Mutual Non-Disclosure Agreement
THIS AGREEMENT is made between Brand X ApS of Valkendorfsgade 13, 3, 1151 Copenhagen K, Denmark and any party (collectively, the ‘Parties’) with which Brand X Aps acknowledges the exchange of confidential information.
1. Purpose
The Parties are evaluating the possibility of entering into a relationship. In connection with their discussions and such potential relationship, the Parties have disclosed or may disclose to each other Confidential Information under the terms of this Agreement.
2.Confidential Information
2.a.Definition
For the purposes of this Agreement, ‘Confidential Information’ means all information and know-how, whether or not in tangible form and whether disclosed previously, presently or subsequently, that is disclosed by one party (the ‘Disclosing Party’) to the other (the ‘Receiving Party’) and is related to the business, technical, or financial affairs of the Disclosing Party or its parent, subsidiaries, affiliates, investors, customers, potential customers, suppliers or potential suppliers. Confidential Information may include, without limitation, any invention (whether patentable or not), product, formula, method, delivery methodology, schematics, technique, project, development, vendor information, customer information, partner information, apparatus, equipment, trade secret, process, research, report, financial data, technical data, software code, software documentation, hardware design, technology, marketing or business plan, forecast, financial statement, budget, license, price, cost or personnel data. Failure to mark or designate any Confidential Information as confidential or Confidential shall not affect its status as Confidential Information under this Agreement.
2.b. Exclusions
Notwithstanding the foregoing, Confidential Information shall not include information that:
2.b.1. is or becomes public knowledge (through legal means without fault by the Receiving Party or its affiliates, agents, or employees);
2.b.2. is known to the Receiving Party prior to the disclosure of the same pursuant to this Agreement, provided the Receiving Party complies with any restrictions imposed thereon by any third party;
2.b.3. was rightfully disclosed to it by a third party, provided the Receiving Party complies with any restrictions imposed thereon by such third party; or
2.b.4. was independently developed without use of any Confidential Information of the Disclosing Party.
In addition, the Receiving Party shall be entitled to release the Disclosing Party’s Confidential Information if required by a court order or government department or agency provided, however, that the Receiving Party shall limit such release of Confidential Information to the greatest extent reasonably possible under the circumstances and shall provide the Disclosing Party with advance notice (to the greatest extent reasonably possible under the circumstances) to permit the Disclosing Party to seek an order protecting its Confidential Information from such disclosure.
3. Obligations
3.a. The Receiving Party shall:
3.a.1. hold the Receiving Party’s Confidential Information in confidence and take reasonable precautions to prevent its disclosure (including without limitation all precautions it uses for its own confidential information of like kind); and
3.a.2. restrict disclosure of the disclosing party’s Confidential Information to those of the Receiving Party’s employees, parent company, subsidiaries, officers, directors, legal and financial advisors and agents who have a need to know the same and who have previously agreed to terms for the protection of confidential information substantially as restrictive as the provisions hereof.
3.b. The Receiving Party shall not:
3.b.1. disclose any of the Disclosing Party’s Confidential Information or part thereof to third parties (except as expressly authorised above);
3.b.2. copy, recreate, reverse engineer or modify any Confidential Information in whole or in part unless expressly agreed to in writing by the Disclosing Party; or
3.b.3. use Confidential Information other than for the purposes for which it was disclosed. In particular, the Receiving Party shall not use any Confidential Information for the purpose of soliciting requests, proposals or quotations for business of a nature discussed or proposed by the Disclosing Party.
Upon the request of the Disclosing Party, the Receiving Party shall destroy all materials in its possession or control that contain the Disclosing Party’s Confidential Information or (at the election of the Disclosing Party) return the same to the Disclosing Party, and in either case shall certify its compliance with the terms of this provision. The Receiving Party’s obligations under this Agreement will survive any compliance with a request made under this Section 3.b.
4. General
If a court of competent jurisdiction holds that any of the provisions of this Agreement is invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect. No delay or omission by either party in exercising any right under this Agreement will operate as a waiver. This Agreement is governed by and will be construed in accordance with the laws of Denmark without regard to conflicts of law principles. The prevailing party in any action to enforce this Agreement shall be entitled to recover its costs and attorney’s fees. Nothing in this Agreement shall be construed as establishing or implying any partnership between the Parties and nothing in this Agreement shall be deemed to constitute either of the Parties hereto as the agent of the other party, or to authorise either party to incur any expense on behalf of the other party or to commit the other party in any way whatsoever. Nothing contained in this Agreement shall be construed as implying any commitment or agreement by either party to make any investment in the other party or in any business of the other party or to enter into any other business arrangement of any nature whatsoever with the other party.
5. Notices
All notices, requests and consents under this Agreement shall be made in writing and shall be deemed to have been delivered:
5.a. on the date personally delivered;
5.b. on the date mailed, postage prepaid by certified mail with return receipt requested; or
5.c. when sent via fax and confirmed to the applicable address set forth in the first paragraph above, in the case of Brand X to the attention of the Commercial Director.
6. Entire Agreement
This Agreement constitutes the entire agreement between the Parties hereto concerning the subject matter hereof and supersedes any prior or contemporaneous agreements and understandings concerning such subject matter. This Agreement may be amended, waived or revoked only by a written instrument executed by both Parties hereto. This Agreement shall survive the execution of any contract between the Parties, or the termination of any business relationship between the Parties, unless otherwise expressly agreed.
7. Duration
The obligations and restrictions in this Agreement in relation to Confidential Information disclosed will last for a period of 2 years from the date of the last disclosure.