MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (“NDA”) governs the disclosure of information by and between TrenData HR LLC., (“TrenData”), having its headquarters at 4975 Preston Park Blvd, Suite 780 Plano TX 75093 and the party requesting a free 90 day trail and is effective on the date of the first exchange of Confidential Information between the parties.
In the course of those discussions, each party may receive or disclose information that it or the other party considers to be proprietary and valuable and that should be protected against unrestricted disclosure to others.
- Confidential Information. For the purposes of this NDA, “Confidential Information” means any information, which one party (the “disclosing party”) provides, either directly or indirectly, to the other (“receiving party”) that (i) if in tangible form, is clearly marked at the time of disclosure as being confidential, or (ii) if disclosed orally or visually, is designated at the time of disclosure as confidential, or (iii) is business, technical or other information which is reasonably understood to be confidential or proprietary information, whether or not marked. Each of the parties agrees that the software programs of the other party consist of valuable Confidential Information and each party agrees it will not modify, reverse engineer, decompile, create other works from, or disassemble any software programs contained in the Confidential Information of the other party without the prior written consent of the other party.
- No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. THE DISCLOSING PARTY MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE, PROVIDED THE DISCLOSING PARTY ACTS IN GOOD FAITH IN SUPPLYING THE CONFIDENTIAL INFORMATION. Any dated Confidential Information may be presumed current as of the time of disclosure but, unless otherwise agreed in writing, is subject to change without notice.
- Exclusions. “Confidential Information” does not include information, which (a) is or becomes generally available to the public other than as a result of a wrongful disclosure by the receiving party; (b) was in the possession of the receiving party without confidentiality restrictions at the time of disclosure; (c) was generated independently by the receiving party from sources other than the Confidential Information without violating any obligations of this NDA; or (d) was disclosed to receiving party by a third party free of any obligation of confidentiality.
- Confidentiality. Each party agrees to hold all Confidential Information of the other party in confidence and not to disclose, distribute or disseminate such Confidential Information, or any documents or information derived from the Confidential Information, to any third party, except as provided in this NDA. The receiving party may disclose Confidential Information to its employees and its agents or contractors on a need to know basis, provided that prior to any disclosure, each has signed a confidentiality agreement or is otherwise bound by confidentiality obligations at least as restrictive as this NDA. If the receiving party participates in a TrenData sponsored group event, this NDA shall apply to Confidential Information disclosed by any group participant, and TrenData may provide a copy of this NDA to any disclosing party seeking to enforce its provisions.
- Required Disclosures. The receiving party may disclose Confidential Information as required by a court of competent jurisdiction or other similar requirement of a governmental agency, provided that the party required to disclose the Confidential Information provides the original disclosing party with notice of such order or requirement and an opportunity to respond to such court order as soon as reasonably practicable, and further provided that any required disclosure does not relieve the receiving party of its confidentiality obligations with respect to any other party.
- Use. Each party agrees to use the Confidential Information received from the other party only for the Purpose. No other rights or licenses to trademarks, inventions, copyrights, patents, or any other intellectual property are implied or granted under this NDA or by the conveying of the Confidential Information between the parties. Confidential Information shall not be reproduced in any form except as required to accomplish the Purpose.
- Care. The receiving party shall provide the same care to avoid disclosure or unauthorized use of the Confidential Information as it provides to protect its own similar proprietary information, but in no event shall provide less than commercially reasonable care. The receiving party shall promptly advise the disclosing party in writing if it becomes aware of any misappropriation or misuse of the disclosing party’s Confidential Information.
- Right to Refuse Confidential Information. When requested by the receiving party, the disclosing party shall provide a non-confidential list generally describing its Confidential Information prior to disclosure of the actual Confidential Information. Each party has the right to refuse to accept any Confidential Information offered under this NDA.
- Ownership. Unless otherwise specified in writing, the disclosing party shall retain all rights to any Confidential Information disclosed to the receiving party.
- Term. The obligations of this NDA shall continue to apply to Confidential Information, including trade secrets, for as long as required by law and for as long as the owner maintains it as confidentia This NDA may be terminated at any time by either party giving thirty (30) days prior written notice to the other party. Unless earlier terminated, this NDA shall expire two (2) years from the Effective Date. Termination or expiration of this NDA shall not affect the obligations set forth in Sections 2, 3, 4, 5, 6, 7, 9, 10, 12, 13, 15, 17, 18 and 19 of this NDA which shall survive that termination or expiration.
- Right to Disclose. Each party warrants that it has the right to disclose all Confidential Information, which it has disclosed or may disclose to the other party under this Neither party shall communicate any information to the other in violation of the proprietary rights of any third party. Nothing in this NDA shall obligate either party to disclose any particular Confidential Information to the other party.
- Return of Confidential Information. Upon the request of disclosing party or upon the termination or expiration of this NDA, the receiving party shall promptly return to the disclosing party all copies of the Confidential Information, and any documents derived from the Confidential Information, or at the disclosing party’s option, shall certify in writing that all copies of the Confidential Information and derivative documents have been destroyed. The receiving party may return any Confidential Information to the disclosing party at any time. This obligation to return or destroy materials or copies thereof does not extend to automatically generated computer back-up or archival copies generated in the ordinary course of receiving party’s information systems procedures, provided that receiving party shall make no further use of Confidential Information contained in those copies.
- Publicity. No public notice by either party relating to this NDA or the Purpose shall be made without the other party’s prior written consent.
- No Business Obligation. Neither party is under any obligation to engage in or continue any negotiations relating to the Purpose. Any decision to proceed with negotiations or to consummate a business relationship shall be in each party’s sole disc Each party shall bear its own costs and expenses in connection with the activities contemplated by this NDA.
- Non-solicitation. Neither party shall, during the term of this NDA and for one (1) year after its termination, solicit for hire an employee, consultant or any of the other party’s personnel who have been directly involved with the Purpose, without the other party’s express written consent. However, neither party will be precluded from hiring any employee of the other party who responds to any public notice or advertisement of an employment opportunity or who terminated his/her employment with the other party at least six months previously, provided that the hiring party did not solicit the termination.
- Export. Neither party shall export, directly or indirectly, any technical data acquired from the other pursuant to this NDA or any product utilizing any such data to any country for which the S. Government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining that license or approval.
- Dispute Resolution. Any dispute, controversy or claim, whether based on contract, tort, statute or other legal or equitable theory (each, a “Claim”) arising out of or relating to this NDA or a breach of this NDA shall be settled by final and binding arbitration in accordance with the American Arbitration Association (“AAA”) rul Unless otherwise agreed, the arbitration panel will consist of a single arbitrator selected by the parties from a list of candidates provided by AAA, and the arbitrator will be an attorney experienced in information technology disputes. The arbitrator will have exclusive authority to resolve any and all disputes relating to procedural and substantive questions concerning the arbitration, including choice of venue and choice of law issues, and the formation, interpretation, applicability, scope, and enforceability of this agreement to arbitrate. The arbitration proceeding will occur in a mutually agreeable metropolitan area. Each party will bear its own arbitration costs, and the parties will equally share the arbitrators’ fees, provided, however, that if it becomes necessary for either party to compel arbitration or to enforce an arbitration award, that party may bring an action in any court of competent jurisdiction and the prevailing party will be entitled to recover from the other party its costs and expenses, including court costs and reasonable attorney fees (including allocable costs of in-house counsel). The arbitration and all related proceedings and discovery will take place pursuant to a protective order entered by the arbitrators that protects the confidential nature of the parties’ Confidential Information. No arbitration award may provide a remedy beyond those permitted under this NDA, and any award providing a remedy not permitted under this NDA will not be valid and will be vacated. No claim may be brought as a class action, and neither party may act as a class representative or participate as a member of a class of claimants with respect to any claim. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING LOST PROFITS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS NDA. The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §§1–16, and judgment upon the award rendered by the arbitrator(s) may be entered by any court of competent jurisdiction.
- Injunctive Relief. A party may, without limiting any other rights and remedies available, seek injunctive relief from any court of competent jurisdiction to protect its Confidential Information from any actual or threatened disclosure or harm regardless of the arbitration requirement of this NDA.
a) This NDA shall be governed and construed under the laws of the State of Delaware without regard to its conflicts of laws provisions.
b) If any individual term or provision of this NDA is contrary to or in conflict with any requirement of applicable law, the remainder of this NDA shall be valid and enforceable as permitted by applicable law.
c) No failure or delay by either party to exercise or enforce any right under this NDA shall waive that right.
d) This NDA is the entire agreement between the parties, and supersedes all prior written and oral communications and NDAs relating to confidentiality or nondisclosur This NDA may not be amended except in writing and signed by an authorized representative of each party.
e) Any notice required to be given under this NDA shall be in writing and be deemed received upon personal delivery or three (3) days after mailing if sent by registered or certified mail to the addresses of the parties set forth above, or to such other address as either of the parties shall have furnished to the other in writin
f) Neither party will assign or transfer any rights or obligations under this NDA without the prior written consent of the other party. Any purported assignment without that written consent will not be valid or enforceable