This Non-Disclosure Agreement (this “Agreement”) is made and entered into by and between You (the “Receiving Party”), and Finalis, Inc., a Delaware corporation (together with its affiliates and subsidiaries, “Disclosing Party”). This Agreement becomes effective on the date the Receiving Party clicks the "Accept" or "Submit" button to indicate your acceptance (the “Effective Date”) to protect the confidentiality of information of Disclosing Party disclosed to the Receiving Party, which information is being so disclosed to Receiving Party solely for use in the Transaction (as defined below).
WHEREAS, Disclosing Party or a subsidiary of Disclosing Party has engaged Receiving Party for a possible transaction by and between the parties (the “Transaction”).
WHEREAS, in connection with the Transaction, Disclosing Party may disclose or provide access to Receiving Party to certain past present and future operational, financial, pricing, business, usernames and/or passwords, the identity of and information relating to customers or employees, products, assets, rights, liabilities, properties, brand guidelines, intellectual property, technology services, inventions (whether or not patentable), works of authorship, mask works, designs, information made or conceived or reduced to practice, in whole or in part, content libraries, websites, social media and other accounts, other proprietary or confidential materials and plans, patents and patent applications (including provisional patent applications), trade secrets, proprietary and confidential information, ideas, techniques, sketches, drawings, wireframes, product specifications, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, algorithms, software programs, software source documents, and formulae related to the current, future, and proposed products and services of Disclosing Party, including, without limitation, information concerning Disclosing Party’s research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customers, suppliers, contractors, investors, employees, directors, managers, business and contractual relationships, business forecasts, sales and merchandising, marketing plans and other information of or relating to Disclosing Party, the existence and content of this Agreement and the relationship between Disclosing Party and Receiving Party, business methods and systems, Disclosing Party’s screen techniques, Disclosing Party’s database information, strategic contracts, financial statements, fee schedules and other price information, billing records, policies, actual and projected financial and operational information, contracts, projections, business plans, officer, director and owner information, employees and contractors, suppliers and vendors, Disclosing Party lists, marketing, software, technology, technical memoranda, manuals, prospects and proposed projects, trademarks and patents, intellectual property, advice from lawyers and accountants and other consultants, and other information and know-how, all relating to or useful to Disclosing Party’s business and relating to the disclosed materials and all other information that Receiving Party knew, or reasonably should have known, was or is the confidential or propriety information of Disclosing Party (collectively, the “Confidential Information”). The Confidential Information includes all disclosures of matters made prior to the Effective Date, if any, in addition to all disclosures made on or after the Effective Date.
NOW, THEREFORE, as a condition to Disclosing Party disclosing its Confidential Information to Receiving Party and in recognition by each party that such Confidential Information constitutes proprietary, valuable, and unique assets owned by or in the custody of Disclosing Party, the parties agree as follows:
TERMS AND CONDITIONS
1. Recitals. The recitals stated above are true and correct and are incorporated by reference into and made a part of this Agreement.
2. Access to Confidential Information. Receiving Party will receive or be given access to certain Confidential Information of Disclosing Party, all relating to or useful in Disclosing Party’s business and all considered by Disclosing Party as confidential or proprietary information. Confidential Information shall not include information that (a) was known to Receiving Party or any of its Representatives (as defined below) prior to its disclosure by Disclosing Party without any obligation to protect the confidentiality thereof, (b) is or becomes available to Receiving Party or any of its Representatives on a non-confidential basis from a source other than Disclosing Party, provided that such other source is not known by Receiving Party or any of its Representatives to be bound by a confidentiality obligation to Disclosing Party with respect to such information, (c) was or becomes generally available to the public other than as a result of a breach by Receiving Party or any of its Representatives of this Agreement or some other confidentiality obligation applicable to Receiving Party or any of its Representatives, or (d) is independently developed by or for Receiving Party or any of its Representatives without use of or reference to Confidential Information.
3. Non-Disclosure and Non-Use of Confidential Information. Except as required by law or as otherwise permitted herein, without the express written consent of Disclosing Party, which may be withheld in its sole and absolute discretion, Receiving Party covenants and agrees:
(a) Not to disclose any of the Confidential Information, to any person, entity or third party, other than to Receiving Party’s affiliates and its and their respective directors, employees, officers, or representatives (all of the foregoing who receive or who have access to such Confidential Information, the “Representatives”) for the purpose of evaluating the Transaction, in each case who need to know such Confidential Information in further of the Transaction and who are instructed to comply with the confidentiality obligations contained herein;
(b) Not to use the Confidential Information for any competitive advantage or in business activities or for any purposes other than in connection with the Transaction;
(c) To keep in strict confidence the Confidential Information and to use appropriate and reasonable safeguards to maintain such confidentiality;
(d) Not to use the Confidential Information for any purpose which may be in any way detrimental to Receiving Party or the business of Receiving Party; and
(e) Not to sell or otherwise transfer or communicate to any third party any Confidential Information.
4. Non-Disclosure of Transaction. The terms of the Transaction are confidential and proprietary, and, except as set forth in Section 5 hereto, the parties covenant and agree not to disclose any information related to the Transaction (including the existence thereof) to any person, entity, or third party, other than the Representatives pursuant to Section (3)(a) hereto. Receiving Party will promptly notify Disclosing Party in the event of any loss or unauthorized disclosure of any Confidential Information.
5. Mandated Disclosure. If disclosure of Confidential Information is required pursuant to a valid and enforceable judicial or government order or as required by law, rule or regulation (as the case may be, the “Mandated Disclosure”), Receiving Party will, to the extent lawfully permitted, (a) promptly upon receipt of a subpoena or other written notice seeking the Confidential Information, provide prompt written notice to Disclosing Party concerning the request, and (b) reasonably cooperate with Disclosing Party in the event that Disclosing Party elects to legally contest and avoid the Mandated Disclosure. Notwithstanding the above, notice to Disclosing Party shall not be required where disclosure is in connection with a routine audit or examination by, or a blanket document request from, a governmental entity or regulatory authority in the ordinary course of its supervisory or regulatory authority.
6. Return of the Confidential Information. Promptly upon Receiving Party’s receipt of a written request by Disclosing Party, Receiving Party will return the Confidential Information, both in hardcopy and electronic form and all copies thereof; provided, however, that Receiving Party and its Representatives receiving Confidential Information pursuant to this Agreement may retain limited copies of the Confidential Information to the extent retention is required to comply with Receiving Party’s and such Representatives’ record retention procedures, any applicable legal or regulatory requirement or process of law, or as may be automatically archived as part of Receiving Party’s and such Representatives’ electronic backup storage system.
7. Relationship of the Parties. No party has an obligation under this Agreement to conduct the Transaction. This Agreement does not create any agency, partnership or joint venture between the parties.
8. Ownership. The Confidential Information is, and will remain, the sole and absolute property of Disclosing Party, to be used by Receiving Party only for the Transaction. Confidential Information will not be reproduced in any form except as required to accomplish the intent of this Agreement. Any reproduction of any Confidential Information will remain the property of Disclosing Party and will contain any and all confidential or proprietary notices or legends that appear on the original, unless otherwise authorized in writing by Disclosing Party. Receiving Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any property rights, by license or otherwise, to any Confidential Information disclosed under this Agreement, or to any invention or any patent, copyright, trademark, or other intellectual property right (or other right) that has issued or that may issue, based on such Confidential Information. Receiving Party will not make, have made, use, sell or otherwise transfer or communicate for any purpose any product, service or other item using, incorporating or derived from any Confidential Information. Neither this Agreement nor the disclosure of any Confidential Information hereunder shall result in any obligation on the part of either party to enter into any further agreement with the other, license any products or services to the other, or to require Disclosing Party to disclose any particular Confidential Information. Nothing in this Agreement creates or shall be deemed to create any employment, joint venture, or agency between the parties. Receiving Party agrees that the software programs of Disclosing Party contain valuable confidential information and agrees that it will not modify, reverse engineer, decompile, create other works from, or disassemble any software programs contained in the Confidential Information without the prior written consent of Disclosing Party. Except in furtherance of the Transaction, Disclosing Party agrees that it will not use Receiving Party’s name, logo or any derivation thereof in any manner whatsoever without the prior written consent of Receiving Party.
9. Termination. This Agreement will terminate three (3) years after the Effective Date; provided, however, the confidentiality obligations under this Agreement will survive termination of this Agreement for a period of two (2) years.
10. DISCLOSING PARTY IS PROVIDING CONFIDENTIAL INFORMATION ON AN “AS IS” BASIS FOR USE BY RECEIVING PARTY AT ITS OWN RISK. DISCLOSING PARTY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, EXCEPT AS SET FORTH IN A DEFINITIVE AGREEMENT, IF ANY.
11. Remedies. Receiving Party hereby agrees that its breach of this Agreement may cause irreparable damage to Disclosing Party for which recovery of damages may be inadequate, and that Disclosing Party will be entitled to obtain injunctive and other equitable relief under this Agreement, as well as such further relief as may be granted by a court of competent jurisdiction, without the requirement to post any bond or other security or allege or prove insufficiency of monetary damages.
12. Disclaimer. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE. UNDER NO CIRCUMSTANCES SHALL THE DISCLOSING PARTY BE LIABLE TO THE RECEIVING PARTY FOR ANY LOSS, DAMAGES OR EXPENSES THE RECEIVING PARTY MAY SUFFER, SUSTAIN, PAY OR INCUR BY REASON OF ANY USE OF OR RELIANCE UPON THE CONFIDENTIAL INFORMATION.
13. Export of Technical Data. The Receiving Party shall not export, directly or indirectly, any technical data acquired pursuant to this Agreement or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining such license or approval.
14. Integration; Amendment; Additional Parties. This Agreement represents the entire understanding and agreement by and between the parties with respect to the subject matter hereof, and supersedes all other understandings and representations, if any, made by and among the parties. No modification or waiver of any of the terms of this Agreement will be effective unless made in writing and signed by all parties. In the event of any conflict between the terms of this Agreement and the terms of any user, click-through or other similar agreement with respect to any electronic, online or web-based data room established in connection with the Transaction, the terms of this Agreement shall prevail. This Agreement and any rights or obligations hereunder may not be assigned by any party without the prior written consent of the other party; provided, however, such assignment shall be permitted, without consent, (i) to an entity that acquires all or substantially all of a party’s assets, or (ii) to a successor to a party by merger, consolidation or operation of law.
15. Notices. Any communications or notices required or desired will be written and will be effective on the date delivered or the date on which delivery was refused.
16. Binding Effect. This Agreement will be binding upon and inure to the benefit of the parties, and to each party’s successors, assigns, and the employees, agents, officers, and directors of each such party. Disclosing Party will not export, directly or indirectly, any U.S. technical data acquired pursuant to this Agreement, or any products utilizing such data, in violation of United States laws or regulations.
17. Jurisdiction; Venue; Governing Law; Jury Waiver. The parties agree that the jurisdiction and venue of any action, proceeding, counterclaim, crossclaim, or other litigation relating to, involving, or resulting from the enforcement of this Agreement will be in the State courts and federal courts located in the State of California. This Agreement will be governed by, construed, and enforced in accordance with the law of the State of California. The parties waive any right to a trial by jury of any dispute arising out of this Agreement.
18. Survival. Each party’s obligations under this Agreement will commence on the Effective Date and continue and survive for all applicable statutes of limitations without any specific time limit. Notwithstanding any other provision of this Agreement to the contrary, this Agreement will be effective whether or not the Transaction or any actual agreed upon transaction between the parties, if applicable, is consummated or completed.
19. Severability. The validity or unenforceability of a particular provision of this Agreement will not affect the other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provisions were omitted. This Agreement will not be construed more strongly against any party regardless of who is responsible for its preparation.
Last Updated: November 15, 2024
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