THIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”) is made and entered into as of the contract date (the “Effective Date”), by and between HabitHalo LLC, an Indiana limited liability company, having its principal place of business at 1220 Waterway Blvd., HqO Building – Suite H108, Indianapolis, IN 46202 (hereinafter referred to as the “Company”), and your Organization, listed above, having its principal place of business at the address listed above (hereinafter referred to as the “Other Party”), and describes the rights and obligations of each Party hereto with respect to certain information disclosed and to be disclosed by each Party to the other regarding the Opportunity (as defined herein).
The Company and the Other Party wish to explore a business opportunity of mutual interest (the “Opportunity”) to the Company, and in connection with the Opportunity, the Company may disclose to the Other Party business, technical or other information about the Company that the Company desires the Other Party to treat as confidential. Individually, the Company and the Other Party shall be known as a “Party” and, collectively, shall be known as the “Parties”.
1. Purpose. In connection with the Opportunity, each Party and its Representatives (defined below) may disclose to the other Party confidential technical and business information that the disclosing Party desires the receiving Party to treat as confidential.
2. “Confidential Information” means
(a) any information disclosed by either Party to the other Party, either directly or indirectly (including through their respective Representatives), at any time before or after the date of this Agreement, relating to a Party or any of its affiliates (including, in the case of the Company) or their respective businesses or activities including, without limitation, products, services, processes, data, customers, business plans, prices, financial analysis, forecasts, technology, hardware, software, source code, design documents, formulas, algorithms, know how, ideas, trade secrets, inventions, market information, research, promotional and marketing plans, or any other information which is designated as “confidential,” “proprietary”, some similar designation or if the information does not bear any such designation, if the receiving Party knew, or reasonably should have known under the circumstances, that the information was confidential and had been communicated to it in confidence (collectively, the “Disclosed Materials”),
(b) reports, interpretations, forecasts, analyses, compilations, studies, notes and other documents prepared by or for the receiving Party or any of its Representatives that contain or reflect or are otherwise generated from (whether in whole or in part) the Disclosed Materials, and
(c) the existence and terms of this Agreement and the nature, content, existence or termination of discussions or negotiations between the Parties relating to the Opportunity. No formal identification of materials or other information as Confidential Information will be required.
Without limiting the generality of the foregoing, Confidential Information may take the form of documentation, drawings, specifications, software, technical or engineering data and other forms, and may be communicated orally, in writing, by electronic or magnetic means or media, by visual observation and by other means. Confidential Information may also include information of third parties that is in the possession of one of the Parties and is disclosed to the other Party under this Agreement.
Confidential Information shall not, however, include any information that the receiving Party can demonstrate that it
(i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing Party;
(ii) has become publicly known and made generally available after disclosure by the disclosing Party to the receiving Party through no action or inaction of the receiving Party;
(iii) was already in 1 the possession of the receiving Party at the time of disclosure by the disclosing Party as shown by the receiving Party’s files and records immediately prior to the time of disclosure;
(iv) was obtained by the receiving Party from a third party lawfully in possession of such information and without a breach of such third party’s obligations of confidentiality; or
(v) was independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information, as shown by documents and other competent evidence in the receiving Party’s possession.
3. Non-use and Non-disclosure. Each Party agrees not to use any Confidential Information of the other Party for any purpose except to evaluate and engage in discussions concerning the Opportunity. Each Party agrees not to disclose any Confidential Information of the other Party, except that, subject to Section 4 below, a receiving Party may disclose the other Party’s Confidential Information to those employees, officers, directors, consultants, auditors or professional advisers of the receiving Party or of any of its affiliates, including, with respect to the Company,(the “Representatives”), who are required to have the information in order to evaluate or engage in discussions concerning the Opportunity. If a receiving Party is required by law to make any disclosure that is prohibited or otherwise constrained by this Agreement, the receiving Party will provide the disclosing Party with prompt written notice of such requirement (if not prohibited by law) so that the disclosing Party may seek a protective order or other appropriate relief. Subject to the foregoing sentence, such receiving Party may furnish that portion (and only that portion) of the Confidential Information that the receiving Party is legally compelled or is otherwise legally required to disclose; provided, however, that the receiving Party provides such assistance as the disclosing Party may reasonably request in obtaining such order or other relief. Neither Party shall reverse engineer, disassemble, create other works from, or decompile any prototypes, software or other tangible objects that embody the other Party’s Confidential Information and that are provided to a Party under this Agreement.
4. Maintenance of Confidentiality. Each Party agrees that it shall take reasonable measures to protect 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 confidential information of a similar nature, but in no case less than reasonable care (including, without limitation, all precautions the receiving Party employs with respect to its confidential materials). Each Party shall ensure that the Representatives who have access to the other Party’s Confidential Information under Section 3 above are legally or contractually obligated not to disclose such Confidential Information and each Party shall be responsible for any breach of this Agreement by any such person. Each Party shall reproduce the other Party’s proprietary rights notices on any such authorized copies, in the same way such notices were set forth in or on the original. A Party receiving Confidential Information shall promptly notify the Party disclosing such Confidential Information of any use or disclosure of such Confidential Information in violation of this Agreement of which the receiving Party becomes aware and shall use reasonable efforts to retrieve the wrongfully disclosed Confidential Information.
5. No Obligation. Nothing in this Agreement shall obligate either Party to proceed with any transaction between them, and each Party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement concerning the Opportunity. 2
6. No Warranty. All confidential information is provided “as is.” Each Party makes no warranties, express, implied or otherwise, regarding the accuracy and completeness of the Confidential Information.
7. Return of Materials. All documents and other tangible objects containing or representing Confidential Information that have been disclosed by either Party to the other Party, directly and indirectly, and all copies or extracts thereof that are in the possession of the other Party, shall be and remain the property of the disclosing Party. The receiving Party will return or destroy (at the disclosing Party’s option) all such Confidential Information, and destroy all summaries, copies and excerpts of Confidential Information and any electronic and/or other records prepared by the receiving Party or its Representatives that contain or are derived from Confidential Information, promptly following the disclosing Party’s written request; and if so requested in writing by the disclosing Party, the receiving Party must certify to the disclosing Party that the destruction has been completed in accordance with the terms of this Agreement. For Confidential Information retained on a computer or other electronic, digital or machine-readable device, “destroy” means delete or take steps to ensure that the Confidential Information is not accessed or recovered. The receiving Party is permitted to retain copies of the Confidential Information necessary to comply with any applicable law, regulation, professional standards, internal policy or with any requirement from any competent judicial, governmental, supervisory or regulatory body; provided however, that any retained Confidential Information remains subject to the terms of this Agreement while it is retained by the receiving Party, including after termination of this Agreement.
8. No License. Nothing in this Agreement is intended to grant any rights to either Party under any patent, mask work right, copyright, trade secret or other intellectual property right of the other Party, nor shall this Agreement grant any Party any rights in or to the other Party’s Confidential Information, and the receiving Party shall not, nor shall any persons on its behalf, apply for any patent, or registration of any trademark or design or any other intellectual property right, in respect of the Confidential Information of the disclosing Party or any part thereof.
9. Term. Unless terminated earlier by mutual agreement between the Parties, this Agreement remains in full force and effect until the third anniversary of the Effective Date of this Agreement.
10. Availability of Equitable Relief. Each Party understands and agrees that its breach or threatened breach of this Agreement may cause irreparable injury to the other Party and that money damages may not provide an adequate remedy for such breach or threatened breach, and both Parties hereby agree that, in the event of such a breach or threatened breach, the non-breaching Party will also be entitled, without proof of special damages, to equitable relief, including injunctive relief and specific performance. The Parties’ rights under this Agreement are cumulative, and a Party’s exercise of one right shall not waive the Party’s right to assert any other legal remedy.
11. Processing of Personal Data. The Parties acknowledge and agree that any Confidential Information discussed and disclosed under this Agreement shall not require any processing of Personal Data except the one regarding the continuity of the commercial relationship between the Parties. 3
12. Severability. If any provision of this Agreement is found to be illegal or unenforceable, the other provisions shall remain effective and enforceable to the greatest extent permitted by law.
13. Governing Law & Jurisdiction. This Agreement shall be governed by the laws of the State of Indiana excluding any conflict of law rules or principle, national, or international. Any dispute relating to this Agreement, resulting from its signature, its performance, its interpretation, its termination or its validity, and having been submitted to an attempt at amicable solution which did not produce a solution, will be subject to the competent courts of Indiana (United States), notwithstanding a plurality of defendants.
14. Miscellaneous. This Agreement constitutes the entire agreement between the Parties with respect to the Opportunity and supersedes all prior written and oral agreements between the Parties regarding the subject matter of this Agreement, and neither Party shall have any obligation, express or implied by law, except as set forth in this Agreement. No provision of this Agreement may be waived except by a written agreement executed by the Party against whom the waiver is to be effective. A Party’s failure to enforce any provision of this Agreement shall neither be construed as a waiver of the provision nor prevent the Party from enforcing any other provision of this Agreement. No provision of this Agreement may be amended or otherwise modified except by a written document signed by a duly authorized representative of each Party to this Agreement. This Agreement shall benefit and bind the Parties and their respective successors, heirs, legal representatives and permitted assigns.
15. Signature. The Parties may sign this Mutual Non-Disclosure Agreement by using an electronic signature. The Parties acknowledge that the electronic signature expresses their consent to be legally bound by this Agreement and to serve as evidence on the same account as a hand-signed paper document. (signature page follows) 4 IN WITNESS WHEREOF, the Parties, by their duly authorized representatives, have executed this Agreement to be effective as of the Effective Date.
