Twunami NDA for Alpha Release

This is the Non-Disclosure Agreement (NDA) for the Twunami Twitter Desktop Application.

Upon accepting the terms and conditions of this agreement your information will be submitted for consideration to become a Twunami Pre-Alpha/Alpha Tester.

Upon approval you will be subscribed to Twunami Direct Messages for the discussion of Alpha related issues. All DM communications are confidential. Discussing DMs with anyone other than a Twunami employee or other designated participants is in violation of the agreement below.

Legal Terms and Conditions

This Agreement made 2009 November 15, Sunday (2009-11-15T08:28:46-0800), by and between Twunami a /d/b/a/ having a place of business in Orange County, California 92780 (hereinafter called "Twunami"); and the participant (hereinafter called "Participant").

Whereas, Twunami wishes to disclose to Participant a new version of its Twitter Desktop Application and other confidential information for purposes of Participant's use and Alpha test evaluation for a limited period of time. The Parties wish to provide for the conditions of such disclosure and use.

Now therefore, the Parties agree to:

As used in this Agreement, the term "Software" shall mean an Alpha version of the Twunami Twitter Desktop Application and any non-public versions of associated third party products as well as any accompanying manuals and written documentation. The term "Confidential Information" shall mean any information or data disclosed by Twunami to Participant, either in writing or orally, and including without limitation any written or printed documents, digital media, samples, models or any means of disclosing such Confidential Information that Twunami may elect to use.
Twunami hereby grants Participant a limited term, non-exclusive, non-transferable royalty-free license to use the Software, in binary executable form for purposes of Alpha evaluation and trial only. Upon completion of the evaluation of the Software, Participant shall return the Software and accompanying Confidential Information to Twunami. Participant hereby covenants that it will not:
1. modify, adapt, reproduce, transfer the Software;
2. permit other companies or individuals to use the Software;
3. modify, translate, reverse engineer, decompile, disassemble (except to the extent applicable laws specifically prohibit such restriction), or create derivative works based on the Software;
4. lease, assign, or otherwise transfer rights to the Software; or
5. remove any proprietary notices or labels from the Software.
Participant may use the Software on any single computer; use the Software on a second computer so long as the primary user of each copy is the same person and more than one copy is not used simultaneously; or copy the Software for archival purposes, provided any copy must contain all of the original Software's proprietary notices.
Twunami makes no representations concerning the suitability for any purpose of the Software or about the accuracy of data or information made accessible by it. Twunami provides the Software to Participant "as is" without express or implied warranties, including but not limited to implied warranties of merchantability and fitness for a particular purpose or non-infringement of intellectual property rights of third persons. Twunami assumes no liability for any damages (whether direct, incidental or consequential) suffered by Participant or any third person as a result of use of the Software.
Without limitation of the scope of preceding Paragraph 4, and to the extent allowed by law, under no circumstances and under no legal theory, tort, contract, or otherwise, shall Twunami or its suppliers or resellers be liable to Participant or any other person for any indirect, special, incidental, or consequential damages of any character including, without limitation, damages for loss of goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages or losses. In no event will Twunami be liable for any damages in excess of Twunami list price for a license to the Software (Suite Upgrades), even if Twunami shall have been informed of the possibility of such damages, or for any claim by any other party.
Participant hereby covenants that, for a period of one (1) year from the effective date of the Agreement, the Software and any Confidential Information received from Twunami shall:
1. be protected and kept in strict confidence by Participant, which must use the same degree of precaution and safeguards as it uses to protect its own confidential information, but in no case any less than reasonable care;
2. be only disclosed to and used by those persons within Participant's organization who have a need to know and solely for the purpose specified in this Agreement;
3. not be used in whole or in part for any commercial purpose without the prior written consent of and compensation to Twunami. "Use" shall mean conscious consideration and deliberate implementation of the Software or Confidential Information. "Commercial purpose" shall mean the incorporation of the Software or Confidential Information into products or product concepts which are offered for sale or license, or otherwise exploited;
4. neither be disclosed nor caused to be disclosed (whether directly or indirectly) to any third party or persons other than those mentioned in Subparagraph (b) above; and
5. neither be copied, nor otherwise reproduced or duplicated in whole or in part, where such copying, reproduction or duplication has not been specifically authorized in writing by the disclosing Party.
Participant shall have no obligations or restrictions with respect to any Confidential Information which Participant can prove:
1. has come into the public domain prior to or after the disclosure thereof, through no wrongful act of Participant;
2. is already known to Participant, as evidenced by written documentation in the files of the receiving Party;
3. has been lawfully received from a third party without breach of this Agreement;
4. has been or is published without violation of this Agreement;
5. is independently developed in good faith by employees of Participant who did not have access to the Confidential Information; or
6. is approved for release or use by written authorization of Twunami.
With respect to the disclosure of the Software and any Confidential Information, it is expressly understood and agreed that the below listed employee/individual of Participant shall be the exclusive individual authorized to receive the Software and Confidential Information:
In reference to the individual identified in Paragraph 8 above, Participant shall have the right and power to redesignate such persons within their organizations as are authorized to receive and/or transmit Confidential Information exchanged under this Agreement. Any such redesignations which are made by Participant shall be effected by rendering written notice of such change to Twunami.
It is expressly understood and agreed by the Parties hereto that the disclosure and provision of the Software and any Confidential Information under this Agreement by Twunami to Participant shall not be construed as granting to Participant any rights whether express or implied by license or otherwise on the matters, inventions or discoveries to which such Software and Confidential Information pertains or any patent, copyright, trademark or trade secret rights. The property in all Confidential information disclosed by Twunami to Participant shall, subject to any right of any other owner, rest with Twunami. Title, ownership rights, and intellectual property rights in and to the Software shall remain that of Twunami and/or its suppliers.
Twunami has no obligation to issue any updates, revisions, corrections, new versions or manuals for the Software or otherwise to support the Software. Twunami reserves the right at any time to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of the Software.
Nothing in this Agreement may be construed as compelling Twunami to disclose any Confidential Information to Participant or as compelling the Parties to enter into any contractual relationships on the basis of such disclosed Confidential Information.
Termination of this Agreement may be effected by either Party upon thirty (30) days prior written notice to the other. Termination of this Agreement shall not relieve Participant from complying with the obligations imposed by Paragraph 6 hereof with respect to the use and protection of Confidential Information received prior to the date of the termination of this Agreement. Such obligations shall continue for the period applicable as set forth in said Paragraph. Upon termination of this Agreement, the Software and all Confidential Information shall be returned to Twunami.
The execution, existence and performance of this Agreement shall be kept confidential by the Parties hereto and shall not be disclosed by either Party without the prior written consent of the other.
This Agreement shall be governed by and shall be interpreted in accordance with the laws of the State of California (excluding its choice of law provisions) except that Twunami may enforce its intellectual property rights before the competent courts of any jurisdiction where an act of infringement has occurred.
Failure by either Party to enforce any of its rights under this Agreement shall not be taken as or deemed to be a waiver of such. No waiver or amendment of any provisions of this Agreement shall be valid or binding against either Party unless the waiver or amendment is made in writing and signed by the duly appointed representatives of both Parties.
This Agreement is personal to the Parties and shall not be assigned or otherwise transferred in whole or in part by either Party without the prior written consent of the other Party, except in the event of merger or transfer of all of its assets, provided that the assignee shall agree to be bound by the provisions of this Agreement.
The foregoing constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes and cancels all prior representations, negotiations, commitments, undertakings, systems whether oral or written, acceptances, understandings and agreements between the Parties with respect to or in connection with any of the matters or things to which such agreement applies or refers.

IN WITNESS WHEREOF, the Parties have executed this Agreement as of 2009 November 15, Sunday (2009-11-15T08:28:46-0800):

/d/b/a/ Twunami
Name: Edward Lewis
Title: Authorized Representative

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Last Modified: 2009-05-15T14:45:00-0700