Confidentiality & Mutual Non-disclosure Agreement
In consideration of us entering into discussions relating to the possible interest in a business, license, advice and or franchise, I hereby agree as follows:
1) “Confidential Information” (i) means any and all knowledge, know-how, information or techniques disclosed by the Disclosing Party to the Receiving Party which by its nature is generally considered proprietary and confidential including, without limitation, all information and data concerning the Disclosing Party’s clients and customers, business, marketing, product development plans, supplier information, forecasts, strategies and financial plans, and all research, data, specifications, plans, technical drawings, prototypes, formulas, computer programs, databases, mask works, designs, algorithms, trade secrets, patents, patent applications, technology, circuits layouts, names and expertise of employees and consultants, interfaces, materials, processes, ideas, inventions (whether patentable or not), schematics, models, documents, recordings, instructions, manuals, papers, or other materials of any nature whatsoever concerning the Disclosing Party’s proprietary data, process and technology, whether written or otherwise, as well as the existence of this Agreement and its terms and conditions. b) However, such disclosures will not be considered “Confidential Information” for the purposes of this Agreement if and when it; c) is published or becomes available to the general public other than through a breach of this or other similar Agreement; d) is obtained by the Receiving Party from a third party with a valid right to disclose it, provided that said third party is not under a confidentiality obligation to the Disclosing Party; e) was possessed by the Receiving Party prior to receipt from the Disclosing Party, other than through prior disclosure by the Disclosing Party, as evidenced by the Receiving Party’s business records; or f) is made subject to an order by judicial or administrative process requiring the Receiving Party to disclose any or all of the Confidential Information, provided however that the Receiving Party will promptly notify the Disclosing Party and allow the Disclosing Party reasonable time to oppose such process before disclosing any of the Confidential Information.
2) “Disclosing Party” (i) refers to the party whose Confidential Information is disclosed to the other.
3) “Receiving Party” (i) refers to the party, or any of its Representatives, receiving Confidential Information disclosed by the other.
4) “Representatives” (i) refers to any employees, advisers, assistants or agents of either of the two Receiving Parties named above in the introduction to this agreement, as the case may be.
5) “Use of Information” a) The Receiving Party will not, without the Disclosing Party’s prior written consent, use the Confidential Information, directly or indirectly, for any purpose other than performing its obligations to the Disclosing Party. In particular (without limitation), the Receiving Party agrees not to approach, or accept any work from, any client or customer of Breakawave where such opportunity may reasonably be said to have arisen through the Receiving Party’s access to information in his or her role as a Receiving Party, unless such work is directly mediated through and sanctioned by the receiving party. b) Intellectual property such as web site design, business model, business process, and markets served when communicated to the directors & employees of the Receiving Party, must be kept secure and not used within the Receiving Party or externally of the Receiving Party for commercial or personal gain.
6) Keep in Confidence a) The Receiving Party will keep and use all of the Confidential Information in confidence and will not, without the Disclosing Party’s prior written consent, disclose any part of the Confidential Information to any person, firm, corporation, or other entity regardless of any affiliation or relationship with the Receiving Party. b) This clause does not apply to disclosure of Confidential Information to the Receiving Party’s employees, agents or representatives whose functions require them to have Confidential Information for the purpose of performing the Receiving Party’s obligations to the Disclosing Party. The Receiving Party shall however first ensure that all such employees, agents and representatives are made aware of and comply with the Receiving Party’s obligations of confidentiality and non-disclosure under this Agreement as if they were parties to this Agreement.
7) Disclosure to Representatives a) The Receiving Party may only disclose Confidential Information to its Representatives to the extent absolutely necessary to assist the Receiving Party with matters directly related to those set out in paragraph A above, and shall ensure that all of those persons comply with the provisions of this agreement as if they were party to this agreement.
8) Construction a) Nothing in this Agreement will create, or be construed to create, any license to the Receiving Party or any obligation on either party to enter into a license or other agreement with respect to the Confidential Information. Furthermore, nothing contained herein will be deemed or construed to create between the parties hereto an agency relationship, employment relationship, franchisee, partnership or joint venture.
9) Remedy a) The Receiving Party acknowledges and agrees that due to the unique nature of the Disclosing Party’s Confidential Information, there can be no adequate remedy at law for any breach of its obligations here under, that any such breach or any unauthorized use or release of any Confidential Information may allow the Receiving Party or third parties to unfairly compete with the Disclosing Party resulting in irreparable harm to the Disclosing Party and therefore, that upon any such breach or any threat thereof, the Disclosing Party will be entitled to: i) terminate this Agreement and demand the immediate return of all Confidential Information; ii) recover its actual damages incurred by reason of such breach, including without limitation, its legal fees and costs of suit; iii) obtain injunctive relief to prevent such breach or to otherwise enforce the terms of this Agreement; and iv) pursue any other remedy available at law or in equity. b) The Receiving Party, the directors & employees of the Receiving Party will be held responsible for any such misuse of this information and will be held liable both individually & severally for any damages or potential damages or loss of income that may occur by negligent use of this information.
10) Entitlement to Injunction a) Furthermore, the parties specifically acknowledge that the unauthorized disclosure of Confidential Information would result in irreparable harm for which there is not adequate remedy at law. Each party therefore agrees that in the event of any unauthorized disclosure by the Receiving Party, the Disclosing Party will be entitled to an injunction and that no bond will be required. This remedy will be in addition to any other remedy available at law or in equity.
11) Notification of Release a) The Receiving Party will notify the Disclosing Party in writing immediately upon the occurrence of any unauthorized release of Confidential Information or other breach of this Agreement of which it is aware. In the event of a disputed disclosure, the Receiving Party will bear the burden of proof of demonstrating that the information falls under the above-described exceptions.
12) Return of Confidential Information a) The Disclosing Party may at any time require the Receiving Party to return immediately any Confidential Information in the Receiving Party’s possession or control.
13) Waiver a) No condoning or overlooking by either party of any default or breach by any other party in respect of any such party’s rights under this Agreement will operate as a waiver of such party’s rights under this Agreement in respect of any continuing or subsequent default or breach, and no waiver will be inferred from or implied by anything done or omitted by such party, save only an express waiver in writing.
14) Prejudice a) No exercise of a specific right or remedy by either party precludes it from or prejudices it in exercising another right or pursuing another remedy or maintaining an action to which it may otherwise be entitled either at law or in equity.
15) Remainder a) In the event that any part, section, clause, paragraph or subparagraph of this Agreement will be held to be indefinite, invalid, illegal or otherwise voidable or unenforceable, the entire agreement will not fail on account thereof, and the balance of the Agreement will continue in full force and effect. b) Prior discussions and writings c) This Agreement supersedes all prior discussions and writings and constitutes the entire understanding between the parties relating to the subject matter of this Agreement and no modifications hereof will be binding unless executed in writing by the parties hereto.
16) Termination a) The obligations of confidentiality in this Agreement will continue for two years from the date hereof and will be binding upon the parties hereto and their respective representatives, successors and assigns.