This Mutual Non-Disclosure Agreement (this “Agreement”) shall apply to all Confidential Information disclosed between the parties, which will include all Confidential Information disclosed prior to the Effective Date. The party receiving Confidential Information (“Recipient”) from the party disclosing Confidential Information (“Discloser”) will use the Confidential Information only for the purpose for which it was disclosed hereunder. Each party is both a Discloser and a Recipient hereunder.
For the purposes of this Agreement “Confidential Information” shall mean (but not be limited to) any and all current and future product roadmap information, marketing plans, financial information, customer and vendor related data, services and support, procedures, and all other business information including, but not limited to software, strategies, plans, documents, techniques, drawings, designs, specifications, technical or know-how data, research and development, ideas, inventions, Trade Secrets and patent disclosures, that may be disclosed between the parties, whether in written, oral, electronic, website-based, or other form, provided that:
it is marked or accompanied by documents clearly and conspicuously designating it as “confidential”, “Trade Secret” or the equivalent; or
it is identified by Discloser as confidential before, during or promptly after the presentation or communication; or
is reasonably understood to be confidential.
This Agreement and associated discussions and/or negotiations shall also be deemed to be Confidential Information and protected from unauthorised disclosure under the terms of this Agreement.
“Trade Secret” shall mean information identified as such, used in the Discloser’s business and is a formula, pattern, compilation, program, device, method, technique, or process that gives the owner a competitive advantage over persons who do not know or use it, and is the subject of reasonable efforts to maintain its secrecy.
Recipient will use the same degree of care as Recipient uses to protect its own Confidential Information and Trade Secrets but not less than reasonable care, to prevent:
any use of Confidential Information not authorised in this Agreement;
communication of Confidential Information to any third party; or
publication of Confidential Information.
Recipient will permit access to Confidential Information provided by Discloser only to its and its subsidiaries’ and affiliates’ directors, employees, contractors and advisors who need to know the Confidential Information in connection with the purpose for which it was disclosed hereunder and who are under an obligation of confidentiality at least as stringent as those contained in this Agreement. Recipient will at all times remain responsible and liable for acts and omissions of any such persons with respect to the Confidential Information.
Unless the parties otherwise agree in writing, Recipient’s duty to protect Confidential Information expires three years from the date of disclosure, provided that the duty to protect Trade Secrets shall continue to be binding for so long as it remains a Trade Secret.
Recipient, upon Discloser’s written request, will promptly return all Confidential Information received from Discloser, together with all copies and compilations, or certify in writing that all such Confidential Information and copies and compilations thereof have been destroyed.
This Agreement imposes no obligation upon Recipient with respect to Confidential Information which:
was known to Recipient before receipt from Discloser;
is or becomes publicly available through no fault of Recipient;
is rightfully received by Recipient from a third party without a duty of confidentiality;
is developed by or on behalf of Recipient independently of and without use of or reference to any of Discloser’s Confidential Information; or
is disclosed by Recipient with Discloser’s prior written approval.
Unless legally restricted from doing so, if Recipient is required by a governmental body or court of law to disclose Confidential Information, Recipient agrees:
to give Discloser reasonable advance notice so that Discloser may contest the disclosure or seek a protective order;
to reasonably cooperate with Discloser's efforts to resist or narrow the required disclosure scope and obtain an order or other reliable assurance that confidential treatment will be accorded the Confidential Information; and
to disclose only Confidential Information that Recipient is legally compelled to disclose according to advice of its legal counsel.
Inadequacy of Damages
Each party acknowledges that damages for improper disclosure of Confidential Information may be irreparable; therefore, the injured party may be entitled to seek equitable relief, including injunction and preliminary injunction in addition to all other remedies available at law or in equity.
This Agreement shall remain in effect for a period of two years from the Effective Date, unless terminated earlier by either party with thirty (30) days’ prior written notice.
Notwithstanding any other provision to the contrary, the terms and conditions of this Agreement shall survive any termination with respect to Confidential Information that is disclosed prior to the effective date of termination.
No Obligation to Continue Commercial Discussions
Nothing in this Agreement shall impose an obligation on either party to continue discussions or negotiations, or an obligation on each party to disclose any information (whether Confidential Information or otherwise) to the other party.
The disclosure of Confidential Information by the Discloser shall not form any offer by, or representation or warranty on the part of Discloser to enter into any further agreement with Recipient.
Limited Warranties and Intellectual Property
Except as expressly stated in this agreement, Discloser makes no express or implied warranties nor representations concerning its Confidential Information, including but not limited to the accuracy or completeness of the Confidential Information.
Neither party acquires any intellectual property rights under this Agreement. Subject to the obligations of this Agreement, neither party will be precluded from independently developing technology or pursuing business opportunities similar to those covered by this Agreement.
United States of America Export Laws
Recipient will adhere to all applicable laws, including regulations of the U.S. Export Administration, and will not export or re-export any technical data or products received from Discloser, or the direct product of such technical data, to any proscribed person or country listed in the U.S. Export Administration regulations, or foreign national thereof, unless properly authorized by the U.S. government.
This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
Counterparts and Execution
This Agreement may be signed in multiple counterparts, each of which shall be an original, but all of which together shall constitute one instrument.
Execution and delivery of this Agreement by exchange of electronic copies bearing the electronic signature of a party hereto shall constitute a valid and binding execution and delivery of this Agreement by such party. Such electronic copies shall constitute enforceable original documents.
Relations Between the Parties
This Agreement does not create any agency or partnership relationship. Each party retains sole discretion to assign or reassign the job responsibilities of its employees.
This Agreement is not assignable or transferable without the prior written consent of the other party, except that it may be assigned to party’s affiliate without such consent so long as assignor remains primarily liable for assignee’s performance and assignee is not a competitor of the other party.
All additions or modifications to this Agreement must be made in writing and signed by authorised representatives of the parties.
The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights.
Any notice hereunder will be effective upon receipt and shall be given in writing, in English and delivered to the other party at its registered office or at such other address designated by written notice.
Governing Law and Jurisdiction
This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.