Bionic Reading GmbH Albulastrasse 15 CH-7000 Chur Switzerland (hereinafter referred to as “Bionic Reading” or “Disclosing Party”)
Bionic Reading GmbH is the author and exclusive copyright holder of “Bionic Reading”. It is a software which converts texts according to a certain algorithm protected by copyright and thus enables the user to read texts in a very focused way. The corporate purpose of Bionic Reading is the development, introduction, marketing and licensing of innovative reading methods. Bionic Reading enables sustainable reading optimization through algorithms and software solutions. Bionic Reading is considering making its software available to selected providers – i.e. Recipient – on a trial basis. It cannot be ruled out that the embedding of the interface may lead to the source code of the software being disclosed (“Disclosing Purpose”). The purpose of this Agreement is therefore to define the terms and conditions on which Bionic Reading will provide Recipient with Confidential Information, in particular source code disclosure, in connection with a potential business relationship between the parties, with respect to the Disclosing Purpose:
1.1. Confidential Information
Confidential Information means:
a) the description of the computer program including its documentation, the source code, also in an insignificantly changed form as well as the knowledge about how Bionic Reading uses these computer programs;
b) all technical information, compositions, formulæ, algorithms, specifications, research results, analyses, statistics, summaries, data, interpretations, components, images, symbols, protocols, prototypes, tests, procedures, results and other materials;
c) Bionic Reading’s trade and business secrets and information about Bionic Reading’s customers;
d) any other information of any kind (and whether or not marked confidential) relating to the project “Reader-App” made available by Bionic Reading to Recipient (orally, in writing, through any means of communication or stored in any media) or received by Recipient at a meeting that would reasonably be considered non-public, confidential or proprietary given the nature of the information and the Parties’ businesses and shall include the existence of this Agreement and that discussions may or do take place between Bionic Reading and Recipient.
1.2. Non-confidential information
The terms of this Agreement relating to use and disclosure of Confidential Information shall not apply to information, covered by the following exceptions, as proven by Recipient’s written records with clear and convincing evidence:
a) Information that is or becomes publicly known through no wrongful act of the Recipient;
b) Information that is, at the time of disclosure under this Agreement, already known to the Recipient without restriction on disclosure;
c) Information that is, or subsequently comes into the possession of Recipient without violation of any contractual or legal obligation;
d) Information that is independently developed by the Recipient prior to the receipt of Confidential Information and without breach of this Agreement; and
e) Information that is explicitly approved for release by written authorization of an authorized representative of Bionic Reading.
Recipient undertakes as a condition for the receipt of the Confidential Information hereunder that Recipient does
a) not disclose, directly or indirectly, to any third party any portion of the Confidential Information;
b) not use, copy or exploit the Confidential Information except for the Disclosing Purpose;
c) not reverse engineer or cause a third party to reverse engineer;
d) take all reasonably necessary precautions to protect the confidentiality of the Confidential Information received hereunder and exercise at least the same degree of care in safeguarding the Confidential Information as Recipient would with its own Confidential Information, but no less than reasonable care;
e) reveal and communicate Confidential Information only to employees of Recipient who need to know the Confidential Information and only to the extent necessary for the Disclosing Purpose;
f) at Bionic Reading’s request, disclose the names of those persons or entities to whom it has made Confidential Information available. This disclosure obligation does not relieve the Provider of any other obligation set forth in this Agreement or existing by law.
Recipient shall take all reasonably necessary steps to ensure that its employees (and any authorized third parties) comply with the foregoing confidentiality restrictions and obligations. Recipient shall be responsible for all unauthorized uses or disclosures of Confidential Information by such employees and such third parties.
Recipient shall be permitted to disclose Confidential Information under this Section 2.3. and shall not be in violation of this Agreement if such Confidential Information is disclosed pursuant to the requirement or request of a duly empowered governmental agency or court of competent jurisdiction to the extent such disclosure is required by law, regulation or court order, and sufficient prior notice is given by the Recipient to Bionic Reading of any such requirement or request to permit Bionic Reading to seek an appropriate protective order or to otherwise contest the disclosure of such Confidential Information.
3. Return of Confidential Information
At Bionic Reading’s request the Recipient shall immediately
a) destroy all Confidential Information and copies and records thereof or return to Bionic Reading and delete all Confidential Information from data carriers.
b) either return to Bionic Reading or destroy all analyses, statements, notes, summaries, communications, excerpts or other materials in writing, magnetic, digital or any other form (including copies thereof) that relate in whole or in part to, contain or reflect Confidential Information created by Bionic Reading.
Upon written request by Bionic Reading, Recipient shall confirm in writing that it has fully complied with its obligations under Section 3.1. of this Agreement.
4. Contractual Penalty
In the event of a breach of any of the provisions of this Confidentiality Agreement by Recipient or any of its employees or representatives, Recipient undertakes to immediately pay Bionic Reading a contractual penalty of CHF150000.00 (in words: one hundred and fifty thousand Swiss francs) for each individual breach of duty, regardless of fault. Payment of the contractual penalty shall not release Recipient from any other obligation laid down in this Agreement.
4.2.Further claims for damages by Bionic Reading remain unaffected. In the event of the assertion of further claims for damages, the contractual penalty shall be charged.
This non-disclosure agreement shall enter into force upon its signature by both parties and shall be valid for an unlimited period of time.
6. Applicable law and jurisdiction
This Agreement shall be exclusively governed and construed in accordance with the laws of Switzerland, under the exclusion of national and European conflict of law rules. UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply. The exclusive place of jurisdiction for all disputes arising from or in connection with this agreement and which cannot be settled amicably shall be the competent court at the registered office of Bionic Reading.
7.1. Data Protection
Recipient will use the personal data received from Bionic Reading solely for the Disclosing Purpose. Recipient undertakes, in addition to the obligations set forth in Clauses 2. and 3., to comply with all legal provisions relating to data protection. Recipient shall immediately notify Bionic Reading of any violation of such provisions. Should Bionic Reading be held liable by third parties due to breaches of data protection laws by Recipient, Recipient shall indemnify Bionic Reading against all costs incurred.
7.2. Intellectual Property Rights
This Agreement shall not transfer to Recipient any rights or licenses of any kind whatsoever, in particular in patents or other industrial property rights or know-how.
7.3. No assurances or warranties
Confidential Information is disclosed or received “as is”. Bionic Reading makes no representations or warranties, express or implied, as to the accuracy, reliability, completeness or adequacy of any Confidential Information. Bionic Reading is in no way responsible for the content of any Confidential Information, the suitability or use of such information by Recipient (or any user authorized under this Agreement).
7.4. Entire Agreement
Oral agreements do not exist. Insofar as they have existed, they become irrelevant upon signing of the Agreement. Amendments and supplements to this agreement as well as all declarations of the parties which are to have no legal effect under this contract must be made in written form in order to be effective. The cancellation of this clause also requires the written form in order to be effective.
7.5. Severability clause
If a provision of this contract is or becomes partially or completely invalid or unenforceable, this shall not affect the validity or enforceability of the remaining provisions of this contract.
8. Confirmation and Acceptance
We hereby confirm that the foregoing is in accordance with our understanding and hereby subject to the terms of this Agreement.
Date: September 2020