Non-Disclosure Agreement - Viber Media S.ar.l.
This Agreement (the “Agreement”) is made on the date of accepting this Agreement (“Effective Date”) by and between Viber Media S.àr.l., of 2 Rue du Fosse, L- 1536, Luxembourg, Grand Duchy of Luxembourg (“Disclosing Party”) and the company indicated in the accompanying form (“Receiving Party”). IF YOU DO NOT AGREE TO THE PROVISIONS OF THIS AGREEMENT, OR ARE NOT AUTHORIZED TO AGREE ON BEHALF OF THE RECEIVING PARTY, PLEASE DO NOT ACCEPT IT.
WHEREAS, the Disclosing Party wishes to disclose to the Receiving Party certain Confidential Information (as defined below) for the sole purpose(s) of discussing proposed business terms for the parties’ business relationship in relation to Disclosing Party’s planned features on its mobile application (the “Project”); and
WHEREAS, the Disclosing Party wishes to protect the Confidential Information disclosed by it.
NOW, THEREFORE, in consideration of access to the Confidential Information and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties agree as follows:
1. For the purposes of this Agreement, “Confidential Information” means all information (either oral, written, or digital) provided and/or to be provided to the Receiving Party by the Disclosing Party and/or the Disclosing Party’s Clients, whether disclosed actively or through the provision of access, including but not limited to: (a) any document, data, materials, trade secret, process, know-how, technique, design, drawing, diagram, program, software, invention, and/or work in process; (b) any financial, supplier, administrative, technical, customer, user, employee, investor or business information; (c) information or materials relating to the Disclosing Party, the Disclosing Party’s Clients and/or the Project; and/or (d) any information or materials which the Disclosing Party, its subsidiaries, affiliates and/or Clients are required to keep confidential pursuant to an agreement with a third party.
2. The Receiving Party agrees to treat the Confidential Information as strictly confidential and shall not, directly or indirectly: (a) use the Confidential Information for any purpose other than the Project; (b) copy or modify the Confidential Information without the prior written consent of the Disclosing Party; or (c) distribute or disclose the Confidential Information to any third party other than to the Receiving Party’s employees, directors, agents, employees of affiliated companies, and independent contractors (collectively, “Representatives”) who have a specific need to know the Confidential Information and who are bound by written agreements containing obligations of confidentiality and non-use substantially similar to the terms and conditions under this Agreement, and in no event less restrictive. The Receiving Party agrees not to sell, transfer, lease, or license the Confidential Information of the Disclosing Party in any manner whatsoever.
3. The Receiving Party agrees to notify the Disclosing Party promptly in writing of any breach or threatened breach of this Agreement, such notice to include a detailed description of the circumstances of the breach or threatened breach and the parties involved. The Receiving Party agrees to provide reasonable assistance to the Disclosing Party in the prosecution of any parties who are in violation of this Agreement.
4. The Receiving Party shall not be required to keep confidential any Confidential Information that the Receiving Party can demonstrate by written documentation: (a) is or has entered the public domain through no fault of the Receiving Party or its Representatives; (b) is or was independently developed by or for the Receiving Party without use, directly or indirectly, of the Confidential Information; (c) is or was received by the Receiving Party in good faith from a third party on a non-confidential basis, provided that the source of such Confidential Information was not bound by an obligation of confidentiality with respect to such information; or (d) is approved for release by the prior written authorization of the Disclosing Party.
5. In the event that the Receiving Party or any of its Representatives receive a request or demand to disclose all or part of the Confidential Information pursuant to a court order, operation of law, subpoena, requirement of a governmental authority, or otherwise, the Receiving Party agrees to: (a) promptly notify the Disclosing Party of the terms and surrounding circumstances of such request or demand so that the Disclosing Party and/or the Disclosing Party’s Clients may seek a protective order, or other appropriate relief and/or waive compliance with the provisions of this Agreement; (b) promptly consult with the Disclosing Party on the advisability of taking steps to resist or narrow such request or demand; (c) in the absence of a protective order or other remedy or the receipt of a waiver from the Disclosing Party and only after the Receiving Party’s compliance with (a) and (b) above, minimize the disclosure of the Confidential Information ultimately required to be disclosed to only that Confidential Information which is reasonably necessary to meet the express requirements of the request or demand; and (d) subject to the mutual agreement of the parties concerning costs and expenses, cooperate with the Disclosing Party to obtain an order or other reliable assurance that confidential treatment will be accorded to any Confidential Information ultimately required to be disclosed after the Receiving Party’s compliance with (a) and (b) above.
6. Within ten (10) days after the Receiving Party’s receipt of the Disclosing Party’s written request, the Receiving Party shall return to the Disclosing Party all tangible materials containing or embodying the Confidential Information, and/or at the specific request of the Disclosing Party, destroy all documents (paper, electronic or otherwise) containing or embodying the Confidential Information. Notwithstanding the return and destruction of the Confidential Information, the Receiving Party and its Representatives shall continue to be bound by the terms and conditions of this Agreement.
7. This Agreement shall commence on the Effective Date set forth above and shall continue for a period of two (2) years (the “Term”). The terms and conditions of this Agreement shall apply to Confidential Information disclosed by the Disclosing Party prior to, on and after the Effective Date. The obligations of confidentiality and non-use shall survive the Term of this Agreement for a period of three (3) years from the date of its termination or expiration.
8. The Receiving Party understands and acknowledges that any Clients of the Disclosing Party that are disclosed to the Receiving Party after the execution of this Agreement along with such Clients’ products, designs and business plans, are to be the beneficiaries of the covenants and obligations of this Agreement as if they were original parties to this Agreement. The Receiving Party acknowledges the accrual and succession of such rights to those disclosed Clients as third-party beneficiaries of this Agreement, and that the Disclosing Party would not enter into this Agreement or disclose such of its Clients or their Confidential Information without such assurances and understandings from the Receiving Party. Any Clients of Disclosing Party introduced or made known to the Receiving Party by Disclosing Party may not be contacted directly by the Receiving Party regarding the Project or otherwise without Disclosing Party’s prior written consent.
9. The Receiving Party agrees that the breach or threatened breach of any of the terms or conditions of this Agreement will cause the Disclosing Party and/or the owner of such Confidential Information irreparable injury for which the recovery of money damages would be inadequate. Therefore, the Disclosing Party or such other party shall be entitled to obtain injunctive relief against the breach or threatened breach of this Agreement, in addition to any other remedies the Disclosing Party may have under applicable law and without the necessity of posting a bond, even if otherwise normally required.
10. The Disclosing Party provides the Confidential Information solely on an “as is” basis and without any warranties or representations whatsoever regarding the accuracy, merchantability, completeness, non-infringement, or suitability of its Confidential Information. The Disclosing Party shall not have any liability or responsibility for errors or omissions in, or any business decisions made by Receiving Party in reliance on, any Confidential Information disclosed under this Agreement.
11. Nothing contained in this Agreement shall be construed as: (a) granting, conferring, or implying any rights to the Receiving Party by license or otherwise to the Confidential Information; (b) creating any partnership or joint venture between the parties; or (c) obligating the parties to enter into a business transaction. The Disclosing Party is and shall remain the exclusive owner of all right, title and interest in and to the Confidential Information, and all improvements thereto, including, without limitation, all patents, copyrights, trade secrets, trademarks and other intellectual property inherent therein or appurtenant thereto.
12. Neither party shall assign its rights or obligations arising under this Agreement, in whole or in part, without the prior written consent of the other party.
13. Disclosure or receipt of Confidential Information under this Agreement in no way obligates either party to enter into any business relationship with the other and does not prohibit the other party from entering into relationships of any kind whatsoever with any other party, provided such relationship does not violate the express terms of this Agreement.
14. Any notice required or permitted under this Agreement shall be in writing and shall be deemed given (a) if by hand delivery, upon receipt thereof, (b) if mailed, three (3) days after deposit in international mails, postage prepaid, certified mail, return receipt requested, (c) if by facsimile, upon electronic confirmation thereof, or (d) if by next day delivery service, upon such delivery. All notices shall be addressed to the address set forth above or otherwise provided by the other party.
15. This Agreement sets forth the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous agreements, proposals, understandings and representations, written or oral, between the parties with respect to the subject matter hereof.
16. No change, deletion, modification, amendment, supplement to or waiver of this Agreement shall be binding upon a party hereto unless made in writing and signed by duly authorized representatives of both parties. No delay or failure by either party in exercising or enforcing any of its rights or remedies hereunder, in whole or in part, and no course of dealing or performance with respect thereto, shall constitute a waiver thereof in any other instance. All rights and remedies shall be cumulative and not exclusive of any other rights or remedies.
17. This Agreement shall be governed by, construed and enforced in accordance with the laws of England and Wales, without giving effect to its conflict of laws provisions. The exclusive jurisdiction and venue for all legal actions arising out of the Agreement shall be in the competent courts sitting in London, England and the parties hereby consent to the jurisdiction of such courts. Each party expressly waives any rights it may have to contest the jurisdiction, venue or convenience of any such court sitting in England.
18. In the event that any provision of this Agreement shall for any reason be determined to be void, invalid, illegal or otherwise unenforceable in any respect by any court of competent jurisdiction, then, to the full extent permitted by law: (a) all other provisions hereof will remain in full force and effect and will be liberally construed in order to carry out the intent of the parties hereto as nearly as may be possible; (b) such determination will not affect the remaining provisions of this Agreement; and (c) any court of competent jurisdiction will have the power to reform such provision to the extent necessary for such provision to be enforceable under applicable law.
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