NDA Terms with Incoresoft LLC
Attention! Read the terms of the Agreement carefully before starting cooperation.
1.1 Parties under this Agreement intend to exchange certain information they consider Confidential Information regarding their business for the following purpose (“Purpose”): collaboration in the field of Incoresoft Ukraine LLC products utilization, selling, and enhancement requests.
1.2 The intent of the parties is to protect the Confidential Information which either party elects to disclose, but not to obligate either party to disclose any Confidential Information.
2. Confidential Information
2.1 “Confidential Information” means any information, including, without limitation, any information, technical data or know-how relating to discoveries, ideas, inventions, concepts, software, equipment, designs, drawings, specifications, technique processes, systems, models, data, source code, object code, documentation, diagrams, flow charts, research, development, business plans or opportunities, products, projects or products under consideration, procedures, and information related to finances, costs, prices, suppliers, vendors, customers and employees which is disclosed by the Disclosing Party in connection with the Purpose whether before, on or after the date hereof, directly or indirectly, in writing, orally or by drawings or inspection of equipment or software, to the Receiving Party or any of its employees or agents.
2.2 Confidential Information does not include any of the following: (a) information that is or becomes part of the public domain without violation of this Agreement by the Receiving Party; (b) information that was known to or in the possession of the Receiving Party on a non-confidential basis prior to the disclosure thereof to the Receiving Party by the Disclosing Party, as evidenced by written records; (c) information that was developed independently by the Receiving Party, without the use of or reference to the Confidential Information, as established by written evidence; or (d) information that is disclosed to the Receiving Party by a third party under no obligation of confidentiality to the Disclosing Party and without violation of this Agreement by the Receiving Party. The burden of proving that information may be disclosed because it does not fall within the definition of Confidential Information shall be on the Receiving Party.
3. Receiving Party’s Obligations
3.1 The Receiving Party agrees that, unless the Disclosing Party gives its prior written authorization, it shall: (a) not use the Confidential Information for any other purpose other than for the Purpose; (b) not disclose any Confidential Information to any third party except those directors, officers and employees of the Receiving Party who are required to have such Confidential Information in order to carry out the Purpose and who have signed a non-use and non-disclosure agreement or have agreed upon corporate confidentiality rules in content similar to the provisions hereof; and (c) not print, copy, adapt, modify, store, decompile, disassemble or reverse engineer/translate any items or discover the source code or trade secrets thereof that constitute Confidential Information other than as required for the Purpose.
3.2 The Receiving Party shall prevent the unauthorized use, disclosure, dissemination, or publication of the Confidential Information with the same degree of care that the Receiving Party uses to protect its own confidential information of a similar nature, but no less than a reasonable degree of care. The Receiving Party agrees to notify the Disclosing Party in writing of any misuse or misappropriation of the Disclosing Party's Confidential Information which may come to the Receiving Party’s attention.
4. Judicial/Governmental Disclosure
If the Receiving Party becomes legally obligated to disclose Confidential Information by any governmental entity with jurisdiction over it, prior to such disclosure, the Receiving Party shall give the Disclosing Party prompt written notice of such obligations sufficient to allow the Disclosing Party the opportunity to pursue its legal and equitable remedies regarding such potential disclosure. The Receiving Party agrees to: (a) assert the confidential nature of the Confidential Information to the governmental entities; (b) disclose only such information as is required to be disclosed by law; (c) use its commercially reasonable efforts to obtain confidential treatment for any Confidential Information that is so disclosed; and (d) provide reasonable assistance to the Disclosing Party in protecting such disclosure.
5.1 This Agreement shall continue in full force and effect for a period of three (3) years from the Effective Date, provided, however, that the obligation of the Receiving Party to protect the Confidential Information under this Agreement shall survive for a period of five (5) years from the expiration or termination of this Agreement. Those terms and conditions of this Agreement, which are, by their nature, meant to survive the term of this Agreement, shall so survive from the expiration or termination of this Agreement.
5.2 The Receiving Party shall: (a) promptly return all originals, copies, reproductions, and summaries of the Confidential Information furnished by the Disclosing Party upon the written request of the Disclosing Party or after termination or expiration of this Agreement; and/or (b) at the Disclosing Party’s option, destroy or delete the same. In the event of such destruction or deletion, the Receiving Party shall certify in writing to the Disclosing Party, within ten (10) days, that such destruction or deletion has been accomplished.
6. No Warranty/License/Obligation
6.1 The parties understand and agree that the Disclosing Party has not made or shall not make any representation or warranty as to the accuracy or completeness of the Confidential Information and that the Disclosing Party shall not have any liability resulting from the use of the Confidential Information by the Receiving Party.
6.2 Neither the execution of this Agreement nor the furnishing of any Confidential Information hereunder shall be construed by the Receiving Party as granting any license or any other rights other than as set forth herein under any trade secrets, copyrights, or patents now or hereafter owned by or controlled by the Disclosing Party, or under any trade secrets, copyrights, or patents in which the Disclosing Party is now licensed.
6.3 This Agreement shall not be construed by either party in any manner to be an obligation to enter into a subsequent agreement of any kind, or to result in: (a) any claim of obligation to enter into a subsequent agreement of any kind; or (b) any claim for reimbursement of costs or payment for any efforts expended hereunder.
7. Governing Law, Penalties, and Settlement of Disputes
7.1 Any dispute, controversy, or claim arising out or in connection with this Agreement, or the breach, termination, or invalidation thereof, shall be finally settled by a Ukrainian court.
7.2 The Agreement shall be governed by the substantive law of Ukraine.
7.3 In case of breach by Receiving Party of its obligations under present Agreement, this party shall be obliged to pay a fine to the Disclosing Party in the amount of 100,000.00 (one hundred thousand hryvnias 00 kopeks) and compensate to the Disclosing Party any and all damages, including lost profit.
8. Miscellaneous Provisions
8.1 This Agreement constitutes the entire understanding between the parties concerning the treatment of Confidential Information and supersedes all previous and contemporaneous understandings, agreements, communications, and representations between the parties respecting the subject matter hereof. No modification of this Agreement shall be binding on either party unless embodied in writing and signed by both parties. No party may assign or delegate any of its rights or obligations under this Agreement. If any provision hereof shall be prohibited by or held invalid or unenforceable under applicable law, such provision shall be ineffective to the extent of such prohibition, invalidity, or unenforceability, without invalidating or nullifying the remainder of such provision or any other provision of this Agreement. This Agreement may be executed in two or more identical counterparts, each of which will be deemed to be an original and all of which taken together will be deemed to constitute the Agreement when a duly authorized representative of each party has signed such counterparts. This Agreement may be executed and delivered by facsimile or electronic image transmission and the parties agree that such facsimile or electronic image execution and delivery shall have the same force and effect as delivery of an original document with original signatures and that each party may use such facsimile or electronic signatures as evidence of the execution and delivery of this Agreement by all parties to the same extent that an original signature could be used. The Receiving Party shall not use Confidential Information for any purpose or in any manner that would constitute a violation of any laws or regulations, including, without limitation, any applicable export control laws.