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MUTUAL NON-DISCLOSURE AGREEMENT
1. Last updated Mar 30, 2017
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Download here: BluBØX MNDA Rev_5.pdf
MUTUAL NON-DISCLOSURE AGREEMENT
Effective Date: ________________ 2017
Made by and between:
BluBØX Security Inc., a Massachusetts corporation, located at 9 Bartlet Street,
Suite 334, Andover, MA 01803.
AND
__________________________________________________________________________
(the “Other Party”)
WHEREAS, the above parties are engaged in discussions concerning a potential
business transaction, strategic relationship, or other mutually beneficial
arrangement (the“Purpose”); and
WHEREAS, in order to facilitate such discussions business transactions and
strategic relationship, certain Confidential Information (as hereinafter
defined) may be disclosed between the parties.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, it is agreed as follows:
1. Obligations. This Agreement confirms the understanding between the parties
concerning their mutual obligations of confidentiality and the restrictions
on use and disclosure of the Confidential Information that is furnished
between the partiespursuant to this Agreement.
2. Definition of “Confidential Information”.
1. “Confidential Information” shall mean all non-public, confidential
information disclosed before, on or after the Effective Date, by either
party (the “Disclosing Mutual Non-Disclosure Agreement to the other
party (the “Receiving Party”), whether in written, oral, printed,
electronic, machine readable, or other form. Confidential Information”
shall include, but not be limited to, product plans, designs, business
plans, financial or economic statements, schedules, records, information
and/or data, market research and analysis, marketing plans, costs,
customer and supplier lists, price schedules, pricing methods, lists or
schedules of sales representatives, strategies, forecasts, computer
programs, technical data, know-how, trade secrets, discoveries,
inventions and any other intellectual property (whether or not
patented),
2. Confidential Information shall also include any and all analyses,
compilations and other materials prepared by the Receiving Party or any
of its officers, directors, partners, members, managers, employees,
representatives, affiliates or agents, as applicable (collectively,
“Representatives”) containing or based in whole or in part on
Confidential Information furnished by the Disclosing Party or its
Representatives or otherwise obtained by the Receiving Party or its
Representatives. For the purposes of this agreement, “affiliate” shall
have the meaning ascribed to such term in Rule 405 under the Securities
Act of 1933, as amended.
3. All Confidential Information must be conspicuously labeled by the
Disclosing Party as “Confidential”, “Proprietary” or with a similar
legend. If Confidential Information is disclosed orally or by
demonstration, it must be specifically designated by the Disclosing
Party as Confidential Information at the time of disclosure and
contained in an itemized written listing to be sent to the Receiving
Party by the Disclosing Party within thirty (30) days following such
initial disclosure.
3. Exceptions. For the purposes of this Agreement, Confidential Information
shall not include information that:
1. At the time of disclosure is, or thereafter becomes, generally available
to the public other than as a result of, directly or indirectly, any
violation of this Agreement by the Receiving Party or any of its
Representatives; or
2. At the time of disclosure is, or thereafter becomes, available to the
Receiving Party on a non-confidential basis from a third-party source,
provided that such third party is not and was not prohibited or
restricted from disclosing such Confidential Information to the
Receiving Party by an agreement with the Disclosing Party; or
3. Was known by or in the possession of the Receiving Party or its
Representatives, as established by documentary evidence, prior to being
disclosed by or on behalf of the Disclosing Party pursuant to this
Agreement; or
4. Was or is independently developed by the Receiving Party, as established
by documentary evidence, without reference to or use of, in whole or in
part, any of the Disclosing Party's Confidential Information.
4. Confidentiality. The parties acknowledge that each party considers the
Confidential Information it discloses to be proprietary and confidential.
The Receiving Party agrees that it shall (a) keep Confidential Information
strictly confidential, (b) use Confidential Information solely in
connection with the Purpose, (c) not use Confidential Information in any
manner to the Disclosing Party’s detriment, including, but not limited
to,reverse engineering, disassembling, decompiling or designing around the
Disclosing Party’s proprietary services, products and/or confidential
intellectual property and (d) not disclose the Confidential Information,
without the prior written consent of the Disclosing Party, directly or
indirectly, in any manner whatsoever, in whole or in part to any person or
entity, except the Receiving Party may disclose Confidential Information to
its Representatives in accordance with Section 5 hereof. In addition,
neither party will disclose to any person or entity any of the terms,
conditions or other facts of the Purpose, including the status thereof,
except either party may disclose such information to its Representatives in
accordance with Section 5 hereof or as may be required by law, rule or
regulation in accordance with Section 6 hereof. The term "person" shall be
broadly interpreted to include, but not be limited to, any corporation,
limited liability company, general or limited partnership, business trust,
unincorporated associated or other entity or individual.
5. Disclosures to Representatives. The Receiving Party may disclose
Confidential Information or portions thereof to those of its
Representatives who need to knowsuch Confidential Information in connection
with the Receiving Party’s evaluation of the Purpose; provided, however,
that the Receiving Party shall have informed such Representative of the
confidential nature of the Confidential Information and such Representative
shall have become subject to the confidentiality duties and obligations of
the Receiving Party under this Agreement. The Receiving Party agrees to
monitor the activities of all such Representatives who receive or otherwise
gain access to the Confidential Information for the purpose of ensuring
compliance with this Agreement. B The Receiving Party agrees to be
responsible for any breach of this Agreement by its Representatives.
6. Disclosures Required by Law. Notwithstanding any provision in this
Agreement to the contrary, the Receiving Party may disclose the
Confidential Information or portions thereof to the extent required to
comply with applicable Federal, state, or local law or regulation, an order
issued by a court or governmental agency of competent jurisdiction;
provided, however, that, prior to disclosing any Confidential Information
pursuant to such law or regulation, or order of such court or governmental
agency, the Receiving Party shall give the Disclosing Party prompt notice
so that the Disclosing Party may seek, in its sole discretion, a protective
order or other appropriate remedy. If, in the absence of a protective order
(or other protective remedy), the ReceivingParty is nonetheless compelled
to disclose Confidential Information, the Receiving Party may disclose such
information without liability hereunder, provided that (i) the Receiving
Party gives written notice to the Disclosing Party of the Confidential
Information to be disclosed as far in advance of its disclosure as is
practicable and, upon the Disclosing Party’s request, the Receiving Party
shall use best efforts to obtain assurances that confidential treatment
will be accorded to such Confidential Information; and (ii) only that
portion of the Confidential Information which the Receiving Party is
advised in writing by its counsel is legally required to be disclosed will
be disclosed.
7. Ownership of Confidential Information. The Disclosing Party hereby retains
its entire right, title and interest, including all intellectual property
rights, in and to all of its Confidential Information. Any disclosure of
such Confidential Information hereunder shall not be construed as an
assignment, grant, option, license or other transfer of any such right,
title or interest whatsoever to the Receiving Party or any of its
Representatives.
8. No Warranties or Representations as to Confidential Information. Neither
the Disclosing Party nor any of its Representatives makes any express or
implied representation or warranty as to the accuracy or completeness of
its Confidential Information, and the Disclosing Party shall not have any
liability to the ReceivingParty or any of its Representatives relating to
or arising from the Receiving Party or its Representatives use of any
Confidential Information or for any errors therein or omissions therefrom.
9. Return of Information. Upon the Disclosing Party’s request, which may be
made at any time, the Receiving Party will either promptly redeliver and
return to the DisclosingParty or destroy (whichever is elected by the
Disclosing Party) all copies of the Confidential Information and any other
written, entered or recorded material, data or information containing or
reflecting any information in the Confidential Information (whether
presented, offered or prepared by the Disclosing Party, its Representatives
or otherwise), and will not retain any copies, extracts, recordings, discs
or other reproductions or recordings in whole or in part of such material
or information. If the Disclosing Party has requested that the Receiving
Party destroy all copies of the Confidential Information pursuant to this
Section 9, such destruction shall be contemporaneously certified in writing
to the Disclosing Party by an authorized officer of the Receiving Party
supervising such destruction.
10. Hiring, Soliciting of Employees - Each party agrees that, for a period of
two (2) years beginning on the date of this Agreement, neither they nor any
of their Representatives, will, without the prior written consent of the
other party, hire, solicit to hire or seek to cause to leave the employ of
the other party any employee of the other party, or any affiliate of it ,
including but not limited to, any executive or manager of the other party.
Notwithstanding the foregoing a party shall not be prohibited from hiring
an employee of the other party resulting solely from; advertising of open
positions, participating in job fairs or the like, or other forms of
soliciting candidates for employment which are general in nature or not
specifically and solely aimed at a given employee of the other party,
unsolicited inquiries about employment opportunities from headhunters or
other agents acting for unidentified principals, unsolicited inquiries
about employment opportunities from any employee, or employees of either
party terminated as a result of general reduction or workforce.
11. Term.
1. This Agreement shall come into effect on the execution date first
written herein, and shall expire after one year.
2. Notwithstanding Section 11 (a) above, Section 4 hereof shall remain in
effect for three (3) years after the termination or expiration of this
Agreement, and Sections 9, 11(b) and Section 14 shall survive in
perpetuity.
12. Need for Definitive Agreement. Each of the parties agrees that, unless and
until a definitive written agreement between the parties with respect to
the Purpose has been executed and delivered, neither party will be under
any obligation of any kind whatsoever with respect thereto by virtue of
this or any written or oral expression Mutual Non-Disclosure Agreement Page
| 6 BluB0X Document Rev 5 -17-03-28 concerning such a transaction, except,
in the case of this Agreement, for thematters specifically agreed to
herein.
13. Equitable Relief. Each party acknowledges and agrees that, in the event of
any breach or threatened breach of any provision of this Agreement by the
Receiving Party, or any of its Representatives, money damages will not
suffice and the Disclosing Party will be without an adequate remedy at law
and, accordingly, shall be entitled to enforce such provisions by seeking
temporary or permanent injunctive or mandatory relief obtained in an action
or proceeding instituted in any court of competent jurisdiction without the
necessity of proving damages or posting any bond or other security and
without prejudice to any other rights or remedies which it may have at law
or in equity.
14. Governing Law; Consent to Arbitration and Jurisdiction.
1. This Agreement shall be construed and interpreted in accordance with,
and governed by, the law of the State of New York without regard for
itsconflict of laws rules.
2. Any and all claims arising out of, relating to, or in connection with
this Agreement, including, without limitation, issues relating to the
arbitrability of any such dispute, shall be submitted to and settled by
expedited binding arbitration in the State of New York pursuant to the
Commercial Arbitration Rules of the American Arbitration Association
(“AAA”) using one arbitrator. Initially the parties shall jointly pay
the AAA costs; provided, however, the non-prevailing party shall pay the
prevailing party all of its costs, expenses and reasonable attorney's
fees incurred therein and such costs shall be included in part of any
judgment entered in any such action. The State of New York shall be the
exclusive venue for such a dispute, including but not limited to, all
pre-trial motions and party depositions. The State and Federal courts
situated in New York shall have exclusive jurisdiction to hear all
post-arbitration issues, including all motions to confirm or reject an
award, with each party hereby irrevocably consenting to the exclusive
jurisdiction thereof. The arbitration award and/or judgment shall be
given full faith and credit in any jurisdiction in the world.
15. Entire Agreement. This Agreement sets forth the entire agreement and
understanding of the parties with respect to the subject matter hereof and
supersedes all prior and contemporaneous agreements, arrangements and
understandings relating thereto.
16. Amendments; Waivers. This Agreement may be amended only by a written
instrument executed by each party or, in the case of a waiver, by the
Disclosing Party. The failure of the Disclosing Party at any time or times
to require performance of any provision hereof shall in no manner affect
its right at a later time to enforce such provision or any other provision.
No waiver by the Disclosing Party of the breach of any term contained
herein, whether by conduct or otherwise, in any one or more instances,
shall be deemed to be or construed as a further or continuing waiver of any
such breach orthe breach of any other term of this Agreement.
17. Notices. Any notice, request, demand, statement, authorization, approval or
consent required or permitted to be made hereunder shall be in writing and
shall be either (a) hand delivered, (b) sent by Federal Express, or other
reputable courier service, or (c) emailed, and shall be deemed given when
received at the following addresses:
1. If to BluBØX Security Inc., at:
1. BluBØX Security Inc.
9 Bartlet Street, Suite 334
Andover, MA 01803
2. With a copy to:
1. Patrick deCavaignac
Email: patdecav@blub0x.com
3. If to the Other Party, at:
1. The address shown on the first page of this Agreement. or at such
other address as any party may specify by notice given to the
other party in accordance with this Section.
18. Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the successors and assigns of the parties hereto.
19. Severability. If any provision, or part thereof, of this Agreement shall be
held to be invalid or unenforceable, such invalidity or unenforceability
shall attach only to such provision and not in any way affect or render
invalid or unenforceable any other provisions of this Agreement, and this
Agreement shall be carried out as if such invalid or unenforceable
provision, or part thereof, had been reformed, and any court of competent
jurisdiction or arbiters, as the case may be, are authorized to so reform
such invalid or unenforceable provision, or part thereof, so that it would
be valid, legal and enforceable to the fullest extent permitted by
applicable law.
20. Counterparts; Facsimile and Email Signatures. This Agreement may be
executed in separate counterparts, each of which counterparts shall be
deemed an original and all of which counterparts shall together constitute
one and the same agreement. Facsimile, PDF and email signatures shall be
deemed to be original signatures.
21. Representation by Counsel; Interpretation. The parties acknowledge that
they have been represented by counsel, or afforded the opportunity to be
represented by counsel, in connection with this Agreement. Accordingly, any
rule or law or any legal decision that would require the interpretation of
any claimed ambiguities in this Agreement against the party that drafted it
has no application and is expressly waived by the parties. The provisions
of this Agreement shall be interpreted in a reasonable manner to give
effect to the intent of the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
BluBØX Security, Inc.
_____________________________________
Patrick de Cavaignac
Sr. Vice president and COO
OTHER PARTY:
_____________________________________
Organization
_____________________________________
Signature
_____________________________________
Name
_____________________________________
Title
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