Sheru SaaS NDA
Updated at 2022-05-18
1. Definitions.
a. “Confidential Information” shall mean any and all information regarding the Disclosing Party or any of its affiliates, including but not limited to any product, specification or other technical information, manufacturing or other process information, financial information, banking information, internal financial reports, customer information, general business information, software source codes, software products, other documentation or information, received or obtained before, on or after the date hereof, whether or not marked or designated as “Confidential,” “Proprietary” or the like, in any form, whether written, oral or otherwise, including electronic or optical data storage and retrieval mechanisms, and all forms of communication. “Confidential Information” shall include, but not be limited to, information of the Disclosing Party disclosed or observed in connection with physical demonstrations, in-person conversations or telephone conversations, and other means of information transfer. “Confidential Information” shall include all of the foregoing, regardless of whether any such information is protected by applicable trade secret or similar laws, and any analyses, codes, compilations, reports, memoranda, notes or studies with respect to such information, prepared by or on behalf of the Recipient Party or its Representatives.
b. “Representatives” means any directors, partners, officers, employees, agents, independent contractors, representatives, persons or advisors of a party to this Agreement, or any affiliate thereof, with affiliate including any entity controlling, controlled by, or under direct or indirect common control with such party.
2. Upon the transmission, disclosure of the Confidential Information by the Disclosing Party, and observation or receipt by the Recipient party hereto:
a. The Recipient Party shall be forthwith bound to maintain the confidentiality of the Confidential Information;
b. The Recipient Party will not disclose or release the Confidential Information to any third party, except with the Disclosing Party’s prior written authorization and consent, and except to the Recipient Party’s Representatives whose duties include evaluating and carrying out the business negotiations, and then only if those Representatives are subject to a legally enforceable obligation to treat and maintain the Confidential Information according to the terms of this Agreement;
c. The Recipient Party will be responsible for ensuring that its Representatives shall at all times maintain the confidentiality of the Confidential Information and that the Representatives strictly comply with all the provisions of this Agreement as if this Agreement was executed with the Representatives themselves. Notwithstanding the above, the Recipient Party shall be responsible for any disclosure of Confidential Information by its Representatives in violation of this Agreement; and
d. Except with the Disclosing Party’s prior written authorization and consent, the Recipient Party will not use any Confidential Information of the Disclosing Party for its own benefit or for the benefit of others, in any manner whatsoever, other than to evaluate and carry out the terms of the business negotiations.
e. Except with the Disclosing Party’s prior written authorization and consent, the Recipient Party will not analyse samples, codes and/or material received from Disclosing Party or to have them analysed by a third party.
3. Subject to the provisions of this Agreement, any Confidential Information given or received under the terms of this Agreement shall be considered to be the sole property, proprietary information and/or trade secret of the Disclosing Party.
4. This Agreement shall not apply to any Confidential Information which is described in subparagraphs a. through e. below:
a. The Confidential Information is or becomes available to the general public otherwise than through any act of the Recipient Party constituting a breach of this Agreement Recipient Party, bound by a confidentiality agreement with, or other legal or fiduciary or other obligation of secrecy or confidentiality to, the Disclosing Party or another party with respect to such information;
b. The Confidential Information is approved in writing for release by the Disclosing Party; or
c. The Recipient Party is obligated to disclose the Confidential Information under an order of a court of competent jurisdiction, or pursuant to applicable law or regulation, provided that the Recipient Party first gives the Disclosing Party thirty (30) days’ notice of the Recipient Party’s obligation under the court order, law or regulation, and the Disclosing Party shall be given an opportunity to oppose any such disclosure. In the event the court order, law or regulation does not allow for thirty (30) days’ notice, the Recipient Party shall give the Disclosing Party as much notice as may be reasonably practical. If disclosure is required despite efforts to prevent it, the Recipient Party shall disclose only that portion of the Confidential Information which, in the opinion of its counsel, is required by law to be disclosed.
5. Upon the termination of this Agreement, or earlier at the written request of the Disclosing Party, the Recipient Party shall return to the Disclosing Party all documents, records, codes, notes, computer media, and any other evidence of Confidential Information provided to the Recipient Party by the Disclosing Party, or observed by the Recipient Party, or otherwise in its possession or control, and which is in any tangible form, including all copies thereof. At the same time, the Recipient Party shall also destroy any documents or other materials created by the Recipient Party that contain any reference to any Confidential Information which in their own right could be viewed as confidential, and the Recipient Party shall certify such destruction in writing to the Disclosing Party within fifteen (15) days of its completion.
6. The Recipient Party hereby agrees and confirms to the following:-
a) That the Disclosing Party does not make any express or implied representation or warranty as to the accuracy or completeness of any Confidential Information;
b) To assume full responsibility and liability for any and all conclusions it derives from the Confidential Information; and
c) That the Disclosing Party shall have no liability whatsoever to the Recipient or any other person on any basis (including, without limitation, in contract, tort, or otherwise) in connection with the use of such Confidential Information; unless expressly provided by written agreement between the Parties.
7. The Recipient Party acknowledges and agrees that in the event of any breach or threatened breach of this Agreement by the Recipient Party or its Representatives, the Disclosing Party shall be entitled to specific performance and injunctive relief as a remedy for any such breach or threatened breach hereof without necessity of posting bond or other security, the requirement for which is expressly waived. The Recipient Party and its Representatives, as applicable, agree not to raise and hereby waive any defense to injunctive relief based on lack of irreparable harm or the insufficiency of monetary damages. Such remedy shall not be deemed to be the exclusive remedy for any breach of this Agreement, but shall be in addition to all other remedies available to the Disclosing Party at law or in equity. The Recipient Party hereby agrees to indemnify the Disclosing Party for all costs and expenses, including advocate’s fees, incurred by it in enforcing this Agreement with respect to ten times the value of the contract.
8. This Agreement shall be governed by and construed in accordance with the laws of India. The courts at New Delhi shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.
9. Nothing in this Agreement will be deemed by implication or otherwise to convey to the Recipient Party any right or license under any patent, patent application, invention, copyright, trademark, trade name or other proprietary interest owned by the Disclosing Party; nor will this Agreement be deemed to provide a commitment of any kind by any party to enter into any further agreement with the other party.
10. This document contains the entire and complete Agreement between the parties, and no terms have been agreed upon except those expressly set forth herein. Any changes / modifications / amendments to this Agreement must be in writing, signed by both the Parties. This Agreement shall be binding on the Parties, and upon their respective successors, assigns, agents and representatives.
11. The term of this Agreement shall be for one (01) year from the date first set forth above. After the term has expired, or termination of this Agreement for any reason, all Confidential Information received by the Recipient Party during the term of this Agreement shall remain subject to the confidentiality and non-use provisions of this Agreement. Clauses 7, 8 and 9 shall also survive the expiry of this Agreement.
12. The recitals set forth above are and for all purposes shall be interpreted as being an integral part of this agreement and are incorporated in this Agreement by reference.
