CYB3R-X
MSSP AGREEMENT
Managed Security Services Provider Agreement
This Managed Security Service Provider Agreement (this “Agreement”) is made and entered into as of the date that Service Provider checks and agrees with the Terms and Conditions on the sign up page (the “Effective Date“), by and between CYB3R-X, a Wyoming Corporation, (“CYB3R-X”), and SERVICE PROVIDER (the “Service Provider”). CYB3R-X and SERVICE PROVIDER shall be referred to, collectively, as the “Parties” and each, a “Party“.
WHEREAS, CYB3R-X IS MANAGING A THREAT DETECTION, PREVENTION AND RESPONSE PLATFORM (THE “SERVICES”); AND
WHEREAS, CYB3R-X and Service Provider wish to enter into this Agreement whereby CYB3R-X will grant SERVICE PROVIDER a non-exclusive license to use CYB3R-X’s Services in SERVICE PROVIDER’s internal business purposes and outsourced Managed IT Services (the “Managed Security Services”), subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the terms, conditions and covenants herein contained, the parties hereto agree as follows:
1. Preamble and Annexes
1.1 The preamble to this Agreement and the exhibits attached hereto constitute integral parts hereof. In the event of any inconsistency or discrepancy between the provisions of this Agreement and the provisions of the exhibits, the provisions of this Agreement shall prevail.
1.2 The headings of this Agreement have been inserted for convenience only and are to be ignored in any interpretation of the provisions hereof.
2. Appointment
2.1 Subject to the terms and conditions of this Agreement, CYB3R-X hereby grants SERVICE PROVIDER, during the term of this Agreement, a non-exclusive, non-transferable, limited license to use the Services for internal business purposes and also to deliver Managed Security Services and/or allow End Users to access and use the Services as part of a Managed Security Services, from SERVICE PROVIDER, in accordance with the terms and conditions of this Agreement. SERVICE PROVIDER’s appointment under this Section 2.1 only grants SERVICE PROVIDER the right to use the Services, and does not transfer any right, title or interest to any of the Services to SERVICE PROVIDER or its End Users.
For purposes hereof, the term “End User” shall mean a third-party entity which has purchased Managed Security Services from the SERVICE PROVIDER for the End User’s personal or internal business purposes only and not for further distribution or resale.
2.2 The Services shall be provided as part of the Managed Security Services pursuant to a written Software- as-a-Service subscription agreement (the “SaaS Agreement”) to be entered into solely between SERVICE PROVIDER and End User CYB3R-X shall not be a party to the SaaS Agreement, nor bound by its terms. SERVICE PROVIDER shall ensure that no SaaS Agreement will be inconsistent with any of the terms and conditions of this Agreement (such as, but not limited to, those provisions herein governing license rights, ownership rights, confidentiality, warranties, and liability). Without derogating from the generality of the foregoing, each SaaS Agreement must: (a) expressly state that the CYB3R-X licensing terms (or any other licensing terms purporting to be between CYB3R-X and the End User) are inapplicable and shall not bind or benefit CYB3R-X or End User; (b) include any license restrictions herein (or the substantive equivalent thereof) and state that CYB3R-X is an intended third-party beneficiary thereunder with the right to enforce such license restrictions against End User.
2.3 Subject to and in accordance with the provisions contained herein, SERVICE PROVIDER shall assume full responsibility for the execution of all terms of any agreement executed between SERVICE PROVIDER and any End User, including all installation, warranty and support obligations with respect to the Services.
2.4 CYB3R-X’s responsibility shall apply only to SERVICE PROVIDER and shall not be extended, expressly or by implication, to any other person or entity, including the End Users. SERVICE PROVIDER shall ensure in contracting with the End Users the effectiveness of this Section 2.4, disclaiming the liability and responsibility of CYB3R-X other than towards SERVICE PROVIDER.
3. SERVICE PROVIDER’s Responsibilities
3.1 During the term of this Agreement, SERVICE PROVIDER will, at SERVICE PROVIDER’s own cost and expense keep accurate records of all matters related to its performance of this Agreement; and, upon CYB3R-X’s request, provide CYB3R-X any information as CYB3R-X may reasonably require for supervisory and/or informational purposes.
3.2 SERVICE PROVIDER will hold itself out as an independent SERVICE PROVIDER of CYB3R-X that has no power to legally bind CYB3R-X.
3.3 SERVICE PROVIDER shall be fully responsible to obtain and provide for itself, at its cost, with any and all licenses, permits, certificates and all other documentation and information required for the promotion and sale of Services.
4. Enhancements
4.1 During the term of this Agreement, CYB3R-X may, in its sole discretion, develop new enhancements, modifications and versions of the Services, including new functions and bug fixes, as CYB3R-X may deem necessary. All such enhancements, modifications and versions shall be included within the definition of “Services” for purposes of this Agreement and therefore within the scope of this Agreement.
4.2 Subject to the terms hereof (including payment of all applicable fees), CYB3R-X agrees to provide SERVICE PROVIDER with any updates, new releases or new versions of the Services as such updates, new releases or new versions become available.
5. Term and Termination
5.1 The term of this Agreement shall commence on the Effective Date and shall continue for a period of 1 (one) year thereafter (the “Initial Term”), unless previously terminated pursuant to this After the Initial Term, this Agreement shall be automatically renewed for successive extension terms of 1 (one) year each (the “Extension Term(s)”, and together with the Initial Term, the “Term”), unless either Party notifies the other in writing, at least 30 (thirty) days prior to the end of the Initial Term or any Extension Term, of its decision not to renew this Agreement as aforesaid.
5.2 Notwithstanding anything to the contrary herein, and without derogating from any other right or remedy available to the Parties hereunder or at law, either Party shall be entitled to terminate this Agreement immediately upon written notice to the other Party, in the event that the other Party: (i) enters into liquidation or bankruptcy proceedings, whether voluntary or compulsory, makes a general arrangement with its creditors, or ceases to conduct its business in the ordinary course; or (ii) fails to fulfill any of its obligations or undertakings herein and does not rectify such failure within 14 (fourteen) days after receiving a written demand to do so.
5.3 Additionally, and without derogating from any other right or remedy available to CYB3R-X hereunder or at law, CYB3R-X shall be entitled to terminate this Agreement immediately, upon providing the SERVICE PROVIDER with a written notice to that effect, for any reason.
5.4 The following shall apply with respect to the expiration or termination of this Agreement, howsoever arising:
5.4.1 In no event shall any termination of this Agreement, in itself, affect any rights or obligations accrued or existing at the time of such termination or arising out of such termination, nor shall SERVICE PROVIDER be entitled to any compensation for loss of goodwill, customers, profits, expenses or for any other loss or damage arising as a result of the expiration or termination of this Agreement howsoever arising.
5.4.2 SERVICE PROVIDER shall immediately cease all use of the Services and all rights afforded hereunder to the SERVICE PROVIDER shall expire, ipso facto, upon such termination or expiration.
6. Prices and Terms of Payment
6.1 For the Services purchased hereunder by SERVICE PROVIDER from CYB3R-X, SERVICE PROVIDER shall pay to CYB3R-X such prices under such payments terms as shall be agreed by SERVICE PROVIDER and CYB3R-X on a case-by-case basis (which in certain cases, may include per-payment or advances), and agreed upon and set forth in a separate purchase order. Unless agreed otherwise in writing, on a case-by-case basis, all payments by SERVICE PROVIDER shall be made to CYB3R-X within 10 days from the date of the invoice issued by CYB3R-X.
6.2 SERVICE PROVIDER shall have the discretion to determine the final sale price of the Managed Security Services to the End Users.
6.3 Any amounts due to CYB3R-X which are not paid on their due date shall bear interest from said due date until the date of actual payment, at the monthly rate of 1.5% (one and a half percent).
6.4 SERVICE PROVIDER shall have sole responsibility for establishing and collecting all fees and charges to End Users for the sale of the Services.
6.5 Unless otherwise stated, CYB3R-X’s fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added tax. SERVICE PROVIDER is responsible for paying all taxes associated with its purchases hereunder, excluding taxes based on CYB3R-X’s net SERVICE PROVIDER may withhold from payment under this Agreement any income or taxes or other governmental charges that are required to be withheld under applicable laws provided that SERVICE PROVIDER shall reasonably assist CYB3R-X in obtaining any relevant exemptions from such deductions.
7. Support and Maintenance
SERVICE PROVIDER shall provide the End Users with support and maintenance services. It is hereby clarified that under no circumstances shall CYB3R-X be obligated to directly support any End User.
8. Reporting Obligations of SERVICE PROVIDER
SERVICE PROVIDER shall promptly bring to CYB3R-X’s attention any information received by it or that otherwise comes to its knowledge which is likely to be of interest to CYB3R-X in connection with the Services or their use, including improper use of the Services, competition, infringements of CYB3R-X’s intellectual property rights, complaints with respect to the Services, etc.
9. Limitation of Liability and Indemnification
9.1 The Parties hereby acknowledge that each party shall bear their own risk of profit or loss and that neither party assumes such, in part or in whole, for the other. Neither party shall guarantee the revenues of the other, nor will any party be protected from loss. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED ON AN “AS IS” BASES, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR CYB3R-X DOES NOT WARRANT THAT THE SERVICE WILL MEET SERVICE PROVIDER’S REQUIREMENTS OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CYB3R-X HAS NOT MADE AND HEREBY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SERVICES, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES AS TO NONINFRINGEMENT, QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, SATISFACTORY QUALITY, THAT ANY DATA STORED AS PART OF THE SERVICES WILL BE SECURE OR OTHERWISE NOT LOST OR DAMAGED, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.
SERVICE PROVIDER UNDERSTANDS THAT USE OF THE SERVICES DOES NOT CONSTITUTE ANY GUARANTEE OR ASSURANCE THAT SECURITY OF END USERS SYSTEMS, NETWORKS AND ASSETS CANNOT BE BREACHED OR ARE NOT AT RISK.
9.2 IN NO EVENT SHALL CYB3R-X OR ANYONE ON ITS BEHALF BE LIABLE TO SERVICE PROVIDER OR ANY THIRD PARTY FOR ANY OF THE FOLLOWING :
A. INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND;
B. LOSS OF BUSINESS OR PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION;
C. THE COST OF PROCURING SUBSTITUTE GOODS OR SERVICES; AND/OR
D. LOSS OR DAMAGES TO DATA, REPUTATION OR GOODWILL
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE SERVICES REGARDLESS OF THE CAUSE AND WHETHER ARISING IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF CYB3R-X HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, UNDER NO CIRCUMSTANCES WILL CYB3R-X’S TOTAL AND AGGREGATE LIABILITY FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING WITHOUT LIMITATION CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, BREACH OF WARRANTY, OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT, EXCEED THE FEES ACTUALLY PAID BY SERVICE PROVIDER TO CYB3R-X HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING SUCH CLAIM.
9.3 Without derogating from the above, SERVICE PROVIDER will defend and indemnify CYB3R-X against and hold CYB3R-X harmless from, any and all claims, damages, and expenses (including reasonable attorneys’ fees and costs of litigation) pursuant to a third party claim arising from any improper acts, or omissions by SERVICE PROVIDER and/or any breach relating to its activities in connection with this Agreement; arising from the infringement of intellectual property rights while Service Provider provides the Managed Security Services; and/or arising from SERVICE PROVIDER’s misrepresentations relating to CYB3R-X and/or the Services. SERVICE PROVIDER shall be solely responsible for any claims, warranties, or representations made by SERVICE PROVIDER or SERVICE PROVIDER’s employees or agents including without limitations, any that differ from the warranty provided by CYB3R-X in this Agreement and/or in the documentation provided as part of the Services.
10. Confidentiality
10.1 SERVICE PROVIDER recognizes and agrees that any and all information with respect to CYB3R-X, its business, activities, operations, products and technology, revealed or exposed to it by CYB3R-X, or which comes to SERVICE PROVIDER’s knowledge over the course of its activities hereunder, including without limitation any know–how, technical data, engineering and technical information, financial and commercial information, customer lists, etc. (“Confidential Information”) is of a confidential and proprietary nature and shall remain at all times the property of CYB3R-X. SERVICE PROVIDER agrees and undertakes, during the Term of this Agreement and at all times hereafter, to keep in strict confidence and not disclose, reproduce, distribute, or transmit any Confidential Information or allow same to be disclosed to any third party, or to make any use of Confidential Information other than for the purposes of this Agreement. Service Provider will take all reasonable precautions necessary to safeguard the confidentiality of such Confidential Information. Service Provider will implement reasonable security measures to protect such Confidential Information at a level no less restrictive than used to protect its own confidential information.
10.2 Upon the first to occur of CYB3R-X’s request, or the termination or expiration of this Agreement, SERVICE PROVIDER shall return to CYB3R-X any and all documents and other tangible materials containing Confidential Information, and shall erase or destroy any computer or data files containing such Confidential Information, such that no copies or samples of Confidential Information shall remain with SERVICE PROVIDER.
10.3 The provisions of this Section 10 shall continue in full force and effect notwithstanding the termination or expiration of this Agreement howsoever arising.
11. Proprietary Rights
11.1 SERVICE PROVIDER acknowledges and agrees that CYB3R-X owns all rights, title and interest in or to: (i) the Services and in the underlying software including but not limited to all updates, enhancements, modifications, new releases and new versions; and (iii) any intellectual property rights, patents, know- how, trade secrets, copyright and other proprietary rights, whether registered or not, owned and/or otherwise used by CYB3R-X and all goodwill related thereto with respect to the Services (the “IP Rights”). SERVICE PROVIDER acknowledges and agrees that: (i) the IP Rights may not be exploited, reproduced or used by the SERVICE PROVIDER except as expressly permitted in this Agreement; and (ii) the SERVICE PROVIDER shall not have or acquire any right, title or interest in, or otherwise become entitled to, any IP Rights, including without limitation by taking delivery of, making payment for, distributing or selling or otherwise using the Services or performing its obligations under this Agreement.
11.2 SERVICE PROVIDER undertakes not to, and to not permit any third party to, copy, duplicate, produce, manufacture, improve, modify, or alter the Services or any part thereof in any manner whatsoever, or to assist, directly or indirectly, any other entity in such In addition, SERVICE PROVIDER shall not, and shall not permit any third party to reverse engineer the Services, or otherwise attempt to reconstruct or discover any underlying ideas or any portion thereof by any means whatsoever. In the event SERVICE PROVIDER obtains knowledge that a third party is attempting or may attempt to take any of the foregoing actions prohibited by this Section 11.2, SERVICE PROVIDER shall so notify CYB3R-X in writing immediately.
11.3 The provisions of this Section 11 shall continue in full force and effect notwithstanding the termination or expiration of this Agreement howsoever arising.
12. The Parties’ Relationship – Independent Contractors
CYB3R-X and SERVICE PROVIDER are independent contractors, and nothing in this agreement shall be construed to create a partnership, joint venture, agency, or employment relationship between the parties hereto. Neither party shall have the power or authority to enter into agreements or obligations of any kind on behalf of the other and shall have no power or authority to bind or obligate the other in any manner. In addition, neither party shall, at any time, represent or lead any third party to believe that it has the power or authority to bind the other.
13. Assignment & Sub-Contractors
13.1 SERVICE PROVIDER shall not transfer, assign or pledge in any manner whatsoever any of its rights or obligations under this Agreement, without CYB3R-X’s prior written consent, which consent shall not be unreasonably withheld.
13.2 Without derogating from the aforesaid, SERVICE PROVIDER may not appoint any sub-distributors, SERVICE PROVIDERs or agents for the distribution, marketing and selling of the Services without the prior written consent of CYB3R-X. Such consent, to the extent given, shall not relieve SERVICE PROVIDER from any of its undertakings herein and SERVICE PROVIDER shall remain liable for any breach of the provisions hereof by any person or entity acting on its behalf.
13.3 CYB3R-X may assign this Agreement or any of its rights hereunder in its own discretion without SERVICE PROVIDER consent or permission.
14. Miscellaneous
14.1 Entire Agreement. This Agreement together with the exhibits hereto contains the entire agreement between the Parties hereto with respect to the subject matter hereof, and supersedes all prior agreements, arrangements and understandings, written or oral, relating to the subject matter hereof, if any.
14.2 Severability. In the event that any condition, stipulation or provision hereunder is held, by a court of competent jurisdiction or other authority, to be invalid, illegal or unenforceable, for any reason whatsoever, all the remaining conditions, stipulations and provisions contained herein shall remain in full force and effect and shall be binding on the Parties without any change except where such result would be unjustified under the Upon such determination that any term or other provision is invalid, illegal or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
14.3 Publicity. It is agreed that CYB3R-X may identify SERVICE PROVIDER as a user or distributor of CYB3R-X’s services in advertisements and promotional literature.
14.4 Non-Disparagement. SERVICE PROVIDER will not disparage CYB3R-X or CYB3R-X’s performance or otherwise take any action which could reasonably be expected to adversely affect CYB3R-X’s personal or professional reputation. Similarly, CYB3R-X will not disparage SERVICE PROVIDER or any of its directors, partners, officers, agents or Executives or otherwise take any action which could reasonably be expected to adversely affect the personal or professional reputation of SERVICE PROVIDER or any of its directors, officers, agents or employees.
14.5 Notices. All written notices to be given by one Party to the other hereunder shall be in writing and shall be sent to the Parties’ respective addresses indicated in the preamble, or to such other e-mail address, post address or facsimile number as a Party may thereafter notify the other Party in Notices addressed as aforesaid will be deemed delivered to the addressee upon the earlier of their actual receipt or: (i) on the next business day following the day of delivery or transmission, if delivered by hand or transmitted by e-mail or facsimile, and confirmed by return e-mail receipt confirmation or written facsimile transmission report if transmitted by e-mail or facsimile; or (ii) within five (5) business days after being posted, if sent by registered mail, postage prepaid.
14.6 Amendments. This Agreement may be amended, modified, superseded, renewed or extended, only by a written instrument executed by both Parties hereto.
14.7 Interpretation. The captions and titles in this Agreement are intended solely for convenience and will have no significance in the construction or interpretation of this Agreement. All references to a “Section” of this Agreement shall be deemed to include all sub–Sections which form a part of such Section.
14.8 Waiver. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. No waiver by any Party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
14.9 Governing Law and Forum. The validity, performance and construction of this Agreement shall be governed by and interpreted in accordance with the internal laws of the State of California. The parties hereby irrevocably consent to the exclusive jurisdiction of the competent courts in the County of Orange, California, USA, England to adjudicate all disputes arising from or in connection with this Agreement, to the exclusion of any other court; however, CYB3R-X shall retain the right to institute proceedings, including interlocutory and/or injunctive relief, in any other territory.
14.10 United Nations Convention on Sale of Goods. The Parties agree that the 1980 – United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
14.11 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
NDA
MUTUAL NON-DISCLOSURE AGREEMENT
Whereas the Parties wish to investigate each other’s business and/or products and/or technology solely for the purpose of evaluating potential cooperation (the “Purpose”); and
Whereas each of the Parties will need to be exposed to Confidential Information of the other Party, as defined below;
Now therefore, each of the Parties hereby declares, represents, warrants and undertakes towards the other Party as follows:
As used herein the term “Disclosing Party” shall refer to each of the Parties respectively, and any parent or subsidiaries thereof, with respect to any Confidential Information, as defined below, which such party has disclosed, and the term “Receiving Party”, shall refer to each of the Parties respectively, with respect to any Confidential Information, as defined below, which has been disclosed thereto.
- The term “Confidential Information” shall mean any and all information, whether or not marked ‘Confidential’, that the Receiving Party be presented with and/or exposed to concerning the Disclosing Party, its business, operations, technology and products, which may include, without limitation, any commercial, financial or technical information, information regarding technologies, know-how, inventions, developments, processes, methods, specifications, trade secrets, marketing, business plans, activities, business opportunities, names of suppliers, customers, strategic partners, sources, costs and/or any other private, confidential and/or proprietary information with regard to the Disclosing
- The Receiving Party shall maintain the Confidential Information in strict and absolute confidence at all times, and shall not, directly or indirectly, disclose, expose or make available the Confidential Information, in whole or in part, to any person or entity, except: (i) as may be expressly authorized in writing by the Disclosing Party; or
(ii) to a minimum required number of the Receiving Party’s employees, officers, directors, subcontractors and advisors, on a “need to know” basis as necessary solely for the Purpose, provided however that:(x) any such party to whom the Confidential Information is intended to be disclosed are bound by a confidentiality undertaking that requires the preservation of the confidentiality of the Confidential Information on terms no less stringent than the terms contained herein; and (y) the Receiving Party has advised each such employee or anyone acting on its behalf, before s/he/it receives access to Confidential Information, of his/her/its obligations under this Agreement. The Receiving Party shall take all necessary measures to safeguard the Confidential Information including at a minimum, those steps that it takes to protect its own information of a proprietary and confidential nature.
- The Receiving Party shall not use the Confidential Information other than solely for the Purpose, nor derive any other benefit therefrom. Any benefit derived from or relating to the Confidential Information shall belong solely to the Disclosing
- The Receiving Party shall not, nor suffer or permit any third party to, analyze, decompile, disassemble, reverse engineer (or the like), any tangible product or media which constitutes, contains, records or in any way documents or embodies Confidential Information, and shall not remove, overprint or deface any notice of confidentiality, copyright, trademark, logo, legend or other notices of ownership or confidentiality from any originals or copies of Confidential Information it obtains from the Disclosing
- The Receiving Party shall be responsible to the Disclosing Party for any disclosure or misuse of Confidential Information which results from a failure of any of its employees or any other persons acting on its behalf to comply with this
- The obligations of confidentiality and non-use set forth herein shall not extend to any portion of such information, which the Receiving Party can demonstrate through tangible evidence:
- was lawfully and rightfully known to the Receiving Party without restrictions as to use or disclosure, prior to the disclosure by the Disclosing Party; or
- was at the time of disclosure to the Receiving Party, or subsequently became through no fault of the Receiving Party, generally available to the public; or
- was rightfully received by the Receiving Party from a third party having the right to make such disclosure and provided that such information is so provided to the Receiving Party without restrictions as to use or disclosure; or
- was independently developed by the Receiving Party without reference to or use of the Confidential Information; or
- is required to be disclosed pursuant to an order of a court of competent jurisdiction or by applicable law or regulation, provided however, that (a) such disclosure is made only to the extent and solely to the recipient legally required; and (b) the Receiving Party provides the Disclosing Party with adequate prior written notice of such legal requirement and, to the extent possible, with the opportunity to oppose the disclosure or obtain a protective
- The Receiving Party acknowledges and recognizes that all Confidential Information made available to or received by, the Receiving Party, and all right, title and interest therein, is and shall remain, at all times, the exclusive property of the Disclosing Party, and the furnishing of any Confidential Information pursuant to this Agreement shall not constitute the granting to the Receiving Party of any right or license to copy or use such information, nor derive any benefit therefrom, in any
- The Receiving Party shall, immediately upon written demand by the Disclosing Party, (i) return any and all documents and other tangible materials containing Confidential Information, and destroy any internal documents or computer files that contain Confidential Information, such that no Confidential Information shall remain with the Receiving Party and (ii) upon request of the Disclosing Party, certify in writing, that it has complied with the obligations set forth in this Section
- ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. EACH PARTY MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR
- This Agreement imposes no obligation on either Party to proceed with any transaction between the parties hereto or to enter any business relationship whatsoever with each other nor does it create any obligation of the Disclosing Party to disclose any Confidential
- The undertakings contained herein shall survive the termination of any discussions and/or cooperation between the Parties. Notwithstanding, the undertakings to maintain the confidentiality of the Confidential Information shall remain in full force and effect as long as the Confidential Information has not clearly become generally available to the public through no fault, directly or indirectly, of the Receiving Party or of any third party owing an obligation of confidence to the Disclosing Party, or until the lapse of seven (7) years from the date of execution hereof, the earlier to occur, except said obligation with respect to the confidentiality of trade secrets which shall not
- The Receiving Party acknowledges that the Confidential Information is of a highly secret and confidential nature and that any unauthorized disclosure or use thereof may cause serious harm or damage to the Disclosing Party, and its shareholders and officers and diminish the value of their proprietary interests. Therefore, if the Receiving Party breaches any of its obligations hereunder, the Disclosing Party may be entitled to equitable relief to protect its interest therein, including but not limited to injunctive relief, as well as monetary
- In the event a provision of this Agreement shall be determined to be unenforceable, because it is invalid or in conflict with any law of any relevant jurisdiction, the validity of the remaining provisions shall not be affected, and the rights and obligations of the Parties shall be construed and enforced, as if the Agreement did not contain the particular provision(s) held to be unenforceable. In the event the extent and/or duration of one or more of the obligations hereunder exceeds and/or extends the duration allowed by law, such obligation shall be deemed to be the maximum extent or duration allowed by law.
- The failure by the Disclosing Party to require performance or to enforce any right shall in no manner affect the Disclosing Party’s right at a later time to enforce the same and in no way be construed to be a waiver of such right by the Disclosing
- This Agreement constitutes the entire agreement between the Parties with respect to the disclosure of Confidential Information and may not be amended or modified except in writing and duly executed by both Parties.
- Neither party may assign or otherwise transfer this Agreement without the prior written consent of the other party; however, either party may assign or transfer this Agreement in connection with a merger, acquisition, sale of substantially all its assets or other such corporate reorganization. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties hereto and their successors and
- This Agreement, its validity, performance and breach, shall be governed and construed in accordance with the laws of the State of California (excluding its body of law controlling conflicts of law). This Agreement, and any dispute or claim with respect hereto, shall be subject to the sole and exclusive jurisdiction and venue in the County of Orange, California, United States, to the absolute exclusion of any other courts and any other jurisdictions. Notwithstanding, the Disclosing Party shall retain the right to institute proceedings including interlocutory and/or injunctive relief in any relevant
- Each Party acknowledges that the other Party’s agreement to furnish it with its Confidential Information is based on and is a result of its execution