Confidential Information: Product Samples

Confidential Information: Product Samples

On occasion, a party may have an opportunity to receive “beta” or pre-market/pre-release samples or prototypes of future products, which are deemed confidential by the supplier. In such cases, the supplier may require additional special restrictions on the use and disclosure of such confidential samples, including a prohibition on reverse engineering (see fuller discussion on reverse engineering in the section entitled “Reverse Engineering”).

As the following exemplar illustrates, in addition to a prohibition against reverse engineering, a supplier may also require the provision of feedback (see fuller discussion on feedback in the section entitled “Feedback”) as a condition to providing pre-market/pre-release samples:

Exemplar N4C-1

Confidential Information furnished in the form of Samples shall be subject to the following additional terms. Recipient agrees: (a) to use Samples only for internal testing and evaluation in connection with the Purpose, except as agreed otherwise in writing; (b) not to use Samples or results from testing and evaluation of Samples in any submission to any government agency; (c) not to attempt to analyze or otherwise determine the chemical composition of the Samples; (d) to provide feedback from testing and evaluation in a form so as to not include Recipient’s Confidential Information unless where indicated; (e) upon request, to return all unused Samples to the Disclosing Party or dispose of Samples properly upon completion of testing and evaluation thereof; and (f) not to provide Samples or any product incorporating Samples to a third party unless Recipient has an agreement in place with such third party that is as restrictive as this Agreement, provided that in no event shall Samples or any product incorporating Samples to be provided to any competitor of the Disclosing Party.

In the following exemplar, the supplier disclaims any warranties as a condition to providing samples, usually if the samples have not been cleared for public use and/or the samples are provided without compensation:

Exemplar N4C-2

Prototypes or samples provided by the parties are supplied for information purposes only with all defects and faults, without any warranty whatsoever, and shall not constitute the basis of any present or future warranty. Each party warrants that it has the right to make disclosures under this Agreement. No other warranties, express or implied are made by either party under this agreement. Confidential information is provided “as is” with no warranty as to its accuracy or completeness.