Partner Portal Non-Disclosure Agreement
This Partner Portal Non-Disclosure Agreement (“NDA”) is made between Native Instruments GmbH, Schlesische Str. 29-30, 10997 Berlin, Germany ("Native Instruments"), and the natural person or legal entity identified during the registration process in the Partner Portal ("Partner"). Native Instruments and Partner are each also referred to as a “Party” and collectively as the “Parties”.
Partner wishes to make its sample libraries and/or other digital audio plugins (“Partner Plugins”) compatible with Native Instruments’ proprietary software environment. For this purpose, Native Instruments intends to provide Partner with certain Confidential Information (as defined below), including, without limitation, a software development kit (“SDK”) in Native Instruments’ Partner Portal with proprietary business and technical information related to the Native Kontrol Standard (“NKS”) and other software, systems, products, technologies, and processes of Native Instruments. The Parties wish to establish the terms and conditions for protecting this Confidential Information, and agree as follows.
1. Confidential Information
1.1 "Confidential Information" means any information disclosed by Native Instruments to Partner, in any form, that is identified as confidential or proprietary or should reasonably be understood to be confidential. This includes, without limitation: technical data, trade secrets, know-how, research, software (including source code, plugins, algorithms, applications, beta versions, firmware, interfaces, features, SDK), hardware details, system design, testing methods, product plans, prints, product information, services, customers, markets, inventions, processes, designs, drawings, engineering, marketing, financial information, and business strategies. All information accessible via the Partner Portal, particularly any information contained in and/or related to the SDK, is Confidential Information, unless Native Instruments expressly confirms otherwise in writing.
1.2 Confidential Information does not include information that Partner can demonstrate: a) is or becomes publicly known without Partner's breach of this Agreement; b) was in Partner's possession or known by Partner prior to receipt from Native Instruments; c) was rightfully disclosed to Partner by a third party without restriction; or d) was independently developed by Partner without using Native Instruments’ Confidential Information.
2. Disclosure and Use Restrictions
2.1 Partner shall use Confidential Information solely to evaluate a potential business or research relationship with Native Instruments. Partner shall not disclose Confidential Information to any third party without Native Instruments' prior written consent, and shall only disclose it to its directors, officers, employees, and agents on a need-to-know basis.
2.2 Partner shall protect Confidential Information with at least the same degree of care applied to its own confidential information, but in no event less than reasonable care, and shall take reasonable measures to prevent unauthorized disclosure or use.
2.3 Partner shall ensure that its directors, officers, employees, and agents who have access to the Confidential Information are bound by confidentiality obligations no less stringent than those in this NDA, and guarantees their compliance.
2.4 Partner shall not decompile, disassemble, reverse engineer, or attempt to reconstruct or discover any source code, ideas, techniques, or algorithms in the Confidential Information.
2.5 If Partner is required to disclose Confidential Information under a valid court order or by a government agency, Partner shall: a) immediately notify Native Instruments; b) consult with Native Instruments on steps to resist or limit the disclosure; and c) if disclosure is required, disclose only the minimum portion of Confidential Information legally required, and use best efforts to obtain an order protecting its confidentiality.
3. Ownership and Publicity
3.1 Native Instruments owns all Confidential Information and all intellectual property rights embodied in or related to the Confidential Information. This NDA does not grant Partner any license or other rights to the Confidential Information, nor any right to its future use. Any such rights require a separate written license agreement between the Parties.
3.2 Partner shall not issue press releases or other public statements about Native Instruments or the Confidential Information, nor use Native Instruments' name, logo, or trademarks, without Native Instruments' prior written approval.
4. SDK License and Use Restrictions
4.1 Native Instruments grants Partner a limited, worldwide, non-exclusive, non-sublicenseable, non-transferable license to use the SDK solely for researching the requirements and specifications necessary to integrate the Partner Plugins with NKS. Full NKS integration requires a separate written license agreement between the Parties. Partner shall comply with the quality assurance criteria in the SDK documentation, including updates for OS compatibility and adherence to naming, tagging, and controller assignment criteria specified by Native Instruments.
4.2 Partner shall not modify, decompile, reverse engineer, sell, resell, lease, license, distribute or transfer the SDK or any derivative work thereof. Native Instruments retains all rights not expressly granted. The SDK shall be used only for the purposes set out herein, and shall not be used to create software substantially similar to the SDK.
4.3 The SDK and any copies are owned by Native Instruments. The SDK's structure, organization, and code are Native Instruments' trade secrets and Confidential Information.
5. Warranty and Limitation of Liability
5.1 Each Party represents and warrants to the other Party that it has the full right, power, and authority to enter into this NDA and to perform its obligations hereunder.
5.2 ALL CONFIDENTIAL INFORMATION IS PROVIDED "AS IS". NATIVE INSTRUMENTS EXPLICITLY DISCLAIMS ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, OR TERMS, WHETHER EXPRESS OR IMPLIED, INCLUDING THOSE OF NON-INFRINGEMENT, MERCHANTABILITY, INTEGRATION, SATISFACTORY QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE. NATIVE INSTRUMENTS RESERVES THE RIGHT TO DISCONTINUE VST 2 SUPPORT AND OFFER VST 3 SUPPORT AT ITS SOLE DISCRETION.
5.3 TO THE EXTENT PERMITTED BY APPLICABLE LAW, NATIVE INSTRUMENTS SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOSSES ARISING FROM THIS NDA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6. Indemnity and Consequences of Breach
6.1 Partner shall indemnify and hold harmless Native Instruments, its affiliates, officers, directors, employees, agents, and representatives from any claims, suits, liabilities, losses, damages, and expenses (including legal fees) arising from Partner's breach of this Agreement.
6.2 In the event of Partner's breach, Native Instruments may, in addition to other legal or equitable remedies: a) immediately cease disclosing further Confidential Information; b) seek injunctive relief (e.g., temporary restraining order, injunction); and c) claim full compensation for all incurred direct and indirect damages.
6.3 For each breach of this NDA, Partner agrees to pay a contractual penalty to Native Instruments, the amount of which shall be determined by Native Instruments in its reasonable discretion and, in case of dispute, reviewed by the competent court as to its fairness. This penalty shall be in addition to, and not set off against, any damages suffered by Native Instruments due to such breach. The objection of continuity for any intentional violation is excluded.
7. Term and Termination
7.1 This NDA becomes effective upon Partner's acceptance, indicated by clicking a digital checkbox or similar mechanism, and remains in force until terminated.
7.2 Either Party may terminate this NDA upon thirty (30) days' prior written notice (email sufficient) after the termination of any business relationship between the Parties. The right to terminate for cause, particularly for Partner's breach, remains unaffected. All Confidential Information disclosed during the term of this NDA shall remain subject to its confidentiality obligations, which survive the termination of this NDA or any business relationship between the Parties.
7.3 Upon termination of this NDA, or upon Native Instruments' written request (whichever is earlier), Partner shall immediately cease using the SDK and, at Native Instruments' discretion, either return or destroy all Confidential Information and all copies thereof.
7.4 If requested by Native Instruments, Partner shall provide written certification of the return or destruction of the Confidential Information. Native Instruments may further require Partner to execute an affidavit attesting to compliance with these obligations.
8. Miscellaneous
8.1 This NDA constitutes the Parties' entire agreement regarding its subject matter, superseding all prior related agreements. Amendments require written form, and unless specifically stated otherwise, an email does not satisfy this requirement.
8.2 Neither Party may assign its rights or obligations under this NDA without the other's prior written consent; except that Native Instruments may assign to a) a successor acquiring substantially all its assets or equity, or b) any company within the Native Instruments Group.
8.3 Should any provision be or become invalid, this will not affect the validity of the remaining provisions. The Parties agree to replace any invalid provision with one that best reflects its original commercial purpose.
8.4 Berlin, Germany, is the exclusive court of jurisdiction and place of performance for all disputes. German law applies, excluding its conflict of law principles and the CISG.
Purpose
Partner wishes to make its sample libraries and/or other digital audio plugins (“Partner Plugins”) compatible with Native Instruments’ proprietary software environment. For this purpose, Native Instruments intends to provide Partner with certain Confidential Information (as defined below), including, without limitation, a software development kit (“SDK”) in Native Instruments’ Partner Portal with proprietary business and technical information related to the Native Kontrol Standard (“NKS”) and other software, systems, products, technologies, and processes of Native Instruments. The Parties wish to establish the terms and conditions for protecting this Confidential Information, and agree as follows.
1. Confidential Information
1.1 "Confidential Information" means any information disclosed by Native Instruments to Partner, in any form, that is identified as confidential or proprietary or should reasonably be understood to be confidential. This includes, without limitation: technical data, trade secrets, know-how, research, software (including source code, plugins, algorithms, applications, beta versions, firmware, interfaces, features, SDK), hardware details, system design, testing methods, product plans, prints, product information, services, customers, markets, inventions, processes, designs, drawings, engineering, marketing, financial information, and business strategies. All information accessible via the Partner Portal, particularly any information contained in and/or related to the SDK, is Confidential Information, unless Native Instruments expressly confirms otherwise in writing.
1.2 Confidential Information does not include information that Partner can demonstrate: a) is or becomes publicly known without Partner's breach of this Agreement; b) was in Partner's possession or known by Partner prior to receipt from Native Instruments; c) was rightfully disclosed to Partner by a third party without restriction; or d) was independently developed by Partner without using Native Instruments’ Confidential Information.
2. Disclosure and Use Restrictions
2.1 Partner shall use Confidential Information solely to evaluate a potential business or research relationship with Native Instruments. Partner shall not disclose Confidential Information to any third party without Native Instruments' prior written consent, and shall only disclose it to its directors, officers, employees, and agents on a need-to-know basis.
2.2 Partner shall protect Confidential Information with at least the same degree of care applied to its own confidential information, but in no event less than reasonable care, and shall take reasonable measures to prevent unauthorized disclosure or use.
2.3 Partner shall ensure that its directors, officers, employees, and agents who have access to the Confidential Information are bound by confidentiality obligations no less stringent than those in this NDA, and guarantees their compliance.
2.4 Partner shall not decompile, disassemble, reverse engineer, or attempt to reconstruct or discover any source code, ideas, techniques, or algorithms in the Confidential Information.
2.5 If Partner is required to disclose Confidential Information under a valid court order or by a government agency, Partner shall: a) immediately notify Native Instruments; b) consult with Native Instruments on steps to resist or limit the disclosure; and c) if disclosure is required, disclose only the minimum portion of Confidential Information legally required, and use best efforts to obtain an order protecting its confidentiality.
3. Ownership and Publicity
3.1 Native Instruments owns all Confidential Information and all intellectual property rights embodied in or related to the Confidential Information. This NDA does not grant Partner any license or other rights to the Confidential Information, nor any right to its future use. Any such rights require a separate written license agreement between the Parties.
3.2 Partner shall not issue press releases or other public statements about Native Instruments or the Confidential Information, nor use Native Instruments' name, logo, or trademarks, without Native Instruments' prior written approval.
4. SDK License and Use Restrictions
4.1 Native Instruments grants Partner a limited, worldwide, non-exclusive, non-sublicenseable, non-transferable license to use the SDK solely for researching the requirements and specifications necessary to integrate the Partner Plugins with NKS. Full NKS integration requires a separate written license agreement between the Parties. Partner shall comply with the quality assurance criteria in the SDK documentation, including updates for OS compatibility and adherence to naming, tagging, and controller assignment criteria specified by Native Instruments.
4.2 Partner shall not modify, decompile, reverse engineer, sell, resell, lease, license, distribute or transfer the SDK or any derivative work thereof. Native Instruments retains all rights not expressly granted. The SDK shall be used only for the purposes set out herein, and shall not be used to create software substantially similar to the SDK.
4.3 The SDK and any copies are owned by Native Instruments. The SDK's structure, organization, and code are Native Instruments' trade secrets and Confidential Information.
5. Warranty and Limitation of Liability
5.1 Each Party represents and warrants to the other Party that it has the full right, power, and authority to enter into this NDA and to perform its obligations hereunder.
5.2 ALL CONFIDENTIAL INFORMATION IS PROVIDED "AS IS". NATIVE INSTRUMENTS EXPLICITLY DISCLAIMS ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, OR TERMS, WHETHER EXPRESS OR IMPLIED, INCLUDING THOSE OF NON-INFRINGEMENT, MERCHANTABILITY, INTEGRATION, SATISFACTORY QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE. NATIVE INSTRUMENTS RESERVES THE RIGHT TO DISCONTINUE VST 2 SUPPORT AND OFFER VST 3 SUPPORT AT ITS SOLE DISCRETION.
5.3 TO THE EXTENT PERMITTED BY APPLICABLE LAW, NATIVE INSTRUMENTS SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOSSES ARISING FROM THIS NDA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6. Indemnity and Consequences of Breach
6.1 Partner shall indemnify and hold harmless Native Instruments, its affiliates, officers, directors, employees, agents, and representatives from any claims, suits, liabilities, losses, damages, and expenses (including legal fees) arising from Partner's breach of this Agreement.
6.2 In the event of Partner's breach, Native Instruments may, in addition to other legal or equitable remedies: a) immediately cease disclosing further Confidential Information; b) seek injunctive relief (e.g., temporary restraining order, injunction); and c) claim full compensation for all incurred direct and indirect damages.
6.3 For each breach of this NDA, Partner agrees to pay a contractual penalty to Native Instruments, the amount of which shall be determined by Native Instruments in its reasonable discretion and, in case of dispute, reviewed by the competent court as to its fairness. This penalty shall be in addition to, and not set off against, any damages suffered by Native Instruments due to such breach. The objection of continuity for any intentional violation is excluded.
7. Term and Termination
7.1 This NDA becomes effective upon Partner's acceptance, indicated by clicking a digital checkbox or similar mechanism, and remains in force until terminated.
7.2 Either Party may terminate this NDA upon thirty (30) days' prior written notice (email sufficient) after the termination of any business relationship between the Parties. The right to terminate for cause, particularly for Partner's breach, remains unaffected. All Confidential Information disclosed during the term of this NDA shall remain subject to its confidentiality obligations, which survive the termination of this NDA or any business relationship between the Parties.
7.3 Upon termination of this NDA, or upon Native Instruments' written request (whichever is earlier), Partner shall immediately cease using the SDK and, at Native Instruments' discretion, either return or destroy all Confidential Information and all copies thereof.
7.4 If requested by Native Instruments, Partner shall provide written certification of the return or destruction of the Confidential Information. Native Instruments may further require Partner to execute an affidavit attesting to compliance with these obligations.
8. Miscellaneous
8.1 This NDA constitutes the Parties' entire agreement regarding its subject matter, superseding all prior related agreements. Amendments require written form, and unless specifically stated otherwise, an email does not satisfy this requirement.
8.2 Neither Party may assign its rights or obligations under this NDA without the other's prior written consent; except that Native Instruments may assign to a) a successor acquiring substantially all its assets or equity, or b) any company within the Native Instruments Group.
8.3 Should any provision be or become invalid, this will not affect the validity of the remaining provisions. The Parties agree to replace any invalid provision with one that best reflects its original commercial purpose.
8.4 Berlin, Germany, is the exclusive court of jurisdiction and place of performance for all disputes. German law applies, excluding its conflict of law principles and the CISG.