Data Foundry Audit Reports

THIS NONDISCLOSURE AGREEMENT (this “Agreement”) is entered into and effective as of the date of the last signature below (the “Effective Date”) between Switch and the person or entity identified in the signature line below (“Recipient”).

1. Confidential Information. “Confidential Information” means SSAE-16 and/or similar compliance audit report(s) made available to Recipient created for the year identified by Recipient on the signature line below (the “Audit Report Year Requested”) and all copies, notes, abstracts and other tangible embodiments made by Recipient that are based on or contain any of such information.
2. Purpose. Recipient may only use the Confidential Information solely for the purposes of (i) evaluating Switch’s compliance audit report(s) in connection with a current or contemplated business transaction with Switch (ii) sharing with actual or potential customers of Switch and/or Recipient under confidentiality obligations at least as restrictive as those set forth in this Agreement, and (iii) providing regulatory and governmental agencies and third party auditors retained by the Recipient (“Agencies”) information regarding Recipient’s data center as requested by such Agencies from time to time, and for no other purpose (the “Purpose”). Recipient agrees to sign a new Agreement covering the Audit Report Year Requested for which Recipient seeks disclosure of the Confidential Information.
3. Protection. Recipient covenants and agrees as follows:(a) Recipient: (i) will not disclose the Confidential Information to any third party (other than to Agencies or Representative’s (defined below) in furtherance of the Purpose); (ii) will not disclose the Confidential Information to Recipient’s employees, current or potential customers shared with Switch, agents, auditors, consultants, regulatory or governmental agencies or representatives (each a “Representative”), unless the same have a need to know the Confidential Information for the Purpose and are contractually or otherwise bound to maintain such Confidential Information in confidence on terms at least as restrictive as this Agreement; (iii) will use the Confidential Information solely for the Purpose and will not use it for any third party’s benefit; and (iv) will use the same degree of care to protect the Confidential Information from unauthorized use or disclosure as Recipient would use to protect Recipient’s own information of a similar nature, but in no event less than reasonable care. Recipient shall be responsible for breach of this Agreement by a Representative as if it were Recipient’s own actions.(b) Recipient’s obligations under this Agreement with respect to particular information do not apply to the extent that: (i) Switch authorizes Recipient in writing to disclose such information; (ii) such information is or becomes generally known in the relevant industry without fault of Recipient; or (iii) Recipient rightfully obtains such information from a third party who has the right to disclose it without violation of any confidentiality obligations.(c) If Recipient is subject to judicial or governmental proceedings requiring disclosure of Confidential Information, then, prior to any such disclosure, Recipient will provide Switch with reasonable prior written notice and will obtain, or provide Switch with an opportunity to obtain, a protective order or confidential treatment of the Confidential Information.(d) Recipient may forward the Confidential Information to Agencies and Representatives solely in the furtherance of the Purpose, provided Recipient is responsible for any actions or breaches of confidentiality by such third parties as though they were the actions of Recipient.
4. Return of Confidential Information. All Confidential Information furnished under this Agreement remains the property of Switch and will be returned to Switch or destroyed upon Switch’s request including all copies thereof. Recipient will provide a written certification, signed by an officer indicating all copies have been returned or destroyed.
5. No License or Warranty. No license under any patents, copyrights, trademarks or other proprietary rights is granted by Switch under this Agreement. ALL INFORMATION IS PROVIDED “AS IS”, WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO A WARRANTY THAT IT IS ACCURATE OR COMPLETE OR A WARRANTY AGAINST INFRINGEMENT.
6. No Inducement or Commitment. Neither the disclosure nor access to Confidential Information under this Agreement constitutes an inducement or commitment to enter into any business relationship.
7. Term. This Agreement is effective on the Effective Date and will continue until written notice of termination is provided by either party to the other. All obligations relating to Confidential Information will survive.
8. Assignment and Binding Effect. Recipient may not assign this Agreement by operation of law or otherwise. Any assignment in violation of this Agreement will be void. This Agreement benefits and binds each party’s respective successors and permitted assigns.
9. Jurisdiction and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of Nevada, exclusive of its choice of law principles.
10. Entire Agreement. This Agreement covers the Confidential Information for the Audit Report Year Requested and is the entire understanding between the parties for the same, and supersedes all prior and contemporaneous agreements (oral or written) between the parties regarding the Confidential Information. This Agreement will not be modified or waived except in a writing signed by both parties. If any part of this Agreement is unenforceable, the rest will remain in effect. Recipient will comply with any and all applicable export control laws, rules and regulations. Any notice under this Agreement will be deemed provided upon receipt. This Agreement may be executed in counterparts.