Mutual Nondisclosure Agreement
This Mutual Nondisclosure Agreement (“Agreement”) is agreed upon by Tier Two Consulting, LLC, an Oregon corporation doing business as Tier Two Consulting, and the below named client (“Client”) under the following terms and conditions:
1. Acknowledgment; Definition of Confidential Information
Each party acknowledges that it may be exposed to confidential and proprietary information of the other party (“Confidential Information”). As used in this Agreement, “Confidential Information” means any information disclosed by or relating to either party or their suppliers or customers that is not generally known, including, without limitation, trade secrets, know-how, and information pertaining to any technology, products, services, customers, business plans, marketing activities and finances of either party or their suppliers or customers. Confidential Information may be contained in tangible materials, such as drawings, models, documents, reports, compilations and computer programs, or may be unwritten information. Confidential Information includes, without limitation, (a) information disclosed in documents, models or other media; (b) information disclosed orally; (c) information that a party observes during visits to the other party’s facilities; (d) information that a party learns from attending, viewing, hearing (or otherwise experiencing) any presentation by the other party; (e) information that a party may derive from Confidential Information disclosed by the other party; (f) analyses, compilations, studies or other information or documents that are prepared by a party that contain or reflect or are generated from information disclosed by the other party; (g) the fact that discussions are or may be taking place between representatives of the parties; and (h) information pertaining to suppliers or customers of the parties.
2. Covenant Not to Disclose; Restriction on Use
Each party receiving Confidential Information from the other party agrees that, for a period of 3 years from the receipt of Confidential Information from the other party, it shall not disclose such Confidential Information to any person or entity, except to its own employees having a “need to know” (and who are themselves bound by similar nondisclosure restrictions), and to such other recipients as the disclosing party may approve in writing; provided, that all such recipients shall have first executed a confidentiality agreement in a form acceptable to the owner of such Confidential Information. The Confidential Information is made available solely for the purpose of conducting and/or receiving IT support and services. Neither party will use or commercialize any Confidential Information of the other party for any other purpose without the prior written consent of the other party. Neither party will use any Confidential Information of the other party to design, develop, provide or market any product or service that would compete with any product or service of the other party. Neither party will reverse engineer, decompile or disassemble any computer program included in the Confidential Information of the other party.
3. Duty of Care
Each party shall use at least the same degree of care in safeguarding the other party’s Confidential Information to avoid use, disclosure, publication, or dissemination as it uses in safeguarding its own Confidential Information, but in no event less than its best commercial efforts.
4. Proprietary Rights Legend
Neither party shall alter or remove from any Confidential Information of the other party any proprietary rights legend, copyright notice, trademark or trade secret legend, or any other mark identifying the material as Confidential Information.
5. Ownership
All Confidential Information remains the property of the respective party and/or its licensors. It is agreed that no license under any invention, patent, copyright, trade secret, or other proprietary right is granted, either directly or indirectly, by this Agreement or by any disclosure of Confidential Information.
6. Termination of Disclosures
Either party may terminate disclosures of Confidential Information pursuant to this Agreement upon written notice to the other party. Each party agrees that it will within ten (10) days of such written notification return or destroy all documents and tangible items in its possession which contain any part of the Confidential Information and provide a certificate of destruction if such Confidential
The information contained in this document and any files transmitted with it are confidential and intended solely for the use
of the individual or entity to whom they are addressed and remains the property of Tier Two Consulting, LLC © 2019
Information is destroyed. Notwithstanding any such termination, this Agreement shall survive and continue to bind the parties with respect to any Confidential Information exchanged prior to the date of notice of termination of disclosure.
7. Exceptions to Confidentiality Obligations
No obligation of confidentiality applies to any specific Confidential Information that the recipient can prove: (a) is, or becomes, publicly available through no fault or breach on the part of the recipient, but only from such date as the information becomes so available; (b) was rightfully in the recipient’s possession (as shown by written records) without obligation of confidentiality prior to receipt from the other party; (c) is legitimately disclosed to the recipient by a third party who has the right to disclose it; (d) is independently developed by the recipient without use, directly or indirectly, of the Confidential Information; or (e) is required by law to be disclosed, provided that written notice is delivered to the owner of the Confidential Information prior to any such disclosure.
8. Disclaimer
All Confidential Information is provided “AS IS,” “WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OF IMPLIED.” Neither party represents or warrants that it will release any product related to the Confidential Information. Either party may change or cancel its plans at any time. Disclosure of Confidential Information does not constitute any representation, warranty, or assurance with respect to non-infringement of patents or other third party proprietary rights.
9. Injunctive Relief
Each party acknowledges that the violation by it of the restrictions imposed hereunder would cause irreparable harm to the owner of such Confidential Information and that remedies at law would be inadequate to redress any actual or threatened violation of this Agreement. Each party agrees that, in addition to other relief, this Agreement may be enforced by injunctive relief.
10. Choice of Law
This Agreement is governed by, and construed in accordance with, the laws of the State of Oregon as though made and to be fully performed in that State.
11. Export Restrictions Compliance
Both parties certify that no portion of the Confidential Information will be exported or transferred, whether
directly or indirectly, to anyone outside the United States without first complying strictly and fully with all export controls that may be imposed on the Confidential Information by the United States government or any country or organization of nations within whose jurisdiction either party operates or does business.
12. General Provisions
This Agreement constitutes the entire agreement between the parties and supersedes all written or oral communications. This Agreement may be amended only in writing. This Agreement may not be assigned without the other party’s prior written consent; provided, however, that this Agreement may be transferred to a subsidiary of either party or in connection with a merger, consolidation, or sale of all or substantially all of such party’s assets. Waiver of any provision in one instance shall not preclude enforcement on future occasions. Any award of relief to the owner of Confidential Information in an action for breach of confidentiality shall include recovery of such owner’s costs and expenses of enforcement (including reasonable attorneys’ fees and expenses).