Confidentiality and Non-Disclosure Agreement
This Confidentiality and Non-Disclosure Agreement (the “Agreement”) is made and entered into as of the later of the two
signature dates below (the “Effective Date”) by and between Cognitive Consortium, with an address of [need address]
(“Cognitive Consortium”) and ___________________________ (“Company”) with an address of
__________________________________. (Cognitive Consortium and/or Company are referred to individually as
“Party” and referred to collectively as the “Parties.”) For purposes of this Agreement, the term “Disclosing Party” shall
mean the Party that furnishes Confidential Information (as that term is defined below), directly or indirectly, to the other
Party and the term “Receiving Party” shall mean the Party which has been given the Confidential Information.
NOW THEREFORE, in consideration of the mutual promises and covenants contained in this Agreement, the Parties,
intending to be legally bound hereto, agrees as follows:
1. Definitions and Exclusions.
(a)
“Confidential Information” means any
non-public information that the Disclosing Party
furnishes, directly or indirectly, to the Receiving Party.
“Confidential Information” includes, without limitation,
information in tangible or intangible form relating to and/
or including any non-public Disclosing Party intellectual
property, trade secrets, know-how, show-how, financial
and marketing information, strategic business plans,
prices, budgets and estimates, product development,
mailing and customer lists, training materials, services
provided to specific customers, network traffic, sales
volume, any customer data (including pricing, locations,
and use), equipment specifications and deployment,
network configurations, current or prospective
relationships with vendors or independent contractors,
implementation and use of technology, the marketing or
promotion of any Disclosing Party product, Disclosing
Party's business policies or practices, forecasting
information, and information received from third parties
that Disclosing Party is obligated to treat as confidential.
The Disclosing Party may indicate, either in writing or
verbally, that such information is confidential.
Notwithstanding any other provision herein, any and all
information related to customer or potential customers of
Cognitive Consortium, the rates, terms and conditions
under which such customers receive service and any and
all customer proprietary network information, including
without limitation information pertaining to the nature,
type, location and quantity of services purchased by such
customer shall be deemed Confidential Information of
Cognitive Consortium.
(b)
The Receiving Party hereby agrees that
Confidential Information will also include information
that is not specifically encompassed in the definition
contained in Section 1(a) above, but that should
reasonably be expected to be considered confidential by
the Disclosing Party.
(c)
Confidential Information shall not
include any information that the Receiving Party can
reasonably demonstrate: (i) is or subsequently becomes
publicly available without Receiving Party's breach of
any obligation owed Disclosing Party; (ii) was known by
Receiving Party prior to the disclosure thereof under this
Agreement through no breach of any third party
obligation of confidentiality to Disclosing Party; (iii)
became known to Receiving Party from a third party
other than Disclosing Party through no breach of an
obligation of confidentiality owed to Disclosing Party;
(iv) was independently developed by Receiving Party
without Receiving Party’s breach of any obligation owed
Disclosing Party and without incorporating nor
referencing nor based upon any of the Confidential
Information; or (v) is disclosed by Receiving Party with
Disclosing Party’s prior written consent.
2. Obligations Regarding Confidential Information.
(a)
Receiving Party shall make use of the
Confidential Information only for the furtherance of the
business relationship between the Parties. Confidential
Information shall not be used for any purpose or benefit
other than strictly in accordance with this Agreement;
(b)
Receiving Party agrees to hold the
Confidential Information in confidence and shall not
disclose to any third party the fact that any of the
Disclosing Party’s Confidential Information has been
made available to it;
(c)
Receiving Party shall: (i) refrain from
disclosing, reproducing, summarizing, disseminating, or
otherwise publishing, distributing, and/or communicating
any Confidential Information of Disclosing Party to any
third party; and (ii) use the same means it uses to protect
its own confidential and proprietary information but, in
no event, shall it use less than reasonable care to prevent
the disclosure and protect the confidentiality of
Confidential Information;
(d)
Receiving Party may disclose
Confidential Information of Disclosing Party in
accordance with a judicial or other governmental order, or
as otherwise required by law, provided that Receiving
Party gives the Disclosing Party immediate notice prior to
such disclosure (to the extent reasonably possible) so that
Disclosing Party may seek a protective order or other
appropriate remedy from the proper authority. The
Receiving Party agrees to provide reasonable nonfinancial cooperation to the Disclosing Party in seeking
such order or remedy and to release only such
information as is required to satisfy the order or other
legal requirement;
(e)
Receiving Party may disclose
Confidential Information only to Receiving Party's
employees, contractors, advisors, and consultants on a
“need-to-know” basis and who are subject to obligations
of confidentiality imposing restrictions substantially
similar to the terms contained in this Agreement;
(f)
Receiving Party shall notify the
undersigned Disclosing Party immediately upon
knowledge of any unauthorized use or disclosure of
Confidential Information or any other breach of this
Agreement by Receiving Party and/or its employees and
consultants, and will cooperate with Disclosing Party in
every reasonable way to help Disclosing Party regain
possession of the Confidential Information and prevent its
further unauthorized use or disclosure;
(g)
within ten (10) business days of
Disclosing Party’s written request, Receiving Party shall
return all originals, copies, reproductions and summaries
of Confidential Information, whether in hard copy or in
electronic form, and all other tangible materials and
devices provided to the Receiving Party as Confidential
Information, or, at Disclosing Party's option and request,
Receiving Party shall certify in writing as to the prompt
destruction of the Disclosing Party’s Confidential
Information.
3.
Representations and Warranties. Neither Party
makes any representations or warranties, nor shall either
Party have any responsibility or incur any liability, in
respect to any information (including Confidential
Information) provided by or on behalf of it to the other
Party, including without limitation with respect to the
accuracy or completeness of such information. Any
Confidential Information obtained under this Agreement
is provided “as is” and without any warranty, whether
express or implied, regarding its accuracy, completeness,
or performance.
The Disclosing Party is under no
obligation to disclose any particular kind or quantity of
information to the Receiving Party and shall not have any
liability or responsibility whatsoever for any errors or
omissions in, or any decision made by the Receiving
Party in reliance on, any Confidential Information.
4.
Business Relationship.
Each Party
acknowledges that this Agreement is not intended to and
does not obligate any Party to enter into any further
discussions, negotiations, or agreements, or to otherwise
proceed with any potential business undertaking,
relationship, or transaction with the other Party. Each
Party shall act as an independent contractor and not as an
agent of the other Party for any purpose whatsoever and
neither Party shall have any authority to bind the other
Party.
5.
Remedies. The Parties acknowledge that the
unauthorized disclosure or use of any Confidential
Information could cause irreparable harm and significant
injury to the Disclosing Party, the extent and
consequences of which may be difficult to assess.
Therefore, the Parties agree that, if a Party believes its
Confidential Information may be, or has been, disclosed
contrary to the terms of this Agreement, that Party shall
be entitled to seek specific performance, injunctive and/or
other equitable relief by a court of competent jurisdiction
under the terms of this Agreement as a remedy against the
breaching Party for any such breach or anticipated breach
without the necessity of posting a bond. Any exercise by
the non-breaching Party of its right to equitable relief or
specific performance under this Agreement shall not
constitute a waiver by the non-breaching Party of any
other rights which it may have to monetary damages or
other relief.
6.
Survival of Rights and Obligations. The Parties
agree that their rights and obligations under this
Agreement shall continue for each item of Confidential
Information for a period of two (2) years from the date of
disclosure of each item of disclosed Confidential
Information. This Agreement shall continue in force in
perpetuity and shall not be impacted by termination of
discussions between the Parties or by the failure of the
Parties to agree to an ongoing business arrangement;
provided, however, that either Party may terminate this
Agreement on thirty (30) days prior written notice
without the consent of the other Party. Notwithstanding
the foregoing or any other terms of this Agreement, or the
return of any Confidential Information to the Disclosing
Party, all rights, remedies and obligations under this
Agreement shall survive with respect to Confidential
Information disclosed hereunder.
7. Miscellaneous.
(a)
All Confidential Information is and shall
remain the sole and exclusive property (or, where
applicable, valid license) of Disclosing Party. Receiving
Party shall not have any right, title, or interest in
Disclosing Party’s Confidential Information. By
disclosing Confidential Information to Receiving Party,
Disclosing Party does not grant any express or implied
right to Receiving Party to or under any patents,
copyrights, trademarks, or trade secret information except
as otherwise provided herein. Disclosing Party reserves,
without prejudice, the ability to protect its rights under
any such patents, copyrights, trademarks, or trade secrets.
(b)
This Agreement constitutes the entire
agreement between the Parties with respect to the subject
matter hereof. It shall not be modified except by a
written agreement dated subsequent to the Effective Date
of this Agreement and signed by 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
Disclosing Party, the Receiving Party, their agents, or
employees, but only by an instrument in writing signed
by an authorized employee of Disclosing Party and the
Receiving Party. No waiver of any provision of this
Agreement shall constitute a waiver of any other
provision(s) or a continuing waiver of the same provision
on another occasion.
(c)
If either Disclosing Party or Receiving
Party employs legal counsel to enforce any rights arising
out of or relating to this Agreement, the prevailing party
shall be entitled to recover reasonable attorney’s fees and
costs. This Agreement shall be construed and controlled
by the laws of the State of New Jersey and the Parties
further consent to exclusive jurisdiction and venue in the
state and federal courts located in the State of New Jersey.
Each Party waives all defenses of lack of personal
jurisdiction and forum non-convenience. Process may be
served on either party in the manner authorized by
applicable law or court rule.
(d)
This Agreement shall be binding upon
and inure to the benefit of each Party’s respective
successors and lawful assigns. Neither Party may assign
this Agreement, in whole or in part, without the prior
written approval of the other Party; provided, however,
that either Party may upon written notice assign this
Agreement to another successor company pursuant to a
corporate merger or reorganization or the sale or transfer
of all or substantially all of its assets. Any attempted
assignment in violation of this Section shall be void.
(e)
If any provision of this Agreement shall
be held by a court of competent jurisdiction to be illegal,
invalid or unenforceable, the remaining provisions shall
remain in full force and effect.
(f)
Any notice, approval, request,
authorization, direction or other communication under
this Agreement shall be given in writing and shall be
deemed to have been delivered and given for all purposes
(i) on the delivery date if delivered personally to the Party
to whom the same is directed; (ii) one (1) business day
after deposit with a commercial overnight carrier, with
written verification of receipt; or (iii) five (5) business
days after the mailing date, if sent by U.S. mail, return
receipt requested, postage and charges prepaid, or any
other means of rapid mail delivery for which a receipt is
available. Notice shall be provided to the person and at
the address specified herein for each Party.
(g)
Either the original or copies, including
facsimile transmissions, of this Agreement, may be
executed in counterparts, whether by original, photocopy
or facsimile, each of which shall be an original as against
any party whose signature appears on such counterpart
and all of which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement.
Agreed To and Accepted:
Agreed To and Accepted:
Cognitive Consortium
_______________________________________
Signature:
Signature:
Name:
Name:
Title:
Title:
Date:
Date: