This Non-Disclosure and Confidentiality Agreement (“Agreement”) is entered into as of the date the Receiver indicates acceptance by checking the acknowledgment box on the datacube.ai website (“Effective Date”), by and between Data Cube, Inc., a California corporation with a principal address at 1325 Thousand Oaks Blvd #202, Thousand Oaks, CA 91362 (hereinafter “Discloser”), and the individual and entity accepting this Agreement (hereinafter “Receiver”).
By checking the box and submitting the form, the Receiver affirms that they are authorized to enter into this Agreement on behalf of the business entity they represent, and that they agree to be bound by its terms.
The Discloser and Receiver may be referred to herein collectively as the “parties,” and individually as a “party.”
WHEREAS, the parties desire to discuss certain ideas, inventions, components, methods, device, kits, systems, electronic books, and information that is confidential and proprietary between the parties (the “Confidential Information”);
WHEREAS, the parties, for their mutual benefit and pursuant to a working relationship which has been or may be established, anticipate that the Discloser may disclose or deliver to the Receiver documents, files (whether electronic or physical), components, parts, information, patterns, drawings, sketches, plans, specifications, techniques, methods, processes, systems, devices, inventions and other materials, both written and oral, of a secret, confidential or proprietary nature, including without limitation any and all information relating to marketing, finance, forecasts, invention, research, design or development of the business methods and products used in connection with Discloser and related lines of, business, or brands, and all subject matter claimed in or disclosed by the Discloser, in any jurisdiction, and any amendments or supplements thereto (collectively, “Proprietary Information”);
WHEREAS, the Receiver shall not use the Confidential Information of the Discloser for any purpose except to evaluate and engage in a business relationship between parties regarding the development, production, marketing, distribution, and/or sale of Discloser’s electronic books and related components, methods, systems, and processes. WHEREAS, the Discloser desires to assure that the confidentiality of any Confidential and Proprietary Information is maintained; and WHEREAS, the parties desire to make certain agreements concerning the protection of the Confidential Information on the terms set forth below.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
Terms:
1. Recitals. The parties acknowledge that the Recitals set forth above are accurate and constitute a part of this Agreement.
2. Confidential Information. The term “Confidential Information” as used here in means any and all information (written, oral, electronic or otherwise) related to the Discloser, and its affiliates, affairs, programs, advertisements, operations, technical and business information relating to proprietary ideas, patentable ideas and/or trade secrets, existing and/or contemplated products and services, research and development, production, samples, files (whether electronic or physical), patterns, drawings, costs, profit and margin information, finances and financial projections, customers, clients, marketing, and current or future business plans and models, techniques and strategies, methods, processes, records, systems, electronic books, all items designated or marked by the Discloser as “Confidential” or proprietary, regardless of whether such information is designated as “Confidential Information” at the time of its disclosure, any third party information that the Discloser treats as confidential or proprietary, and any information that a party knows or reasonably should know is confidential or proprietary or that derives independent value from not being generally known to the public.
3. Non-Disclosure.
(a) The Receiver shall not use or disclose, produce, publish or permit access to any Confidential Information of the Discloser that is disclosed to, or is otherwise obtained by or becomes known to the Receiver. The Receiver shall not copy, photograph, photocopy, alter,
modify, disassemble, decompile, or in any manner reproduce any materials containing or constituting Confidential Information of the Discloser without the express prior written consent of the Discloser, which consent may be withheld for any reason or for no reason. The Receiver agrees to take all steps reasonably necessary to protect the secrecy of the Confidential Information, and to prevent the Confidential Information from falling into the public domain or into the possession of unauthorized persons.
(b) The Receiver shall limit disclosure of the Confidential Information of the Discloser only to those directors, officers, partners, members, agents, consultants and/or employees, of the Receiver (“Authorized Representatives”) who need to know and shall not
disclose Confidential Information to any third party (whether an individual, corporation, or other entity) without prior written consent. The parties shall satisfy its obligations under this paragraph if it takes affirmative measures to ensure compliance with these confidentiality obligations by its directors, officers, partners, members, agents, consultants, employees and others who are permitted access to or use of the Confidential Information.
(c) The Parties shall take reasonable measures to protect, maintain and safeguard the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those
measures that it takes to protect its own most highly Confidential Information and shall promptly notify the Discloser of any misuse or misappropriation of Confidential Information of what it becomes aware.
(d) At the request of the Discloser, the Receiver shall deliver to the Discloser all documents, data, drawings and other tangible materials, including all Proprietary Information and all manifestation thereof, containing or representing Confidential Information which have
been disclosed by either party to the other party, and all copies thereof which are in the possession of the other party, shall be and remain the property of the Discloser and shall be promptly returned to the Discloser upon the Discloser’s written request. However, in lieu of delivering to the Discloser, the Receiver may destroy all of the Receiver’s copies and information stored by electronic means of such Confidential Information and certify to the Discloser in writing that such destruction has been accomplished.
4. Exceptions.
(a) The obligations of the Receiver set forth in Section 3 shall not apply to information and materials that:
i) was/is described in an issued patent anywhere in the world, or was publicly known and made generally available in the public domain prior to the time of disclosure by the Discloser;
ii) becomes publicly known and made generally available after disclosure by the Discloser to the Receiver through no action or inaction of the Receiver;
iii) is already in the possession of the Receiver at the time of disclosure by the Discloser as shown by the Receiver’s files and records immediately prior to the time of disclosure;
iv) is obtained by the Receiver from a third party without a breach of such third party’s obligations of confidentiality;
v) is required by law to be disclosed by the Receiver, provided that the Receiver gives the Discloser prompt written notice of such requirement prior to such disclosure or and assistance in obtaining an order protecting the information from public
disclosure; or
vi) are disclosed to the Receiver by a third party who or which is under no legal or contractual obligation or restriction not to disclose same to the Receiver.
5. Term. The Receiver’s obligations hereunder shall remain in effect for a period of five (5) years after the disclosure of the Confidential Information or until such time as all Confidential Information of the other party disclosed hereunder becomes publicly known and
made generally available through no action or inaction of the Receiver, whichever is earlier.
6. Ownership. The Receiver agrees that all Confidential Information shall remain the property of Discloser, and that the Discloser may use such Confidential Information for any purpose without obligation to the Receiver. Nothing contained herein shall be construed as
granting or implying any transfer of rights to the Receiver in the Confidential Information, or any patents, licenses, similar rights, or other intellectual property protecting or relating to the Confidential Information.
7. Non-Circumvention. The Receiver does hereby irrevocably agree not to circumvent, avoid, or bypass the Discloser, either directly or indirectly, in order to avoid the intent of this Agreement, or otherwise benefit, either financially or otherwise, from information supplied to it by the Discloser, or through any form of relationship with the Discloser’s clients, suppliers, or representatives.
8. Default and Remedies. In the event the Receiver becomes aware of an unauthorized disclosure or use of the Discloser’s Confidential Information, the Receiver shall promptly provide written notice to the Discloser of such disclosure or use, so that the Discloser
may have the opportunity to minimize the damage related to such disclosure; and (ii) fully cooperate with the Discloser in every reasonable way to help and/or prevent its further unauthorized disclosure or use of the Confidential Information. The Receiver understands and agrees that any violation or threatened violation of this Agreement may cause irreparable injury to the Discloser, entitling the Discloser to seek injunctive relief in addition to all legal remedies.
9. Successors and Assigns. This Agreement is binding upon, inure to the benefit of, and be enforceable by the parties and their respective successors and assigns.
10. Governing Law; Severability. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without reference to conflict of laws principles, and the courts of the State of California shall be the exclusive forum.
11. Jurisdiction; Venue. Each of the parties’ consents that this Agreement is made under and shall be construed according to the laws of the State of California. Any action, litigation, claim dispute, or proceeding relating in any way, either directly or indirectly, to this
Agreement or the subject matter hereof shall be brought exclusively in the courts located in Ventura County, California. Further the parties hereto specifically consent and agree that the jurisdiction and venue of the courts located in Ventura County, California are appropriate and proper. Service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to it at its address hereto or at such other address of which the other party shall have been notified pursuant thereto.
12. No Waiver. No delay or failure by either party, in exercising any rights or enforcing any provisions of this Agreement will not constitute a waiver thereof or of any other right or provision.
13. Modifications; Prior Agreements; Waivers. This Agreement contains the entire agreement of the parties concerning the disclosure of Confidential Information and supersedes any prior contemporaneous understandings and agreements, written or oral, or representations with respect thereto. Any addition or modification to this Agreement must be made in writing and signed by both parties hereto. No oral waiver shall be binding.
14. Enforceability: If any of the provisions of this Agreement are found to be unenforceable, the remainder shall be enforced as fully as possible and the unenforceable provision(s) shall be deemed modified to the limited extent required to permit enforcement of the
Agreement as a whole.
15. WAIVER OF JURY TRIAL. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE DOCUMENTS OR AGREEMENTS REFERENCED HEREBY OR THE BUSINESS OPPORTUNITY CONTEMPLATED HEREBY OR THEREBY.
16. Counterparts. This Agreement may be executed in counterparts, or by the execution of counterpart signature pages which may be attached to one or more counterparts, all of which together shall constitute one original instrument (or counterpart original instruments) binding upon the parties.
