DataCebo Mutual Confidentiality Agreement
SDV ENTERPRISE
This Mutual Confidentiality Agreement (this “Agreement”) is made effective as of ______________________(the “Effective Date”), by and between DataCebo Inc., a Delaware corporation with offices at 229 Berkeley st, 201, Boston, MA - 02116, and _______________, a ____ with offices at ______________, each a “party” and together the “parties.”
WHEREAS, the parties contemplate entering into a business relationship;
WHEREAS, in order for the parties to evaluate or enter into the contemplated business relationship, each party (a “Discloser”) may disclose to the other party (a “Recipient”) certain Confidential Information (as defined below); and
WHEREAS, each party has agreed to use and protect the Confidential Information of the other party in accordance with the terms hereof.
NOW, THEREFORE, in consideration of its receipt of such Confidential Information from the other party, and of the prospective business relationship, each party agrees as follows:
- Definition. “Confidential Information” means any proprietary, confidential and/or trade secret information of Discloser and/or others possessed by Discloser. Confidential Information may include, without limitation, information related to Discloser’s products, services, technology, methodologies, specifications, manufacturing or operating methods, know-how, business or marketing plans, business relationships, employees, customers, suppliers and any information which, given the totality of the circumstances, a reasonable recipient should have reason to believe is proprietary, confidential, or competitively sensitive. Confidential Information may be disclosed either in tangible form (including written or electronic form), orally, visually or in other intangible form (including, without limitation, presentations, displays, Internet transmissions, or inspections of writings, designs, drawings, photographs, models, prototypes, samples or facilities).
- Exceptions. Confidential Information will not include information that: (a) was in the public domain or otherwise known to the public when disclosed; (b) becomes part of the public domain or otherwise known to the public after disclosure, other than as a result of Recipient’s violation of this Agreement; (c) was in Recipient’s possession when disclosed and was not acquired directly or indirectly from Discloser; (d) is shown by written evidence to have been developed by Recipient independently after disclosure without benefit of the Confidential Information; or (e) was received after disclosure from a third party who did not require it to be held in confidence and who did not acquire it directly or indirectly from Discloser, with the burden of proof on the Recipient to show it was not Confidential Information. Confidential Information will not be deemed to be known to the public merely because any part of the Confidential Information is embodied in a general disclosure or because individual features, components or combinations thereof are now or become known to the public.
- Obligations. Recipient (a) will not disclose Confidential Information except to its employees, and then only to the extent necessary to achieve the purposes contemplated by this Agreement and only to employees informed of Recipient’s obligations under this Agreement who are bound by written agreement or otherwise to comply with such obligations, (b) will not use Confidential Information except for the purposes contemplated by this Agreement, (c) will use at least the same degree of care to safeguard Confidential Information that it uses to protect its own confidential and proprietary information, and in any event not less than a reasonable degree of care under the circumstances, (d) will not trade securities utilizing such Confidential Information, and (e) will make copies of materials embodying Confidential Information only as needed for such purpose, all of which will include any existing markings indicating that they are the Confidential Information of Discloser, or will have markings supplied by Discloser.
- Term and Termination. This Agreement shall commence on the last date of signature and continue in effect for a period of three (3) years thereafter, unless earlier terminated as permitted herein (the “Term”). Either party may terminate this Agreement at any time upon written notice to the other. All obligations of this Agreement shall survive termination with respect to any Confidential Information disclosed during the Term, until such time as the information no longer constitutes Confidential Information pursuant to Section 2 hereof.
- Return of Information. Upon termination of this Agreement or at any time upon Discloser’s request, Recipient will return or, upon requesting and receiving the written authorization of Discloser, destroy all materials embodying the Confidential Information of the Discloser.
- Notification of Breach. Recipient will notify Discloser immediately of any breach of this Agreement of which it becomes aware, and will assist and cooperate with Discloser in minimizing the consequences of such breach.
- Required Legal Disclosures. In the event that Recipient or its directors, officers, or employees are requested or required by legal process, by order of any court of competent jurisdiction, by any governmental agency, by any applicable law, rule or regulation, or by any applicable stock exchange or stock association rule to disclose any of the Confidential Information of Discloser, Recipient will give prompt written notice so that Discloser may seek a protective order or other appropriate relief. In the event that such protective order is not obtained, Recipient will disclose only that portion of the Confidential Information that its counsel advises that it is legally required to disclose, and will work with Discloser to minimize the extent and effects of such disclosure
- Equitable Remedies. Discloser will sustain irreparable harm by a breach of this Agreement by Recipient for which money damages would not be an adequate remedy. Recipient therefore agrees that, in the event of a threatened or continuing breach of this Agreement, Discloser will be entitled, without prejudice to all other available remedies, to seek immediate injunctive or other equitable relief without having to post a bond.
- Trade Secret Protection. The protections afforded to the Confidential Information under this Agreement are in addition to, and not in lieu of, the protections afforded under any applicable trade secrets laws.
- Ownership, No Licenses Granted. Confidential Information furnished to Recipient by Discloser shall remain the sole and exclusive property of Discloser. Nothing in this Agreement is intended to grant any rights or licenses to either party under any patent, copyright, trade secret or other intellectual property right, and the only right granted is the limited right to review such Confidential Information solely for the purpose contemplated by this Agreement.
- Disclaimer. All Confidential Information is disclosed "AS-IS" with no express or implied warranties of any kind, including, without limitation, any warranties of merchantability, fitness for a particular purpose or non-infringement. Recipient agrees that Discloser will not have any liability to Recipient relating to or resulting from the use of the Confidential Information or any errors therein or omissions therefrom.
- Entire Agreement. This Agreement is the complete and exclusive agreement of the parties with respect to its subject matter, supersedes all prior and contemporaneous written or oral understandings relating thereto, and will survive the expiration or termination of any other agreement. No amendment or modifications hereof shall be binding unless in writing and duly executed by authorized representatives of both parties.
- Governing Law, Venue. This Agreement will be subject to and be interpreted in accordance with the laws of the State of Florida, without regard to its choice of laws provisions. The courts presiding in Miami, FL will have exclusive jurisdiction to adjudicate any dispute arising out of this Agreement, and both parties irrevocably consent to the exclusive personal jurisdiction of such courts.
- Notices. All notices and other communications given under this Agreement will be in writing or electronically delivered in the English language, addressed to the undersigned representatives of the parties at the addresses or contact information below, and will be deemed to have been given on the date delivered when hand delivered, at the time of confirmation of transmission if sent by facsimile or electronic mail, one business day after mailing if sent via overnight courier return receipt, or four business days after mailing if sent by first-class registered or certified mail, postage prepaid.
- Binding Effect; No Assignment. This Agreement will be binding upon and inure to the benefit of the parties hereto. Neither party shall assign this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld.
- No Further Obligation. Neither party shall have any obligation to disclose Confidential Information to the other party. Nothing herein will obligate either party to proceed with any transaction with the other, and each party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement concerning a mutually agreeable business opportunity. Neither this Agreement nor the disclosure or receipt of Confidential Information constitutes or implies any promise or intention by either party to enter into a partnership, agency, employment, or joint venture relationship with the other party hereto.
- Waiver. Each party shall have the right to enforce the provisions of this Agreement in strict accordance with its terms. The failure of either party at any time to enforce its rights hereunder strictly in accordance with the same shall not be construed as having created a custom contrary to the specific provisions hereof or as having in any way modified or waived same.
- Severability. The provisions of this Agreement shall be several. Invalidity or unenforceability of one provision shall not affect any other provision of this Agreement.
- Counterparts. This Agreement may be executed in one or more counterpart copies, each of which shall be deemed an original and all of which shall together be deemed to constitute one agreement.
