CONFIDENTIALITY AGREEMENT
THIS
CONFIDENTIALITY
AGREEMENT
(“Agreement”),
effective
as
of
_____________________________ is entered between ________________, (hereinafter
referred to as “______”), having a place of business at _____________ and Accent Advanced
Systems, (“ACCENT”), having a place of business at C/ Terra Alta 1-3 08211 Castellar del
Vallés (Barcelona) - Spain.
W I T N E S S E T H:
WHEREAS, the Parties hereto are interested in having the opportunity to exchange
certain Confidential Information for the purpose of assessing the desirability or viability of
estalibshing a business or contractual relationship between the parties and achieving the
objectives of such a relationship, and
NOW, THEREFORE, in consideration of the premises and of the mutual covenants
herein contained, the Parties agree as follows:
1.
DEFINITIONS
1.1
“Disclosing Party” shall mean the party disclosing Confidential Information
under the terms and conditions of this Agreement.
1.2
“Recipient Party” shall mean the party receiving Confidential Information under
the terms and conditions of this Agreement.
1.3
“Confidential Information” shall mean all confidential or proprietary information,
know-how, specifications, drawings, sketches, models, samples, data, computer programs,
proprietary processes, documentation and other technical, financial, economic and business
information, in written and or verbal form, which is received in any manner (e.g. physically,
orally, visually, by document, E-Mail, computer disks, magnetic tape, etc.) by Recipient Party,
directly or indirectly, from Disclosing Party. Confidential Information also includes the
existence, substance, and progress of the parties’ dealings and the terms of any agreement
between the parties.
2.
DISCLOSURE
2.1
Disclosing Party may deliver to Recipient Party, at such time as may be agreed
upon by the parties, such Confidential Information as Disclosing Party desires to disclose for
the purpose described above.
3.
NON-DISCLOSURE AND NON-USE OBLIGATIONS
3.1
Non-disclosure of Confidential Information. Recipient Party hereby agrees
for a period of two (2) years from the date of receipt of such Confidential Information to hold in
strictest confidence and not to divulge, in whole or in part, to any third party (other than
employees, consultants, agents and other representatives of Recipient Party subject to
Section 3.2) any and all Confidential Information disclosed to Recipient Party in any manner.
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Recipient Party’s obligations under this Article shall not apply to any Confidential Information
which:
(a) At the time of disclosure by Disclosing Party to Recipient Party is in the public
domain as evidenced by printed publication or similar proof, or after disclosure by
Disclosing Party to Recipient Party becomes part of the public domain by printed
publicaiton or similar proof through no fault of Recipient Party but only from such
time that it is published or otherwise becomes part of the public domain, it being
understood and agreed, however, that information that is public or has become
public through an unauthorized dislcosure by a third party under a confidentiality
obligation with Disclosing Party with respect to such information shall not be
deemed to be public information or otherwise generally available to the public
(provided, however, that if Recipient Party is not aware of such confidentiality
obligation between Disclosing and such third party, Recipient Party shall not be
deemed to be in breach of this Agreement as a result of any act or omission based
on Recipient Party’s good faith belief that such information is public information); or
(b) Recipient Party can show was in its possession in writing or other documentary or
recorded form kept in the ordinary course of business at the time of disclosure by
Disclosing Party to Recipient Party, and which was not received, directly or
indirectly, from Disclosing Party prior to disclosure and which Recipient Party,
without breach of obligation to a third party, is free to disclose to others; or
(c) Recipient Party can show was received from a third party who at the time of
dislcosure was not under an obligation of confidence to Disclosing Party and which
Recipient Party, without breach of any obligation to a third party, is free to disclose
to others.
(d) Recipient Party can show was demonstrably independently developed by
employees of Recipient Party without knowledge of or access to the Confidential
Information.
Detailed information shall not be excluded from the above obligations merely because it is
embraced by more general information excluded under paragraphs (a), (b), (c) or (d).
Combinations of items shall not be so excluded unless the combination itself and its principle
of operation fall within paragraphs (a), (b), (c) or (d).
3.2
Access to Confidential Information. Recipient Party shall use its reasonable
efforts and diligence to safeguard the Confidential Information (including taking all precautions
the Recipient Party uses with respect to its own confidential and proprietary information, but in
no event shall Recipient Party exercise less than a reasonable degree of care) and protect the
Confidential Information against unauthorized disclosure, unauthorized use, loss and theft.
Recipient Party may disclose Confidential Information only to those employees, consultants,
agents, and other representatives of Recipient Party who require such Confidential
Information for the specific purpose described above and who have written obligations of
secrecy with Recipient Party obligating them to secrecy and non-use obligations no less
restrictive than Recipient Party is obligated to Disclosing Party under this Agreement.
3.3
Non-use of Confidential Information. Recipient Party may use Confidential
Information solely for the purpose described above. Except as expressly permited by this
Agreement, Recipient Party shall make no commercial or other use of the Confidential
Information (including but not limited to the filing of any patent application relating to, or
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including, the Confidential Information or any of its uses or applications) without first obtaining
prior written approval thereof from Disclosing Party.
3.4
Non-analysis of Confidential Information. Recipient Party shall not
disassemble, reverse engineer or otherwise analyze any samples or other Confidential
Information, or otherwise attempt to determine the physical properties, performance
characteristics, structural design, chemical composition or other features thereof, except as
specifically allowed under the terms and conditions of this Agreement.
4.
OWNERSHIP OF IMPROVEMENTS
4.1
Each party (the “Owning Party”) retains all right, title, and interest in and to its
Confidential Information, as well as the rights to any and all improvements, modifications,
enhancements, derivations, and adaptations to and derivative works of its Confidential
Information developed after the Effective Date and during the term of this Agreement
(collectively “Improvements”). The other party shall have no right, title or interest in and to the
Owning Party’s Improvements, and the other party hereby affirmatively disclaims any such
rights and, to the extent of any rights that would otherwise in law be deemed or considered in
any way owned by the other party, the other party hereby assigns to the Owning Party all of
such right, title and interest in and to the Owning Party’s Improvements, and affirmatively
appoints the Owning Party as irrevocable attorney-in-fact with power on behalf of the other
party to execute any and all documents, writings or instruments necessary to vest the Owning
Party the full ownership conveyed hereby. Additionally, each party agrees to disclose timely
(and before loss of any intellectual property right) to the Owning Party and assist reasonably
the Owning Party, at the Owning Party’s expense, in protecting and perfecting, by patents or
otherwise, the Owning Party’s rights, title and interest in and to Improvements assigned to the
Owning Party hereunder. Notwithstanding the foregoing, any Improvement that (a) qualifies
as an Improvement to both parties’ Confidential Information or (b) is demonstrably jointly
conceived of by the parties and is unrelated to either party’s Confidential Information shall be
jointly owned.
5.
GENERAL PROVISIONS
5.1
No Warranties or Representations.
Disclosing Party makes no
representations or warranties relative to the Confidential Information or otherwise, including,
but not limited to, contents, or utility for any purposes, of the Confidential Information, or of
any related technology or patent rights.
5.2
Costs. Each Party will respectively bear the costs and expenses incurred by it
and its personnel in carrying out the purposes of this Agreement.
5.3
Visits to Facilities. Representatives of the Parties who visit facilities for the
purposes of this Agreement shall observe all safety and other regulations which have been
established by the owner of such facilities.
5.4
Indemnification. Each Party does hereby agree to defend, indemnify and
save the other Party harmless from and against any and all costs, expenses, suits, damages,
claims losses, judgments and liabilities (including attorney’s fees) of any kind or nature
whatsoever (unless caused by the sole or gross negligence or willful misconduct to the other
Party) incurred as a result of any injuries, sickness, disease, or death sustained by the
indemnifying party’s employees, arising out of, or in any way connected directly or indirectly
with this Agreement, or with the performance hereunder; and whether or not such injury,
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sickness, disease or death is due, solely, or in part, to the negligence of such employees or,
to the extent permitted by law, to the negligent act or omission to act of the indemnified Party.
5.5
Return of Confidential Information. Upon the request of Disclosing Party,
Recipient Party shall return to Disclosing Party all documents and other tangible items
containing Disclosing Party’s Confidential Information, (including copies thereof and notes,
extracts, summaries or other such materials prepared by based in whole or in part upon
Confidential Information) or certify in writing that it has destroyed all of such materials;
provided, however, that the Recipient Party may retain one copy of Confidential Information
for legal or regulatory purposes and will not be required to delete electronic Confidential
Information sotred in back-up/archival storage in accordance with its policies, provided that
any such retained Confidential Information will continue to be subject to the terms of this
Agreement.
5.6
Injunction. Recipient Party acknowledges and agrees that Disclosing Party
would not have adequate remedy at law and would be irreparably harmed in the event that
any of the provisisons of this Agreement were not performed in accordance with their specific
terms or were otherwise breached. Accordingly, Recipient Party agrees that Disclosing Party
shall be entitled to injunctive relief to prevent breaches of this Agreement and to specifically
enforce the terms and provisions thereof, without the necessity of posting a bond, in addition
to any other remedy to which Disclosing Party may be entitled, at law or in equity.
5.7
Governing Law. This Agreement will be governed and construed in
accordance with the laws of Spain without recourse to its conflicts of laws principles.
5.8
Entire Agreement. This Agreement sets forth the entire understanding and
agreement of the Parties as to the subject matter of this Agreement. It may not be changed
orally but only by a writing signed by both parties.
5.9
Severability: Waiver. If any provision of this Agreement is held to be invalid or
unenforceable for any reason, the remaining provisions will continue in full force without being
impaired or invalidated in any way. _________________ and ACCENT agree to replace any
invalid provision with a valid provision, which most closely approximates the intent and
economic effect of the invalid provision. The waiver by any Party of a breach of any provision
of this Agreement by the other Party will not operate or be interpreted as a waiver of any other
or subsequent breach by such Party.
5.10 Successors and Assigns. Neither this Agreement nor any of the rights or
obligations of either Party arising under this Agreement may be assigned or transferred
without the other Party's prior written consent, except to a successor to substantially all of
such party’s business, voting rights or assets. This Agreement will be for the benefit of each
Party's successors and assigns, and will be binding on each Party's heirs and legal
representatives.
5.11 Headings. Titles or headings of the sections of this Agreement are not part of
the terms of this Agreement, but are inserted solely for convenience.
5.12 Nature of Relationship. Nothing in this Agreement shall be construed to
create a partnership, joint venture or employer-employee relationship or to require either Party
to be responsible for any other obligations than the ones prescribed and agreed upon by this
Agreement. Neither Party shall be obligated by virtue of this Agreement or any activities
conducted in connection herewith to enter into any further agreement with the other, to
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engage in any negotiations, to enter into any understanding or to purchase or sell any
products or services from the other. Nothing in this Agreement shall be construed as
conferring to either Party by implication, estoppel, or otherwise, any right, title or interest in, or
any license under, any patent, patent application or trade secret now or subsequently owned
by the other Party.
5.13 Survival of Termination. The provisions of Articles 3.1, 3.2, 3.3, 3.4, 4.1, 5.4,
5.5, 5.6, 5.10 and 5.12 shall survive termination of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date indicated by their authorized representatives.
AGREED TO AND ACCEPTED:
_____:
ACCENT:
By:
By:
(Printed Name)
Title:
Title:
Date:
Date:
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