you - the person who downloaded and/ or installed, and/ or using the product offered by FAR HOME LIMITED, and
“FAR HOME LIMITED” or any its subsidiary, affiliate or branch, including, but not limited to, “DCS IT LLC”, IE Shevchenko А.N. (hereinafter jointly referred to as "FAR HOME LIMITED").
Herewith, you acknowledge your full consent to accept and comply with the terms of the License Agreement and this Agreement, which is an integral part of the License Agreement. If you do not agree with the terms of one of the above documents, please do not download, install or use the FAR HOME LIMITED product, thereby avoiding conclusion of the License Agreement and this Agreement (acceptance of a public offer) and acceptance of their full and unconditional terms. Downloading, installing and using the FAR HOME LIMITED products (one or more actions) shall be considered by the Parties to this Agreement as full and unconditional acceptance of its terms, with its strict observance, willingness to be liable for violation of the conditions, and the date of the first act shall be the effective date of this Agreement.
Each of the Parties to this Agreement (together with its parent, subsidiaries and affiliates) (the “Discloser”) anticipates providing the other (together with its parent, subsidiaries, and affiliates) (the “Recipient”) certain information concerning the business of the Discloser. The Recipient hereby agrees, as a condition to such information being furnished to the Recipient, the Recipient will treat any Confidential Information (as defined below) that is furnished to the Recipient by or on behalf of the Discloser in accordance with the provisions of this Agreement.
In this Agreement:
1.1. “Confidential Information” means any information which relates to Discloser and/or any of its group companies’ business that is disclosed or made available (directly or indirectly) by Discloser to Recipient, whether in oral, visual or written from (including graphic material), whether before or after the Effective Date of this Agreement. Confidential Information includes but is not limited to:
- proprietary information, technical data, know-how, formulae, engineering processes, strategies, photographs, patents, technology, technical literature, research, product plans, products, services, equipment, customers, markets, source code, software, inventions, discoveries, ideas, processes, designs, drawings, formulations, specifications, product configuration information, marketing and finance documents, prototypes, samples, data sets, and equipment or other materials including information which is attributable to or the existence of which is derived from discussions in connection to possible transaction between the Parties with regard to which the present Agreement is entered into;
- the existence and terms of this Agreement;
- information otherwise reasonably expected to be treated in a confidential manner under the circumstances of disclosure under this Agreement or by the nature of the information itself.
2. EXCEPTIONS TO CONFIDENTIALITY
2.1. Recipient’s obligations shall not apply with respect to Confidential Information that Recipient can demonstrate:
- was or becomes available to the public generally through no wrongful action or inaction of Recipient or anyone to whom Recipient disclosed the Confidential Information;
- was in the rightful possession of Recipient without confidentiality obligations at the time of the disclosure by Discloser to Recipient as shown by the Recipient’s then-contemporaneous written files and records kept in the ordinary course of business;
- was obtained by Recipient from a third party without an accompanying duty of confidentiality and without a breach of such third party’s obligations of confidentiality; or
- was independently developed by Recipient without use of or reference to Discloser’s Confidential Information.
3. COMPELLED DISCLOSURE
3.1. Either Party is permitted to disclose any Confidential Information that is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body (but only to the extent of such requirement), and provided that if such Party is required by any regulatory authority to make any such disclosure, such Party will provide the other with prompt written notice prior to such disclosure, if legally permissible, and will use its best endeavours to assist the other in seeking a protective order or another appropriate remedy.
4. PERMITTED USE AND NON-DISCLOSURE
4.1. In consideration of any access Recipient may have to the Confidential Information of Discloser, Recipient shall:
- keep the Confidential Information strictly confidential and not make any use whatsoever of the Confidential Information, not copy, reduce into writing, or summarize any Confidential Information for any purpose, other than for the purpose of evaluating a possible transaction between the Discloser and the Recipient;
- not disclose any Confidential Information in any manner whatsoever except to such of its directors, officers, employees, agents, advisors, including outside attorneys and accountants (the “Representatives”) as need to know such information for the sole purpose of evaluating a possible transaction between the Discloser and Recipient, who are informed of the confidential nature of such information and agree to keep such information strictly confidential;
- not reverse engineer, disassemble, or decompile any prototypes, software, samples, or other tangible objects that embody Discloser’s Confidential Information and that are provided to Recipient under this Agreement;
- on Discloser’s request, require confidentiality undertakings from any third party to whom Confidential Information is disclosed; and
- not, without Discloser’s prior written consent, copy or store Confidential Information electronically or transmit it outside Recipient’s usual place of business.
4.2. Recipient shall not, without Discloser’s prior written consent, use Confidential Information for its commercial advantage or otherwise.
5. MAINTENANCE OF CONFIDENTIALITY
5.1. Recipient shall take all reasonable steps and security measures necessary to protect Confidential Information from being disclosed to any third party.
5.2. In the event that under the present Agreement the Recipient is allowed to disclose the Confidential Information to its Representatives, Recipient undertakes to ensure that such Representatives will treat such information as confidential and comply with the terms of the present Agreement. The Recipient shall be responsible for any breach of this Agreement by its Representatives.
5.3. Recipient shall reproduce Discloser’s proprietary rights notices on any such authorized copies in the same manner in which such notices were set forth in or on the original.
5.4. Recipient shall promptly notify Discloser of any unauthorized use or disclosure, or suspected unauthorized use or disclosure, of Discloser’s Confidential Information of which Recipient becomes aware.
6.2. In the cases permitted by functionality of the FAR HOME LIMITED products, you independently determine the degree of accessibility of your personal data to other Internet users.
6.3. You acknowledge and agree that if you post your personal data using the FAR HOME LIMITED products in a way that allows them to be obtained by users of the Internet, your personal data shall be considered publicly available. You also understand that your personal data shall be considered generally available in the cases where confidentiality requirements do not apply to them in accordance with the applicable law.
6.4. You agree to transfer to third parties your personal data that you do not make publicly available and which are necessary for the purposes of executing the License Agreement.
6.5. You agree that cookies are stored on the FAR HOME LIMITED websites, including by third parties, for statistical purposes, analyzing the user's behavior on the site and optimizing advertising messages.
7. NO WARRANTY
7.1. All confidential information is provided “as is”. Neither Party makes any warranties, express, implied or otherwise, regarding the accuracy, completeness or performance of any Confidential Information, or with respect to non-infringement or other violation of any intellectual property rights of a third party or of Recipient.
8. RETURN OF MATERIALS
8.1. When requested to do so in writing by Discloser, Recipient shall promptly:
- deliver all documents, materials and other tangible objects containing Confidential Information or part thereof that has been disclosed by Discloser to Recipient, which for the avoidance of doubt includes all copies or extracts thereof or notes derived therefrom that are in the possession of Recipient;
- permanently delete, destroy and erase all electronic copies of Confidential Information from any computer or data storage system into which Confidential Information was entered; and
- make no further use of Confidential Information.
8.2. Recipient shall, if required to do so by Discloser, provide a certificate signed by an officer of Recipient certifying that the provisions above have been complied with.
9. NO LICENSE
9.1. Subject to provisions of section 10 below, Recipient acknowledges and agrees that all property, including intellectual property, in Confidential Information and in the documents and other materials containing Confidential Information shall remain with Discloser or its licensors as applicable.
9.2. Except for the right to use Confidential Information as set out in this Agreement and subject to provisions of section 10 below, nothing in this Agreement shall be construed as granting to or conferring on Recipient any license, right, title or interest in or to Confidential Information or to give any license to use, sell, copy or further develop such Confidential Information.
10.1. Recipient agrees that any violation or threatened violation of this Agreement may cause irreparable injury to Discloser, entitling Discloser to seek injunctive relief in addition to all other legal remedies.
10.2. Due to the difficulty in determining a clear amount of compensation in the event of a breach of this Agreement, each of the Parties agree that a breach of this Agreement will entitle the non-breaching Party to liquidated damages in the reasonable amount of USD 500,000 which shall not be construed as a penalty for the breach.
10.3. Each Party undertakes to compensate the other Party reasonable legal costs, awards and damages, arising as a result of any breach or non-performance by the breaching Party of any of its undertakings or obligations under this Agreement.
11.1. Any ideas, suggestions, guidance or other information disclosed by Recipient related to the FAR HOME LIMITED’s Confidential Information and any intellectual property rights relating to the foregoing shall be collectively called “Feedback”.
11.2. “FAR HOME LIMITED” shall own all Feedback and all and any rights in and to it, and Recipient agrees to assign and hereby assigns to “FAR HOME LIMITED” all of its rights, title, and interest in and to any Feedback. Recipient agrees to execute, sign and do all such further instruments, applications, documents, acts and things and give any further assistance as “FAR HOME LIMITED” may at any time reasonably request, properly to secure the vesting in FAR HOME LIMITED of the full right, title and interest in and to any Feedback.
11.3. To the extent that any assignment of rights as provided in clause 10.2 is unenforceable or ineffective for whatever reason, Recipient agrees to grant and hereby grants to Discloser a non-exclusive, perpetual, irrevocable, royalty free, freely transferable and sub-licensable license, worldwide license, commencing on the date that the relevant Feedback was provided to Discloser, for any purpose, including to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform and otherwise exploit the relevant Feedback and all intellectual property rights associated with the Feedback or relating to this Agreement without restriction.
12. GOVERNING LAW AND JURISDICTION
12.1. THIS AGREEMENT is governed by the laws of the UK, regardless of the antagonisms of the principles of the law.
13.1. Recipient’s obligations in respect of Confidential Information shall continue in force for a period of fifteen (15) years from the Effective Date.
13.2. This Agreement constitutes the entire agreement between the Parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter it covers.
13.3. Any assignment or transfer of this Agreement in violation of the foregoing shall be null and void.
13.4. If a court or other body of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be invalid or unenforceable, the other provisions will remain in full force and effect.
13.5. Each Party confirms that, in entering into and performing this Agreement, it is acting on its own behalf and not for the benefit of any other person. Each Party hereby represents and warrants that the persons executing this Agreement on its behalf have express authority to do so, and, in so doing, to bind such Party to the terms of this Agreement.
13.6. A person who is not a Party to this Agreement shall not have any rights under or in connection with it, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
13.7. Save as expressly provided in this Agreement, no provision of this Agreement may be amended or otherwise modified unless they are executed in writing and signed by a duly authorized representative of each of the Parties to this Agreement.
13.8. This Agreement was exercised in 2 counterparts, all of which, taken together, shall constitute one and the same instrument.
13.9. THUS, the Parties have executed this Agreement as of the Effective Date.