Non-Disclosure Agreement
I declare that I am aware, as the RECEIVING PARTY, of the provisions of this NON-DISCLOSURE AGREEMENT, according to which I will have the access to some confidential or non-confidential information, which may eventually be disclosed to me.
For this reason, I irrevocably assume the obligation of not disclosing, reproducing, retransmitting, displaying, publishing, under no justification, the information I may have the access to and I should keep the confidentiality of such information that may be disclosed to me.
I am also aware that, in case of violation of secrecy that now I assume to keep regarding the information disclosed to me, while performing my activities, I will be subject to applicable legal determinations.
In the true sense of veracity, I ACCEPT this Non-Disclosure Agreement:
This private instrument is established between EVERMOBILE LTDA., a Brazilian company, whose headquarter is in the City of Barueri, State of São Paulo, at Al. Madeira, 258, room 1107/B2, regularly enrolled at CNPJ/MF (national legal entity registration) under 07.792.459/0001-14, in this act represented according to the provisions of its Articles of Incorporation, and the RECEIVING PARTY;
CONSIDERING that EVERMOBILE will disclose some information of absolute secrecy to the RECEIVING PARTY, the PARTIES have decided to establish this ‘Non-Disclosure Agreement’, which will be ruled following the provisions described below:
1.- DEFINITIONS
1.1- Confidential Information all information provided by the DISCLOSING PARTY to the RECEIVING PARTY related to the theme mentioned above that, for their essential characteristics and/or fact circumstances, cannot be made public and that the DISCLOSING PARTY regards as confidential. Thus, the Confidential Information include, but are not limited to, discoveries, ideias, concepts, software applications in any development phase, drawings, technical specifications, templates, source codes, object codes, diagrams, graphs, researches, financial and dividend policy templates, acquisition studies, project assessment and/or offers, material related to services, personal or financial issues related to the agreement parties, their current or future products, sales, suppliers, clients, staff, investors, business policy, marketing and/or product strategies for any product that has or has not been launched in the market;
1.2- Confidential Materials all tangible materials that contain Confidential Information and that are identified in writing as confidential, including, but not limited to, papers, manuals, writings of any type, printed and/or electronic materials, written in tapes, computer discs and/or any other current or future method;
1.3- Receiving Party national or foreign companies to which the Receiving Party is related, including, but not limited to, affiliated companies, associated companies, subsidiaries or parent companies, partnerships, joint ventures, contractors, among others. The following are also considered as Receiving Party, including, but not limited to: legal representatives, agents, contractors and/or staff; considering that the receiving party is responsible for its affiliated companies, associated companies, subsidiaries or parent companies, partnerships, joint ventures, contractors, among others.
2.- EXCLUSIONS
2.1- The Confidential Information do not include those information the RECEIVING PARTY, its representatives, agents, contractors and/or staff may demonstrate that:
a) are in the present moment or in the future made public by the DISCLOSING PARTY for general availability;
b) are already known to the RECEIVING PARTY in the moment of receiving the information from the DISCLOSING PARTY;
c) have been provided to the RECEIVING PARTY by third parties outside the legal relation involving the agreement parties, with not restrictions regarding the information disclosure; however, the RECEIVING PARTY should inform the DISCLOSING PARTY of the existence and the provision of such information, as well as the information origin;
d) are object of written permission granted by the DISCLOSING PARTY; and
e) are required according to a legal order or decision.
3.- PROPERTY:
3.1- The parties agree that this Agreement is ruled according to the Brazilian legislation, especially, but not excluding any other law that ensures the protection of intellectual property of disclosed information, Law 9.609, of February 19, 1998, which regulates the intellectual property of computer programs, and that ensures the protection of all Confidential Information related to software applications, not allowing the information disclosure, publication and/or transfer to third parties without the written authorization provided by the DISCLOSING PARTY.
4.- RECEIVING PARTY’S OBLIGATIONS
4.1- The RECEIVING PARTY should:
a) take all reasonable safety precautions to protect the Confidential Information provided by the DISCLOSING PARTY, and such precautions should include any measure required to defend its own confidential information, segregating all the Confidential Materials from the others, to prevent violations of the DISCLOSING PARTY's property right;
b) disclose the DISCLOSING PARTY's Confidential Information only to its staff, consultants, agents, as required, for the execution of agreements established between the parties and according to the authorization granted by the DISCLOSING PARTY when involving third parties;
c) obtain the Confidentiality Agreement signature from all natural persons and legal entities that may access such information, according to the standard template in Appendix I, which is integral part of this Agreement, keeping secrecy about any data, materials, details, information, documents, technical and commercial specifications of the DISCLOSING PARTY's products that it may be aware of or have the access to, or that may be trusted to it, regarding or not the service provision to which this agreement refers. The noncompliance with the requirements of this clause will result in the application of legal sanctions to the RECEIVING PARTY and any other party who has caused civil and criminal violations;
d) when applicable, the RECEIVING PARTY should not perform reverse engineering, decompilation and/or disassembly of any software application;
e) notify the DISCLOSING PARTY of any Confidential Information leakage and/or any violation of this Agreement, for any reason, and should, especially inform any request for Confidential Information made by any legal authority, as stipulated in 2.1, item "e" of this Agreement;
f) cooperate with the DISCLOSING PARTY, with or without court supervision, in the protection of the DISCLOSING PARTY's interests related to the Confidential Information and/or Materials, even if the DISCLOSING PARTY, deliberately of not, facilitates the disclosure and/or the use of such Confidential Information and/or Materials by third parties.
5.- DURATION
5.1- This Agreement may continue in effect while the parties remain providing Confidential Information to each other. However, it may be terminated by either party at any moment, with a written notification sent to the other party 30 (thirty) days in advance;
5.2- Despite the provisions in 5.1 above, the parties – including here their staff, agents and contractors – in this act declare and agree that they should keep the Confidential Information in secrecy for the minimum period of 5 (five) years from this Agreement termination date.
6.- CRIMINAL VIOLATION
6.1- The parties agree that, in case of violation of the obligations established in this Agreement that involves damages to the DISCLOSING PARTY, the RECEIVING PARTY should promote the applicable indemnification for losses and damages, which include all costs, expenses and fees of lawyers incurred by the innocent party, to defend its rights;
6.2- Thus, if the situation described in 6.1 above occurs, the RECEIVING PARTY should pay the amount corresponding to the indemnification for losses and damages to be determined by the Justice to the DISCLOSING PARTY.
7.- GENERAL ARRANGEMENTS
7.1- This Agreement binds the parties and their successors, and the parties are not allowed to transfer rights and/or obligations established in this instrument without the prior authorization in writing of the other party;
7.2- The provisions in this Agreement will prevail over any other prior express and/or implied understanding and/or agreement between the parties, regarding the arrangements established in this Agreement, which may be altered with a written agreement between the parties on a date after the date of this Agreement;
7.3- The confidentiality conditions determined in this Agreement will not be used to limit either party’s right to the independent product development and/or purchase, provided that such party does not use the Confidential Information that belong to the other party;
7.4- All Confidential Information and Confidential Materials are and will keep being property of the DISCLOSING PARTY. The parties do not allow any express and/or implied rights through this Agreement for the concession of copyrights and/or registration of trademarks and patents;
7.5- The noncompliance with the obligations assumed according to this Agreement due to facts that do not depend on the parties’ will, such as force majeure cases, as determined in Article 393 of the Brazilian Civil Code, is not considered a contract violation;
7.6- The parties elect the court of the capital of the State of São Paulo as the only competent court to solve and/or interpret the clauses and/or issues resulting from this Agreement, which cannot be solved amicably by the parties, to the detriment of any other court, no matter how favorable it may be;
7.7- All rights in this instrument and applicable legislation are cumulative and facultative. The non-application of such rights will not prevent the parties from executing them, at any moment, even after the termination of this Agreement.
8.- ABOUT THE NON-COMPETE AGREEMENT
8.1- The RECEIVING PARTY, as established in 1.3, should not, directly or indirectly:
a) conduct or be engaged, interested or involved in any activity that offers competition to the DISCLOSING PARTY’s businesses; or
b) receive orders from, make businesses with or hire people to directly or indirectly receive orders from or make businesses with any other person that is or has already been a client of the DISCLOSING PARTY at any moment; or
c) invite or hire, for engagement or employment by any person, any employee, consultant or administrator of the DISCLOSING PARTY or any person that has already been an employee or administrator of the DISCLOSING PARTY at any moment; or
d) become an employee, administrator, investor or service provider of any person that develops activities that offer competition to the DISCLOSING PARTY’s businesses.
9.- ABOUT THE DOCUMENT DESTRUCTION AGREEMENT
9.1- If the PARTIES show no interest anymore in continuing the negotiations that involve the PARTIES or if, for any reason, the DISCLOSING PARTY requires that, the confidential documents that have been provided to the RECEIVING PARTY should be promptly destroyed or returned, including their copies or others;
9.2- In case of electronic files, they should be deleted in such way to leave no electronic version of the files provided;
9.3- The deadline for the material or electronic file destruction or document return is 72 hours from the moment of negotiation interruption;
9.4- The effective destruction of documents in any format does not eliminate the obligation to comply with the provisions in 5.1 and 8, (a), (b), (c) and (d) of this Agreement.
