This Mutual Non-Disclosure Agreement (“AGREEMENT”) is entered into as of [16-09-2019] by and between GROW Labs, a company having its principal place of business at Laan van Kronenburg 14, 1183AS, Amstelveen, the Netherlands and [Party 2], a company having its principal place of business at [Address]. GROW Labs and [Party 2] may also be referred to herein, collectively, as the “PARTIES” and individually as a “PARTY” or OTHER PARTY”.
Each PARTY desires to disclose its Confidential Information (defined below) to the OTHER PARTY so that the PARTIES may evaluate whether there are opportunities for a closer co-operation in the areas of software design, software development and related consulting activities (such a closer co-operation hereinafter referred to as the “PROJECT).
In consideration of a PARTY receiving the Confidential Information of the OTHER PARTY, the PARTIES agree as follows:
1. Confidential Information
“CONFIDENTIAL INFORMATION” means all business, technical, proprietary, trade secret, and other information that a PARTY (and its affiliates, subsidiaries and related companies as well as parent companies) discloses in writing, orally, or in any other form, tangible or intangible, including, but not limited to, that which relates to processes, methodologies, data, knowledge, know-how, patents, patent applications, research, product plans, product developments, inventions, designs, formulae, markets, software (including source and object code), algorithms, information relating to the disclosing PARTY’S planned or existing computer systems and systems architecture, methods of processing and operational methods, business plans, customers, marketing, sales, financial information, and business strategies, of the disclosing PARTY.
“"DISCLOSING PARTY”" means, in relation to any item of CONFIDENTIAL INFORMATION, the party which discloses the relevant CONFIDENTIAL INFORMATION and “"RECEIVING PARTY"” means, in relation to any item of CONFIDENTIAL INFORMATION, the PARTY which receives the relevant CONFIDENTIAL Information.
2. Exceptions to Confidential Information
CONFIDENTIAL INFORMATION shall not include information that (a) is or becomes generally known to the public other than as a result of unauthorized disclosure by the receiving PARTY; (b) is known by the receiving PARTY prior to the time of disclosure by the disclosing PARTY as evidenced by contemporaneously dated written documents; (c) is received by the receiving PARTY from a third PARTY having the right to disclose such information without an obligation of confidence or non-disclosure; or (d) is independently developed by the receiving PARTY without use of the CONFIDENTIAL INFORMATION. The PARTY receiving CONFIDENTIAL INFORMATION from the OTHER PARTY shall bear the burden of establishing one of the foregoing exceptions.
3. Limited Use and Disclosure
A PARTY shall use the CONFIDENTIAL INFORMATION of the OTHER PARTY only for the purpose of evaluating the PROJECT. A PARTY may disclose such CONFIDENTIAL INFORMATION only to its directors, officers, employees or advisers who (a) need to know such information, (b) are directly involved with such evaluation and (c) are bound by law or contract to treat the CONFIDENTIAL INFORMATION confidential. A PARTY receiving CONFIDENTIAL INFORMATION in the form of computer software shall not copy, modify, translate, decompile, reverse engineer, disassemble, or perform a similar act on such computer software.
4. Disclosure Pursuant to Court Order
The receiving PARTY may disclose CONFIDENTIAL INFORMATION of the disclosing PARTY to the extent required by an order of a court of competent jurisdiction or applicable governmental, quasi-governmental, or regulatory body; provided, however, that the receiving PARTY, unless prohibited by law, regulation or court or regulatory order, (a) promptly notifies the disclosing PARTY upon its receipt of any paper that requests or demands disclosure of its CONFIDENTIAL INFORMATION; (b) opposes any request for disclosure, and that failing, seeks to have access and use limited by a protective order; and (c) provides the disclosing PARTY a reasonable opportunity to (i) contest and assist in opposing any requirement of disclosure of its CONFIDENTIAL INFORMATION, (ii) seek judicial protection against the disclosure, and (iii) have such required disclosure be made under a protective order.
5. Safeguards and Non-disclosure to Third PARTIES
The receiving PARTY shall use all reasonable efforts to keep the CONFIDENTIAL INFORMATION of the disclosing PARTY in confidence and to safeguard the CONFIDENTIAL INFORMATION. In so doing, each PARTY shall take at least the same precautions it would to safeguard its own similarly valued proprietary and CONFIDENTIAL INFORMATION, but shall not take less than commercially reasonable precautions. Except as permitted under this AGREEMENT, the receiving PARTY shall not disclose any portion of the disclosing PARTY’S CONFIDENTIAL INFORMATION to any third PARTY, unless the disclosing PARTY consents to such disclosure in writing. Any disclosure of any portion of the disclosing PARTY’S CONFIDENTIAL INFORMATION to any direct or indirect parent, subsidiary or affiliate is permitted, if the direct or indirect parent, subsidiary or affiliate submits itself to be bound by this AGREEMENT. The receiving PARTY agrees to be responsible for all use of CONFIDENTIAL INFORMATION by its directors, officers, employees or advisers. A PARTY shall immediately notify the OTHER PARTY upon receiving a request from a third PARTY to disclose CONFIDENTIAL INFORMATION of the disclosing PARTY and shall cooperate with the disclosing PARTY to protect the CONFIDENTIAL INFORMATION from disclosure.
6. Term and Termination
This AGREEMENT shall remain in effect until the earlier of expiration twelve (12) months from the date first written above, termination by another written AGREEMENT that specifically references this AGREEMENT, or the date that this AGREEMENT is superseded by another written AGREEMENT that specifically references this AGREEMENT. The rights and obligations of the PARTIES hereunder with respect to any CONFIDENTIAL INFORMATION disclosed or obtained prior to expiration or termination shall survive any such expiration or termination of this AGREEMENT for a period of two (2) years from the date first written above. In the case of expiration or Mutual Non-Disclosure Agreement between GROW Labs and [Party2] termination, each PARTY shall promptly return, destroy, and/or erase from computer memories all CONFIDENTIAL INFORMATION of the OTHER PARTY unless a PARTY is bound by the applicable laws to store and keep the CONFIDENTIAL INFORMATION and shall on demand promptly certify in writing its compliance with the foregoing.
7. No Rights Granted
Except as set forth in paragraph 3, this AGREEMENT does not transfer to the receiving PARTY any ownership, license, title, interest nor any other rights including, but not limited to, patent and copyright rights, in or to the CONFIDENTIAL INFORMATION of the disclosing PARTY.
8. Injunctive Relief
Each PARTY acknowledges that the CONFIDENTIAL INFORMATION of the OTHER PARTY is of a unique character and agrees that its actual or anticipated breach of this AGREEMENT will irreparably harm the OTHER PARTY, which harm cannot be adequately compensated with monetary damages. Therefore, in the event of a PARTY’S actual or anticipated breach, the OTHER PARTY shall be entitled to specific performance of this AGREEMENT and to an injunction or other equitable relief as may be deemed proper by a Court. The foregoing remedies shall be in addition to other remedies available to the non-breaching PARTY. The PARTIES acknowledge and agree that the covenants contained herein are necessary for the protection of legitimate business interests of each PARTY and are reasonable in scope and content.
A PARTY may not assign, license, or otherwise transfer its rights or obligations under this AGREEMENT to any third PARTY without the OTHER PARTY’S prior written consent. This AGREEMENT constitutes the entire AGREEMENT between the PARTIES with respect to its subject matter and merges all prior discussions and AGREEMENTS between them. This AGREEMENT may not be modified or amended except in writing executed by both PARTIES. If any provision of this AGREEMENT is found to be invalid or otherwise unenforceable, the enforceability of the remaining provisions shall survive.
10. Governing Law and Jurisdiction
This AGREEMENT shall be exclusively governed by and construed in accordance with the substantive laws of the Netherlands, excluding its conflict of laws principles and excluding the UN Convention on Contracts for the International Sale of Goods.
Any dispute, controversy or claim arising under, out of or in relation to this AGREEMENT (or subsequent amendments thereof), in particular as to its existence, validity, interpretation, performance, breach or termination, including tort claims, shall be exclusively referred to and determined by the competent courts in Amsterdam, Netherlands.