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Confidentiality and Non-Discolsure Agreement

WHEREAS, Kennelsource has developed and is in the business of marketing, distributing and selling a web-based software technology solution known as Pawtracker™ (the "Software" or "Pawtracker™") to the pet care industry;

WHEREAS, Recipient is in the business of owning and operating pet care facilities and is interested in evaluating Pawtracker's™ functionality for possible license by Recipient from Kennelsource (the "Evaluation");

WHEREAS, Recipient acknowledges that the Software is proprietary to, and a valuable trade secret of, Kennelsource and is being made available to Recipient solely for the purpose of the Evaluation.

NOW THEREFORE, IN CONSIDERATION of the mutual promises and agreements made herein, and other good and valuable consideration, the parties hereto agree as follows:

  1. Definition of Confidential Information.
    (a) "Confidential Information" means all nonpublic information that Kennelsource discloses to recipient in connection with the Evaluation or which, under the circumstances surrounding disclosure ought to be treated as confidential by Recipient. "Confidential Information" includes, without limitation, the Software and any information in tangible or intangible form relating to Kennelsource's product pricing information, business policies or practices, the terms and conditions of any proposed or actual license or other agreements concerning Kennelsource's products, license negotiations marketing or promotional materials.

    (b) Confidential Information shall not include any information that (i) is or subsequently becomes publicly available without Recipient's breach of any obligation hereunder; (ii) became known to Recipient prior to Kennelsource's disclosure of such information to Recipient pursuant to the terms of this Agreement; (iii) became known to Recipient from a source other than Kennelsource other than by the breach of an obligation of confidentiality owed to Kennelsource; (iv) was independently developed by Recipient prior to disclosure by recipient as can be demonstrated by credible written evidence pre-dating such disclosure.

    (c) Except as otherwise set forth in this Agreement, the term "Recipient" shall include any person, partnership, joint venture, corporation or other form of enterprise, domestic or foreign, including but not limited to subsidiaries, that directly or indirectly, control, are controlled by, or are under common control with Recipient.
  2. Purpose. Recipient represents and warrants that the Confidential Information disclosed by Kennelsource to Recipient shall only be used for purposes of the Evaluation and for no other purpose.
  3. Protections.
    (a) Recipient shall hold the Confidential Information in the strictest confidence and shall not disclose or transfer any Confidential Information to any other person or entity. Recipient shall not permit any disclosure, transfer or use of Confidential Information not specifically authorized by Kennelsource in writing.

    (b) Recipient may not use the Confidential Information or Software in any manner to develop, produce, market or support its own software or product development.

    (c) Recipient shall take reasonable security precautions to protect the Confidential Information at least as great as the precautions it takes to protect its own confidential information, but no less than reasonable care.

    (d) Access to Confidential Information by Recipient's employees shall be limited by Recipient to employees having a specific need to know. Recipient shall be responsible for its employees and their compliance with this Agreement.

    (e) Recipient shall refrain from disclosing, reproducing, summarizing and/or distributing Confidential Information except in pursuance of a business relationship with Kennelsource, and only as otherwise provided hereunder.

    (f) Recipient shall refrain from modifying, reproducing, reverse engineering, decompiling or disassembling any software code disclosed by Kennelsource under the terms of this Agreement.

    (g) Recipient shall notify Kennelsource immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this Agreement by Recipient or its employees, and will cooperate with Kennelsource in every reasonable way to help it regain possession of the Confidential Information and prevent its further unauthorized use or disclosure.
  4. Permitted Disclosure. Recipient may disclose Confidential Information only in accordance with a judicial or other governmental order, provided that Recipient gives Kennelsource reasonable notice prior to such disclosure to allow Kennelsource a reasonable opportunity to seek a protective order or other protective measures, or (ii) obtains written assurance from the applicable judicial or governmental entity that it will afford the Confidential Information the highest level of protection afforded under applicable law or regulation.
  5. Return of Information. At Kennelsource's request, recipient shall return all originals, copies and reproductions of Confidential Information, together with any materials summarizing, based upon or created from the Confidential Information, or at Kennelsource's option, certify destruction of the same.
  6. No License. This Agreement does not constitute a grant or an intention or commitment to grant any right, title or interest in the Confidential Information, Software or under any patent, trade secret, copyright, trademark or other intellectual property right of Kennelsource to Recipient. Kennelsource is not obligated to grant to Recipient any license or rights in or to the Software or under any patent, trade secret, copyright, trademark or other intellectual property right of Kennelsource.
  7. No Obligation to Disclose. Kennelsource has no obligation under this Agreement to disclose to Recipient any Confidential Information which Kennelsource elects to withhold.
  8. Injunctive Relief. It is understood and agreed that damages are an inadequate remedy in the event of a breach or intended or threatened breach by Recipient of this Agreement and that any such breach by Recipient will cause Kennelsource irreparable injury and damage; accordingly, Recipient agrees that Kennelsource shall be entitled to preliminary and permanent injunctive relief in the event of a breach or intended or threatened breach by Recipient, without waiving any additional rights or remedies, including monetary damages, otherwise available to Kennelsource at law or in equity.
  9. Entire Agreement. This Agreement constitutes the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes any prior agreements or understandings, written or oral, between the parties. This Agreement may not be amended or modified except in writing signed by a duly authorized representative of both parties.
  10. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Illinois, without regard to the conflict of laws principals thereof. The parties consent to the jurisdiction of the State of Illinois, and designate the federal and state courts of Cook County for venue purposes.
  11. Notification. All notices, requests and demands, and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given, made, and received only: (i) upon delivery, if delivered personally to a party; (ii) on the first business day after the date of dispatch, if by facsimile transmission; (iii) one (1) business day after deposit if delivered to a nationally recognized courier service offering guaranteed overnight delivery; or (iv) three (3) business days after having been deposited in the U.S. mails, certified mail, postage prepaid, return receipt requested. All notices shall be sent to the attention of the individuals that have executed this Agreement at the address set forth in the introductory paragraph.
  12. Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, then such provision shall be deemed modified or replaced by other provisions which are as similar as possible in terms to such invalid, illegal or unenforceable provision to the extent necessary to make such provision enforceable by such court. The invalidity, illegality or unenforceability of any provision herein shall not affect or impair the enforcement of any other provision of this Agreement which shall remain enforceable to the fullest extent permitted by law.
  13. Waiver. Any waiver of, or promise not to enforce, any right under this Agreement shall not be enforceable unless evidenced in a writing signed by the Party making such waiver or promise. No waiver by any party hereto of any default shall operate as a waiver of any other default or of the same default on any future occasion. No delay, course of dealing or omission on the part of any party hereto in exercising any right or remedy shall operate as a waiver thereof, and no single or partial exercise by any party of any right or remedy shall preclude any other or further exercise thereof or the exercise of any other right or remedy by such party.
  14. Termination; Survival. Either party may terminate this Agreement with or without cause upon five (5) days prior written notice to the other party. All sections of this Agreement relating to the rights and obligations of the parties concerning Confidential Information disclosed during the term of the Agreement shall survive any such termination.
  15. Successors and Assigns. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; provided, however, that neither party may assign this Agreement (whether by operation of law, sale of securities or assets, merger or otherwise), in whole or in part, without the prior written approval of the other party.
  16. Electronic Authentication. Pursuant to the Electronic Signatures in Global and National Commerce Act ("E-Sign"), but notwithstanding any applicable Illinois statute, regulation, or other rule of law, including enactment of the Uniform Electronic Transactions Act ("UETA"), any affirmative act of Recipient indicating acceptance of the terms and conditions contained herein conveyed by means of a digital signature, electronic mail, internet communication or other similar authentication (hereinafter "Electronic Authentication") shall be fully valid, binding and enforceable against Recipient, and is conveyed with the full power and authority to make the representations and warranties contained herein. Recipient hereby waives any defense of unenforceability of this Agreement based solely on the existence of this Agreement or its endorsement in electronic form.

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We have a 100% satisfaction guarantee. If you are not satisfied with the performance of Pawtracker™, just let us know within 30 days after signing your subscription agreement. We will cheerfully return all of your money to you and cancel the agreement.