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This Mutual Non-Disclosure Agreement (this “Agreement”) is made and entered into as of 7/21/2020 (“Effective Date”) by and between Enrole, Inc. (“Enrole”) with its offices at 4662 High Mesa Circle, Castle Rock, CO 80108 and 10655 North Stelling Road, Cupertino, CA 95014 and the signatory below (“Company/Individual”), at the address stated below, jointly the “Parties”, and individually a “Party”.
1. Introduction. The Parties wish to evaluate one or more business opportunities of mutual interest (“Purpose”). The Parties have entered into this Agreement to ensure that certain confidential information each Party may disclose in connection with the Purpose will be treated as confidential.
2. Definition of Confidential information. “Confidential Information” means all information that is (i) in tangible form and labeled “confidential” or the like, (ii) if disclosed orally is designated as confidential at time of disclosure and summarized and confirmed in writing within a reasonable time, or (iii) information that a reasonable person knows or should have known to be confidential given the nature of the information and the circumstances surrounding disclosure; including, but not limited to, the names of either Party’s customers, strategic marketing plans, product roadmaps, source code, technical infrastructure, security and compliance documentation, hardware configuration, discounts, and the terms of this Agreement. Confidential Information shall not include information or materials that (a) were or become generally known to the public without breach of this Agreement; (b) were rightfully known to the Recipient prior to its receipt thereof from the Discloser; (c) the Recipient received from a third party without that third party’s breach of agreement or obligation of trust; or (d) are independently developed by or for the Recipient without use of or reference to the Confidential Information.
3. Disclosure and Use Restrictions. A Party receiving the Confidential Information (“Recipient”) from the other Party (“Discloser”) shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of a similar nature but no less than reasonable care, and shall not (i) disclose any of Discloser’s Confidential Information to any third party; (ii) use any Confidential Information of the Discloser for any purpose except the Purpose; (iii) make any copies of the Confidential Information except those reasonably required for the Purpose; and (iv) make the Discloser’s Confidential Information available to any of its employees, contractors, and agents except those that have a “need to know” in order to carry out the Purpose and have signed an agreement containing disclosure and use provisions substantially similar to those set forth herein.
4. Compelled Disclosure. If Recipient is requested or compelled by applicable law or order of a court of competent jurisdiction, recognized stock exchange, regulatory authority, or governmental department or agency, to disclose any of Discloser’s Confidential Information, Recipient’s disclosure of such Confidential Information shall not constitute a breach of this Agreement provided that Recipient provides Discloser with reasonably prompt written notice, to the extent legally permitted, so that Discloser may seek an appropriate remedy and/or waive compliance with this provision. Recipient shall reasonably cooperate with Discloser in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of Confidential Information. Upon disclosure, Recipient shall (i) disclose only that portion of the Confidential Information that is necessary to comply with the applicable law or order, and (ii) assert the privileged and confidential nature of Confidential Information against the Party seeking disclosure.
5. Return of Confidential Information. Upon Discloser’s written request, Recipient shall promptly return or destroy, at Discloser’s option, all documents containing Confidential Information, including copies. Notwithstanding the foregoing, Recipient may retain such copies as are reasonably necessary to comply with any laws or regulations applicable to Recipient or to comply with Recipient’s document retention policies, and in no event shall this Agreement require the alteration, modification, deletion or destruction of back-up tapes or other media made in the ordinary course of business, provided that such copies shall be subject to the terms of this Agreement while in Recipient’s possession.
6. Warranty and Disclaimer. Discloser warrants that it has the right to disclose Confidential Information. EXCEPT AS STATED HEREIN, DISCLOSER MAKES NO OTHER WARRANTIES, AND CONFIDENTIAL INFORMATION IS PROVIDED ON AN “AS IS” BASIS.
7. No License. No license under any patent or other intellectual property right is granted or conveyed hereby or by any disclosure of Confidential Information made hereunder and all Confidential Information disclosed hereunder shall remain the property of Discloser. This Agreement imposes no obligation on either Party to proceed with any business transaction or agreement and does not create any agency, partnership or business relationship between the Parties.
8. Term and Termination. This Agreement shall remain in full force and effect for a period of one (1) year following the Effective Date unless terminated earlier by either Party upon written notice. Notwithstanding any termination of this Agreement, the obligations of confidentiality herein shall survive for a period of three (3) years from such termination except the obligations of confidentiality pertaining to trade secrets shall continue indefinitely. This Agreement shall terminate automatically upon the Parties’ execution of a definitive agreement for the Purpose which includes confidentiality provisions as that agreement will govern.
9. Remedies. The Parties agree that any unauthorized use of the Confidential Information by Recipient could cause Discloser irreparable harm for which remedies at law could be inadequate. In addition to any other rights it may have at law, Discloser may be entitled to seek equitable relief.
10. Governing Law, Venue, and Attorneys’ Fees. This Agreement shall be governed by the laws of the State of California, excluding conflict of laws principles. With respect to all disputes arising out of or related to this Agreement, the parties consent to exclusive jurisdiction and venue in the state and Federal courts located in San Francisco, California. In any action to enforce this Agreement the prevailing party will be entitled to reasonable costs and attorneys’ fees.
11. Entire Agreement, Waiver, Amendment, and Severability. This Agreement contains the entire agreement between the Parties with respect to the subject matter hereof, supersedes all prior oral or written agreements between the Parties, and neither Party shall have any obligation, express or implied by law, with respect to trade secret or proprietary information of the other Party except as set forth herein. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both Parties. In the event any term of this Agreement is found by any court to be void or otherwise unenforceable, the remainder of this Agreement shall remain valid and enforceable as though such term were absent upon the date of its execution.
12. Notices. Any notice hereunder will be in writing and will be effective when delivered via registered mail, return receipt requested, to the address provided by such Party.
13. Assignment and Counterparts. This Agreement shall bind and inure to the benefit of the Parties hereto and their successors and assigns. This Agreement may be executed in counterparts, and delivered to the other Party either physically or by electronic means, each of which shall constitute an original and all of which together shall constitute one and the same instrument.
14. Electronic Signatures. Each party agrees that the electronic signatures[, whether digital or encrypted,] of the parties included in this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures. Electronic Signature means any electronic sound, symbol, or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record[, including facsimile or email electronic signatures] pursuant to the California Uniform Electronic Transactions Act (Cal. Civ. Code §§ 1633.1 to 1633.17) as amended from time to time.
