The following terms and conditions govern the exchange of information by you and us in respect of your becoming an OpenText partner. Open Text reserves the right to change these terms and conditions at any time by posting a new version on this page. A new version will become effective on the date posted with respect to opportunity submissions on or after that date.
Mutual Nondisclosure Agreement
This Mutual Nondisclosure Agreement (the “Agreement”) is entered into as of the date of acceptance by you as part of your application to become an OpenText Partner (the “Effective Date”) by and between the Open Text Corporation or one of its affiliated entities registered in the same country as you, as applicable (“OT”); throughout this Agreement, “you”, “your” or “Company” means the company or entity applying to become an OpenText Partner (as set out in the company profile above). OT and Company may herein be collectively referred to as “Parties” and individually as a “Party”.
The Parties are considering whether Company shall become an OpenText Partner and may have exchanged and may continue to exchange, certain confidential information as part of Company’s application to become an OpenText Partner (the “Purpose”). In consideration of receiving Confidential Information with respect to the Purpose and the mutual promises made in this Agreement, the Parties therefore agree as follows:
1. Definitions. The following definitions apply unless the context requires otherwise:
1.1 "Affiliate" means any entity controlled by, controlling, or under common control with a Party to this Agreement.
1.2 "Confidential Information" means information, whether or not in physical form, all oral communications, documents and other information (whether on computer disk, visual presentation or otherwise), disclosed by a Party (“Discloser”) to the other Party (“Recipient”) which: (a) by its nature or circumstances surrounding its disclosure is, or could reasonably be expected to be regarded as, confidential to Discloser; (b) is marked or otherwise designated “confidential” by Discloser; or (c) Discloser informs Recipient is confidential or a trade secret, and includes but is not limited to, business, financial, engineering, and technical information relating to proprietary products, concepts, trade secrets, technology, processes, specifications, programs, models, projections, formulae, data, know?how, developments, designs, improvements, software programs, marketing materials, plans and strategies, customer and supplier lists.
1.3 "Representatives" in relation to a Party means its directors, officers, employees, contractors, auditors, attorneys, and financial advisors.
2. Nondisclosure; use limitations.
2.1 Recipient must safeguard the confidentiality of the Confidential Information by using the same degree of care as it uses to protect its own Confidential Information, but no less than a reasonable degree of care to protect against the unauthorized disclosure of Confidential Information.
2.2 Recipient shall not disclose the Confidential Information to a party other than its Affiliates, its Representatives, and Representatives of its Affiliates, which have a legitimate need to know such Confidential Information in connection with the Purpose. Each Party will be responsible for any unauthorized disclosure by its Affiliates or such Representatives.
2.3 Recipient may not use Discloser’s Confidential Information in any manner other than for the Purpose.
2.4 Recipient shall have no obligation with respect to any Confidential Information that is:
2.4.1 or was known or developed by Recipient independent of any disclosure by Discloser;
2.4.2 public knowledge (and becomes so otherwise than as a result of a breach of this Agreement); or
2.4.3 obtained from a third party legally entitled to disclose the same free of any nondisclosure restrictions.
2.5 The restrictions on the use or disclosure of Confidential Information in this Agreement will survive for three (3) years from the date of disclosure. The Recipient’s obligations hereunder will survive and continue in effect with respect to any Confidential Information that is a trade secret under applicable law.
2.6 Recipient may disclose Confidential Information when disclosure is required by any law or legally binding order, direction of any court, tribunal, authority, regulatory body or stock exchange (“Requirement”). Before Recipient makes any disclosure under this Section, Recipient must, to the extent permitted by applicable law, promptly notify Discloser of the Requirement in writing prior to the disclosure, or if not practically possible, promptly after the disclosure. Recipient will reasonably cooperate with Discloser, at Discloser’s expense, to obtain a protective order. When making any disclosure, Recipient must only disclose the minimum Confidential Information of Discloser required to comply with the Requirement.
3. Term and termination. This Agreement will cover any Confidential Information disclosed in connection with the Purpose, which is disclosed prior to, on, and after the Effective Date. The Agreement will continue for so long as the Parties continue to exchange Confidential Information for the Purpose and may be terminated by either Party with or without cause upon 30 days’ prior written notice to the other Party.
4. No warranty; ownership; no license.
4.1 Confidential Information is provided “as is” and to the maximum extent permitted under applicable law, Discloser disclaims all representations and warranties, express or implied, including, without limitation, fitness for a particular purpose, merchantability, accuracy, completeness and non-infringement.
4.2 All Confidential Information is and will remain Discloser’s property.
4.3 No license or transfer of intellectual property rights in any Confidential Information is provided hereunder, either expressly or by implication, estoppel, or otherwise. This Agreement imposes no obligations on either Party to develop, sell, license or otherwise make available any technology or products, or enter into any further agreements with the other Party. This Agreement does not create any agency, partnership, teaming, or joint venture relationship.
5. Deletion or destruction of Confidential Information. Upon receipt of written request from Discloser, the Recipient will promptly delete or destroy all Confidential Information in its or its Representatives’ possession, except for that which is (i) stored as part of an ordinary data backup by electromagnetic copying and is practically difficult to be deleted, or (ii) subject to legally required archival requirements and Recipient’s standard data backup procedures. Any Confidential Information which is not deleted or destroyed pursuant to the foregoing, shall remain fully subject to the terms of this Agreement. The deletion or destruction of Confidential Information in accordance with this Section does not release Recipient from its obligations under this Agreement.
6. Export restrictions. Recipient shall not export the Discloser’s Confidential Information, nor permit it to be exported in breach of any applicable export laws and regulations.
7. General provisions.
7.1 Governing language. The Agreement shall be prepared and interpreted in the English language. Any translation of the Agreement into another language is for the purpose of convenience only. Any inconsistency arising due to translation into another language or a difference of interpretation between two or more languages, will be resolved in favor of the English language version.
7.2 Assignment. Neither Party may assign or transfer any rights or obligations under this Agreement without the other Party’s prior written consent.
7.3 Modification; waiver. This Agreement can be modified or amended only by a written instrument signed by both Parties. A Party’s waiver of any of this Agreement’s terms or conditions will be effective only if in writing and will not constitute a waiver of any earlier, concurrent, or later breach.
7.4 Survival. The provisions set forth in the following Sections, and any other right or obligation of the Parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: 2; 4; 5; 6; and 7.
7.5 Governing law. This Agreement and all claims that relate to this Agreement will be governed by the laws of the Province of Ontario, without regard to its choice of law provisions.
7.6 Injunctive relief. Each Party acknowledges that monetary damages may not sufficiently remedy the unauthorized use or disclosure of Confidential Information. If a Party breaches or threatens to breach this Agreement, the other Party may seek injunctive or equitable relief (as appropriate) without waiving any other rights or remedies.
7.7 Notices. All notices, requests, demands or other communications by the Parties, other than routine operation communications under this Agreement, required or permitted to be given by one Party to the other shall be given in writing by personal delivery or sent (postage prepaid with return receipt or delivery confirmation requested) by registered mail, certified mail, or by nationally recognized courier service (e.g. Federal Express, UPS, etc.), and shall be delivered addressed as set forth below, or to such other address as either Party may notify the other from time to time in accordance with the Section. Such notices, requests, demands or other communications shall be effective upon receipt.
7.8 Severability. If any part of this Agreement is invalid or unenforceable in a jurisdiction, it is to be read down or severed in that jurisdiction to the extent of the invalidity or unenforceability, and does not affect the validity or enforceability of that provision in another jurisdiction or the remaining provisions.
7.9 Entire agreement. This Agreement contains the entire agreement relative to the protection and limitation of use of Confidential Information to be exchanged hereunder, and supersedes all prior or contemporaneous oral or written understandings or agreements concerning the subject matter hereof. This Agreement shall not be modified or amended, except in a written instrument executed by the Parties.
7.10 Counterparts. This Agreement may be signed in counterparts and all counterparts taken together constitute one document. For the purposes hereof, a facsimile or scanned copy of this Agreement, including all pages hereof, shall be deemed an original.