NDA
NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT
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 herein
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.