Mutual Non-Disclosure Agreement
Please review the terms below.
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Parties
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ADVERITY
OR Adverity Inc. a Delaware corporation whose registered business address is 75 Rockefeller Plaza, Suite 22B, New York, NY 10019, if Counterparty is a US entity |
COUNTERPARTY ---------------------------------------------------------
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(each, a “Party”; jointly, the “Parties”).
Terms
| 1. Purpose and Applicability | The Parties wish to explore a business opportunity of mutual interest, for which the Parties would each like to provide the other with certain information that may be considered confidential (the “Purpose”). This Non-disclosure Agreement (“NDA”) is applicable to the Parties and all their affiliates. An affiliate is an entity directly or indirectly connected with another entity within the same corporate group through partial or whole control. |
| 2. Definition of “Confidential Information” |
(a) any technical and business information of any kind whether such information is designated as “Confidential Information” at the time of its disclosure; (b) any product information of Adverity’s Software-as-a-Service (“SaaS”) as well as data transferred via the SaaS; (c) in addition to the above, Confidential Information shall also include other confidential and/or sensitive information which is (I) disclosed as such in writing and marked as confidential (or with other similar designation) at the time of disclosure; and/or (II) disclosed in any other manner and identified as confidential at the time of disclosure and which is summarized and designated as confidential in writing delivered within thirty (30) days after the disclosure; and (d) excludes any information that is: (I) in possession of a Party prior to its receipt from the other Party; (II) (becoming) publicly known without a breach of this NDA; (III) developed independently by the other Party; or (IV) received from another source who can disclose it lawfully and without an obligation to keep it confidential. |
| 3. Non-use and Non-disclosure | The Parties shall only use the Confidential Information for the Purpose and shall not disclose the Confidential Information to third parties without prior written consent of the other Party. Either Party may disclose the other Party’s Confidential Information if required by law as long as the other Party will be informed promptly by written notice (to the extent permitted by law) of the requirement prior to the disclosure and assistance will be provided to the other Party in obtaining an order protecting the information from public disclosure. Neither Party shall reverse engineer, disassemble, or decompile any prototypes, software, samples or other tangible objects that embody the Confidential Information. |
| 4. Maintenance of Confidentiality | The Confidential Information shall be protected with the highest standard of care. The Parties shall limit disclosure of Confidential Information within their own organization to those individuals having a need to know. Before disclosure, each Party must ensure that the recipients are required to protect the Confidential Information on terms as protective as this NDA and accept responsibility for each recipient’s use of Confidential Information. Upon request, the Parties shall provide each other with a complete and updated list of all such recipients. A Party shall promptly notify the other Party of any actual or suspected unauthorized use or disclosure of the Confidential Information. |
| 5. Unauthorized Disclosure | In the event that a Party discloses Confidential Information in violation of this NDA, the Party in breach shall notify the other Party in writing of such disclosure immediately upon discovery of the violation and no later than five (5) business days after such disclosure. |
| 6. No Obligation | Neither Party shall be obliged to disclose or provide any Confidential Information to the other Party. Neither Party shall have any obligation, express or implied by law, with respect to trade secret or proprietary information of the other Party except as set forth herein. Nothing in this NDA shall obligate the Parties to purchase any service, goods, or intangibles from the other Party or to proceed with any transaction between them or contemplated by this NDA. |
| 7. Representations and Warranties | ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS.” THE PARTIES MAKE NO WARRANTIES, EXPRESS, IMPLIED, OR OTHERWISE, REGARDING THE ACCURACY, COMPLETENESS, OR PERFORMANCE OF ITS CONFIDENTIAL INFORMATION. EACH PARTY REPRESENTS AND WARRANTS THAT IT HAS THE RIGHT TO DISCLOSE ALL CONFIDENTIAL INFORMATION PROVIDED TO THE OTHER PARTY. THE PARTIES SHALL INDEMNIFY AND DEFEND EACH OTHER FROM ALL THIRD-PARTY CLAIMS RESULTING FROM THE NEGLIGENT OR WRONGFUL DISCLOSURE OF THIRD PARTY’S CONFIDENTIAL INFORMATION. THE PARTIES WARRANT AND REPRESENT THAT THEY HAVE FULL CORPORATE POWER AND AUTHORITY TO ENTER INTO THIS NDA. |
| 8. Return of Materials | All documents and other tangible objects containing or representing Confidential Information and all copies of them shall be and remain the property of the disclosing Party and shall be promptly returned to this Party or destroyed (with proof of such destruction), each within fourteen (14) days of the written request or upon the termination of this NDA. |
| 9. No License | Nothing contained herein this NDA is intended to grant any license or intellectual property rights in or to the Confidential Information to the other Party. |
| 10. Term | The NDA shall expire three (3) years from the start date, unless terminated earlier by either party for any reason. The confidentiality obligations shall survive without restriction to the term of this NDA, in addition to any sections that by their nature should survive. |
| 11. Remedies | Each Party may seek injunctive relief in addition to all legal remedies in the event of any (threatened) violation of any terms herein. |
| 12. Miscellaneous | This NDA shall bind the Parties and their successors and assigns. This NDA shall be governed by the laws of the Austrian Republic unless both parties are US entities, without reference to conflict of laws principles and the courts of such state shall have exclusive jurisdiction; if both parties are US entities, the laws of the State of New York shall apply. This document contains the entire agreement between the Parties with respect to the subject matter of this NDA and supersedes all prior written and oral agreements between the Parties regarding such subject matter. Any failure to enforce any provision of this NDA shall not constitute a waiver of that provision or of any other provision. If any of the provisions hereof is held to be invalid or unenforceable, it shall be considered severed from this NDA and shall not serve to invalidate the remaining provisions hereof. This NDA may not be amended, nor any obligation waived, except by a writing signed by both Parties. |
| ACKNOWLEDGED AND AGREED
Signing on Behalf of: Signatory Name Signing on Behalf of: Signature:
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Signatory Name: Alexander Igelsboeck
Signature:
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