NON-DISCLOSURE AGREEMENT

This NON-DISCLOSURE AGREEMENT(NDA) is made by and between Xecurify (together with its affiliates) -“Party-A” and “Party-B” identified below to protect Confidential Information (defined in Section 1) that they may disclose to each other concerning an existing or potential business relationship between them ( the “Purpose”). The party disclosing Confidential Information under this Agreement is referred to herein as a “Disclosing Party,” and a party receiving Confidential Information under this Agreement is referred to herein as a “Receiving Party.”

1. Confidential Information

1. 1.1. For purposes of this Agreement, “Confidential Information” means and includes all information or material that has or could have commercial value or other utility in the business in which Parties are engaged and any data or information that is proprietary to the Parties and not generally known to the public, whether in tangible or intangible form, whenever and however disclosed, including, but not limited to:
   1. a. Any trade secrets, proprietary documents, business plans, process, structure or practices;
   2. b. Any marketing strategies, plans, financial information, or projections; operations, sales estimates, business plans and performance results relating to the past, present or future business activities of such party, its affiliates, subsidiaries and affiliated companies;
   3. c. Any information related to the cost of project execution or delivery of service;
   4. d. Plans for products or services, and client or partner lists;
   5. e. Any algorithm, software, design, process, procedure, formula, source code, object code, flow charts, databases, improvement, technology or method;
   6. f. Any concepts, reports, data, know-how, works-in-progress, designs, development tools, specifications;
   7. g. Any invoices, bills, e-mail communications, mobile text communications, and any other communication related to the projects, products or services undertaken by either of the Parties for the other Party or on the behalf of the other Party or its vendors;
   8. h. Any other information that should reasonably be recognized as confidential information of the other Party.


2. 1.2. Confidential Information need not be novel, unique, patentable, copyrightable or constitute a trade secret in order to be designated Confidential Information. The Parties acknowledge that the Confidential Information is proprietary to the other Party, has been developed and obtained through great efforts by the Party and that Parties regard all of their Confidential Information as trade secrets.


3. 1.3. The Parties shall use the Confidential Information solely for and in connection with the Purpose.

2. NON-DISCLOSURE

1. 2.1 The Parties shall use the Confidential Information only for the Purpose and not disclose any or part or summary or extract of the Confidential Information to any third party, including third parties affiliated with the other Party, without that Party’s prior written consent, which prior consent the Party may refuse to give without assigning any reasons.


2. 2.2 The Parties shall hold and keep in strictest confidence any and all Confidential Information and shall treat the Confidential Information with at least the same degree of care and protection as it would treat its own Confidential Information.


3. 2.3 Either Party shall not disclose the sale of materials of the other Party to any individual/person/any client of the other Party.


4. 2.4 Either Party shall not copy or reproduce in any way (including without limitation, store in any computer or electronic system) any Confidential Information or any documents containing Confidential Information without the Party’s prior written consent. The Party shall immediately upon request by the other Party deliver to the Party owning the Confidential Information that has been disclosed to the other Party, including all copies (if any) made in terms of these.


5. 2.5 Either Party shall not commercially/non-commercially use or disclose any Confidential Information or any materials derived therefrom to any other person or entity other than persons in the direct employment of the other Party who have a need to have access to and knowledge of the Confidential Information solely for the Purpose as defined above, and such persons are under similar obligation of confidentiality and non-disclosure as these presents. In the event that any employees, agents or affiliates of either Party disclose or cause to be disclosed the Confidential Information, that Party shall be liable for such disclosure.


6. 2.6 The Parties may not disclose Confidential Information to any third party under any circumstances regardless of whether the third party has executed a Non-Disclosure Agreement with the Party.


7. 2.7 Both Parties agree to notify the other Party immediately if it learns of any use or disclosure of the Party's Confidential Information in violation of the terms of this Agreement.


8. 2.8 The Parties further acknowledge and agree that no representation or warranty, express or implied, is or will be made, and no responsibility or liability is or will be accepted by either Party, or by any of its respective directors, officers, employees, agents or advisers, as to, or in relation to, the accuracy of completeness of any Confidential Information made available to the other Party or its advisers; it is responsible for making its own evaluation of such Confidential Information.


9. 2.9 During the term of this agreement, either Parties may use the association with the other Party only towards the purpose as envisaged under their business association under this Agreement.


10. 2.10 Both the Parties hereby acknowledge, understand and agree that they shall not approach the clients of the other Party in any manner for whom one Party has delivered a product or a service on behalf of the other Party, for an existing project or for any future projects.

3. Exclusions

1. 3.1. Notwithstanding any other provision of this Agreement, the Parties acknowledge that Confidential Information shall not include any information that:
   1. a. was publicly known at the time of the Disclosing Party’s communication thereof;
   2. b. becomes publicly known through no fault of Recipient subsequent to the time of Disclosing Party’s communication thereof to Recipient;
   3. c. was in Recipient’s possession free of any obligation of confidence at the time of Disclosing Party’s communication thereof to Recipient;
   4. d. is developed by Recipient independently of this Agreement without use or reference to the Disclosing Party's Confidential Information; is rightfully obtained by Recipient from a third party, provided the Recipient has no reason to believe that such third party was under an obligation of confidentiality to the Disclosing Party.


2. In the event Confidential Information of the other party is lawfully required to be disclosed by any governmental agency or otherwise required to be disclosed by law, it may be so disclosed without violation of this Agreement, but only to the extent required; provided however that before making such disclosure, Recipient shall give Disclosing Party reasonable prior written notice of such required disclosure so that Disclosing Party has an opportunity to interpose an objection and/or take action to ensure confidential handling of such information.

4. Publications

Neither Party shall make news releases, public announcements, give interviews, issue or publish advertisements or publicize in any other manner whatsoever in connection with this Agreement, the contents/provisions thereof, other information relating to this Agreement, the Purpose, the Confidential Information or other matter of this Agreement, without the prior written approval of the other Party. Further, neither Party shall use any photographs/video/other materials belonging or related to the other Party in promotional content through electronic, print or other mediums.

5. Return of Information

At the request of Disclosing Party, the Receiving Party will promptly cease any using of Disclosing Party’s Confidential Information and return to Disclosing Party or securely destroy all of Disclosing Party's Confidential Information, together with all copies thereof and all notes, drawings, abstracts and other information relating to the Confidential Information prepared by Receiving Party or any of its Representatives, in any form or medium, and whether or not then in the possession of Receiving Party or in the possession of any of its Representatives. Further, upon request of Disclosing Party, Receiving Party will provide Disclosing Party with a statement, signed by a duly authorized representative of the Receiving Party, verifying that Receiving Party has complied with the terms of this Agreement. Notwithstanding the above, neither party shall be required to erase, delete, alter or destroy back-up media made in the ordinary course of business.

6. Term

1. 6.1 This Agreement shall be effective from the date hereof and all non-disclosure provisions shall continue to be in force at all times even after the cessation of the discussions or business relationship between the parties.
2. 6.2 Upon any demand made by either Party, the other Party shall immediately cease any and all disclosures or uses of Confidential Information, and at the request of the Party, shall promptly return or destroy all written, graphic or other tangible forms of the Confidential Information and all copies, abstracts, extracts, samples, notes or modules or like thereof, in accordance with this clause and Section 5 of this Agreement.
3. 6.3 The obligations of the Parties with respect to disclosure and confidentiality shall continue to be binding and applicable without limit in point in time except and until such information enters the public domain.

7. Title and Proprietary rights

Each party retains all right, title and interest in its Confidential Information and neither party acquires any intellectual property rights under the Agreement. Receiving Party shall not remove any intellectual property right notice from Confidential Information and shall include such notice on any copies. Any feedback provided by the Receiving Party to the Disclosing Party related to Disclosing Party’s products or services may be used without restriction in the further development of such products and services. No license under any trademark, patent or copyright, or application for the same, which are now or thereafter may be obtained by the one Party is either granted or implied by the conveying of Confidential Information, to the other Party. Neither Party shall conceal, alter, obliterate, mutilate, deface or otherwise interfere with any trademark, trademark notice, copyright notice, confidentiality notice or any notice of any other proprietary right of the other Party on any copy of the Confidential Information, and shall reproduce any such mark or notice on all copies of such Confidential Information.Likewise, the other Party shall not add or emboss its own or any other any mark, symbol or logo on such Confidential Information.

8. Warranties

All Confidential Information is provided “AS IS” without warranty of any kind; and the Disclosing Party hereby disclaims all warranties, express or implied by law. Receiving Party agrees that Disclosing Party shall not be liable for any damages arising from Receiving Party’s use of Confidential Information.

9. No Relationship

This Agreement is intended to provide only for the handling and protection of Confidential Information. The execution of this Agreement shall not create any agency, partnership, joint venture, association or any other relationship between the parties other than as independent contracting parties.

10. Remedies

The Parties acknowledge that the Confidential Information is a unique and valuable asset of the Disclosing Party, and that disclosure in breach of this Agreement may result in irreparable injury to the Disclosing Party for which monetary damages alone would not be an adequate remedy. Therefore, the Parties agree that in the event of a breach or threatened breach of confidentiality and/or of this agreement, the Disclosing Party shall be entitled to seek an injunction prohibiting any such breach or to specific performance or other equitable relief as a remedy available to the Disclosing Party. Any such relief shall be in addition to and not in lieu of any appropriate relief in the way of monetary damages.

11. No Assignment

Neither Party shall assign any of its rights or obligations hereunder, without the prior written consent of the other Party. Any attempted assignment in violation of this section will be void and of no effect.

12. Entire Agreement and Amendments

This Agreement constitutes the entire agreement between the parties and supersedes all previous agreements, understandings and communications between the parties related to the subject matter, and may be modified only in writing signed by duly authorized representatives of each of the parties. Failure to insist upon strict compliance with any provision of this Agreement shall not be deemed waiver of such provision or any other provision hereof. 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.

13. Dispute Resolution

13.1 Mediation: The Parties agree to first mediate any disputes or claims between them in good faith and resolve the disputes amicably and share the cost of mediation equally.

13.2 Arbitration: In the event that mediation fails, any controversy or claim arising out of or relating to this Agreement or breach of any duties hereunder shall be settled by respective jurisdiction of the courts. The parties shall each appoint an arbitrator who shall then appoint a sole arbitrator to preside over the Arbitration proceedings.

14. Governing Law and Jurisdiction

This Agreement shall be governed by and construed in accordance with the laws of the USA. Each party hereby irrevocably submits to the exclusive jurisdiction of the courts of the USA, for the adjudication of any dispute hereunder or in connection herewith.

15. Miscellaneous

15.1 As part of, business relationship, Xecurify may be instructed to process personal data or potentially personal data that has been entrusted in accordance with the data protection regulations. For Data Processing Addendum please click here. Data, which any of the parties become aware of during the performance of the duties must not be misused for personal or any other purposes.

15.2 No failure or delay by either Party in exercising or enforcing any right, remedy or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise or enforcement of any right, remedy or power preclude any further exercise or enforcement thereof or the exercise or enforcement of any other right, remedy or power.

15.3 The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights.

15.4 In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the remaining portions hereof shall remain in full force and effect.

15.5 All obligations respecting the Confidential Information provided hereunder shall survive any termination of this Agreement.