Mutual Non-Disclosure Agreement
Last updated: Jan 11, 2023
THIS AGREEMENT is made and entered into as of (the “Effective Date”) by and between CloudSaver, Inc., a Delaware Corporation with a place of business at 9401 Indian Creek Parkway, Suite 1500, Overland Park, KS 66210 (“CloudSaver”) and you or the entity or organization that you represent (“Company”).
CloudSaver and Company intend to exchange information for the purpose of exploring a potential business relationship (the “Purpose”). In the course of such exchange of information, it is anticipated that each party may disclose or deliver to the other certain trade secrets or other confidential or proprietary information for such Purpose. The parties have entered into this Agreement in order to assure the continued confidentiality of such trade secrets and other information in accordance with the terms of this Agreement.
This Agreement becomes binding and effective on Company when you enter into an Order (as defined below) with CloudSaver.
NOW, THEREFORE, for good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged by the parties) the parties agree as follows:
In this Agreement the following terms shall have the meanings ascribed to them as follows:
1.1. “Confidential Information” means the confidential, secret or proprietary information of one party (the “Disclosing Party”), including without limitation financial and business information such as, without limitation, financial and business plans, financial statements, marketing plans, business ideas and strategies, information concerning employees, clients, customers, and contracts, and technical information such as, without limitation, information and ideas concerning software, hardware, products and Technology which has been or may hereafter be disclosed, directly or indirectly to the other party hereunder (the “Recipient”), either orally, in writing or in any other material form, or delivered to the Recipient.
1.2. “Intellectual Property Rights” means all intellectual and industrial property rights including all rights to copyrights, trademarks, patents, inventions, discoveries, industrial designs, design rights, trade secrets and information of a confidential nature; and
1.3. “Technology” means any technology, discovery, invention, design, process, practice, procedure, know-how, trade secret, work or other intellectual property including any computer program, computer hardware, mask work, or integrated circuit topography.
1.4. “Order” means a separate order for Software and/or Services pursuant to this Agreement: (a) completed and submitted by Company online at the CloudSaver site and accepted by CloudSaver or (b) executed by CloudSaver and Company.
2.1. Disclosure of Information. Each of the parties shall disclose or deliver to the other such Confidential Information as the Disclosing Party, in its sole discretion, deems necessary or desirable for the Purpose. The Recipient may in its sole discretion refuse to receive any information or materials offered to be disclosed or delivered by the Disclosing Party.
2.2. Permission to use Information. Each party hereby grants to the other a non-exclusive, non- transferable, personal license to use Confidential Information disclosed to it hereunder by the other solely for the Purpose. No license is granted to the Recipient to use Confidential Information received hereunder for any purpose other than the Purpose.
2.3. Non-Disclosure. Each party agrees that it (i) shall not copy or reproduce any of the Confidential Information of the other without the express written consent of the other; (ii) will use reasonable care and not less than the same care and discretion to avoid disclosure, publication, or dissemination of Confidential Information of the Disclosing Party, as the Recipient employs with similar information of its own which it does not desire to publish, disclose, or disseminate; and (iii) will disclose Confidential Information only to its employees, officers, directors and advisors on a need to know only basis for the Purpose.
2.4. Limitations. Notwithstanding the foregoing, the Recipient of Confidential Information shall be under no duty hereunder with respect to any Confidential Information of the Disclosing Party which (i) was known or developed by the Recipient prior to the disclosure thereof by the other party; (ii) properly comes into its possession from a third person which is not under any obligation to maintain the confidentiality of such Confidential Information; (iii) is or becomes part of the public domain other than through the Recipient’s fault; (iv) is independently developed by the Recipient without use of the Confidential Information of the Disclosing Party; or (v) is required to be disclosed by law or pursuant to an order of a court or tribunal, provided that the Recipient uses its best efforts to give the Disclosing Party prior written notice of such a disclosure and takes reasonable actions to avoid such disclosure or minimize its extent.
2.5. No Impairment. The terms of confidentiality under this Agreement shall not be construed to limit either party’s right to independently use, develop, or market products without use of the other party’s Confidential Information (so long as such use, development, or marketing does not infringe or violate any of the Intellectual Property Rights of the other).
2.6. Third Party Information. Each party agrees not to disclose to the other any proprietary, confidential, secret or private information of any third person which it is under a duty not to disclose, or any intellectual property which the Recipient cannot use without violating or infringing an Intellectual Property Right of a third person, without the prior written consent of the other party.
2.7. No Representations. Although each party will use reasonable efforts to ensure the accuracy of Confidential Information disclosed to the other, neither party makes any representation or warranty as to the accuracy or completeness of such Confidential Information. Neither party will have any liability to the other under this Agreement for the accuracy or completeness of Confidential Information.
2.8. No License. The Recipient agrees that no license or conveyance of any rights to Confidential Information is granted to the Recipient or implied under this Agreement.
2.9. Termination. This Agreement may be terminated by either party by written notice to the other at any time. Termination of this Agreement shall not affect the Recipient’s obligations hereunder with respect to Confidential Information that has been disclosed or delivered prior to termination.
2.10. Return. Upon termination of this Agreement or at the request of the Disclosing Party, the Recipient shall promptly deliver to the Disclosing Party all Confidential Information of the Disclosing Party and all copies and reproductions thereof in its possession or under its control.
2.11. Enforcement of Confidentiality Obligations. The Recipient agrees that its obligations hereunder are necessary and reasonable to protect the Disclosing Party, and expressly agrees that monetary damages would be inadequate to compensate the Disclosing Party for any breach of any covenant or agreement set forth herein. The Recipient agrees and acknowledges that any such violation or threatened violation would cause irreparable injury to the Disclosing Party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the Disclosing Party shall be entitled to obtain injunctive relief against any threatened breach of this Agreement or the continuation of any such breach, without the necessity of proving actual damages.
3.1. Notices. Any notices permitted or required under this Agreement shall be in writing and shall be mailed by registered mail or sent by facsimile addressed to the respective party at the address set forth in the preamble to this Agreement, or to such other address as may be specified by a party in the same manner.
3.2. Publicity. Neither party shall make or cause to be made any press release or public announcement relating to this Agreement or the Purpose, or otherwise communicate with any news media in respect of the Purpose or this Agreement without the prior written consent of the other party (which such other party may give or withhold in its sole discretion). Further, this Agreement and the Purpose shall be treated as part of the Confidential Information.
3.3. Independent Research. Each party shall have the right to conduct independent research either alone or in association with other persons in the fields covered by this Agreement without being required to account to the other party in any way whatsoever.
3.4. No Obligation to Complete Transactions. Nothing herein shall imply any obligation of either party to proceed with any transaction between the parties, and each party explicitly reserves the right to terminate the discussions contemplated by this Agreement for any reason or no reason, without liability for such termination.
3.5. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Kansas, without reference to its choice or conflict of law provisions. Each Party attorns to the jurisdiction of the federal and state courts of the State of Kansas with respect to matters arising out of or related to this Agreement.
3.6. No Assignment. Neither party may assign this Agreement, nor may any of the rights hereunder be assigned or otherwise transferred to any third party, without the prior written consent of the other party. Any attempted or purported assignment or other such transfer by either party to any third party without such consent having first been obtained shall be void.
3.7. Further Assurances. Each party shall provide such further documents or instruments reasonably required by the other party to effect the purpose of this Agreement or to carry out its provisions, whether before or after the termination of this Agreement.
3.8. Severability. If any portion of this Agreement is found to be illegal or unenforceable, such provisions shall be severed or modified to the extent necessary to make this Agreement enforceable, and so severed or modified, this Agreement shall remain in full force and effect.
3.9. Waiver. The waiver of any breach of any one or more of the provisions of this Agreement shall not be, or be construed to be, a waiver of any subsequent or other breach of this Agreement; nor shall any failure on the part of the non-breaching party to require the exact full and complete compliance with any of the provisions of this Agreement be construed as in any manner changing the terms hereof.
3.10. Counterparts. This Agreement may be executed in any number of counterparts and by the different parties in separate counterparts, each of which when executed shall be deemed to be an original, and all of which taken together shall constitute one and the same agreement with the same effect as if such signatures were upon the same instrument. Delivery of an executed counterpart hereof by telecopier shall be as effective as delivery of a manually executed counterpart hereof.
3.11. Entire Agreement. This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous negotiations, discussions, and understanding of the parties, whether written or oral.