Mutual Non-Disclosure Agreement

Advalora Consulting, a proprietorship firm with its principal place of business at C 228 Shreyas Industrial Estate, Near Jay Coach, Goregaon East, Mumbai 400063, Maharashtra, India (“Advalora”); and

, a incorporated under the laws of with its principal place of business at (the “Client”).

Advalora and the Client are each referred to as a “Party” and together as the “Parties”.

The Parties wish to explore and/or undertake a business relationship in connection with software licensing advisory, software asset management (SAM), IT asset management (ITAM) advisory, vendor audit defense, contract review, optimisation and related professional services (the “Purpose”). To facilitate the Purpose, each Party may disclose to the other certain Confidential Information.

“Confidential Information” means any non-public information, in any form or medium (oral, written, electronic, visual or otherwise) disclosed by or on behalf of one Party (the “Disclosing Party”) to the other (the “Receiving Party”) in connection with the Purpose, including without limitation:

1. business plans, strategies, financial and commercial information, customer and vendor lists, contracts, ordering documents, master agreements, statements of work, licence terms, audit notices and findings, internal correspondence and negotiation positions;
2. technical, operational and architectural information, including deployment configurations, infrastructure inventories, source code, scripts, telemetry, measurement-tool outputs, effective licence positions, methodologies, models, work-products and deliverables;
3. personal data and employee or contractor information disclosed in the course of the engagement;
4. any information that, given its nature or the circumstances of disclosure, a reasonable person would understand to be confidential; and
5. the existence, status and contents of any discussions, proposals or transactions between the Parties.

Confidential Information does not include information that the Receiving Party can demonstrate by written records:

1. was lawfully known to it, without confidentiality obligation, prior to disclosure by the Disclosing Party;
2. is or becomes publicly available through no act or omission of the Receiving Party or its Representatives in breach of this Agreement;
3. is rightfully received from a third party without restriction and without breach of any duty of confidentiality;
4. is independently developed by the Receiving Party without reference to or use of the Disclosing Party's Confidential Information; or
5. is required to be disclosed by applicable law, court order or competent regulatory authority, provided that the Receiving Party (where lawful) gives the Disclosing Party prompt written notice and cooperates reasonably in any effort to obtain protective relief.

4.1 The Receiving Party shall use Confidential Information solely for the Purpose and for no other commercial, competitive or personal benefit.

4.2 The Receiving Party shall protect Confidential Information with at least the same degree of care it uses to protect its own confidential information of a similar nature, and in no event with less than reasonable care, including the implementation of administrative, technical and physical safeguards appropriate to the sensitivity of the information.

4.3 The Receiving Party shall limit access to Confidential Information to its directors, officers, employees, contractors, professional advisors and affiliates (“Representatives”) who: (a) have a need to know for the Purpose; (b) have been informed of the confidential nature of the information; and (c) are bound by written confidentiality obligations no less protective than those of this Agreement. The Receiving Party shall remain responsible for any act or omission of its Representatives.

Without the Disclosing Party's prior written consent, the Receiving Party shall not contact, notify, share or otherwise disclose any Confidential Information to any software vendor, licensor, licensing audit body, original equipment manufacturer, or any of their employees, agents, affiliates or partners. This clause is intended to preserve the strategic and commercial position of the Disclosing Party and shall be strictly observed.

6.1 No licence, assignment, ownership interest or other right (express or implied) in or to any Confidential Information, intellectual property, trade mark, trade secret or deliverable is granted by this Agreement. All rights remain with the Disclosing Party.

6.2 All Confidential Information is provided “as is”. Neither Party makes any representation or warranty, express or implied, as to its accuracy, completeness, non-infringement or fitness for any particular purpose.

7.1 This Agreement shall commence on the Effective Date and remain in force for a period of two (2) years (the “Term”), unless extended or terminated earlier by mutual written agreement.

7.2 The obligations of confidentiality and non-use set out in this Agreement shall survive expiry or termination for a period of five (5) years from the date of disclosure of the relevant Confidential Information. Trade secrets shall be protected for so long as they retain such status under applicable law.

Upon written request of the Disclosing Party, or upon expiry or termination of this Agreement, the Receiving Party shall, at the Disclosing Party's election, promptly return or securely destroy all Confidential Information in its possession or control (including copies, summaries, extracts and derivatives), and certify such return or destruction in writing within fifteen (15) business days. The Receiving Party may retain one archival copy solely to evidence its compliance with this Agreement or to satisfy legal, regulatory or audit retention requirements, subject to continuing confidentiality obligations.

The Parties acknowledge that any breach of this Agreement may cause irreparable harm for which monetary damages would be inadequate. The non-breaching Party shall therefore be entitled to seek equitable relief, including injunctive relief and specific performance, in addition to any other remedies available at law or in equity, without the requirement to post a bond or other security.

During the Term and for a period of twelve (12) months thereafter, neither Party shall directly or indirectly solicit for employment any employee or contractor of the other Party with whom it has had material contact in connection with the Purpose. General advertising not specifically targeted at such persons, and the consideration of unsolicited applications, shall not constitute a breach of this clause.

Nothing in this Agreement shall create any partnership, joint venture, agency, fiduciary or employment relationship between the Parties, nor shall it obligate either Party to enter into any further agreement, engagement or transaction. Each Party shall remain free to pursue similar discussions with third parties, provided no Confidential Information is used or disclosed in breach of this Agreement.

This Agreement shall be governed by and construed in accordance with the laws of the Republic of India, without regard to its conflict-of-law principles. The courts at Mumbai shall have exclusive jurisdiction in respect of any dispute arising out of or in connection with this Agreement, subject to either Party's right to seek interim or injunctive relief in any court of competent jurisdiction.

All notices under this Agreement shall be in writing and delivered by hand, courier, registered post or email with confirmation of receipt, to the addresses set out below the signature blocks (or such other address as a Party may notify in writing).

14.1 Entire Agreement. This Agreement constitutes the entire understanding between the Parties concerning its subject matter and supersedes all prior or contemporaneous communications.

14.2 Amendment. Any amendment to this Agreement must be in writing and signed by authorised representatives of both Parties.

14.3 No Waiver. No failure or delay by either Party in exercising any right shall operate as a waiver, nor shall any single or partial exercise preclude any other or further exercise thereof.

14.4 Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall continue in full force, and the invalid provision shall be modified to the minimum extent necessary to render it enforceable while preserving its commercial intent.

14.5 Assignment. Neither Party may assign this Agreement, in whole or in part, without the prior written consent of the other Party, save that either Party may assign to an affiliate, or in connection with a merger, acquisition or sale of substantially all of its assets, on notice to the other.

14.6 Counterparts; Electronic Signatures. This Agreement may be executed in counterparts (including by electronic signature or scanned PDF), each of which shall be deemed an original, and which together shall constitute one and the same instrument.

14.7 Headings. Section headings are for convenience only and shall not affect the interpretation of this Agreement.