Non-Disclosure Agreement
This Agreement is entered into and made effective as of ______, 2016 (“Effective Date”) by and between TRU Simulation + Training Inc., a Delaware corporationwith a primary officelocated at 5 Alliance Drive Goose Creek, SC 29445(“TRU S+T”),and Other Company Full Name, with a primary office located atOther Company Primary Mailing Address (“Other Company Short Name”). Each may be referred to individually as a “Party” and collectively as the “Parties”.For purposes of this Agreement, the term “TRU S+T” shall include itself and any and all of its wholly-owned subsidiaries, upon which this Agreement is equally binding and for which it inures to their benefit.
TRU S+Tis thedisclosing Party (“Discloser”) under this Agreement.
1.Purpose and Use. The Recipient may use Proprietary Information (as defined in Section 2) it receives under this Agreement solelyfor the purpose ofPurpose Statement(the “Purpose”) during the term of this Agreement.
2.Definition of Proprietary Information. For purposes of this Agreement, “Proprietary Information” means all information and documentationrelated to the Purpose including, but not limited to, customer and competitive information, design concepts, statements of work, technical descriptions, and data, specifications, financial data, sales and marketing data, business strategies, inventions, processes, designs, software source code, and drawings. Proprietary Information also includes the proprietary informationof third parties provided to TRU S+T under a duty of confidentiality. Proprietary Information does not include information or documentation that was:
(a)published or otherwise is, or becomes, available to the public other than by breach of this Agreement;
(b)lawfully received from a third party without restriction on disclosure and without breach of this Agreement;
(c)already known by the Recipient and the Recipient can demonstrate that the information was known without breach of this Agreement;
(d)developed independently bythe Recipient without access to or use of the Proprietary Information; or
(e)approved in writing by the Discloser for public release or unrestricted disclosure by the Recipient.
the time it is
3.Limited Distribution. Recipient shall not disclose Proprietary Information, in whole or in part, except to its officers, directors, employees, agents, advisors,and affiliated companyemployees (collectively, “Representatives”) who have a need-to-know in order to perform tasks for the above stated Purpose. The Recipient shall ensure that each such Representative is aware of this Agreement and is subject to its confidentiality obligations.Recipientshall be responsible for any breach of this Agreement by any of its Representatives. If authorized in writing by Discloser, Recipient may disclose Proprietary Information of the Discloser to a subcontractor, supplier or other third party; provided that prior to such disclosure, the Recipient requires the third party to enter into a non-disclosure agreement with terms and conditions no less restrictive than those agreed to by Recipient under this Agreement.
4.Term, Termination and Survival of Protection. This Agreement, unless extended in writing by the Discloser, shall expire five (5) years from the Effective Date. Either Party may terminate this Agreement upon thirty (30) days written notice to the other Party. However, neither expiration nor termination of this Agreement shall affect the rights and obligations of either Party with respect to Proprietary Information disclosed under this Agreement prior to expiration or termination.
6.Duty of Care and Use Restrictions. Recipient shall use the same degree of care in safeguarding Proprietary Information as it uses to protect its own Proprietary Information disclosure of like importance, but in no event less than reasonable care. Recipient shalluseProprietaryInformationonlyinconnectionwiththeabove-stated Purpose and only during the period of time before expiration or termination as set forth in Section 5, and shall not use Proprietary Information to reverse engineer, decompile or disassemble any products or software of the Discloser.
7.Judicial Review Disclosure. In the event that Recipient becomes legally compelled to disclose any of the Proprietary Information, Recipient shall provide Discloser with prompt written notice so that Discloser may seek a protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained, Recipient shall furnish only that portion of the Proprietary Information which Recipient is legally required to disclose.
8.Notices and Authorizations. Notices and authorizations pursuant to this Agreement shall be in writing and shall be delivered to the following persons at the following addresses:
TRU S+T(Other Company Short Name)
Address: (TRU POC ADDRESS LINE 1)Address:
(TRU POC ADDRESS LINE 2)
Attention:(TRU POC)Attention:
Phone:(TRU POC PHONE)Phone:
E-mail: (TRU POC EMAIL)E-mail:
EitherPartymay,uponwrittennoticetotheotherParty,changethedesignatedpersontowhomnotices and communications in connection with this Agreement shall be sent.
9.Disclosure to Government Agency. In the event the Discloser provides prior written authorization to the Recipient to disclose Proprietary Information to a government agency in connection with the Purpose, the Recipient shall:
(a)identify the Proprietary Information as belonging to the Discloser, and
(b)mark the Proprietary Information with appropriate restrictive legends, as required by the government agency, with the intent to keep the Proprietary Information confidential and to protect the Discloser’s rights.
10.Return of Proprietary Information. Upon termination of this Agreement, the Recipient will cease all use of Proprietary Information and, shall return to the Discloser all written materials, computer disks or other tangible embodiments of the Discloser's Proprietary Information, or, at the option of the Discloser, will destroy same and certify to the Discloser that the same has been destroyed, except that the Recipient may retain one copy for archival purposes only.
11.Limitation on Obligations. This Agreement does not obligate Discloser to disclose any Proprietary Information to the other Party. The Parties are independent contractors and this Agreement does not obligate a Party to enter into a contract, subcontract, teaming agreement, joint venture, partnership, or other business relationship with the other Party. Each Party will bear its own costs and expenses incurred in complying with this Agreement.
12.Disclaimer of License. Proprietary Information received by the Recipient under this Agreement shall remain the property of the Discloser. The Recipient does not receive any right or license, express or implied, under any patents, copyrights, trade secrets, or the like of the Discloser under this Agreement except the limited rights to use the Proprietary Information to carry out the Purpose.
13.Disclaimer of Warranty. All Proprietary Information is provided “as is” without representation or warranty of any kind, and neither Party warrants the accuracy of any such Proprietary Information, or makes any other representation, warranty or condition with respect to any such Proprietary Information, including, without limitation, any express or implied warranty or condition of non-infringement, merchantability or fitness for a particular use or purpose, all of which are expressly disclaimed.
14.Export Control. The Parties shall abide by all export laws, rules and regulations of the United States and Canada Governments, as applicable, including without limitation the International Traffic in Arms Regulations of the U.S. Department of State, the Export Control Regulations of the U.S. Department of Commerce and Canada’s Export and Import Permits Act, in connection with the disclosure,use,exportand/orre-exportofallinformation disclosed hereunder.
15.Transfer/Assignment. Recipient may not transfer or assign this Agreement without the prior written approval of the Discloser. This Agreement inures to the benefit of, and is binding upon, the successors, permitted assigns, and personal representatives of the Parties hereto.
16.Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without reference to its choice of law rules.
17.Severability and Waiver. If any portion of this Agreement shall be held to be or becomes invalid, illegal or unenforceable, the remaining portions of this Agreement shall continue to be binding and enforceableif the essential terms and conditions of this Agreement for both Parties remain valid, legal and enforceable. The failure of either Party to enforce any provision contained herein shall not be deemed a waiver of any other provision contained herein.
18.Breach of Agreement. Receipient hereby acknowledges and agrees that in the event of any breach of this Agreement including, without limitation, the actual or threatened disclosure or unauthorized use of Discloser’s Proprietary Information without the prior written consent of the Discloser, the Discloser may suffer an irreparable injury, such that no remedy at law will afford it adequate protection against, or appropriate compensation for, such injury. Accordingly, Receipient hereby agrees that in the event of a breach of its obligations hereunder, the Disclosermay be entitled to seek injunctive relief, as well as such other relief as may be granted by a court of competent jurisdiction.
19.Entire Agreement. This Agreement contains the entire understanding between the Parties. It supersedes all prior or contemporaneous communications, agreements, or understandings between the Parties concerning the subject matter of this Agreement. A modification of this Agreement is not binding unless in writing and signed by authorized representatives of all Parties.
20.Execution. This Agreement may be executed in one or more counterparts, which together constitute one and the same instrument, and may be executed by facsimile or electronic signature, each of which shall be deemed original signatures.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their authorized representatives.
TRU SIMULATION + TRAINING INC.Other Company
Signature Signature
Name:Bret SavitskiName:
Title:Contracts ManagerTitle:
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