This Confidentiality Agreement (the “Agreement”) dated as of the date of electronic acceptance by Customer is entered into between Kaseya US LLC, located at 701 Brickell Avenue, Suite 400, Miami, FL 33131 (along with its past, present and future Affiliates and each of their officers, directors, employees, contractors, suppliers and agents collectively, “Company”) and the entity that electronically accepts the terms herein (along with its past, present and future Affiliates collectively, “Customer”). Affiliate means any legal entity that a party owns, which owns the party, or which is under common ownership with the party where “Ownership” means more than 50% ownership or voting control.
WHEREAS, Customer desires to engage Company to perform services or provide products to Customer (collectively the “Services”); and
WHEREAS, Customer may or may have had access to and/or receive, and Company desires to maintain and protect the confidentiality and security of Company Information and other Confidential Information (each as defined below) that Company may provide to Customer from time to time, or that the Customer may otherwise obtain, in connection with the Services.
WHEREAS, Company Information broadly means any personally identifiable information of Company and its customers or any of their officers, directors, employees, contractors, suppliers and agents, including but not limited to: (a) personal data as defined in the General Data Protection Regulation (EU) 2016/679, Japanese Personal Information Protection Act and Hong Kong Personal Data (Privacy) Ordinance; (b) non-public personal information and Personal Health Information as defined, respectively, in the United States Gramm-Leach-Bliley and Health Insurance Portability and Accountability Acts; and (c) personal information as defined in the Canadian Personal Information Protection and Electronic Documents Act, the New Zealand Privacy Act, and the Australian Privacy Act 1988; (d) sensitive personal data or information as defined in the Indian Information Technology Act; (e) any security or similar information designed to comply with the above laws or any similar regimes; and (f) any information similarly designated or protected to the foregoing under any law in any jurisdiction.
NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein and other good and valuable consideration, Company and the Customer agree as follows:
- This Agreement applies generally to Customer, including but not limited to all Services performed by Company for Customer. In the event that Company and the Customer have entered into any other agreement or enter any agreement in the future concerning the Services, or confidentiality or otherwise (collectively referred to herein as a “Services Agreement”), the Services Agreement shall not apply to this Agreement and this Agreement shall be deemed to supersede and govern in case of conflict with such Services Agreement with respect to matters set forth in this Agreement, but shall not otherwise affect such Services Agreement.
- The Customer acknowledges that, in connection with the Services or otherwise, the Customer may have had access to or received or may have access to or receive information that is technical, financial, marketing, staffing and business plans and information, strategic information, proposals, requests for proposals, specifications, drawings, prices, costs, Company Information, procedures, proposed products, processes, business systems, software programs, techniques, security, services and a variety of other information and materials (the “Confidential Information”); it being understood that Confidential Information also includes the fact that such information has been provided and any information that should reasonably have been understood by Customer, because of legends or other markings, the circumstances of disclosure or the nature of the information itself, to be proprietary or confidential to Company or its customers. This Agreement is intended to cover Confidential Information received by the Customer both prior and subsequent to the date hereof. The Customer agrees that as between Customer and Company, all such Confidential Information is, and shall be considered, confidential and proprietary to Company. The Customer agrees that it shall:
- (a) protect and preserve the confidential and proprietary nature of all Confidential Information;
- (b) not disclose, give, sell or otherwise transfer or make available, directly or indirectly, any Confidential Information to any third party (including the Customer’s agents and contractors) for any purpose, except as expressly permitted in writing by Company;
- (c) not use, or make any records or copies of, the Confidential Information, except as specifically needed in order to provide the Services;
- (d) limit the dissemination of the Confidential Information to such entities and individuals whose duties justify the need to know the Confidential Information, and then only provided that such entities and individuals are obligated to comply with all terms of this Agreement;
- (e) return (or, at Company’s request, destroy) all Confidential Information and any copies thereof (in whatever form) (i) as soon as it is no longer needed or (ii) immediately upon Company’s request, and certify to Company in writing that this has been done;
- (f) notify Company immediately of any actual, potential, threatened or attempted access to, loss, misplacement or unauthorized use or disclosure of Confidential Information, in whatever form;
- (g) to the extent that Company Information is processed as part of the Services: (i) merely act as the data processor and the Company is the data controller; (ii) only process Company Information on behalf of, and in the name of the Company, and only in accordance with the instructions of the Company; and
- (h) comply with any security procedures attached to this Agreement and any other reasonable security procedures as may be prescribed by Company for protection of the Confidential Information.
Customer agrees to comply with all laws, orders, and regulations including all privacy, confidentiality, notification and consumer protections laws including those applicable to Company Information and the handling and processing thereof. The Customer shall ensure and be responsible for the compliance with the terms of the Agreement by any person or entity who obtains Confidential Information from or through Customer.
- Except with respect to Company Information, the obligations set forth herein shall not apply to information that can be shown by written documentation: (1) becomes generally available to the public other than as a result of a disclosure by the Customer, (2) was available to the Customer on a non-confidential basis prior to its disclosure by Company or its agents, (3) is disclosed to the Customer on a non-confidential basis from a source other than Company or its agents, provided, however, that such source is not bound by a confidentiality obligation to Company or its agents; or (4) was independently developed without reference to or reliance upon the Confidential Information.
- In the event that the Customer is required, by subpeona, court order, or other similar process, to disclose Confidential Information, the Customer shall provide Company with prompt written notice and documentation thereof, so that Company may seek a protective order or other appropriate remedy and Customer shall cooperate with Company in any such efforts.
- The Customer shall implement and maintain at all times appropriate technical, security and organizational measures to: (i) ensure the security and confidentiality of the Confidential Information, (ii) identify potential threats or hazards to the security or integrity of the Confidential Information and protect against any anticipated threats or hazards, and (iii) protect against unauthorized access to or use of the Confidential Information.
- Upon any breach of this Agreement by Customer, Company may terminate any or all of the Services or the Services Agreement in whole or in part without any liability or termination penalties of any kind.
- Company or its designees (which may include regulatory authorities with jurisdiction over Company, its customers or any of their affiliates, or outside auditing firms) will have the right at any reasonable time to enter any premises at which the Services, or any part thereof, are performed, for the purpose of inspecting and auditing the provision of such Services and to determine, among other things, whether the Services are being provided in accordance with applicable law and the terms of this Agreement, and whether Customer and its agents and contractors have adequate policies, procedures and controls in place to protect the security of Confidential Information acquired or maintained by them in connection with the Services. During any such audit or inspection, Customer will, and will cause its agents and contractors to, give Company, its customers or their designee access to all records, in whatever form maintained, relating to the provision of the Services, and to all computer servers and other equipment used by Customer or its agents or contractors in performing the Services.
- In the event of any actual or threatened unauthorized access to Confidential Information or breach of this Agreement, Customer shall at Customer’s expense: (a) immediately notify Company; (b) cooperate with Company to take all measures to stop or limit the access, use or damages caused thereby; (c) implement changes and safeguards to prevent further access or use; and (d) as directed by Company send notifications or communications to affected individuals or entities. The parties acknowledge that Confidential Information is unique and valuable, and that use or disclosure in breach of this policy will result in irreparable injury to Company or its clients for which monetary damages alone would not be an adequate remedy. Therefore, the Customer agrees that Company, without prejudice to any rights to judicial relief it may otherwise have at law or in equity, shall be entitled to equitable relief, including injunction and specific performance, in the event of any breach of the provisions of this Agreement and that the Customer shall not oppose the granting of such relief. The Customer also agrees that it will not seek and agree to waive any requirement for the securing or posting of a bond in connection with Company’s seeking or obtaining such relief.
- Neither Company nor any of its suppliers or agents or any of their customers are making any representation or warranty as to the accuracy or completeness of the any information (including without limitation Confidential Information) provided by them. The Customer agrees that Company shall have any liability resulting from the use of such information by Company.
- If a provision of this Agreement is held invalid under any applicable law, such invalidity will not affect any other provision of this Agreement that can be given effect without the invalid provision. Further, all terms and conditions of this Agreement will be deemed enforceable to the fullest extent permissible under applicable law, and, when necessary, the court is requested to reform any and all terms or conditions to give them such effect.
- The Customer shall indemnify, defend and hold harmless Company, its affiliates, their suppliers, agents and customers from any and all claims, actions, suits, proceedings, costs, expenses, damages and liabilities, including reasonable attorneys’ fees, which arise out of or result from the breach by Customer of any term of this Agreement.
- This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to its conflicts laws provisions; it being understood that the law of other jurisdictions shall be used to define Company Information as broadly as possible. Each party hereby waives the right to trial by jury in any action arising out of or relating to this Agreement.
- No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
- This Agreement is not assignable or transferable by the Customer without the prior written consent of Company, and any attempt to assign or transfer this Agreement without such consent shall have no effect. The rights and obligations of this Agreement shall survive its termination.
- This Agreement constitutes the entire agreement between the parties relating to the matters discussed herein and supersedes all prior oral or written communications and agreements between the parties hereto and except as set forth in the following sentence, any Services Agreements whether executed prior to or subsequent to this Agreement. This Agreement may be amended or modified only with the mutual written consent of the parties hereto specifically referencing this Agreement and the provisions of the Agreement to be modified and for the avoidance of doubt any Services Agreement executed subsequent to this Agreement shall not modify the terms of this Agreement unless all the requirements of this clause have been met. The Customer’s obligations hereunder are in addition to, and not exclusive of, any and all of its other obligations and duties to the Company, whether express, implied, in fact or in law. Subject to the limitations set forth in this Agreement, this Agreement will inure to the benefit of and be binding upon the Customer and their respective successors and assigns.
- The Agreement may be executed by fax, and/or in any number of counterparts, all of which will together be considered an original and may be evidenced by a fax or scanned electronic (e.g. .pdf, .tif) copy.