This Non-Disclosure Agreement (the “Agreement”) comes into force between:
ngena USA LLC, a limited liability company under United Sates laws with its business address at 1601 29th St. Suite 1292 Boulder, CO 80301 USA, and
its affiliates, ngena Italy S.r.l., ngena Hungary Kft and, ngena Slovakia s.r.o. (together referred to as “ngena”) on one side;
a company whose authorized representative has accepted the terms of this Agreement on company’s behalf or an individual who has accepted the terms of this Agreement at XXXX (“Partner”) on the other side
(ngena and Partner hereinafter referred to each as a “Party” and together as “Parties”).
The Parties have discussed and expect to discuss further their intention to enter into a business relationship, whereby each Party (hereinafter the “Disclosing Party”) may provide information which it considers confidential to the other Party (hereinafter the “Receiving Party”).
The Parties enter into this Agreement to govern the confidentiality obligations between them.
1. Obligations of Confidentiality
1.1. Each Party may, in its absolute discretion, provide “Confidential Information” to the other Party, meaning any information relating to the Disclosing Party, its affiliates, partners and customers, and its current or future products and services including, but not limited to, all legal, corporate, commercial, technical and development matters, as well as contract terms, launch dates, databases and strategies. Confidential Information includes information which is not specifically labelled or identified as “confidential” by the Disclosing Party and it may be provided in any form (including, but not limited to, written, oral, visual and electronic form). The fact of discussions about a possible business relationship between the Parties also constitutes Confidential Information. Confidential Information includes information disclosed by a Disclosing Party’s affiliate acting under the same brand name
1.2. With respect to any Confidential Information the Receiving Party shall:
1.2.1. use the Confidential Information only for the purpose of and within the possible business relationship with the Disclosing Party;
1.2.2. not distribute, disclose or otherwise disseminate the Confidential Information;
1.2.3. take all possible measures to prevent distribution, disclosure or dissemination of the Confidential Information; and
1.2.4. ensure secure storage of the Confidential Information at all times.
1.3. The Receiving Party may disclose the Confidential Information on a strict need-to-know basis to its employees, agents, advisors and affiliates provided that such employees, agents, advisors and affiliates have accepted obligations of confidentiality similar to those contained in this Agreement. The Receiving Party remains liable for any unauthorized disclosure of Confidential Information by such employees, agents, advisors and affiliates as if it were a disclosure by the Receiving Party itself.
1.4. The obligation of confidentiality shall not apply to:
1.4.1. Confidential Information, in relation of which the Disclosing Party has provided prior written consent for such information to be disclosed to others;
1.4.2. Confidential Information which is or becomes generally available to public other than as a result of breach of this Agreement, as evidenced by generally available materials;
1.4.3. Confidential Information which was already in possession of the Receiving Party prior to disclosure under this Agreement, as evidenced by its prior written records;
1.4.4. Confidential Information which is or has been disclosed to the Receiving Party by a third party, not employed by or otherwise affiliated with the Disclosing Party and having a lawful right to make the disclosure;
1.4.5. Confidential Information which is independently developed by Receiving Party’s personnel having no access to the Confidential Information disclosed under this Agreement and provided that no Confidential Information disclosed under this Agreement has been used directly or indirectly for such development; and
1.4.6. Confidential Information which is requested to be disclosed by a court or governmental agency having competent jurisdiction in respect of the required disclosure, provided that notice of such disclosure is given to the Disclosing Party as soon as reasonably doable and, if possible, before a disclosure takes place
1.5. If a Party becomes aware, or has reason to believe, that there has been an unauthorized disclosure or use of the Confidential Information, such Party shall immediately notify the other Party. In this case the Party that discovered the unauthorized use of the Confidential Information shall take any and all actions necessary to protect the Confidential Information including such actions as may reasonably be requested by the other Party.
2. Return of Confidential Information
2.1. Upon termination of this Agreement or sooner upon the Disclosing Party´s written request, which may be made at any time and without stating any reason, the Receiving Party shall (a) cease all use of the Confidential Information; (b) delete all Confidential Information stored in a non-tangible form (for example, in electronic format) from the respective medium; and (c) destroy or, upon request of the Disclosing Party, return to the Disclosing party all tangible items which contain or manifest the Confidential Information, unless requested otherwise by law. The Parties acknowledge, however, that Confidential Information provided in electronic format may be automatically copied by the Receiving Party as part of its back-up procedures and if such copies cannot be destroyed or returned to the Disclosing Party; in this case the Receiving Party shall ensure that such copies are not accessed or used for any purpose.
2.2. The Receiving Party shall provide a written confirmation that all Confidential Information has been deleted, destroyed and/or returned upon request of the Disclosing Party.
3. No Grant of Rights; No Representations
3.1. The Confidential Information shall remain the property of the Party it originally belongs to. Neither this Agreement nor the disclosure of the Confidential Information constitutes or implies any intention by any of the Parties to grant a licence over or confer any rights in the Confidential Information to the other Party.
3.2. The Confidential Information is provided in good faith but without any representations or warranty that it is accurate, complete, fit or sufficient for any particular use, or that it will not infringe on proprietary rights of third parties.
4.1. This Agreement shall be effective upon Partner accepting the terms of this Agreement at XXXX.
4.2. This Agreement shall continue until the fifth anniversary of the date on which it turns out that the proposed business relationship shall not materialize (for example, one of the Parties exits negotiations), or of the date on which the business relationship between the Parties ends for whatever reason.
4.3. Any changes or amendments to this Agreement must be made in writing to be valid; this also applies to the abolishment of the written form requirement.
4.4. Should any provision of the Agreement be invalid, wholly or in part, this shall not affect the validity of the other provisions of the Agreement. Invalid provisions shall be replaced by provisions which accord most closely with the intended purpose of the provisions to be replaced.
4.5. This Agreement may not be assigned or otherwise transferred by one Party, in whole or in part, without the prior written consent of the other Party.
4.6. The Agreement shall be governed by and construed in accordance with the laws of the State of New York. The Parties submit themselves to the exclusive jurisdiction of the state and federal courts of the County of New York, in the State of New York.