STANDARD NON-DISCLOSURE AGREEMENT
1. Preamble
This Standard Non-Disclosure Agreement is concluded between Sum and Substance Ltd., a company incorporated and registered in England with company number 09688671 and all entities affiliated with or related to it ("Sumsub" or "Disclosing Party") and the User, willing to access Sumsub's System for a trial period ("User").
2. Glossary
"Agreement" shall mean this Non-Disclosure Agreement;
"Confidential Information" shall mean all information that is marked as confidential or, from its nature, can be reasonably presumed to be confidential, disclosed by Sumsub to the User in any form or manner 1) as a result of providing access to the System and 2) in any communication with the User taking place during the term of this Agreement, including, but not limited to, information regarding the Dashboard and its contents, Sumsub's intellectual property, products and services, customers, business activities, plans and strategies, or employed software.
Information is not Confidential if:
a) it is, or becomes, generally available to the public other than as a direct or indirect result of being disclosed by the User or its Representatives in breach of this Agreement;
b) it was lawfully in the User's possession before the information was disclosed by Sumsub;
c) it is developed by or for the User independently without reliance on or use of Confidential Information or any part thereof and the User can show written proof of such independent development; or
d) it was agreed in writing that the information is not confidential.
"Personal Data" means any data relating to a directly or indirectly identified or identifiable natural person, whether true or not, in any form, and as may be specified under the applicable data protection laws and regulations, and shall include such data that is held, separately or in combination with other information, by the User and/or its Representatives.
"Representatives" shall mean directors and/or officers and/or attorneys and/or any other persons, whether individuals or legal entities, acting on behalf of the User;
"System" shall mean the set of computer programs and databases owned and operated by Sumsub. The System includes an interactive software tool facilitating the communication between Sumsub and the User and ensuring management and processing of requests submitted by the User (the "Dashboard").
"Test Phase" means a process of showcasing or testing the solutions and services offered by the Disclosing Party, which includes identity verification checks simulation in a production environment following the User’s choice of services that the Disclosing Party will provide the User.
3. Obligations
3.1. The User hereby undertakes:
- To maintain all Confidential Information in strict and absolute confidence and to refrain from any disclosure and/or publication and/or description and/or communication of Confidential Information, in whole or in part, to any third party whatsoever;
- To take all necessary precautions to keep Confidential Information confidential and apply the same security measures and degree of care to Confidential Information as the User applies to its own confidential information;
- To only use Confidential Information for internal use and for purposes necessitated by the nature of the business relationship existing between Sumsub and the User;
- To immediately inform the Disclosing Party of any damage to or accidental loss of Confidential Information, including transfer to or use by unauthorized persons;
- Not to reverse engineer, de-compile or disassemble Confidential Information.
3.2. The User shall not be prevented from disclosing Confidential Information to Representatives that are required to know it, provided that each such Representative is bound by obligations of confidentiality no less restrictive than those contained herein and provided that the User shall remain liable for any act or omission by its Representatives that, if done by the User, would be a breach of the terms of this Agreement.
3.3 The obligations of the User regarding the confidentiality of Confidential Information shall not apply to any information which is required to be disclosed by applicable law, stock exchange, regulatory authority or a valid court order, provided that the User shall provide the Disclosing Party with reasonable prior written notice of the required disclosure (if permitted to do so by the applicable laws and regulations).
3.4 Parties acknowledge that some Confidential Information uploaded by the User or its Representatives into the Dashboard for the purposes of the Test Phase prior to the conclusion by the Parties of a commercial agreement will contain Personal Data. The User is solely responsible for its compliance with the applicable data protection laws and regulations, including without limitation the lawfulness of any transfer of Personal Data to the Disclosing Party and its processing of Personal Data pursuant to the Test Phase only. The User shall be solely responsible for the accuracy and completeness of Personal Data and the way the User obtains it, including provision of any required notices and collection of any necessary consents from data subjects. The User takes full responsibility for keeping the amount of Personal Data provided to the Disclosing Party to the minimum necessary for the performance of this Agreement. The User acknowledges and consents that certain business operations necessary for the performance of this Agreement may have been or may be delegated to one or more affiliates and/or subcontractors of the Disclosing Party and third parties which are engaged based on a written legal arrangement and provide necessary technical and organisational measures to keep Personal Data confidential and private. Disclosing Party will ensure appropriate technical and organisational measures when processing Personal Data under this Agreement and ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality. The Parties acknowledge that the Disclosing Party will assist the User in ensuring compliance with the obligations regarding the security of Personal Data and necessary information on data processing impact assessment, taking into account the nature of processing and the Personal Data available to the Disclosing Party. The Personal Data provided for the Test Phase will be processed for the Test Phase period and be deleted on the User’s written request. The Disclosing Party will make available to the User all information necessary to demonstrate compliance with the obligations laid down in this clause. For the purposes of the relevant data protection laws and regulations, this clause constitutes an appropriate legal arrangement for subcontracting the processing of Personal Data by the Disclosing Party on behalf of the User. The Parties have agreed that this clause 3.4 shall remain in full force and effect in case of the conclusion of any written agreement containing confidentiality provisions by the Parties (including, but not limited to, any non-disclosure agreements, but excluding possible agreement regarding provision specific services to the User by Sumsub).
4. Return of Confidential Information
4.1 If so requested by the Disclosing Party at any time by written notice to the User, the User shall promptly:
a) destroy or return to the Disclosing Party all documents and materials (and any copies thereof) containing, reflecting, incorporating or based on the Disclosing Party 's Confidential Information;
b) erase all Confidential Information from its own computer and communications systems, devices and other means of electronic storage;
c) erase all Confidential Information stored in electronic form in systems and data storage services owned by third parties; and
d) certify in writing to the Disclosing Party that it has complied with the requirements of this clause 4.1.
4.2 Nothing in clause 4.1 shall require the User to return or destroy any documents and materials containing or based on the Confidential Information that the User is required to retain by applicable law, or to satisfy the requirements of a regulatory authority or body of competent jurisdiction or the rules of any listing authority or stock exchange to which it is subject. The provisions of this Agreement shall continue to apply to any documents and materials retained by the User pursuant to this clause 4.2.
5. Reservation of rights and acknowledgement
5.1. All Confidential Information is and shall always remain the exclusive property of the Disclosing Party, and the User hereby acknowledges the right, title and interest of the Disclosing Party in and to Confidential Information. The User will not at any time infringe, contest, dispute or question such right, title or interest nor aid others in doing so, directly or indirectly.
5.2. The disclosure to the User of Confidential Information or its use by the User shall not be construed in any way as a grant to the User of any right or license in respect of Confidential Information other than the right to use it strictly in accordance with the terms of this Agreement.
5.3. The User understands that the Disclosing Party does not make any representations or warranties as to the accuracy or completeness of Confidential Information. The Disclosing Party and its directors, officers, employees and advisors shall have no responsibility, liability or obligation to the User as a result of its use of Confidential Information, and the User hereby waives any rights that it may have towards the Disclosing Party and its directors, officers, employees and advisors with respect to such Confidential Information.
5.4. The User hereby warrants that:
- The User is a company duly incorporated and existing under the applicable law;
- This Agreement is signed by a person duly authorised to act on behalf of the User in accordance with the applicable law and corporate documents of the User;
- This Agreement, when executed by the User, will constitute legal, valid and binding obligations of the User enforceable in accordance with its terms; and
- The execution, delivery and performance of this Agreement by the User will not result in a breach of any agreement, instrument or document to which it is a party or by which any of its assets are bound, or any order, judgment or decree of any court, governmental agency or regulatory body having jurisdiction over the User.
6. No partnership or agency
6.1. The execution of this Agreement shall not obligate a party hereto to proceed with any business relationship or business collaboration with the other party. Further, neither the execution of this Agreement nor the disclosure or receipt of Confidential Information shall prevent either party hereto from (i) establishing relationships or partnerships with third parties who operate in the same or similar industries to either party hereto or (ii) receiving information similar to Confidential Information from a third party.
7. Inadequacy of damages
7.1. Without affecting any other rights and remedies that the Disclosing Party may have, the User hereby agrees that damages would not be an adequate remedy for any breach by the User of the provisions of this Agreement, and that the Disclosing Party shall be entitled to remedies of injunction, specific performance and other equitable relief for any threatened or actual breach of the provisions of this Agreement and that no proof of special damages shall be necessary for the enforcement of this Agreement.
8. Term of the Agreement
8.1. The term of this Agreement shall commence once the User consents to its provisions by marking the respective checkbox when initially accessing the System and last until the User notifies SumSub in writing of its decision to stop using the System.
8.2. Notwithstanding the end of usage of the System pursuant to clause 8.1, the User's obligations under this Agreement shall continue in full force and effect for a period of one year upon termination of this Agreement.
8.3. The end of usage if the System shall not affect any accrued rights or remedies to which either party is entitled.
9. General
9.1. Assignment. Neither party shall assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement without prior written consent of the other party.
9.2. Waiver. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
9.3. Severance. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
9.4. Variation. No variation of this Agreement shall be effective unless it is in writing and signed by the Parties. Notwithstanding the above, Sumsub reserves the right to revise the Agreement from time to time, subject to providing the User, via the Dashboard or otherwise, with written notifications regarding such revisions within a reasonable time following their completion.
9.5. Governing law and jurisdiction. This Agreement and all disputes and claims arising out of or in connection with it are governed by English law. All disputes arising out of or in connection with this Agreement shall be referred to and finally resolved by an arbitration administered by the International Court of Arbitration of the International Chamber of Commerce in accordance with the Rules of Arbitration of the International Chamber of Commerce. The number of arbitrators shall be one. The law governing this arbitration clause shall be English law. The seat of the arbitration shall be London, England. The language of the arbitration shall be English. No award or procedural order made in the arbitration shall be published. The Parties shall at all times treat all matters relating to the proceedings and any arbitral award as confidential.