E-Tech CloudBAK End User Services Agreement
- Both parties recognize that the protection of the Confidential Information (as defined below) by the receiving party (the “Recipient”) is of vital importance to the party disclosing that information (the “Disclosing Party”).
- “Confidential Information” means any and all information and materials, which: (i) are designated in writing, as confidential at the time of disclosure; (ii) if disclosed orally or visually, are designated in writing, as confidential, within thirty (30) days of disclosure; or (iii) a reasonable person, having regard to the circumstances and the information, would regard as confidential.
- Confidential Information does not include information which:
(a) is or at any time becomes in the public domain other than by a breach of this Agreement or breach of any agreement between the Disclosing Party and a third party;
(b) is known to the Recipient (as substantiated by cogent and reliable written evidence in the Recipient’s position) free of any restrictions at the time of disclosure;
(c) is independently developed by the Recipient through individuals who have not had either direct or indirect access to the Disclosing Party’s Confidential Information; and
(d) is disclosed to the Recipient by a third party who had a right to make such disclosure.
The above listed exceptions do not apply in the case of Confidential Information that is also Personal Information.
- Neither party shall be liable for disclosure of Confidential Information if disclosure is required by any law applicable in the Province of Ontario, provided that the Recipient, to the extent permitted by law, notifies the Disclosing Party of any such requirement as soon as legally permissible, so that the Disclosing Party may seek a protective order or other relief.
- As between the Disclosing Party and the Recipient, the Disclosing Party is the owner of its Confidential Information, and except to the extent set out in this Agreement, no interest, license or other right in or to the Confidential Information is granted to the Recipient or implied simply by the disclosure of the Confidential Information.
- EXCEPT TO THE EXTENT EXPRESSLY SET OUT IN THIS AGREEMENT:
(a) ALL CONFIDENTIAL INFORMATION PROVIDED BY A DISCLOSING PARTY IS PROVIDED ON AN “AS IS” BASIS, WITHOUT ANY WARRANTY, REPRESENTATION OR CONDITION OF ANY KIND.
(b) WITHOUT LIMITING SECTION 6(a), THE DISCLOSING PARTY EXPRESSLY EXCLUDES THE FOLLOWING REPRESENTATIONS, CONDITIONS AND WARRANTIES WITH RESPECT TO ITS CONFIDENTIAL INFORMATION: ACCURACY, COMPLETENESS OR NON-INFRINGEMENT OF TRADE-MARKS, PATENTS, COPYRIGHTS OR ANY INTELLECTUAL PROPERTY RIGHTS OR OTHER RIGHTS OF THIRD PERSONS.
- The Recipient will:
(a) use the Disclosing Party’s Confidential Information only in accordance with this Agreement and only for the purpose of fulfilling its obligations and exercising its rights under this Agreement and will not use, manipulate or exploit the Disclosing Party’s Confidential Information in any other manner;
(b) use the same degree of care to protect the Disclosing Party’s Confidential Information as the Recipient would use to protect its own Confidential Information of a like nature and in any event using a standard no less than a reasonable degree of care;
(c) disclose the Disclosing Party’s Confidential Information only to the Recipient’s employees, subcontractors or agents who have a need to know and are bound by a written contract to keep the Confidential Information of third parties confidential at least to the same extent as set forth in this Agreement;
(d) not make copies of the Disclosing Party’s Confidential Information or modify it other than as expressly permitted under this Agreement; and
(e) notify the Disclosing Party immediately upon becoming aware of any unauthorized copying, disclosure or use of the Confidential Information by the Recipient or by any employees, subcontractors or agents to whom the Recipient has disclosed Confidential Information pursuant to this Agreement and make a commercially reasonable effort to minimize the effect of any such use or disclosure.
- The parties acknowledge that the Confidential Information (including but not limited to the copyright, proprietary rights, and/or trade secret interests that are embodied in the Confidential Information) of the Disclosing Party is of value to the Disclosing Party and that disclosure or unauthorized use of that Confidential Information by the Recipient will cause irreparable injury to the Disclosing Party. Consequently, the Recipient agrees that in addition to any other remedies that the Disclosing Party may have, the Disclosing Party will be entitled to seek injunctive and other equitable relief, as a matter of right, to prevent the breach or the further breach this Agreement.
- Upon expiration or termination of this Agreement or at the Disclosing Party’s request, the Recipient will: (i) return all Confidential Information disclosed to it by the Disclosing Party and all copies thereof, regardless of form; (ii) destroy any such Confidential Information that cannot be returned; and (ii) furnish to Disclosing Party, as soon as reasonably practicable, a certificate signed by an executive of Recipient attesting to such return or destruction. Notwithstanding the foregoing in this section 9:
(a) E-Tech may retain any back-up tapes produced in conjunction with the Services until such time as they are scheduled to be destroyed in conjunction with E-Tech’s policies and procedures with respect to the retention of back-ups.
(b) Either party may retain any Confidential Information of the other party that it is required to keep pursuant to any Laws, for so long as it is required to do so.