This Confidentiality Agreement (the "Agreement"), effective as of the date you subscribe to our services (the "Effective Date"), is entered into by and between Q88 LLC, a Delaware limited liability company, having an address at 1010 Washington Boulevard, Stamford, Connecticut 06901 USA ("Q88"), and Customer ("You") and together with Q88, the "Parties," and each, a "Party") by your subscription to our Terms of Service governing your purchase and use of our services.
WHEREAS, in connection with your subscription to our Terms of Service governing your purchase and use of our services (the "Purpose"), You desire to receive certain information from Q88 that is non-public, confidential or proprietary in nature; and
NOW, 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:
1. Confidential Information. Except as set forth in Section 2 below, "Confidential Information" means all non-public, confidential or proprietary information disclosed by Q88 to You, whether disclosed orally or disclosed or accessed in written, electronic or other form or medium. Confidential Information includes, without limitation, all information not generally known to the public of Q88 or its businesses, or of any other person or entity, that has entrusted information to Q88 in confidence. Confidential Information includes information that is marked or otherwise identified as confidential or proprietary, or that would otherwise appear to a reasonable person to be confidential or proprietary in the context and circumstances in which the information is known or used, whether or not marked or otherwise identified as confidential or proprietary.
2. Exclusions from Confidential Information. Except as required by applicable federal, state or local law or regulation, the term "Confidential Information" as used in this Agreement shall not include information that:
(a) at the time of disclosure is, or thereafter becomes, generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Agreement or act or omission by You;
(b) at the time of disclosure is, or thereafter becomes, available to You on a non-confidential basis from a third-party source, as established by documentary evidence, provided that such third party, is not and was not prohibited from disclosing such Confidential Information to You;
(c) was known by or in your possession, as established by documentary evidence, before being disclosed by or on behalf of Q88 pursuant to this Agreement; or
(d) was or is independently developed by You, as established by documentary evidence, without reference to or use of, in whole or in part, any of Q88's Confidential Information.
3. Your Obligations. You shall:
(a) 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 ("GEDPR"), in no event with less degree of care than required by GDPR;
(b) not disclose or use Q88's Confidential Information, or permit it to be accessed or used, for any purpose other than the Purpose;
(c) comply with all applicable on-site access, remote access and related security rules and procedures of Q88;
(d) immediately, but in no less time than twenty-four (24) hours, notify Q88 of any unauthorized access, disclosure, loss or misuse of Confidential Information, or other breaches of this Agreement by You or of which You have knowledge;
(e) immediately contain and remedy any such unauthorized access, disclosure, loss or misuse;
(f) fully cooperate with Q88 in any effort undertaken by Q88 to enforce its rights related to any such unauthorized disclosure; and
(g) in no event shall Personal Data be used for profiling or automated decision making.
4. Your Representations, Warranties and Covenants. You represent, warrant and covenant that:
(a) have in place appropriate technical and organizational measures to protect Personal Data against accidental or unlawful destruction or accidental loss, alteration, unauthorized 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;
(b) have in place procedures so that any third party You authorize to have access to Personal Data, including processors, will respect and maintain the confidentiality and security of the Personal Data;
(c) have knowledge of any local laws that would have a substantial adverse effect on its obligations;
(d) process the Personal Data only for the Purpose;
(e) submit your data processing facilities, data files and documentation needed for processing to review, audit and/or certification by Q88;
(f) comply, with all applicable international, federal, state and local 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;
(g) not dispose of or transfer the Personal Data to another third party data controller or processor;
(h) 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 unauthorized access, disclosure, loss or misuse; and
(i) if Q88 cannot, at your sole cost and expense: (i) notify all authorities required to receive notice under applicable law as a result of unauthorized 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.
(j) identify to Q88 a contact point within its organization authorized to respond to inquiries concerning processing of the Personal Data, and cooperate in good faith with Q88, the data subject and applicable authorities concerning all such inquiries within a reasonable time. In case of legal dissolution of Q88, or if the parties have so agreed, the data importer will assume responsibility for compliance with the provisions of GDPR.
5. Return or Destruction of Confidential Information. Upon the expiration or termination of this Agreement, or at Q88's request at any time during the term of this Agreement, You shall promptly return to Q88 all copies, whether in written, electronic or other form or medium, of Q88'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 Q88 that such Confidential Information has been destroyed. In addition, You shall also destroy all copies of any Notes created by You and certify in writing to Q88 that such copies have been destroyed. All of the foregoing shall be done in accordance with generally accepted data destruction standards.
6. Term and Termination. The term of this Agreement shall commence on the Effective Date and shall expire two (2) years from when You are no longer using our 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, federal, state and/or local law.
7. No Transfer of Rights, Title or Interest. Q88 hereby retains 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.
8. Remedies. You acknowledge and agree that money 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 Q88 does not waive by the exercise of any rights hereunder), Q88 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 Q88 has an adequate remedy at law.
9. Governing Law, Jurisdiction, and Venue. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Connecticut without giving effect to any choice or conflict of law provision or rule that would cause the application of laws of any jurisdiction other than those of the State of Connecticut. Any legal suit, action or proceeding arising out of or related to this Agreement or the matters contemplated hereunder shall be instituted exclusively in the courts of the State of Connecticut in each case located in the city of Stamford or the US District Court of the State of Connecticut, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding and waives any objection based on improper venue or forum non conveniens.
11. Severability. If any term or provision of this Agreement is 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.
12. No Partnership or Agency. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties. Neither party, by virtue of this Agreement, will have any right, power, or authority to act or create an obligation, express or implied, on behalf of the other party.
This Confidentiality Agreement is included by reference to it in the Terms of Service. By checking the acceptance box for the Terms of Service on the website, you also accept and agree to be bound by all of the terms and conditions of this Confidentiality Agreement in the same manner of the Terms of Service. Q88 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 website after any such changes constitutes your acceptance of the new Agreement. Since this is a binding legal agreement between you and Q88, please print a copy of this Agreement for your records.
Last Updated: May 21, 2018