Terms
Mutual Confidentiality and
Non-Disclosure Agreement
Last updated: October 2023
This Mutual Confidentiality and Non-Disclosure Agreement (“Agreement”) is a binding contract between the entity or individual entering into this Agreement (“You or “Your”) and Pax8, Inc., a Delaware corporation (“Pax8”), located at 5500 S. Quebec St., Suite 350, Greenwood Village, CO, 80111, USA. This Agreement was last updated on October 23, 2023.
THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK A BOX INDICATING YOUR ACCEPTANCE. BY CLICKING ON THE BOX INDICATING YOUR ACCEPTANCE YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT FOR THAT ENTITY, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ENTITY, AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT.
1. Scope. Pax8 and You (each a “Party” and together, the “Parties”) desire to disclose certain confidential information in connection with (a) an existing business relationship, or (b) the evaluation or undertaking of a possible business relationship between the Parties. (the “Business Purpose”)
2. Discloser and Recipient. As to any Confidential Information (defined below), the “Discloser” is the Party disclosing this Confidential Information and the “Recipient” is the Party receiving the Confidential Information.
3. Confidential Information. “Confidential Information” includes all information, whether in oral, written, graphic or machine-readable form, or revealed by observation of facilities, equipment or devices, relating to any of the following: ideas (whether currently implemented or not); business plans and strategies; marketing plans and strategies; customer information and pricing; supplier information and pricing; standard operating procedures and operational methods; technology, technical data, calculations, specifications, software, developments, formulae, discoveries, inventions, and improvements; financial results, projections, and pro formas; trade secrets; know-how; or any other information that a reasonable person would deem to be confidential. Confidential Information will not include information that: (a) was already known to Recipient at the time that it was disclosed to Recipient; (b) is or becomes publicly known through no wrongful act of Recipient; (c) is received by Recipient from a third party not affiliated with Discloser and which third party has the right to disseminate the information without restriction on disclosure; (d) is approved for release by written authorization of Discloser; or (e) is independently developed by Recipient without access to, or use of, Discloser Confidential Information. No portion of Confidential Information will be construed as coming within exceptions (a) through (e) solely on the basis that more generalized information embracing such portion of Confidential Information falls within any of the exceptions or on the basis that elements of such portion of the Confidential Information are independently within any of the exceptions.
4. Restrictions on Use of Confidential Information. Except as otherwise expressly permitted in writing by an authorized representative of Discloser, Recipient may not:
a. use the Confidential Information for any purpose other than the Business Purpose; or
b. directly or indirectly disclose Confidential Information to any person or entity other than the Recipient’s directors, members, officers, employees, lenders, agents, principals, financial advisors, financing sources, consultants, attorneys, accountants and other representatives of a Party “Representatives”.
5. Duties of Recipient. Recipient will:
a. hold the Confidential Information in confidence and take all necessary precautions to protect the Confidential Information from disclosure to any third party;
b. treat all Confidential Information with at least the same degree of care as it treats its own Confidential Information, but in no case will the degree of care be less than reasonable care;
c. not disclose or permit the disclosure of any Confidential Information or any information derived therefrom;
d. not copy, create derivative works of, modify or reverse engineer, disassemble, or otherwise attempt to derive the composition or underlying information, structure or ideas, of any Discloser Confidential Information; and
e. promptly notify Discloser upon discovery of any loss or unauthorized disclosure of any Discloser Confidential Information.
6. Ownership. Each Party hereby retains its entire right, title, and interest, including all intellectual property rights, in and to all of its Confidential Information. Any disclosure of such Confidential Information hereunder shall not be construed as an assignment, grant, option, license, or other transfer of any such right, title, or interest whatsoever to Recipient or any of its Representatives.
7. Disclosures Required by Law. Notwithstanding anything herein to the contrary, Recipient will be allowed to disclose Discloser Confidential Information to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body, in which case Recipient will, if permitted by law, notify Discloser of such required disclosure promptly and in writing and cooperate with Discloser in any lawful action to contest or limit the scope of such required disclosure. Recipient shall use at least the same degree (but no less than a reasonable degree) of care and protection to prevent the unauthorized use or disclosure of any Confidential Information as Recipient uses to protect its own confidential, proprietary or trade secret information.
8. Term and Termination. The term of this Agreement shall commence on the Effective Date and shall expire five (5) years from the Effective Date, provided however that:
a. Recipient’s obligations shall survive this Agreement and will expire on the earlier of:
i. notification from the Discloser that the Confidential Information is no longer confidential, or
ii. the Parties’ entry into a separate subsequent agreement that contains confidentiality and non-disclosure provisions that supersede this Agreement as to that Confidential Information.
b. With respect to Confidential Information that constitutes a trade secret under applicable law, such rights and obligations shall survive such expiration or termination until, if ever, such Confidential Information loses its trade secret protection other than due to an act or omission of Recipient or Representatives.
9. No Representations and Warranties. Discloser specifically disclaims and makes no representation or warranty, express or implied, as to the quality, accuracy, completeness, usefulness or reliability of the Confidential Information or any portion thereof. The Parties acknowledge and agree that only the express representations and warranties relating to the quality, accuracy, completeness, usefulness or reliability of the Confidential Information as may be contained in a definitive agreement relating to any potential transaction relating to the Business Purposes shall be binding on the Parties, and then only if and when such an agreement has been duly authorized, executed and delivered by the Parties.
10. Disposal of Confidential Information. At any time during or after the term of this Agreement, at the Discloser’s written request, the Recipient and its Representatives shall, at the Discloser’s discretion, promptly return to the Discloser all copies, whether in written, electronic, or other form or media, of the Discloser’s Confidential Information, or destroy all such copies and certify in writing to the Discloser that such Confidential Information has been destroyed. In addition, the Recipient shall also destroy all copies of any Notes created by the Recipient or its Representatives and certify in writing to the Discloser that such copies have been destroyed. Notwithstanding the foregoing:
a. neither the Recipient nor any of its Representatives shall be required to destroy any electronic copy of Confidential Information that is created pursuant to its or their standard electronic backup and archival procedures and stored until the ordinary course deletion thereof, if personnel whose functions are:
i. not primarily information technology in nature do not have access to such retained copies; and
ii. primarily information technology in nature have access to such copies only as reasonably necessary for the performance of their information technology duties (e.g., for purposes of system recovery); and
b. the Recipient and its Representatives may each retain:
i. one copy of any Confidential Information to the extent required to defend or maintain any litigation relating to this Agreement or the Confidential Information, or to comply with established document retention policies; and
ii. such copies of the Confidential Information to the extent required to comply with requirements of applicable law, regulation, or rule or any requirement or request of any legal, regulatory, governmental, or supervisory authority;
provided, however, that the Recipient and its Representatives shall continue to be bound by the terms and conditions of this Agreement with respect to such retained Confidential Information.
11. Remedies. Due to the unique nature of Confidential Information, there may be no adequate remedy at law for any breach or any unauthorized use or release of any Confidential Information because such breach or unauthorized use or release may allow Recipient or third parties to unfairly compete with Discloser, resulting in irreparable harm to Discloser. Upon any actual or threatened breach, unauthorized use or release, Discloser will be entitled to appropriate equitable relief in addition to whatever remedies Discloser might have at law. Any action brought for such relief may be brought by Discloser upon ex parte application and without notice or posting of any bond.
12. Miscellaneous. No failure, delay, or single or partial exercise of any right under this Agreement by either Party is a waiver of such right. This Agreement may be modified or waived only by a separate writing by the Parties expressly modifying or waiving any provision of this Agreement. Neither the provision of Confidential Information under this Agreement nor the execution of this Agreement binds or obligations either Party to any business relationship, and neither Party is bound or obligated to any such relationship with the other Party until the Parties execute a binding written agreement specifically describing such relationship.
13. Compliance with Law. Each Party shall comply with all applicable laws and regulations regarding the general conduct of business including without limitation all relevant anti-corruption and anti-bribery laws, including the United State Foreign Corrupt Practices Act, U.K. Bribery Act 2010 and the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.
14. Export Restrictions. Each Party agrees to comply with all relevant U.S. and foreign export and import laws that apply to Confidential Information as well as end-user and destination restrictions issued by U.S. and other governments.
15. Attorneys’ Fees. If either Party engages legal counsel to enforce any rights arising out of or relating this Agreement, the prevailing Party shall be entitled to recover reasonable attorney’s fees and costs.
16. Governing Law. This Agreement is governed by the laws of the State of Colorado without regard to conflict of law principles.