DEVELOPER PORTAL NON-USE AND NON DISCLOSURE AGREEMENT
In the course of the existing business relationship (the “Business Relationship”) between Envestnet Asset Management, Inc. (including its Affiliates, directors, officers, employees and agents; collectively, “Envestnet”) and the firm on behalf of which you have been provided access to the Developer Portal (the “Client”), Client has requested that Envestnet provide to, or deliver to the user accessing the Developer Portal on behalf of Client (“You” or “Your”) certain Confidential Information (as defined below). For the purposes of accessing the Developer Portal, Envestnet is the “Discloser” and You are the “Recipient.”
“Confidential Information” includes, without limitation, the Discloser’s: Developer Portal, proprietary business, technical and financial and other non-public information including, but not limited to customer information, computer programs, technical drawings, algorithms, know-how, formulas, tools, methodologies, processes, ideas, inventions (whether patentable or not), schematics, product development plans, forecasts, technical, marketing and business strategies and initiatives of the Discloser and its business partners; all of which Recipient shall consider confidential and proprietary to the Discloser, in whatever form provided (whether written, electronic or oral), and whether or not labeled or designated as “confidential” or “proprietary” when access is provided or thereafter.
In consideration of furnishing Recipient access to the Confidential Information and the Developer Portal, Recipient agrees as follows:
- All Confidential Information shall remain the exclusive property of the Discloser at all times. Nothing contained in this Agreement shall be construed as granting or conferring any rights to the Recipient in any Confidential Information disclosed to the Recipient, whether granted or conferred by license or otherwise. Recipient shall not use or disclose any Confidential Information shared under this Agreement with other Recipient client other than Client. Recipient shall enter into a separate login account to the Developer Portal should it engage a different Envestnet client other than Client where use of Confidential Information is required.
- “Developer Portal” means access to Confidential Information for the limited purpose of Recipient providing services to Client as contracted by Recipient and Client. By accessing the Developer Portal, Recipient is warranting that Client has authorized Envestnet to share access to Confidential Information and Nonpublic Personal Information (defined below) concerning Client with Recipient. Envestnet is not obligated to provide Recipient any support (as defined in our agreements with Client), and that Envestnet shall invoice Client for any support provided to Recipient.
- With respect to Confidential Information received by a Recipient, the Recipient shall: (a) hold the Confidential Information in strict confidence and restrict disclosure solely to those Affiliates or it’s and their respective directors, officers, employees and agents who have a need to know such Confidential Information for the Client; (b) use the Confidential Information solely to benefit the Discloser and the Envestnet Client pursuant to Client’s agreement(s) with Envestnet and for no other purpose; (c) notify the Discloser immediately in the event the Recipient becomes aware of any loss, unauthorized use or improper disclosure of Confidential Information; (d) advise all employees and affiliates with approved access to the Confidential Information of the confidentiality and non-use obligations contained herein; and (e) use the same degree of care to protect the Discloser’s Confidential Information as is used to protect the Recipient’s proprietary information, but in no case less than strictly preserving the secrecy of all Confidential Information. The term “Affiliate” means, with respect to either party, any entity that directly or indirectly controls, is controlled by or is under common control with that party (and for purposes of such definition, the term “control” shall mean the power to direct or cause the direction of the management and policies of the entity, directly or indirectly, whether through ownership of voting securities, by contract or credit arrangement, as trustee or executor).
- The foregoing obligations of a Recipient shall not apply to any portion of the Confidential Information which: (a) is or becomes known publicly through no fault of the Recipient; (b) is learned by the Recipient from a third party entitled to disclose it other than Client; (c) is already known to the Recipient before receipt from the Discloser from a source other than Client (and such knowledge has been promptly disclosed to Discloser); (d) was independently developed by Recipient without any use of the Confidential Information; or (e) must be disclosed by operation of law, including an order from a court or other governmental body of competent jurisdiction. A Recipient shall promptly notify the Discloser of any such request for disclosure (by operation of law or otherwise) of Confidential Information in order to allow the Discloser full opportunity to seek the appropriate protective orders. In any such event, Recipient will use its reasonable efforts in cooperation with the Discloser, or otherwise, to avoid or minimize the required disclosure of any Confidential Information.
- If the Discloser requests in writing the return of their Confidential Information for any reason, Recipient shall, within five (5) business days of any such notice or written request, return to the Discloser, or destroy, all Confidential Information of Discloser, including copies, reproductions or any other materials containing, summarizing or reflecting any Confidential Information, without retaining copies (in any form). In complying with the preceding obligation, the Recipient shall delete all electronic files on any computers within the Recipient’s operation or control containing, summarizing or reflecting any Confidential Information. To the extent Client is authorizing Discloser to provide Recipient with Confidential Information provided under a third-party data license (“Restricted Data”), Recipient warrants to Envestnet that Client and Recipient have obtained the necessary license(s) to access, use, or otherwise retain and potentially disclose the Restricted Data. Envestnet’s third-party data providers are third-party beneficiaries to this Developer Portal Non-Use and Non-Disclosure Agreement, such that, should any third-party data provider(s) determine proper licenses are not in place, at any time, Envestnet may be asked to shut off Recipient and/or Client’s access to Envestnet Confidential Information and shall do so at the written request of third-party data provider(s). Recipient hereby agrees to indemnify, defend, and hold harmless Envestnet from and against any liability, damage, loss, cost or expense arising out of or related to any allegation or claim related to Restricted Data made available to Client and/or Recipient.
6. Recipient expressly acknowledges that Discloser provides software services and professional services for financial advisors that are subject to certain laws and regulations (such as Regulation S-P of the Federal Securities Laws) regarding the privacy and protection of consumer information, and that any receipt of personal information of Discloser or the Client (“Nonpublic Personal Information”) (such as: name, account number, social security number or address) by the Recipient through its performance of services, and Recipient’s treatment for such Nonpublic Personal Information shall be no less strict than the terms outlined in this Non-use and Non-disclosure Agreement. Recipient agrees and acknowledges that it has adopted policies and procedures that address administrative, technical and physical safeguards that are reasonably designed to insure the security and confidentiality of the Confidential Information and any Nonpublic Personal Information, protecting against any anticipated threats or unauthorized access to or use of such Confidential Information and any Nonpublic Personal Information.
7. Recipient acknowledges and agrees that it is responsible for obtaining Client’s authorization prior to accessing the Envestnet Client site and/or any Nonpublic Personal Information, and Recipient shall provide Discloser with proof of such authorization upon Discloser’s request. Recipient represents that it has entered into a confidentiality agreement with the Client related to the treatment of confidential information, specifically with respect to Nonpublic Personal Information, and such agreement shall restrict Recipient’s disclosure of Discloser’s Confidential Information with terms no less restrictive than those provided for herein. Discloser may revoke this authorization at any time for any reason, and Recipient agrees and acknowledges that it shall cease accessing Discloser Confidential Information effective immediately after Discloser revokes the authorization outlined in this Section 6.
8. The obligations under this Agreement to protect the confidentiality of Confidential Information shall survive the termination of any relationship between the Parties (including any notice or request provided pursuant to the preceding paragraph). The return or destruction of Confidential Information shall not relieve a Recipient of its obligations to keep the information and knowledge within such Confidential Information confidential as otherwise required by this Agreement.
9. Recipient and its representatives shall not derive or attempt to derive the source code, source files or structure of all or any portion of the Confidential Information and Envestnet’s underlying software or software services by any form of reverse engineering, disassembly or decompilation and shall not access the Confidential Information in order to (a) build a product or service that is directly or indirectly competitive with the Confidential Information, or (b) copy any ideas, features, functions or graphics of the Confidential Information.
10. Recipient agrees that it shall not obtain any right, title or interest in any Confidential Information by virtue of this Agreement and the activities contemplated hereunder. Recipient acknowledges and agrees that if Recipient provides any request, suggestion or feedback to Discloser regarding Confidential Information (including identifying potential errors and improvements to Discloser’s software or software services), Recipient does so only in the interest of Discloser and the Client, and Recipient hereby assigns to Discloser all right, title and interest in and to any such request, suggestion or feedback, and Discloser shall be the sole and exclusive owner of all right, title and interest in and to any inventions, discoveries, developments, procedures, ideas, innovations, systems, programs, know-how, knowledge, technology, processes, methods, works of authorship, information, lists, including any copyrights and other intellectual property rights therein.
11. Each Party agrees that the Discloser would be irreparably injured by a breach of this Agreement and that the Discloser shall be entitled to equitable relief, including injunctive relief and specific performance, in the event of any breach by the Recipient of the provisions of this Agreement. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement, but shall be in addition to all other remedies available at law or in equity. The Parties also agree (a) to waive any right to require that either Party post any type of bond or security and (b) that the breaching Party shall pay all costs, including attorney’s fees, incurred by the other Party by reason of the breaching Party’s breach.
12. The Parties agree that all Confidential Information is provided without any warranty or representation of any kind as to its accuracy or completeness; no Discloser (nor its Affiliates or representatives) shall have any liability to a Recipient as a result of any reliance upon, or use of, the Confidential Information by a Recipient; it being understood that only those particular representations and warranties which may be made by the Parties in a fully executed definitive agreement shall have any legal effect with respect to the accuracy or completeness of any Confidential Information which has been disclosed.
13. This Agreement shall be governed by the laws of the State of Illinois without giving effect to principles of conflict of laws and shall benefit and be binding upon the Parties and their successors and assigns. The Parties hereby consent to jurisdiction in the State of Illinois and agree that the courts within Illinois shall have exclusive jurisdiction over any issues regarding the enforcement of this Agreement.
14. The Parties acknowledge that the Discloser, currently or in the future, may be developing information, products or services internally (or receiving information from other parties in connection with such development activities or otherwise), that are similar to the product or service that the Parties are proposing to the each other in connection with the Potential Relationship, none of which constitutes a violation of this Agreement.
15. Recipient agrees and acknowledges that this Agreement shall not render Recipient an employee, partner, agent or consultant of or with Discloser for any purpose. Neither this Agreement nor the Recipient’s performance of the services for the Client shall be considered to create a joint venture or partnership between Discloser and Recipient. Recipient shall not utilize Discloser’s name or marks in any way without the Discloser’s consent, such as, but not limited to, use of Discloser’s logo or use of Discloser’s name in press releases, nor shall Recipient holds itself out to be an expert regarding Discloser’s Confidential Information or as an alternative to Discloser’s underlying professional services. Under no circumstances shall Recipient employ Discloser’s name in such a manner as to create the impression that the relationship created or intended between them is anything other than what is described in this Non-use and Non-disclosure Agreement.