mutual non-disclosure agreement - cyber shafarat 1 corporate nda (mutual) 1-26-2016 version mutual...

Corporate NDA (Mutual) 1-26-2016 version

Mutual Non-Disclosure Agreement

This MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”) is made and entered into effective

as of _______________ by and between Treadstone 71 LLC, having an office at

________________________________________________________________________________("T71)

and _____________________________________________________, having an office at

_________________________________________________________ (“Vendor”).

WHEREAS, T71 and Vendor wish to exchange information in order to (i) assess a possible business transaction (the “Assessment”) and (ii) if applicable, to engage in an ongoing business relationship (together with the Assessment, the “Purpose”).

WHEREAS, the parties intend that this Agreement shall govern the disclosure of information both during the Assessment and pursuant to any agreement that may be entered into hereafter between the parties.

NOW, THEREFORE, for good and valuable consideration, the parties mutually agree as follows:

1. Confidential Information: “Confidential Information” shall mean nonpublic information revealed

by or through a party (the “Disclosing Party”), whether in writing, orally or by any other means and whether furnished before, on or after the date hereof to the other (the “Receiving Party”), regardless of whether explicitly identified as confidential or proprietary, including, without limitation, (a) the terms, conditions, or any other information relating to the Purpose, including the fact that discussions are taking place relating to the Purpose; (b) all forms and types of financial, business, marketing, scientific, technical, economic, trading or engineering information including patterns, plans, compilations, program devices, formulae, designs, prototypes, methods, techniques, systems, processes, procedures, programs, or codes, whether tangible or intangible, and regardless of how stored, compiled, or memorialized, whether physically, electronically, graphically, photographically, in writing or by some other means; (c) any analysis, compilations, studies or other documents or records prepared by either party that contain or are generated from Confidential Information; (d) information traditionally recognized as proprietary trade secrets; (e) information about the Disclosing Party’s current, former or prospective clients (including all details of the transactions entered into and positions held by the Disclosing Party on behalf of its clients); (f) information belonging to any consultants, vendors or such other third parties whose information the Disclosing Party has an obligation to protect; (g) information regarding the Disclosing Party’s current, former or prospective officers, directors, partners, shareholders and employees; and (h) all copies of any of the foregoing or any analyses, studies or reports that contain, or are based on, any of the foregoing.

2. Use and Disclosure.

(i) The Receiving Party shall treat all Confidential Information with at least the same degree of care that it uses to protect its own confidential and proprietary information of a similar nature but with no less than a reasonable degree of care. Each party represents that it has in place policies and procedures designed to limit access to Confidential Information within and outside their respective organizations to those individuals with a specific need to know. The Receiving Party shall not disclose, duplicate, copy, transmit or otherwise disseminate in any manner whatsoever the Confidential Information, except to the Receiving Party’s officers, directors and employees (collectively “Employees”), and employees of third parties including, but not limited to, other contractors or consultants (collectively, “Third Parties”) retained by Vendor or ___________________________ whom T71 has previously approved in writing. All Employees and Third Parties receiving Confidential Information shall (a) be


subject to a written confidentiality agreement consistent with the terms of this Agreement; (b) have a need to know such Confidential Information for its performance in connection with the Purpose; and (c) have been informed of the confidential nature of the Confidential Information. The Receiving Party shall be liable to the Disclosing Party in the event of a breach of these obligations by any of its Employees (including any Employees no longer employed as of the date of the violation) or its Third Parties. The Receiving Party will promptly report to the Disclosing Party any breaches of this Agreement that may materially affect the Disclosing Party and will specify the corrective action to be taken

(ii) Each party represents that it has the right to enter into this Agreement and that it is either the owner of or has the right to disclose its respective Confidential Information.

(iii) The Receiving Party shall not use the Confidential Information of the Disclosing Party except in

direct connection with the Purpose. 3. Exclusions. The obligations under this Agreement do not apply to information that the Receiving

Party can show: (a) was in the Receiving Party’s possession prior to the date of the disclosure by the Disclosing Party; (b) was obtained by the Receiving Party after the date of this Agreement from a third party who is not known, after reasonable inquiry, by the Receiving Party to be under any obligation of confidentiality with respect to such information; (c) was independently developed by or on behalf of the Receiving Party without benefit of the disclosed Confidential Information; or (d) became generally available to the trade, or to the public, based on existing records or through sources other than the Receiving Party. The burden of proving any of the above exemptions shall be on the Receiving Party.

4. Required Disclosure. In the event that the Receiving Party is requested or required (by o r a l

questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process) to disclose any Confidential Information of the Disclosing Party, then the Receiving Party will, to the extent permitted by law, provide the Disclosing Party with prompt notice of such request or requirement so that the Disclosing Party may seek an appropriate protective order. If, in the absence of a protective order, the Receiving Party is nonetheless, in the opinion of the Receiving Party’s counsel, legally required to disclose such Confidential Information forwarded by the Disclosing Party or else stand liable for contempt or suffer other censure or penalty, the Receiving Party may disclose such information without liability hereunder, provided, however, that the Receiving Party shall disclose only that portion of such Confidential Information which it is legally required to disclose. Notwithstanding anything herein to the contrary, the Receiving Party may disclose, without notice of any kind, any of the Confidential Information provided by the Disclosing Party to any regulatory authority having jurisdiction over the Receiving Party; provided, however, if a request by any regulatory authority specifically refers to the Disclosing Party by name, the Receiving Party will use reasonable best efforts to notify the Disclosing Party prior to disclosure provided that the terms of the request do not restrict the Receiving Party from providing such notification. Each party further represents that with respect to any regulatory request for Confidential Information it shall request from such regulatory authority that the information be treated as confidential.

5. No License. This Agreement grants no patent rights, copyrights, trade secrets or licenses, expressed

or implied, to the Receiving Party. 6. Compliance with Applicable Law. Each party agrees to comply with all applicable laws, rules and

regulations, including any privacy and data protection laws which are or may in the future be applicable to the subject matter of this Agreement or to the use of the Confidential Information obtained under this Agreement.


7. Equitable Remedies. The parties agree that the Confidential Information disclosed pursuant to

this Agreement is of a special, unique, and extraordinary character and that the Disclosing Party may be irreparably harmed by its use or disclosure in violation of this Agreement. The parties further agree that the Disclosing Party may not have an adequate remedy at law, and that the Disclosing Party shall be entitled to seek equitable relief to prevent further use and/or disclosure in addition to all other remedies available to the Disclosing Party at law or in equity for any breach of this Agreement. The defaulting party shall be liable to the non-defaulting party for reasonable attorneys’ fees and costs of investigation incurred in an action or proceeding arising out of this Agreement.

All remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity, or otherwise.

8. Term and Termination. This Agreement shall remain in effect until terminated by either party upon

written notice. Notwithstanding the foregoing, the obligations and restrictions set forth herein shall expressly survive the termination of this Agreement and any and all other agreements between the parties.

9. Assignment. Neither this Agreement nor any rights or obligations under this Agreement may be

assigned by either party without the prior written consent of the other. This Agreement shall inure to the benefit of and be binding upon each party and their respective successors and permitted assigns.

10. Waiver. No delay or omission by T71 or Vendor to exercise any right or p o w e r occurring upon

any noncompliance or default by the other with respect to any of the terms of this Agreement shall impair any such right or power or be construed to be a waiver thereof. A waiver by either party of any of the covenants, conditions, or agreements to be performed by the other shall not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition, or agreement herein.

11. Severability. If any term or provision of this Agreement is declared invalid by a court of

competent jurisdiction, the remaining terms and provisions hereof shall remain unimpaired and in full force and effect.

12. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party

shall promptly return to the Disclosing Party, destroy or render unusable, and discontinue the use of, any Confidential Information then in the Receiving Party’s possession, including all copies. The Receiving Party shall retain no part or copy of any of the Disclosing Party’s Confidential Information and, if requested in writing, the Receiving Party shall certify its compliance with the foregoing provision. Notwithstanding the foregoing, the Receiving Party may retain Confidential Information of the Disclosing Party to the extent required by any regulatory agency having jurisdiction over the Receiving Party. The terms of this Agreement shall continue in effect and the Receiving Party shall remain subject to the continuing obligations set forth herein with respect to any such Confidential Information retained by the Receiving Party.

13. Non-Publicity. Neither party shall use the other party’s name, logo, trademark or other

designation or otherwise reference the other party in connection with any advertising, press releases, publicity matters, customer lists, or other promotional materials, without the other party’s prior written consent.

14. Counterparts; Electronic Signature. This Agreement may be signed in counterparts, each o f


which shall be deemed an original and both of which taken together shall constitute one and the same instrument. Either party may execute this Agreement electronically and the parties hereto agree that any such electronic signature shall be deemed an original for all purposes.


15. Amendment/Entire Agreement. This Agreement may not be amended, modified or waived in anymanner, except in writing signed by both parties. This Agreement embodies the entireunderstanding between T71 and Vendor pertaining to the subject of this Agreement andsupersedes all prior agreements pertaining to such subject.

16. Notices. All notices required to be given under this Agreement shall be in writing andd e l i ve r e d to the addresses set forth below in this Agreement. Notice shall be sent by ana t i ona l l y recognized overnight delivery service or registered or certified mail, return receiptrequested, and shall be considered delivered and effective one (1) day after being sent by anationally recognized overnight courier, or three (3) days after being sent postage prepaid bycertified or registered mail, return receipt requested.

If to T71:

__________________

______________________

______________________

______________________

______________________

______________________

If to Vendor:

_______________

___________________

___________________

___________________

___________________

___________________

17. Governing Law. This Agreement shall be construed, and the legal relations between the partiesdetermined, in accordance with the laws of the State of Massachusetts, without regard to itsconflicts of law rules.

IN WITNESS WHEREOF, T71 and Vendor have caused this Agreement to be executed by their duly authorized representatives who represent they have the authority to bind the respective party to this Agreement.

Treadstone 71, LLC _________________________________________

By: By: (Signature) (Signature)

Company NameNameTitleAddressPhone, FAXEmail

Company NameYour NameTitleAddressPhone, FAXEmail


Name Printed: Name Printed:

Title: __________________________________ Title: _

Date: Date:

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