Beta Non-Disclosure Agreement
In relation to Squareup Europe Ltd. and Squareup International Ltd. (collectively, ‘Square’)’s research and development activities, as proposed or agreed by Square from time to time, the undersigned user (‘Recipient’) of a Square Beta Product (defined below) hereby agrees 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 ((a) to (c) collectively, 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 may use Confidential Information only internally to evaluate the Beta Products in accordance with Square’s General Terms of Service (the ‘General Terms’) and the Additional Terms (as defined in the General Terms) to which Recipient acknowledges and agrees by clicking ‘Accept’ (together, the General Terms and the Additional Terms, the ‘Square Seller Agreement’) and any other requirements specified orally or in writing by Square (the ‘Purpose’). Recipient will not copy any Confidential Information. Recipient will treat Confidential Information with 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.
3. Upon the termination of Square’s research or development activities, or within two (2) days of Square’s written request, the Recipient will destroy all Confidential Information, delete or return any tangible Beta Products and update any beta version of a Square mobile application to the latest released version of such Square mobile application. This agreement’s provisions will survive as to all Confidential Information disclosed.
4. This agreement does not 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.
5. Recipient may submit comments or ideas about the Beta Products (‘Ideas’). 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. By submitting any Idea, Recipient agrees that such disclosure is gratuitous, unsolicited, and without restriction, that it will not place Square under any fiduciary, confidentiality or other obligation, and that Square is free to use the Idea without any additional compensation to Recipient, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone.
6. 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 would 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.
7. This agreement is construed in accordance with and governed by the laws of England and Wales, and, subject to the arbitration provisions below, Recipient irrevocably and unconditionally submits to the non-exclusive jurisdiction of the English courts in London, England.
8. Any claim, controversy or dispute (‘Dispute’) between Recipient and Square arising out of or in connection with this agreement, including in respect of its interpretation, subject-matter or termination, will be referred to and finally resolved by arbitration under the rules of the London Court of International Arbitration (‘LCIA’), which rules are deemed to be incorporated by reference into this agreement. The number of arbitrators will be one, unless the LCIA determines that, in view of all the circumstances of the case, a three-member tribunal is appropriate. The place and seat of arbitration will be London, England. The language to be used in the arbitration proceedings will be English. Any reference under this Section 8 will be deemed to be a reference to arbitration within the meaning of the Arbitration Act 1996. The arbitrator’s decision will be final and binding on Square and Recipient and may be entered as a judgment in any court of competent jurisdiction. Square will pay all the arbitration fees due to LCIA for any Dispute. If Recipient prevails on any claim for which Recipient is legally entitled to lawyer’s fees, Recipient may seek to recover those fees from the arbitrator. For any claim where Recipient is seeking relief, Square will not seek to have Recipient pay Square’s lawyer’s fees, even if fees might otherwise be awarded, unless the arbitrator determines that Recipient’s claim was frivolous. For purposes of this arbitration provision, references to Recipient and Square also include respective subsidiaries, affiliates, agents, employees, predecessors, successors and assigns as well as authorised users or beneficiaries of the Beta Products or the Confidential Information. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced. Notwithstanding the foregoing, nothing in this agreement will prevent Recipient or Square from commencing proceedings and pursuing claims before a court of competent jurisdiction in accordance with Section 7 of this agreement, in cases in which interim, injunctive or declaratory relief is required, or where the right to issue proceedings would be prejudiced by the impending expiration of any applicable limitation period.