This NonDisclosure Agreement NDA involves
Title: NON-DISCLOSURE AGREEMENT
Governing Law: Delaware Date: 4/1/2015
Industry: Communications Equipment Sector: Technology
This Non-Disclosure Agreement (“Agreement”) is made and entered into as of November 25, 2014 by and between Mavenir Systems, Inc. (“Company A”) and Mitel Networks Corporation (a company incorporated under the laws of Canada) (“Company B”) .
For and in consideration of the disclosures to be made hereunder, and for other good and valuable consideration, the receipt and sufficiency of which are hereby expressly acknowledged, the parties agree as follows:
1. In this Agreement:
“Confidential Information” means all information concerning a party to this Agreement (“Disclosing Party”) or its affiliates or their respective business or affairs or shareholders furnished by or on behalf of the Disclosing Party to the other party of this Agreement (“Recipient”) or any of Recipient’s Representatives, regardless of the manner in which it is furnished (whether oral or in writing or electronic or in any other form or media or obtained by, or made available to, the Recipient or any of its Representatives, or otherwise ascertained through observation by the Recipient or any of its Representatives) and regardless of whether furnished before or after the date hereof, and includes particulars of corporate structure and governance; financial condition; operations; assets or liabilities; business plans or prospects; customers or vendors; intellectual property and technology; know-how; domain names; app names; company, shareholder, and employee names; and any material prepared by or for Recipient which contains, otherwise reflects, or is generated (in whole or in part) from Confidential Information; but Confidential Information does not include information that: (i) is already known to Recipient, without obligation to keep it confidential, at the time of its receipt from Disclosing Party; (ii) is received by Recipient in good faith from a third party that was lawfully in possession thereof and had no obligation to keep such information confidential; (iii) was readily available to the public at the time of its receipt by Recipient or has become readily available to the public other than by a breach of this Agreement or other non-disclosure covenant, breach of fiduciary duty, or other action by Recipient or any of its Representatives; or (iv) is shown by written record to have been developed by Recipient independent of, and without reference to, any disclosure by Disclosing Party; provided that the foregoing exceptions will not apply with respect to any personal information that is subject to privacy laws.
“Disclosing Party” means Company A in respect of its Confidential Information disclosed to Company B, and means Company Bin respect of its Confidential Information disclosed to Company A.
“including” and “include” mean “including without limitation” and “include without limitation”, respectively.
“Representatives” means, in respect of any Person, such Person, such Person’s affiliates, its and their respective directors, officers, employees, agents, and advisors (including financial advisors and legal counsel). The term “Representatives” does not include a party’s shareholders or any affiliate of a party’s shareholder unless the shareholder or its affiliate has received Confidential Information from the Recipient or any of the Persons listed in the preceding sentence.
“Person” includes individuals, corporations, limited and unlimited liability companies, general and limited partnerships, associations, trusts, unincorporated organizations, joint ventures, and governmental organizations.
“Purpose” means considering and evaluating a potential acquisition of Company A by Company B.
“Recipient” means Company A in respect of the Confidential Information of Company B, and means Company Bin respect of the Confidential Information of Company A.
2. In connection with the Purpose, Disclosing Party may disclose Confidential Information to Recipient. Nothing in this Agreement obligates Disclosing Party to make any particular disclosure of Confidential Information. Recipient acknowledges and agrees that all right, title and interest in and to the Confidential Information will remain the exclusive property of Disclosing Party. No interest, license, or any right respecting the Confidential Information, other than as may be expressly set out herein, is granted to Recipient under this Agreement by implication or otherwise.
To the extent that any Confidential Information includes materials subject to the attorney-client privilege, neither party is waiving, and shall not be deemed to have waived or diminished, its attorney work-product protections, attorney-client privileges or similar protections and privileges as a result of disclosing any Confidential Information to the Recipient or any of its Representatives.
3. Recipient will use the Confidential Information solely for the Purpose. Recipient will protect Disclosing Party’s Confidential Information and keep it secure and confidential. Except as expressly specified herein, Recipient will not, and will not permit its Representatives to, directly or indirectly, disclose, allow access to, transmit or transfer the Confidential Information to a third party without Disclosing Party’s prior written consent. Recipient may disclose the Confidential Information only to Recipient’s Representatives and only to the extent such Representatives have a need to know such information for the Purpose. Recipient will:
(i) prior to disclosing Confidential Information to any such Representative, inform them of the confidential nature of the information and have obtained its agreement to receive and use the Confidential Information on a confidential basis on the same conditions as contained in this Agreement and to otherwise comply with the terms hereof; and
(ii) be responsible for any and all breaches of the terms of this Agreement by its Representatives.
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The Recipient, and any parties to whom it provides the Confidential Information, will comply with all applicable laws with respect to the use and maintenance of the Confidential Information, including without limitation any applicable data protection laws.
Recipient will notify the Disclosing Party as promptly as practicable upon becoming aware of any unauthorized disclosure of Confidential Information.
4. Without the prior written consent of Disclosing Party, Recipient will not, and it will not permit its Representatives to, disclose, to any Person: (i) the existence or contents of this Agreement; (ii) the fact that Confidential Information has been made available to it; (iii) the fact that negotiations or discussions with Disclosing Party are, or may be, taking place, including the status thereof; or (iv) any terms, conditions or other matters relating to the Purpose. This Section 4 applies regardless of whether or not the foregoing information comprises Confidential Information.
5. If Recipient is required by applicable law, legal process, governmental regulation, court order or stock exchange requirement to disclose any Confidential Information, Recipient may make such disclosure but must first provide Disclosing Party with prompt notice of such requirement, unless notice is prohibited by law, in order to enable Disclosing Party to seek an appropriate protective order or other remedy. Recipient will cooperate with and will not oppose any action by Disclosing Party to seek such a protective order or other remedy. If, failing the obtaining of a protective order or other remedy by Disclosing Party, such disclosure is required (including where Recipient was prohibited by law from providing notice), Recipient will use reasonable efforts to ensure that the disclosure will be afforded confidential treatment and will only disclose such Confidential Information that it is, on the advice of its counsel, legally required to disclose.
6. Upon Disclosing Party’s request, or on the expiration or termination of this Agreement, Recipient will promptly return to Disclosing Party or irrecoverably destroy all Confidential Information, including all copies thereof (including electronic copies). Recipient will deliver to Disclosing Party a signed certificate by an officer of Recipient attesting to such return or destruction. Notwithstanding the return or destruction of Confidential Information, Recipient will continue to be bound by the terms of this Agreement.
7. Recipient acknowledges and agrees that neither Disclosing Party nor any of Disclosing Party’s Representatives make any representation, warranty or condition, express or implied, as to the accuracy, currency or completeness of the Confidential Information, and Recipient will not be entitled to rely on the accuracy or completeness of the Confidential Information. Recipient understands and agrees that neither Disclosing Party nor any of Disclosing Party’s Representatives will have any liability to Recipient or Recipient’s Representatives relating to or resulting from the use of the Confidential Information or any errors therein or omissions therefrom.
8. Each party acknowledges and agrees that unless and until a definitive agreement between Company A and Company B has been executed and delivered with respect to the Purpose, neither party nor their Representatives will be
under any legal obligation of any kind whatsoever or have any liability to the other party with respect to the Purpose, including any obligation to: (i) consummate any transaction related to the Purpose; (ii) conduct or continue discussions or negotiations or to provide any Confidential Information; or (iii) enter into or negotiate a definitive agreement. Company A reserves the right, in its sole discretion, to reject any and all proposals made by Company B or on its behalf with regard to the Purpose, to terminate discussions and negotiations with Company B, and to enter into any agreement with any other Person without notice to Company B or any of Company B&rs