Version: 1.5
Last updated: May 3rd 2023
This Confidentiality Agreement (the “Agreement“), between you and ClearVoyage ApS. (“ClearVoyage”) (individually “a Party”, collectively “the Parties”) shall be effective as of the date (the “Effective Date“) you contract for our services by signing the commercial agreement detailing the licensed services (“the Services”), which, together with the ClearVoyage SaaS License Agreement (collectively “the Agreements”) sets out the terms and conditions for your use of the license granted to you by ClearVoyage.
In the event that you desire to receive certain information from ClearVoyage that is non-public, confidential or proprietary in nature; and
Therefore, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
Confidential Information
In this Agreement “Confidential Information” means in respect of information disclosed by ClearVoyage to you: all information, data and materials, regardless of their form, relating to any or all of the business, affairs, and computer systems of ClearVoyage, whether or not marked or designated as confidential, and all information which ClearVoyage has obtained from a third party and which is marked or designated confidential or which, by its nature, is confidential.
Confidential Information includes, but is not limited to, the following types of information and other information of a similar nature (whether or not reduced to writing); discoveries, ideas, concepts, software designs, specifications, techniques, models, data, source code, object code, algorithms, and techniques, research, development, processes, procedures, "know-how", and marketing and development plans, and price lists.
Exclusions from Confidential Information
The limitations on reproduction, disclosure or use of the Confidential Information shall not apply, and you shall not be liable for reproduction, disclosure or use of the Confidential Information so far as any of the following conditions exist:
· If that information has been developed independently by or was already lawfully known by, or has been lawfully received by, the party wishing to make such reproduction, use or disclosure to a third party from other sources, provided such other source did not violate any legal restrictions governing that disclosure;
· If, after receipt that information, (i) is published by the party to whom it belongs to others without a restriction on its use or disclosure; or (ii) it has been lawfully obtained from other sources which the party wishing to make such reproduction, use or disclosure to a third party reasonably believes lawfully came to possess it; or
· The information is publicly known through no act or omission of the receiving party.
It is not a breach of this Agreement if the Confidential Information is disclosed to Inspector of Taxes, Customs and Excise or to any other person or body with a legal right, duty or obligation to know that information. In these circumstances the disclosing Party will notify the other of the intended or actual disclosure as soon as reasonably possible.
Your Obligations
You shall:
· protect and safeguard the confidentiality of all such Confidential Information with at least the same degree of care as you would protect your own Confidential Information, but with respect to Personal Data as defined in the General Data Protection Regulation of the European Union (“GDPR”), in no event with less degree of care than required by GDPR;
· not disclose or use ClearVoyage’s Confidential Information, or permit it to be accessed or used, for any purpose other than your use of the Service;
· immediately, and no later than 24 hours after the infraction, notify ClearVoyage of any unauthorised access, disclosure, loss or misuse of Confidential Information, or other breaches of this Agreement by you or of which you have knowledge;
· immediately contain and remedy any such unauthorised access, disclosure, loss or misuse;
· fully cooperate with ClearVoyage in any effort undertaken by ClearVoyage to enforce its rights related to any such unauthorised disclosure; and
· in no event shall Personal Data be used for profiling or automated decision making.
Your representations and warranties
You represent and warrant that you have in place:
· appropriate technical and organisational measures to protect Personal Data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, and which provide a level of security appropriate to the risk represented by the processing and the nature of the data to be protected;
· procedures so that any third party authorised by you to have access to Personal Data, including processors, will respect and maintain the confidentiality and security of the Personal Data;
· knowledge of any local laws that would have a substantial adverse effect on its obligations.
You furthermore represent and warrant that you shall:
· process the Personal Data only for the purpose of the Agreements;
· submit your data processing facilities, data files and documentation needed for processing to review and audit by ClearVoyage;
· comply, with all applicable international and national privacy and data protection laws, regulations and directives, including GDPR, in the maintenance, disclosure, use and disposal of all Personal Data contained in any Confidential Information that is disclosed to you;
· not dispose of or transfer the Personal Data to another third party data controller or processor;
· have implemented and will continue to maintain information security protocols that are no less rigorous than those required by the GDPR to secure and protect the confidentiality of all Personal Data in your possession or control from unauthorised access, disclosure, loss or misuse; and
· if ClearVoyage is prevented from doing so, at your sole cost and expense: (i) notify all authorities required to receive notice under applicable law as a result of unauthorised access or disclosure of Personal Data, and all persons whose Personal Data has been accessed or disclosed; and (ii) pay all associated claims and fines.
· Nominate to ClearVoyage a contact within your organisation that is authorised to respond to inquiries concerning processing of the Personal Data, and cooperate in good faith with ClearVoyage, the data subject and applicable authorities concerning all such inquiries within a reasonable time. In case of legal dissolution of ClearVoyage, or if the parties have so agreed, the data importer will assume responsibility for compliance with the provisions of GDPR.
Return or destruction of confidential information
Upon the expiration or termination of this Agreement, or at ClearVoyage’s request at any time during the term of this Agreement, you shall promptly return to ClearVoyage all copies, whether in written, electronic or other form or medium, of ClearVoyage’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 ClearVoyage that such Confidential Information has been destroyed. All of the foregoing shall be done in accordance with generally accepted data destruction standards.
Term and termination
The term of this Agreement shall commence on the Effective Date and shall expire two (2) years from the expiry of your license to the Services. Notwithstanding anything to the contrary herein, each Party’s rights and obligations with respect to Personal Data under this Agreement shall survive the expiration or termination of this Agreement for the period of time required under applicable international and/ or national law.
No transfer of rights, title or interest
ClearVoyage hereby asserts its entire right, title and interest, including all intellectual property rights, in and to all Confidential Information. Any disclosure of such Confidential Information hereunder shall not be construed as an assignment, grant, option, license or other transfer of any such right, title or interest whatsoever to you.
Remedies
You acknowledge and agree that monetary damages might not be a sufficient remedy for any breach or threatened breach of this Agreement by you. Therefore, in addition to all other remedies available at law (which ClearVoyage does not waive by the exercise of any rights hereunder), ClearVoyage shall be entitled to specific performance and injunctive and other equitable relief as a remedy for any such breach or threatened breach, and you hereby waive any requirement for proving irreparable harm or the securing or posting of any bond or the showing of actual monetary damages in connection with such claim, and further agree not to oppose the granting of such relief on the basis ClearVoyage has an adequate remedy at law.
Governing law
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes of claims).
Severability
If any term or provision of this Agreement is deemed by a qualified legal authority to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
This Confidentiality Agreement is included by reference to it in the ClearVoyage SaaS Agreement and you agree to be bound by all of the terms and conditions of this Confidentiality Agreement in the same manner of the SaaS Agreement. ClearVoyage reserves the right, at its sole discretion, to change, modify, add or delete portions of this Agreement at any time. Your continued use of the Services after any such changes constitutes your acceptance of the new Agreement. This being a binding legal agreement between you and ClearVoyage, we recommend that you save a copy of this Agreement for your records.