LAST UPDATED MAY 15, 2023
Under this Non-Disclosure Agreement (the “Agreement”), ZIBRA AI INC. (“Zibra AI” or “we”) provides You with access to the Confidential Information to evaluate the Software and explore Your interest in purchasing the Software (the “Business Purpose”).
BY ACTIVATING A LICENSE KEY AND INSTALLING, ACCESSING, OR USING THE SOFTWARE, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT.
PLEASE READ THIS AGREEMENT CAREFULLY. IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU HAVE NO RIGHT TO ACCESS OR USE THE SOFTWARE.
You accept this Agreement on behalf of the company or other legal entity, and You warrant that You have the full legal authority to accept the terms and conditions of this Agreement on behalf of such company or other legal entity.
The capitalized terms which are not defined in this Agreement shall have the meaning assigned to them in the Trial License available at: https://zibra.ai/zibra-effects-business-trial-license
Zibra AI and You shall be collectively referred to as the “Parties” and each individually as the “Party”.
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 Zibra AI and information and physical material entrusted to Zibra AI in confidence by third parties. Confidential Information includes, without limitation:
a) technical data, trade secrets, know-how, research, product or service ideas or plans;
b)algorithms, source and object codes, designs, developments, inventions, and any other non-public information about the Software’s functionality and features;
c) patent applications, laboratory notebooks, processes, formulas, techniques, mask works, engineering designs and drawings, hardware configuration information;
d) agreements with third parties, lists of or information relating to employees and consultants of Zibra AI (including, but not limited to, the names, contact information, jobs, compensation, and expertise of such employees and consultants);
e) information about stockholders, and investors of Zibra AI, general information about the capitalization table of Zibra AI;
f) 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
j) other business information disclosed by Zibra AI (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.
You shall not use any Confidential Information disclosed to You by Zibra AI for Your own use or for any purpose other than the Business Purpose. You shall not disclose or permit disclosure of any Confidential Information of Zibra AI to third parties or to Your employees other than directors, officers, employees, consultants, and Your agents who are required to have the information to undertake the relationship with Zibra AI in connection with the Business Purpose (the “Representatives”). You shall take reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of Zibra AI 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 You utilize to protect Your own Confidential Information of a similar nature. You shall notify Zibra AI of any misuse, misappropriation, or unauthorized disclosure of Confidential Information of Zibra AI which may come to Your attention.
Notwithstanding the above, Your confidentiality undertakings contained in this Agreement shall not apply to the Confidential Information where You can prove that such information:
a) was in the public domain at the time it was disclosed or has entered the public domain through not Your fault;
b) was known to You, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure;
c) was independently developed by You without any use of the Confidential Information, as demonstrated by files created at the time of such independent development;
d) is disclosed with the prior written approval of Zibra AI; or
e) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that You shall provide prompt notice of such court order or requirement to Zibra AI to enable Zibra AI to seek a protective order or otherwise prevent or restrict such disclosure.
4. Disclosure to Representatives.
You may disclose the Confidential Information to Your Representatives provided that You:
a) inform those Representatives of the confidential nature of the Confidential Information before it is disclosed; and
b) procure that those Representatives comply with the confidentiality obligations provided in clause 2 as if they were You, and if Zibra AI so requests, procure that any of them enters into a confidentiality agreement with Zibra AI on terms equivalent to those contained in this Agreement.
5. Return or Destruction of Materials.
You shall, except as otherwise expressly authorized by Zibra AI, not make any copies or duplicates of any Confidential Information. Any materials or documents that have been furnished by Zibra AI to You, together with all copies of such documentation (if any), shall be promptly returned or destroyed by You within ten (10) days after the written request of Zibra AI.
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 Zibra AI, nor shall this Agreement grant You any rights in or to the 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 Zibra AI option. Nothing in this Agreement requires Zibra AI to proceed with any transaction in connection with which the Confidential Information may be disclosed.
7. No Representations Made.
You acknowledge that neither Zibra AI, 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 You assume full responsibility for all conclusions derived from such information. You 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.
You shall not modify, reverse engineer, decompile, create other works from or disassemble any software programs contained in the Confidential Information of Zibra AI unless permitted in writing by Zibra AI.
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 Zibra AI 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 You or any person to whom You or Your 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, You shall provide Zibra AI with prompt written notice so that Zibra AI may seek a protective order or another appropriate remedy, or both, or waive compliance with the provisions of this Agreement. In the event that Zibra AI is unable to obtain a protective order or another appropriate remedy, or if it so directs You, You shall furnish only that portion of the Confidential Information that You are 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.
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.
Each Party’s obligations set forth in this Agreement are necessary and reasonable in order to protect Zibra AI and its business. Due to the unique nature of the Zibra AI Confidential Information, monetary damages may be inadequate to compensate Zibra AI for any breach by You 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 Zibra AI and, in addition to any other remedies that may be available, in law, in equity or otherwise, Zibra AI shall be entitled to obtain injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by You.
You shall indemnify Zibra AI 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 Zibra AI arising out of or in connection with any breach of this Agreement by You, including as a result of the actions or omissions of any of its Representatives.
a) 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.
b) 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.
c) Amendments. ZIBRA AI RESERVES THE RIGHT TO CHANGE THIS AGREEMENT AT ANY TIME, IN ZIBRA AI SOLE DISCRETION AND WITHOUT PRIOR NOTICE TO YOU. PLEASE CHECK THE TERMS OF THIS AGREEMENT PERIODICALLY FOR CHANGES.
d) Assignment. This Agreement and Your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without the prior written consent of Zibra AI, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
e) Notices. Where Zibra AI requires that you provide an e-mail address, you are responsible for providing Zibra AI with your current e-mail address. If the last e-mail address you provided to Zibra AI is not valid or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Zibra AI’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Zibra AI at the address below. Such notice shall be deemed given when received by Zibra AI by letter delivered by a nationally recognized overnight delivery service or first-class postage prepaid mail at the above address.
f) Electronic Communications. The communications between you and Zibra AI may take place via electronic means, whether you visit the Service or send Zibra AI e-mails, or whether Zibra AI posts notices on the Service or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Zibra AI in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Zibra AI provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing.
g) 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.