Mutual Non-Disclosure Agreement
In order to enter (i) into discussions to evaluate, and if appropriate enter into, a business relationship; or (ii) ensure that appropriate confidentiality provisions are in place for an ongoing business relationship (in each case, the Purpose), the relevant Egress Software Technologies entity set out below (Egress) and the party identified by you in filling out the webform below (you) may exchange Confidential Information as defined below. We've both therefore agreed to enter into this NDA. You and Egress will each be a party, and are collectively referred to as the parties.
- This NDA comes into force when you fill in the details and click "I accept".
- One party or its group companies, or any of its or their agents, representatives or third party contractors (collectively, the Discloser) may disclose to the other or its group companies (the Recipient), or any of its or their agents, representatives or third party
contractors (collectively, Representatives) Confidential Information.
Before making any disclosure to a Representative, the Recipient will advise the Representative of the confidential nature of the Confidential Information, and will ensure that suitable terms are in place between them to protect any information disclosed.
The Recipient shall remain responsible for all acts and omissions of its Representatives and shall keep a record of who it discloses Confidential Information to.
- Both parties agree that information identified or labelled by the Discloser as confidential, or which ought to be considered confidential to the Discloser will be Confidential Information and that this includes non-public information about the Discloser's: (a)
business, finances, customers, suppliers, plans, opportunities, intellectual property rights, products, software and services; (b) software code (both object and source), road maps, product plans, non-public information about intellectual property rights (including patentable inventions at
whatever stage of evaluation, application or grant) documentation, specifications, designs, configurations, performance data, databases, Trade Secrets, patentable ideas and innovations, applications and discussions; and (c) operations, processes, know-how and technical information.
Any information or analysis derived from the above will also be Confidential Information.
For the purposes of this NDA, a “Trade Secret” is understood to be something which: (i) is secret in the sense that it is not generally known among, or readily accessible to, persons within the circles that normally deal with the kind of information in question; (ii) has commercial
value because it is secret; and, (iii) has been subject to reasonable steps by Egress to keep it secret.
- The parties do not intend for the terms of this NDA to cover the processing of any personal data or personal information (as defined by applicable data laws in the Parties’ jurisdictions) or Confidential Information through the delivery of Egress’
software and services.
Any such processing by Egress of such data and information (including Confidential Information) on behalf of you through your and yours users’ use of, or the delivery of, Egress’ software and services will be subject exclusively to the terms between the parties relating to your and
your users use of them.
- Information isn't Confidential Information if it's: (a) known to the Recipient without restriction before disclosure; (b) publicly available through no fault of the Recipient; (c) disclosed to the Recipient by a third-party not under a duty of confidence; (d)
independently developed by the Recipient without use or reliance on it; or (e) is disclosed with the Discloser's prior written consent.
- In return for the Discloser making Confidential Information available, the Recipient shall: (a) keep Confidential Information secret and maintain protections over it no less secure than those taken to protect its own confidential information; (b) not use or exploit
it except for the Purpose; (c) not disclose it or make it available in any form or way except as allowed by this NDA; (d) not reverse engineer, disassemble, or decompile any prototypes, software, or other tangible objects in it.
- The Recipient may disclose Confidential Information when compelled by law or regulation provided that it gives the Discloser reasonable prior notice (unless not allowed to do so).
Each of us undertakes to the other that it will not engage in, consent to or connive in any activity, practice or conduct which would constitute an offence under bribery or corruption laws (including, in the UK, section 1, 2 or 6 of the Bribery Act 2010).
Where the Recipient reasonably believes the Discloser's involved in activity that may be a criminal offence under bribery or corruption laws it may disclose related Confidential Information to relevant law enforcement agencies the without notifying the Discloser.
- The Discloser can request at any time that the Recipient: (a) destroys or returns all documents and materials containing, incorporating or based on its Confidential Information; and (b) to the extent technically practicable, erases its Confidential Information from
the Recipient's systems and devices.
The Recipient shall confirm in writing it has done so.
Nothing in this paragraph can require the return or destruction of documents or materials required to be maintained by (i) law, regulation or a generally applicable internal policy (provided that it complies with applicable law); or (ii) that is automatically saved or retained electronically as
part of normal computer disaster recovery or similar computer back-up system and procedures (but the terms of this NDA shall continue to apply to such documents and materials).
- Confidential Information is provided "as is" with no express or implied warranty or representation as to accuracy or completeness.
Neither of us acquires any intellectual property rights of the other (or any rights in them) except for a limited right to use the Discloser's Confidential Information for the Purpose.
- Either party may terminate this NDA on 14 days' prior written notice.
Termination won't affect each party’s respective obligations to keep Confidential Information disclosed confidential, or any accrued rights or remedies.
- Unless otherwise agreed in writing, this NDA shall remain in force for a period of 5 years from the date of acceptance below or until 1 year after expiry or termination of the business relationship between the parties (whichever is the latter) and the Recipient's
duty to protect Confidential Information expires 5 years after disclosure of the relevant Confidential Information (except in relation to Trade Secrets (which it recognises includes without limitation, product road maps, software source and object code, and other non-public intellectual property
right information) where it shall survive until such information becomes public knowledge).
- Each party in its role as a Recipient undertakes to the other in its role as the Discloser that at the Discloser’s request it will return or destroy any documents in its possession or control which form part of the Discloser’s Confidential Information
(together with any documents compiled by it or at its request to the extent they contain any of the Discloser’s Confidential Information).
This shall not apply to documents required to be retained for legal, regulatory or audit reasons or otherwise permitted to be retained in accordance with Section 8.
- Each party agrees that damages may not be an adequate remedy for breaches of this NDA and that each party will be entitled in its role as the Discloser to seek equitable remedies or relief (including injunctions and specific performance) for threatened or actual
breaches by the Recipient.
Nothing in this NDA shall exclude or restrict any right of action with respect to Trade Secrets.
- This NDA doesn't require disclosure of Confidential Information, or a party to proceed with a business relationship.
- This NDA doesn't create any agency or partnership relationship.
No person other than Egress and you (and our respective groups) has any rights under this NDA.
This NDA is not assignable or transferable in any way without the prior written consent of the other.
Amendments must be in writing signed by and authorised representative of each party.
- This NDA is the parties’ entire agreement in relation to the disclosure of Confidential Information relating to the Purpose, superseding any other agreements (whether oral or in writing).
Failure to enforce any of the terms of this NDA will not constitute a waiver (waivers must be in writing).
If part of this NDA is invalid, illegal or unenforceable it shall be deemed modified to make it applicable.
If that's not possible it will be deemed deleted and the rest shall remain in force.
- Notices to Egress must be in writing to the relevant address set out below and to [email protected] (in each case, marked for the attention of Egress’ General Counsel).
Notices sent by Egress to you shall be sent to you using the information that you provide below (so please make sure that this is accurate and kept up to date).
- This NDA and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the relevant laws set out in the table below.
The courts of the jurisdiction also set out below will have jurisdiction (except that Egress shall be able to bring action against you in any jurisdiction relevant to its claim).
- This NDA may be executed by electronic signature and the parties agree that electronic copies of signatures shall be valid and binding.
|Where you’re domiciled||Egress entity entering into this NDA and address for service of legal notices||Governing law||Courts with jurisdiction in accordance with section 18|
|The United States of America, or Canada||Egress Software Technologies, Inc. (a Massachusetts corporation) Suite 2, Level 3, 268 Summer Street, Boston, MA 02210, United States||State of Delaware||Boston, Massachusetts|
|The Netherlands, Belgium or Luxemburg||Egress Software Technologies Limited (a foreign legal entity) CCI: 74110462 Oval Tower, De Entrée 99-197, 1101 HE Amsterdam, The Netherlands||Dutch law||Netherlands|
|Rest of the World||Egress Software Technologies Limited (registered number: 06393598) 12th Floor, The White Collar Factory, 1 Old Street Yard, London, EC1Y 8AF, UK||England and Wales||England and Wales|