Non-Disclosure Agreement
Close SA, a Swiss joint stock company registered with the commercial register of the Canton of Geneva and having its registered seat in Plan-les-Ouates, Switzerland (the Disclosing Party) is currently seeking equity financing for the expansion and further development of its activities (the Purpose). In connection with such Purpose, the Disclosing Party may disclose to you (the Receiving Party) certain confidential technical and business information which the Disclosing Party desires the Receiving Party to treat as confidential (the Disclosing Party and the Receiving Party, each, a Party, and, collectively, the Parties).
All such information delivered by the Disclosing Party to the Receiving Party, whether furnished before or after the acceptance of this Agreement and regardless of the manner in which it is furnished, together with all material, financial plan, analyses, compilations, studies or other documents or records prepared by the Disclosing Party to the extent such documents or records contain, otherwise reflect, or are generated from such information, is referred to herein as “Confidential lnformation”.
The Disclosing Party is willing to disclose the Confidential Information to the Receiving Party provided that the Receiving Party agrees to hold and keep such Confidential Information as confidential and to not use the information contained therein for any purpose other than the Purpose.
1. Confidential Information
For the purpose of this Non-Disclosure Agreement (the Agreement), “Confidential Information” means all non-public information (including Proprietary Information, as defined below) that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, should reasonably be considered as confidential. Confidential Information includes, without limitation:
- all non-public information relating to Disclosing Party’s technology, recipes, manufacture and distribution strategies, customers, business plans, business strategies, promotional and marketing activities, fundraising activities, finances and other business affairs; and
- all third-party information that the Disclosing Party is obligated to keep confidential.
Confidential Information may be contained in tangible materials, such as drawings, data, specifications, reports and computer programs, or may be in the nature of unwritten knowledge.
2. Exclusions
Confidential Information solely excludes information that:
- is or becomes publicly available without any breach of this Agreement (or a breach towards the Disclosing Party by a third party) and/or any illegal act by any person;
- can be evidenced beyond doubt to have been known by the Receiving Party at the time of its receipt;
- is received from a third party who did not acquire or disclose such information by a wrongful act;
- can be evidenced beyond doubt to have been fully independently developed by the Receiving Party without any reference to any Confidential Information (including Proprietary Information, as defined below); or
- is required to be disclosed by applicable law, or by an order (binding upon the relevant Party) of a competent governmental authority or regulatory body.
3. Use of Confidential Information
The Receiving Party acknowledges and agrees that it will use Confidential Information received by it solely for the Purpose and that all such Confidential Information will be kept strictly confidential. The Receiving Party shall ensure that its representatives, officers, directors, partners, employees and contractors keep all Confidential Information strictly confidential as set forth herein and the Receiving Party warrants that its representatives are bound by agreements similar to this Agreement.
In particular, the Receiving Party will not use directly or indirectly or disclose any Confidential Information to anyone without the Disclosing Party’s prior written consent and will only do it (i) on a need-to-know basis, (ii) subject to the signature of a confidentiality agreement bearing similar wording to the present Agreement.
The Receiving Party will take at its sole expense all reasonable measures to avoid disclosure, dissemination or unauthorized use of any Confidential Information, including, at a minimum, those measures the Receiving Party takes to protect its own confidential information. The Receiving Party will segregate all Confidential Information from the confidential materials of third parties to prevent commingling.
In the event that the Receiving Party or anyone to whom it supplies the Confidential Information needs to disclose it for the purpose of its legal defense against any governmental or judicial proceedings or receives a valid order of a court or other governmental body or is required by law, regulation or stock exchange rule to disclose all or any part of the Confidential Information, the Receiving Party agrees:
- to notify the Disclosing Party immediately of the existence, terms and circumstances surrounding such disclosure;
- to consult with the Disclosing Party on the advisability of taking legally available steps to resist or narrow the disclosure; and
- to furnish only such portion of the Confidential Information as, in the written opinion of counsel satisfactory to the Disclosing Party, is necessary. If the Receiving Party is legally compelled to disclose Confidential Information the Receiving Party shall exercise its best efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to the disclosed Confidential Information.
4. Confidentiality of Proprietary Information
The Receiving Party understands and agrees that all Proprietary Information (as defined below) shall be the sole property of the Disclosing Party and its assigns, including all trade secrets, patents, copyrights and other rights in connection therewith. As used in this Agreement, the term “Proprietary Information” means information or physical material not generally known or available outside the Disclosing Party or information or physical material entrusted to the Disclosing Party by third parties. This includes, but is not limited to, inventions, confidential knowledge, copyrights, product ideas, techniques, processes, formulas, object codes, mask works and/or any other information of any type relating to documentation, data, schematics, algorithms, flow charts, mechanisms, research, manufacture, improvements, assembly, installation, marketing, forecasts, sales, pricing, customers, the salaries, duties, qualifications, performance levels and terms of compensation of other employees, and/or cost or other financial data concerning any of the foregoing or the Disclosing Party’s operations. Proprietary Information may be contained in material such as drawings, samples, procedures, specifications, reports, studies, customer or supplier lists, budgets, cost or price lists, compilations or computer programs, or may be in the nature of unwritten knowledge or know-how.
5. Continuing Obligations
The Receiving Party will hold in strict confidence and not directly or indirectly use, reproduce, transmit or disclose in any way, except only as set forth herein, to any third parties, both during and after the termination of the Agreement, any Confidential Information (including Proprietary Information) that the Receiving Party obtains or creates during its relationship with the Disclosing Party. The Receiving Party agrees not to make copies or backup whatsoever of any such Confidential Information, except as authorized by the Disclosing Party in writing. Upon termination of the Agreement, or upon the written request of the Disclosing Party, the Receiving Party shall promptly return or deliver to the Disclosing Party or destroy all of the Confidential Information disclosed under the terms of this Agreement. In addition, the Receiving Party shall destroy: (i) any notes, reports, documents, records, devices, models or any other material prepared by the Receiving Party which contain Disclosing Party’s Confidential Information; and (ii) any Confidential Information (and all copies and reproductions thereof) which is in electronic form or cannot otherwise be returned to the Disclosing Party.
6. Ownership of Rights to Confidential Information
Nothing in this Agreement shall (i) divest the Disclosing Party of any of its right, title or interest in and to any Confidential Information, or (ii) entitle the Receiving Party in any way in connection with any Confidential Information.
7. Remedies
The Parties acknowledge and agree that the Disclosing Party entered into this Agreement in reliance on the strict adherence by the Receiving Party to the terms and conditions of this Agreement. Any violation of, or non-compliance by the Receiving Party with any provision under this Agreement may cause irreparable harm to the Disclosing Party for which money damages would be an inadequate remedy and, therefore, the Disclosing Party, in addition to any other remedies that may be available in law, equity or otherwise, shall be entitled to equitable relief, including injunctive relief, in the event of any breach or threatened breach of this Agreement.
8. No License Granted
By the terms of this Agreement the receipt of any Confidential Information shall not constitute a grant or license to the Receiving Party under any patent, copyright, trade secret or other legal intellectual property rights now or subsequently held by the Disclosing Party.
9. Assignment of Rights
Neither Party hereto shall assign in whole or in part its rights or obligations under this Agreement without the express written consent of the other Party. This Agreement shall be binding upon and shall inure to the benefit of each of the Party’s successors and permitted assigns.
10. Term
This Agreement including all obligations hereunder will expire five (5) years from the last date of disclosure of any Confidential Information.
11. Miscellaneous
All notices or other communications to be given under or in connection with this Agreement shall be in writing (email being sufficient). Any notice to be given hereunder shall be deemed to have been duly given, if given prior to the expiry of a term or deadline set forth in this Agreement (if any).
This Agreement constitutes the entire agreement and understanding among the Parties with respect to the subject matter hereof.
If any provision of this Agreement is found to be invalid or unenforceable, the Parties agree that their intentions as reflected in the invalid provision shall be carried out to the maximum extent permissible, and the other provisions of the Agreement shall remain in full force and effect.
Any tolerance or waiver by the Disclosing Party in the application of all or part of the clauses of this Agreement, however frequent and prolonged, shall not be deemed to be a waiver of their application.
The section titles of the Agreement are for information purposes only and may not alter or modify the terms in any way.
12. Governing Law and Jurisdiction
12.1. Governing Law
This Agreement shall be governed by and construed in accordance with the substantive laws of Switzerland, without regard to conflicts of law principle thereof.
12.2. Jurisdiction
Any dispute, controversy or claim arising out of or in relation to this Agreement, including the validity, invalidity, breach or termination thereof, shall be exclusively submitted to the ordinary courts of Geneva, Switzerland, subject to an appeal to the Swiss Supreme Court.
