BY CLICKING ON THE “Submit” BUTTON RECEIVING PARTY (AS DEFINED BELOW) IS CONSENTING TO BE BOUND BY THIS AGREEMENT. IF RECEIVING PARTY DOES NOT AGREE TO ALL THE TERMS SET FORTH IN THIS AGREEMENT, DO NOT CLICK THE “Submit” BUTTON . FOR THE PURPOSES OF THIS AGREEMENT, “RECEIVING PARTY” MEANS THE INDIVIDUAL OR ENTITY THAT ENTERS INTO THIS AGREEMENT WITH METRICSTREAM.
This Non-Disclosure Agreement (“Agreement”) is entered into as of the date the Receiving Party clicks the “Submit” button (the “Effective Date”) by and between MetricStream, Inc.(“MetricStream” or “Disclosing Party”), a Delaware corporation, having a principal place of business at 6201 America Center Drive, Suite 240, San Jose, CA 95002 and Receiving Party. The Disclosing Party and Receiving Party shall individually be known as “Party” or collectively known as “Parties.”
“Proprietary Information” means the following information and related materials (whether written or oral) of the Disclosing Party identified as confidential or proprietary and disclosed during the period of the Parties’ discussions and evaluations from and after the Effective Date with respect to the Purpose of the Disclosure (defined below): financial information or projections; lists of and information about suppliers, dealers, customers, potential customers, and associated statistical and financial information, specifications and uses of products and services; platform, product research; sales, marketing and strategic plans; and other significant business, product or technical information otherwise defined as "trade secrets" under the Uniform Trade Secrets Act of California and includes Personal Data.
“Purpose of the Disclosure”: To facilitate discussions about, and the evaluation of, a potential business relationship between the Parties.
THE PARTIES HEREBY AGREE AS FOLLOWS:
Property of Disclosing Party. All right, title and interest in and to the Proprietary Information shall be and remain vested in Disclosing Party and its Client. Nothing in this Agreement shall grant the Receiving Party any license or right of any kind with respect to the Proprietary Information, other than to review and evaluate such information solely for the Purpose of the Disclosure set forth above. All Proprietary Information is provided on an “AS IS” basis; and all representations and warranties, express or implied, are hereby disclaimed.
Receiving Party agrees that it will:
- use best efforts to safeguard the Proprietary Information, and to prevent any unauthorized access, reproduction, disclosure;
- use the Proprietary Information only for the Purpose of the Disclosure and then only in strict compliance with the provisions hereof and subject to any applicable laws, e.g., export control laws governing technical data;
- not disclose the Proprietary Information to any third party except without the prior written consent of the Disclosing Party or its Client (with respect to the Proprietary Information of Client), Receiving Party agrees to use its best efforts to recover any Proprietary Information in such person's custody or control;
- with respect to any Proprietary Information the Receiving Party is compelled to disclose by law or pursuant to an order or requirement of a court, administrative agency, or other governmental body, the Receiving Party must notify the Disclosing Party and its Client (with respect to the Proprietary Information of Client) upon receipt of such order or requirement and in any event prior to such disclosure (unless such notification would be unlawful) to enable the Disclosing Party or its Client to seek a protective order or otherwise prevent, restrict or limit such disclosure.
- (v) not remove any copyright notice, trademark notice, and/or other proprietary legend or indication of confidentiality set forth on or contained in any of the Proprietary Information;
- not to disassemble or decompile software, or otherwise attempt to reverse engineer the design and function of any of the Proprietary Information; and
- promptly notify Disclosing Party in writing if it becomes aware of any unauthorized use or disclosure of the Proprietary Information, including a detailed description of the circumstances of the disclosure and the parties involved.
Notwithstanding the provisions of Section 2(A) above, the Receiving Party has no obligation to maintain the confidentiality of any Proprietary Information which: (a) Receiving Party can demonstrate was known by Receiving Party prior to the disclosure thereof by Disclosing Party; (b) properly came into the possession of Receiving Party from a third party which was not under any obligation to maintain the confidentiality of such information; (c) has become publicly available through no act or fault on the part of the Receiving Party in breach of this Agreement; or (d) Receiving Party can demonstrate that it was independently developed by or for Receiving Party without the use of Proprietary Information.
Term. Receiving Party’s obligations hereunder with respect to Proprietary Information disclosed by the Disclosing Party shall commence upon the Effective Date and shall survive termination of this Agreement. Promptly upon such termination or Disclosing Party's request, Receiving Party shall return or certify the destruction or return of all Proprietary Information and shall not retain any copies thereof.
Competition. Neither Party has an obligation under this Agreement to enter into any other agreement with the other Party. Nothing in this Agreement shall prohibit or restrict either Party’s right to develop, use, or market products or services similar to or competitive with those of the other Party disclosed in the Proprietary Information as long as it shall not thereby breach this Agreement. Additionally, each Party acknowledges that the other may already possess or have developed products or services similar to or competitive with those of the other Party to be disclosed in the Proprietary Information.
Equitable Relief. Receiving Party agrees that any unauthorized use of the Proprietary Information by Receiving Party shall cause Disclosing Party and its Client irreparable harm for which its remedies at law would be inadequate. Therefore, in addition to any other rights it may have at law, the Disclosing Party shall be entitled to seek equitable relief.
General. This Agreement constitutes the entire agreement and understanding between the parties with respect to the Proprietary Information listed above, and supersedes all prior and contemporaneous negotiations, discussions and understandings of the parties, whether written or oral. No waiver or modification of any of the provisions of this Agreement shall be valid unless in writing and signed by both of the parties. Neither Party may assign the rights under this Agreement to any third party without the other Party’s prior written consent and any attempted or purported assignment of this Agreement without such consent shall be void; provided, however, that a merger, sale or disposition by one of the parties of all or substantially all of that Party’s assets shall not be deemed to be an assignment or transfer hereunder. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California, excluding its choice of law provisions. Should any provision of this Agreement be determined to be void, invalid or otherwise unenforceable by any court of competent jurisdiction, such determination shall not affect the remaining provisions hereof which shall remain in full force and effect.