***IMPORTANT READ CAREFULLY***
MUTUAL NON-DISCLOSURE AGREEMENT
Updated January 23, 2020
THIS MUTUAL NON-DISCLOSURE AGREEMENT (THIS “AGREEMENT”) GOVERNS THE DISCLOSURE OF CONFIDENTIAL INFORMATION (DEFINED BELOW) BY AND BETWEEN COFENSE INC. AND/OR ITS AFFILIATES (“COFENSE”) AND YOU, OR THE BUSINESS, GOVERNMENT OR ENTITY YOU REPRESENT (“COMPANY”). PLEASE READ THIS AGREEMENT CAREFULLY. CLICKING ON THE “YES” OR “I ACCEPT” BUTTON (OR OTHER BUTTON OR MECHANISM DESIGNED TO ACKNOWLEDGE AGREEMENT TO THE TERMS OF THIS AGREEMENT), DOWNLOADING, INSTALLING, ACCESSING OR USING COFENSE CONFIDENTIAL INFORMATION CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.
IF YOU AGREE TO THIS AGREEMENT ON BEHALF OF COMPANY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE POWER AND AUTHORITY TO BIND COMPANY TO THIS AGREEMENT, AND YOUR AGREEMENT TO THESE TERMS WILL BE TREATED AS THE AGREEMENT OF THE COMPANY.
IF YOU ARE UNWILLING TO AGREE TO THIS AGREEMENT, OR YOU DO NOT HAVE THE RIGHT, POWER AND AUTHORITY TO ACT ON BEHALF OF AND BIND COMPANY, DO NOT CLICK ON THE BUTTON AND DO NOT INSTALL, DOWNLOAD, ACCEPT, ACCESS, OR OTHERWISE USE THE COFENSE CONFIDENTIAL INFORMATION.
- “Confidential Information” means all non-public information, whether written, electronic, oral or graphic, that a disclosing party (“Discloser”) may disclose or reveal to the receiving party (“Recipient”), that is either (i) identified as confidential at the time of disclosure by Discloser, or (ii) disclosed under circumstances that would indicate to a reasonable person that the information should be treated as confidential by Recipient. Confidential Information includes, but is not limited to, technical or business information, pricing, financial plans and records, marketing plans, research, present and proposed products, trade secrets, know how, processes, intelligence, computer software programs, software tools and descriptions of functions and features of software, source code, information regarding customers and suppliers, employees and affiliates, and methods for systems integration, company systems or software.
- Recipient agrees that it will: (i) only use the Confidential Information in conjunction with discussions, evaluations or assessments of a business opportunity of mutual interest or in connection with the fulfillment of obligations under any other agreement between the parties (the “Purpose”); (ii) not disclose Confidential Information to any third party without Discloser’s prior written consent, and will limit disclosure to its directors, officers, employees, consultants, attorneys and agents who (a) have a need to know, and (b) are bound by confidentiality obligations no less restrictive than Recipient’s obligations hereunder (“Representatives”); (iii) not copy, reverse engineer, disassemble, create any works from, or decompile any prototypes, software or other tangible objects which embody Discloser’s Confidential Information; and (iv) use the same degree of care to protect Discloser’s Confidential Information as it uses to protect its own information of like importance, but with no less than a reasonable degree of care. Recipient is responsible for its Representatives’ compliance with the terms of this Agreement. Recipient will not remove any copyright, confidentiality or proprietary notice from the Confidential Information. Recipient will not make copies of the Confidential Information except to the extent necessary for the Purpose. Any reproduction of Confidential Information will be the property of Discloser and will contain any and all notices of confidentiality contained on the original.
- Notwithstanding anything in this Agreement to the contrary, Recipient will not have any obligation with respect to any information which Recipient can evidence: (i) is or becomes publicly available through no breach of this Agreement by Recipient; (ii) was lawfully obtained by Recipient from a third party without any obligation to maintain the Confidential Information as proprietary or confidential; (iii) was already in possession of Recipient or known by Recipient prior to the disclosure by Discloser; or (iv) was independently developed by Recipient without use of or reference to any Confidential Information. In the event that Recipient is ordered by a court or other governmental body to disclose the Confidential Information, Recipient will (i) immediately notify Discloser, to the extent such provision of prior notice is permitted by applicable law, (ii) take reasonable steps to limit disclosure, and (iii) reasonably assist Discloser in contesting such order.
- Upon termination of this Agreement or upon Discloser’s request, Recipient will destroy or, at its option, return all Confidential Information to Discloser, and all copies thereof, and, upon request, Recipient will furnish written confirmation that it has complied with this section. Notwithstanding the foregoing, one copy of each electronic version of such Confidential Information may be retained by Recipient for archive purposes pursuant to its standard data backup and disaster recovery plans; provided, however, that all obligations contained herein will, with respect to any Confidential Information so retained, survive any termination of this Agreement.
- No license or other rights to Confidential Information or to any invention, patent, copyright, trademark or other intellectual property that may be based upon Confidential Information, is either granted or implied by this Agreement and, as between the Parties, such Confidential Information is and will remain the sole property of Discloser.
- Discloser warrants that it has the right to disclose its Confidential Information under this Agreement. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS” AND WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ACCURACY.
- This Agreement may be terminated immediately by either party for any reason upon thirty (30) days’ written notice. Such termination of this Agreement for any reason by either party will not relieve the Parties of any obligation with respect to information disclosed hereunder prior to termination. The obligations contained in this Agreement will survive termination of this Agreement, and wil continue in full force and effect for a period of three (3) years from the date of disclosure of such Confidential Information; provided, however, if trade secrets are disclosed, the obligations of Recipient will remain in force until such time that no portion of the Confidential Information constitutes a trade secret of the Discloser.
- This Agreement may only be modified by a written agreement signed by the authorized representatives of both parties. Recipient recognizes and acknowledges that the Confidential Information may have competitive value and that irreparable damage might result to Discloser if improperly used or disclosed by the Recipient to a third party. Accordingly, each party agrees that Discloser will have the right, in addition to its other rights and remedies, at law or in equity, to seek injunctive relief for any breach or threatened breach of this Agreement. This Agreement will be governed by the laws of the Commonwealth of Virginia, without regard to its conflict of laws principles.