Terms of Service

PRODUCT TEST AND CONFIDENTIALITY AGREEMENT

This Agreement is entered into upon the date of acceptance of an invitation to enter a Leviton Product Testing Platform project between Leviton Manufacturing Co., Inc., with offices at 201 North Service Road, Melville, NY 11747 (“Leviton”), and a tester participating in the Leviton Product Testing Platform (“You”); hereinafter Party or Parties.

WHEREAS, Leviton, via its product testing site¸ which uses Centercode services (“Leviton Product Testing Platform”), is conducting beta tests of Leviton products (“Product Test(s)”), and market research related to new products (“Product(s)”) that contain certain valuable trade secrets and other confidential information (“Confidential Information”). Leviton, via the Leviton Product Testing Platform, is providing You with prototype Product and may disclose some of this Confidential Information to You, only on the condition that You agree to maintain the information strictly confidential, for the purpose of eliciting feedback from You;

WHEREAS, You are a potential user of this new Product and have expressed an interest in evaluating and testing Leviton Products to provide feedback for the purpose of ensuring the Product meets user needs and demands;

WHEREAS, Leviton agrees to provide to You prototype Product, under the following terms and conditions, for use at no charge to You until the completion of the Product Test, or termination of this Agreement, in exchange for receiving Your feedback on Your Product Test and evaluation of the Product. In addition to the terms and conditions contained herein, Leviton may add supplemental terms and conditions related to a specific Product Test which will be disclosed to You through the Leviton Product Testing Platform. All supplemental terms and conditions shall be considered incorporated into this Agreement.

NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, You agree as follows:

1. Participation and Test Results are Confidential. You will not disclose that You are evaluating or testing or have evaluated or tested the Product and related services or any results of such testing to any third party without Leviton’s prior written consent. In addition, You agree to treat any communications and reports prepared in Your capacity as a Product Tester as Confidential Information and will not divulge the existence or content of such communications or reports to any third party without Leviton’s prior written consent. You will receive all provided Confidential Information in confidence and keep it confidential without further disclosure and not make use, directly or indirectly, of any of the Confidential Information for anyone other than Leviton, other than as expressly authorized by Leviton. You agree that You will not, nor shall You aid, assist and/or cause anyone else to, decompile, disassemble, decode, translate, reproduce, redesign, reverse engineer or otherwise attempt to create any source code that is derived from any of the Confidential Information, or any part thereof, provided to You. 
2. Confidential Information.  The term “Confidential Information” refers to any information provided to You as part of the Product Testing process and includes but is not limited to information disclosed to You through the Leviton Product Testing Platform, through Product evaluation, from instructions sheets, through use of Leviton apps, websites, telephones, firmware, intellectual property partly or solely owned by Leviton, or any other information provide to You in order to facilitate Your participation in the Product Test.  Information shall not be deemed to be Confidential Information which (i) was in the public domain at the time it was disclosed to You or subsequently becomes part of the public domain without breach by You of this Agreement; (ii) was known to You prior to the date of this Agreement as shown by clear and convincing evidence of contemporaneous written or machine readable data; (iii) is disclosed by You with the prior written approval of Leviton; or (iv) becomes known to You, on a non-confidential basis, from a source other than Leviton, without breach of this Agreement by You and without a breach of any confidentiality obligations to such source.
3. Notification Obligations. You will notify Leviton in writing immediately if You become aware of any unauthorized use or disclosure of Confidential Information. You will also notify Leviton in writing as soon as possible after receiving a request to disclose Confidential Information to comply with legal obligations.
4. Rights and Ownership. Confidential Information includes intellectual property owned solely by Leviton. Nothing contained in this Agreement shall be construed as conferring to You, by license or otherwise, any rights in any of the Confidential Information, and no such license or rights are granted by this Agreement. Leviton shall retain all rights, title and interest in the Product and any related reports, drawings, notes, specifications and/or instruction sheets. You grant to Leviton all rights, title and interest in all related reports, drawings, notes, specifications, etc. created by You for Leviton during the course of Your evaluation of the Product. The Product shall remain personal property, and shall not become part of other personal or real property by reason of annexation. You shall not offer, loan, transfer, encumber, sell or otherwise dispose of the Product to any third party without having received prior written authorization of Leviton. Any such unauthorized disposal shall be deemed null and void. 
5. Feedback. Leviton shall own all feedback, comments, suggestions, ideas, concepts and changes that You provide as part of the Product Test and all associated intellectual property rights (collectively the "Feedback") and You hereby assign to Leviton all of Your right, title and interest thereto. You will not knowingly provide Leviton any Feedback that is subject to third party intellectual property rights. You agree to cooperate fully with Leviton to enable Leviton to register and/or protect any associated intellectual property rights and/or confidential information.
6. User Obligations. You agree to use and test the Product throughout the term of this Agreement, for the sole purposes of evaluating the performance and functionality of the Product and to provide Leviton feedback about such performance and functionality. Evaluation of the Product may require professional installation, Internet, WiFi service, or have other requirements in order to facilitate the testing of the Product or for interacting with the Leviton Product Testing Platform.  This is Your responsibility and provided at Your expense only.
7. Term. This Agreement shall commence as of the date You accept this agreement on the Leviton Product Testing Platform, and shall continue until expired or terminated as set forth below. This Agreement shall expire 12 months after the completion of Your most recent Product Test, unless earlier terminated at any time or any reason by either Party upon the provision of written notice that is effective 10 days after such delivery. At any time, and in its sole discretion, Leviton may terminate a particular Product Test by written notification (email or through the Leviton Product Testing Platform) to You. If You have not received any written communication regarding any Product Test for at least 30 calendar days, then Your participation in that particular Product Test has ended. Upon expiration or termination of this Agreement for any reason, Your obligation to protect Confidential Information continues for 5 years thereafter. The obligations contained in this Agreement shall survive the expiration or termination of this Agreement.
8. Termination/Expiration Obligations. Upon request by Leviton or upon expiration or termination of this Agreement, You shall promptly return the Product, related drawings, notes, specifications, instructions sheets, etc. (whether provided to You by Centercode or Leviton or created by You for Leviton), and any copies or duplicates of such related drawings, notes, specifications, instruction sheets, etc., to Leviton. Any related costs, including professional removal of installed Product, is at Your expense.  Leviton reserves the right at any time to remove or replace Product or alter Product features, specifications, capabilities, functions, manufacturing release dates, general availability, etc.  Subject to the terms and conditions of the particular Product Test, and in its sole discretion, Leviton may replace the prototype Product with a commercially available Product, when available.  Leviton may require that You return the prototype Product to Leviton. All Products should be installed and used only as instructed by Leviton, and should only be used in locations instructed by Leviton.  
9. Disclaimer of Warranties. You acknowledge that the Product is a pre-production prototype that may not have been completely tested in all situations. Leviton does not guarantee that the Product is free of errors or that it will reliably detect dangerous arc fault, short circuit, miswiring, or other conditions.  Any use of the Product is at Your own risk and Product is provided to You “AS IS.”  LEVITON MAKES NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, GOOD TITLE, COMPATIBILITY WITH THIRD PARTY SOFTWARE AND FIRMWARE, AND AGAINST INFRINGEMENT. Moreover, Leviton is not responsible for any internet service provider failures or delays.

Accordingly, given the nature of the pre-production prototype Product, You agree not to install or use the Product in mission critical or safety of life circuits/applications, including but not necessarily limited to: life support, refrigerators, freezers, etc. used to prevent food goods spoilage, emergency lighting or lighting circuits where loss of power could pose a safety risk, fire/smoke detector circuits and security systems.  The Product may be subject to RF interference. Subject to the foregoing, it is recommended that the Product should be installed only in a general use area.

10. Limitation of Liability. You agree that Leviton shall not be responsible for any loss or damage to You caused by defect of the Product, failure of Leviton to deliver the Product, failure of the Product furnished hereunder to function, or Your failure to use, place, or install the Product in the recommended or proper manner. NEITHER PARTY SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE PRODUCT OR THE FEEDBACK PROVIDED HEREUNDER. Both parties agree to indemnify and hold the other harmless from any liability, loss, cost, damage or expense, including attorney's fees, as a result of any claims which may be made by any person, including but not limited to You, or any third parties that arise out of, or result from, the manufacture, delivery, actual or alleged ownership, performance, use, operation or possession of the Product furnished hereunder, whether such claims are based on breach of contract, absolute liability or any other legal theory.
11.   Assignment. Neither Party may assign any rights under this Agreement.  Any attempted assignment shall be null and void.
12.   Remedies. You acknowledge that money damages would not be a sufficient or adequate remedy for any breach of this Agreement, which will cause irreparable damage and continuing financial loss to Leviton.  Consequently, in the event of any breach or threatened breach of such restrictions, Leviton shall be entitled to specific performance and injunctive relief to prevent and remedy any such breach or threatened breach without the need to post a bond, in addition to all other remedies available at law or in equity and You agree not to contest Leviton’s efforts to seek such remedies.
13. Severability, Waiver. In the event a court of law finds any provision of this Agreement void and unenforceable, the remaining provisions shall remain in full force and effect. No failure or delay by Leviton in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
14. Dispute Resolution. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, EXCLUDING ITS CONFLICT OF LAW PROVISIONS. ANY JUDICIAL PROCEEDING ARISING OUT OF THIS AGREEMENT OR THE PRODUCT TEST MUST BE BROUGHT IN THE STATE OR FEDERAL COURTS HAVING JURISDICTION OVER SUFFOLK COUNTY, NEW YORK, AND YOU CONSENT TO SUCH PERSONAL JURISDICITION BY SUCH COURTS. CHANGE OF VENUE AND JURY TRIAL ARE WAIVED.
15.  Notice. Any notice or legal process required or permitted to be given pursuant to this Agreement shall be in writing and shall be effective when delivered to the addresses listed in this Agreement, as follows: upon personal delivery (effective on delivery), email with electronic confirmation (effective on sending), or by certified or registered mail, return receipt requested (effective 3 business days after posting).
16.  Entire Agreement. This Agreement represents the entire agreement between the parties regarding the subject matter hereof and supersedes any and all prior agreements between the Parties, whether written or oral, regarding the subject matter hereof. This Agreement may not be modified or amended except by the written acceptance of both parties.

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first set forth above, in counterparts, by handwritten or electronic signature (indicated as such by acceptance of this agreement), each of which shall be considered an original, and part of one and the same instrument.