Zerto Non-Disclosure Agreement

Non-Disclosure Agreement

PLEASE READ THIS NON-DISCLOSURE AGREEMENT (THE “AGREEMENT”) CAREFULLY. DOWNLOADING, INSTALLING OR USING ZERTO’S PROPRIETARY ZERTO VIRTUAL MANAGER (ZVM) SOFTWARE CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.

1. Background: Zerto Ltd., and/or any of its subsidiaries (“Zerto”) and you (“You” or the “Company”) intend to engage in discussions and beta testing of Zerto’s proprietary Zerto Virtual Manager (ZVM) software (the “Project”), involving, among others, certain technology and know-how of both parties. It is anticipated that the Project will require the disclosure, by both parties, of certain valuable proprietary information to each other, relating to their respective operations, to be used only for purposes of the foregoing Project and under the terms and conditions of this Agreement.

Confidential Information: Any and all information, materials and data disclosed or supplied by one party (the “Disclosing Party”) to the other party (the “Recipient”) in oral, written, visual, electronic or any form whatsoever, which (i) is in written, recorded, graphical or other tangible form and marked “Proprietary”, “Confidential” or with a similar legend denoting the Disclosing Party’s proprietary interests therein, or (ii) is in oral form and identified by the Disclosing Party as proprietary or confidential at the time of oral disclosure, with subsequent confirmation in writing within 30 days of such disclosure, or (iii) is of apparent proprietary or confidential nature, shall be considered “Confidential Information” for purposes of this Agreement. Confidential Information shall include, but not be limited to, all methods, processes, procedures, strategies, plans and personnel, all discoveries, ideas, inventions, patents, patent applications, artwork, concepts, formulae, algorithmic, source codes, object codes, computer programs, software, know-how, trade secrets, techniques, designs, blueprints, specifications and other types of intellectual property, all sales programs and goals, customer and client lists, and all other matters relating to finances, business affairs, operating data and costs.

2. Ownership of Confidential Information: All Confidential Information is and shall remain at all times, the property of the Disclosing Party and no use of Confidential Information is permitted except as otherwise expressly provided in this Agreement and only in the manner and to the extent necessary for the purposes of the Project as set forth in Section 1.

3. Term and Effect: This Agreement shall commence on the date on which You agreed to accept these terms (by clicking on the appropriate box) and will cover all confidential information disclosed within the later of conclusion or termination of the Project, or the lapse of twelve (12) months of the date of this Agreement, and shall continue in full force and effect as long as Confidential Information does not fall into one or more of the exceptions set forth in Section 5 below. Zerto may terminate the Project and/or this Agreement at any time.

4. Use of Confidential Information: The Recipient shall in any and all time:

1. treat and maintain all Confidential Information in the strictest confidence, using the same degree of care that the Recipient uses to protect its own Confidential Information, and at least a reasonable degree of care;
2. not disclose any Confidential Information to any third party without the prior written consent of the Disclosing Party, except to employees and contractors of Recipient who have a “need to know” and must be directly involved in the use of Confidential Information for the purposes of this Agreement, provided that Recipient shall remain responsible for the compliance of such employees and contractor with the provisions of this Agreement;
3. not disassemble, reverse engineer or make any copies of Confidential Information (in any medium whatsoever) without the prior written consent of the Disclosing Party;

5. Exceptions: This Confidential Agreement shall not apply to specific information which:
1. is or becomes the public domain, without violation of this Agreement;
2. was known by the Recipient prior to the disclosure, provided that, immediately upon disclosure the Recipient brought this fact to the attention of the Disclosing Party and demonstrated in writing that such information was in fact so known to the Recipient;
3. is developed independently by the Recipient and written documentation is available to prove that such development predated this Agreement;
4. is legally transmitted or disclosed to Recipient by a third party which owes no obligation of confidentiality to the Disclosing Party.

6. Return of Confidential Information: Upon the first request of the Disclosing Party, the Recipient shall promptly return to the Disclosing Party all Confidential Information, including any copies thereof which were, at any time, in the possession of the Recipient, and all materials (in any medium whatsoever), which contain or embody Confidential Information.

7. No License: The disclosure to the Recipient of Confidential Information or its use hereunder shall not be construed in any way to grant the Recipient any right or license with respect to Confidential Information other than the right to use Confidential Information strictly in accordance with the terms of this Agreement.

8. No Representations. The disclosure to the Recipient of Confidential Information hereunder shall not be construed as placing any obligation on Disclosing Party to disclose any particular information to the Recipient, or to enter into a business relationship with the Recipient. THE CONFIDENTIAL INFORMATION IS PROVIDED TO RECIPIENT AS IS, WITHOUT GIVING ANY REPRESENTATION OR WARRANTY WITH RESPECT THERETO.

9. Injunctive Relief: The Recipient understands that any violation of this Agreement may cause immediate and irreparable harm to the Disclosing Party which monetary damages cannot adequately remedy. Without prejudice to rights and remedies according to the Rule of Law, Recipient therefore agrees that ex parte injunctive relief may be sought against it, in order to remedy, or to prevent a violation hereof.

10. Limited Relationship: This Agreement does not, in any way establish any principal/agent, employee/employer and/or ownership relationship between the parties hereto. This Agreement shall not be construed as a Teaming, Joint Venture or other such arrangement.

11. Entire Agreement: This Agreement consists of the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior written or oral agreements with respect hereto. This Agreement may not be modified except by written instrument signed by a duly authorized representative of each party hereto.

12. Survival: All Non-disclosure obligations including sections 3, 4, 5, 6, 7, 8 and 10 of this Agreement shall survive termination of the Project and of this Agreement and shall remain in full force and effect following such termination.

13. Governing Law: This Agreement shall be governed by and construed in accordance with the laws of the State of Israel, and any dispute arising under or in connection herewith shall be presented in and determined by the courts of Tel Aviv, Israel, exclusively.

14. Assignment: You shall not be entitled to assign, in whole or part, its rights and obligations hereunder without the prior written consent of Zerto.

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