Effective Date: April 2, 2018.
This Confidentiality Policy (the “Confidentiality Policy”), effective as of April 2, 2018 states the terms and conditions that govern the confidality obligations by and between Counselors and Hosts (collectively, the “Parties”) with regard to engagements on www.kounsel.io and its affiliated mobile application (collectively, the “Platform”), which is owned and operated by Mirach LLC (the “Company”).
The Company provides the Platform to the Parties to engage to perform certain services (each, an “Engagement”) on the condition that such parties will abide by the Confidentiality Policy outlined herein. Thus, the obligations herein are material terms of any such Engagement unless expressly waived by the Parties to such Engagement.
Furthermore, the Parties should be advised that depending on the nature of the Engagement, the Parties may be bound to professional obligations such as doctor-patient or attorney-client relationships. It is the Company’s intent that it provide the Platform such that these relationships may be fostered. Thus, any Counselor performing services via the Platform should be aware of his or her professional obligations and the fact that an Engagement may create such a relationship.
Now, therefore, the Parties agree and acknowledge that they shall be bound by the following terms in any such Engagement, whereby the Party receiving the Confidential Information shall be the “Recipient” and the party providing the Confidential Information shall be the “Disclosing Party:”
- CONFIDENTIAL INFORMATION. Except as set forth in Section 2 below, “Confidential Information” means all non-public, confidential or proprietary information disclosed before, on, or after the Effective Date, by the Disclosing Party to the Recipient or its Affiliates, or to any of such Recipient’s or its Affiliates’ employees, officers, directors, partners, shareholders, agents, attorneys, accountants or advisors (collectively, “Representatives”), whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential.” “Affiliate” means, with respect to any Party, any person or entity that is directly or indirectly Controlling, Controlled by or under common Control with such Party, where “Control” and derivative terms mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such person or entity, whether through the ownership of voting securities, by contract or otherwise. For avoidance of doubt, Confidential Information includes, without limitation:
- All information concerning the past, present and future business affairs of the Disclosing Party and its Affiliates and their customers, suppliers and other third parties, including, without limitation, finances, customer information, supplier information, products, services, organizational structure and internal practices, forecasts, sales and other financial results, records and budgets, and business, marketing, development, sales and other commercial strategies;
- unpatented inventions, ideas, methods, and discoveries, trade secrets, know-how, unpublished patent applications and other confidential intellectual property of the Disclosing Party and its Affiliates;
- all designs, specifications, documentation, components, source code, object code, images, icons, audiovisual components and objects, schematics, drawings, protocols, processes and other visual depictions, in whole or in part, of any of the foregoing;
- all third-party confidential information (including, without limitation, any Personal Information as defined in Section 5 below) included with, or incorporated in, any information provided by the Disclosing Party to the Recipient or its Representatives;
- other information that would reasonably be considered non-public, confidential or proprietary given the nature of the information and the Disclosing Party’s business; and
- all notes, analyses, compilations, reports, forecasts, studies, samples, data, statistics, summaries, interpretations and other materials (the “Notes”) prepared by or for the Recipient or its Representatives that contain, are based on, or otherwise reflect or are derived from, in whole or in part, any of the foregoing.
- EXCLUSIONS FROM CONFIDENTIAL INFORMATION. Except as required by applicable federal, state or local law or regulation, the term “Confidential Information” as used in this Agreement shall not include information that:
- at the time of disclosure is, or thereafter becomes, generally available to and known by the public other than as a result of, directly or indirectly, act or omission by the Recipient or any of its Representatives; or
- at the time of disclosure is, or thereafter becomes, available to the Recipient on a non-confidential basis from a third-party source, provided that such third party, is not and was not prohibited from disclosing such Confidential Information to the Recipient by a legal, fiduciary or contractual obligation; or
- was known by or in the possession of the Recipient or its Representatives before being disclosed by or on behalf of the Disclosing Party pursuant to this Agreement; or
- is disclosed to prevent serious bodily harm to any person or the commission of a felony; or
- was or is independently developed by the Recipient, as established by documentary evidence, without reference to or use of, in whole or in part, any of the Disclosing Party’s Confidential Information.
- The Recipient shall have the burden of proving by clear and convincing evidence that one of the exclusions under Section 2 applies.
- RECIPIENT OBLIGATIONS. The Recipient shall:
- protect and safeguard the confidentiality of all such Confidential Information with at least the same degree of care as the Recipient would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care;
- not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than the Purpose or any related transactions between the Parties, or otherwise in any manner to the Disclosing Party’s detriment, including without limitation, to reverse engineer, disassemble, decompile or design around the Disclosing Party’s proprietary services, products and/or confidential intellectual property;
- not disclose any such Confidential Information to any person or entity, except to the Recipient’s Representatives who: (i) need to know the Confidential Information to assist the Recipient, or act on its behalf, in relation to the Purpose; (ii) are informed in writing by the Recipient of the confidential nature of the Confidential Information; and (iii) are subject to confidentiality duties or obligations to the Recipient that are no less restrictive than the terms and conditions of this Agreement;
- comply with all applicable on-site access, remote access and related security rules and procedures of the Disclosing Party;
- immediately notify the Disclosing Party of any unauthorized access, disclosure, loss or misuse of Confidential Information, or other breaches of this Agreement by the Recipient or its Representatives, of which the Recipient has knowledge;
- use its best efforts to immediately contain and remedy any such unauthorized access, disclosure, loss or misuse;
- fully cooperate with the Disclosing Party in any effort undertaken by the Disclosing Party to enforce its rights related to any such unauthorized disclosure; and
- be responsible for any breach of this Agreement caused by any of its Representatives.
- ADDITIONAL CONFIDENTIALITY OBLIGATIONS.
- Non-Disclosure of Precipitating Agreements. Except as required by applicable federal, state or local law or regulation, the Recipient shall not, and shall not permit its Representatives to, disclose to any person: (i) that the Confidential Information has been made available to the Recipient or its Representatives, or that it has inspected any portion of the Confidential Information; (ii) that discussions or negotiations may be, or are, underway between the Parties regarding the Confidential Information or the Purpose, including the status thereof; or (iii) any terms, conditions or other arrangements that are being discussed or negotiated in relation to the Confidential Information, the Purpose or this Confidentiality Agreement, including the existence of such agreement.
- No Contact With Third Parties. Except with the prior written consent of the Disclosing Party, neither the Recipient nor its Representatives shall contact any Representative, customer or supplier of the Disclosing Party with respect to the Confidential Information or the Purpose.
- RECIPIENT REPRESENTATIONS, WARRANTIES, AND COVENANTS. The Recipient represents, warrants and covenants that:
- Data Protection. It does and will comply, and will require its Representatives to comply, with all applicable federal, state and local privacy and data protection laws, regulations and directives in the maintenance, disclosure, use and disposal of all Personal Information contained in any Confidential Information that is disclosed to the Recipient or its Representatives hereunder. For purposes of this Agreement, “Personal Information” means information that: (i) relates to an individual person; and (ii) identifies or can be used to identify, locate or contact that individual alone or when combined with other personal or identifying information that is or can be associated with that specific individual;
- No Contractual Conflict. The performance of its obligations herein does not and will not violate any other contract or obligation to which the Recipient is a party, including covenants not to compete and confidentiality agreements;
- No Conflict of Duties. It is not legally or contractually prohibited from: (i) discussing a potential relationship with the Disclosing Party; (ii) receiving information about a potential relationship with the Disclosing Party; or (iii) entering into a principal agreement with the Disclosing Party;
- Security Protocols. It has implemented and will continue to maintain information security protocols to secure and protect the confidentiality of all Confidential Information in the Recipient’s or its Representatives’ possession or control from unauthorized access, disclosure, loss or misuse; and
- Further Assurances. It will, if requested by Disclosing Party, at Recipient’s sole cost and expense: (i) notify all local, state and federal departments and agencies required to receive notice under applicable law as a result of unauthorized access or disclosure of Personal Information, and all persons whose Personal Information has been accessed or disclosed; (ii) pay all associated claims and fines; and (iii) reimburse Disclosing Party for all reasonable costs and expenses incurred by Disclosing Party in connection with or resulting from any unauthorized access or disclosure, including all costs of notice, remediation, claims and fines.
- REQUIRED DISCLOSURE. Any disclosure by the Recipient or its Representatives of any of the Disclosing Party’s Confidential Information pursuant to a valid order issued by a court or governmental agency of competent jurisdiction (a “Legal Order”) shall be subject to the terms of this Section. Prior to making any such disclosure, the Recipient shall provide the Disclosing Party with:
- Immediate written notice of such requirement so that the Disclosing Party may seek a protective order or other remedy; and
- reasonable assistance in opposing such disclosure or seeking a protective order or other limitations on disclosure.
- If, after providing such notice and assistance as required herein, the Recipient remains subject to a Legal Order to disclose any Confidential Information, the Recipient shall disclose, and, if applicable, shall require its Representatives or other persons to whom such Legal Order is directed to disclose, no more than that portion of the Confidential Information which, on the advice of the Recipient’s legal counsel, such Legal Order specifically requires, and shall use commercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment.
- RETURN OR DESTRUCTION OF CONFIDENTIAL INFORMATION. Upon the expiration or termination of this Agreement, or at the Disclosing Party’s request at any time during the term of this Agreement, the Recipient and its Representatives shall promptly return to the Disclosing Party all copies, whether in written, electronic or other form or media, of the Disclosing Party’s Confidential Information, or destroy all such copies (including those stored in electronic form on systems and data storage services provided by third parties) and certify in writing to the Disclosing Party that such Confidential Information has been destroyed. In addition, the Recipient shall also destroy all copies of any Notes created by the Recipient or its Representatives and certify in writing to the Disclosing Party that such copies have been destroyed.
- TERM AND TERMINATION. The term of this Agreement shall commence on the Effective Date and shall expire three (3) years from the conclusion of the Engagement. Notwithstanding anything to the contrary herein, each Party’s rights and obligations under this Agreement shall survive the expiration or termination of this Agreement for a period of three (3) years from the date of such expiration or termination, even after the return or destruction of Confidential Information by the Recipient (the “Survival Period”), provided that for any and all:
- Personal Information disclosed by Disclosing Party hereunder, the Survival Period shall last for the period of time required under applicable federal, state and/or local law; and
- trade secrets of the Disclosing Party, the Survival Period shall last for as long as such Confidential Information qualifies as a trade secret under applicable federal, state and/or local law.
- INDEMNIFICATION. The Recipient shall defend, indemnify and hold harmless the Disclosing Party, its Affiliates and their shareholders, partners, officers, directors, employees, agents, successors and permitted assigns from and against all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and costs, in connection with any third party claim, suit, action or proceeding arising out of or resulting from a breach of any representation, warranty or obligation set forth in this Agreement by the Recipient or any of its Representatives.