Some products, such as V2 Protocol licences, require the purchasing company to accept the Al Kamel Systems Confidentiality Agreement (NDA) for the Timing Data Protocol v.2. By ticking the NDA box at checkout, you accept the terms below on behalf of the company named in the order. Fields shown in [brackets] correspond to the blank party and signature fields of the PDF version.
Confidentiality Agreement
Timing Data Protocol v.2
In La Garriga (Barcelona), on [date]
I. THE PARTIES
On the one part, AL KAMEL SYSTEMS, S.L., a company duly incorporated and existing under the laws of Spain, with Tax ID B64357312 and registered office at C/ Priora Xixilona, 93, 08530 La Garriga (Barcelona), Spain, represented by Mr. José Luis García Molina in his capacity as CEO (hereinafter, “AL KAMEL” or the “COMPANY”).
On the other part, [CLIENT company name], a company duly organised and existing under the laws of [country], with registered office at [registered office], represented by [name of representative] in his/her capacity as [position] (hereinafter, the “CLIENT”).
AL KAMEL and the CLIENT shall be individually referred to as a “Party” and collectively as the “Parties”.
In connection with their consideration of a business relationship with each other, the COMPANY and the CLIENT shall provide each other with information which is non-public, confidential or proprietary in nature. “Confidential Information” shall refer to all information and materials furnished by one Party (the “Disclosing Party”) to the other (the “Recipient Party”), including their affiliates and their respective owners, directors, officers, managers, partners, agents, contractors, representatives and employees (collectively, “Representatives”), that is marked or otherwise identified as confidential at the time of disclosure, or that a reasonable person would understand to be confidential given the nature of the information and the circumstances of disclosure, including but not limited to all trade secrets, designs, business plans, pricing, drawings, proprietary processes, engineering information or other documents, prototypes and information prepared by the Disclosing Party. In consideration of being provided with such Confidential Information, the Parties agree as follows.
II. RECITALS
I. That AL KAMEL is engaged in developing timekeeping, TV graphics and IT solutions for motorsport.
II. That AL KAMEL has developed and is the sole legal owner of the data protocol called “Timing Data Protocol v.2” (hereinafter, the “Protocol”).
III. That the Protocol is directly distributed by AL KAMEL to its clients, namely motorsport teams and other participants in sporting competitions, in order to obtain timekeeping and telemetry information in real time.
IV. That each licence of the Protocol acquired by a client entitles such client to connect on a limited basis with a maximum of four (4) connections, and must be renewed and acquired again upon its expiry.
V. That the CLIENT is interested in acquiring a licence of, or otherwise accessing, the Protocol in accordance with the conditions set forth in Recital IV above, in order to connect its own software or systems to the Protocol (hereinafter, the “Software”).
VI. That, as a consequence, the CLIENT will have access to the Protocol and will receive from AL KAMEL, as Disclosing Party, information relating to the Protocol and its technical details.
VII. That, in order to ensure that any Confidential Information disclosed between the Parties is kept secret and used solely for connecting the Software to the Protocol, the Parties agree to enter into this CONFIDENTIALITY AGREEMENT (hereinafter, the “Agreement”), which shall be governed by the following
III. CLAUSES
1. DEFINITION OF CONFIDENTIAL INFORMATION
1.1. For the purpose of this Agreement, Confidential Information means:
a) All written and verbal documentation and information of any form and kind related to the Protocol, its technical details and any other know-how belonging to the Disclosing Party and disclosed to the Recipient Party.
b) Any other documentation and/or information disclosed by the Disclosing Party to the Recipient Party for the acquisition and use of the Protocol.
c) Any other documentation and/or information that the CLIENT or the COMPANY becomes aware of during the use of the Protocol.
d) The copies of the Confidential Information, including any document, electronic file and/or any other material used to reproduce or record the Confidential Information (hereinafter, the “Copies”).
1.2. Information will not be Confidential Information in the following scenarios:
a) If, on the date of signature of this Agreement, the information is in the public domain, or subsequently enters the public domain, and this circumstance does not derive from a direct or indirect breach of the duty of confidentiality by the Recipient Party and/or its Authorised Persons under this Agreement.
b) If the information can be lawfully obtained from a public registry.
c) If the information has been lawfully obtained by the Recipient Party or its Authorised Persons from a source not connected to the Disclosing Party, without breach of any duty of confidentiality.
1.3. The Disclosing Party expressly agrees that the Recipient Party will be entitled to disclose the Confidential Information if required by:
a) An order from a court with jurisdiction or a governmental or regulatory body.
b) The laws of a country with jurisdiction over the business of any of the Parties.
1.4. In any case, before disclosing the Confidential Information in accordance with section 1.3, the Recipient Party shall, to the extent permitted by law, (i) promptly inform the Disclosing Party of the circumstances of the disclosure, (ii) cooperate with the Disclosing Party to obtain any available protective measure, and (iii) disclose only the portion of the Confidential Information strictly required.
2. OBLIGATIONS OF THE RECIPIENT PARTY
2.1. The Recipient Party undertakes:
a) To keep secret all the Confidential Information and the existence of this Agreement.
b) To protect the Confidential Information from unauthorised disclosure and use with at least the same degree of care it normally exercises to protect its own proprietary information, and in no case less than a reasonable degree of care.
c) Not to divulge or disclose to third parties, including but not limited to any vendor, customer, manufacturer or independent contractor, in whole or in part, orally, in writing, in pictorial form or on any device, any Confidential Information or the Protocol without the Disclosing Party’s prior express written consent and, where such consent is granted, only after the relevant third party has executed a confidentiality agreement no less protective than this Agreement.
d) Not to reverse engineer, disassemble or decompile the Confidential Information or the Protocol.
e) Not to manipulate or disassemble the Protocol in order to alter the maximum number of permitted connections established in the Recitals of this Agreement.
f) To refrain from acquiring the Protocol from any third party other than AL KAMEL without AL KAMEL’s prior written consent.
g) Not to use the Protocol once the licence acquired by the CLIENT has expired, unless such licence has been duly renewed.
h) To inform AL KAMEL as soon as reasonably practicable if the CLIENT receives an offer from a third party for the acquisition of the Protocol, whether alone or jointly with software developed by such third party.
i) Not to distribute or disclose in any way or form any Confidential Information to anyone except those Authorised Persons who reasonably need access to it for the use of the Protocol and who are bound to confidentiality, either by their employment agreement or otherwise in writing, to an extent no less stringent than the obligations imposed on the Recipient Party under this Agreement.
j) Not to use, in whole or in part, any of AL KAMEL’s Confidential Information for any purpose other than the connection of the Software to the Protocol.
k) Not to reveal the Confidential Information, directly or indirectly, totally or partially, to any third party without the prior written consent of the COMPANY.
l) Not to make Copies of the Confidential Information unless expressly authorised in writing by the Disclosing Party.
m) To use its best efforts to ensure that no person can access the Confidential Information unless expressly authorised in writing by the Disclosing Party.
n) To inform the Disclosing Party as soon as reasonably practicable if it learns or suspects that any unauthorised person has accessed the Confidential Information.
o) Not to redistribute, broadcast, publish, sell or otherwise commercially exploit the data obtained through the Protocol, nor make it available to any third party, beyond the scope of the licence acquired, without AL KAMEL’s prior written consent. Any free or trial access to the Protocol granted by AL KAMEL shall be limited to the period expressly agreed and shall not establish any precedent as to future licence terms or pricing.
2.2. The Recipient Party shall perform all actions that may be necessary and/or convenient to comply with its obligations under this clause, including through the fulfilment of such obligations by its Authorised Persons.
3. PERSONS TO WHOM THE CONFIDENTIAL INFORMATION CAN BE DISCLOSED
3.1. The Recipient Party may only disclose the Confidential Information to its own personnel and, subject to AL KAMEL’s prior written consent, to third parties directly contracted by the Recipient Party for the use of the Protocol (together, the “Authorised Persons”). The Recipient Party shall restrict access to the Confidential Information to what is strictly necessary.
3.2. The Recipient Party shall ensure that access to the Confidential Information is strictly limited to those Authorised Persons who reasonably need such access for the purposes of using the Protocol under this Agreement and who are subject to confidentiality obligations no less stringent than those set forth herein.
3.3. The Recipient Party shall not disclose the Confidential Information to any person other than the Authorised Persons without the prior written consent of the COMPANY.
3.4. The Recipient Party shall inform the Authorised Persons of the confidential nature of the Confidential Information disclosed to them and of the existence of this Agreement.
3.5. If requested in writing by the Disclosing Party, the Recipient Party shall deliver, within twenty-four (24) hours of receiving the request, a list stating where the Confidential Information is held and the names of all persons to whom it has been disclosed.
3.6. The Recipient Party shall be fully liable for any breach of the obligations deriving from this Agreement, even if the breach is attributable to the Authorised Persons.
4. NON-RELIANCE ON THE CONFIDENTIAL INFORMATION AND EXCLUSIVE OWNERSHIP
4.1. The COMPANY makes no warranty concerning the truthfulness, completeness or accuracy of the Confidential Information and is under no legal obligation to inform the CLIENT, as Recipient Party, of any changes related to such information. Consequently, the COMPANY shall not be held liable for the content of the Confidential Information except in the event of fraud or gross negligence.
4.2. Accordingly, the Recipient Party is not entitled to claim against the COMPANY for the accuracy, content, omissions or errors of the Confidential Information.
4.3. The Recipient Party shall be solely responsible for any damages, of whatever kind, arising from its use of, or reliance on, any information or data furnished hereunder.
4.4. The Recipient Party expressly acknowledges that the Confidential Information is the exclusive property of the COMPANY and that the signature of this Agreement does not grant the Recipient Party any rights other than those expressly established herein. Consequently, the CLIENT shall not use the Protocol altering the maximum number of connections allowed by each licence, nor acquire the Protocol, alone or jointly with adapted software, from any third party other than the COMPANY.
4.5. In particular, the signature of this Agreement does not grant any intellectual or industrial property right or licence (including patents, inventions, trade secrets, trademarks and trade names, among others) in favour of the CLIENT and/or its Authorised Persons.
4.6. This Agreement shall not constitute, create, give effect to or otherwise imply an employment relationship, teaming agreement, joint venture, pooling arrangement, partnership or formal business organisation of any kind, nor shall this Agreement or the disclosure or receipt of any proprietary information hereunder constitute an offer, acceptance, promise or obligation by either Party to enter into any additional contract, subcontract, amendment, agreement or other business relationship with the other Party.
5. LIABILITY, SPECIFIC PERFORMANCE AND PENALTIES
5.1. The Recipient Party shall be liable for any damage caused to the Disclosing Party as a result of the breach of any of the obligations established under this Agreement.
5.2. In the event of breach of any obligation established in this Agreement by the Recipient Party, the Disclosing Party shall be entitled to claim directly from the Recipient Party the specific performance of the duties and obligations of this Agreement, even if the breach has been caused by the acts of the Authorised Persons.
5.3. In the event of a material breach of the obligations under this Agreement by the CLIENT and/or any Authorised Person, the COMPANY shall be entitled to claim a fixed penalty of fifty thousand euros (€50,000) per breach, as a pre-agreed estimation of damages. This penalty shall not exclude or replace the right to seek further damages in accordance with applicable law, and its final enforceability and amount may be subject to judicial review where required.
5.4. The Recipient Party acknowledges that the breach of any of the provisions and obligations set forth in this Agreement may cause irreparable damage to the Disclosing Party that may not be fully compensated by the measures established in this clause, and that the Disclosing Party may seek injunctive relief.
5.5. Should the Disclosing Party notify the Recipient Party in writing of a verified breach under this Agreement, the CLIENT agrees to pay the penalty within seven (7) calendar days, unless suspended or overruled by a competent court.
6. TERM
6.1. This Agreement shall enter into force on the date of its signature (the “Effective Date”) and shall cover all Confidential Information concerning the Protocol provided by AL KAMEL for as long as the CLIENT holds a valid licence of the Protocol or the Parties maintain any business relationship in connection with it, and in any case for a minimum period of three (3) years from the Effective Date. AL KAMEL may refuse, suspend or revoke access to the Protocol if the CLIENT’s details are incomplete or inaccurate, or if the CLIENT does not meet AL KAMEL’s licensing conditions.
6.2. All the obligations assumed by the Recipient Party shall survive the termination of this Agreement and remain in force until the later of:
6.2.1. Five (5) years after the termination of this Agreement; and
6.2.2. Three (3) years after the date on which the relevant Confidential Information was disclosed by the Disclosing Party to the Recipient Party.
Notwithstanding the foregoing, the Confidential Information constituting a trade secret (including the technical specifications, source code and know-how of the Protocol) shall remain protected for as long as it retains such status in accordance with Spanish Law 1/2019, of 20 February, on Trade Secrets.
6.3. Upon termination of this Agreement, the Recipient Party shall, within a maximum period of two (2) working days:
6.3.1. Return to the Disclosing Party all the Confidential Information, including the Copies;
6.3.2. Permanently destroy or erase all Confidential Information from all hardware, software, computers and any other media;
6.3.3. Request, obtain and destroy all Confidential Information, including Copies, disclosed to the Authorised Persons;
6.3.4. Refrain from contacting any third party in order to acquire any manipulated version of the Protocol intended to circumvent the maximum number of connections permitted by each licence; and
6.3.5. Certify in writing to the Disclosing Party that the above obligations have been fulfilled.
7. INTELLECTUAL PROPERTY RIGHTS
7.1. The Parties expressly agree that all trademarks, trade names and/or any other intellectual property rights used in association with the Protocol and the Confidential Information are the exclusive property of the Disclosing Party, and at no time during the term of this Agreement or thereafter shall any person other than the registered owner acquire any right, title or interest in or to such trademarks or trade names used in association with the performance of the services deriving from the business relationship existing between the Parties.
7.2. The Recipient Party agrees that no right in, or licence under, any present or future idea, invention, patent, trade secret, Confidential Information, copyright, mask work, trade name or trademark is offered or granted under this Agreement.
7.3. Likewise, the Recipient Party shall refrain from tampering with, disassembling or manipulating the Protocol in any way with the intent to misuse it without the prior written consent of the Disclosing Party and, in particular but not limited to, from altering the maximum number of permitted connections to the Protocol in accordance with each acquired licence.
8. INFORMATION ON PERSONAL DATA PROCESSING
8.1. Each of the Parties to this Agreement, whose identification data and contact addresses appear at the beginning of this document, acting independently as controller, will process the data contained in this Agreement relating to the individuals acting on behalf of the other Party or on their own behalf.
8.2. The purpose of the processing, as well as its legal basis, is compliance with the rights and obligations arising from this Agreement, and the processing of the data is strictly necessary for that purpose.
9. ASSIGNMENT
9.1. The Recipient Party shall not assign or delegate any or all of its rights and obligations arising from this Agreement to a third party without the prior written consent of the Disclosing Party.
10. NOTICES
10.1. All communications and notices under this Agreement shall be made in English and/or Spanish and in writing, and shall be delivered by any of the following means: (i) personal delivery with written confirmation of receipt by the other Party, (ii) registered or certified mail, or (iii) email, as well as any other means, provided always that there is evidence of receipt by the addressee.
10.2. Communications and notices shall be delivered to the following addresses and persons:
To the COMPANY: Att. Mr. José Luis García Molina (AL KAMEL SYSTEMS, S.L.) – C/ Priora Xixilona, 93, 08530 La Garriga (Spain) – joseluisgarcia@alkamelsystems.com
To the CLIENT: Att. [name] – Company: [company name] – Address: [address] – Email: [email]
10.3. Any change to the addresses indicated above shall be immediately notified to the other Party in accordance with this clause. Until such change has been notified, notices sent to the addresses and persons indicated above shall be deemed valid.
11. ENTIRE AGREEMENT
11.1. This Agreement constitutes the entire agreement and full understanding of the Parties with respect to its subject matter, and supersedes any and all prior agreements entered into between the Parties in connection with the subject matter of this Agreement.
11.2. This Agreement shall exclusively govern the disclosure, protection and use of the Protocol and of any Confidential Information disclosed by AL KAMEL. In the event of any conflict or inconsistency with any other confidentiality, non-disclosure or similar agreement entered into between the Parties, whether before, simultaneously with or after the Effective Date (including any agreement based on the CLIENT’s standard forms), the provisions of this Agreement shall prevail with respect to the Protocol and AL KAMEL’s Confidential Information, unless such other agreement expressly refers to this clause and states that it amends it.
12. AMENDMENT
12.1. No modification to this Agreement shall be binding unless agreed by both Parties in writing and signed by a duly authorised representative of each Party.
13. GOVERNING LAW AND JURISDICTION
13.1. This Agreement shall be governed by and construed under the laws of Spain.
13.2. Any controversy, claim or dispute directly or indirectly related to this Agreement, its performance, enforceability or interpretation shall be exclusively submitted to the Courts of Barcelona (Spain).
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed in two original counterparts.
[Signature block for AL KAMEL SYSTEMS, S.L. and THE CLIENT: see the PDF version.]