MUTUAL NON-DISCLOSURE AGREEMENT
This Mutual Non-Disclosure Agreement (this "Agreement"), made at the date of signing up to get access for the Cashtie Application Programming Interface ("Effective Date"), is entered into by and between: Interactive Communications International, Inc., a Florida corporation, with its principal offices located at 250 Williams Street, 5th Floor, Suite 5-2002, Atlanta, Georgia 30303 ("InComm"), and you ("Company").
Whereas, in connection with discussions regarding a business arrangement between the Parties (a “Potential Business Arrangement”), the Parties may provide certain confidential and proprietary information and materials to each other which they seek to keep confidential;
NOW, THEREFORE, in consideration of the mutual obligations contained herein, and for other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, agree as follows:
Definitions. For purposes of this Agreement, the following terms shall have the following meaning:
- "Affiliate" shall mean any entity controlling, controlled by, or under common control with a Party.
- "Party" shall mean either InComm or Company, and “Parties” shall mean InComm and Company collectively.
- "Recipient" shall mean the Party, including such Party’s Affiliates, receiving Proprietary Information from the Disclosing Party.
- "Disclosing Party" shall mean the Party, including such Party’s Affiliates, which reveals Proprietary Information to the Recipient.
- "Trade Secrets" shall mean any information, without regard to form, including, but not limited to, technical or non-technical data, know-how, formulas, patterns, compilations, computer programs and software (including source and object code), devices, drawings, processes, methods, techniques, financial and product plans and data, lists of actual or potential customers or suppliers, and other business information which:
- derives economic value, actual or potential, from not being generally known to or readily ascertainable by proper means, by other persons who can obtain economic value from its disclosure or use; and
- is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
"Proprietary Information" shall mean information, without regard to form, regarding a Party and/or its Affiliates that is disclosed to, or becomes known to, the other Party as a result of the Parties’ activities hereunder and is not generally known in the relevant trade or industry, including, but not limited to, the following:
- Trade Secrets;
- Information concerning the Potential Business Arrangement, including the existence of this Agreement;
- Information concerning the operations, affairs and businesses of a Party or its Affiliates;
- Information concerning the operations, affairs and businesses of the customers, suppliers or vendors of a Party or its Affiliates;
- To the extent they do not qualify as Trade Secrets under applicable law, technical or non-technical data, know-how, formulas, patterns, compilations, computer programs and software (including source and object code), devices, drawings, processes, methods, techniques, financial and product plans and data, lists of actual or potential customers and suppliers, and other business information;
- To the extent they do not qualify as Trade Secrets under applicable law, any policies, plans, procedures, methods, designs, systems or processes used by either Party to maintain the security of its business operations; and
- To the extent they do not qualify as Trade Secrets under applicable law, any other information which is marked confidential, restricted, proprietary or with a similar designation or, if unmarked, which the Recipient should reasonably know is confidential.
Obligation to Mark Proprietary Information. The Disclosing Party shall use commercially reasonable efforts to: (a) mark Proprietary Information that is provided in a tangible form in a manner to indicate that it is Proprietary Information or otherwise subject to limited distribution; or (b) confirm to the Recipient in writing that information that is received orally is Proprietary Information within fifteen (15) business days from date of oral disclosure as well as indicate at the time of disclosure that it deems such disclosure to contain information that is Proprietary Information. However, the failure to comply with the foregoing shall not relieve a Recipient from its obligations hereunder to the extent it should reasonably know that the information disclosed by the Disclosing Party is Proprietary Information.
Obligations of Confidentiality.
- Except as otherwise provided herein, the Recipient agrees to treat confidentially and to not disclose to any party any Proprietary Information of the Disclosing Party furnished to Recipient, whether such information is disclosed directly by the Disclosing Party or on the Disclosing Party’s behalf.
- The Recipient shall use all Proprietary Information received by it solely in connection with the Potential Business Arrangement and for no other purpose whatsoever. The Recipient shall strictly limit access to any Proprietary Information to its employees, independent contractors, and agents who are under a contractual obligation to maintain the confidentiality of such information, and who have a need-to-know connection with the Potential Business Arrangement.
- The Recipient shall safeguard all Proprietary Information received by it using the same degree of care with which it protects the confidentiality of its own Trade Secrets and Proprietary Information, but in no event less than a reasonable degree of care.
- Each Party shall be liable for any breach of the obligations of confidentiality and restriction on use contained herein by it, and its respective Affiliates, employees, officers, directors, agents, representatives, external or internal auditors or independent contractors (collectively, “Representatives”)(including without limitation, its Representatives who, subsequent to the first date of disclosure of Proprietary Information hereunder, become its former Representatives).
- Rights in Proprietary Information. Neither this Agreement, nor the act of disclosure, confers upon the Recipient any right, license, interest or title to the Proprietary Information of the Disclosing Party. Title to the Proprietary Information shall remain solely in the Disclosing Party, and the Recipient may not use the Proprietary Information except as contemplated by this Agreement.
- Destruction of Information. Upon the request of the Disclosing Party, the Recipient shall collect and surrender, or confirm the destruction or non-recoverable data erasure of, all Proprietary Information and all copies thereof, regardless of form, and any such destruction shall be certified in writing to the Disclosing Party by an authorized officer of the Recipient supervising such destruction.
Exception to Confidentiality.
The obligations of confidentiality and restriction on use contained herein shall not apply to any Proprietary Information that a Recipient is clearly able to demonstrate:
- Was in the public domain prior to the Effective Date of this Agreement or subsequently came into the public domain through no fault of the Recipient;
- Was lawfully received by the Recipient from a third party, which third party was, to the knowledge of the Recipient, free of any obligation of confidentiality;
- Was already in the lawful possession of the Recipient without an obligation to maintain its confidentiality prior to disclosure by the Disclosing Party;
- Is required to be disclosed by applicable law, or in a judicial or administrative proceeding, but only so long as the Recipient, to the extent it is not legally prohibited, gives the Disclosing Party notice, prior to any disclosure, of any request to disclose Proprietary Information so that the Disclosing Party has an opportunity to object to the production or disclosure of the requested information. In the event that Proprietary Information is produced under such legal compulsion, such production shall be strictly limited to the requesting party as dictated by applicable law or court order, shall be limited in scope to the extent practicable, and shall not otherwise affect the confidential nature of such Proprietary Information;
- Can be proven to have been subsequently and independently developed, without violation of this Agreement, by employees, consultants or agents of the Recipient who did not have access to the Proprietary Information; or
- Is disclosed by the Recipient in accordance with the prior written approval of the Disclosing Party, but only to the extent allowed and for the limited purposes specified in such written approval. Such permitted disclosure shall not otherwise affect the confidential nature of such Proprietary Information.
- For purposes of this Agreement, Proprietary Information shall not be deemed to be in the public domain or be in Recipient’s lawful possession merely because it consists of components that are within the public domain.
- Independent Development. This Agreement shall not be construed to limit either Party’s right to independently develop or acquire products or services without use of the other Party’s Trade Secrets or Proprietary Information. Nothing herein, however, shall be deemed to grant to either Party a license under the other Party’s copyrights or patents.
Rights and Remedies.
- A Recipient shall notify a Disclosing Party immediately upon discovery of any unauthorized use or disclosure of Proprietary Information or any breach of this Agreement by Recipient and will cooperate with such Disclosing Party in every reasonable way to help such Disclosing Party regain possession of the Proprietary Information and prevent its further unauthorized use.
- The Parties agree that money damages would not be a sufficient remedy for breach of the confidentiality and other obligations of this Agreement. Accordingly, the Parties agree that in an action for equitable remedies under this Agreement, a Disclosing Party shall not be required to prove the inadequacy or insufficiency of monetary damages. Each Party further agrees to waive any requirement for a bond or other security in connection with any such injunctive or other equitable relief.
- If either Party employs an attorney to enforce any rights arising out of or relating to this Agreement, the prevailing Party shall be entitled to recover reasonable costs of litigation, including, but not limited to, attorneys’ fees.
- Relationship; No Warranty. This Agreement does not create a joint venture or partnership between the Parties and no Party is obligated to enter into any further contract or business relationship with the other Party. No provision of this Agreement shall affect, limit or restrict either Party’s right to engage in any business in any place and at any time, whatsoever, provided the Receiving Party does not disclose the Proprietary Information in breach of this Agreement. Neither Party (nor their Affiliates) accepts responsibility or liability for or makes any representation, statement or expression of opinion or warranty, express or implied, with respect to the accuracy or completeness of the Proprietary Information or any oral communication in connection therewith.
- Term. The obligations of the Parties herein shall be effective during discussions or conversations regarding the Potential Business Arrangement and for a period of three (3) years from the latter of the date of last disclosure of any Proprietary Information to either Party pursuant to this Agreement or the date of termination of said discussions or conversations. Notwithstanding the foregoing, the parties shall maintain the secrecy and confidentiality of any Trade Secrets of either Party indefinitely so long as they remain Trade Secrets.
- Notices. All notices hereunder shall be in writing and delivered to the addresses set forth at the outset of this Agreement, or to new or additional addresses as may be designated in writing by either Party. All notices hereunder shall be deemed given (a) when received, if delivered personally or by an express courier with a reliable system for tracking delivery, (b) when sent by facsimile with a copy sent by another means specified in this paragraph; or (c) when mailed by registered or certified mail, return receipt requested. Each Party agrees that facsimile signatures will have the same legal effect as original signatures and may be used as evidence of execution.
- This Agreement, its validity, construction and effect shall be governed by the laws of the State of Georgia, U.S.A., excluding its conflicts of law rules.
- This Agreement supersedes any and all prior or contemporaneous understandings and agreements between the Parties with respect to the subject matter of this Agreement and is the complete and exclusive statement thereof.
- This Agreement can only be modified by a written amendment executed by the Parties.
- Waiver of any breach of this Agreement must be in writing to be effective and shall not be a waiver of any subsequent breach, nor shall it be a waiver of the underlying obligation.
- If any term, part, paragraph, clause or section of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, parts, paragraphs, clauses or sections, will remain valid and in full force and effect as if such invalid or unenforceable term had never been included.
- The obligations contained in this Agreement shall not be affected by bankruptcy, receivership, assignment, attachment or seizure procedures, whether initiated by or against Recipient, nor by the rejection of any agreement between the Parties, by a trustee of Recipient in bankruptcy, or by the Recipient as a debtor-in-possession or the equivalent of any of the foregoing under applicable law.
- This Agreement may be assigned or transferred only upon the prior written consent of both Parties, which consent shall not be unreasonably withheld.