MUTUAL NONDISCLOSURE AGREEMENT
This Mutual Nondisclosure Agreement (the “Agreement”) is made and entered into as of the date last signed (the “Effective Date”) by and between Human Security, Inc., a Delaware corporation, and the party set forth in the signature block.
1. Purpose. The parties wish to work together on a potential business engagement for fraud remediation (the “Purpose”). In connection with the Purpose, each party may disclose to the other party certain confidential technical and business information that the disclosing party desires to treat as confidential.
2. “Confidential Information” means any information disclosed by either party to the other party, either directly or indirectly, in writing, orally, or by inspection of tangible objects (i) that the disclosing party identifies as confidential or proprietary or (ii) that reasonably appears to be confidential or proprietary because of legends or other markings, the circumstances of disclosure, or the nature of the information itself. Confidential Information may include any business, technical, financial or strategic planning information which has been or may hereafter be provided by the Disclosing Party to the Recipient, including without limitation, financial condition, market share, trade secrets, inventions, copyrights, know-how, marketing, computer and security systems or other compilations of information which are used in the Disclosing Party’s business and which give the Disclosing Party an opportunity to obtain an advantage over those who do not know and/or do not use it (which includes, but is not limited to, data bases and data base management systems, software and software management, source code, customer lists and other information relating to same, pricing or financial information, intangible property and other such information or intellectual property which is not in the public domain).
3. Exceptions. Notwithstanding Section 2, Confidential Information shall not include any information, which (i) is now, or hereafter becomes, through no act or failure to act on the part of the receiving party, generally known or available to the public without breach of this Agreement by the receiving party; (ii) was acquired by the receiving party without restriction as to use or disclosure before receiving such information from the disclosing party, as shown by the receiving party's files and records immediately prior to the time of disclosure; (iii) is obtained by the receiving party without restriction as to use or disclosure by a third party authorized to make such disclosure; or (iv) is independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information, as shown by documents and other competent evidence in the receiving party's possession.
4. Permitted Use. The receiving party may only use the disclosing party’s Confidential Information in connection with the Purpose for the mutual benefit of both parties. The receiving party shall not reverse engineer, disassemble or de-compile any prototypes, software or other tangible objects that embody the disclosing party’s Confidential Information unless written consent for such actions is received from the disclosing party. If such a prohibition is not permitted pursuant to applicable law, the receiving party shall provide the disclosing party written notice prior to undertaking any such reverse engineering and shall give the disclosing party a reasonable amount of time to provide any interface information required by law prior to commencing such reverse engineering. Neither party shall make any copies of the other party’s Confidential Information unless the disclosing party previously approves the same in writing. Each party shall reproduce the other party’s proprietary rights and confidentiality notices on any such approved copies, in the same manner in which such notices were set forth in or on the original.
5. Maintenance of Confidentiality. The receiving party will maintain the confidentiality of the disclosing party’s Confidential Information with at least the same degree of care that it uses to protect its own confidential and proprietary information, but in no event less than a reasonable degree of care under the circumstances. The receiving party will not disclose any of the disclosing party’s Confidential Information to employees or to any third parties except to the receiving party’s employees who have a need to know such information in connection with the Purpose and have agreed to abide by nondisclosure terms at least as protective of the disclosing party’s Confidential Information as those set forth herein.
6. Disclosure Required by Law. In the event the receiving party is required by law or a valid and effective subpoena or order issued by either a court of competent jurisdiction or a governmental body to disclose any of the disclosing party’s Confidential Information, to the extent not prohibited by applicable law, the receiving party shall promptly notify the disclosing party in writing of the existence, terms, and circumstances surrounding such required disclosure so that the disclosing party may seek a protective order or other appropriate relief from the proper authority. The receiving party shall cooperate with the disclosing party in seeking such order or other relief. If the receiving party is nonetheless required to disclose the disclosing party’s Confidential Information, it will furnish only that portion of the Confidential Information that is legally required and will exercise all reasonable efforts to obtain reliable assurances that such Confidential Information will be treated confidentially to the extent possible.
7. Duration of Protection. The obligations set forth herein with respect to the disclosing party’s Confidential Information shall be protected by this Agreement until such information is no longer Confidential Information.
8. Term. This Agreement shall be effective as of the Effective Date and shall remain in effect for a period of one (1) year. Thereafter, the Agreement shall automatically renew for additional automatic one (1) year terms (not to exceed three (3) terms) unless terminated earlier according to the terms herein. Upon expiration or termination of this Agreement, this Agreement shall survive to the extent necessary to protect Confidential Information exchanged during the term of the Agreement pursuant to Section 7.
9. No Obligation. Nothing herein shall obligate either party to purchase, sell, license, transfer, or otherwise dispose of any technology, services or products, or to engage in any other business transaction. Each party reserves the right, in its sole discretion, to terminate the discussions concerning the Purpose at any time.
10. Ownership and No License. All of the disclosing party’s Confidential Information shall remain the sole property of the disclosing party. Nothing in this Agreement is intended to grant any rights to either party under any patent, copyright, trademark or other intellectual property right of the other party, nor shall this Agreement grant either party any rights in or to the other party’s Confidential Information except as expressly set forth herein.
11. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS.” NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS, IMPLIED NOR OTHERWISE, REGARDING THE ACCURACY, COMPLETENESS, OR PERFORMANCE OF THE CONFIDENTIAL INFORMATION; EACH PARTY EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
12. Return of Materials. All documents and other tangible objects containing or representing the disclosing party’s Confidential Information and all copies thereof that are in the possession of the receiving party shall be promptly destroyed or returned to the disclosing party upon the disclosing party’s request.
13. Remedies. Each party agrees that its obligations here¬under are necessary and reasonable in order to protect the disclosing party and the disclosing party’s business, and expressly agrees that monetary damages would be inadequate to compensate the disclosing party for any breach by the receiving party of any covenants and agreements set forth herein. Accordingly, each party agrees and acknowledges that any such viola¬tion or threatened violation will cause irreparable injury to the disclosing party and that, in addition to any other remedies that may be avail¬able, in law, in equity or otherwise, the disclosing party shall be entitled to obtain injunctive relief against the threatened breach of this Agreement or the continuation of any such breach, without the necessity of proving actual damages or posting bond.
14. Miscellaneous. This Agreement shall bind and inure to the benefit of the parties hereto and their successors and assigns. This Agreement shall be governed by the laws of New York, without reference to conflict of laws principles. This document contains the entire agreement between the parties with respect to the subject matter hereof. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision hereof. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties. In the event any term of this Agreement is found by any court to be void or otherwise unenforceable, the remainder of this Agreement shall remain valid and enforceable as though such term were absent upon the date of its execution. Neither party may assign this Agreement without the express written consent of the other party, and any prohibited assignment shall be void; provided that either party may assign this Agreement pursuant to a merger, acquisition or sale of all or substantially all of such party’s assets, or to its affiliates, and wholly-owned subsidiaries, provided the party of such merger, acquisition, or sale supplies the other party with notice, except that neither party may assign this agreement to a competitor of the other party. This Agreement shall bind and inure to the benefit of the parties and their successors and permitted assigns.