NON DISCLOSURE AGREEMENT
This Agreement is made affective as of Tuesday, 06 November 2001(“date”) by and between ______ located at _____________________ and Whiptail Interactive, located at Cami Mateu 24, Marxuquera. Gandia. 46728. Vakebcua Esoaba,(each individually a “Party” and collectively the “Parties”)
WITNESSETH:
Whereas, in connection with exploring and evaluating a possible transaction (the “Transaction”), related to the product(s), each of the parties wishes to disclose th the other certain of its Confidential Information (as defined below): and
Whereas, the parties wish to provide the terms and conditions upon which such confidential information will be disclosed by each party and received and protected by the other Party hereunder:
NOW, THEREFORE, THE Parties agree as follows.
!.) “Confidential information” means, with respect to each Party, information, in whatever form disclosed by that Party, which relates to that Party or to the Transaction, including without limitation business and technical information and data, which although not directly related to the Transaction, is nevertheless disclosed in written or other tangible form and bears an appropriate legend indicating its confidentiality at the time of disclosure.
2.) Each Party shall use the Confidential Information of the other Party only for the purpose of evaluating the Transaction, and shall protect such Confidential Information from disclosure to third parties, using the same degree of care used to protect its own proprietary information of like importance, but in any case using no less than a reasonable degree of care Each Party may disclose the other Party’s Confidential Information to its officers, employees, advisors and agents who have a need to know, for the purposes of evaluating the Transaction, providing such officers employees advisors and agents are bound to protect the received Confidential Information from unauthorized use and disclosure and are made aware of the terms of this agreement.
3.) The restrictions of this Agreement on use and disclosure of Confidential Information shall not apply to information that:
(a) is in the possession or control of the receiving Party at the time of its disclosure hereunder;
(b) is or becomes publicly known, through no wrongful act of the receiving Party;
(c) is received by the Party from a third party fee to disclose it without obligation to the disclosing Party;
(d) is developed independently by the receiving Party; or
(e) is lawfully required to be disclosed to any governmental agency or is otherwise required to be disclosed by law; provided however, that before making such disclosure, the receiving party shall give the disclosing Party an adequate opportunity to interpose an objection and or take to assure confidential handing of such information.
4.) Confidential Information disclosed under this Agreement (including information stored in computer or held in electronic storage media) shall be and remain the property of the Party disclosing hereunder. Each Party shall keep a record of the location of all tangible Confidential Information of the other Party in its possession and upon the written request of the other Party at any time to destroy such Confidential Information, shall promptly destroy an such Confidential information and upon such destruction, certify in writing to the disclosing Party that all the disclosing Party’s Confidential Information has been destroyed. No licenses or rights under any patent, copyright or trademark are granted or to be implied by this Agreement.
5.) Without the prior written consent of the other Party, neither Party will disclose to any third party any information regarding the Transaction, including without limitation the fact that discussions are occurring concerning the Transaction, any of the terms or conditions relating to the Transaction being discussed by the Parties, or the existence of this Agreement.
6.) The Parties acknowledge that the Confidential Information belonging to each party is a unique and valuable asset of such party, and that disclosure in breach of this Agreement would result in irreparable injury to such Party which could not be remedied by monetary damages. Therefore, the Parties agree that in the event of a breach of threatened breach of the terms of this Agreement, the disclosing Party shall be entitled to an injunction prohibiting any such breach, or to specific performance or other equitable remedy available to the disclosing Party. Any such equitable relief shall be in addition to and not in lieu of any other appropriate relief at law to which the Party may be entitled.
7.) Although each Party has used reasonable efforts to include in the Confidential Information enclosed to the other materials pertinent to the other Party’s evaluation of the Transaction neither Party shall have any liability or responsibility for errors or omissions in, or any business decisions made by the other Party in reliance on, any Confidential Information disclosed under this Agreement.
8.) This Agreement shall become effective on the Effective Date and shall automatically expire 2 years thereafter. Notwithstanding Such expiration, all obligations hereunder shall survive with respect to disclosure of Confidential Information.
9.) The term “affiliate” means any person or entity controlling, controlled by or under common control with a Party.
10.) This Agreement:
(a) is the complete agreement of the Parties concerning the subject matter hereof and supersedes any and all prior agreements, understandings or discussions with respect to the subject matter hereof.
(b) shall not be construed to create any obligation on the part of either Party to retain the services or to compensate the other Party in any manner, except as may be set forth by a separate written agreement duly executed and delivered by the Parties;
(c) may not be amended or in any manner modified except in writing signed by the Parties;
(d) Shall be governed by Spanish law and the parties submit to the non-exclusive jurisdiction of the Spanish Courts. If any provision of this Agreement is found to be unenforceable, the remainder shall be deemed modified to the limited extent required to permit its enforcement in a manner most closely representing the intention of the Parties as expressed herein, This Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which shall constitute the same agreement.
IN WITNESS WHEREOF, each of the Parties here to has caused the Agreement to be executed by its duly authorized representative
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