Confidentiality Agreement
THIS AGREEMENT is made Date.
PARTIES:
Dave Mink on
behalf of TRAXsales
Contact Name on behalf of Company Name
WHEREAS the parties, for their mutual benefit, may already have exchanged and wish further to exchange certain information of a confidential nature and wish to protect such information in the manner set out in this Agreement
NOW IT IS HEREBY AGREED as follows:
1. Definitions
1.1 “Business Proposition” shall mean “eTRAXsales” “Performance Reports”, including without limitation, the “e.g. Performance Summary Reports and all Customer Contact Information – on eTRAXsales.com” or any other media upon which the service will be provided.
1.2 “Purpose” shall mean discussions and negotiations with a view to concluding an agreement for the development of the Business Proposition;
1.3 “Confidential Information” shall mean
1.4“Excluded Information” shall mean such disclosed information or data which:
a)was in its files or computers or other recording media prior to receipt from “Company Name” and was not previously acquired by “TRAXsales” from “Company Name” under an obligation of confidence; or
b)to have been developed by or for “TRAXsales” at any time independently of any Confidential Information disclosed to it by the disclosing party; or
(a) With the prior written approval of the disclosing party; or
(b) Without such approval, after a period of seven years from the date of receipt thereof; or
2 Handling of Confidential Information
2.1 “TRAXsales” shall maintain the disclosing party’s Confidential Information in confidence and shall exercise in relation thereto no lesser security measures and degree of care than those which “TRAXsales” applies to its own Confidential Information which “TRAXsales” warrants as providing adequate protection against unauthorized disclosure, copying or use. Without affecting the generality of this obligation “TRAXsales” shall keep separate all Confidential Information and all information generated by “TRAXsales” based thereon from all documents and other records of “TRAXsales” and not use, reproduce, transform, or store any of the Confidential Information in an externally accessible computer or electronic information retrieval system or in any form which would allow any person not authorized to do so to have access to the Confidential Information or transmit it in any form or by any means whatsoever outside of its usual place of business;.
2.2 The parties shall ensure that disclosure of such Confidential Information is restricted to those of its employees, directors or professional advisers having the need to know the same for the Purpose;
2.3 Copies or reproductions shall not be made except to the extent reasonably necessary for the Purpose and all copies made shall be the property of the disclosing party.
2.4 All Confidential Information and copies thereof which is in a physical form shall be returned to “Company Name” (and all other information and data and other records in a machine readable form shall be deleted or destroyed) within thirty days of receipt of a written request from the disclosing party.
3 Limitations and Warranty
3.1”TRAXsales”shall:
3.1.1 not divulge the disclosing party’s Confidential Information, in whole or in part to any third party;
3.1.2 use the same only for the Purpose; and
3.1.3 make no commercial use of the same or any part thereof either directly or indirectly nor use the Confidential Information to obtain any commercial advantage or otherwise to exploit the same without the prior written consent of “Company Name”.
3.2 “Company Name” warrants its right to disclose its Confidential Information to “TRAXsales” and to authorize “TRAXsales” to use the same for the Purpose.
4 Disclaimer
4.1 All rights in Confidential Information are reserved by “Company Name” and no rights or obligations other than those expressly recited herein are granted or to be implied from this Agreement. In particular, no license is hereby granted directly or indirectly under any invention, discovery, patent, copyright or other industrial property right now or in the future held, made, obtained or licensable by either party.
4.2 Nothing in this Agreement or its operation shall constitute an obligation on either party to enter into the aforesaid business relationship or shall preclude, impair or restrict either party from continuing to engage in its business otherwise than in breach of the terms of this Agreement.
5. Indemnity
5.1 If either party shall break any of the terms of this agreement the party in default shall indemnify and keep indemnified the other from and against all costs, claims, demands, liabilities, expenses, damages or losses, (including without limitation consequential losses and loss of profit, and all interest, penalties and legal and other professional costs and expenses) incurred or suffered by them by reason of or in connection with any such breach;
5.2 The parties acknowledge that damages alone would not be an adequate remedy for any breach of the provisions of this agreement and, accordingly, without prejudice to any and all other rights or remedies, both acknowledge that the other shall be entitled to the remedies of injunction, specific performance and other equitable relief for any threatened or actual breach of the provisions of this agreement.
6 Notices
All notices under this Agreement shall be in writing, sent by telex, facsimile or first-class registered or recorded delivery post to the party being served at its address specified above or at such other address of which such party shall have given notice as aforesaid, and marked for the attention of that party’s signatory of this Agreement. The date of service shall be deemed to be the day following the day on which the notice was transmitted or posted as the case may be.
7 Termination
This Agreement shall continue in force from the date hereof until termination by mutual consent or by either party by giving to the other not less than one month’s prior notice. The provisions in Clause 1, 2 and 3 shall survive any such termination.
8 Non-Assignment
This Agreement is personal to the parties and shall not be assigned or otherwise transferred in whole or in part by either party without the prior written consent of the other party.
9 Entire Agreement Governing Law and Jurisdiction
This Agreement constitutes the entire agreement and understanding between the parties in respect of Confidential Information and supersedes all previous agreements, understandings and undertakings in such respect. This Agreement cannot be amended except by written agreement signed by all parties or by their authorized signatories. The interpretation construction and effect of this Agreement shall be governed and construed in all respects in accordance with the laws of The United States of America and the parties hereby submit to the non-exclusive jurisdiction of The United States of America Court System.
AS WITNESS this Agreement has been signed on behalf of each party by its duly authorized representative as on the date of the year first above written.
Dave Mink on
behalf of TRAXsales
Signature: ____________________________
Date:_________________________________
Contact on behalf of Company Name
Signature: ____________________________
Date:_________________________________