These Confidentiality Terms and Conditions (“Terms”) set forth the terms and conditions under which ERICOM SOFTWARE INC., a Delaware corporation having its principal place of business at 140 E. Ridgewood Avenue, Suite 415 – South Tower, Paramus, NJ 07652 (“Discloser”), has disclosed and/or will disclose certain Confidential Information to Recipient.


  1. Confidential Information” means all nonpublic information disclosed by Discloser or its Affiliates or Representatives to Recipient, its Affiliates or Representatives, that is designated as confidential or that, given the nature of the information and the circumstances surrounding its disclosure, reasonably should be understood as confidential. Confidential Information includes, but is not limited to, marketing data and plans, source code, business strategies, financial information, confidential customer lists, technologies, know-how, ideas, designs, trade secrets, current and future products, and product pricing, characteristics and specifications, together with notes, analyses, compilations, studies, and other documents delivered or made available, directly or indirectly, by Discloser or its Representatives, in writing, in any tangible form, electronically, or orally, and all of the foregoing information owned by third parties that Discloser is obligated to keep confidential. “Confidential Information” shall include the existence of any investigations, discussions, or negotiations between Discloser and Recipient. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a party for so long as such control continues to exist.

  2. Notwithstanding the foregoing, “Confidential Information” shall not include information that (i) is or becomes generally available to the public other than (a) as a result of disclosure in violation of these Terms; (b) information relating to a natural person that is regulated by applicable  privacy law; or (ii) as evidenced by written record, (a) is or becomes available to Recipient or any of its Representatives on a nonconfidential basis from a source that, to the knowledge of Recipient (or the applicable Representative), is not then under an obligation to keep confidential, (b) was known to Recipient or any of its Representatives prior to its disclosure by Discloser, or (c) was independently developed by Recipient or its Representatives without use of or reference to Confidential Information.

  3. Recipient will use the Confidential Information solely for the purpose of entering into a business relationship with Discloser (“Purpose”), and will not (i) use, copy or analyze Confidential Information for any purpose other than the Purpose; (ii) modify, reverse engineer, disassemble, decompile, or otherwise analyze the construction of any Confidential Information; or (iii) disclose, in whole or in part, make available to, or otherwise allow the use of the Confidential Information by, any third party; provided, however, that Confidential Information may be disclosed to the directors, officers, employees, agents, and professional advisors of Recipient or its Affiliates (collectively, “Representatives”) as need to know such information for the Purpose, are advised by Recipient of its confidentiality hereunder and are subject to written obligations which are no less protective of the Confidential Information than Recipient’s obligations hereunder.  Recipient will be liable to Discloser for any breach of these Terms by its Representatives. Recipient will use commercially reasonable measures to protect the Confidential Information from unauthorized use or disclosure, including, at a minimum, Recipient’s measures to protect its own confidential information of similar nature.

  4. In the event that Recipient and/or its Representatives are required by law to disclose any Confidential Information, Recipient shall (a) provide Discloser with prompt prior written notice of such requirement so that Discloser may seek an appropriate protective order; (b) render reasonable assistance requested by Discloser (at Discloser’s expense) in connection therewith; and (c) disclose only such Confidential Information as is legally required.

  5. Recipient shall notify Discloser upon discovery of any unauthorized use, access, or disclosure of Confidential Information, or any other breach of these Terms by Recipient or its Representatives, as soon as reasonably practical, and cooperate (at Recipient’s expense if due to a breach) with Discloser’s efforts to regain possession of Confidential Information and prevent further unauthorized use.

  6. The Confidential Information disclosed under these Terms is delivered “AS IS,” and all representations or warranties, whether express or implied, are hereby disclaimed. These Terms impose no obligation on either party to enter into any further agreement or relationship with the other party.  Recipient shall not acquire any intellectual property or other rights under these Terms with respect to Confidential Information.

  7. Recipient agrees that money damages would not be a sufficient remedy for any actual or threatened breach of these Terms and that Discloser may be entitled to specific performance, including, without limitation, injunctive relief, as a remedy for any such breach or threatened breach, in addition to all other remedies available at law or equity.

  8. These Terms shall be effective on the date of acceptance and remain in full force and effect for two (2) years unless sooner terminated upon ten (10) days prior written notice. Notwithstanding the foregoing, Recipient’s obligations with respect to Confidential Information disclosed during the term shall remain in effect for three (3) years after such expiration or termination provided that Recipient’s obligations with respect to trade secrets shall continue thereafter for so long as considered as trade secrets under applicable law. At Discloser’s request, Recipient shall (and shall cause each of its Representatives to) return to Discloser or destroy any document or other material containing Confidential Information, and, upon further written request of Discloser, confirm the foregoing in writing. Notwithstanding the foregoing, neither Recipient nor any of its Representatives shall be required to delete or return any copies of Discloser’s Confidential Information residing on standard electronic backup or archival systems; provided that each and any such copies: (i) are kept confidential in accordance with these Terms and cannot be accessed in the regular course of business; (ii) are maintained and archived in compliance with reasonable information security standards; and (iii) are properly deleted as required by reasonable document retention/archiving and/or back-up policies/procedures. Any Confidential Information that is not returned or destroyed shall remain subject to the obligations set forth in these Terms.

  9. All notices given under these Terms shall be in writing and shall be given to the other party by delivery in person, email to a corporate officer, or by overnight courier (and shall be deemed duly given upon receipt), addressed to such party as set forth above or as otherwise made available in writing.

  10. These Terms shall be governed by, construed and enforced under the laws of the State of New Jersey as it is applied to agreements entered into and performed entirely therein.  The parties hereby agree that any action arising out of these Terms shall be brought in the courts located in the State of New Jersey, irrevocably submit to the exclusive jurisdiction of any such court, and waive any objection that such party may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agree not to plead or claim the same, except that Discloser shall be entitled to obtain equitable relief, such as injunctive relief, from any court of competent jurisdiction in order to protect its rights in its Confidential Information.

  11. These Terms shall be binding upon the parties hereto and their respective successors and assigns and shall inure to the benefit of the parties hereto and their respective successors and assigns.  No failure or delay 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 other right, power or privilege hereunder.  If any provision of these Terms is determined by a court of competent jurisdiction to be invalid or unenforceable, such provision shall be deemed modified to the extent necessary to permit its enforcement, and the remaining provisions shall be enforced as fully as possible.  

Version 4
April 21, 2021

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