This Mutual Non-Disclosure Agreement (the “Agreement”) is between TextNow, Inc. (“TextNow”) and the entity set forth above (“Company”), effective as of the date this Agreement is signed by both Parties. TextNow and Company may be referred to herein together as the “Parties” and individually as a “Party”. This Agreement sets forth the terms and conditions that apply to the sharing of certain information between the Parties in connection with the evaluation of a potential business relationship, and any resultant ongoing business relationship, between the Parties (the “Business Opportunity”). The Parties hereby agree as follows:
- Confidential Information. “Confidential Information” means any non-public information that is directly or indirectly disclosed or made accessible by one Party or its affiliates (the “Disclosing Party”) to the other Party or its affiliates (the “Receiving Party”) in connection with the Business Opportunity, and which is designated as confidential or which, given the nature of the information or circumstances of the disclosure, should reasonably be understood to be confidential and includes, without limitation: (i) the existence of an agreement or discussions between the parties; (ii) inventions, patents, patent applications, trade secrets, discoveries, “know-how”, source code, technology, improvements provided or developed by the Disclosing Party, ideas, samples, media, techniques, sketches, drawings, works of authorship, and software programs; (iii) information concerning business plans, marketing strategy, research, development, financial information, customer lists, investors, employees, business and contractual relationships, sales and merchandising, and information the Disclosing Party provides about third parties; (iv) any tangible materials incorporating information set out in (i) through (iii), including without limitation, written or printed documents and computer disks or tapes, whether machine or user readable. Confidential Information does not, however, include information that Receiving Party can show: (a) was already known to the Receiving Party at the time of disclosure, (b) became public through no fault of the Receiving Party, (c) was received by Receiving Party from a third party with the legal right to disclose it, or (d) was developed by Receiving Party independently from, and without any reference to, the Disclosing Party’s Confidential Information.
- Permitted Use and Disclosure.
- Receiving Party may only use the Confidential Information in connection with its evaluation of the Business Opportunity and for no other purpose. Receiving Party shall not under any circumstances reverse engineer, decompile or disassemble the Confidential Information.
- Receiving Party may not disclose Confidential Information to anyone other than its affiliates, and the employees, directors, representatives, officers, advisors, and agents of the Receiving Party and its affiliates (collectively, “Representatives”) who (i) need to know the Confidential Information in connection with the Business Opportunity, and (ii) are legally bound by confidentiality and use obligations no less restrictive than those contained herein. Notwithstanding the foregoing, in the event that the Receiving Party or any of its Representatives are requested or required by oral questions, interrogatories, requests for information or documents in any legal proceeding, subpoena, civil investigative demand or other similar processes to disclose any of the Confidential Information, the Receiving Party shall provide the Disclosing Party with prompt written notice of any such request or requirement unless prohibited by law or court order from doing so and shall use reasonable efforts to cooperate with the Disclosing Party so that the Disclosing Party, at its own expense, may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Disclosing Party, the Receiving Party or any of its Representatives are nonetheless, in the opinion of its legal counsel, required to disclose the Confidential Information, the Receiving Party or its Representatives may, without liability hereunder, disclose only that portion of the Confidential Information that such legal counsel advises the Receiving Party is required to be disclosed, provided that the Receiving Party exercises its commercially reasonable efforts, at the expense of the Disclosing Party, to preserve the confidentiality of the Confidential Information, including without limitation by cooperating with the Disclosing Party in the Disclosing Party’s efforts to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
- If the Parties mutually agree to enter into or continue a business relationship or other arrangement relating to the Business Opportunity, and do not enter into a new agreement that contains obligations related to confidentiality that are intended to supersede these, the terms and conditions set forth herein will continue to apply to any Confidential Information in connection with carrying out such Business Opportunity, unless otherwise agreed by the Parties in writing.
- Duty to Protect. Receiving Party will protect and safeguard the confidentiality of the Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care.
- No Other Obligation. The Parties agree that neither Party shall be under any legal obligation of any kind whatsoever, or otherwise be obligated to enter into any business or contractual relationship, investment, or transaction, by virtue of this Agreement, except for the matters specifically agreed to herein.
- Ownership. For the avoidance of doubt, by disclosing information to Receiving Party, Disclosing Party does not grant any express or implied right to Receiving Party to or under Disclosing Party patents, copyrights, trademarks, or trade secret information, or other ownership rights in such Confidential Information.
- Feedback. Either Party may from time to time provide suggestions, comments or other feedback to the other Party with respect to Confidential Information provided by Disclosing Party or suggestions for product or service, offerings, changes, improvements, or new functionality or capabilities of such Disclosing Party (collectively, the “Feedback”). Feedback is entirely voluntary and, if given, is provided without any representation or warranty of any kind. Such other Party is not required to treat such Feedback as Confidential Information of such Party and will be free to act on such Feedback with no obligation to the other Party.
- Unauthorized Disclosure. Receiving Party will notify Disclosing Party immediately upon discovery of any unauthorized use or disclosure of Confidential Information or other breach of this Agreement and will cooperate in every reasonable way with Disclosing Party to help Disclosing Party regain possession of the Confidential Information and prevent its further unauthorized use or disclosure.
- Independent Development. Disclosing Party understands that Receiving Party may currently or in the future be developing information internally or receiving information from other parties that may be similar to Disclosing Party’s information. Accordingly, nothing in this Agreement will be construed as a representation or inference that Receiving Party will not develop products, or have products developed for it, that, without violation of this Agreement, compete with the products or systems contemplated by Disclosing Party’s Confidential Information.
- Destruction of Confidential Information. Receiving Party will destroy, delete or return all Confidential Information (including any copies, excerpts, and summaries thereof) upon Disclosing Party’s request. Notwithstanding the foregoing, Receiving Party may retain one copy of Disclosing Party’s Confidential Information for legal, regulatory or internal compliance purposes (including the prosecution or defense of any litigation related to this Agreement), provided that any such retained information shall remain subject to this Agreement for the period so retained. Further, Disclosing Party shall not be required to destroy, delete, or return any backup files, archives, caches or other reproductions that are not technically feasible or commercially practicable to destroy, delete or return, as applicable, however, neither Receiving Party, nor its Representatives shall use or access such materials for any purpose after such destruction, deletion or return has been requested. Subject to Receiving Party’s right to retain such Confidential Information under this Section 7, at the request of Disclosing Party, Receiving Party will confirm in writing the destruction of Disclosing Party’s Confidential Information not returned to Disclosing Party.
- No Warranties; No Liability. All Confidential Information is provided “as is” without warranty of any kind. Receiving Party agrees that neither Disclosing Party nor its sources of such information shall be liable for any damages whatsoever relating to Receiving Party’s use of such Confidential Information.
- Equitable Relief. Receiving Party acknowledges that, in the event of breach or threatened breach of this Agreement, damages may not be a sufficient remedy and that Disclosing Party shall be entitled to seek injunctive or equitable relief without the necessity of proving damages or posting bond. This provision will not be construed to limit any other rights or remedies available to Disclosing Party
- Entire Agreement; No Waiver. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof. None of the provisions of this Agreement will be deemed waived by (i) any failure by either Party to enforce any provisions of this Agreement, or (ii) anything other than a waiver in writing signed by an authorized officer of the Disclosing Party and then solely to the extent explicitly waived.
- Independent Contractors. The Parties are independent contractors and this Agreement does not create an agency, partnership, or joint venture.
- Term; Post-Termination Obligations. This Agreement will continue for a period of five (5) years from the date hereof unless earlier terminated. Either Party may terminate this Agreement at any time, with or without cause, upon ten (10) days’ prior written notice to the other Party. The confidentiality and other obligations with respect to Confidential Information disclosed prior to such expiration or termination will survive for a period of five (5) years after initial disclosure to Receiving Party, provided that with respect to Confidential Information that constitutes a Trade Secret, the restrictions set forth in this Agreement shall continue in effect for so long as such information remains a Trade Secret. “Trade Secret” means information which derives economic value, actual or potential, from not being generally known to, or readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and which is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or is otherwise a trade secret as defined under applicable law.
- Notices. All notices under this Agreement must be in writing (including email) and sent to the attention of the other Party’s contact for notices and additional contact, if any, set forth on the first page hereof. Notice will be deemed given when delivered.
- Assignment. Neither Party may assign this Agreement without the prior written consent of the other Party, except in connection with the sale of all or substantially all of the assigning Party’s assets, shares, or business.
- Successors and Assigns. Subject to the limitations set forth in this Agreement, this Agreement will inure to the benefit of and be binding upon the Parties, their successors and assigns.
- Compliance with Law. Each Party will comply with and accept sole and exclusive liability for any failure to comply with all applicable laws, rules, and regulations.
- Governing Law; Jurisdiction; Venue. This Agreement is governed by Ontario law, excluding its conflicts of law rules. The jurisdiction and venue for all disputes hereunder will be the provincial and federal courts in Toronto, Ontario, and the Parties hereby consent to personal jurisdiction in those courts.
- Severability. If any provision herein is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect.
- Execution in Counterparts. The Parties may execute this Agreement in counterparts, including facsimile, PDF and other electronic copies, which taken together will constitute one instrument.
