MUTUAL NON-DISCLOSURE AGREEMENT
This Mutual Non-Disclosure Agreement (“Agreement”) is entered into by and between Timus Networks, Inc., a Delaware corporation having its offices at 5005 W Laurel St, Unit 100, Tampa FL 33602, USA (“Timus”), and the individual or entity (“Recipient”) that clicks “I Accept” or otherwise electronically agrees to this Agreement.
By clicking “I Accept,” the Recipient agrees that they have read, understood, and consented to be bound by the terms of this Agreement. If accepting on behalf of an organization, the Recipient represents and warrants that they are authorized to bind that entity to the terms of this Agreement.
Effective Date: The date the Recipient clicks “I Accept.”
1. Purpose
The Parties wish to explore a business opportunity of mutual interest whereby Recipient and Timus are interested in a possible transaction (the “Opportunity”), and in connection with the Opportunity, each Party may disclose certain confidential technical and business information (in such capacity, a Party disclosing the information, the “Discloser”) to the other Party (in such capacity, a Party receiving the information, the “Recipient”), that Discloser desires Recipient to treat as confidential.
2. Confidential Information
a) Definition. “Confidential Information” means: (i) any information disclosed by Discloser to Recipient in written, graphic, machine readable or other tangible form marked “Confidential” or similar; (ii) oral information designated as confidential at the time of disclosure and summarized in writing within 30 days; and (iii) information reasonably expected to be confidential by its nature or the circumstances of disclosure. Confidential Information may include third-party information in Discloser’s possession.
b) Exceptions. Confidential Information shall not include information that: (i) is or becomes publicly available without breach of this Agreement; (ii) was lawfully known to Recipient before disclosure; (iii) is received from a third party lawfully and without breach; (iv) is independently developed by Recipient without reference to Confidential Information.
c) Compelled Disclosure. If Recipient is legally compelled to disclose any Confidential Information, it shall provide prior written notice (if legally permitted) and reasonably assist Discloser in seeking protective measures. Only the minimum required disclosure shall be made.
d) Residual Information. Recipient may not use residuals (information retained in memory) unless otherwise agreed in writing.
e) Disclosure Authority and Representations. The Discloser warrants and represents to the
Recipient that:(i) the Discloser has the legal right and authority to disclose Confidential
Information to the Recipient and its Personnel; (ii) The Discloser shall at all times comply with
Applicable Laws pertaining to any restrictions concerning the disclosure of Confidential
Information and/or the export of products or technical information (including United States of America’s export control laws if applicable) that may be imposed on such disclosure or export from time to time; (iii) Confidential Information is not subject to any restrictions or controls pertaining to its disclosure, including without limitation any Applicable Laws governing the transfer, export or re-export of Confidential Information or technical data, or if such restrictions or controls are applicable, the Discloser has or will inform the Recipient of the controlled nature of the Confidential Information and has confirmed or will confirm that the Recipient is willing to receive the Confidential Information. The Parties shall not export or re-export any Confidential Information, technical information or products using such technical information that requires an export license or any government approval from any jurisdiction, unless the exporting Party has obtained prior written authorization from the national authority responsible
for such matters.
3. Non-Use and Non-Disclosure
Recipient shall not use any Confidential Information of Discloser for any purpose except to evaluate and engage in discussions concerning the Opportunity. Recipient shall not disclose any Confidential Information of Discloser to third parties or to Recipient’s employees, except that, subject to Article 4 below, Recipient may disclose Discloser’s Confidential Information to those employees of Recipient who are required to have such information in order to evaluate or engage in discussions concerning the Opportunity. Recipient shall not reverse engineer, disassemble, or decompile any prototypes, software, samples, or other tangible objects that embody Discloser’s Confidential Information and that are provided to Recipient under this Agreement.
4. Maintenance of Confidentiality
Recipient shall take reasonable measures to protect the secrecy of and avoid disclosure and
unauthorized use of the Confidential Information of Discloser. Without limiting the foregoing,
Recipient shall take at least those measures that it employs to protect its own confidential information
of a similar nature and shall ensure that its Personnel or other Permitted Recipients who have access
to Confidential Information of Discloser have signed a non-use and non-disclosure agreement in
content at least as protective of Discloser and its Confidential Information as the provisions of this
Agreement, prior to any disclosure of Discloser’s Confidential Information to such Permitted
Recipients. Recipient shall reproduce Discloser’s proprietary rights notices on any such authorized
copies in the same manner in which such notices were set forth in or on the original. Recipient shall
promptly notify Discloser of any unauthorized use or disclosure, or suspected unauthorized use or
disclosure, of Discloser’s Confidential Information of which Recipient becomes aware. For the
purposes of this Agreement, Permitted Recipient shall mean (1) any independent auditor, rating
agency, contractor, consultant or external advisor (including, by way of example, technical and
financial advisors) of the Recipient to whom the Receiving Party discloses Confidential Information
under this Agreement and/or as may be required by Applicable Law (2) Personnel of Recipient which
shall include all officers, employees, agents, authorized persons and subcontractors of Recipient from
time to time.
5. No Obligation
The provision and disclosure of Confidential Information under this Agreement is merely an
exploratory exercise and does not represent any form of offer by any Party, nor is it to be construed as
an inducement to act or not to act in any given manner. Nothing in this Agreement shall obligate either
Party to proceed with any transaction between them, and each Party reserves the right, in its sole
discretion, to terminate the discussions contemplated by this Agreement concerning the Opportunity.
Nothing in this Agreement shall be construed to restrict either Party’s use or disclosure of its own
Confidential Information. Except where this Agreement expressly provides otherwise, each Party will
be solely responsible for its own costs and expenses incurred for or in connection with the drafting,
negotiation, execution and implementation of this Agreement.
6. No Warranty
ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS.” NEITHER PARTY
MAKES ANY WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING THE
ACCURACY, COMPLETENESS OR PERFORMANCE OF ANY CONFIDENTIAL
INFORMATION, OR WITH RESPECT TO NON-INFRINGEMENT OR OTHER VIOLATION OF
ANY INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY OR OF RECIPIENT.
7. Return of Materials
All documents and other tangible objects containing or representing Confidential Information
that have been disclosed by Discloser to Recipient, and all copies or extracts thereof or notes derived
therefrom that are in the possession of Recipient, shall be and remain the property of Discloser and
shall be promptly returned to Discloser or destroyed (with proof of such destruction), each upon
Discloser’s written request except for those electronic archived records from which Confidential
Information cannot be separately extracted.
8. No License
Nothing in this Agreement is intended to grant any rights to Recipient under any patent, mask
work right or copyright of Discloser, nor shall this Agreement grant Recipient any rights in or to the
Confidential Information of Discloser except as expressly set forth in this Agreement.
9. Term
The obligations of Recipient under this Agreement shall survive, with respect to any particular
Confidential Information of Discloser, until five (5) years from the Effective Date; notwithstanding
this, all Confidential Information of the Discloser provided under this Agreement shall continue to
remain confidential until such Confidential Information becomes publicly known or made generally
available through no action or inaction of the Recipient.
10. Remedies
Recipient acknowledges and agrees that damages alone may not be an adequate remedy for the
breach of any of the provisions of this Agreement. Without prejudice to any other rights and remedies
that the Discloser may have, Recipient agrees that the Discloser may seek specific performance or
equitable relief (including injunctive relief) as a remedy for any threatened or actual breach of this
Agreement by the Recipient to whom Confidential Information is disclosed.
11. Limitation of Liability
The liability of the Recipient to compensate the Discloser in accordance with governing law
for loss, expense, claim, damage and liability that may be suffered or incurred by the Discloser shall
be limited to actual loss, expense, claim, damage and liability proven to be caused by breach of this
Agreement by the Recipient or Permitted Recipients to whom Confidential Information is disclosed.
12. Miscellaneous
a) Notices. Any notice or other communication given under or in connection with this Agreement shall be in writing. The Parties’ addresses (physical and email) for the purposes of this Agreement are as set out in the execution page to this Agreement, as may be updated in accordance with this sub-paragraph. No change to a Party’s contact details for notices shall be effective until the other Party has been notified of the change in writing in accordance with this sub-paragraph.
b) Relationship between Parties. Nothing in this Agreement shall be construed to make a Party an agent, employee, franchisee, joint venturer, partner or legal representative of another Party. Each Party confirms that it is acting as principal for itself and its Affiliates for the Purpose, and not as an agent, representative or broker for any other person.
c) Publicity. No Party shall disclose or make any announcement or issue any press release statement or other public document about the Purpose or the entering into of this Agreement or its contents without the prior written approval of the other Party.
d) Binding Agreement. This Agreement shall bind and inure to the benefit of the Parties and their respective successors and permitted assigns. This Agreement does not create any rights that are enforceable by any person who is not a Party to this Agreement.
e) Assignment. Neither Party may assign or otherwise transfer this Agreement without the prior written consent of the other Party; except that either Party may assign this Agreement without consent in connection with a merger, reorganization, consolidation, change of control, or sale of all or substantially all of the assets to which this Agreement pertains; provided that the assigning Party provides prompt written notice to the other Party of any such permitted assignment. Any assignment or transfer of this Agreement in violation of the foregoing shall be null and void.
f) Entire Agreement. This Agreement contains the entire agreement between the Parties with respect to the Opportunity and supersedes all prior written and oral agreements between the Parties regarding the Opportunity. Recipient shall not have any obligation, express or implied by law, with respect to trade secret or proprietary information of Discloser disclosed under this Agreement except as set forth herein.
g) Severability. If a court or other body of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be invalid or unenforceable, such provision will be enforced to the maximum extent permissible so as to effect the intent of the Parties, and the remainder of this Agreement will continue in full force and effect.
h) No Waiver. No provision of this Agreement may be waived except by a writing executed by the Party against whom the waiver is to be effective. A Party’s failure to enforce any provision of this Agreement shall neither be construed as a waiver of the provision nor prevent the Party from enforcing any other provision of this Agreement.
i) Amendment. No provision of this Agreement may be amended or otherwise modified except by a writing signed by the Parties to this Agreement.
j) Counterparts. The Parties may execute this Agreement in counterparts, each of which shall be deemed an original, but all of which together constitute one and the same agreement.
k) Execution. Each Party hereby represents and warrants that the persons executing this Agreement on its behalf have express authority to do so, and, in so doing, to bind such Party thereto. This Agreement may be signed electronically and delivered by facsimile transmission, and execution via electronic signature as well as facsimile copies of executed signature pages shall be binding as originals.
13. Governing Law and Jurisdiction
a) This Agreement will be interpreted and construed in accordance with the laws of the State of Delaware, without regard to conflict of law principles.
b) All disputes arising out of this Agreement will be subject to the exclusive jurisdiction and venue of the state courts located in Delaware and the federal courts located in Delaware, and each Party hereby consents to the personal jurisdiction thereof.
14. Acceptance
BY CLICKING “I ACCEPT” OR OTHERWISE INDICATING AGREEMENT ELECTRONICALLY, YOU REPRESENT THAT YOU HAVE READ, UNDERSTOOD, AND AGREED TO BE BOUND BY THIS MUTUAL NON-DISCLOSURE AGREEMENT. IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY, YOU REPRESENT THAT YOU HAVE AUTHORITY TO BIND THAT ENTITY.
