NON-DISCLOSURE AGREEMENT
pursuant to Section 269 (2) of the Act No. 513/1991 Coll. the Commercial Code as amended
(the "Agreement")
entered into by and between
Smart City Office I s. r. o., with its registered seat at Digital Park II, Einsteinova 25, 851 01 Bratislava – mestská časť Petržalka, the Slovak Republic, ID No.: 50 847 414, registered with the Commercial Register of the Municipal Court Bratislava III, Section: Sro, File No.: 119631/B (the "Disclosing Party")
and
the natural person or legal person who registers at the Website for the purpose of attendance in the Competition (the "Receiving Party").
PREAMBLE
A. The Disclosing Party is interested in organising an architecture and urban design competition for an area located in Chalupkova zone in Bratislava (the “Competition”). In order to participate in the Competition, the potential participant must register at the https://competition.chalupkova.com/ (the “Website”).
B. The Receiving Party expressed its intention to participate in the Competition by registering at the Website.
C. The Disclosing Party, belonging to the Group, discloses documents and information in connection with the Competition.
D. The Receiving Party is interested in acquainting with detailed information and documents relating to or otherwise related with the Competition. Therefore, in consideration of the mutual promises and covenants contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
Article I
Definition of the Confidential Information
1. For purposes of this Agreement, "Confidential Information" means any data, documents or information that is proprietary to the Disclosing Party or a group of companies to which belong the Disclosing Party and other companies forming or belonging to a financial group PENTA on the basis of the relationships of controlling a controlled persons (the "Group"), and not generally known to the public, whether in tangible or intangible form, in whatever medium provided, whether unmodified or modified by Receiving Party or its Representatives (as defined herein), whenever and however disclosed, including, but not limited to:
(i) any and all information relating to the Competition;
(ii) any marketing strategies, plans, financial information, or projections, operations, sales estimates, business plans and performance results;
(iii) any scientific or technical information, invention, design, process, procedure, formula, improvement, technology or method;
(iv) any concepts, reports, data, know-how, works-in-progress, designs, development tools, specifications, computer software, source code, object code, flow charts, databases, inventions, information and trade secrets;
(v) any other information that should reasonably be recognized as confidential information of the Disclosing Party or the Group; and
(vi) any information generated by the Receiving Party or by its Representatives that contains, reflects, or is derived from any of the foregoing.
Information does not have to be novel, unique, patentable, and copyrightable or constitute a trade secret in order to be designated as the Confidential Information. The Receiving Party acknowledges that the Confidential Information is proprietary to the Disclosing Party or the Group, has been developed and obtained through great efforts by the Disclosing Party or the Group and that Disclosing Party and the Group regards all of its Confidential Information as trade secrets.
2. Notwithstanding anything in the foregoing to the contrary, the Confidential Information shall not include information which:
(i) was lawfully possessed, as evidenced by the Receiving Party’s records, by the Receiving Party prior to receiving the Confidential Information from the Disclosing Party;
(ii) becomes rightfully known by the Receiving Party from a third-party source not under an obligation to Disclosing Party to maintain confidentiality;
(iii) is generally known by the public through no fault of or failure to act by the Receiving Party inconsistent with its obligations under this Agreement;
(iv) is required to be disclosed in a judicial or administrative proceeding, or is otherwise requested or required to be disclosed by law or regulation, although the requirements of Art. II para 3 shall apply prior to any disclosure being made; and
(v) is or has been independently developed by employees, consultants, or agents of the Receiving Party without violation of the terms of this Agreement, as evidenced by the Receiving Party’s records, and without reference or access to any Confidential Information.
Article II
Disclosure and Use of the Confidential Information
1. The Receiving Party shall:
(i) limit disclosure of any Confidential Information to its directors, officers, employees, agents or representatives (collectively the "Representatives") who must know such Confidential Information in connection with the Competition, and only for that purpose;
(ii) advise its Representatives of the proprietary nature of the Confidential Information and of the obligations set forth in this Agreement, require such Representatives to be bound by written confidentiality restrictions no less stringent than those contained herein, and assume full liability for acts or omissions by its Representatives that are inconsistent with its obligations under this Agreement;
(iii) keep all Confidential Information strictly confidential by using a reasonable degree of care, but not less than the degree of care used by it in safeguarding its own confidential information; and
(iv) not disclose any Confidential Information received by it to any third parties (except as otherwise provided for herein).
2. The Receiving Party agrees to use the Confidential Information solely in connection with the Competition and not for any purpose other than as authorized by this Agreement without the prior written consent of an authorized representative of the Disclosing Party. No other right or license, whether expressed or implied, in the Confidential Information shall be granted to the Receiving Party hereunder.
3. Notwithstanding anything in the foregoing to the contrary, the Receiving Party may disclose Confidential Information pursuant to any governmental, judicial, or administrative order, regulatory request or similar method, provided that such disclosure is legally required and the Receiving Party promptly notifies, to the extent practicable, the Disclosing Party in writing of such demand for disclosure so that the Disclosing Party, at its sole expense, may seek to make such disclosure subject to a protective order or other appropriate remedy to preserve the confidentiality of the Confidential Information.
Article III
Term and Remedies
1. The Receiving Party’s duty to hold in confidence Confidential Information that was disclosed pursuant to this Agreement shall remain in effect indefinitely.
2. Both parties acknowledge that the Confidential Information to be disclosed hereunder is of a unique and valuable character, and that the unauthorized dissemination of the Confidential Information would destroy or diminish the value of such information. The damages to the Disclosing Party that would result from the unauthorized dissemination of the Confidential Information would be impossible to calculate. Therefore, both parties hereby agree that the Disclosing Party shall be entitled to injunctive relief preventing the dissemination of any Confidential Information in violation of the terms hereof. Such injunctive relief shall be in addition to any other remedies available hereunder, whether at law or in equity. The Disclosing Party shall be entitled to recover its costs and fees, including reasonable attorneys’ fees, incurred in obtaining any such relief. Further, in the event of litigation relating to this Agreement, the prevailing party shall be entitled to recover its reasonable attorney’s fees and expenses.
3. The Disclosing Party shall be entitled to claim a contractual penalty in the amount of EUR 10.000 for each breach of the Receiving’s Party obligation not to disseminate Confidential Information or for any action (including omission) in contradiction with this Agreement. The contractual penalty shall be payable within 10 business days upon receipt of the demand for payment of the contractual penalty and in line with payment instructions contained in the written demand. Right to claim damages of the Disclosing Party in addition to the contractual penalty shall not be affected. For avoidance of any doubt, the parties agree and acknowledge that the right to claim a contractual penalty secures and applies only the obligations of the Receiving Party arising under this Agreement.
Article IV
Return of Confidential Information
1. Receiving Party shall immediately return and redeliver to Disclosing Party all tangible material embodying any Confidential Information provided hereunder and all notes, summaries, memoranda, drawings, manuals, records, excerpts or derivative information deriving therefrom, and all other documents or materials (the "Notes") (and all copies of any of the foregoing, including “copies” that have been converted to computerized media in the form of image, data, word processing, or other types of files either manually or by image capture) based on or including any Confidential Information, in whatever form of storage or retrieval, upon the earlier of:
(i) the completion or termination of the dealings between the parties contemplated hereunder;
(ii) the termination of this Agreement; or
(iii) at such time as the Disclosing Party may so request; provided however that the Receiving Party may retain such of its documents as is necessary to enable it to comply with its reasonable document retention policies.
2. Alternatively, the Receiving Party, with the written consent of the Disclosing Party may (or in the case of Notes, at the Receiving Party’s option) immediately destroy any of the foregoing embodying Confidential Information (or the reasonably non-recoverable data erasure of computerized data) and, upon request, certify in writing such destruction by an authorized officer of the Receiving Party supervising the destruction).
Article V
Notice of Breach
1. Receiving Party shall notify the Disclosing Party immediately upon discovery of, or suspicion of:
(i) any unauthorized use or disclosure of Confidential Information by the Receiving Party or its Representatives; or
(ii) any actions by the Receiving Party or its Representatives inconsistent with their respective obligations under this Agreement
Receiving Party shall cooperate with any and all efforts of the Disclosing Party to help the Disclosing Party regain possession of Confidential Information and prevent its further unauthorized use.
Article VI
Miscellaneous
1. This Agreement shall be become legal, valid, and effective on the day of registration of the Receiving Party at the Website.
2. This Agreement constitutes the entire understanding between the parties and supersedes any and all prior or contemporaneous understandings and agreements, whether oral or written, between the parties, with respect to the subject matter hereof. This Agreement shall only be modified by a written amendment signed by the party against whom enforcement of such modification is sought.
3. The validity, construction and performance of this Agreement shall be governed and construed in accordance with the laws of the Slovak Republic without giving effect to any conflict of laws provisions thereof. Any disputes arising from this Agreement shall be subject to resolution by a general court of the Slovak Republic.
4. Any failure by either party to enforce the other party’s strict performance of any provision of this Agreement shall not constitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement.
5. Although the restrictions contained in this Agreement are considered by the parties to be reasonable for the purpose of protecting the Confidential Information, if any such restriction is found by a court of competent jurisdiction to be unenforceable, such provision shall be modified, rewritten or interpreted to include as much of its nature and scope as possible. If it cannot be so modified, rewritten or interpreted to be enforceable in any respect, it shall not be given effect, and the remainder of the Agreement shall be enforced as if such provision was not included.
6. Any notices or communications required or permitted to be given hereunder may be delivered by hand, deposited with a nationally recognized overnight carrier, electronic-mail, or mailed by certified mail, return receipt requested, postage prepaid, in each case, to the address of the other party first indicated above (or such other addressee as may be furnished by a party in accordance with this paragraph). All such notices or communications shall be deemed to have been given and received
(i) in the case of personal delivery or electronic-mail, on the date of such delivery;
(ii) in the case of delivery by a nationally recognized overnight carrier, on the third business day following dispatch; and
(iii) in the case of mailing, on the seventh business day following such mailing.
7. The Receiving Party shall not directly or indirectly assign or transfer it by operation of law or otherwise without the prior written consent of the Disclosing Party. All obligations contained in this Agreement shall extend to and be binding upon the parties to this Agreement and their respective successors, assigns and designees.
8. The Representative who registers the Receiving Party at the Website for the purpose of attendance in the Competition hereby explicitly declares that he is fully authorized to act on behalf of the Receiving Party (i) in connection with the registration at the Website for the purpose of attendance in the Competition, and (ii) in connection with participation in the Competition, and that this authorization to represent the Receiving Party stems from (i) the contractual relationship concluded between the Representative and the Receiving Party, (ii) or other legally valid and effective statutory provision within the local laws under which the Receiving Party is established or operates under. The authorization to represent the Receiving Party includes representation of the Receiving Party in legal acts of any kind related to the aforementioned.