Agreement between ownCloud GmbH, a German corporation (“ownCloud”), together with its affiliates, with offices at Rathsbergstr. 17, 90411 Nuremberg, Germany and Client.
ownCloud and Client (the “parties”). The parties have entered into an Agreement (Order Form) in order to assure the confidentiality of such trade secrets and confidential or proprietary information in accordance with the terms of the Agreement. As used in this Agreement, the party disclosing Proprietary Information (as defined below) is referred to as the “Disclosing Party”; the party receiving such Proprietary Information is referred to as the “Recipient.”
2. Proprietary Information
As used in this Agreement, the term “Proprietary Information” shall mean all trade secrets or confidential or proprietary information designated as such in writing by the Disclosing Party, whether by letter or by the use of an appropriate proprietary stamp or legend, prior to or at the time any such trade secret or confidential or proprietary information is disclosed by the Disclosing Party to the Recipient. Notwithstanding the foregoing, information which is orally or visually disclosed to the Recipient by the Disclosing Party shall constitute Proprietary Information for 30 days after its disclosure, and thereafter shall remain Proprietary Information only if the Disclosing Party, within 30 days after such disclosure, delivers to the Recipient a written document or documents describing such Proprietary Information and referencing the place and date of such oral, visual or written disclosure and the names of the Representatives of the Recipient to whom such disclosure was made. In addition, the term “Proprietary Information” shall be deemed to include: (a) any notes, analyses, compilations, studies, interpretations, memoranda or other documents prepared by the Recipient or its Representatives which contain, reflect or are based upon, in whole or in part, any Proprietary Information furnished to the Recipient or its Representatives pursuant hereto; and (b) the existence or status of, and any information concerning, the discussions between the parties concerning the possible establishment of a business relationship.
3. Scope of Agreement
This Agreement shall apply to all Proprietary Information disclosed between the parties hereto from the Effective Date until the date one party provides written notice of termination of this Agreement to the other party.
4. Use and Disclosure of Proprietary Information
The Recipient and its Representatives shall use the Proprietary Information of the Disclosing Party only for the Purposes and such Proprietary Information shall not be used for any other purpose without the prior written consent of the Disclosing Party, which may be given or withheld by the Disclosing Party in its sole and absolute discretion. The Recipient and its Representatives shall hold in confidence, and shall not disclose, any Proprietary Information of the Disclosing Party; provided, however, that (i) the Recipient may make any disclosure of such information to which the Disclosing Party gives its prior written consent; and (ii) any of the Proprietary Information may be disclosed by the Recipient to its Representatives or prospective investors, lenders or acquirors as part of their due diligence investigations who need to know such information in connection with the Purposes and who are bound by confidentiality obligations with respect to that Proprietary Information that are substantially similar to those set forth in this Agreement. In any event, the Recipient agrees, at its sole expense, to use its best efforts to restrain its Representatives from prohibited or unauthorized disclosure or use of the Proprietary Information. Notwithstanding anything contained in this Agreement to the contrary, in the event that the Recipient becomes legally compelled (such as by order of court, administrative agency, or other governmental body) to disclose any portion of the Disclosing Party’s Proprietary Information, the Recipient shall provide the Disclosing Party with prompt written notice of such order or obligation and, to the extent possible, with an opportunity to seek a protective order or other appropriate means to preserve the confidentiality of the Disclosing Party’s Proprietary Information. In the event that no such protective order is issued or no such challenge is undertaken or such challenge is unsuccessful, only that portion of the Disclosing Party’s Proprietary Information that is legally required to be disclosed shall be disclosed. The Recipient agrees that any such disclosure shall not cause any of the Disclosing Party’s Proprietary Information that was not required to be disclosed to fall within any exception set forth in Section 5 of this Agreement.
5. Limitation on Obligations
The obligations of the Recipient specified in Section 4 shall not apply, and the Recipient shall have no further obligations, with respect to any Proprietary Information to the extent that such Proprietary Information:
- (a) is generally known to the public at the time of disclosure or becomes generally known without the Recipient or its Representatives violating this Agreement;
- (b) is in the Recipient’s possession at the time of disclosure;
- (c) becomes known to the Recipient through disclosure by sources other than the Disclosing Party without such sources violating any confidentiality obligations to the Disclosing Party; or
- (d) is independently developed by the Recipient without reference to or reliance upon the Disclosing Party’s Proprietary Information.
Notwithstanding anything contained in this Agreement to the contrary, the Recipient shall also be free to use for any purpose the Residuals resulting from access to the Disclosing Party’s Proprietary Information. The term “Residuals” shall mean information in non-tangible form, which may be inadvertently retained by persons in unaided memory who have had access as authorized herein.
6. Ownership of Proprietary Information
The Recipient agrees that it shall not receive any right, title or interest in, or any license or right to use, the Disclosing Party’s Proprietary Information or any patent, copyright, trade secret, trademark or other intellectual property rights therein, by implication or otherwise. Each of the parties hereto represents, warrants and covenants that the trade secrets which it discloses to the other party pursuant to this Agreement have not been stolen, appropriated, obtained or converted without authorization.
7. Return of Proprietary Information
The Recipient shall, upon the written request of the Disclosing Party, return to the Disclosing Party all Proprietary Information received by the Recipient or its Representatives from the Disclosing Party (and all copies and reproductions thereof). In addition, the Recipient shall destroy: (i) any notes, reports or other documents prepared by the Recipient which contain Proprietary Information of the Disclosing Party; and (ii) any Proprietary Information of the Disclosing Party (and all copies and reproductions thereof) which is in electronic form or cannot otherwise be returned to the Disclosing Party. Alternatively, upon written request of the Disclosing Party, the Recipient shall destroy all Proprietary Information received by the Recipient or its Representatives from the Disclosing Party (and all copies and reproduction thereof) and any notes, reports or other documents prepared by the Recipient which contain Proprietary Information of the Disclosing Party. Notwithstanding the return or destruction of the Proprietary Information, the Recipient and its Representatives will continue to be bound by their obligations of confidentiality and other obligations hereunder.
8. No Warranties; Access to Disclosing Party’s Proprietary Information
The Recipient understands and acknowledges that any and all information contained in the Disclosing Party’s Proprietary Information is being provided without any representation or warranty, express or implied, on the part of the Disclosing Party as to the accuracy or completeness of the Disclosing Party’s Proprietary Information. The Recipient agrees that neither the Disclosing Party nor any of its representatives shall have any liability to the Recipient resulting from the Recipient’s use of the Disclosing Party’s Proprietary Information. The scope of any representations or warranties to be given by the Disclosing Party will be negotiated, if at all, along with other terms and conditions, in arriving at any mutually acceptable definitive agreement between the parties relating to the Purposes, should discussions between the parties progress to such a point. The Recipient acknowledges that the Disclosing Party is under no obligation to provide the Recipient with any information, including, without limitation, the Disclosing Party’s Proprietary Information, or to give the Recipient access to any portion of the Disclosing Party’s premises or its employees.
- (a) This Agreement supersedes all prior agreements, written or oral, between the parties relating to the subject matter of this Agreement. This Agreement may not be modified, changed or discharged, in whole or in part, except by an agreement in writing signed by the parties.
- (b) This Agreement will be binding upon and inure to the benefit of the parties and their respective successors and assigns.
- (c) This Agreement shall be construed and interpreted in accordance with the internal laws of the Commonwealth of Massachusetts, without giving effect to the principles of conflicts of law thereof.
- (d) The confidentiality obligations imposed by this Agreement shall continue with respect to a particular item of Proprietary Information until the tenth anniversary of the disclosure of such Proprietary Information to Recipient pursuant to this Agreement; provided, however, that the confidentiality obligations imposed by this Agreement with respect to source code included in the Proprietary Information shall continue in perpetuity.
- (e) For the convenience of the parties, this Agreement may be executed by facsimile and in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one agreement binding on both parties.