MUTUAL CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement (“Agreement”) is entered into as of the
The parties hereto agree as follows:
1.
Confidential Information – “Confidential Information” is defined as any non-public information, whether or not marked or otherwise indicated as being confidential, whether written or verbal, of either party hereto (“Disclosing Party”) that is disclosed to the other party hereto (“Receiving Party”) in connection with or as a result of a potential or agreed upon business relationship pursuant to which one will provide services to the other, including the existence of such disclosure and related discussions (“Purpose”). Such Confidential Information includes, but is not limited to business plans, forecasts, ideas, concepts, methods, techniques, projections or analyses, software, hardware or system designs, specifications, documentation, architecture, structure, protocols, requests for proposals, and proposals.
2.
Exclusions from Confidential Information – Notwithstanding any other provisions of this Agreement, each party hereto acknowledges that Confidential Information will not include and cease to be any information that: (a) is or becomes publicly known to Receiving Party through no wrongful act of or breach of this Agreement by Receiving Party; (b) is, at the time of disclosure under this Agreement, already known to Receiving Party; (c) is or becomes rightfully and without breach of this Agreement or any other known duty of confidentiality in Receiving Party’s possession other than from Disclosing Party; or (d) is independently developed by Receiving Party without reference to or reliance upon the Confidential Information or without breach of this Agreement. It will be presumed that information disclosed by Disclosing Party to Receiving Party does not fall in the foregoing categories and, in the event of a dispute thereon, the burden will lie with Receiving Party to demonstrate otherwise.
3.
Duty Not to Disclose – Unless expressly authorized in writing by Disclosing Party, Receiving Party agrees to retain the Confidential Information in confidence and will not disclose or use the Confidential Information for any purpose other than the Purpose. Confidential Information may be disclosed to Receiving Party’s employees, officers, directors, consultants, agents and advisors and those of its affiliates (“Representatives”) that are subject to a duty of confidentiality at least as stringent to the confidentiality obligations agreed to by the parties herein and for which Receiving Party will be liable. Before receiving any part of the Confidential Information, Receiving Party will inform its Representatives of Receiving Party’s duties under this Agreement.
4.
Relief from Duty – Receiving Party will be relieved of its obligation hereunder if and to the extent that Confidential Information (a) is disclosed pursuant to the lawful requirement or order of a governmental agency or court, or disclosure is required by operation of law, provided that Receiving Party, if legally permitted, gives prompt notice to Disclosing Party to enable Disclosing Party to seek a protective order limiting disclosure and use of the information so disclosed with which Receiving Party agrees to reasonably assist; or (b) is explicitly approved for release by written authorization of Disclosing Party.
5.
Destruction of Confidential Information – Each party agrees that, upon termination hereof, or at any time upon the written request of Disclosing Party to Receiving Party, Receiving Party will promptly: (a) destroy all originals and copies of all documents and materials it has received or created containing Confidential Information; (b) upon the written request of Disclosing Party, provide a notarized written statement from an officer or principal to Disclosing Party certifying that all documents and materials referred to in the foregoing clause (a) have been destroyed. Notwithstanding the foregoing, each party will be permitted to retain one copy of Confidential Information and all Confidential Information stored in its systems, including the backups thereof, provided that the terms hereof will continue to apply thereto indefinitely.
6.
No Further Duties – The parties hereto acknowledge and agree that prior to the execution by them of a written agreement expressly stating their intention to be legally bound or to deal exclusively with one another, each party hereto (a) will have no duty or obligation to one another with respect to the Purpose other than the duties and obligations contained in this Agreement, (b) will have no duty to enter into such business relationship, and (c) will not be restricted from dealing with others with respect to the subject matter of the Services.
7.
No License / No Further Use – No license, express or implied, in the Confidential Information is granted to Receiving Party other than to use the information in the manner and to the extent authorized by this Agreement. Disclosing Party will retain title and full ownership rights to its Confidential Information. Receiving Party acknowledges that by virtue of Disclosing Party’s exclusive ownership of its Confidential Information Receiving Party may not now or at any time in the future use or exploit Disclosing Party’s Confidential Information without the prior written consent of Disclosing Party.
8.
Warranty – Except with respect to information, including Confidential Information provided by Disclosing Party for use by Receiving Party in its performance of services for which it is engaged, Disclosing Party warrants with respect to both accuracy and completeness, Disclosing Party accepts no responsibility for nor makes any representation or warranty, express or implied, with respect to the accuracy, reliability or completeness of any Confidential Information made available to Receiving Party and Disclosing Party shall have no liability whatsoever to Receiving Party or any other person or entity, including without limitation, in contract, tort, or under Federal or State securities laws, relating to or resulting from the use of the Confidential Information or any errors or omissions therefrom.
9.
Term – The term of this Agreement will commence on the date specified in the first paragraph hereof and will remain in effect until the later of (a) two (2) years from that date and (b) two (2) years from the termination of all other agreements between the parties hereto in effect as of the date hereof and/or entered into while this Agreement is in effect. Notwithstanding such termination, the duties specified under this Agreement will remain in full force and effect for Confidential Information provided while this Agreement was in effect until such information is no longer Confidential Information as defined under this Agreement.
10.
Injunctive Relief – Each party agrees and acknowledges that any breach of this Agreement may cause the other party irreparable harm for which monetary damages may be inadequate. Accordingly, either party will be entitled to injunctive relief without a duty to post a bond or other security to remedy any threatened or actual breach of this Agreement by the other and agrees that, notwithstanding anything to the contrary herein, such relief may be sought in any court of competent jurisdiction.
11.
Choice of Law – The parties hereto acknowledge and agree that this Agreement will be governed under the law, including the common law, of the United States and the State of New York, U.S.A. without regard to New York’s conflict of laws statutes. In the event of a dispute under this Agreement, where such dispute has not been settled within thirty (30) days after notice from either party to the other of the existence of the dispute, the parties agree that, at the request of either party, such dispute will be submitted for binding arbitration with the following conditions: (a) the proceeding will be held before a single arbitrator selected jointly by the parties or, where such agreement cannot be reached, by appointment of the Administrator of the American Arbitration Association or his or her designee; (b) except as modified by this article, the International Arbitration Rules of the American Arbitration Association will govern the arbitration; (c) the proceeding will be conducted in English; (d) the proceeding will be held in Washington, D.C., U.S.A.; (e) the arbitrator will decide the assignment of the costs of the arbitration; (f) the proceeding will be closed except to the parties, their attorneys, representatives, witnesses and experts, all of whom must agree to maintain the confidentiality of the dispute; (g) the existence, proceeding and resolution of the dispute will be kept confidential by the parties and will only be disclosed to parties and individuals with a need to know of its existence and who will agree to maintain confidentiality; (h) the arbitration will be binding upon the parties unless mutually agreed otherwise in writing; and (i) it is the intention of the parties that the decision of the arbitrator will be enforceable in any national court of competent jurisdiction pursuant to the United Nations Convention for the Recognition and Enforcement of Foreign Arbitral Awards of 1958.
12.
Whole Agreement / Amendments – This Agreement contains the entire agreement between the parties relating to the subject hereof and supersedes any prior arrangements relating to the subject matter hereof. Any amendment hereto must be in writing and executed by an authorized representative of each party hereto.
13.
Severability – If, for any reason, any portion of this Agreement will be determined by a court of competent jurisdiction or arbitrator, to be void or unenforceable, then (i) that portion will be of no effect, (ii) the balance of the Agreement will remain in full force and effect, and (iii) the Agreement will be reformed to replace such portion found to be void or unenforceable with a valid and enforceable provision that comes as close as possible to expressing the intention of the portion found to be void or unenforceable.
14.
No Waiver – No failure or delay in exercising any right, power or privilege under this Agreement will operate as a waiver of it, nor will any single or partial exercise of it preclude any further exercise or the exercise of any right, power or privilege under this Agreement or otherwise.
15.
Successors and Assigns – This Agreement will be binding upon, and will inure to the benefit of the parties and their respective successors and assigns. Neither party may assign this Agreement without the prior written consent of the other, provided, however, that either party may assign this agreement to its successor-in-interest in connection with a merger and/or the sale of all or substantially all of its assets.
16.
No Partnership – Nothing in this Agreement will constitute the creation of a partnership, joint venture or agency between the parties.
17.
Counterparts – This Agreement may be executed in counterparts, by either an original signature or signature transmitted by facsimile transmission, by email in portable document format (PDF), or other similar process and each copy so executed shall be deemed to be an original and all copies so executed shall constitute one and the same agreement. It is further agreed that the foregoing processes may be used with regard to the execution of further documents among the parties hereto.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives.
For Globe Tax Services, Inc.
For
______________________________
______________________________
By:
Martin S. Foont
By:
_________________________
Title:
President & CEO
Title:
_________________________
Date:
_________________________
Date:
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