to compensate Square for any breach by Recipient of this agreement. Accordingly, Recipient agrees that any breach or threatened breach may cause irreparable injury to Square and, in addition to any other remedies available at law, in equity, or otherwise, Square will be entitled to obtain injunctive relief against Recipient’s threatened or continuing breach of this agreement.
10. This agreement is not assignable or transferable by Recipient without the prior written consent of Square. 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 Square 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.
11. This Agreement is governed by and construed in accordance with the laws of Victoria, Australia. The exclusive venue for any dispute relating to this agreement shall be Victoria, Australia including where applicable, the Federal Court of Australia or Federal Circuit Court of Australia.