MUTUAL NONDISCLOSURE AND EVALUATION AGREEMENT
MUTUAL NONDISCLOSURE AND EVALUATION AGREEMENT
The terms of this Mutual Nondisclosure and Evaluation Agreement (the “License Terms”) apply to your use of a Product if you have licensed or are sampling the Product from Ecopia Tech Corporation (“Ecopia”) directly, or from Woolpert Australia Pty Ltd (“Woolpert”), pursuant to your acceptance of the click form powered by Woolpert. These License Terms are entered into by Woolpert, whose principal place of business is with its offices at Suite 3, Level 23, 6 O’Connell St, Sydney, NSW, 2000, Australia, and you (the “End User” or “Licensee”). These License Terms contain the general terms relating to your access to and use of the Product.
The parties wish to explore and enter into discussions relating to business opportunities of mutual interest (the “Opportunities”). In the course of such discussions, each party may disclose to the other party certain nonpublic technical and business information which the disclosing party wants the receiving party to treat as confidential, and Ecopia or Woolpert may grant access to, and use of, sample data sets or product samples (the “Ecopia Sample Data”) for evaluation purposes, which will be governed by this Agreement.
IT IS IMPORTANT THAT YOU READ CAREFULLY AND UNDERSTAND THIS AGREEMENT. BY CHECKING THE BOX NEXT TO “I AGREE TO TERMS AND CONDITIONS” LOCATED ON THE MUTUAL NONDISCLOSURE AND EVALUATION AGREEMENT FORM, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL THE TERMS OF THIS AGREEMENT AND DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, PLEASE DO NOT CLICK THE “SUBMIT” BUTTON. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE PROPRIETARY INFORMATION.
1.1. Confidential Information. “Confidential Information” means any information, disclosed by either party (the “Disclosing Party”) to the other party (“Receiving Party”), before or after the execution of this Agreement, in writing, orally, or by inspection of objects (including without limitation documents, prototypes, data samples), which is (i) designated by the Disclosing Party as being confidential, (ii) disclosed in a manner that a reasonable person would understand the confidentiality of the information disclosed, or (iii) of a nature that a reasonable person would understand the confidentiality of such information. The Ecopia Sample Data, any Test Analytics, any knowledge, or know-how gained by Licensee from evaluating the Ecopia Sample Data, and any non-public information related to the Ecopia Sample Data provided to Licensee by Ecopia, are confidential information belonging to Ecopia. Examples of Confidential Information includes information relating to Disclosing Party’s current or future services or products, information relating to Disclosing Party’s technologies and processes, nonpublic marketing or promotional materials describing any Disclosing Party services or products and Disclosing Party’s business policies or practices.
1.2. Exceptions. Confidential Information does not include any information which: (i) was publicly known and generally available in the public domain at the time of its disclosure by Disclosing Party to Receiving Party; (ii) becomes publicly known and generally available in the public domain, after the time of disclosure by the Disclosing Party to the Receiving Party, through no action or inaction of the Receiving Party; (iii) was already known by or in the possession of the Receiving Party before being disclosed by the Disclosing Party to Receiving Party, as established by documentary evidence existing prior to the time of disclosure; (iv) is or becomes available to the Receiving Party from a third party, provided that such third party is not bound by confidentiality obligations that prohibits the disclosure of such information; or (v) is independently developed or acquired by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information. Only the specific information that meets one of the aforementioned exclusions will be excluded and not any other information that happens to appear in proximity to such excluded portion.
1.3. Degree of Care. Receiving Party shall protect the confidentiality of Disclosing Party’s Confidential Information using at least the same degree of care as Receiving Party uses to protect its own Confidential Information, but in any event with no less than a commercially reasonable degree of care.
2. EVALUATION PERIOD FOR ECOPIA SAMPLE DATA.
The Evaluation Period is ninety (90) days. The Evaluation Period commences when Licensee downloads or accesses the Ecopia Sample Data, whichever is earlier.
3. LICENSE GRANT FOR ECOPIA SAMPLE DATA.
Conditional upon Licensee’s compliance with this Agreement, Ecopia grants Licensee a temporary, royalty free, non-exclusive, non-transferable, non-sublicensable, revocable, limited license to download, store, access and use the Ecopia Sample Data during the Evaluation Period solely for the purpose of internally evaluating the Ecopia Sample Data.
4. LICENSE RESTRICTIONS.
Receiving Party shall not use any Disclosing Party’s Confidential Information for any purpose except to internally valuate and engage in discussions concerning the Opportunities. Receiving Party shall not reverse engineer, disassemble or decompile any prototypes, software or other tangible objects that are, or that embodies, the Disclosing Party’s Confidential Information. Except for the purpose of discussing the Opportunities, the Receiving Party shall not make any copies of the Confidential Information of the Disclosing Party without Disclosing Party’s prior written consent. The Receiving Party shall reproduce any proprietary rights notices on or in any permitted copies, in the same manner in which such notices were set forth in or on the original. Without limiting the generality of the foregoing sentence, Licensee may not, and may not permit any other person or entity to: (a) disclose, distribute, display, sublicense, transfer, transmit or otherwise make available the Ecopia Sample Data to any third party; (b) access, use or disclose the Ecopia Sample Data for any commercial purpose; (c) create any derivatives of the Ecopia Sample Data (other than Test Analytics, described below in Section 2.3); (d) access or use the Ecopia Sample Data to provide products or services to any third party; (e) reverse engineer the Ecopia Sample Data or otherwise attempt to derive the algorithms or technologies used in the creation of the Ecopia Sample Data; (f) use the Ecopia Sample Data to improve the accuracy of any other dataset; (g) access or use the Ecopia Sample Data for the purpose of developing, testing, or validating machine learning technologies; (h) use, or disclose to any third party, any knowledge or know-how gained from evaluating the Ecopia Sample Data.
5. TEST ANALYTICS.
If Licensee creates any reports or generates any performance analytics with respect to the Ecopia Sample Data (such reports or analytics the “Test Analytics”), such Test Analytics will be treated as Confidential Information (described below in Section 1) and the use and disclosure of such Test Analytics will be restricted in accordance with Article 1. If Licensee shares any Test Analytics with Ecopia, Ecopia may use such Test Analytics for any purpose without any restriction or obligations to Licensee.
Licensee is responsible for any acts or omissions of any person or entity that accesses or uses any of the Ecopia Sample Data through Licensee, including Licensee’s employees and agents.
Ecopia owns and will retain all right, title, and interest, including all intellectual property rights, in and to the Ecopia Sample Data. Ecopia reserves all rights not expressly granted to Licensee under Section 3 above.
8.1 Required Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so by order or regulation of a government authority or a court of competent jurisdiction. The Receiving Party shall not make any such disclosure without first giving adequate prior notice of such disclosure to the Disclosing Party, to the extent permitted by applicable law, to permit the Disclosing Party to intervene to oppose the disclosure or to request protective orders or other confidential treatment. If disclosure is so required, the Receiving Party shall disclose only that portion of the Confidential Information that is required to be disclosed and use reasonable efforts to obtain assurances that the Confidential Information will be treated confidentially.
8.2 Disclosure Restrictions. Receiving Party shall not disclose any of Disclosing Party’s Confidential Information to or permit Disclosing Party’s Confidential Information to be accessed by, any persons except employees, agents, or professional advisers (such as lawyers or accountants) of the Receiving Party who are required to have the information to evaluate or engage in discussions concerning the Opportunities. Before providing Disclosing Party’s Confidential Information to any of its employees, agents, or professional advisers, Receiving Party shall (a) inform such employee, agent, or profession adviser of the confidential nature of Disclosing Party’s Confidential Information and (b) ensure that such employee, agent, or professional adviser have been bound by confidentiality obligations no less restrictive than those provided in this Agreement. Receiving Party will be responsible for any unauthorized use or disclosure of Disclosing Party’s Confidential Information of by any of Receiving Party’s employees, agents, or professional advisers.
9. NO OBLIGATION.
Nothing in this Agreement obligates either party to proceed with any transaction between them. Each party reserves the right, in its sole discretion, to terminate the discussions concerning the Opportunities, and to cease any further disclosures, communications or other activities upon written notice to the other party.
All Confidential Information is provided “as is”, and Disclosing Party disclaims all representations, warranties, obligations, and liabilities, whether express, implied, or statutory, to the maximum extent permitted by law. Disclosing Party will not under any circumstances be liable for any direct, indirect, special, incidental, consequential, or other loss, injury or damage caused by use of the Disclosing Party’s Confidential Information, even if specifically advised of the possibility of such loss, injury, or damage.
11. DESTRUCTION OF MATERIALS.
No later than five business days after termination of this Agreement, or no later than five business days after receiving Disclosing Party’s request to destroy such Confidential Information, whichever is earlier, Receiving Party shall (i) return, destroy or delete all Disclosing Party’s Confidential Information, all related or derived data, and all documents or other tangible objects containing or representing Disclosing Party’s Confidential Information or related or derived data, in Receiving Party’s possession or control, and (ii) certify in writing to Disclosing Party that it has complied with the foregoing. Licensee shall promptly (a) cease all use of the Ecopia Sample Data, Test Analytics, and Confidential Information, (b) permanently delete or destroy any Data or Test Analytics in Licensee’s possession or control. Notwithstanding the foregoing sentence, the Receiving Party will not be obligated to erase Confidential Information that is contained in an archived computer system backup that was made in accordance with Receiving Party’s security or disaster recovery procedures, and Receiving Party may retain one copy of Disclosing Party’s Confidential Information to the extent required to ensure compliance with law and its bona fide insurance or audit obligations; provided, however, that any such retained Confidential Information will be subject to the terms of this Agreement and that such retained Confidential Information may only be used for the purpose for which it was retained.
12. NO LICENSE.
This Agreement does not grant Receiving Party any rights in or to the Confidential Information of the Disclosing Party except as expressly set forth herein. Nothing in this Agreement is intended to grant any rights to the Receiving Party any patent, mark, work right, or copyright, trade secret or other intellectual property right of the Disclosing Party. Disclosing Party’s Confidential Information is and will remain sole property of the Disclosing Party.
13. TERM AND TERMINATION.
This Agreement will remain in effect for a period of two years after the Effective Date unless this Agreement is earlier terminated by either party; this Agreement may be terminated by either party giving to the other party not less than 10 days’ prior written notice. Notwithstanding anything to the contrary in this Agreement, and notwithstanding the return or destruction of the Disclosing Party’s Confidential Information, each party’s rights and obligations under this Agreement will survive termination of the Agreement and will continue until the earlier of: (i) such time as all Confidential Information of the Disclosing Party disclosed under this Agreement becomes publicly known, or is made publicly available, through no action or inaction of the Receiving Party, or (ii) five years after the date of termination of this Agreement; or, in the case of Confidential Information designated by the Disclosing Party as trade secret, in perpetuity.
Receiving Party acknowledges and agrees that any violation or threatened violation of this Agreement will cause irreparable injury to the Disclosing Party, entitling the Disclosing Party to seek injunctive relief in addition to all other legal remedies.
This Agreement represents the entire agreement between the parties and supersedes any and all prior understanding, agreements, or representations between the parties relating to the subject matter of this Agreement. This Agreement is governed by the laws of Ontario, Canada, without giving effect to any conflicts of law principles. Legal proceedings related to this Agreement may only be brought in the courts of Ontario; however, either party may seek temporary or permanent injunction or other equitable remedy or relief in any court having subject matter jurisdiction anywhere in the world. Neither party may assign this Agreement to any third party without the prior written consent of the other party. Nothing in this Agreement is intended to confer any rights or remedies on any party that is not a party to this Agreement. No modification of this Agreement or waiver of the terms and conditions hereof will be binding upon the parties unless approved in writing by each of the parties. The failure of either party to enforce at any time any provision of this Agreement will not constitute a present or future waiver of such provision, nor in any way affect the ability of either party to enforce each and every such provision thereafter. If any provision of this Agreement is held invalid or unenforceable at law, such provision will be deemed stricken from this Agreement and the remainder of this Agreement will continue in effect and be valid and enforceable to the fullest extent permitted by law. This Agreement may be executed in counterparts with the same force and effect as if each of the signatories had executed the same instrument.