Non-Disclosure of Confidential Information Terms and Conditions
“Agreement” references this Non-Disclosure of Confidential Information Terms and Conditions as incorporated into the corresponding Wolf & Company, P.C. (“Firm”) engagement letter, software license, or other applicable contractual relationship as between the parties.
“Affiliate” means any entity that a party directly or indirectly controls (e.g., subsidiary) or is controlled by (e.g., parent), or with which it is under common control (e.g., sibling).
“Confidential Information” means non-public information such as current and future financial, business and development activities, contracts structuring and fees, customers and potential customers, intellectual property, internal controls, services and products, proprietary software applications, contract terms, financial information, business procedures, operational information, business and marketing plans, strategies, employee information, customer information (including “Nonpublic Personal Information” and “consumer information” information as defined by Gramm Leach Bliley Act, and protected health information as defined by Health Insurance Portability and Accountability Act), supplier information, technology, software, know-how, designs, specifications, concepts, processes, techniques, methods, ideas, discoveries, inventions, processes, developments, records, product designs, source code, product planning and trade secrets and any other information that is marked as “confidential” or with other similar legends by the Firm, (collectively the “Confidential Information”) in any form that is in the Recipient’s possession regardless of the method of acquisition that the Firm designates as confidential to Recipient or should be reasonably known by the Recipient to be Confidential Information due to the nature of the information disclosed and/or the circumstances surrounding the disclosure.
Notwithstanding any other provisions of this Agreement, each Party acknowledges that Confidential Information will not include any information that the Recipient can demonstrate: (a) was or becomes publicly available at the time of disclosure through no act or omission of the Recipient; (b) was demonstrably already in its possession at the time of disclosure, provided that the source of such information was not bound by a confidentiality agreement with the Discloser or otherwise had a duty of confidentiality in respect thereof; (c) was rightfully received by the Recipient from a third party without any obligation of confidentiality; or (d) was independently developed by the Recipient without use of Discloser’s Confidential Information.
“Purpose” means Recipient may receive Confidential Information of the Firm or third parties to whom the Firm has a duty of confidentiality relating to the Firm’s Confidential Information for the purpose of evaluate a potential business relationship, exploring business development and product integration, or fulfilling the Recipient’s due diligence requirements (the “Purpose”).
“Recipient” means a person or entity receiving the Firm’s Confidential Information.
Restrictions on Use. For a period of three years form the date of the agreement, the Recipient, except as allowed in the section titled Exceptions, shall hold the Firm’s Confidential Information in strict confidence and shall not disclose any such Confidential Information to any third party, other than to its employees, and contractors, including without limitation, counsel, accountants, and financial advisors (collectively, “Representatives”), its Affiliates and their Representatives, subject to the other terms of this Agreement, and in each case who need to know such information and who are bound by restrictions regarding disclosure and use of such information comparable to and no less restrictive than those set forth herein. The Recipient shall restrict access and distribution of Confidential Information to third parties unless a separate non-disclosure agreement is executed and binding to these terms. Recipient will limit its use of the Confidential Information to the Purpose and not de-compile, reverse engineer, modify, publish, transmit, license, sublicense, transfer, sell, distribute, reproduce, create derivative or collective works from, or otherwise exploit the Confidential Information in whole or in part or use the Confidential Information for any reason other than the Purpose.
The Recipient Party shall take all steps reasonably necessary to prevent the disclosure of any of the Confidential Information to third parties, but in any event exercising not less than the level of care it exercises to safeguard its own confidential information. The Recipient Party shall establish and maintain appropriate controls and measures designed to ensure the security and confidentiality of Confidential Information, to protect against any anticipated threats or hazards to the security and integrity of such information, and to protect against unauthorized access to or use of such information. The Recipient Party shall take all steps reasonably necessary to assure its employees and independent contractors comply with the provisions of this Agreement, both during and subsequent to the term of their employment with or service to such party. The Recipient shall make no copies of any of the Confidential Information (other than copies given to receiving party’s employees or those who have a fiduciary or regulatory obligation to hold the Confidential Information in confidence) and shall promptly return to the Firm or, in the case of Confidential Information in an intangible format, certify to the Firm the proper destruction of the Confidential Information using commercial reasonable terms.
All Confidential Information is provided “as is” and the receiving party disclaims any representation or liability for the accuracy or completeness of any Confidential Information disclosed by such party, provided that neither party will provide the other party with Confidential Information they know infringes any patent, trademark, trade secret, copyright or other intellectual property right of any third party. Recipient Party acknowledges that Confidential Information is and shall remain the property of the Firm.
Within a reasonable time period, not to exceed 72 hours, of Recipient becoming aware of the unauthorized use, disclosure, publication, or dissemination of the Firm’s Confidential Information while in Recipient’s control, Recipient shall provide the Firm with written notice sent to William Nowik, Chief Information Security Officer at [email protected], that describes the incident, type of information breached, steps that the Recipient has taken to contain the incident, and contact information.
Exceptions. Recipient may disclose the Firm’s Confidential Information: (i) to the extent required by applicable law or regulation; (ii) pursuant to a subpoena or order of a court or regulatory, self-regulatory, or legislative body of competent jurisdiction; (iii) in connection with any regulatory report, audit, or inquiry; or (iv) where requested by a regulator with jurisdiction over Recipient. In the event of such a requirement or request, Recipient shall, to the extent legally permitted: (a) give the Firm prompt written notice of such requirement or request prior to such disclosure; and (b) at the Firm’s cost, a reasonable opportunity to review and comment upon the disclosure and request confidential treatment or a protective order pertaining thereto prior to Recipient making such disclosure. If the Recipient is legally required to disclose the Firm’s Confidential Information as part of: (1) a legal proceeding to which the Firm is a party but the Recipient is not; or (2) a government or regulatory investigation of the Firm, the Firm shall negotiate with the Recipient, reasonable and actual out of pocket legal fees and expenses (as evidenced by reasonably detailed invoices) and will reimburse the Recipient for the negotiated reasonable costs and fees of compiling and providing such Confidential Information, including, a reasonable hourly rate for time spent preparing for, and participating in, depositions and other testimony. Recipient Party shall not disclose Confidential Information to any third party except with the prior written consent of the Firm.
All right, title and ownership interest in and to the Firm’s Confidential Information shall remain with the Firm and nothing in this Agreement shall be construed as granting any right, title, or ownership interest in such information to Recipient. Further, nothing contained in this Agreement will be construed as granting or conferring any rights by license or otherwise, express or implied, or otherwise for any patents, copyrights, trademarks, know-how or other proprietary rights of either Party acquired prior to or after the date of this Agreement.
Destruction. Upon the Firm’s written request, Recipient shall use commercially reasonable efforts to destroy the Confidential Information and any copies or extracts thereof. However, Recipient, its Affiliates and their Representatives may retain any Confidential Information that: (i) they are required to keep for compliance purposes under a document retention policy or as required by applicable law, professional standards, a court, or regulatory agency; or (ii) have been created electronically pursuant to automatic or ordinary archiving, back-up, security, or disaster recovery systems or procedures; provided, however, that any such retained information shall remain subject to this Agreement. Upon the Firm’s request, Recipient will provide Discloser with written confirmation of destruction in compliance with this provision.
Equitable Relief. The Parties agree that an impending or existing violation of any provision of this Agreement would cause irreparable harm to the non-breaching Party for which there is no adequate remedy at law, and agree that the non-breaching Party shall be entitled to obtain immediate injunctive relief prohibiting such violation, in addition to any and all other remedies and rights available in law and in equity, including reasonable attorney’s fees.
Dispute Resolution. This Agreement shall be interpreted in accordance with the laws of the Commonwealth of Massachusetts and shall be binding upon Recipient and their respective legal successors when it has been executed by both Parties. The courts of Suffolk County, Massachusetts will have exclusive jurisdiction over all disputes relating to this Agreement. This Agreement will not be governed by the conflict of law rules of any jurisdiction.
Miscellaneous. The Agreement represents the entire understanding and agreement of the parties and supersedes all prior communications, agreements and understandings relation to the subject matter hereof. If any term or condition of this Agreement is judged to be illegal or unenforceable, all other terms will remain in force, and the term or condition held illegal or unenforceable will remain in effect as far as possible in accordance with the intention of the parties. The provisions of this Agreement may not be modified by the Recipient without notice or written consent.
The provisions of this Agreement may be assigned and/or modified by the Firm without the prior written consent of the other party.