MUTUAL NON DISCLOSURE AGREEMENT
This Mutual Non Disclosure Agreement (the "Agreement") made and entered into as of the later of the two signature dates below by and between ____________________________, and Ziyak Corp relates to the exchange of certain proprietary and/or confidential information during the discussions exploring the formation of a business relationship of mutual benefit. The parties hereto wish to protect the proprietary and confidential information being exchanged, and toward that end, hereby agree as follows:
1. Definition of Confidential Information and Exclusions.
(a) "Confidential Information" means nonpublic information that a party to this Agreement (“Disclosing Party”) discloses to and another party to this agreement receives such information (“Receiving Party”). "Confidential Information" includes, without limitation, information in tangible or intangible form relating to and/or including released or unreleased Disclosing Party software or hardware products, the marketing or promotion of any Disclosing Party product, Disclosing Party's business policies or practices, and information received from others that Disclosing Party is obligated to treat as confidential.
(b) Confidential Information shall not include any information, however designated, that: (i) is or subsequently becomes publicly available without Receiving Party's breach of any obligation owed Disclosing Party; (ii) became known to Receiving Party prior to Disclosing Party’s disclosure of such information to Receiving Party pursuant to the terms of this Agreement; (iii) became known to Receiving Party from a source other than Disclosing Party other than by the breach of an obligation of confidentiality owed to Disclosing Party; or (iv) is independently developed by Receiving Party.
2. Obligations Regarding Confidential Information a) Receiving Party shall:
(i) Refrain from disclosing any Confidential Information of the
Disclosing Party to any third parties, except as expressly provided in Section 2(b) of this Agreement;
(ii) Take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information, but no less than reasonable care, to keep
confidential the Confidential Information of the Disclosing Party;
(iii) Refrain from using, reproducing, summarizing and/or distributing Confidential Information of the Disclosing Party except in pursuance of Receiving Party's business relationship with Disclosing Party, and only as otherwise provided hereunder; and
(iv)Disclose Confidential Information only to those of Receiving Party’s employees, agents, advisors or representatives (the “Receiving Party Representatives”) who (y) require such material for the purpose of assisting Receiving Party in the evaluation of Receiving Party's business relationship with Disclosing Party, and (z) are informed by Receiving Party of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Agreement. The breach of any of Receiving Party’s obligations under this Agreement by a Receiving Party Representative will be deemed a breach of this Agreement by Receiving Party.
(b) Receiving Party may disclose Confidential Information of Disclosing Party in accordance with a judicial, legislative or other governmental order, provided that Receiving Party either (i) gives the undersigned Disclosing Party reasonable notice prior to such disclosure to allow Disclosing Party a reasonable opportunity to seek a protective order or equivalent, or (ii) obtains a written assurance from the applicable judicial or governmental entity that it will afford the Confidential Information the highest level of protection afforded under applicable law or regulation.
(c) Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of Confidential
Information or any other material breach of this Agreement by Receiving Party and 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.
(d) Each party acknowledges and understands that some or all of the Confidential Information may have been prepared by parties other than the Disclosing Party and further acknowledges and understands that no party hereto makes any representation or warranty whatsoever, express or implied, with respect to the content, completeness or accuracy of the Confidential Information. The Receiving Party hereby releases Disclosing Party, its accountants, and attorneys from all claims, demands, causes of action, losses, damages, liabilities, cost or expenses (including reasonable attorneys'
fees) asserted against or incurred by the Receiving Party by reason of the Receiving Party’s reliance on or knowledge of the Confidential Information.
(e) Receiving Party shall, at Disclosing Party’s request, return all originals, copies, reproductions and summaries of Confidential Information and all other tangible materials and devices provided to the Receiving Party as Confidential Information, or at Disclosing Party's option, certify destruction of the same.
The parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information or other material breach of this Agreement and that Disclosing Party may be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.
(a) All Confidential Information is and shall remain the property of Disclosing Party. 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 except as otherwise provided herein.
(b) The parties agree to comply with all applicable international and national laws that apply to (i) any Confidential Information, or (ii) any product (or any part thereof), process or service that is the direct product of the Confidential Information, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments.
(c) 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 date of this Agreement and signed by both parties. No waiver of any provision of this Agreement shall constitute a waiver of any other provision(s) or of the same provision on another occasion.
(d) If either Disclosing Party or the Receiving Party employs attorneys to enforce any
rights arising out of or relating to this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees. This Agreement shall be construed and controlled by the laws of the State of Kansas.
(e) This Agreement shall be binding upon and inure to the benefit of each party’s respective successors and lawful assigns; provided, however, that neither party may assign this Agreement (whether by operation of law, sale of securities or assets, merger or otherwise), in whole or in part, without the prior written approval of the other party. Any attempted assignment in violation of this Section shall be void.
(f) 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.
(g) The obligations of the parties under this Agreement shall continue and survive the completion of the aforesaid discussions and remain binding for a period of three (3) years from the date of execution of this Agreement.
(h) This Agreement may be executed in original or by fax in two or more counterparts which, taken together, shall constitute one original document.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the dates noted below.
By:______________________________ Name:____________________________ Title:_____________________________ Date:_____________________________
By:_____________________________ Name:___________________________ Title:____________________________ Date:____________________________