This Non-Disclosure Agreement (this “Agreement”), dated and effective as of today, is entered into by and between PickFitUSA, LLC (the “Company”) and the signatory of this form (the “Recipient”) (each herein referred to individually as a “Party,” or collectively as the “Parties”). In consideration of the covenants and conditions contained herein, the Parties hereby agree to the following:
The Parties wish to explore a business opportunity of mutual interest (the “Opportunity”), and in connection with the Opportunity, the Company has disclosed, and may further disclose, certain confidential technical and business information to Recipient that the Company desires Recipient to treat as confidential.
(a) Definition. “Confidential Information” means any information (including any and all combinations of individual items of information) disclosed by the Company to Recipient, directly or indirectly, including any information disclosed prior to the Effective Date, including, without limitation, research, product plans, products, services, equipment, customers, markets, software, inventions, discoveries, ideas, processes, designs, drawings, hardware, formulations, specifications, product configuration information, marketing and finance documents, prototypes, samples, data sets, and equipment, whether disclosed in writing, orally or by inspection of tangible objects and whether or not designated as “confidential” at the time of disclosure. Information of a third party that is in the Company’s possession and is disclosed to Recipient under this Agreement also constitutes Confidential Information.
(b) Exceptions. Confidential Information shall not, however, include any information that Recipient can establish: (i)was publicly known or made generally available without a duty of confidentiality prior to the time of disclosure to Recipient by the Company; (ii)becomes publicly known or made generally available without a duty of confidentiality after disclosure to Recipient by the Company through no action or inaction of Recipient; (iii)is in the rightful possession of Recipient without confidentiality obligations at the time of disclosure by the Company to Recipient as shown by Recipient’s then-contemporaneous written files and records kept in the ordinary course of business; (iv)is obtained by Recipient from a third party without an accompanying duty of confidentiality and without a breach of such third party’s obligations of confidentiality; or (v)is independently developed by Recipient without use of or reference to the Company’s Confidential Information, as shown by written records and other competent evidence prepared contemporaneously with such independent development; provided that any combination of individual items of information shall not be deemed to be within any of the foregoing exceptions merely because one or more of the individual items are within such exception, unless the combination as a whole is within such exception.
(c) Compelled Disclosure. If Recipient becomes legally compelled to disclose any Confidential Information, other than pursuant to a confidentiality agreement, Recipient will provide the Company prompt written notice of such required disclosure and will use its best efforts to assist the Company in seeking a protective order or another appropriate remedy. If the Company waives Recipient’s compliance with this Agreement or fails to obtain a protective order or other appropriate remedy, Recipient will furnish only that portion of the Confidential Information that is legally required to be disclosed; provided that any Confidential Information so disclosed shall maintain its confidentiality protection for all purposes other than such legally compelled disclosure.
Non-use and Non-disclosure
Recipient shall not use any Confidential Information for any purpose except to evaluate and engage in discussions concerning the Opportunity. Recipient shall not disclose any Confidential Information or permit any Confidential Information to be disclosed, either directly or indirectly, to any third party without the Company’s prior written consent; provided, however, that Recipient may disclose Confidential Information to Recipient’s employees who are required to have such information in order to evaluate or engage in discussions concerning the Opportunity, provided that any such employee is bound by or has signed a non-use and non-disclosure agreement with Recipient in content at least as protective as the provisions hereof prior to any disclosure of Confidential Information to such employee. Recipient shall not reverse engineer, disassemble, or decompile any prototypes, software, samples, or other tangible objects that embody Confidential Information.
Maintenance of Confidentiality
Recipient shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the foregoing, Recipient shall take at least those measures it employs to protect its own most highly confidential information. Recipient shall reproduce the Company’s proprietary rights notices on any copies of Confidential Information in the same manner in which such notices were set forth in or on the original. Recipient shall immediately notify the Company of any unauthorized use or disclosure, or suspected unauthorized use or disclosure, of Confidential Information of which Recipient becomes aware.
Further, as provided by the Defend Trade Secrets Act, 18 U.S.C. §1833(b) (the “DTSA”), you are advised that it is not a violation of this provision specifically or this overall Agreement and you will not be held criminally or civilly liable under any Federal or state trade secret law (including under the DTSA) if you disclose trade secret information (1) in confidence to a Federal, state, or local government official, either directly or indirectly, or attorney solely for the purpose of reporting or investigating suspected violation of law; or (2) in a complaint or other document filed under seal in a lawsuit or other proceeding. In the event you file a lawsuit for retaliation by the Company for reporting a suspected violation of law, you may disclose the trade secret to your attorney and use the trade secret information in the court proceeding, provided you file any document containing the trade secret under seal and do not disclose the trade secret, except pursuant to court order.
Nothing in this Agreement shall obligate either Party to proceed with the Opportunity, any business relationship or 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. Nothing in this Agreement shall be construed to restrict the Company’s use or disclosure of its own Confidential Information.
The Company does not wish to receive any confidential information from Recipient, and the Company assumes no obligation, either expressed or implied, with respect to any information disclosed by Recipient to the Company.
ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS.” COMPANY MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING THE ACCURACY, COMPLETENESS OR PERFORMANCE OF ANY CONFIDENTIAL INFORMATION, OR WITH RESPECT TO NON-INFRINGEMENT OR OTHER VIOLATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY OR OF RECIPIENT.
Return of Materials
All documents and other tangible objects containing or representing Confidential Information and all copies or extracts thereof or notes derived therefrom that are in the possession or control of Recipient shall be and remain the property of the Company and shall be promptly returned to the Company or destroyed (with proof of such destruction), upon the Company’s request.
Nothing in this Agreement is intended to grant any rights to Recipient under any patent, mask work, copyright or other intellectual property right of the Company, nor shall this Agreement grant Recipient any rights in or to any Confidential Information except as expressly set forth in this Agreement.
The obligations of Recipient under this Agreement shall survive until such time as all Confidential Information disclosed hereunder becomes publically known or made generally available through no action or inaction of Recipient.
Recipient agrees that any violation or threatened violation of this Agreement will cause irreparable injury to the Company, entitling the Company to obtain injunctive relief in addition to all available legal remedies without showing or proving any actual damage and without any bond being required to be posted.<
Any ideas, suggestions, guidance or other information disclosed by Recipient related to the Confidential Information and any intellectual property rights relating to the foregoing shall be collectively deemed “Feedback.” The Company shall own all Feedback, and Recipient agrees to assign and hereby assigns to Company all of its right, title, and interest in and to such Feedback. To the extent that the foregoing assignment is ineffective for whatever reason, Recipient agrees to grant and hereby grants to the Company a non-exclusive, perpetual, irrevocable, royalty free, worldwide license (with the right to grant and authorize sublicenses) to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform and otherwise exploit such Feedback without restriction.
This Agreement shall bind and inure to the benefit of the Parties and their respective successors and permitted assigns; provided, however, that Recipient may not assign or otherwise transfer this Agreement, by operation of law or otherwise (including by merger, reorganization, consolidation, change of control, or sale of all or substantially all of Recipient’s assets to which this Agreement pertains), without the prior written consent of the Company. Any assignment or transfer of this Agreement in violation of the foregoing shall be null and void.
No provision of this Agreement may be amended or otherwise modified except by a writing signed by the Parties to this Agreement. No provision of this Agreement may be waived except by a writing 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 such Party from enforcing any other provision of this Agreement. Each Party hereby represents and warrants that the persons executing this Agreement on its behalf have express authority to do so, and, in so doing, to bind such Party thereto.
This Agreement will be interpreted and construed in accordance with the laws of the State of Texas, without regard to conflict of law principles. All disputes arising out of this Agreement will be subject to the exclusive jurisdiction and venue of the state and federal courts located in Travis County, Texas, and each Party hereby consents to the personal jurisdiction thereof.
This Agreement contains the entire agreement between the Parties with respect to the Opportunity and supersedes all prior written and oral agreements between the Parties regarding the Opportunity. If a court or other body of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be invalid or unenforceable, such provision will be enforced to the maximum extent permissible so as to effect the intent of the Parties, and the remainder of this Agreement will continue in full force and effect.
The Parties may execute this Agreement in counterparts, each of which shall be deemed an original, but all of which together constitute one and the same agreement. This Agreement may be delivered by facsimile, electronic means or .pdf, and any facsimile or .pdf copies of executed signature pages shall be binding as originals.
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IN WITNESS WHEREOF, the Parties by their duly authorized representatives have executed this Non-Disclosure Agreement as of the Effective Date.
NOTICE TO RECIPIENTS:
THIS CONFIDENTIAL INVESTOR PRESENTATION DOES NOT CONSTITUTE AN OFFER TO BUY OR SELL SECURITIES. THIS DOCUMENT IS CONFIDENTIAL AND THE INFORMATION CONTAINED HEREIN MAY NOT BE SHARED WITHOUT THE CONSENT OF PICKFIT USA, LLC (THE “COMPANY”).
The financial, business and other information included in this Investor Presentation has been prepared by the Company solely for informational purposes and does not constitute an offer or a solicitation of the sale of any securities.
This Investor Presentation has been prepared from information, estimates and assumptions provided by management and other sources believed to be reliable. The recipient expressly understands and agrees that any estimates, projections and assumptions are uncertain and accordingly, no representation can be made as to their attainability. Actual results could differ materially from these estimates, projections and assumptions. The contents of this Investor Presentation have not been independently verified by the Company, and the Company and its affiliates, employees and representatives expressly disclaim any and all liability relating to or resulting from the use of the Investor Presentation, or such other information as may be provided, whether communicated in oral or written form, to a potential investor or any of its affiliates or representatives. Nothing contained in this Investor Presentation is, or shall be relied upon, as a promise or representation by the Company as to either past or future performance by the Company. Neither the Company nor any officer or employee of the Company make any representation or warranty as to the accuracy or completeness of the information contained in this Investor Presentation or made available in connection with any further investigation of the Company, including any estimates or projections, and none of them shall have any liability for any representations (expressed or implied) contained in, or for any omissions from, the projections or any other written or oral communications transmitted to the recipient hereof in the course of its evaluation of the Company, nor should anything contained herein be relied upon as a promise or representation regarding future events or performance. Only those representations and warranties made in a definitive, written purchase agreement, and subject to such limitations and restrictions as may be specified therein, shall have any legal effect.
Some of the statements in this Investor Presentation constitute forward-looking statements. Forward-looking statements relate to expectations, beliefs, projections, future plans and strategies, anticipated events or trends and similar expressions concerning matters that are not historical facts. The forward-looking statements are based on our beliefs, assumptions and expectations of future performance, taking into account all information currently available to us. These beliefs, assumptions and expectations can change as a result of many possible events or factors, not all of which are known to us or are within our control. If a change occurs, our business, financial condition, liquidity and results of operations may vary materially from those expressed in our forward-looking statements. An investment in the Company involves a high degree of risk and should be considered only by persons who can afford to sustain a total loss of their investment. You should carefully consider these risks before you make an investment decision.