NONDISCLOSURE AGREEMENT WITH LIVEPLEX INC
This Mutual Nondisclosure Agreement (“Agreement”) is entered to by and between Hecuba Softech Inc (and its parents, subsidiaries, and/or affiliates) and the aforesaid corporation/ entity. The parties are considering or have entered into a business relationship or commercial transaction (“Purpose”) during which they may exchange non-public information that the disclosing party (“Discloser”) wants the receiving party (“Recipient”) to treat as confidential. Therefore, in consideration of the parties’ discussions and any access of each Recipient to Confidential Information of Discloser, the parties hereby agree as follows:
1. Definition. “Confidential Information” means information that (a) is marked clearly as confidential or proprietary; (b) is designated as confidential or proprietary at the time of disclosure; or (c) by its nature, Recipient knows or a reasonable person would consider to be confidential, including the terms of this Agreement and the existence of discussions between the parties. Confidential Information includes information (whether disclosed verbally, in documentary form, by demonstration or otherwise) relating to Discloser’s business (including, without limitation, computer programs, technical drawings, algorithms, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, customer and product development plans, forecasts, strategies and information).
2. Limited Use and Disclosure of Confidential Information. Recipient shall hold Discloser’s Confidential Information in confidence and take commercially reasonable precautions to protect such Confidential Information (including, without limitation, all processes and precautions
Recipient uses with respect to its own confidential materials). Recipient shall not:
a. disclose any such Confidential Information or any information derived therefrom to any third person except to its employees, contractors and professional advisors who
(i) need to know for the Purpose,
(ii) have been instructed as to the confidential nature of the information; and
(iii) are bound by confidentiality obligations no less restrictive than those set forth in this Agreement; provided that Recipient shall ensure their compliance with such obligations;
b. make any use at any time of such Confidential Information except for the Purpose;
c. copy or reverse engineer any such Confidential Information; and
d. export or re-export (within the meaning of U.S. or other export control laws or regulations) any C Confidential Information.
3. Exclusions. The restrictions above shall not apply to any Confidential Information that Recipient can document:
a. is or becomes (through no improper action or inaction by Recipient or any affiliate, agent, consultant or employee of Recipient) generally available to the public;
b. was in its possession or known by it without restriction on use or disclosure before receipt from Discloser;
c. was rightfully disclosed to it without restriction on use or disclosure by a third party; or
d. was independently developed by Recipient without use of the Discloser’s Confidential Information.
4. Required Disclosures. Recipient may disclose Confidential Information as required by law or court order, provided Recipient:
(a) uses reasonable commercial efforts to limit disclosure and where possible to obtain confidential treatment or a protective order; and
(b) to the extent legally permissible, gives Discloser prompt notice of such requirement and allows Discloser to participate in the proceedings.
5. Limited Warranty. All Confidential Information disclosed hereunder is provided by Discloser on an “as is” basis without representation or warranty of any kind.
6. Return of Confidential Information. Upon a written request by Discloser, Recipient will promptly turn over or render inaccessible all Discloser’s Confidential Information, although Recipient may if necessary keep a single copy to comply with applicable law.
7. No Further Obligation. Nothing in this Agreement requires either party to disclose any Confidential Information or proceed with any transaction or relationship.
8. Term and Protection Period. The term of this Agreement shall be one (1) year from the date of the Effective Date (as set out below) unless earlier terminated by either party giving thirty (30) days’ written notice of termination to the other party (the “Term”). Obligations with respect to Confidential Information shall apply during the Term and for five (5) years thereafter. Notwithstanding the foregoing, to the extent the Confidential Information constitutes a trade secret(s) under law, Recipient shall protect such information for so long as it qualifies as a trade secret under applicable law.
9. Remedies. Recipient acknowledges and agrees that due to the nature of Discloser’s Confidential Information, there may be no adequate remedy at law for any breach of its obligations under this Agreement, which breach may result in irreparable harm to Discloser, therefore, Discloser may seek equitable relief in addition to any remedies it might have at law.
10. Severability. If any of the provisions of this Agreement are held by a court or other tribunal of competent jurisdiction to be illegal, invalid or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.
11. Governing Law. This Agreement shall be governed by the laws of the State of California without regard to the conflicts of law provisions thereof. Any claim or cause of action arising under or relating to this Agreement will be brought in a court of competent jurisdiction located in the State of Florida and each party irrevocably agrees to submit to such jurisdiction and waives all objections thereto.
12. Entire Agreement. This Agreement supersedes all prior discussions and agreements between the parties and constitutes the entire agreement between the parties with respect to its subject matter. The successful party in any action to enforce this Agreement shall be entitled to be reimbursed for their costs and reasonable attorneys’ fees.
13. Modifications. No modification of this Agreement will be binding unless made in writing and signed by a duly authorized representative of each party.
14. No Waiver. No waiver of this Agreement will be binding upon a party unless made in writing and signed by a duly authorized representative of such party and no failure or delay in enforcing any right will be deemed a waiver. The rights and remedies provided shall be cumulative and not exclusive of any rights or remedies provided by law.
Electronic signatures by duly authorized signatories of the parties are valid.