MUTUAL NON-DISCLOSURE AGREEMENT
THIS CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT(this “Agreement”) is made on the date below (the “Effective Date”), by and between VIDIT, LLC, together with its affiliates (collectively, “Company”), and the person/company and its affiliates (collectively, “Buyer”). In this Agreement, Company and Buyer may be individually referred to as a “Party” and both may collectively be referred to as the “Parties.” As used herein, “affiliate” means any entity controlled by, controlling or under common control with the Party referenced.
WHEREAS, the parties have or now wish to enter into discussions regarding certain software products and services distributed by the Company (the “Discussions”);
WHEREAS, as a part of such Discussions, the Parties each may gain access to certain of the other Party’s information which is of a confidential and/or proprietary nature, and which is valuable and appropriate to protect from unauthorized disclosure or use; and
WHEREAS, to protect the confidentiality and proprietary nature of such information, the Parties have agreed to execute this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements and other valuable consideration exchanged, the receipt and sufficiency of which the Parties hereby acknowledge, Company and Prospective Buyer agree as follows:
Confidential Information. For the purposes of this Agreement, the term “Confidential Information” shall mean all information one Party (the “Receiving Party”) obtains from the other Party (the “Disclosing Party”), or otherwise gains access to, during the course of the Discussions (whether before or after the Effective Date) that concerns the Disclosing Party or its business operations. Confidential Information includes, but is not limited to, copyrights, trademarks, trade dress, trade secrets, patents, customer and supplier lists, product designs and pricing information, processes, formulas, business plans, provider, employer and consumer information, acquisition plans, product licensing plans, finances, financials and financial plans, budgets, production plans and protocols, systems architecture, technology, algorithms, interfaces, technology, materials, data, and methods. Confidential Information may be conveyed to the Receiving Party in written, electronic or oral form, and includes any information that may be derived from or developed as a result of access to the Disclosing Party’s facilities, as well as all notes, reports, evaluative materials, analyses or studies prepared by the Receiving Party or its directors, officers, employees, agents and advisors (collectively, such Party’s “Representatives”) regarding or relating to the Disclosing Party or its Confidential Information.
Notwithstanding the foregoing, the following will not constitute “Confidential Information” for purposes of this Agreement: (i) information that was rightfully acquired and already in the Receiving Party’s possession prior to the Effective Date, and that was not obtained from the Disclosing Party; (ii) information that is or becomes generally available to the public other than as a result of a disclosure by Receiving Party in violation of this Agreement; or (iii) information that the Receiving Party develops internally without reference to the Disclosing Party’s Confidential Information.
Obligations of Confidentiality. In consideration of each Party providing or allowing the other Party access to its Confidential Information, each Party agrees that it: (i) will hold in confidence, treat as confidential and proprietary, and protect utilizing standards appropriate for the Company’s industry, all of the Disclosing Party’s Confidential Information; (ii) will disclose the Disclosing Party’s Confidential Information only to the Receiving Party’s Representatives who have a legitimate need to know such information in connection with the Discussions, and who are bound by as strict of confidentiality standards as set forth herein; (iii) will not, without the prior written consent of the Disclosing Party, disclose the Disclosing Party’s Confidential Information to any third party (other than to its Representatives as allowed by 2(ii) above); (iv) will not, without the prior written consent of the Disclosing Party, disclose to any third party the Company’s Confidential Information; (v) will not, without prior written consent of the Disclosing Party, contact any customer of the Company for any reason; and (vi) will not use the Disclosing Party’s Confidential Information other than as is required in connection with the Discussions. As between themselves, the Parties shall be and remain solely and completely liable and responsible for any breaches of this Agreement committed by any of their respective Representatives.
In the event that Receiving Party is requested or required by applicable law or regulation or by legal process to disclose the Disclosing Party’s Confidential Information or any information regarding the Discussions, Receiving Party will provide the Disclosing Party with prompt notice of any such request or requirement so that the Disclosing Party may (i) seek an appropriate protective order or other remedy, or (ii) consult with the Receiving Party with respect to the taking of steps to resist or narrow the scope of such request or legal process, or (iii) waive compliance, in whole or in part, with the terms of this Agreement. If Receiving Party is unable to provide such notice to the Disclosing Party, the Receiving Party will use its reasonable best efforts to ensure that all of Disclosing Party’s Confidential Information and all information regarding the Discussions will be accorded confidential treatment. If no ability to provide such notice or obtain such confidential treatment is reasonably available to Receiving Party, Receiving Party shall disclose only such information as is minimally necessary to comply with the applicable request or requirement.
1. Return of Materials. Whenever requested by the Disclosing Party, the Receiving Party shall return to the Disclosing Party or destroy, at the Disclosing Party’s sole discretion, all materials containing or referencing the Disclosing Party’s Confidential Information, including, without limitation, all papers, records, computer disks or tapes (whether machine or user readable), documents, summaries, samples and the like of every kind, including all copies thereof, except, in each case, for one copy of each which may be retained by the Receiving Party in secure storage solely for archival and document retention purposes, which copies shall remain subject to the provisions of this Agreement indefinitely. If the Disclosing Party requests that its Confidential Information be destroyed, an authorized representative of the Receiving Party shall certify such destruction in writing to the Disclosing Party.