Definitions:
"Agreement" refers to the Non-Disclosure of Confidential Information Terms and Conditions, which are incorporated into the corresponding engagement letter, software license, or other applicable contractual relationship between the parties and agreed upon by both.
"Affiliate" refers to any entity that a party controls directly or indirectly (such as a subsidiary), or is controlled by (such as a parent), or with which it shares common control (such as a sibling).
"Confidential Information" refers to non-public information that includes 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" 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. Any information designated as "confidential" or marked with other similar legends by the Firm also falls under the category of Confidential Information. This information, in any form, that the Recipient possesses, regardless of the method of acquisition, is considered confidential to the 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, as demonstrated by the Recipient, (a) was or becomes publicly available at the time of disclosure through no act or omission of the Recipient; (b) was 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" refers to the intention of the Recipient to receive Confidential Information from the Firm or third parties to whom the Firm owes a duty of confidentiality with regard to the Firm's Confidential Information. The purpose of obtaining such Confidential Information may include evaluating a potential business relationship, exploring business development and product integration, or fulfilling due diligence requirements of the Recipient.
“Recipient” means a person or entity receiving the Firm’s Confidential Information.
Restrictions on Use. From the date of the agreement, the Recipient is required to keep the Firm's Confidential Information confidential for a period of three years, except as allowed in the section titled Exceptions. Such Confidential Information shall not be disclosed to any third party except to its employees, contractors, counsel, accountants, and financial advisors (collectively, "Representatives"), its Affiliates and their Representatives, subject to the other terms of this Agreement. Access and distribution of Confidential Information to third parties must be restricted 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 shall 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 is responsible for taking all necessary steps to prevent the disclosure of any Confidential Information to third parties, while ensuring that it exercises an equal level of care to safeguard its own confidential information. It must also establish and maintain appropriate controls and measures that ensure the security and confidentiality of the Confidential Information, protect against anticipated threats or hazards to the information's security and integrity, and prevent any unauthorized access or use of the information. The Recipient Party must ensure that its employees and independent contractors comply with the provisions of this Agreement during and after their employment or service with the party. The Recipient is not allowed to make any copies of the Confidential Information, except for copies given to the receiving party's employees or those who have a fiduciary or regulatory obligation to hold the Confidential Information in confidence. The Recipient Party must promptly return the Confidential Information to the Firm, or if in an intangible format, certify to the Firm the proper destruction of the Confidential Information using commercially reasonable terms.
The Confidential Information provided is provided "as is" and the receiving party disclaims any liability for the accuracy or completeness of any Confidential Information disclosed by the other party. However, it should be noted that neither party shall disclose any Confidential Information that infringes any patent, trademark, trade secret, copyright or any other intellectual property rights of any third party. The Recipient Party acknowledges that the Confidential Information disclosed by the Firm is and shall remain the sole property of the Firm.
If the Recipient becomes aware of any unauthorized use, disclosure, publication, or dissemination of the Firm's Confidential Information while in their control, they must provide written notice to Josh Yelen, Founder of ClearBooks at info@clearbookshq.com, within 72 hours. The notice should include details about the incident, the type of information that was breached, the steps taken to contain the incident, and contact information. This notification must be sent within a reasonable time period.
Exceptions. The recipient is allowed to disclose the Firm's Confidential Information in the following circumstances: (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 the recipient. If such disclosure is required or requested, the recipient must give the Firm prompt written notice before making the disclosure. The Firm will have a reasonable opportunity to review and comment upon the disclosure and request confidential treatment or a protective order pertaining thereto prior to the recipient making such disclosure.
In case 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 will 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.
The recipient should not disclose any Confidential Information to any third party without the prior written consent of the Firm.
The confidentiality of the Firm's information is of utmost importance, and it shall remain the sole property of the Firm. This Agreement does not grant any right, title, or ownership interest in such information to the Recipient. Additionally, this Agreement does not grant or confer any rights by license or otherwise, express or implied, for any patents, copyrights, trademarks, know-how, or other proprietary rights of either Party before or after the date of this Agreement.
Destruction. If the Firm requests in writing, the Recipient shall use commercially reasonable efforts to destroy all Confidential Information and any copies or extracts thereof. However, the Recipient, its Affiliates, and their Representatives may keep any Confidential Information that is required to be kept for compliance purposes under a document retention policy or as required by applicable law, professional standards, a court, or regulatory agency or have been created electronically pursuant to automatic or ordinary archiving, back-up, security, or disaster recovery systems or procedures. Nonetheless, any such retained information shall remain subject to this Agreement. The Recipient will provide written confirmation of destruction in compliance with this provision if requested by the Firm.
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 State of North Carolina and shall be binding upon the Recipient and their respective legal successors when it has been executed by both Parties. The courts of Wake County, North Carolina 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 in 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.