CONFIDENTIALITY AGREEMENT FOR INVESTORS

 

BETWEEN:

• SGS [SCALABLE GLOBAL SOLUTIONS JSC] a company incorporated in Croatia under company number 081074213, OIB (PIN) 85470532354 and whose registered office is at Ulica grada Vukovara 284, 10 000 Zagreb (The Company and Discloser, also Recipient if it is a Party that receives information);

AND

• (Name of intending Associate) of (address) (Recipient, also Discloser if it is the Party that discloses information) as stated below:

 

WHEREAS Recipient can be anyone who is investing and/or considering investing into the Company of any kind or to any owned Subsidiary of the Company and/or consequently, can be anyone who is providing services and/or support of any kind to the Company or any owned Subsidiary of the Company, and in connection therewith will be given access to certain confidential and proprietary information so that the Parties can consider whether to enter into a further agreement (‘the Permitted Purpose’) and

WHEREAS Parties agreed that all information whether oral, written or otherwise given, that is supplied to the Recipient in the course of any meeting shall be treated as confidential by the Recipient and WHEREAS Recipient and Discloser wish to evidence by this Agreement how said confidential and proprietary information should be treated

WHEREAS in connection with disclosure of information, each Party can individually be referred to as either “Recipient” or “Discloser” depending on whether it receives or communicates information.

It is agreed as follows.

1. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION

1. “Confidential Information” shall mean proprietary and confidential information about business or activities. Such information includes any nonpublic information relating to business plans or practices, financial or technical matters, trade secrets, designs, know-how, inventions, operations, the marketing or promotion of products and any other information received or acquired by Recipient from the Discloser in the course of exploring the Project that includes all business, financial, technical and other information designated or marked as “confidential” information or “proprietary” information by the Discloser.
2. “Confidential Information” includes, but is not limited to, all nonpublic information, product schematics or drawings, descriptive material, specifications, software (source code or object code), sales and customer information, the Company’s and/or Discloser’s business policies or practices, information received from others that the Company and/or Discloser is obligated to treat as confidential, and other materials and information of a confidential nature. “Confidential Materials” shall mean all tangible materials containing Confidential Information, including without limitation drawings, schematics, written or printed documents, computer disks, tapes, and compact disks (CD), whether machine or user-readable. Any Discloser’s pre-existing routines, methodologies, processes, libraries, tools or technologies created that represent Discloser’s intellectual property, adapted or used by Recipient in its business generally, including all intellectual property rights (collectively, the “Development Tools”), shall be considered as “Confidential Information”. All such “Information” and “Materials” are provided “AS IS”, and the Discloser makes no warranty regarding the accuracy or reliability of such Information or Materials.
3. “Confidential Information” shall not include any materials or information which the Recipient shows: (i) is currently in the public domain or that enters a public domain with the no-fault or wrongful act of the Recipient; or (ii) is legally known to the Recipient at the time of disclosure by the Company or Discloser or is lawfully disclosed by the Company or Discloser to third parties without restriction; or (iii) is disclosed to the Recipient by a third party who lawfully obtained the information; or (iv) is developed independently by the Recipient without reliance on any confidential information from the Company and/or Discloser where the Recipient can document such independent development.
4. Recipient agrees that it shall not disclose to any third party or use any Confidential Information and/or Confidential Materials disclosed to it by the Discloser except when expressly permitted in writing by the Discloser in relation to this Agreement, including trade secrets of the Discloser or any Confidential Information or any Confidential Materials of any other party to whom Discloser owes an obligation. Recipient shall not use any Confidential Information or Confidential Materials of the Company and/or Discloser for any purposes except those expressly contemplated hereby or as authorized by the Company and/or Discloser. It is understood that the Recipient may use Discloser’s Confidential Information solely for its internal business purpose of evaluating the Project (hereinafter referred to as “Purpose”). Recipient agrees not to use Confidential Information otherwise for its own or any third party’s benefit without the prior written approval of an authorized representative of Discloser. Recipient shall refrain from reverse engineering, decompiling or disassembling Confidential Information and shall not disclose, publish, distribute or disseminate Confidential Information. Copies shall contain the same confidential or proprietary legends as the originals.
5. The recipient may disclose Confidential Information or Confidential Materials only to Recipient’s employees or consultants or attorneys or Affiliates (including the affiliates’ employees) on a need-to-know basis who are under the proper burden of confidentiality and who have a need to know in pursuance of the Recipient’s business relationship with Discloser. For the purpose of this Agreement, an “Affiliate” means any person, partnership, joint venture, corporation or other forms of enterprise, domestic or foreign, including but not limited to subsidiaries, that directly or indirectly, control or are controlled by, or are under common control with a party.
6. Recipient shall instruct all employees given access to the information to maintain confidentiality and to refrain from making unauthorized Copies. Recipient agrees to use reasonable care but in any event no less than the same degree of care that it uses to protect its own confidential and proprietary information of similar importance, to prevent the unauthorized use, disclosure, publication and dissemination of Confidential Information. Recipient shall maintain appropriate written agreements with its employees, consultants, parent, subsidiaries, affiliates or related parties, who receive, or have access to, Confidential Information or Materials sufficient to enable it to comply with the terms of this Agreement.
7. Except as expressly permitted by an agreement between the Parties, Parties will not disclose to any person (a) the fact that discussions, investigations or negotiations are taking place concerning the Project or (b) the terms, conditions, status or other facts regarding the Project (including, without limitation, all draft letters of interest, term sheets and other agreements or related documents).
8. Unless otherwise agreed to in writing by the Discloser, for a period of five (5) years from the date of this Agreement, the Recipient shall refrain from disclosing any Confidential Information. However, the Recipient’s obligations concerning Confidential Information that is considered a trade secret of the Discloser under normal international trade practice shall continue until such Confidential Information is no longer a trade secret. This obligation to maintain confidentiality concerning the Project also includes the existence and contents of this Agreement.

2. WARRANTIES

The Discloser possesses competitively valuable Confidential Information, as hereinafter defined, regarding its current products, future products, research and development, and general business operations.

3. TERM

The conditions of the Agreement shall have a term of five years after the date of termination.

4. UNAUTHORIZED USE

Recipient shall promptly advise Company and/or Discloser in writing if it learns of any unauthorized use or disclosure of Confidential Information or Confidential Materials, or any other breach of this Agreement, by Recipient or any third Party, and will cooperate with the Company and/or Discloser in every reasonable way to help the Company and/or Discloser regain possession of the Confidential Information and/or Confidential Materials and prevent further unauthorized use or disclosure.

5. TERMINATION

Recipient shall return all originals, copies, reproductions and summaries of Confidential Information and/or Confidential Materials then in Recipient’s possession or control at the Discloser’s request and Discloser’s sole cost and expense or, at the Discloser’s option, certify destruction of the same, including all copies, summaries and analyses thereof.

6. INJUNCTIVE RELIEF

Recipient acknowledges that the use or disclosure of the confidential or proprietary information in a manner inconsistent with this Agreement will cause Discloser irreparable damage and that the Company or Discloser shall have the right to the equitable and injunctive relief to prevent the unauthorized use or disclosure and to such damages, as are occasioned by such unauthorized use.

7. VIOLATIONS, RIGHTS AND REMEDIES, MANDATORY DISCLOSURE EXEMPTION

1. Discloser and Recipient each agree that its obligations outlined in this Agreement are necessary and reasonable to protect the Discloser and its business. Both parties expressly agree that due to the unique nature of the Discloser’s Confidential Information, monetary damages would be inadequate to compensate the Discloser for any breach by the Recipient of its covenants and agreements outlined in this Agreement. Accordingly, Discloser and Recipient each agree and acknowledge that any such violation or threatened violation shall cause irreparable injury to the Discloser and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the Discloser shall be entitled to Injunctive relief under point 6 of this Agreement.
2. The recipient may disclose Confidential Information in accordance with a judicial or other governmental order, provided that Recipient either (i) gives the Discloser’s legal representative reasonable notice prior to such disclosure to allow Discloser a reasonable opportunity to seek a protective order or equivalent, or (ii) obtains written assurance from the applicable judicial or governmental entity that it will afford the Confidential Information the highest level of protection afforded under applicable law or regulation.
3. In the event of a grossly negligent or intentional breach of this Confidentiality Agreement, the infringed Party shall, in any case, be subject to the exclusion of the infringement to the other Party of up to EUR 20,000.00, to be determined by the injured party. Two weeks of continued infringement are considered to be independent and independent acts. The right to claim damages and/or omission is not affected by the payment of the contractual penalty; the contractual penalty is counted against possible compensation.

8. SEVERANCE, MISCELLANEOUS, GOVERNING LAW, JURISDICTION

1. All Confidential Information and Confidential Materials are and shall remain the sole and exclusive property of disclosing information to Recipient; the Discloser does not grant any express or implied right to Recipient to or under the Discloser’s patents, copyrights, trademarks, or trade secret information. The recipient is also not allowed to use any ideas, concepts, or know-how developed or acquired by Recipient during the performance of this Agreement or further Agreement to the extent obtained and retained by Recipient’s personnel as impression and general learning. Subject to and limited by Discloser’s intellectual property rights, the Recipient is prohibited from using such Confidential Information for use with third parties for the benefit of Recipient.
2. Unless otherwise agreed between the Parties in written form, the Discloser will not be liable for any expenses or losses incurred or any action undertaken by the Recipient because of the receipt of Confidential Information or Confidential Materials. Confidential information and/or materials are received “as is” and “without warranty of any kind”. The entire risk arising out of using the Confidential Information and Confidential Materials remains with the Recipient.
3. Neither Party to this Agreement shall retain any documents or items connected with the disclosure after collaboration has ceased to exit.
4. This Agreement shall be construed and governed by the laws of Croatia, and both parties further consent to the jurisdiction of Croatian laws and court in Zagreb.
5. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the Parties agree to renegotiate such provision in good faith. If the Parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded from this Agreement, (ii) the remaining provisions of the Agreement shall be interpreted as if such provision were so excluded, and (iii) the remaining provisions of the Agreement shall be enforceable following its terms.
6. Any term of this Agreement may be amended with the prior written consent of both Parties. Any amendment or waiver effected following this section shall be binding upon the Parties and their respective successors and assigns. Failure to enforce any provision of this Agreement by a Party shall not constitute a waiver of any term hereof by such Party. This Agreement is the product of both Parties and constitutes the entire agreement between such Parties and merges all prior negotiations and drafts of the Parties pertaining to the subject matter of this Agreement. Any other written or oral agreements existing between the Parties concerning the subject matter of this Agreement are expressly cancelled. This Agreement does not create, for either Party or their respective Affiliates, any obligation to enter into any further contracts about the Project.
7. All obligations created by this Agreement shall survive change or termination of the parties’ business relationship.

9. NOTICES

Any notices required or permitted by this Agreement shall be considered to have been given when hand-delivered or three days after being sent by certified mail. Return receipt requested to the other party at respective addresses set forth below.

IN WITNESS WHEREOF, the parties hereto, by signing, have executed this Agreement by their duly authorized representatives as of the date first set forth above.