Vara Safety Non-disclosure Agreement


BY ACCEPTING THIS MUTUAL CONFIDENTIALITY AGREEMENT (“Agreement”), EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING A FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITION YOU MUST NOT ACCEPT THIS AGREEMENT. 

This agreement was last updated on July 2, 2019. This agreement is between the entity or individual entering into this Agreement and Vara Corporation (“VARA Corporation”), 42 Johnson Road, Latham NY 12110, collectively the "Parties" and individually a "Party." A copy of this Agreement is posted at https://www.varasafety.com/nondisclosure-agreement where it can be saved and/or printed. It is effective between the receiving Party and Vara Corporation as of the date of the receiving Party’s acceptance to this agreement.

 WITNESSETH:

WHEREAS, it is necessary and desirable that the receiving Party and VARA Corporation disclose to each other certain proprietary and confidential information concerning certain technology, know-how, data and/or other information relating to their products and to their operations, to permit discussion of potential product development projects ("the Purpose");

NOW, THEREFORE, in consideration of the mutual promises herein contained, the Parties agree as follows:

1. “Confidential Information" means any data or information that is proprietary to the furnishing Party and not generally known to the public, whether in tangible or intangible form, whenever and however disclosed, including, but not limited to:

(A) any marketing strategies, plans, financial information, or projections, operations, sales estimates, business plans and performance results relating to the past, present or future business activities of such party, its affiliates, subsidiaries, and affiliated companies;

(B) plans for products or services, and customer or supplier lists;

(C) any scientific or technical information, engineering, invention, schematics, drawings, design, process, procedure, formula, improvement, technology or method;

(D) any concepts, reports, data, know-how, works-in-progress, research, designs, development tools, specifications, computer software, source code, object code, flow charts, databases, inventions, information and trade secrets; and

(E) any other information that should reasonably be recognized as confidential information of the furnishing Party.  Confidential Information need not be novel, unique, patentable, copyrightable or constitute a trade secret in order to be designated Confidential Information.  The Receiving Party acknowledges that the Confidential Information is proprietary to the furnishing Party, has been developed and obtained through great efforts by the furnishing Party and that furnishing Party regards all of its Confidential Information as trade secrets.

(F) is treated as confidential or proprietary by the furnishing Party in the conduct of its own affairs.  If material is identified orally, the information shall still be reduced to writing within 30 days and the appropriate documents marked accordingly.

2. Both Parties agree not to use Confidential Information of the other Party for their own use, or for any purpose, except for the Purpose.  Both Parties agree not to disclose the Confidential Information of the other Party to any third parties, or to any of its employees, except employees who are required to have the Confidential Information to accomplish the Purpose.  Each Party further agrees to treat the other Party's Confidential Information with that degree of care that it treats similar material of its own. 

In the event a governmental authority requests such Confidential Information no disclosure may be made by either Party, unless the furnishing Party in its sole opinion determines that the applicable rules and regulations of such authority provide similar protection afforded hereunder to the proprietary information.  In the event the furnishing Party deems that they do not provide such protection the other Party shall not make such disclosure, unless such disclosure is made pursuant to an order of a court of competent jurisdiction, provided the furnishing Party is given timely notice thereof and a reasonable opportunity to seek the appropriate protection.

3. The obligations of Section 2, hereof, shall not be applicable to any particular portion of the Confidential Information when the Confidential Information:

(A) is shown to have been in the public domain at the time of its disclosure under this Agreement

(B) is shown to have been in the receiving Party's possession prior to its disclosure from the other Party;

(C) is or becomes known, or available, to the trade or public, such as through disclosure in a printed publication or in an issued patent (without breach of any of the obligations hereunder);

(D) was acquired by the receiving Party from a third party on a non-confidential basis;

(E) was necessarily disclosed by its use or embodiment in a product of the furnishing Party that has been placed in commerce; or

(F) was independently developed by the receiving Party, providing that the person or persons developing the same have no knowledge of the content of such Confidential Information, or have rightfully obtained the information from a source other than the furnishing Party.

4. All materials, including, without limitation, documents, drawings, designs, and software, furnished to one Party by the other Party, shall remain the property of the furnishing Party and nothing contained herein shall be construed as giving the receiving Party any license or rights, with respect to any information or materials which may be disclosed to it pursuant to this Agreement.  No Party shall make copies of any Confidential Information, except as required to accomplish the Purpose, without the prior written consent of the furnishing Party, and the receiving Party shall return to the furnishing Party, promptly upon request, all Confidential Information along with all copies made hereof. The receiving Party may retain documents prepared by the furnishing Party to meet the receiving Party's record keeping requirements.

5. The receiving Party will not, without the furnishing Party's prior written permission, furnish to any other party, any equipment or material embodying or made by the use of, any Confidential Information received hereunder or developed as a result of these investigations.

Additionally, the receiving Party will not take the Reach unit apart or break it open to view inside mechanics, etc.  The receiving Party will further agree not to, and not to permit any third party to, reverse engineer, reverse assemble, decompile, modify or attempt to discover any source or object code of any part of the Reach unit, or circumvent or attempt to circumvent, or copy any copy protection mechanism of the Reach unit.

6. Neither Party will use any of the other Party's Confidential Information in any patent applications.

7. Each Party acknowledges that a breach of this Agreement would result in irreparable harm to the other Party, the extent of which would be difficult to ascertain, and in any event money damages would be inadequate in the event of such a breach.  Accordingly, each Party agrees that in the event it breaches this Agreement, the other Party shall be entitled to injunctive, or other equitable relief as the court deems appropriate, in addition to any other remedies which it may have available.

8. This Agreement shall terminate after three years unless terminated sooner by either Party with 30 days' notice.  Notwithstanding the foregoing, the parties’ duty to hold in confidence Confidential Information that was disclosed during term shall remain in effect indefinitely. 

Additionally, the obligations of Sections 2, 3, 4, 5, 6, 7, and 11, hereof, shall survive the termination of this Agreement.

9. If any provision, or portion thereof, of this Agreement is held to be invalid under any applicable statute or rule of law, it shall be, to that extent, deemed omitted without invalidating the remaining portions of the Agreement.  Failure to enforce any provision of this Agreement shall not constitute a waiver hereof.

10. This Agreement contains the entire agreement of the Parties and cancels and supersedes any previous understanding, or agreement, related to Confidential Information, whether written or oral.  All changes or modifications to this Agreement must be agreed to in writing by the Parties.

11. This Agreement shall be construed, interpreted, and governed by the laws of the State of Delaware.