Mutual NDA

Mutual Non-Disclosure Agreement

CM-1002, version 1.0

This is a MUTUAL NON-DISCLOSURE AGREEMENT (“NDA” or “Agreement”), entered into as of the date below (“Effective Date”) by and between Ascribe, LLC (“Ascribe”) and the below-listed client (“Client”). Ascribe and Client may be referred to herein individually as the “Party” or collectively as the “Parties.”

Whereas Ascribe and the Client wish to evaluate a potential business relationship and;

Whereas, such discussions may necessitate the exchange of Confidential Information proprietary to each Party, and;

Whereas the NDA provides for the mutual protection of such Confidential Information, and both Ascribe and the Client shall be considered herein as “Disclosing Party” and “Recipient,” depending on who is providing and receiving the Confidential Information, respectively.

Now, therefore, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt of which is hereby acknowledged, the Parties hereto agree as follows:

I. Confidential Information

Either Party hereto (“Disclosing Party”) may disclose to the other Party hereto (“Recipient”) certain information pursuant to this Agreement that Disclosing Party deems to be proprietary, confidential, or trade secret (“Confidential Information”). Recipient understands and acknowledges that Disclosing Party’s Confidential Information is valuable, constitutes the Disclosing Party’s trade secrets or confidential business information, are not generally known by Disclosing Party’s competitors, and includes, but are not limited to the identity of parties involved in and the nature of business relationships (including the Parties involved in this Agreement); business strategic, product or financial information; customer lists and activities; documentation; and any and all information concerning Disclosing Party’s current, future or proposed products and services.

Confidential Information does not include, and the Agreement imposes no obligation on Recipient with respect to, any information which Recipient can establish by competent proof is or was:

1. In the public domain at the time of such disclosure or which subsequently came into the public domain through no fault or action of Recipient or any person who received the Confidential Information from or through Recipient; or
2. Rightfully known to Recipient prior to the receipt of that information by Recipient from the Disclosing Party; or
3. Lawfully received by Recipient as a matter of right, without a binder or confidentiality from a source other than Disclosing Party, which source has lawful possession thereof; or 
4. Independently developed by Recipient without reliance upon or use of Disclosing Party’s Confidential Information.

II. Non-Disclosure

The Parties agree that the provision of Confidential Information to Recipient is not in any way intended by the Disclosing Party and shall not be deemed to be public disclosure, public use, or otherwise a publication of that information.  The Disclosing Party’s Confidential Information must be used by the Recipient solely for the purpose of the Recipient evaluating the feasibility of entering into a business relationship with the Disclosing Party and not in any way directly or indirectly detrimental to the Disclosing Party.  The recipient must at all times following the Effective Date of this Agreement keep confidential the Disclosing Party’s Confidential Information and prevent (a) the disclosure of any Confidential Information received from the Disclosing Party;  (b) the disclosure of documents that are prepared by Recipient based in whole or in part on Confidential Information received from the Disclosing Party; and (c) the verbal information received by the receiving party or the disclosure of information received orally from the Disclosing Party.

Recipient agrees to (i) use reasonable efforts to maintain the confidentiality of Confidential Information and not disclose Confidential Information to third parties (except for Recipient's and Recipient’s affiliates’ directors, officers, employees, members, partners, representatives or advisors, including without limitation, attorneys, accountants, insurers, rating agencies, consultants, bankers and financial advisors, who have a need to know, are under a duty of non-disclosure with respect to such information and are acting for the sole benefit of Recipient), which efforts shall accord Confidential Information at least the same level of protection against unauthorized use and disclosure that Recipient customarily accords to its own information of a similar nature. 

In the event the Confidential Information is computer software, Recipient also agrees that it must not use that Software or any related documentation or materials for any purpose other than the purpose contemplated by this Agreement without Disclosing Party’s express prior written consent, nor shall Recipient directly or indirectly decompile, disassemble or otherwise in any manner reverse engineer the software or permit any of its officers, directors, employees, agents, contractors, subsidiaries or affiliates to do so.   The Confidential Information shall be and remain the confidential, proprietary, and trade secret property of the Disclosing Party.  Further, any and all enhanced, modified, or other derivative works or information directly or indirectly prepared by or for Recipient and resulting from the Confidential Information shall be governed by the terms of this Agreement as if it were original information supplied by Disclosing Party.

In the event the Confidential Information is a customer list or other confidential customer information, Recipient also agrees that during the term of this Agreement, it will not use such information to compete with Disclosing Party or use it for any other purpose other than the purposes contemplated by this Agreement without Disclosing Party’s prior written consent.  The Confidential Information shall be and remain the confidential, proprietary, and trade secret property of the Disclosing Party.

Recipient shall be liable for any breach of this Agreement by any third party to whom Recipient discloses the Disclosing Party’s Confidential Information or for any act or omission of any such third party that if done or not done by the Recipient would constitute a breach by the Recipient of this Agreement.

Recipient must not remove or permit the removal of any copyright or other proprietary rights notices attached to or included in Confidential Information provided by the Disclosing Party.

Recipient may make a limited number of copies of the Disclosing Party’s Confidential Information provided that (a) Recipient must reproduce all of Disclosing Party’s copyright and other proprietary rights notices on all such copies, in the same manner in which those notices are set forth in or on the original, and (b) all such copies of Disclosing Party’s Confidential Information made by the Recipient are also Confidential Information of the Disclosing Party and are treated under the same terms and conditions as the originals.

Neither Party is obligated to deliver to the other Party any materials comprising or containing any Confidential Information of the Disclosing Party.  Neither Party is obligated to disclose any Confidential Information to the other Party or enter into any agreement regarding any potential business relationship.

III. Warranties and Rights

Recipient warrants and represents to Disclosing Party that Recipient is not party to any agreement that conflicts with this Agreement and that Recipients entering into this Agreement will not be in contravention of any other agreement to which Recipient may be party.

Nothing contained in this Agreement is intended to nor may be construed as granting or conferring to either Party any rights, express, implied, or otherwise, to any product, copyrighted material, invention, discovery, or improvements made, conceived, or acquired by the other Party prior to or after the date of this Agreement.  Nothing in this Agreement is intended to, nor may operate or be construed to grant or confer upon Recipient any intellectual property rights or licenses in or to any of the Disclosing Party’s Confidential Information.

Further, unless and until the Parties have entered into a formal, definitive written agreement, there shall be no obligation on the part of either Party to enter into any type of business relationship.

IV. Performance

Recipient acknowledges that the Disclosing Party will be irreparably harmed if Recipient’s obligations under this Agreement are not specifically enforced and that the Disclosing Party would not have an adequate remedy at law in the event of an actual or threatened violation by Recipient of its obligations under this Agreement.  Therefore, Recipient agrees that in addition to any other remedy or remedies available at law or in equity, the Disclosing Party shall be entitled to equitable relief, including, without limitation, injunction and specific performance, in the event of any breach or threatened breach of the provisions of this Agreement by the Recipient, its officers, employees, agents contractors, subsidiaries or affiliates without the necessity of the Disclosing Party showing actual damages or that monetary damages would not afford an adequate remedy, and without the necessity of posting any bond.

V. Term

Subject always to the provision of sections IV and VII, this Agreement shall remain in full force and effect until terminated by either party. Either Party may terminate this Agreement by giving written notice of termination to the other Party at the applicable address in the first paragraph of this Agreement, at least ten days in advance of the date of termination. 

VI. Governing Law

This Agreement shall be governed by the laws of the State of California without reference to the conflict of law provisions thereof.

VII. Survival

For so long as a Party continues to possess the Confidential Information furnished by the other Party, and for so long as the Confidential Information remains confidential as the property of the Disclosing Party, the Recipient shall make no use of nor any unauthorized disclosure of such Confidential Information whatsoever, notwithstanding the expiration or termination of this Agreement.  The expiration or termination of this Agreement shall not be deemed to give either Party a right to use or disclose the Confidential Information of the other Party.

VIII. Assignment

This Agreement shall be binding upon and inure to the benefit of the heirs, executors, administrators, successors, and assigns of the Parties, provided, however, that neither Party may assign, sublicense, or transfer any of its rights or duties under this Agreement without the consent of the other party, which consent shall not be unreasonably withheld.  Disclosing Party shall have no obligation whatsoever to pay any consideration to the Recipient under this Agreement.  Recipient shall be responsible for its own expenses of any nature whatsoever incurred in conducting its analysis and investigation of or related to the Confidential Information or any use thereof.

IX. Return of Materials

Recipient must return to Disclosing Party and make no further use of all Confidential Information received from Disclosing Party, including any and all copies provided to corporate affiliates(s) or to consultants and advisors, upon the earlier of the expiration of this Agreement or request by Disclosing Party.

X. Savings Clause

In the event that any provision of this Agreement is found or held to be invalid or unenforceable, then the meaning of such provision shall be construed, to the extent feasible, so as to render the provision enforceable, and if no feasible interpretation would save such provision, it shall be severed from the remainder of this Agreement which shall remain in full force and effect.

XI. Non-Solicitation of Employees

The Parties agree that each shall not directly or indirectly induce or attempt to induce any employee to leave the employ of their respective Company except through the use of normal or public solicitations. Notwithstanding the previous, if the parties consummate a business relationship, the definitive agreement between the parties will govern the solicitation of employees. If the definitive agreement is silent on these terms, the terms of the Non-Disclosure Agreement shall prevail.

XII. Execution of Agreement

This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same Agreement.  The exchange of copies of this Agreement and its signature pages by facsimile transmission shall constitute effective execution and delivery of this Agreement to the Parties and may be used in lieu of the original Agreement for all purposes.  Signatures of the Parties transmitted by facsimile shall be deemed to be their original signatures for all purposes.

XIII. Signatures

The undersigned Parties have caused this Mutual Non-Disclosure Agreement to be executed by their respective duly authorized representatives.