This Mutual Non-Disclosure Agreement is made by and between Sky Monkey Pty Ltd, ACN 610 870 016 having its principal place of business 15/287 Victoria Rd, Rydalmere, NSW 2116, Australia and the Recipient.
Whereas each party may find it mutually beneficial to disclose to the other certain confidential information, in consideration of the mutual promises expressed herein, each party agrees as follows (the “Agreement”):
- Definition of Confidential Information. Each party to this Agreement may, at its discretion, furnish the other party to this Agreement with certain proprietary or nonpublic information (the “Disclosed Information”). The furnishing party shall be the “Discloser” and the receiving party shall be the “Recipient”. For purposes of this Agreement, Confidential Information is defined as:
- Disclosed Information in printed, written, graphic, photographic or other tangible form marked as “Confidential”, “Proprietary”, “Private”, “Restricted”, or “Trade Secret” by Discloser;
- Disclosed Information in oral or demonstrative form, recorded as written minutes or notes of such presentations, which minutes or notes must be so marked and provided to Recipient within thirty (30) days after the date of disclosure of the Disclosed Information;
- Disclosed Information relating to unreleased products;
- all items generated by the Recipient that contain, reflect, or are derived from Confidential Information under the preceding clauses (i), (ii) and (iii); and
- the existence and substance of the parties’ relationship with each other, whether the identification of either party is by name or identifiable description.
- Exclusions from Confidential Information. Confidential Information shall not include information that:
- is or becomes part of the public domain without violation of this Agreement by Recipient;
- is already in Recipient’s possession free of any restriction on use or disclosure;
- becomes available to Recipient from a third party provided that such party was free from restriction on disclosure of the information; or
- has been independently developed by Recipient.
- Legal Process Seeking Disclosure. If Recipient is required by legal proceeding discovery request, Freedom of Information Act (or state equivalent) request, investigative demand, subpoena, court or government order to disclose Confidential Information, Recipient may disclose such Confidential Information provided that:
- the disclosure is limited to the extent and purpose legally required; and
- prior to any disclosure, Recipient shall immediately notify Discloser in writing of the existence, terms, and conditions of the required disclosure and, at Discloser’s request and expense, cooperate in obtaining a protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information.
- Permitted Use. Recipient shall use the Confidential Information solely for evaluating, negotiating, documenting, consummating, and performing under any relationship between the parties and any other purpose Discloser may authorise in writing (each an “Authorised Purpose”). Where the information or materials includes software, Recipient shall not attempt to disassemble or decompile or reverse engineer or decrypt any software including the databases, tables, views and related data objects and scripts and stored procedures incorporating all source code and methodology constituting the business logic of the software whether encrypted or not.
- Permitted Discloses. Recipient shall hold the Confidential Information in confidence and only disclose the Confidential Information to its officers, employees, consultants, counsel, independent contractors, or agents (collectively “Representatives”) who:
- need the Confidential Information to assist the Recipient for an Authorised Purpose;
- have been instructed not to disclose the Confidential Information;
- for other than Recipient’s employees, have executed a nondisclosure or confidentiality agreement with Recipient, a copy of which shall be supplied to Discloser upon request, at least as protective as this Agreement of the Confidential Information of Discloser;
- Recipient shall be responsible for any violation of this Agreement by its Representatives and shall use reasonable efforts to restrain its Representatives (including Representatives who, subsequent to the date of this Agreement, become former Representatives) from unauthorized; and
- use or disclosure of the Confidential Information.
- Export Compliance. Recipient shall not export, re-export, or otherwise transmit, directly or indirectly, any software, information, data, or other materials received from Discloser except in full compliance with all Australian and other applicable laws and regulations. This section shall survive any termination of this Agreement.
- Rights in/Return of the Confidential Information. Neither the existence of this Agreement nor any disclosure of Confidential Information grants the Recipient any license or rights to or in any Confidential Information. Recipient shall not remove any copyright, trademark, patent, or other proprietary legend on or in the Confidential Information of Discloser. All Confidential Information shall, between Discloser and Recipient, remain the property of Discloser. Upon Discloser’s written request, Recipient shall promptly:
- return all Confidential Information of Discloser; and
- destroy, and provide written certification to Discloser of such destruction, all other materials embodying the Confidential Information of Discloser.
Notwithstanding the preceding sentence, Recipient shall be entitled, solely for dispute resolution purposes, to retain one copy of the Confidential Information, including any embodiments. Any such retained copy shall continue to be governed by the terms and conditions of this Agreement notwithstanding any termination of this Agreement.
- Warranty/Disclaimer. For purposes of this Section, Information is defined as all information furnished by Discloser to Recipient, whether or not Confidential Information as defined in Section 1. Discloser hereby represents and warrants that it is entitled to disclose any Information it provides to Recipient. Discloser provides all Information on an “as-is” basis and, except as provided in the immediately preceding sentence, makes no warranty, either express or implied, concerning the Information including, without limitation, its accuracy or completeness. Recipient assumes all risk in, and Discloser will not be liable for any damages arising out of, use of the Information including, without limitation, business decisions made or inferences drawn by Recipient in reliance on the Information or the fact of the disclosure of the Information. Recipient may at any time independently develop information similar to, or products and services that compete with products or services identified in, the Information. Nothing in this Agreement shall be construed as a representation that Recipient will not engage in such independent development activities. Neither party has any obligation to furnish the other with any Information and disclosure of any Information shall not obligate Discloser to disclose any further Information.
- Remedies. The parties stipulate that a breach of this Agreement by Recipient will cause immediate and irreparable harm and significant injury to Discloser, for which there is no adequate remedy at law and that Discloser shall be entitled, in addition to any other rights and remedies it may have, to specific performance and other equitable remedies to restrain any threatened, continuing, or further breach of this Agreement without proof of actual damages sustained by Discloser. Recipient shall immediately advise Discloser of any discovered breach by Recipient or its Representatives of this Agreement and shall reasonably cooperate, at Recipient’s expense, with Discloser in retrieving the disclosed Confidential Information and restricting any continuing breach.
- Notice. All notices provided for in this Agreement shall be in writing to the addresses shown above, and be effective when sent by certified mail, return receipt requested or by a national overnight courier delivery service.
- Additional. This Agreement shall continue in full force and effect for a period of five (3) years from the Effective Date. This Agreement may be terminated at any time during the period of the Agreement by mutual agreement by the Parties or upon sixty (60) days written notice to the other Party; provided that early termination of this Agreement shall not relieve the Recipient of its obligations under this Agreement with respect to Confidential Information provided to the Recipient prior to the effective date of termination.
