Mutual Non-Disclosure Agreement

This Non-disclosure Agreement ("Agreement") shall regulate all the transactions between the parties, related to the subject matter as provided to in this agreement. This document (together with the documents referred to in it) sets out the terms on which SharpCloud users, as a business or individual guest or registered user subscribing to the SharpCloud software service as identified in any contract, purchase order, or otherwise in writing from time to time (User/Client), may make use of and access, the SharpCloud software services provided via www.sharpcloud.com, and any subdomains thereof (our site) or otherwise. 

(A) SharpCloud shall be referred to as SharpCloud in this agreement. 

(B) Any and all the user(s) accessing the services of SharpCloud shall be referred to as the “Client” and shall be considered as the Client for all the purposes related to this agreement. The term Client shall mean a legal entity as well as an individual, as the case may be. 

each individually referred to as a “Party” and collectively as the “Parties”. 

SPECIAL PROVISION 

The party’s electronic acceptance or acknowledgement of this document on the website, or commencement of consuming the services of SharpCloud and utilization of the same constitutes such party’s acceptance of the terms and conditions mentioned in this document. The parties are advised to consult an attorney to understand the terms of this agreement before utilizing the services offered by SharpCloud on any of its platforms. 

The User/Client acknowledges that they/it has had all the rights to consult with independent legal counsel prior and have had a reasonable opportunity to do so, and that the User either has consulted, or on their own volition chosen not to consult, with such counsel. The User/Client further acknowledges that they have read the terms of this agreement carefully and understands and accepts the obligations which it imposes upon them without reservation. No promises or representations have been made to induce consultant to sign this agreement. 

WHEREAS  

(A) The Client wishes to evaluate SharpCloud’s portfolio management solutions for use within its business (“the Purpose”) and in furtherance of such evaluation, to the Parties may disclose Confidential Information to each other.  

(B) The Parties wish to regulate how Confidential Information disclosed pursuant to this Agreement is to be treated in order to protect the Party disclosing such Confidential Information. 

NOW IT IS AGREED AS FOLLOWS: 

1. Definitions and Interpretation 

1.1 The following words shall have the following meanings unless stated to the contrary or the context otherwise requires: 

“Affiliates” means any entity that directly or indirectly controls, is controlled by, or is under common control of a Party.  

“Confidential Information” means: 

(A) information of whatever nature and in whatever form, including concepts and ideas, which is marked confidential or which from its contents can reasonably be assumed to be confidential and which is obtained by the Receiving Party in pursuance to the Purpose;  

(B) analysis, compilations, studies, reports and/or other documents prepared by the Receiving Party which contain or otherwise reflect or are generated or derived from any Confidential Information specified in paragraph (A); and

(C) includes software, programming code, techniques, trade secrets, know how, ideas, discoveries, improvements, inventions, concepts, designs and “look and feel”, any information relating to released or unreleased products or services, marketing or promotions, any commercial or business terms or objectives of a Party, its business policies or practices and information received from others that the Party is obliged to treat as confidential and all copies, summaries or transcripts of the same made by either Party; and 

(D) the terms of this Agreement and the interest of the Parties in connection with the Purpose and/or any other related transactions.  

“Disclosing Party” means the Party disclosing Confidential Information;  

“Data Privacy Law” means any applicable law relating to data privacy. 

“Purpose” means the purpose specified in Recital A; 

“Receiving Party” means the Party receiving Confidential Information;  

“Related Persons” means, in respect of the relevant Party, that Party’s Affiliates, directors, officers, employees, advisers, agents, consultants or contractors, or any other person who is employed or engaged by the relevant Party or its Affiliates. 

“SharpCloud” means either SharpCloud Software Ltd, a company registered in England under registered number 07786718 and whose registered office is at 8 Leake Street, London SE1 7NN or SharpCloud Software Inc., a company incorporated in the State of Delaware USA and having its principal office at 3500 S Dupont Hwy, Camden, DE 19934 United States, as stated in clause 12 below. 

1.2  Words denoting the singular include the plural and vice versa; the words 'includes', “including” or “in particular” in any form are not a word of limitation; where a word or phrase is defined, another part of speech or grammatical form of that word or phrase has a corresponding meaning; no rule of construction applies to the disadvantage of the party preparing this Agreement on the basis that it prepared or put forward this Agreement or any part of it. 

2. Obligations of Confidentiality   

2.1 In consideration of the provision of mutual covenants and obligations herein, the Parties undertake as follows: 

to keep the Confidential Information of the Disclosing Party secret and confidential and not disclose, or cause or permit the disclosure of, any Confidential Information to any person, except as permitted by this Agreement or by the Disclosing Party’s prior written consent; to maintain proper and secure custody of the Confidential Information and keep it protected from any use, disclosure or access inconsistent with this Agreement and do all things necessary, prudent or desirable to safeguard the confidentiality of the Confidential Information in the same manner as it protects its own Confidential Information;

to use the Confidential Information or any part of the Confidential Information solely for the Purpose. In particular, the Receiving Party may not use or allow others to use the Confidential Information in development of competing products, services, improvements, and inventions

not to use, or allow the use of; nor reproduce or record, or allow the reproduction or recording of, the Confidential Information for any other purpose, other than to the extent strictly necessary to fulfil the Purpose;

not to disclose the Confidential Information whether to its Related Persons or to any third party except only in confidence to those of its Related Persons, whose duties justify their need to know such Confidential Information for the Purpose;

not to disclose Confidential Information to its Affiliates or an Affiliate’s Related Persons except to the extent that such Affiliates have a need to know for the Purpose and disclosure by or to an Affiliate of the Receiving Party shall be deemed to be a disclosure by or to the Receiving Party with the Receiving Party remaining liable for all acts and omissions of Affiliates and/or their Related Persons;

to ensure that all persons, including Related Persons, to whom Confidential Information is disclosed are bound by obligations in respect of the Confidential Information for all respects consistent with the Receiving Party’s obligations hereunder and the Receiving Party will use all reasonable efforts to enforce such obligations against such persons; 

to keep all Confidential Information and all copies thereof and all additional information generated by it from Confidential Information separate and clearly distinguishable from all its other documents and records and as a minimum to use the same precautions as if protecting its own confidential information of similar nature;

to comply with all applicable Data Privacy Laws in so far as the Confidential Information includes personal data, personally identifiable information or similar phrases as defined in those Data Privacy Laws;

not to engage in any behaviour which would amount to market abuse, market manipulation, insider dealing or any other similar offence under any applicable law, on the basis of any Confidential Information;

not make, permit, solicit or assist any other person to make, any announcement, public statement, press release or any other communication or disclosure concerning this Agreement, the Purpose or any Confidential Information without the Discloser's prior written consent;

promptly notify the Discloser if the Receiving Party, its Affiliates or its Related Persons suspects, or becomes aware of, any unauthorized use, or disclosure of any Confidential Information; and

immediately take all reasonable steps to prevent or stop any suspected or actual unauthorized use of Confidential Information received by it or its Related Persons.  

2.2  The obligations of confidentiality shall not apply to Confidential Information to the extent that: 

the Receiving Party was in lawful possession of the Confidential Information before disclosure by the Disclosing Party; or

the Confidential Information has been independently developed by or on behalf of, the Receiving Party without access to or use or knowledge of the Confidential Information disclosed by the Disclosing Party; or

the Confidential Information is in or subsequently comes into the public domain other than by breach by the Receiving Party, any of its Affiliates or their respective Related Persons ; or 

the Confidential Information is received by the Receiving Party without restriction on disclosure or use from a third party where such third party has a lawful right to make such disclosure; or

the Confidential Information is required to be disclosed by the Receiving Party by law, court order or other legal or regulatory requirement provided that, to the extent legally permitted, the Receiving Party shall notify the Disclosing Party of the requirement for disclosure and prior to making any disclosure and the Receiving Party shall assist the Disclosing Party in taking reasonable steps to resist, avoid or minimize the disclosure.  

3. Ownership and Disclaimer

3.1 All intellectual property and other proprietary rights in Confidential Information are reserved by the Disclosing Party and no rights or obligations other than those expressly recited herein are granted or to be implied from this Agreement.  In particular, no license is hereby granted directly or indirectly to the Receiving Party, its Affiliates or Related Persons under any invention, discovery, patent, copyright or other intellectual property or proprietary right now or in the future held, made, obtained or licensable by either Party. Nothing in this Agreement or its operation shall preclude, impair or restrict either Party from continuing to engage in its business otherwise than in breach of the terms of this Agreement. 

3.2 Except as may otherwise be provided in a future agreement between the Parties, the Disclosing Party will not have any liability or responsibility for errors or omissions in, or any business decisions made by the Receiving Party in reliance on, any Confidential Information disclosed under this Agreement.  Neither Party provides any warranty, representation or undertaking in relation to its Confidential Information including any representation, undertaking or warranty with respect to the accuracy, completeness, or content of the Confidential Information. All Confidential Information is disclosed “as is” hereunder. Nothing contained herein obligates either Party to disclose any Confidential Information to the other Party. 

4.  Return and Destruction of Confidential Information

4.1 On termination or expiry of this Agreement, except as required by applicable law, the Receiving Party must, and must procure that each Related Person and Affiliates that have received any Confidential Information of the Disclosing Party, at the Disclosing Party’s option:  

return to the Disclosing Party, and certify in writing to the Disclosing Party the return of; or

destroy and certify in writing to the Disclosing Party the destruction of all Confidential Information and any other documents or materials that contain Confidential Information, in the Receiving Party’s and each Related Person's or Affiliate’s possession or control, promptly when the Disclosing Party requests 

4.2 Notwithstanding the provisions of Clause 4.1 the Receiving Party shall be entitled to retain one copy of all Confidential Information disclosed to it solely for the purpose of ensuring its compliance with its obligations hereunder, legal obligations or for archival purposes. Such copy shall be retained by the Receiving Party solely upon the following terms: 

such single archive copy shall continue to be held in confidence until destroyed or it comes into the public domain through no action of the Receiving Party; and

access to such archive copy shall be granted only to those Related Persons of the Receiving Party who strictly require access to the same in connection with any query concerning compliance by the Receiving Party with its obligations hereunder.

such copy shall remain subject to the confidentiality obligations of this Agreement until the copies are either returned to the Disclosing Party or permanently deleted.  

5.  Duration

5.1 This Agreement shall become effective as of the Effective Date and remain in effect: (a) for a period of three (3) years; (b) until either party elects to terminate this Agreement prior to such time by giving sixty (60) days written notice to the other party or (c) this Agreement is superseded by a definitive agreement between the Parties in furtherance of the Purpose, whichever is the earliest. In the event of termination by 60 days’ notice under (b), the confidentiality obligations herein shall continue for the remaining duration of the three years from the Effective Date. 

6.  Remedies

6.1 In the event of any breach or threatened breach of this Agreement, the Parties acknowledge and agree that damages alone may not be an adequate remedy and that without prejudice to any other rights or remedies available to the Disclosing Party, the Disclosing Party shall be entitled to seek the remedies of injunction, specific performance, and/or other equitable relief for any such breach or threatened breach without the need to post a financial bond or other security.  

7.  Waiver

7.1 Any failure by either Party in exercising any right, power or privilege under this Agreement shall not act as a waiver by such Party of any such right, power or privilege, nor shall any single or partial exercise preclude any further exercise of any right, power or privilege. 

8.  Severability

8.1 If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability of that provision shall not affect the remaining provisions of this Agreement and all provisions not affected by the invalidity or unenforceability shall remain in full force and effect.  Furthermore, in the event of any provision being invalidated or unenforceable both Parties shall meet to agree on a suitable alternative provision. 

9.  Notices

9.1 Any notice, claim or demand in connection with this Agreement shall be given in writing to the relevant Party at the address set out in the preamble to this Agreement or such other address as shall have been notified in writing to the other Party and shall be sent either by email or courier.  Any notice sent by email shall be deemed received when sent (subject to confirmation of uninterrupted transmission by a transmission report) and any notice sent by courier shall be deemed received 48 hours after shipment. In the case of SharpCloud notices may be sent to the following email address: legal@sharpcloud.com or the address stated below. 

10. Rights of Third Parties

10.1 No term of this Agreement is enforceable by a person or party who is not a party to this Agreement.  

11. Assignment

11.1 This Agreement shall be binding upon the Parties and their successors.  No Party shall be entitled to assign any of its rights or obligations without the consent of the other Party, such consent not to be unreasonably withheld.   

12. Governing Law and Jurisdiction

12.1 This Agreement shall be construed and governed by the laws of the State or country as set out in the table below and subject to the exclusive venue stated therein, without regard to principles of conflicts of laws.  The parties waive any right to a trial by jury, if applicable.  

Client HQ Location	Applicable Law	Applicable Venue	SharpCloud Entity
Americas	Laws of the State of Delaware, USA	Courts in Delaware, USA	SharpCloud Software Inc.
EEA	Laws of the Netherlands	Courts in Amsterdam, the Netherlands	SharpCloud Software Ltd
UK & Rest of the World	Laws of England & Wales	Courts in London, England	SharpCloud Software Ltd

 

Nothing in this Clause 12 shall prevent a party from having recourse to any other court of competent jurisdiction for the sole purpose of seeking a preliminary injunction or such other provisional judicial relief. 

13.  Entire Agreement

13.1 This Agreement constitutes the entire understanding of the Parties with respect to its subject matter and supersedes all prior representations, agreements, statements and understandings, whether written or oral, express or implied, except as expressly stated in this Agreement or except for any fraudulent misrepresentation made by either Party. 

13.2 No variation of this Agreement shall be effective unless it is in writing and signed by or on behalf of each Party. This Agreement may be executed in counterparts, all of which taken together constitute one document.