MUTUAL NONDISCLOSURE AGREEMENT
THIS MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement”) is made by and between you, and Fanatic Software, Inc. (“Client”) effective as of the today.
In consideration for the parties’ agreement to participate in the activities described below, the parties agree:
- Confidential Information. In connection with discussions between Company and Client concerning a potential association or business arrangement (the “Project”), either party may find it beneficial to disclose to the other party certain information in tangible or intangible form that the disclosing party considers to be proprietary and/or confidential (hereinafter referred to as “Confidential Information”), which may include, but is not limited to, trade secrets, inventions, discoveries, ideas, patentable works, concepts, know-how, techniques, processes, designs, specifications, drawings, diagrams, data, computer programs, business plans, business activities and operations, reports, studies and other technical and business information. Confidential Information shall also include descriptions of the existence or progress of the above-described Project.
- Protection of Confidential Information. Each party acknowledges that the other party claims its Confidential Information as a special, valuable and unique asset. For itself and on behalf of its officers, directors, agents, employees, and affiliates, the receiving party agrees that it shall:
- keep in confidence all Confidential Information, and not directly or indirectly disclose, publish or make available to any third party, use for its own benefit or the benefit of any person or entity other than the disclosing party, or use for any purpose other than the Project, any Confidential Information it receives from the disclosing party;
- restrict disclosure of the Confidential Information solely to the minimum number of employees necessary in order to complete the Project and only to those employees who have executed written confidentiality or nondisclosure agreements with the receiving party;
- not reverse engineer the Confidential Information for any purpose whatsoever; and
- use reasonable care to protect the Confidential Information, and in no event use less than the same degree of care to protect the Confidential Information as it would employ with respect to its own information of like importance which it does not desire to have published or disseminated.
- Limitations on Confidential Information. The obligations of Section 2 shall not apply to disclosed information which:
- The receiving party knows at the time of disclosure, free of any obligation to keep it confidential, as evidenced by written records;
- Is or becomes publicly available through authorized disclosure; or
- The receiving party rightfully obtains from a third party who has the right to transfer or disclose it.
If any portion of any Confidential Information falls within any of the above exceptions, the remainder of the Confidential Information shall continue to be subject to the requirements of this Agreement.
- Compelled Disclosure. If the receiving party faces legal action to disclose Confidential Information received under this Agreement, then the receiving party shall promptly notify the disclosing party and, upon the disclosing party’s request, shall cooperate with the disclosing party in contesting such a disclosure.
- Return of Confidential Information. All information furnished under this Agreement, whether in written, electronic or other format, shall remain the disclosing party’s property and shall be returned to it or destroyed promptly at its request together with all copies, extracts, plans, schematics or other reproductions in whole or in part made of such information by the receiving party. All documents, memoranda, discs, tapes, notes and other writings whatsoever prepared by the receiving party based on Confidential Information shall be destroyed upon the disclosing party’s request and such destruction shall be certified in writing to the disclosing party by an authorized officer of the receiving party.
- No License. Except as expressly set forth in this Agreement, no license under any patents, copyrights, mask rights, trademarks or other proprietary rights is granted or conveyed by one party’s transmittal of Confidential Information or other information to the other party under this Agreement, nor shall such a transmission constitute any representation, warranty, assurance, guaranty or inducement by the disclosing party to the receiving party with respect to infringement of patent or other rights of others.
- No Warranty. The receiving party acknowledges that the disclosing party has not made and will not make any representation or warranty as to the accuracy or completeness of its Confidential Information or of any other information provided in connection with the Project, and the receiving party agrees that the disclosing party shall have no liability resulting from the use of the Confidential Information or such other information.
- No Commitment. Confidential Information provided to one party does not and is not intended to represent a commitment by the disclosing party to enter into any business relationship with the receiving party or with any other person or entity or to grant any equity or other interest in the disclosing party or the Confidential Information to the receiving party or any other person or entity. If the parties desire to pursue business opportunities, the parties will execute a separate written agreement to govern such business relationship.
- Equitable Relief. Each party acknowledges that its breach of this Agreement will result in immediate and irreparable harm to the disclosing party, for which there will be no adequate remedy at law, and the disclosing party shall be entitled to equitable relief to compel the receiving party to cease and desist all unauthorized use and disclosure of the Confidential Information.
- Independent Development. Each party understands that the receiving party may currently or in the future be developing information internally, or receiving information from other parties that may be similar to the disclosing party’s information. Accordingly, nothing in this Agreement will be construed as a representation or inference that the receiving party will not develop products, or have products developed for it, that, without violation of this Agreement, compete with the products or systems contemplated by the disclosing party’s Confidential Information.
- Notices. All notices under this Agreement shall be deemed to have been duly given upon the mailing of the notice, postpaid, or upon the facsimile transmission, to the party entitled to such notice at the address and facsimile number set forth below.
- Export Regulations. Notwithstanding any other provision of this Agreement, neither party shall export or re-export any technical Confidential Information acquired under this Agreement or any commodities using such Confidential Information to any country to which the United States government forbids export or, at the time of export, requires an export license or approval, without first obtaining such license or approval.
- Effective Date and Termination. This Agreement shall be effective as of the date first written above and shall continue for three (3) years following the return of all Confidential Information in accordance with Paragraph 5 above and shall apply to discussions taking place on or before or during the period following the effective date.
- No Waiver; Severability. The failure of any party to require performance by another party of any provision of this Agreement shall in no way affect the full right to require such performance at any time thereafter. Should any provisions of this Agreement be found unenforceable, the remainder shall still be in effect.
- Entire Agreement. This Agreement embodies the entire understanding between the parties respecting the subject matter of this Agreement and supersedes any and all prior negotiations, correspondence, understandings and agreements between the parties respecting the subject mater of this Agreement. This Agreement shall not be modified except by a writing duly executed on behalf of the party against whom such modification is sought to be enforced.
- Assignment and Binding Effect. Neither party may assign this Agreement without the other party’s prior written consent, and any assignment in violation of this Agreement shall be void. This Agreement shall benefit and be binding upon the parties to this Agreement and their respective successors and permitted assigns.
- Construction of Agreement. This Agreement has been negotiated by the parties and the language of this Agreement shall not be construed for or against either party.
- Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas. The Texas state courts of Williamson County (or, if there is exclusive federal jurisdiction, the United States District Court for the Central District of Texas) shall have exclusive jurisdiction and venue over any dispute arising out of or relating to this Agreement, and each party hereby consents to the jurisdiction and venue of such courts.
- Counterparts. Either the original or copies, including facsimile transmissions, of this Agreement, may be executed in counterparts, each of which shall be an original as against any party whose signature appears on such counterpart and all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused their respective duly authorized representatives to execute and deliver this Agreement.