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Acme Confidentiality Agreement

Acme Incorporated
Andrea Ang
Effective Date: 2016-07-09


By and Between:
    • Acme Incorporated,
    • a Delaware Corporation, (ELF Code: XTIQ) registered at Wilmington, Delaware, United States of America with the identity number 12345654321,
    • whose principal place of business is 75 State Street, Boston, MA 02109, United States of America,
    • represented by Ms. Abigail Altima, its President,
    • herein referred to as "Acme",
    • Andrea Ang,
    • an individual, born on 1985-01-23 at San Francisco, California, United States of America,
      a citizen of United States of America,
      whose profession is CEO,
    • residing at 55 Broadway, Cambridge, MA 02142, United States of America,
    • herein referred to as "Ang",
Each a "Party" and collectively the "Parties."

This Agreement is made as of 2016-07-09 (the "Effective Date"), by and between the Parties.


Recitals
{Why.sec}

In consideration of the mutual promises contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

  1. Confidentiality
    {AltPrompt}: Select one (copy)- "Relate.Conf.Intro.sec={Relate.Conf.Intro.AltX.sec}" where X is 1-3:
    1. Each Party (a "Disclosing Party") may disclose Confidential Information to another Party (a "Receiving Party").
    2. {_P1} ("Disclosing Party") may disclose Confidential Information to {_P2} ("Receiving Party").
    3. {_P2} ("Disclosing Party") may disclose Confidential Information to {_P1} ("Receiving Party").
    1. Confidentiality Engagements
      1. Disclose
        Subject to Section 1.3, Receiving Party agrees that at all times and notwithstanding any termination or expiration of this Agreement that Receiving Party will hold in strict confidence and not disclose any Confidential Information of Disclosing Party.
      2. Use
        Receiving Party agrees that at all times and notwithstanding any termination or expiration of this Agreement that Receiving Party will use Confidential Information of Disclosing Party only for the Purpose.
      3. Care
        Receiving Party will protect Confidential Information with a degree of care that is at least the same as Receiving Party uses to protect its own confidential information, and in any event at least a reasonable degree of care.
      4. Access
        {AltPrompt}: (copy)- "Relate.Conf.Engage.Access.sec={Relate.Conf.Engage.Access.AltX.sec}" where X is 1-2:
        1. Receiving Party is an individual and will not permit any other person to have access to Confidential Information of Disclosing Party.
        2. Receiving Party will limit access to Confidential Information of Disclosing Party only to {AltPrompt}: Select one (copy)- "Relate.Conf.Engage.Access.Role.sec={Relate.Conf.Engage.Access.Role.AltX.sec}" where X is 1-3:
          1. {PersonList.cl}
          2. those of Receiving Party's employees or authorized representatives
          3. those of Receiving Party's employees, officers, directors, lawyers and accountants
          {AltPrompt}: (copy)- "Relate.Conf.Engage.Access.Cond.sec={Relate.Conf.Engage.Access.Cond.AltX.sec}" where X is 1-4:
          1. who have a need to know
          2. who have a need to know and who have signed confidentiality agreements
          3. who have a need to know and who have signed confidentiality agreements with confidentiality obligations at least as restrictive as those contained in this Agreement
          4. who have a need to know and who have signed confidentiality agreements with confidentiality obligations at least as restrictive as those contained in this Agreement in a form approved in advance by Disclosing Party
          .
      5. Copy
        Receiving Party will not reproduce Confidential Information of Disclosing Party in any form except as required to accomplish the intent of this Agreement. Any reproduction by Receiving Party of any Confidential Information of Disclosing Party will remain the property of Disclosing Party and will contain any and all confidential or proprietary notices or legends that appear on the original, unless otherwise authorized in writing by Disclosing Party.
      6. Decompile
        Receiving Party agrees that software programs of Disclosing Party contain valuable confidential information and Receiving Party agrees that it will not modify, reverse engineer, decompile, create other works from or disassemble any software programs contained in Confidential Information of Disclosing Party without the prior written consent of Disclosing Party.
      7. Sell
        Receiving Party will not make, have made, use or sell for any purpose any service, product or item using, incorporating or derived from any Confidential Information of Disclosing Party.
    2. Term of Confidentiality
      {AltPrompt}: Select one (copy)- "Relate.Conf.Life.sec={Relate.Conf.Life.AltX.sec}" where X is 1-3:
      1. Receiving Party's obligations with respect to all Confidential Information of Disclosing Party will terminate only pursuant to Section 1.3.
      2. Receiving Party's obligations with respect to all Confidential Information of Disclosing Party will terminate on the earlier of {End.YMD} or when all such information has become subject to an exclusion from confidentiality pursuant to Section 1.3.
      3. Receiving Party's obligations with respect to each element of Confidential Information of Disclosing Party will terminate on the earlier of {DurationOfConfidentiality.TimeSpan} after the time such element was communicated by Disclosing Party to Receiving Party or when all such information has become subject to an exclusion from confidentiality pursuant to Section 1.3.
    3. Exceptions to Confidentiality
      1. Itemized Exceptions to Confidentiality
        Receiving Party will not have any obligations under this Agreement with respect to a specific portion of Confidential Information if Receiving Party can demonstrate with competent evidence that such portion of Confidential Information:
        1. was in the public domain at the time it was disclosed to Receiving Party;
        2. entered the public domain subsequent to the time it was disclosed to Receiving Party, through no fault of Receiving Party;
        3. was in Receiving Party's possession free of any obligation of confidence at the time it was disclosed to Receiving Party;
        4. was rightfully communicated to Receiving Party free of any obligation of confidence subsequent to the time it was disclosed to Receiving Party; or
        5. was developed by employees or agents of Receiving Party who had no access to any Confidential Information.
      2. Exception for Compelled Disclosure
        Notwithstanding any other provisions of this Agreement, Receiving Party may disclose Confidential Information, without violating the obligations of this Agreement, to the extent such disclosure is required by a valid order of a court or other governmental body having jurisdiction, and provided that, to the extent permitted by law Receiving Party gives Disclosing Party reasonable prior written notice of such disclosure and makes a reasonable effort to obtain, or to assist Disclosing Party in obtaining, a protective order preventing or limiting the disclosure and/or requiring that Confidential Information so disclosed be used only for the purposes required by the law, regulation or order.
  2. Definitions
    1. Agreement
      "Agreement" means this Acme Confidentiality Agreement, including any annexes and amendments.
    2. Confidential Information
      "Confidential Information" means any and all technical and non-technical information disclosed by Disclosing Party to Receiving Party under this Agreement including without limitation information regarding:
      1. patent and patent applications;
      2. trade secrets;
      3. proprietary and confidential information, ideas, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, algorithms, software programs, software source documents and formulae related to the current, future and proposed products and services of Disclosing Party, including without limitation Disclosing Party's information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, sales and merchandising and marketing plans
      4. information Disclosing Party provides regarding third parties; and
      5. all other information that Receiving Party knew, or reasonably should have known, was Confidential Information of Disclosing Party.
    3. Confidentiality Engagement
      "Confidentiality Engagement" means any of the engagements of Receiving Party under Section 1.1.
    4. Disclosing Party
      "Disclosing Party" means a Party who provides Confidential Information under this Agreement.
    5. Effective Date
      "Effective Date" is defined in the introduction section of this Agreement.
    6. Entity
      "Entity" means a partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture, other legal person or governmental body.
    7. Legal Proceeding
      "Legal Proceeding" means a formal legal proceeding such as a court case, arbitration proceeding or trade dispute.
    8. Party
      "Party" means any of the parties to this Agreement as defined in the introduction section of this Agreement.
    9. Person
      "Person" means a human or an Entity.
    10. Purpose
      "Purpose" has the meaning defined in the Recitals to this Agreement.
    11. Receiving Party
      "Receiving Party" means a Party who receives Confidential Information under this Agreement.
    12. Tribunal
      "Tribunal" means a formal legal tribunal, such as a court, arbitral panel or administrative court, that is charged with a Legal Proceeding involving the Parties.
  3. Relationship
    1. Termination
      1. Term
        This Agreement will terminate on {End.YMD}.
      2. Termination
        This Agreement may be terminated by either Party at any time upon thirty (30) days written notice to the other Party.
      3. Survival
        Receiving Party's obligations with respect to Confidential Information of Disclosing Party will survive termination of this Agreement.
    2. Limits
      1. No Agreement to Deal
        Neither this Agreement nor the disclosure of any Confidential Information hereunder shall result in any obligation on the part of either Party to enter into any further agreement with the other, license any products or services to the other or to require either Party to disclose any particular Confidential Information.
      2. No Agency
        Nothing in this Agreement creates or shall be deemed to create any employment, joint venture or agency between the Parties.
      3. No Warranty Regarding Information
        Disclosing Party is providing Confidential Information on an "as is" basis for use by Receiving Party at its own risk. Disclosing Party disclaims all warranties, whether express, implied or statutory, including without limitation any implied warranties of title, non-infringement or third party rights, merchantability or fitness for a particular purpose.
    3. Ownership
      1. No License
        Receiving Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any property rights, by license or otherwise, to any Confidential Information of Disclosing Party, or to any invention or any patent, copyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information.
    4. Representation Against Violation of Third-Party Intellectual Property Rights
      Disclosing Party represents that its communication of Confidential Information to Receiving Party does not violate any law or proprietary rights of, or agreement with, any third party.
    5. Notices
      Any notice required or permitted by this Agreement will be in writing and will be delivered as follows with notice deemed given as indicated:
      1. by personal delivery - when delivered personally;
      2. by courier service - upon written verification of receipt;
      3. by telecopy or facsimile transmission - upon acknowledgment of receipt of electronic transmission; or
      4. by certified or registered mail, return receipt requested - upon verification of receipt.
      Notice will be sent to the addresses set forth at the bottom of this Agreement or such other address as either Party may specify in writing.
    6. Law
      This Agreement and any action related thereto will be governed, controlled, interpreted and defined by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the law of a different state.
    7. Legal Disputes
      1. Tribunal
        Except as otherwise provided in this Agreement, any Legal Proceeding arising out of or relating to this Agreement shall be brought in {Forum.cl}. Each of the Parties:
        1. irrevocably submits to the exclusive jurisdiction of such Tribunal in any such Legal Proceeding;
        2. waives any objection it may now or hereafter have to venue or to convenience of forum;
        3. agrees that all claims in respect of such Legal Proceeding shall be heard and determined only in any such Tribunal and;
        4. agrees not to bring any Legal Proceeding arising out of or relating to this Agreement in any other tribunal, court or arbitral forum.
        Each Party acknowledges and agrees that these provisions regarding dispute resolution constitute a voluntary and bargained-for agreement between the Parties.
      2. Summons
        Service of process in any Legal Proceeding referred to in Section 3.7.1 may be served on any Party anywhere in the world, including by sending or delivering a copy of the process to the Party to be served at the address and in the manner provided for the giving of notices in Section 3.5. Nothing in this Section 3.7.2 will affect the right of any Party to serve legal process in any other manner permitted by law.
      3. Attorneys' Fees
        {AltPrompt}: (copy)- "Relate.Dispute.Cost.sec={Relate.Dispute.Cost.AltX.sec}" where X is 1-2:
        1. In the event any Legal Proceeding is brought in respect of this Agreement or any of the documents referred to in this Agreement, each of the Parties will bear its attorneys' fees and other costs incurred in such Legal Proceeding, except as may be specifically decided by the Tribunal.
        2. In the event any Legal Proceeding is brought in respect of this Agreement or any of the documents referred to in this Agreement, the prevailing Party will be entitled to recover reasonable attorneys' fees and other costs incurred in such Legal Proceeding, in addition to any relief to which such Party may be entitled.
    8. Remedies
      1. Return or Destruction
        Upon termination or expiration of this Agreement, or upon written request of either Party, Receiving Party will promptly return to Disclosing Party or destroy all documents and other tangible materials representing Confidential Information and all copies thereof.
      2. Notice of Leak
        Receiving Party will immediately notify Disclosing Party upon discovery of any loss or unauthorized disclosure of Confidential Information.
      3. Injunctions
        The Parties acknowledge and agree that each Party:
        1. would be irreparably harmed if any of the provisions of this Agreement are not performed in accordance with their specific terms;
        2. could not be adequately compensated in all cases by monetary damages alone for a breach of this Agreement by another Party;
        3. shall be entitled to enforce any provision of this Agreement by a decree of specific performance and to obtain temporary, preliminary, and permanent injunctive relief to prevent breaches or threatened breaches by another Party; and
        4. shall not be required to post any bond or give any other undertaking.
    9. Successors and Assigns
      1. Limit
        {AltPrompt}: Select one (copy)- "Assign.Limit.sec={Assign.Limit.AltX.sec}" where X is 1-3:
        1. A Party will not subcontract or otherwise delegate or assign this Agreement or any of its obligations under this Agreement without the other Party's prior written consent.
        2. {_P2} will not assign or transfer any rights or obligations under this Agreement without {_P1}'s prior written consent.
        3. {_P1} will not assign or transfer any rights or obligations under this Agreement without {_P2}'s prior written consent.
      2. Void
        {AltPrompt}: (copy)- "Assign.Void.sec={Assign.Void.AltX.sec}" where X is 1-4:
        1. Any attempted assignment, subcontract, delegation or transfer in violation of the foregoing will be null and void.
        2. Any attempted assignment, subcontract, delegation or transfer in violation of the foregoing will be null and void, except that either Party may assign this Agreement without such consent to its successor in interest by way of merger, acquisition or sale of all or substantially all of its assets.
        3. Any attempted assignment, subcontract, delegation or transfer in violation of the foregoing will be null and void, except that {_P1} may assign this Agreement without such consent to its successor in interest by way of merger, acquisition or sale of all or substantially all of its assets.
        4. Any attempted assignment, subcontract, delegation or transfer in violation of the foregoing will be null and void, except that {_P2} may assign this Agreement without such consent to its successor in interest by way of merger, acquisition or sale of all or substantially all of its assets.
      3. Benefit
        {AltPrompt}: Select one (copy)- "Assign.Benefit.sec={Assign.Benefit.AltX.sec}" where X is 1-3:
        1. Subject to the foregoing, this Agreement will be for the benefit of each Party's successors and assigns, and will be binding on each Party's assignees.
        2. Subject to the foregoing, this Agreement will be for the benefit of {_P1}'s successors and assigns, and will be binding on {_P1}'s assignees.
        3. Subject to the foregoing, this Agreement will be for the benefit of {_P2}'s successors and assigns, and will be binding on {_P2}'s assignees.
    10. Amendment
      No modification of or amendment to this Agreement will be effective unless in writing and signed by the Party to be charged.
    11. Waiver
      1. Any waiver or failure to enforce any provision of this Agreement by a Party on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
      2. A waiver of a breach of any provision of this Agreement by a Party will not operate or be construed as a waiver of any other or subsequent breach.
    12. U.S. Export Laws
      Receiving Party will not export, directly or indirectly, any U.S. technical data acquired pursuant to this Agreement, or any products utilizing such data, in violation of the United States export laws or regulations.
  4. Miscellaneous
    1. Usage
      1. In this Agreement, unless expressly stated otherwise:
        1. the singular includes the plural and vice versa;
        2. reference to any Person includes such Person's successors and assigns, if applicable, but only if such successors and assigns are permitted by this Agreement, and reference to a Person in a particular capacity excludes such Person in any other capacity;
        3. reference to a gender includes the other gender;
        4. reference to any agreement, document, or instrument means such agreement, document, or instrument as amended or modified and in effect from time to time in accordance with its terms;
        5. reference to any legal requirement means that legal requirement as from time to time in effect, including any amendment, modification, codification, replacement, or reenactment of such legal requirement;
        6. reference to any section or other provision of any legal requirement means that provision of such legal requirement as from time to time in effect, including any amendment, modification, codification, replacement, or reenactment of such section or other provision;
        7. "hereunder," "hereof," "hereto," and words of similar import refer to this Agreement as a whole and not to any particular Article, Section, or other provision of this Agreement;
        8. "including" (and with correlative meaning "include") means including without limiting the generality of any description preceding such term;
        9. "or" is used in the inclusive sense of "and/or";
        10. "any" means "any and all";
        11. with respect to the determination of any period of time, "from" means "from and including" and "to" means "to but excluding"; and
        12. a reference to a document, instrument, or agreement also refers to all addenda, exhibits, or schedules thereto.
      2. This Agreement was negotiated by the Parties with the benefit of legal representation, and any rule of construction or interpretation otherwise requiring this Agreement to be construed or interpreted against any party as having been drafted by it will not apply to any construction or interpretation of this Agreement.
      3. The headings contained in this Agreement are for convenience of reference only, shall not be deemed to be part of this Agreement, and shall not be referred to in connection with the construction or interpretation of this Agreement.
    2. Counterparts
      This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.
    3. Entire Agreement
      This Agreement is the final, complete and exclusive agreement of the Parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the Parties with respect to such matters.
    4. Interpretation to Make Valid
      If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole and, in such event, such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.


Signature
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
Acme Incorporated
("Acme")
By:


________________________
Name: Abigail Altima
Title: President
Date: ________________________
Signed at: Boston, Massachusetts, United States of America
  
Andrea Ang
("Ang")


________________________
Date: ________________________
Signed at: Cambridge, Massachusetts, United States of America