LAST UPDATED MAY 25, 2023
Under this Non-Disclosure Agreement (the “Agreement”), Zibra AI (the “Discloser”) provides the Client (the “Recipient”) with access to the Confidential Information to explore potential business opportunities concerning the Client’s interest in purchasing the Software (the “Business Purpose”).
This Agreement takes effect upon the date of the Client’s signature of a Purchase Order (the “Effective Date”) and shall apply to any further Purchase Order(s) between such a Client and Zibra AI unless the Parties agree to be bound by another agreement separately.
By accepting and signing the Purchase Order, the Client is indicating that the Client has read, understood, and agreed to be bound by this Agreement.
An individual who accepts the Agreement represents and warrants to Zibra AI that such an individual is at least 18 years old. An individual who accepts the Agreement on behalf of the legal entity represents that such an individual is authorized to enter into this Agreement on behalf of such legal entity.Capitalized terms have the meanings given under “Definitions”.
Zibra AI and the Client shall be collectively referred to as the “Parties” and each individually as the “Party”.
Agreement
In consideration of the premises and mutual covenants contained in this Agreement, the Parties agree as follows:
1. Confidential Information.
In this Agreement, the “Confidential Information” shall mean information and physical material not generally known to the public or available outside the Discloser and information and physical material entrusted to the Discloser in confidence by third parties. Confidential Information includes, without limitation:
technical data, trade secrets, know-how, research, product or service ideas or plans;
algorithms, source and object codes, designs, developments, inventions, and any other non-public information about the Software’s functionality and features;
patent applications, laboratory notebooks, processes, formulas, techniques, mask works, engineering designs and drawings, hardware configuration information;
terms, provisions, and details of the License and Services Agreement and the Purchase Order(s);
agreements with third parties, lists of or information relating to employees and consultants of the Discloser (including, but not limited to, the names, contact information, jobs, compensation, and expertise of such employees and consultants);
information about stockholders, and investors of the Discloser, general information about the capitalization table of the Discloser;
lists of or information relating to suppliers, customers, and users, price lists, pricing methodologies, cost data, market share data, marketing plans, licenses, contact information, business plans, financial forecasts, historical financial data, budgets; or
other business information disclosed by the Disclosure (whether by oral, written, graphic or machine-readable format), or any other information which would, under the circumstances, appear to a reasonable person to be confidential or proprietary.
2. Nondisclosure of Confidential Information.
The Recipient shall not use any Confidential Information disclosed to it by the Discloser for its own use or for any purpose other than the Business Purpose. The Recipient shall not disclose or permit disclosure of any Confidential Information of Discloser to third parties or to employees of the Recipient other than directors, officers, employees, consultants, and agents of the Recipient who are required to have the information to undertake the relationship with the Discloser in connection with the Business Purpose (the “Representatives”). The Recipient shall take reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of Discloser in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized under this Agreement to have any such information. Such measures shall include the degree of care that the Recipient utilizes to protect its own Confidential Information of a similar nature. Recipient shall notify Discloser of any misuse, misappropriation, or unauthorized disclosure of Confidential Information of Discloser which may come to Recipient’s attention.
3 Exceptions.
Notwithstanding the above, the Recipient’s confidentiality undertakings contained in this Agreement shall not apply to the Confidential Information where the Recipient can prove that such information:
was in the public domain at the time it was disclosed or has entered the public domain through no fault of the Recipient;
was known to the Recipient, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure;
was independently developed by the Recipient without any use of the Confidential Information, as demonstrated by files created at the time of such independent development;
is disclosed with the prior written approval of the Discloser; or
is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that the Recipient shall provide prompt notice of such court order or requirement to the Discloser to enable the Discloser to seek a protective order or otherwise prevent or restrict such disclosure.
4. Disclosure to Representatives.
The Recipient may disclose the Confidential Information to its Representatives provided that it:
informs those Representatives of the confidential nature of the Confidential Information before it is disclosed; and
procures that those Representatives comply with the confidentiality obligations provided in clause 2 as if they were the Recipient and if the Discloser so requests, procure that any of them enters into a confidentiality agreement with the Discloser on terms equivalent to those contained in this Agreement.
5. Return or Destruction of Materials.
The Recipient shall, except as otherwise expressly authorized by the Discloser, not make any copies or duplicates of any Confidential Information. Any materials or documents that have been furnished by the Discloser to the Recipient, together with all copies of such documentation (if any), shall be promptly returned or destroyed by the Recipient within ten (10) days after the written request of the Discloser.
6. No Rights Granted.
Nothing in this Agreement shall be construed as granting any rights under any patent, copyright, or other intellectual property rights of the Discloser, nor shall this Agreement grant the Recipient any rights in or to the Discloser’s Confidential Information other than the limited right to review such Confidential Information solely for the Business Purpose. Nothing in this Agreement requires the disclosure of any Confidential Information, which shall be disclosed, if at all, solely at the Discloser’s option. Nothing in this Agreement requires the Discloser to proceed with any transaction in connection with which the Confidential Information may be disclosed.
7. No Representations Made.
The Recipient acknowledges that neither Discloser, nor any of its representatives, in the course of providing the Confidential Information as contemplated under this Agreement, is making any representation or warranty (express or implied) as to the accuracy or completeness of any such information, and the Recipient assumes full responsibility for all conclusions derived from such information. The Recipient shall be entitled to, and shall, rely solely on representations and warranties made in a definitive agreement, if any, relating to the Business Purpose.
8. No Reverse Engineering.
The Recipient shall not modify, reverse engineer, decompile, create other works from or disassemble any software programs contained in the Confidential Information of the Discloser unless permitted in writing by the Discloser.
9. No Publicity.
Neither Party shall, without the prior consent of the other party, disclose to any other person the fact that the Confidential Information of the Discloser has been and/or may be disclosed under this Agreement, that discussions or negotiations are taking place between the Parties, or any of the terms, conditions, status or other facts with respect thereto, except as required by law and then only with prior notice as soon as possible to the other Party.
10. Notice of Compelled Disclosure.
In the event that the Recipient or any person to whom the Recipient or its representatives transmit or have transmitted the Confidential Information becomes legally compelled (by oral questions, interrogatories, requests for information or documents, subpoenas, civil investigative demands or otherwise) to disclose any such Confidential Information, the Recipient shall provide the Discloser with prompt written notice so that the Discloser may seek a protective order or other appropriate remedy, or both, or waive compliance with the provisions of this Agreement. In the event that the Discloser is unable to obtain a protective order or other appropriate remedy, or if it so directs the Recipient, the Recipient shall furnish only that portion of the Confidential Information that the Recipient is advised by written opinion of its counsel is legally required to be furnished by it and shall exercise its reasonable best efforts to obtain reliable assurance that confidential treatment shall be accorded such Confidential Information.
11. Term.
The obligations of the Parties under this Agreement shall survive any termination of this Agreement or relationship between the Parties and shall continue perpetually.
12. Independent Contractors.
The Parties are independent contractors, and nothing contained in this Agreement shall be construed to constitute the parties as partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking.
13. Remedies.
Each Party’s obligations set forth in this Agreement are necessary and reasonable in order to protect the Discloser and its business. Due to the unique nature of the Discloser’s Confidential Information, monetary damages may be inadequate to compensate Discloser for any breach by the Recipient of its covenants and agreements set forth in this Agreement. Accordingly, the Parties each agree and acknowledge that any such violation or threatened violation may cause irreparable injury to the Discloser and, in addition to any other remedies that may be available, in law, in equity or otherwise, the Discloser shall be entitled to obtain injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by the Recipient.
14. Indemnity.
The Recipient shall indemnify the Discloser against all liabilities, costs, expenses, damages, and losses (including any direct losses, interest, and penalties, indirect or consequential losses, loss of profit, and loss of reputation) suffered and incurred by the Discloser arising out of or in connection with any breach of this Agreement by the Recipient, including as a result of the actions or omissions of any of its Representatives.
15. Miscellaneous.
Governing Law; Jurisdiction. The validity, interpretation, construction and performance of this Agreement, and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the state of Delaware, without giving effect to principles of conflicts of law. Each of the Parties consents to the exclusive jurisdiction and venue of the state courts of Delaware or the United States District Court for the District of Delaware.
Entire Agreement. This Agreement sets forth the entire agreement and understanding of the Parties relating to its subject matter and supersedes all prior or contemporaneous discussions, understandings and agreements, whether oral or written, between them relating to its subject matter.
Amendments and Waivers. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by the Parties. No delay or failure to require the performance of any provision of this Agreement shall constitute a waiver of that provision as to that or any other instance.
Successors and Assigns. Except as otherwise provided in this Agreement, this Agreement, and the rights and obligations of the parties under this Agreement, will be binding upon and inure to the benefit of their respective successors, assigns, heirs, executors, administrators, and legal representatives. The Discloser may assign any of its rights and obligations under this Agreement. No other party to this Agreement may assign, whether voluntarily or by operation of law, any of its rights and obligations under this Agreement, except with the prior written consent of the Discloser. Notwithstanding the foregoing, Confidential Information of the Discloser may not be assigned without the prior written consent of the Discloser, unless the assignee shall be the successor entity to the assignor upon the dissolution of the assignor in its present form.
Notices. Any notice, demand or request required or permitted to be given under this Agreement shall be in writing and shall be deemed sufficient when delivered personally, or by the courier service, or sent by email, or 48 hours after being deposited in the U.S. mail as certified or registered mail with postage prepaid, addressed to the party to be notified at such party’s address as set forth on the signature page, as subsequently modified by written notice, or if no address is specified on the signature page, at the most recent address set forth in the Company’s books and records.
Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the Parties agree to renegotiate such provision in good faith. In the event that the Parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded from this Agreement, (ii) the balance of the Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of the Agreement shall be enforceable in accordance with its terms.
Construction. This Agreement is the result of negotiations between and has been reviewed by each of the Parties and their respective counsel, if any; accordingly, this Agreement shall be deemed to be the product of all of the Parties, and no ambiguity shall be construed in favor of or against any one of the Parties.
Electronic Form, Notices, and Communication. Parties agree that “in writing” shall include documents executed in electronic form. This Agreement, notice(s), report(s), and other documents referred to in the Agreement, when issued and signed in electronic form (including via exchange of signed scanned copies by e-mail, via DocuSign, EverSign, or other reputable e-signature providers), shall be valid and binding. Unless otherwise specified in the Agreement, all notices and other communications required or permitted under this Agreement shall be deemed to have been given when hand-delivered, sent by facsimile, mailed by registered/certified mail, or sent via Emails of the Parties (“Authorized Means of Communications”).
[End of The Agreement]
