MUTUAL NONDISCLOSURE AGREEMENT
BY ACCEPTING THIS MUTUAL CONFIDENTIALITY AGREEMENT (THIS “AGREEMENT”), EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING A FORM THAT REFERENCES THIS AGREEMENT, YOU ARE AGREEING TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT.
This Agreement is made as of the date of the Follow Up Boss Free Assessment form submission (the “Effective Date”), by and between the entity or individual entering into this Agreement (“You” or “Your”) and Amplified Solutions Consulting LLC, having a principal place of business at 9320
Brumbelow Crossing Way, Alpharetta, Georgia 30022 (“Amplified Solutions”). Throughout this Agreement, each of You and Amplified Solutions are sometimes referred to herein, individually, as a “Party”, and, collectively, as the “Parties”.
The Parties desire to disclose certain Confidential Information (as defined below) in connection with discussing, analyzing, and exchanging information about each Party’s products, services, and other offerings to determine whether the Parties may enter into a mutually beneficial business relationship (the “Purpose”).
2. Confidential Information.
(a) As used herein, “Confidential Information” means information that relates to the Purpose or that, although not related to such Purpose, is nevertheless disclosed as a result of the Parties’ discussions in that regard, and that should reasonably have been understood by the Party receiving such information (the “Receiving Party”), because of legends or other markings, the circumstances of disclosure, or the nature of the information itself, to be proprietary and confidential to the Party disclosing the information (the “Disclosing Party”) or an Affiliate of the Disclosing Party or to a third party. Confidential Information may be disclosed in written or other tangible form (including on electronic media) or by oral, visual, or other means. Confidential Information includes all of the following, whether or not reduced to tangible form: software codes, computer programs, trade secrets, patents, patent applications, copyrights, know-how, processes, research, development, ideas, inventions (whether patentable or not), formulas, algorithms, technical drawings, schematics, designs, diagrams, models, flow charts, documentation, specifications, databases, financial information, business plans, employee information, customer lists, sales information and forecasts, marketing plans, customer leads, customer information, anticipated markets, other information of a similar nature, and any other trade secrets or non-public business information belonging or pertaining to either of the parties. “Affiliate” means any person or entity directly or indirectly controlling, controlled by, or under common control with a Party.
(b) The definition of Confidential Information shall not include any information which: (i) was in the public domain when disclosed through no fault of the Receiving Party or its representatives; (ii) becomes publicly known after disclosure, other than as a result of the Receiving Party’s or its representative’s violation of this Agreement; (iii) was in the Receiving Party’s possession when disclosed without restriction and was not acquired directly or indirectly from the Disclosing Party or its representatives; (iv) is shown by written evidence to have been developed by the Receiving Party independently after disclosure without benefit of the Confidential Information; or (v) was received after disclosure from a third party who did not require it to be held in confidence and who did not acquire it directly or indirectly from the Disclosing Party or its representatives.
3. Confidentiality Obligations.
Throughout the Term (as defined below), the Receiving Party will (a) not use the Confidential Information for any purpose other than the Purpose; (b) hold Confidential Information in confidence and take reasonable precautions to protect such Confidential Information (such
precautions to include, at a minimum, all precautions the Receiving Party employs with respect to its own Confidential Information, but in no event using less than a reasonable standard of care); (c) not disclose Confidential Information except to its employees, representatives, suppliers, or subcontractors, in each case only to the extent necessary to achieve the Purpose and only if such employees, representatives,
suppliers or subcontractors are legally bound by written agreement to comply with the Receiving Party’s obligations under this Agreement, or are otherwise bound to the Receiving Party by obligations of confidentiality no less restrictive than those set forth in this Agreement, and provided that Receiving Party will be liable for any breach of the foregoing obligation by improper disclosure of Confidential Information by any such employees, representatives, suppliers or subcontractors; and (d) not reverse engineer any materials disclosed under this Agreement or remove any proprietary markings from any Confidential Information.
4. Mandatory Disclosure.
The Receiving Party may make disclosures as required by law or court order provided that the Receiving Party: (a) makes commercially reasonable efforts to provide the Disclosing Party with notice of such disclosure as promptly as possible (so that the Disclosing Party may seek a protective order or other confidential treatment with respect to Confidential Information at the Disclosing Party’s sole expense); and (b) uses diligent efforts to limit such disclosure.
The confidentiality obligations set out in this Agreement commence upon receipt of Confidential Information and continue thereafter until the earlier of (a) three (3) years after the date of disclosure, or with regard to trade secrets (or other proprietary or non-public information), until such time as a trade secret (or other proprietary or non-public information) disclosed under this Agreement becomes publicly known and made generally available through no action or inaction of the Receiving Party, or (b) such time as the Parties enter into a written agreement which expressly supersedes this Agreement (the “Term”).
6. Return of Confidential Information.
All Confidential Information disclosed under this Agreement remains the property of the Disclosing Party and, unless otherwise noted herein, shall be promptly returned or destroyed upon request together with all copies made of such Confidential
Information by the Receiving Party. Upon request, such destruction shall be certified in writing to the Disclosing Party by an authorized officer of Receiving Party. The Receiving Party may retain Confidential Information contained in electronic archives and backups made in the ordinary course of business (including for legal or internal compliance purposes), provided such Confidential Information remains subject to the protections hereof, notwithstanding the termination of this Agreement or the expiration of the Confidentiality Period, until eventually erased or destroyed in the ordinary course of the Receiving Party’s records retention procedures.
7. No Commitment.
It is understood that this Agreement does not obligate either of the Parties to enter into further business discussions. Each Party acknowledges that Confidential Information provided by the Disclosing Party does not, and is not intended to represent, a commitment to enter into a business relationship with the Receiving Party.
8. No License.
The Disclosing Party retains all right, title, and interest in and to its Confidential Information. Nothing contained in this Agreement will be construed as granting or conferring any rights by license or otherwise in any Confidential Information disclosed by the Parties.
9. No Representations or Warranties.
Neither Party, when acting as a Disclosing Party, nor any of its representatives, makes any representation or warranty, expressed or implied, as to the accuracy or completeness of the Confidential Information disclosed to the Receiving Party hereunder. Neither a Disclosing Party nor any of its representatives shall be liable to the Receiving Party or any of its Representatives relating to or resulting from the Receiving Party’s use of any of the Confidential Information or any errors therein or omissions therefrom.
10. Equitable Relief.
Each Party acknowledges that its breach of the provisions of this Agreement may cause irreparable harm to the other Party, and that monetary damages and/or remedies at law may be inadequate. Therefore, in addition to any other remedies available at law or in equity, each of the Parties may obtain specific enforcement or injunctive relief in the event of any breach or attempted breach of this Agreement without proving actual damages.
11. Compliance with Laws.
Each Party agrees, represents, and warrants that it will comply with all laws, statutes, regulations, rulings, or enactments of any governmental authority, including but not limited to export compliance regulations applicable to its performance hereunder.
Waiver. No finding that a part of this Agreement is invalid or unenforceable shall affect the validity of any other part hereof or thereof. The invalid part will be declared to be separate, severable and distinct, while the remainder of the Agreement will continue to be applicable and enforceable to the fullest extent permitted by law. A Party’s failure to enforce at any time any provision of this Agreement will not be construed as a waiver of such provision or of any rights thereafter to enforce such provision. Any waiver of any of the terms and conditions of this Agreement shall be in
writing and executed by each of the Parties.
13. Entire Agreement. With respect to the subject matter contained herein, this Agreement contains the entire understanding of the Parties, and supersedes all prior agreements and understandings between the Parties. Any amendment to this Agreement shall be in writing and executed by each of the Parties.
14. Governing Law. This Agreement shall be governed by and construed in accordance with the law of the State of Georgia without giving effect to any choice or conflict of law provision or rule that would cause the application of laws of any jurisdiction other than those of the State of Georgia.
15. Assignment. Neither Party may assign any of its rights or delegate any of its obligations hereunder without the prior written consent of the other Party, except to an Affiliate. Any purported assignment or delegation in violation of this Section 15 shall be null and void. No assignment or
delegation shall relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
16. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by conventionally accepted electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
17. Notices. Notices required to be given by one Party to the other in connection with this Agreement will be given in writing and delivered via personal delivery, courier service, email, or electronic message to such address as a Party may provide to the other in accordance with this Section. All notices shall be effective upon the earlier of (a) receipt by the Party to which notice is given, or (b) the fifth (5th) day following mailing. Any notice to Amplified Solutions shall be submitted through Amplified Solutions’ contact page.