Mutual Non-Disclosure Agreement
This page describes the relationship between HIO, Inc., a Virginia corporation, (“HIO” or “Company”) and the customer identified below (“Customer”). The document, entitled “Mutual Non Disclosure Agreement” (the “NDA”), describes and sets forth the general legal terms governing the information exchanged between the parties (collectively, the “Agreement”). This Agreement will become effective when the Order Form is executed by authorized representatives of both parties (the “Effective Date”). Your use of the HIO Application is also subject to Our Privacy Policy available here (the “Privacy Policy”).
NOW, THEREFORE, in reliance upon and in consideration of the following undertakings, the parties, for themselves, or for any corporation, partnership, association, joint stock company, limited liability company, limited liability partnership, or trust directly or indirectly controlling, controlled by or under common control of such party, or a more than 50% owned subsidiary of such party (its “Affiliates”), agree as follows:
1. Scope. For purposes of this Agreement, the “Proprietary Information” of a party disclosing information (the “Discloser”) means any and all information, including without limitation, all oral, written, graphical, and electronic information disclosed to the party receiving the information (the “Recipient”) that the Discloser identifies as “confidential,” “proprietary” or some similar designation or that reasonably appears to be confidential or proprietary because of legends or other markings, the circumstances of disclosure, or the nature of the information itself, and the fact that HIO and Customer are pursuing the Project and any terms of the Project. For the avoidance of doubt, any information that HIO receives from Customer shall be deemed Proprietary Information hereunder.
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2. Limitation. The term "Proprietary Information" does not include information which:
a. is now or is in the future in the public domain through no fault of the Recipient;
b. prior to disclosure pursuant to this Agreement is properly within the legitimate possession of the Recipient;
c. subsequent to disclosure pursuant to this Agreement, is lawfully received from a third party having rights in the information without restriction of the third party's right to disseminate the information and without notice of any restriction against its further disclosure;
d.is independently developed by the Recipient through parties who have not had, either directly or indirectly, access to or knowledge of such Proprietary Information;
e. is approved for disclosure by prior written permission of an authorized signatory of Discloser; or
f. is obligated to be produced by law, under order of a court of competent jurisdiction
or other similar requirement of a governmental agency, so long as the party required to disclose the information provides the other party with prior written notice of any required disclosure pursuant to such law, order or requirement.
3. Use. Each party agrees to use the Proprietary Information received from the other party only for the Project. No other rights, and particularly licenses, trademarks, inventions, copyrights, patents, or any other intellectual property rights are implied or granted under this Agreement or by the conveying of Proprietary Information between the parties. Each party agrees that the other may disclose Proprietary Information received by it to its Affiliates, subject to the terms of this Agreement.
4. Reproduction. Proprietary Information supplied is not to be reproduced in any form except as required to accomplish the intent of this Agreement.
5. Duty of Care. All Proprietary Information must be retained by the Recipient in a secure place with access limited to only such of the Recipient’s employees (or agents who have a non- disclosure obligation at least as restrictive as this Agreement) who need to know such information for purposes of this Agreement and to such third parties as the Discloser has consented to by prior written approval. In addition, the Recipient must provide the same care to avoid disclosure or unauthorized use of the Proprietary Information as it provides to protect its own similar proprietary information.
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6. Ownership. All Proprietary Information, unless otherwise specified in writing,
a. remains the property of the Discloser, and must be used by the Recipient only for the purpose intended. Upon termination of this Agreement, all copies of written, recorded, graphical or other tangible Proprietary Information must either be returned to the Discloser, or destroyed upon the request of the Discloser.
b. at the request of the Discloser, the Recipient will furnish a certificate of an officer of the Recipient certifying that any Proprietary Information not returned to Discloser has been destroyed.
7. Term. A Recipient may not disclose Proprietary Information, except as provided in this Agreement, for a period of twenty-four (24) months after Termination of Agreement. This Agreement may be terminated at any time during the Term by mutual agreement of the parties or upon thirty (30) days’ written notice to the other party; except that early termination of this Agreement will not relieve the Recipient of its obligations under this Agreement with respect to Proprietary Information exchanged prior to the effective date of termination. All of the obligations undertaken by each party as a Recipient will survive and continue after any termination of this Agreement.
8. Right to Disclose. Each Party Warrants that it has the Right to Disclose Proprietary Information which it will disclose to the other party pursuant to this Agreement, and each party agrees to indemnify and hold harmless the other from all claims by a third party related to the wrongful disclosure of such third party's information. Otherwise, neither party makes any representation or warranty, express or implied, with respect to any Proprietary Information. Neither party is liable for indirect, incidental, consequential, or punitive damages of any nature or kind resulting from or arising in connection with this Agreement.
9. Right to Enjoin Disclosure. The parties acknowledge that the Recipient’s unauthorized disclosure or use of Proprietary Information may result in irreparable harm. Therefore, the parties agree that, in the event of violation or threatened violation of this Agreement, without limiting any other rights and remedies of each other, a temporary restraining order and/or an injunction to enjoin disclosure of Proprietary Information may be sought against the party who has breached or threatened to breach this Agreement and the party who has breached or threatened to breach this Agreement will not raise the defense of an adequate remedy at law.
10. Disclosure to Third Parties. All media releases and public announcements or disclosures by either party relating to this Agreement, its subject matter, or the purpose of this Agreement are to be coordinated with and consented to by the other party in writing prior to the release or announcement.
11. No Partnership or Joint Venture Formed. The exchange of any Proprietary Information between the parties is not intended to be interpreted that the parties have formed or will form a partnership, joint venture or other relationship. Any business relationship between the parties, if any, must be governed by separate agreement.
12. General.
a. This Agreement is governed and construed under the laws of the State of Virginia, USA and there are no understandings, agreements or representations express or implied, not specified herein.
b. For purposes of this project, this Agreement represents the entire understanding between the parties, and the terms of this Agreement supersede the terms of any prior agreements or understandings, written or oral.
c. This Agreement may not be amended except in a writing signed by the parties.
d. The provisions of this Agreement are to be considered as severable, and in the event that any provision is held to be invalid or unenforceable, the parties intend that the remaining provisions will remain in full force and effect
e. Captions in this Agreement are for ease of reference only and should not be considered in the construction of this Agreement.
f. There are no third party beneficiaries to this Agreement.
g. Failure by a party to enforce or exercise any provision, right or option contained in this Agreement will not be construed as a present or future waiver of such provision, right or option.
THE EXISTENCE OF THIS AGREEMENT AND THE NATURE OF THE DISCUSSIONS BETWEEN THE PARTIES MAY NOT BE DISCLOSED BY EITHER PARTY WITHOUT THE PRIOR WRITTEN CONSENT OF THE OTHER PARTY