On the one side:[Admin Name], the person in charge of directing and organizing the project. (Hereinafter, “LEADER”).
On the other side:[Current User Name], the person invited to be part of the project and collaborate in it by the Project Leader. (Hereinafter, "MEMBER").
Hereinafter, LEADER and MEMBER may be referred to by these names and when reference is made to both of them they may also be referred jointly as the “Parties” or individually, either of them, as a “Party”.
Acting of their own accord, the Parties hereto mutual and reciprocally recognize each other’s legal capacity to enter into this Mutual Nondisclosure Agreement (hereinafter, the “Agreement”), and to such purpose:
In order to pursue mutual business purposes, the Parties recognize that there is a need to exchange certain confidential information of the Parties to be used only for the Purpose and to protect such confidential information from unauthorized use or disclosure.
NOW, THEREFORE, having reached a full understanding, the Parties willingly and of their own accord, agree to enter into this Agreement, subject to the following:
CLAUSES
1. Object:
The object of this Agreement is to set forth the terms and conditions under which the Parties shall keep the confidentiality of the Confidential Information (as defined below) disclosed by each other or otherwise learned by them in the framework of the Project.
2. Confidential Information and Materials:
To the extent of this Agreement:
(a) The term “Confidential Information” shall mean and refer to the Purpose and the Agreement itself, as well as any and all information and data in tangible or non-tangible form, such as written, visual, oral and electronic, owned by or related in any way to the Parties and their business, products, processes, techniques, research, developments, inventions and marketing, which is directly or indirectly disclosed by any of the Parties to each other, or otherwise learned within the framework of the Purpose, prior, on or after the date of this Agreement, whether or not such information is specifically marked as confidential, and which shall be considered privileged, secret, confidential and/or proprietary . Confidential Information includes, but is not limited to, information relating to released or unreleased products or services of the Parties, the marketing or promotion of any of the Parties’ products or services, the Parties’ business policies or practices, marketing plans, product or service plans, business, commercial and productive strategies, financial information, forecasts, personnel information, customer lists, supplier details, commercial relationships, trade secrets, offers, prices, quotations, inventions, designs, drawings, technology, know-how, sketches, photographs, models, specifications, reports, studies, researches, projects, R+D+i, equipment, operating methods, samples, compositions, formulas, processes, databases, ideas, software (including source and object code), hardware configuration, computer programs, algorithms, intellectual property strategies and plans, filed but unpublished patent applications, copyright and trademark plans, potential business partnerships and strategies, and information received from external third parties that the Parties are obligated to treat as confidential. Confidential Information disclosed to one of the Parties by the other Party’s Affiliates (as defined in Clause 3) and/or agents is covered by this Agreement
(b) the term “Confidential Information” shall not include information that:
i. is or becomes a part of the public domain through no act or omission of the receiving Party;
ii. was in the receiving Party’s lawful possession prior to the disclosure and had not been obtained by the other Party either directly or indirectly from the disclosing Party, as demonstrated by written records in existence at the time of disclosure predating disclosure hereunder; or
iii. is lawfully disclosed to the receiving Party by a third party who is not in breach of an obligation of confidentiality to the disclosing Party or to any other third party.
(c) the term “Confidential Materials” shall mean all tangible materials containing Confidential Information, including without limitation written or printed documents and computer disks or tapes, whether machine or user readable.
3. Use:
The Parties acknowledge that the Confidential Information has considerable value and are of significant importance to them. Therefore, each Party shall keep at all times in strict confidence any and all Confidential Information and shall not, without the prior written consent of the other Party, use the Confidential Information for its own use or benefit or for the benefit of third parties or for any purpose other than the Purpose.
Neither Party shall, without the prior written consent of the other Party, divulge, disclose or permit disclosure of the Confidential Information or part thereof, directly nor indirectly, to third parties or to Affiliates (as defined below), directors, officers, representatives, employees, consultants or agents other than those who are required to have the Confidential Information in order to carry out the Purpose, provided that, in any case, they are likewise bound by confidentiality obligations or any other restrictions similar to the ones contained in this Agreement.
To the extent of this Agreement, the term “Affiliates” shall mean and refer to (i) any corporation, company or other business entity, which is owned directly or indirectly by a Party; (ii) any corporation, company or other business entity, which owns directly or indirectly fifty per cent (50%) or more of the voting stock of a Party; or (iii) any corporation, company or other business entity under the direct or indirect control of a corporation, company or other business entity described in (i) or (ii).
Neither Party shall, without the prior written consent of the other Party, make any commercial use of the Confidential Information, nor use such Confidential Information for (i) filing any application, (ii) ensuring any intellectual property rights, including, without limitation, trademarks, inventions, copyrights, patents and/or trade secrets, or (iii) enhancing or improving the design or operation of any product, system or technique or the manner in which any such product, system or technique is fabricated, assembled or used.
4. Copying:
Confidential Information shall not be, without the prior written consent of the other Party, copied or reproduced in any form except as required to accomplish the intent of this Agreement.
5. Ownership:
All Confidential Information, unless otherwise specified in writing, shall at all times remain the exclusive property of the disclosing Party and shall be used by the receiving Party only for the Purpose.
Such Confidential Information and Confidential Materials, including all copies thereof, shall be returned or destroyed within ten (10) calendar days after (i) the receiving Party’s need for it has expired, (ii) upon the request of the disclosing Party, or (iii) upon the termination of this Agreement. At the request of the disclosing Party, the receiving Party shall furnish a certificate signed by an officer or authorized representative of the receiving Party certifying that Confidential Information not returned to the disclosing Party has been destroyed, and shall procure the return or destruction or erasure by any third party to whom the Confidential Information has been made available by the receiving Party in accordance to the terms of this Agreement.
6. Restrictions:
(a) The Parties agree not to disclose or permit the disclosure of any Confidential Information to third parties. However, a receiving Party may disclose Confidential Information in accordance with a judicial or other government order provided that the receiving Party shall give the disclosing Party immediate notice of the order prior to such disclosure, shall allow the disclosing Party a reasonable time to oppose such process and shall comply with any applicable protective order.
b) Each Party shall take reasonable security precautions, at least as great as the precautions each Party takes to protect its own Confidential Information, to keep the Confidential Information confidential and protect it against divulgation, disclosure to or use by third parties. Each Party hereby agrees to notify the other in writing of any actual or suspected misuse, misappropriation or unauthorized disclosure of Confidential Information of the disclosing Party which may come to the receiving Party’s attention.
(c) Neither Party may duplicate, translate, transfer, or cause, permit or attempt the reverse engineering, disassembly or decompilation of any software disclosed under this Agreement.
(d) Nothing in this Agreement shall be construed as granting to the receiving Party any interest, license, title or other right on the Confidential Information or in or to any patent, patent application, design, copyright, trademark, know-how or other industrial or intellectual property rights thereof which may now or hereafter be owned by the disclosing Party.
7. Rights and Remedies:
The parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information and that a Party shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may deemed proper by a court of competent jurisdiction.
8. Compensation for damages:
Parties mutually ascertain and acknowledge the right of the Party owning the Confidential Information to be compensated for any loss or damage caused by improper use or unauthorized disclosure by the receiving party of such Confidential Information. Indemnity shall be calculated according to the laws in force in the countries of the Parties.
9. Miscellaneous:
(a) This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and merges all prior discussions between them as Confidential Information. It shall not be modified except by written agreement signed by authorized representatives of both Parties. None of the provisions of this Agreement shall be deemed to have been waived by any act or acquiescence on the part of either Party, its agents, or employees, but only by an instrument in writing signed by an officer or authorized representative of either Party.
(b) MEMBER cannot guarantee the integrity, accuracy or correctness of the Confidential Information, nor the completeness or entirety of the Confidential Information for the Purpose or that the Confidential Information does not infringe third parties’ rights.
(c) This Agreement and all matters arising out of or relating to this Agreement shall be governed and construed in all respects by the laws in force in the countries of the Parties, excluding choice of law provisions.
(d) Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by the judges of the court the parties agree to designate as the court having the sole and exclusive jurisdiction thereof.
(e) In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement shall remain effective, binding on the Parties and in full force.
(f) The Agreement enters into force when LEADER and MEMBER join the Project accepting this agreement and shall remain in full force and effect until the Confidential Information has become generally known to the public through no action or omission of the receiving Party.
(g) The Parties are independent contractors. Nothing contained in this Agreement shall be construed (i) to give either Party the power to direct or control the day-to-day activities of the other or (ii) to constitute the Parties as partners, joint ventures, coowners or otherwise as participants in a joint or common undertaking.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement.
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