This mutual confidentiality agreement ("Agreement") is made by Encore IT Services & Solutions Pvt. Ltd. (unit of Encore Software Services, USA), with offices at Chennai, India, ("Encore"), and Rajesh Manickavel who agree as follows:
PURPOSE
Employee and Encore wish to explore the possibility of a collaborative relationship with one another. As part of that process, they may provide to one another certain of their respective proprietary information. The parties wish to set forth in writing their agreement concerning the treatment of such proprietary information.
AGREEMENT
1. Definition. "Confidential Information" means information are bound by written agreement or professional obligation (including formulae, patterns, compilations, programs, to preserve the confidentiality of such Confidential devices, methods, techniques and processes) of either party Information upon terms substantially in conformance with that derives economic value, actual or potential, from not the terms of this Agreement; and (c) use the Disclosing being generally known and not being readily Party’s Confidential Information solely in connection with ascertainable by proper means to other persons who can evaluating whether to engage in a collaborative business obtain economic value from its disclosure or use, and relationship with the Disclosing Party and in pursuit of the includes, without limitation, (a) each party’s software and purposes of any such relationship. The Receiving Party other products and works in progress (including computer shall not otherwise use or exploit the Disclosing Party’s software, manuals, and all other materials associated with Confidential Information for its own benefit or purposes, the use of the software) as well as all intellectual property or for the benefit or purposes of any third party. The rights associated therewith (including associated with Receiving Party shall notify the Disclosing Party functionality, programming techniques, interface elements, immediately upon discovery of any unauthorized use or data manipulation and management methods and formulae disclosure of the Disclosing Party’s Confidential represented in, or demonstrated by the use of, such Information or any other breach of this paragraph 3, software products); and (b) information relating to each and shall reasonably assist the Disclosing Party to regain party’s business affairs, internal operations, personnel, possession of its Confidential Information and prevent financial matters, technology, research and development, any further unauthorized use. product plans or offerings, markets, sales opportunities, or know-how. 4. Required Legal Disclosure. Notwithstanding paragraph 3 above, the Receiving Party may disclose the Disclosing 2. Exceptions. For purposes of this Agreement, “Disclosing Party’s Confidential Information to the extent required by Party” means the party that provided its Confidential any applicable law, regulation or court; provided, Information to the other party (“Receiving Party”). The however, that the Receiving Party will notify the Disclosing obligations in paragraph 3 below will not apply to, and Party promptly after becoming aware of its obligation to Confidential Information as defined hereunder will not make such disclosure and will permit the Disclosing Party include, information that (a) is or becomes publicly available, to seek to challenge or limit such required disclosure. In the except by the wrongful disclosure hereunder by the event of any required disclosure under this paragraph 4, the Receiving Party; (b) was rightfully in the Receiving Party’s Receiving Party shall furnish only that portion of the possession prior to receipt of the same from the Disclosing Disclosing Party’s Confidential Information that is legally Party; (c) was received by the Receiving Party from a third required. party who was not known by the Receiving Party to be under any obligation of confidentiality with respect to such 5. Term and Termination; Return. This Agreement shall information; (d) the Receiving Party can prove was terminate upon the conclusion of the parties’ proposed independently developed by it without any reference, direct collaborative business relationship, unless sooner or indirect, to Confidential Information of the Disclosing terminated by either party upon sixty (60) days advance Party; or (e) is approved in writing for release by the written notice. The obligations of confidentiality and Disclosing Party. limited use under this Agreement shall survive for a period of five (5) years from the date of such termination. 3. Obligations, Confidentiality and Limited Use. The Upon the written request of the Disclosing Party at any Receiving Party agrees that it will: (a) maintain and time, the Receiving Party shall promptly return all preserve the confidentiality of the Disclosing Party’s Confidential Information of the Disclosing Party together Confidential Information including, without limitation, with all copies thereof, whether in written, electronic or using at least the same degree of care (and, in any event, other form, or, at the election of the Disclosing Party, not less than a reasonable degree of care) to preserve the destroy all such Confidential Information of the Disclosing confidentiality of such Confidential Information as it Party, and deliver a written certification to the Disclosing takes to preserve the confidentiality of its own Party signed by an authorized representative that all such Confidential Information; (b) disclose the Disclosing Confidential Information has been returned or destroyed, as Party’s Confidential Information to only those of its applicable. employees, independent contractors and/or advisors who MNDA 01-07-13 page 1 of 2 Mutual Confidentiality Agreement
6. Ownership. Each party shall retain ownership of all right, the prevailing party will be entitled to its reasonable the Receiving Party any right, title, license or interest in any attorneys' fees and costs, including expert witness fees. Confidential Information provided by the Disclosing Party. 11. Successors and Assigns. Neither party may assign this 7. No Warranty. ALL CONFIDENTIAL INFORMATION IS Agreement or any benefit or obligation hereunder, in PROVIDED TO THE RECEIVING PARTY "AS IS" AND whole or in part, without the prior written consent of the WITHOUT ANY REPRESENTATION OR WARRANTY, other party, except that it may, upon written notice to the EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED other party, be assigned (a) to a parent, subsidiary or TO ANY WARRANTY OF MERCHANTABILITY, affiliate company (excluding any competitor of the FITNESS FOR A PARTICULAR PURPOSE, NON- Disclosing Party), or (b) to a successor in interest through INFRINGEMENT, ACCURACY, COMPLETENESS OR merger, acquisition, change of control or reorganization, or SUFFICIENCY. acquisition or sale of substantially all assets.
8. No Future Obligations. Nothing in this Agreement shall be 12. Severability. If any provision of this Agreement shall be construed as creating any obligation on the part of either held invalid or unenforceable for any reason, in whole or party to enter into a business relationship with the other in part, then the remaining provisions shall remain valid party, or as creating any partnership or any other legal entity and enforceable to the maximum extent permitted by between the parties. applicable law.
9. Enforcement. Each party agrees that money damages 13. Miscellaneous. This Agreement sets forth the entire would be inadequate compensation for breach of this agreement of the parties concerning the subject matter Agreement. Accordingly, each party hereby consents in hereof and supersedes all prior agreements, advance to the entry of equitable relief by a court of understandings and negotiations between the parties competent jurisdiction (including an injunction that enjoins regarding such subject matter. All amendments or the breaching party from disclosing or using the Disclosing exceptions to this Agreement must be in writing signed by Party’s Confidential Information) to enforce the terms hereof. both parties. This Agreement may be executed in one or Such remedies are in addition to any other remedies more counterparts, all of which, taken together, shall available at law or equity. constitute one and the same instrument. Each party agrees that facsimile signatures will have the same legal effect as 10. Governing Law. This Agreement will be governed by the original signatures and may be used as evidence of substantive laws of India. In connection with any dispute, execution.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the latest date set forth below.
Encore IT Services & Solutions Pvt. Ltd.: Employee:
