1. Scope of NDA. This NDA governs all disclosures of Confidential Information by one party (“Discloser”) to the other party (“Recipient”) in the course of exploring one or more strategic business transactions and/or the desire to enter into a business relationship, wherein each party may disclose to the other certain confidential information, under the terms and conditions of this NDA (the “Purpose”).
2. Definitions. “Confidential Information” means, whether disclosed prior to, on or after the Effective Date, any of Discloser’s (or its Affiliates’) information, including, without limitation, business opportunities, acquisition opportunities, property lists or property portfolios, formulas, patterns, compilations, programs, software, devices, designs, drawings, methods, techniques and processes, financial information and data, business plans, business strategies, marketing plans, customer lists, price lists, cost information, information about employees, descriptions of inventions, process descriptions, descriptions of technical know how, information and descriptions of new products and new product development, scientific and technical specifications and documentation, and pending or abandoned patent applications of a party, now known or in possession of, or hereafter learned or acquired, that derives economic value, actual or potential, from not
being generally known to, and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use. Confidential Information may be written or oral, expressed in electronic media or otherwise disclosed, and may be tangible or intangible. All materials and information disclosed by Discloser to Recipient will be presumed to be Confidential Information and will be so regarded by Recipient. “Affiliate”, with respect to any Person, means any other Person that, directly or indirectly, is controlled by, controls or is under common control with that Person, including, without limitation, any officer, director, manager, general partner, controlling stockholder or managing member of any Person. “Control”, with respect to any Person, means the power, directly or indirectly, to direct the management and policies of that Person. "Person" will be broadly
interpreted to include, without limitation, any individual, corporation, company, association, partnership, joint venture, trust, estate, governmental agency or other entity of whatsoever kind or nature.
3. Exceptions. Confidential Information does not include information which: (i) is in the possession of the Recipient prior to the Effective Date as shown by the Recipient’s files and records immediately prior to the time of disclosure; (ii) prior or after the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action of the Recipient; (iii) is lawfully obtained from a third party without any breach of a confidentiality obligation to Discloser; (iv) is approved for release by Discloser in writing; or (v) is shown by written record to be developed independently by the Recipient.
4. Non-use and Nondisclosure. The Recipient agrees not to use or exploit the Confidential Information for any reason other than the Purpose. Recipient will not disclose any Confidential Information to any third parties except those directors, officers, employees,
consultants, attorneys and agents (collectively, “Representatives”) who have a need to know the Confidential Information in order to carry out the Purpose. Recipient will ensure that its Representatives to whom Confidential Information is disclosed or who have access to Confidential Information are bound by non- disclosure terms substantially similar to the terms of this NDA. Recipient will be responsible for breaches of this NDA by any Representative of Recipient. Recipient agrees that it will take all reasonable measures to protect the secrecy of and avoid any unauthorized disclosure or use of Confidential Information in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized hereunder to have any such Confidential Information, which measures will include the highest degree of care the Recipient utilizes to protect its own Confidential Information of a similar nature, but in no event less than a reasonable degree of care. Recipient agrees to notify Discloser promptly in writing of any misuse or misappropriation of such Confidential Information which may come to its attention; provided, however, that nothing herein will prevent Recipient from disclosing the Confidential Information to the extent necessary to its auditors or legal advisors. Recipient agrees not to contact Discloser’s employees, suppliers, customers, business associates or any other party designated in writing by the Discloser (the “Discloser Contacts”). Recipient agrees to not circumvent or interfere with the listing agreement of any of Discloser Contacts in any way.
5. Mandatory Disclosure. In the event that Recipient or its Representatives are requested or required by legal process to disclose any of Discloser’s Confidential Information, Recipient will give prompt written notice so that Discloser may seek a protective order or other appropriate relief. In the event that such protective order is not obtained, Recipient will disclose only that portion of the Confidential Information that its counsel advises that it is legally required to disclose.
6. Return of Materials. Any materials or documents embodying Confidential Information which have been furnished to the Recipient will be, except as required by applicable law or legal process, promptly returned, accompanied by all copies of such documentation, or destroyed, upon the earlier of the written request thereof by Discloser or the termination or expiration of this NDA, and if destroyed, Recipient will provide written confirmation thereof within five (5) business days of any request by Discloser. Notwithstanding the return, destruction or retention of Confidential Information, as applicable, both parties will continue to be bound by the obligations of confidentiality hereunder.
7. No License Granted. Nothing in this NDA is intended to grant Recipient any rights under any patent, copyright, trade secret or other intellectual property right, nor will this NDA grant Recipient any rights in or to Discloser’s Confidential Information except the limited right to review such Confidential Information solely for the purposes set forth in Section 1 (i.e. the Purpose). All such rights will remain exclusively owned by Discloser. Recipient will not: (1) derive or attempt to derive source code, reverse engineer, disassemble or decompile any products, models, prototypes, software or other objects that embody the Confidential Information of Discloser; or (2) sell, license, sublicense, rent, lease, grant a security interest, or commercially exploit the Confidential Information except as authorized by Discloser in writing. Nothing in this NDA will limit or restrict the rights of either party to assert infringement or other intellectual property claims against the other.
8. No Representations. Recipient hereby acknowledges that Discloser makes no representation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information or any component thereof, and that any information being provided by Discloser pursuant to this NDA is being provided “as is”. The parties agree that any Purpose MUTUAL NONDISCLOSURE AGREEMENT contemplated by this NDA may or may not lead to business or other relationships between them and no party has any obligation to conclude any such relationships or enter into any further agreements.
9. Term. This NDA will continue in effect until the third anniversary of the Effective Date, provided that this NDA shall terminate upon the signing of any master agreement by the parties, which shall contain provisions relating to Confidential Information that will supersede this NDA. Notwithstanding the foregoing, upon termination or expiration of this NDA, the parties’ obligations of confidentiality and non-use will survive for a period of one (1) year, and, in the case of any Confidential Information concerning any source code, algorithms or other trade secrets of Discloser, for so long as such source code or other trade secrets have not entered the public domain.
10. Publicity. Recipient agrees that neither Recipient nor its Affiliates or Representatives will disclose to any Person who is not authorized to receive the Confidential Information either the fact that this NDA exists, that discussions or negotiations are taking place concerning the Purpose or any of the terms, conditions or
other facts with respect to any aspect of the Purpose, including the status thereof or the Persons involved, except as required as a result of any legal process after compliance by Recipient with the provisions of Section 5.
11. Attorney-Client Privileged Information. To the extent that any Confidential Information may include materials that are subject to the attorney-client privilege, the attorney work- product doctrine or any other applicable privilege or protective doctrine, including any such privilege or protective doctrine pertaining to pending or threatened legal proceedings or governmental investigations, Recipient understands and acknowledges that both parties have a commonality of interest with respect to the matters that are the subject of this NDA, and it is the mutual understanding and intention of both parties that the sharing of such Confidential Information is not intended to, and will not, waive or diminish in any way the confidentiality of such Confidential Information or its continued protection under the attorney-client privilege, the attorney work-product doctrine or other applicable privilege or protective doctrine. All Confidential Information provided by Discloser that is entitled to protection under the attorney-client privilege, the attorney-work product doctrine, or any other applicable privilege or protective doctrine will remain entitled to such protection under those privileges or doctrines, this NDA, and under the joint defense privilege or doctrine.
12. Miscellaneous.
12.1. This NDA will be binding upon and for the benefit of the undersigned parties, their successors and assigns, provided that this NDA or the Confidential Information of Discloser may not be assigned by Recipient without the prior written consent of Discloser. Failure to enforce any provision of this NDA will not constitute a waiver of any term hereof. A waiver given on any one occasion is effective only in that instance and will not be construed as a waiver of any right on any other occasion.
12.2. If any provision of this NDA is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions will remain in full force and effect.
12.3. This NDA sets forth the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous agreements, proposals, understandings and representations, written or oral, between the parties with respect to the subject matter hereof. All modifications of, waivers of and amendments to this NDA or any part hereof, must be in writing and signed on behalf of each party. This NDA may be executed in counterparts, including facsimile, PDF or other electronic copies thereof, and each such counterpart will be an original and altogether will constitute but one and the same document.
12.4. If Discloser brings an action directly or indirectly based upon this NDA or the matters contemplated hereby against Recipient, Discloser will be entitled to recover, to the extent it is the prevailing party, in addition to any other appropriate amounts, its costs and expenses in connection with such proceeding, including, but not limited to, reasonable attorneys’ fees and court costs.
13. Governing Law and Jurisdiction. This NDA will be governed by and construed and enforced in accordance with the internal law of the State of California, without regard to any choice-of law provisions, and will be binding upon the parties in the United States and worldwide. The federal and state courts located in San Francisco, California shall have exclusive jurisdiction to adjudicate any dispute arising out of this NDA.
14. Remedies. Each party agrees that its obligations hereunder are necessary and reasonable in order to protect the other party and the other party’s business, and expressly agrees that monetary damages would be inadequate to compensate the other party for any breach by either party of any covenants and agreements set forth herein. Accordingly, each party agrees and acknowledges that any such violation or threatened violation of the terms of this NDA may cause irreparable injury to the other party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the other party will be entitled to obtain injunctive relief against the threatened breach of this NDA or the continuation of any such breach, in any court of competent jurisdiction (notwithstanding the provisions of Section 13), without the necessity of proving actual damages or posting a bond. Recipient agrees to and will be responsible and primarily liable for, and agrees to and will indemnify Discloser from and against, any and all claims, demands, actions, losses, damages, liabilities, costs and expenses and disbursements incurred or sustained as a result of any breach by Recipient and/or Recipient’s Affiliates or Representatives of any of the provisions hereof (including, without limitation, any unauthorized use or disclosure of the Confidential Information by Recipient or Recipient’s Affiliates or Representatives, or otherwise resulting from the acts or omissions of Recipient, or the acts or omissions of Recipient’s Affiliates and representatives).
ACCEPTED AND AGREED:
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