MUTUAL NON-DISCLOSURE AGREEMENT (NDA)

By logging into the FleetGuard™ Personal site with your provided user account and password, you as the USER agree to the following: 

During the course of discussions regarding a potential business or vendor relationship, the Parties anticipate the exchange of certain information (“Confidential Information”) as defined below. The Parties agree that Confidential Information will be considered to be both confidential and proprietary to the Disclosing Party and the terms and conditions of this Mutual Non-Disclosure Agreement (“NDA”) will govern their respective obligations regarding such Confidential Information.

1.     Definitions.

“Affiliate” of an entity means another entity that, directly or indirectly, controls, is controlled by, or is under common control with the first entity, where “control” means ownership or control of at least fifty percent (50%) of the voting power of securities or interests in the entity controlled.

“Confidential Information” means non-public, sensitive, confidential and/or proprietary information disclosed by a Party to another Party, including, but not limited to, business, marketing, operating and technical plans, strategies and information, financial information or condition, analyses, forecasts, clients, customers, consultants, contractors, employees, intellectual property and/or the subject matter thereof and information concerning a Party’s existing and future products and services. Confidential Information may be in written, verbal or electronic form.

“Consultant” shall mean (a) any individual or entity which has entered into a written agreement with a Party (containing obligations of confidentiality substantially similar to those contained in this NDA) to perform services, or to act as an agent, for or on behalf of that Party, or (b), a Party’s attorney.

“Discloser” means a Party disclosing Confidential Information pursuant to this NDA.

“Party” means either CCM or you as the USER, and “Parties” means CCM and you as the USER collectively.

“Recipient” means a Party receiving Confidential Information pursuant to this NDA.

2.     Disclosure Period.  This NDA pertains to Confidential Information that is disclosed by a Party from the date of the last login through two (2) years thereafter as provided for in Section 11.a. herein, (“Disclosure Period”).

3.     Confidentiality Period.  Recipient shall not disclose, and shall protect against disclosure of Confidential Information, for a period of three (3) years from the date of the last login.  All obligations of confidentiality shall survive termination and expiration of this NDA.  At such time as this NDA terminates or expires, Recipient shall, upon request of the Discloser, promptly return all Confidential Information received from the Discloser, together with all copies, or, if requested by the Discloser, certify that all such Confidential Information, together with all copies, has been destroyed.

4.     Use and Purpose of Confidential Information.  Recipient shall have the right to make use of Confidential Information during the Disclosure Period for the sole purpose of evaluating a potential business or vendor relationship with the Discloser.

5.     Care of Confidential Information.  Recipient shall protect Confidential Information by using the same degree of care to prevent the unauthorized use, dissemination or publication of such Confidential Information as Recipient uses to protect its own confidential information of a like nature, but no less than a reasonable degree of care. Recipient will not disclose Confidential Information to any person or party, except to its employees, or Consultants who need to know such Confidential Information for the use and purpose authorized in accordance with Section 4 above. Neither Party (except as required by applicable law, regulation or legal process), will, without the prior written consent of the other Party, disclose to any person or party the fact that Confidential Information has been made available, that the Parties are considering a potential business or vendor relationship, or that discussions or negotiations will take, are taking, or have taken place. Recipient is responsible for any breach of this NDA by its employees, or Consultants. All persons or parties given access to the Confidential Information by a Party shall be advised of the confidentiality obligations contained in this NDA and copies of Confidential Information shall be made by Recipient only as necessary for the purpose of this NDA. Any copies made by Recipient shall be labeled or identified as confidential or proprietary and shall be subject to all terms and provisions of this NDA.

6.     Exclusions.  Recipient shall have no duty to protect against disclosure of information that: (a) was rightfully in Recipient’s possession before receipt from Discloser, as substantiated by written records or documentation of Recipient; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third person without a duty of confidentiality; (d) is independently developed by Recipient without the use of Confidential Information as substantiated by written records or documentation of Recipient; (e) is disclosed under requirement of law or court order, provided that Recipient shall have made a reasonable effort to prevent such disclosure, shall have promptly notified Discloser in writing of any effort to compel disclosure prior to any such disclosure, and reasonably co-operates and assists with the Discloser’s lawful attempts to prevent disclosure and/or to obtain a protective order; or (f) is disclosed by Recipient with Discloser’s prior written approval.

7.     Independent Development. Both Parties agree that entering into this NDA shall not preclude a Party from independent development and marketing of products or services involving technology or ideas similar to those disclosed when derived from information independent of that disclosed pursuant to this NDA.

8.     No Exclusivity.  Nothing in this NDA or any receipt of Confidential Information shall prevent a Party from undertaking similar efforts or discussions with any third person or party, including a competitor of the other Party, so long as Confidential Information received pursuant to this NDA is not used in contravention of the terms and provisions of this NDA.

9.     Warranty.  Each Discloser warrants that it has the right to make the disclosures made pursuant to this NDA.  no other warranties, representations or conditions, express or implied, including, without limitation, any representations, warranties or conditions of accuracy, sufficiency, suitability or non-infringement are made by either party under this nda. any information exchanged under this nda is provided “as is” and except for any breach of the sole warranty in this section, the discloser shall have no liability whatsoever for any damages, losses or expenses incurred by the recipient as a result of its receipt or reliance upon information disclosed pursuant to this nda, whether arising in contract, tort or otherwise.  In addition, the Parties acknowledge that Confidential Information is subject to change at any time, without notice.

10.  Rights.  Confidential Information is and shall remain the property of the Discloser along with all associated intellectual property rights owned by the Discloser.  Neither the disclosure of Confidential Information, the expiration of the duty to protect from disclosure or anything else contained in this NDA shall be construed as granting or conferring any right or license under any patent, trade secret, copyright or other intellectual property right of any Discloser.

11.  Miscellaneous.

a.     This NDA imposes no obligation on either Party to enter into any activities or relationships or to purchase, sell, license, transfer or otherwise dispose of any technology, services, products, stock or assets.  This NDA does not create any agency, partnership, joint venture or alliance relationship.  Either Party may terminate discussions and negotiations by providing the other Party with written notice thereof. Until a separate, written definitive agreement has been executed and delivered, neither Party will have any liability to the other Party with respect to any proposed business or vendor relationship, whether by virtue of this NDA or by any other written or verbal expression with respect to the discussions between the Parties.

b.    This NDA shall not be transferable or assignable without the prior written consent of the other Party. Headings are for reference only and do not form a part of this NDA. This NDA contains the entire agreement between the Parties concerning Confidential Information and supersedes all prior written and verbal communications relating to the subject matter hereof. 

c.     Notices are deemed effective upon successful login to FleetGuard™ Personal. This NDA is made under and shall be governed by and construed in accordance with the laws of Pennsylvania, without giving effect to the principles of conflicts of law.

d.    Each Party acknowledges that a Recipient’s improper disclosure of Confidential Information or any threatened or actual breach of this NDA may cause irreparable harm to the Discloser; for which monetary damages would be inadequate.  Accordingly, the Discloser shall be entitled to seek equitable relief to the extent permitted by law, in addition to all other remedies. The Recipient shall be responsible for all costs and expenses, including but not limited to reasonable attorney’s fees, incurred by the Discloser in any action where Recipient has been found by a court of law or arbitrator(s) to have improperly disclosed Confidential Information.

e.     All disputes, claims and controversies, of any sort or nature arising hereunder shall be resolved by binding arbitration pursuant to the rules of the American Arbitration Association, with the limited exception of equitable relief as provided for in Section 11.d. above. The decision of the arbitrator shall be enforceable in any court of competent jurisdiction.