Gravity Audio Solution Demo Kit Use and Return Agreement

FASETTO DEMO KIT AGREEMENT

This Fasetto Demonstration Kit Agreement (“Agreement”) is entered into and is effective as of the date this Agreement is accepted (“Effective Date”) by and between Fasetto, Inc., a Delaware corporation (“Fasetto”) and the party that clicks “Accept” at the end of this Agreement (the “Kit User”) and its employees, agents, contractors, affiliates and assigns.
RECITALS

Fasetto has developed computer software and hardware for enabling a platform for multi-device communication, data sharing, and data streaming known as the GravityTM platform (the “Fasetto Technology”).

In order to test, evaluate, and utilize the Fasetto Technology, Fasetto has also produced demonstration kits which include, but are not limited to, a transmitting demonstration kit and a receiving demonstration kit (the “Demo Kits”).

As provided to the Kit User, the Demo Kits are designed to enable the Kit User to connect the Demo Kit to the Kit User’s computer hardware or other systems to test and evaluate the Fasetto Technology.

The Demo Kits are provided within tamper resistant sealed hardware and contain hardware, software, trade secrets, and other intellectual property that is confidential, proprietary, and valuable to Fasetto.

To ensure that the Demo Kits and related Fasetto Technology remains protected, Fasetto and the Kit User have agreed to allow the Kit User to utilize the Demo Kit strictly subject to the terms and conditions as set forth in this Agreement.

As part of those discussions, Fasetto will share vitally important confidential and proprietary information about the Fasetto Technology by providing the Demo Kits to Kit User under the terms of this Agreement.

In order to disclose that confidential and proprietary information to Kit User, Kit User has agreed to keep all such information confidential and to ensure that it is not disclosed to any outside third parties.

Therefore, for good and valuable consideration, the receipt of which is acknowledged, the parties agree as follows:

AGREEMENT

1. Kit Possession and Ownership. While the Kit User has physical custody of the Demo Kit, Kit User agrees to not attempt to open the Demo Kit, break any tamper evidence seals, remove any screws or fasteners, make any attempt to see what hardware or software is stored within the Demo Kit, loan, give, or transfer possession of the Demo Kit to any third party for any reason whatsoever, or utilize the Demo Kit and related Fasetto Technology in any way to assist Kit User or any third party to develop technology, hardware, or software that competes with Fasetto or its products and services in any way. Kit User expressly acknowledges and affirms that the Demo Kit, Fasetto Technology, and all Confidential Information is owned entirely by Fasetto and the Kit User’s possession of or use of the Demo Kit does not grant Kit User any ownership interest in the Demo Kit as all right, title, and interest in the Demo Kit shall remain with Fasetto. Should any modifications, changes, or derivative works related to the Demo Kit or Fasetto Technology occur while or after Kit User has possession of the Demo Kit (collectively “Improvements”), all such Improvements shall be owned by Fasetto. Should Kit User acquire any title, right, or interests to such Improvements, Kit User hereby assigns such title, right, and interest in such Improvements to Fasetto and hereby grants Fasetto power of attorney to effectuate Kit User’s obligations under this section.
2. Possession, Return, and Deposit. Kit User agrees to return the Demo Kit to Fasetto within one (1) business day (or longer if one (1) business day shipping is unavailable in which case Kit User shall use the fastest shipping available) of receiving request from Fasetto for a return of the Demo Kit, within ten (10) days of the Purpose (defined below) being completed, within three (3) days of any becoming aware of any physical damage outside of normal wear and tear to the Demo Kit, or within thirty (30) days of the date that the Demo Kit was last used by Kit User. The Demo Kit must be returned to Fasetto by FedEx, DHL, UPS, or the US Mail at the address listed in this Agreement with a minimum of $1000 of insurance on the package and be sent to Fasetto by a delivery means that can be tracked and that requires a signature to acknowledge receipt and return of the Demo Kit. Kit User agrees to provide this tacking information to Fasetto upon request Kit User agrees to pay a Deposit of $750 for a 5.1 kit and $1000 for a 7.2 kit and upon receipt of each Demo Kit which shall be refunded by Fasetto if Kit User complies completely with this Agreement within thirty (30) days that the Demo Kit is returned to Fasetto.
3. Definition of Confidential Information. “Confidential Information” means any information disclosed explicitly or implicitly by Fasetto to Kit User by Kit User’s acquisition of the Demo Kit including but not limited to the Fasetto Technology, intellectual property, or any other information that is proprietary to Fasetto that Kit User has access to either directly or indirectly, in writing, orally, or by inspection of tangible objects or products including the Demo Kits, which includes, but is not limited to, designs, circuitry, solid state drives, computer storage, ideas, documentation, technical data and know-how, patentable subject matter, copyrightable subject matter or matter that could be copyrightable if placed within a tangible medium, software, source code, object code, and other information about systems, processes, concepts, practices, trade secrets, and procedures. However, Confidential Information does not include any information which Kit User can prove by clear and convincing evidence:
   (a) is independently developed by Kit User without reference to the Confidential Information;
   (b) is lawfully received free of restriction from a third party having the right to furnish such Confidential Information;
   (c) has become generally available to the public without breach of this Agreement by Kit User;
   (d) at the time of disclosure to Kit User was known to such party free of restriction; or
   (e) Fasetto agrees in writing is free of such restrictions.
4. Duty of Confirmation. Kit User expressly acknowledges that virtually all information relating to the Demo Kits and Fasetto Technology is Confidential Information and subject to the terms of this Agreement. Should Kit User believe any information about the Demo Kit the Fasetto Technology is not Confidential Information, Kit User must identify such information to Fasetto in writing within ten (10) days of receiving such information at which time Fasetto can elect to request the return of the Demo Kit or confirm that such information is indeed not Confidential Information. Kit User’s failure to identify any information received from Fasetto as not being Confidential Information in the time frame set forth herein shall result in that information being Confidential Information and subject to the terms set forth herein.
5. Acknowledgement. Kit User acknowledges and agrees that Confidential Information is highly proprietary to and a valuable trade secret of Fasetto and that any disclosure or unauthorized use thereof may cause irreparable harm and loss to Fasetto.
6. Purpose. It is agreed and understood that providing access to the Demo Kits to Kit User under this Agreement will be made only for the purpose of evaluating a business relationship between the Kit User and Fasetto or for Kit User and Fasetto to complete their respective obligations to one another during the course of a business relationship (the “Purpose”).
7. Intent of the Parties. Although Fasetto may specifically designate certain information as “Confidential Information,” Fasetto shall be under no obligation to do so and Kit User acknowledges that any and all information, the Demo Kit, and Fasetto Technology disclosed or provided by Fasetto to Kit User shall be considered Confidential Information unless Kit User can establish by clear and convincing evidence that such information is generally known to the public or not Confidential Information as defined herein.
8. Use of Confidential Information. Kit User agrees to keep confidential and not disclose nor copy the Confidential Information and agrees not to use the Confidential Information for any purpose other than the Purpose set forth above. No other use or disclosure of Confidential Information by Kit User shall be permitted without the prior written approval of Fasetto.
9. Handling of Records. Kit User agrees that it will only allow employees, agents, or contractors (“Agents”) who are assigned to assist Kit User in its evaluation of the Fasetto Technology will have access to the Demo Kit and Confidential Information and no other Agents will have access to the Demo Kits and Confidential Information. All papers or other hard copies of Confidential Information must be secured in a locked cabinet or shredded or otherwise destroyed at the end of each business day and all electronic data bearing Confidential Information must be stored on Kit User’s servers (or servers where Kit User stores its own data and confidential information) and that all access to such servers must be password protected. Further, any and all documents or other files stored on Kit User computers must be individually password protected.
10. Disclosure Required by Law. If Kit User becomes aware that it may be required by law, regulation or order of a court of competent jurisdiction to disclose any of the Confidential Information, Kit User will immediately notify Fasetto, in writing, of that fact and of all relevant surrounding circumstances. Kit User shall use its best efforts to resist disclosure and to maintain the confidentiality of any Confidential Information and shall assist Fasetto in obtaining a protective order limiting disclosure. Subject to the foregoing, Kit User may make any disclosure of the Confidential Information required by law, regulation, or order of a court of competent jurisdiction. However, Kit User’s disclosure of Confidential Information as set forth in this section shall not enable Kit User to make any further disclosure of Confidential Information and does not in any way render such Confidential Information part of the public domain.
11. Warranty. EXCEPT AS MAY OTHERWISE BE REQUIRED BY ANY CONTRACT, ALL CONFIDENTIAL INFORMATION, DEMO KITS, AND FASETTO TECHNOLOGY IS PROVIDED “AS IS.” FASETTO MAKES NO WARRANTIES, EXPRESS, IMPLIED, OR OTHERWISE, REGARDING THE ACCURACY, COMPLETENESS, OR PERFORMANCE OF CONFIDENTIAL INFORMATION, THE FASETTO TECHNOLOGY, OR THE PERFORMANCE OR RELIABILTIY OF THE DEVELOPMET KITS. FURTHER, FASETTO EXPRESSLY DISCLAIMS ANY WARRANTY OF NON-INFIRNGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS BY KIT USER’S USE OF THE DEMO KIT.
    
    Kit User represents and warrants that the person acknowledging agreement to the terms of this Agreement has the fully legal authority to contractually bind Kit User.

12. Remedies. In the case of Kit User’s violation or threatened violation of this section, Fasetto is entitled to seek injunctive relief in addition to all legal remedies and that Kit User shall reimburse Fasetto for all costs associated with obtaining such legal remedies, including any attorney’s fees incurred by Fasetto. With respect to any breaches of this Agreement that are committed by Kit User with malicious intent, these remedies specifically include reimbursement for the loss of potential investments into Fasetto and related consequential damages.
13. Governing Law and Jurisdiction. Regardless of its place of execution, the validity, construction and performance of this Agreement shall be governed by the laws of the State of Arizona without reference to conflict of law provisions. Further, the parties agree to the exclusive jurisdiction of the state and federal courts located in Phoenix, Arizona without regard to conflicts of laws principals and agree that such courts are a convenient forum to resolve any disputes, between the parties.
14. Entire Agreement. Except as expressly set out in the Recitals to this Agreement, this Agreement constitutes the entire agreement of the parties and supersedes all prior or contemporaneous oral or written agreements with respect to the subject matter hereof. No variation or amendment to this Agreement shall be effective unless in writing and signed by the parties.
15. Waiver. The failure of either party to enforce or to exercise, at any time or for any period of time, any term of or any right arising pursuant to this Agreement does not constitute and shall not be construed as a waiver of such term or right and shall in no way affect the parties’ right to later enforce or exercise any term or right hereunder.
16. Term. This Agreement shall remain in effect until terminated by either party upon thirty (30) days written notice. The obligations of confidentiality and non-use of Confidential Information in this Agreement shall survive any termination of the Agreement and shall remain intact with respect to any information that continues to fall within the definition of Confidential Information.
17. Address. Fasetto’s address for purposes of contacting Fasetto or returning the Demo Kit is as follows:

Fasetto, Inc.
Attention: Demo Kit Return
4110 N. Scottsdale Rd., Suite 315
Scottsdale, AZ. 85251

18. Severability. If any part of this Agreement is for any reason finally adjudged by a court of competent jurisdiction or determined by a governmental body to be invalid or unenforceable, this Agreement shall continue in effect and such part shall be excised herefrom and not affect the validity of the remaining portions of this Agreement.
19. Authority. Each party hereby represents and warrants that it has full power and authority to enter into, deliver, and perform its duties and obligations under this Agreement.
20. Agreement Consideration. Kit User expressly acknowledges and affirms that it has had time to consider the terms of this Agreement, have this Agreement reviewed by counsel of its choosing, and that the terms of this Agreement form part of the consideration for Kit User’s discussions and potential business relationship with Fasetto.