THESE NON-DISCLOSURE AND MAINTENANCE OF CONFIDENTIALITY TERMS (THE “NON-DISCLOSURE TERMS”) OF DIZZIPAY HOLDINGS Ltd (“DIZZI”) WILL BECOME BINDING ON YOU UPON CLICKING ON THE ‘I AGREE’ BUTTON.
YOU HAVE READ CAREFULLY AND UNDERSTOOD THESE NON-DISCLOSURE TERMS BEFORE CLICKING THE “I AGREE” BUTTON.IF YOU DO NOT AGREE TO BE BOUND BY THESE NON-DISCLOSURE TERMS,PLEASE DO NOT PROCEED FURTHER.IF YOU DO NOT ACCEPT THESE NON-DISCLOSURE TERMS,YOU MAY NOT USE OR ACCESS THE CONFIDENTIAL INFORMATION (AS DEFINED BELOW).
Confidential Information shall include, without limitation, proprietary, technical, development, experimental, formula, algorithm, design, specifications, product (actual or planned and any derivatives thereof),strategy,performance,know-how, research,methodology,technique and process information,records and results,trade secrets,patent applications,notes,programming code,ideas,improvements and inventions(whether patentable or not),and all record bearing media containing or disclosing such information and techniques.The discussions between Dizzi and Recipient and these Non-Disclosure Terms shall be further deemed Confidential Information hereunder.
The confidentiality obligations of these Non-Disclosure Terms shall not apply to any information that Recipient can document (a) is already in the public domain through no fault directly or indirectly)of Recipient or a breach of these Non-Disclosure Terms;(b)was lawfully in Recipient’s possession prior to receipt from Dizzi,as so notified to Dizzi; or (c)is explicitly approved for release by Recipient by advance written authorization of Dizzi.Confidential Information shall not be deemed to be in the public domain merely because any part of the Confidential Information is embodied in general disclosure or because individual features,components or combinations thereof are now or become known to the public.
A disclosure by Recipient of Confidential Information in response to a valid order by a court or other governmental body,or as otherwise required by law,and to such extent necessary,shall not be considered to be a breach of these Non-Disclosure Terms,provided, however,that Recipient shall provide Dizzi with prompt prior written notice thereof and any commercially reasonable assistance to enable Dizzi to seek a protective order or otherwise prevent or contest such disclosure.
All Confidential Information delivered,made available or otherwise acquired pursuant to these Non-Disclosure Terms:(a)shall not be copied,duplicated,distributed,disseminated or made available in any way or form by you to any other person or entity(or so allowed,aided or enabled by you), including any person within Recipient unless such person also entered into these Non-Disclosure Terms and signed them with Dizzy;(b)shall be maintained in the strictest of confidence and in a place and manner that ensures such confidentially;(c)shall not be used or exploited by Recipient,directly or indirectly,for any purpose, except for the purpose of evaluating a possible transaction between Dizzi and Recipient; and (d) shall not be referenced in any of marketing materials,publicity materials or activities, brochures or similar documents that are promotional in nature, without Dizzi’s express prior written approval. Without derogating from the generality of the above, in no event shall Recipient, directly or indirectly, reverse engineer, de-compile or disassemble Confidential Information, or allow any of the above.
3. Unauthorized Disclosure.
Recipient agrees that it shall, within 24 hours of becoming aware of any actual or suspected loss, theft, unauthorized disclosure or use of or access to any Confidential Information or other non- compliance with these Non-Disclosure Terms, notify Dizzi in writing, and provide all reasonable assistance to Dizzi in connection with any proceedings which it may institute against any person for such breach of confidence. Recipient represents that: (i) it has sufficient technical systems and administrative procedures in place to ensure compliance with the provisions of these Non- Disclosure Terms and to detect any non-compliance thereof and undertakes to ensure the continued implementation of such systems and procedures; and (ii) it shall maintain a list of individuals or entities to whom any Confidential Information is disclosed pursuant to the provisions of these Non-Disclosure Terms and make such list available to Dizzi upon its request.
You represent, warrant and undertake that: (i) you have good and sufficient capacity, power, authority and right to enter into, execute and deliver these Non-Disclosure Terms on behalf of Recipient and to duly observe and perform the covenants and obligations contained herein, (ii) your performance hereunder, individually or in combination with others, will not conflict with or result in a breach, default or violation of any: (A) organizational instrument of Recipient or any agreement to which Recipient is a party or to which it is bound, or (B) law, regulation or order, and (iii) all necessary corporate action has been taken by Recipient to authorize and approve entering into these Non- Disclosure Terms by you and the observance and performance of the covenants and obligations contained herein.
Recipient’s obligations hereunder with respect to each item of Confidential Information shall be perpetual, until such time as the Confidential Information shall have become public domain through no fault of Recipient or a breach of these Non-Disclosure Terms.
These Non-Disclosure Terms shall be effective as of the date stated above and shall terminate twelve (12) months from acceptance thereof, unless earlier terminated, with respect to future disclosures, upon thirty (30) days’ prior written notice, and provided, however that the provisions of Sections 2,3 and 5 above and Sections 7-10 below shall survive the termination or expiration of these Non-Disclosure Terms.
7 Return of Materials.
Promptly following the earlier of (i) termination or expiration of these Non-Disclosure Terms; or (ii) within seven (7) days following a written request by Dizzi at any time, Recipient will (a) deliver to Dizzi all Confidential Information and all documents or media containing any such Confidential Information or any derivative thereof, and any and all copies or extracts thereof (or shall have such documentation and/or media destroyed and shall so confirm in writing, at Dizzi’s sole discretion); and (b) immediately cease all further use of the Confidential Information.
8. Mutual Disclaimers; No Proprietary Rights.
Dizzi and Recipient shall have no obligation to enter into any further agreement with each other. Nothing herein shall be deemed to create any principal/agent, employee- employer, joint venture or other business relationship between Dizzi and Recipient. It is understood and agreed that Confidential Information is provided “AS IS”. No warranties, express or implied, of any kind are given by Dizzi with respect to Confidential Information provided hereunder. In no event shall Dizzi be liable for any use by Recipient of Confidential Information or for any loss, claim, damage or liability which may arise from or in connection with these Non-Disclosure Terms or the use, handling or storage of Confidential Information hereunder. All Confidential Information shall remain the sole property of Dizzi (or its respective owner(s)), and no patent, copyright, trademark, design or other proprietary right or license is granted by these Non-Disclosure Terms. Recipient understands that nothing herein requires the disclosure of any Confidential Information, which shall be disclosed, if at all, solely at the option of the Dizzi.
9. Injunctive and Other Relief; No Derogation of Rights.
Since a breach by Recipient of any of the promises or agreements contained herein may result in irreparable and continuing damage to Dizzi for which there may be no adequate remedy at law, Dizzi shall be entitled to seek injunctive relief and/or a decree for specific performance without posting a bond and without proving actual damages as well as such other relief as may be proper (including monetary damages if appropriate) in any competent court worldwide. Nothing in these Non-Disclosure Terms shall be construed as derogating from any right or remedy that the Dizzi may be entitled to under applicable law.
These Non-Disclosure Terms shall bind and inure to the benefit of the parties and their successors and assigns. Recipient may not transfer or assign any rights or obligations under these Non- Disclosure Terms without the prior written consent of Dizzi. Dizzi may freely assign these Non-Disclosure Terms. These Non-Disclosure Terms represent the entire understanding and agreement between the parties with respect to the subject matter hereof and supersedes all prior communications, agreements and understandings relating to the subject matter hereof. In the event that any of the provisions of These Non-Disclosure Terms shall be held by a court or other tribunal of competent jurisdiction to be illegal, invalid or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that these Non-Disclosure Terms shall otherwise remain in full force and effect. No modification or amendment of these Non-Disclosure Terms will be valid unless executed by both parties. The NON-DISCLOSURE TERMS observance of any term hereof may be waived (either prospectively or retroactively and either generally or in a particular instance) only with the written consent of Dizzi and to such extent set forth therein; no failure or delay in enforcing any right will be deemed a waiver. Subject to Dizzi’s rights under the provisions of Section 9 above, these Non-Disclosure Terms shall be governed by and construed in accordance with the laws of England without regard to the application of principles of conflicts of law, and any dispute controversy or claim arising out of, or relating to these Non-Disclosure Terms, its interpretation or performance hereunder shall be settled exclusively by arbitration in accordance with the International Chamber of Commerce (“ICC”) Arbitration Rules as at present in force and shall be held at London, England in the English language by one arbitrator. The appointing authority shall be the ICC acting in accordance with the Rules adopted by the ICC for this purpose. The arbitrator’s decision will be final and binding upon the parties. All arbitration costs and expenses, including the arbitrator’s fees, will be borne equally by the parties, unless otherwise awarded by the arbitrator in his discretion. Each party hereby waives any forum non conveniens claim in connection with said arbitration or any similar objection or any claims against the enforcement of the arbitrator’s ruling in any applicable jurisdiction. Nothing in this section will be construed as prohibiting any party from applying to a court for an injunctive relief with or without prior written notice to the other party.