THIS MUTUAL NON-DISCLOSURE AGREEMENT
This Agreement is entered into between Rainforest Data Systems, LLC. ("Rainforest") and the "Other Party" as of the Effective Date, to protect the confidentiality of certain confidential information of Rainforest or of the Other Party to be disclosed under this Agreement solely for use in exploring a security solution and business opportunity (the "Permitted Use"). Rainforest and the Other Party may be referred to herein individually as a "Party" and collectively as the "Parties."
1. Confidential information
As used herein, the "Confidential Information" of a Party will mean, subject to Section 2, any and all technical and non-technical information disclosed by such Party (the "Disclosing Party") to the other Party (the "Receiving Party"), which may include without limitation: (a) patents and patent applications; (b) trade secrets; and (c) proprietary and confidential information, mask works, ideas, samples, media, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, algorithms, software programs, software source documents, and formulae related to the current, future, and proposed products and services of each of the Parties — such as information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, sales and merchandising, and marketing plans.
If the Confidential Information is embodied in tangible material (such as documents, drawings, pictures, graphics, software, hardware, graphs, charts, or disks), it will be labeled as "Confidential" or bear a similar legend. If disclosed orally or visually, it will be identified as such at the time of disclosure and confirmed in writing to the Receiving Party within thirty (30) days.
2. Obligations of the receiving party
Subject to Section 4, the Receiving Party agrees that at all times, and notwithstanding any termination or expiration of this Agreement, it will hold in strict confidence and not disclose to any third party any Confidential Information of the Disclosing Party, except as approved in writing by the Disclosing Party, and will use the Confidential Information for no purpose other than the Permitted Use. The Receiving Party will limit access to the Confidential Information to only those of its employees or authorized representatives having a need to know and who are bound by confidentiality obligations at least as restrictive as those contained herein.
3. Exceptions
The Receiving Party will not have any obligations under this Agreement with respect to a specific portion of the Confidential Information if such Receiving Party can demonstrate with competent evidence that such portion:
- was in the public domain at the time it was disclosed to the Receiving Party;
- entered the public domain subsequent to disclosure, through no fault of the Receiving Party;
- was in the Receiving Party's possession free of any obligation of confidence at the time of disclosure;
- was rightfully communicated to the Receiving Party free of any obligation of confidence after disclosure;
- was developed by the Receiving Party independently of, and without reference to, any information communicated by the Disclosing Party; or
- was not legended as Confidential Information and, if disclosed orally or visually, was not identified as Confidential Information at the time of disclosure and not followed by a writing within thirty (30) days.
Notwithstanding the above, the Receiving Party may disclose Confidential Information to the extent required by a valid order of a court or governmental body, provided that the Receiving Party gives the Disclosing Party reasonable prior written notice and makes a reasonable effort to obtain, or assist in obtaining, a protective order.
4. Loss, return and no license
The Receiving Party will immediately notify the Disclosing Party upon discovery of any loss or unauthorized disclosure of the Confidential Information. Upon termination or expiration of this Agreement, or upon written request of either Party, each Party will promptly return or destroy all documents and other tangible materials representing the Disclosing Party's Confidential Information and all copies thereof.
Nothing in this Agreement will be construed as granting any property rights, by license or otherwise, to any Confidential Information, or to any invention, patent, copyright, trademark, or other intellectual property right. Neither Party will make, have made, use or sell any product or item using, incorporating or derived from the other Party's Confidential Information. The Receiving Party will not reproduce the Confidential Information except as required to accomplish the intent of this Agreement, and any such reproduction will remain the property of the Disclosing Party and contain all confidential or proprietary notices.
5. Term
This Agreement will terminate one (1) year after the Effective Date, or may be terminated by either Party at any time upon thirty (30) days' written notice. Each Party's obligations will survive termination and be binding upon its heirs, successors, and assigns. Obligations with respect to non-technical sales, marketing, and financial Confidential Information will continue for three (3) years from the date of disclosure. Obligations with respect to technical Confidential Information will terminate only pursuant to Section 3.
6. General
Governing law. This Agreement and any action related thereto will be governed by and construed under the laws of the State of Delaware, without giving effect to conflicts of laws principles. Any disputes may be brought in the courts located in New Castle County, Delaware, and the Parties consent to the personal jurisdiction and exclusive venue of these courts. This Agreement may not be amended except by a writing signed by both Parties.
Injunctive relief. Each Party acknowledges that its breach may cause irreparable damage to the other Party and agrees that the other Party will be entitled to seek injunctive relief, as well as such further relief as may be granted by a court of competent jurisdiction.
Severability & waiver. If any provision is found unenforceable or invalid, it will be changed and interpreted to best accomplish its objectives within the limits of applicable law, and the remainder of the Agreement will remain in effect. Any waiver or failure to enforce any provision on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Assignment. Neither Party will assign or transfer any rights or obligations without the other Party's prior written consent, except that a Party may assign this Agreement without consent to its successor in interest by way of merger, acquisition or sale of all or substantially all of its assets.
Export. The Receiving Party will not export, directly or indirectly, any technical data acquired under this Agreement to any country for which the U.S. Government requires an export license without first obtaining such license or approval.
Notices. All notices will be in writing and delivered by personal delivery, electronic mail, facsimile, or certified/registered mail, and deemed given upon personal delivery, five (5) days after deposit in the mail, or upon acknowledgment of receipt of electronic transmission.
Reverse engineering. Each Party agrees that the software programs of the other Party contain valuable confidential information and will not modify, reverse engineer, decompile, create other works from, or disassemble any such software programs without the prior written consent of the other Party.
This Agreement is the final, complete and exclusive agreement of the Parties with respect to its subject matter and supersedes all prior discussions between the Parties.