Mail & Deploy NON-DISCLOSURE AGREEMENT
Last revised: July 2021
IMPORTANT FOR YOU AS A Qlik® PARTNER: PLEASE READ THIS TERMS CAREFULLY AND AGREE TO THEM IN ORDER TO GET A Mail & Deploy TEST VERSION.
THIS AGREEMENT (“the Agreement”) is entered into by and between:
1. MaD Reporting GmbH, incorporated in Austria (registration number FN 557097 k) having its registered office at Kollergasse 6/1, 1030 Vienna, hereinafter referred to „MaD Reporting“ or “the Discloser”; and
2. the other party identified above, including its directly or indirectly wholly-owned subsidiaries, hereinafter referred to “the Recipient”;
WHEREAS: The Discloser and Recipient hereto desire to participate in early discussions regarding entering into a future partnership or business collaboration for the purpose of reselling Mail & Deploy, the Reporting Software of MaD Reporting, in the home market of the Recipient.
Throughout the aforementioned discussions, the Discloser may share proprietary information or Confidential Information with the Recipient subject to the terms and covenants set forth below.
NOW IT IS AGREED AS FOLLOWS:
1. Confidential Information
1.1 For the purposes of this Agreement, Confidential Information means any data or proprietary information of the Discloser that is not generally known to the public or has not yet been revealed, whether in tangible or intangible form, whenever and however disclosed, including, but not limited to:
(i) any scientific or technical information, invention, design, process, procedure, formula, improvement, technology or method;
(ii) any concepts, samples, reports, data, know-how, works-in-progress, designs, drawings, photographs, development tools, specifications, software programs, source code, object code, flow charts, and databases;
(iii) any marketing strategies, plans, financial information, or projections, operations, sales estimates, business plans and performance results relating to the Discloser’s past, present or future business activities, or those of its affiliates, subsidiaries and affiliated companies;
(iv) trade secrets; plans for products or services, and customer or supplier lists;
(v) any other information that should reasonably be recognized as Confidential Information by the Discloser.
1.2 The Discloser and the Recipient agree hereby that Confidential Information needs not to be novel, unique, patentable, copyrightable or constitutes a trade secret in order to be designated Confidential Information and therefore protected.
1.3 Confidential Information shall be identified either by marking it, in the case of written materials, or, in the case of information that is disclosed orally or written materials that are not marked, by notifying the Recipient of the confidential nature of the information. Such notification shall be done orally, by e-mail or written correspondence, or via other appropriate means of communication.
1.4 The Recipient hereby acknowledges that the Confidential Information proprietary of the Discloser has been developed and obtained through great efforts and shall be regarded and kept as Confidential Information.
1.5 Notwithstanding the aforementioned Confidential Information shall exclude information that:
(i) is already in the public domain at the time of disclosure by the Discloser to the Recipient or thereafter enters the public domain without any breach of the terms of this Agreement;
(ii) was already known by the Recipient before the moment of disclosure (under the evidence of reasonable proof or written record of such disclosure);
(iii) is subsequently communicated to the Recipient without any obligation of confidence from a third party who is in lawful possession thereof and under no obligation of confidence to the Discloser;
(iv) becomes publicly available by other means than a breach of the confidentiality obligations by the Recipient (not through fault or failure to act by the Recipient);
(v) is or has been developed independently by employees, consultants or agents of the Recipient (proved by reasonable means)without violation of the terms of this Agreement or reference or access to any Confidential Information pertaining to the Discloser.
2. Purpose of the Disclosure of Confidential Information
The Discloser and Recipient will enter into discussions of a possible partnership or business collaboration for the purpose of reselling Mail & Deploy, the Reporting Software of MaD Reporting, in the market.
3. Undertakings of the Recipient
3.1 In the context of discussions, preparations or negotiations, MaD Reporting may disclose Confidential Information to the Recipient. The Recipient agrees to use the Confidential Information solely in connection with purposes contemplated in this Agreement and not to use it for any other purpose or without the prior written consent of MaD Reporting.
3.2 The Recipient will not disclose and will keep confidential the information received, except to its employees, representatives or agents who need to have access to the Confidential Information for the purpose of carrying out their duties in connection with the permitted purposes specified in clause 2.
The Recipient will inform them about the confidential quality of the information provided and will ensure that their agreement is obtained to keep it confidential on the same terms as set forth in this Agreement.
Hence the Recipient will be responsible for ensuring that the obligations of confidentiality and non-use contained herein will be strictly observed and will assume full liability for the acts or omissions made for its personnel representatives or agents.
3.3 The Recipient will use the Confidential Information exclusively for the permitted purpose stated in clause 2 and not use the information for its own purposes or benefit.
3.4 The Recipient will not disclose any Confidential Information received to any third parties, except as otherwise provided for herein.
3.5 The Recipient shall treat all Confidential Information with the same degree of care as it accords to its own Confidential Information.
3.6 All Confidential Information disclosed under this Agreement shall be and remain under the property of MaD Reporting and nothing contained in this Agreement shall be construed as granting or conferring any rights to such Confidential Information on the Recipient.
3.7 Principally, nothing in this Agreement shall be deemed to grant to the Recipient a license expressly or by implication under any patent, copyright or other intellectual property rights. The Recipient hereby acknowledges and confirms that all the existing and future intellectual property rights related to the Confidential Information are exclusive titles of MaD Reporting. For the sake of clarity based in good faith, the Recipient will not apply for or obtain any intellectual property protection in respect of the Confidential Information received. Likewise, any modifications and improvements thereof by the Recipient shall be the sole property of MaD Reporting.
3.8 The Recipient shall promptly return or destroy all copies (in whatever form reproduced or stored), including all notes and derivatives of the Confidential Information disclosed under this Agreement, upon the earlier of
(i) the completion or termination of the dealings contemplated in this Agreement;
(ii) or the termination of this Agreement;
(iii) or at the time the Discloser may request it to the Recipient.
3.9 Notwithstanding the foregoing, the Recipient may retain such of its documents as required to comply with mandatory law, provided that such Confidentiality Information or copies thereof shall be subject to an indefinite confidentiality obligation.
3.10 In the event that the Recipient is asked to communicate the Confidential Information to any judicial, administrative, regulatory authority or similar or obliged to reveal such information by mandatory law, it shall notify promptly the Discloser of the terms of such disclosure and will collaborate to the extent practicable with the Discloser in order to comply with the order and preserve the confidentiality of the Confidential Information.
3.11 The Recipient agrees that the Discloser will suffer irreparable damage if its Confidential Information is made public, released to a third party, or otherwise disclosed in breach of this Agreement and that the Discloser shall be entitled to obtain injunctive relief against a threatened breach or continuation of any such a breach.
3.12 The Recipient shall immediately notify upon becoming aware of any breach of confidence by anybody to whom it has disclosed the Confidential Information and give all necessary assistance in connection with any steps which the Discloser may wish to take prevent, stop or obtain compensation for such a breach or threatened breach.
3.13 The Confidential Information subject to this Agreement is made available „as such“ and no warranties of any kind are granted or implied with respect to the quality of such information including but not limited to, its applicability for any purpose, non-infringement of third party rights, accuracy, completeness or correctness. Further, the Discloser shall not have any liability to the Recipient resulting from any use of the Confidential Information.
3.14 The Discloser is not under any obligation under this Agreement to disclose any Confidential Information it chooses not to disclose.
3.15 Nothing in this Agreement obligates either party to disclose Confidential Information, to restrict either party’s use or disclosure of its own Confidential Information, to proceed with any transaction between them, or shall be construed to constitute an agency, partnership, joint venture, or other similar relationship between the Discloser and Recipient.
4.1 Duration and Termination
4.1.1 This Agreement shall remain in effect for a term of three (3) years. Notwithstanding the foregoing, the Recipient’s duty to hold in confidence Confidential Information that was disclosed during the term shall remain in effect indefinitely, save otherwise agreed.
4.1.2 If the Discloser and Recipient succeed in entering into a partnership under any other kind of enabling partner agreement (EPA) referred to in clause 2, the non-disclosure provisions of the EPA shall supplement this Agreement. In the event that non-disclosure provisions are not provided for the said private agreements in equal terms as stated herein, this Agreement shall remain in force until the end of the collaboration undertaken or after its termination.
4.2 Applicable Law and Jurisdiction
This Agreement shall be construed and interpreted by the laws of Austria. The court of Vienna shall have jurisdiction.
If any provisions of this Agreement are invalid or unenforceable, the validity of the remaining provisions shall not be affected. The invalid or unenforceable provision shall be replaced by a valid and enforceable provision that will meet the purpose of the invalid or unenforceable provision as closely as possible.
4.4 Subsequent Agreements
Ancillary agreements, amendments or additions thereto shall be made in writing.
Any notices or communications required may be delivered by hand or e-mail, mailed by registered mail to the address of the Recipient/Discloser as indicated above. Any subsequent modification of addresses should be reasonably communicated in advance to the effect of this Agreement.
Both parties acknowledge that they have read this Agreement, understand it and agree to be bound by its terms and further agree that this Agreement is the complete and exclusive statement of the agreement between the parties with respect to the subject matter hereof, which supersedes all proposals, and all other communications, regardless of the form thereof, between the parties relating to the subject matter of this Agreement.