CONFIDENTIAL DISCLOSURE AGREEMENT (“NDA”)
Effective Date:[…]
OPENET
In order to protect certain confidential information, Openet Telecom,
Limited, (“OPENET” or “OPENET GROUP” which term includes any
subsidiaries of Openet Telecom Limited), and the “Participant”
identified below, (which term includes any subsidiaries or holding
company or group company of the Participant) agree that:
In respect of OPENET, the Confidential Information includes, in
particular but not limited to: (Documents or other forms of
information to be listed by title, product code, date or other
identifying mark and to be clearly described – include detail in
relation to the Openet Software.)
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1. “Discloser” means either party that discloses Confidential
Information under this NDA. “Recipient” means either party that
receives Confidential Information under this NDA.
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The Confidential Information is disclosed solely for the Purpose.
The PARTICIPANT
2. Primary Representative:
Each party’s representative for
coordinating disclosure or receipt of confidential information is:
OPENET: Openet Telecom Sales Ltd, 6 Bekcett Way, Park
West, Dublin 12, Ireland.
Participant: […]
3. Confidential Information: “Confidential Information" shall
mean, in particular but without prejudice to the generality of the
foregoing, in respect of each party, being the Discloser, any of the
following, whether: (i) disclosed by or on behalf of the Discloser to
the Recipient orally or in writing; (ii) learned by the Recipient
through observation or examination of any documents, licenses,
contracts, books, records, data, software, source codes,
specification, data-sheets, or products of the Discloser; (iii) learned
by the Recipient through observation or examination of the
Discloser’s offices, processes, procedures or technology, including,
any Openet Software (the “Software”); or (iv) otherwise learned by
the Recipient in any manner except as set forth in Clause 3 hereof:
(a) all information, including a parties proprietary information and
project methodologies, relating to the “Purpose” described in Clause
4;
(b) any and all confidential matters of a party, including, without
limitation, technical know how, software, drawings, diagrams, trade
secrets, technical data, analyses, concepts, technical processes,
formulae,
specifications,
inventions,
suppliers,
customers,
employees, consultants, corporate status, business activities, pricing
policies, operational methods, customer information, financial
information, sales information, marketing information and other
business affairs of a party;
(c) any information received from others, including but not limited
to, third party suppliers, which a party is obliged to treat as
proprietary and/or confidential;
(d) the particular information set out below;
(e) analyses, studies, software and other documents and
deliverables prepared by a party, its officers, employees, agents or
advisers, which contain or otherwise reflect, or are generated from,
the information set out in paragraphs (a) to (d), inclusive; and
(f) any other information, which ought reasonably be considered
confidential to the Discloser;
4.
Confidential Information and Purpose of Disclosure:
4.1 Purpose of Disclosure & use of Confidential Information
Purpose of the parties’ negotiations pursuant to which this NDA is
entered into: (include reference to parties commercial discussions &
Counterparty involvement in Assessment)
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Expected duration of parties’ use of Confidential Information of other
party pursuant to the Purpose:
…….. days / weeks / months with effect from / the Effective Date
4.2 Confidential Information
In respect of the PARTICIPANT, the Confidential Information
includes, in particular but not limited to: (Documents or other forms
of information to be listed by title, product code, date or other
identifying mark and to be clearly described)
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The Confidential Information is disclosed solely for the Purpose.
5. Confidentiality Period: The term of this NDA shall be for a
period of three (3) years from the Effective Date, notwithstanding
the earlier expiry or termination of the Purpose unless otherwise
expressly agreed in writing by the Discloser. All obligations regarding
Confidential Information of whatsoever nature shall survive
termination or expiration of the Purpose for a period of three (3)
years from Effective Date. In case of any Confidential Information
that constitutes a trade secret, all obligations shall remain in effect
until such time as the information is no longer a trade secret.
6.
Disclosure Period: This NDA pertains to Confidential
Information that is disclosed between the Effective Date and as long
as information is exchanged for the Purpose.
7.
Standard of Care:
Recipient shall protect the disclosed
confidential information by using the same degree of care, but no
less than a reasonable degree of care, to prevent the unauthorized
use, disclosure, copying, dissemination, or publication of the
confidential information as Recipient uses to protect its own
confidential information of a like nature.
8. Remedies: Recipient shall notify Discloser immediately upon
discovery of any threatened or actual unauthorized use or disclosure
of Confidential Information, or any other breach of this NDA, and will
cooperate with Discloser in every reasonable way to help Discloser
regain possession of the Confidential Information and prevent
further unauthorized use or disclosure. The parties agree that any
threatened or actual breach of this NDA could cause irreparable
injury to Discloser, thereby the Discloser shall be entitled to obtain
injunctive relief in order to stop the continuing breach of this NDA, in
addition to any other rights and remedies available to it.
9. Marking: Any information that comprises materials listed in
paragraph 4.2, whether marked or unmarked, shall be treated as
Confidential Information. Each party will make reasonable efforts to
identify to the other, orally or in writing, specific information or
materials which they considers confidential. To the extent practical,
the Discloser shall furnish Confidential Information in documentary
or tangible form marked as "Confidential". If disclosure of
Confidential Information is unmarked or in non-documentary form
(e.g. disclosed orally or by visual inspection) the Discloser shall have
the right to confirm in writing the fact and the general nature of such
disclosure within 30 days after such disclosure is made; nonetheless
the failure to do so shall not relieve the Recipient of its obligation to
protect the same where circumstances of the disclosure and the
nature of the information or materials otherwise gave the Recipient
reason to know of the confidential nature of such information or
materials.
CONFIDENTIAL DISCLOSURE AGREEMENT (“NDA”)
10. Exclusions: This NDA imposes no obligation upon Recipient
with respect to information that: (a) was in Recipient’s possession
before receipt from Discloser without Recipient’s wrongful act or
breach of any legal obligation; (b) is or becomes a matter of public
knowledge through no fault of Recipient; (c) is rightfully received by
Recipient without a duty of confidentiality from a third party who has
the right to disclose such information ; (d) is disclosed by Discloser
to a third party without a duty of confidentiality on the third party;
(e) is independently developed by Recipient without reference to or
reliance upon Discloser’s Confidential Information; (f) is disclosed
under operation of law, provided that, to the extent allowed by law,
the Recipient promptly notifies and consults with the Discloser
regarding such disclosure and takes all reasonable measures to
minimize the extent of such disclosure or (g) is disclosed by
Recipient with Discloser’s prior written approval.
11. Warranty: Each Discloser warrants that it has the right to
make the disclosures under this NDA. EITHER PARTY MAKES NO
OTHER WARRANTIES, EXPRESS OR IMPLIED, UNDER THIS
NDA. ANY INFORMATION EXCHANGED UNDER THIS NDA IS
PROVIDED “AS IS”.
listed in such applicable laws, regulations and rules unless properly
authorized.
15. This NDA does not create, and in no way implies, a partnership,
joint venture, employment or license between the parties or an
authorization for either party to act as the agent or representative of
the other.
16. If any provision of this NDA is held invalid or unenforceable, that
provision shall be enforced to the maximum extent permissible so as
to affect the intent of the parties. The validity of the remaining
provisions of the NDA shall not be affected.
17. All additions or modifications to this NDA must be made in
writing and must be signed by both parties.
18. This NDA is made under, and shall be construed according to,
the laws of Ireland and the Irish courts shall have exclusive
jurisdiction.
12.
Rights:
No patent, copyright, trademark, or any other
proprietary right is licensed, granted, or otherwise transferred by
this NDA or any disclosure hereunder, except for the right to use
such Confidential Information in accordance with this NDA. This NDA
shall not restrict reassignment of Recipient’s employees.
All
Confidential Information, including permitted copies, shall be
deemed the property of Discloser and must be returned by the
Recipient to the Discloser upon request or upon completion of the
Purpose for which the Confidential Information was disclosed as set
out in Clause 4. This NDA shall be binding upon and inure to the
benefit of the parties’ respective successors and assigns.
13. Miscellaneous: This NDA imposes no obligation on either party
to purchase, sell, license, transfer or otherwise dispose of any
technology, services or products.
14. Both parties shall adhere to all applicable laws, regulations and
rules relating to the export of technical data, and shall not export or
re-export any technical data, any products received from Discloser,
or the direct product of such technical data to any proscribed country
OPENET TELECOM LIMITED
6 BECKETT WAY
PARK WEST BUSINESS PARK
DUBLIN 12
REPUBLIC OF IRELAND
PARTICIPANT
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(Company Name)
BY
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(Authorized Signature)
BY
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(Authorized Signature)
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(Print Name)
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(Print Name)
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(Title)
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(Title)
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(Address)