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Non Disclosure Agreement (NDA)
This Agreement (this “Agreement”) is made and entered into by and between WARUBI Sports LLC, Athletes USA LLC, and the Scout.
1. Definition of Confidential Information.
“Confidential Information” as used in this Agreement shall mean any and all technical and non-technical information that is transmitted or otherwise provided by or on behalf of a party, in any form, whether in writing, orally or visually, whether or not tangible, either before, on or after the date hereof, including, but not limited to: patent, copyright, trade secret, and proprietary information, database information, college recruitment techniques, ‘other’ techniques, sketches, drawings, models, inventions, know-how, processes, apparatus, equipment, algorithms, software programs, software source documents, and formulae related to the current, future and proposed products and services of each of the parties, and includes, without limitation, each party’s respective information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising, and marketing plans and information. “Confidential Information” also includes proprietary or confidential information of any third party who may disclose such information to either party in the course of the other party’s business.
2. Nondisclosure and Nonuse Obligations.
Each undersigned party (the “Recipient”) understands that the other party (the “Discloser”) has disclosed or may disclose Confidential Information to the Recipient. Each of the parties, as Recipient, agrees that such Recipient will not use, di sseminate, or in any way disclose any Confidential Information of the other party, as Discloser, to any person, firm or business, except to the extent necessary for internal evaluations in connection with negotiations, discussions, and consultations with personnel or authorized representatives of such Discloser, and for any other purpose such Discloser may hereafter authorize in writing. Furthermore, the existence of any business negotiations, discussions, consultations or agreements in progress between the parties shall not be released to any form of public media without written approval of both parties. Each of the parties, as Recipient, agrees that such Recipient shall treat all Confidential Information of the other party, as Discloser, with the same degree of care as such Recipient accords to such Recipient’s own similar Confidential Information, but in no case less than reasonable care. Each of the parties, as Recipient, which is not an individual agrees that such Recipient shall disclose Confidential Information of the other party, as Discloser, only to those of such Recipient’s employees who need to know such information, and such Recipient certifies that such Recipient employees have previously agreed, either as a condition to employment or in order to obtain the Confidential Information of the Discloser, to be bound by terms and conditions substantially similar to those terms and conditions applicable to such Recipient under this Agreement. Each of the parties, as Recipient, shall immediately give notice to the other party, as Discloser, of any unauthorized use or disclosure of Discloser’s Confidential Information. Each of the parties, as Recipient, agrees to assist the other party, as Discloser, in remedying any such unauthorized use or disclosure of Discloser’s Confidential Information.
3. Exclusions from Nondisclosure and Nonuse Obligations.
The obligations under Paragraph 2 (“Nondisclosure and Nonuse Obligations”) of each of the parties, as Recipient, with respect to any portion of the Confidential Information of the other party, as Discloser, shall not apply to such portion that such Recipient can document: (a) was in the public domain at or subsequent to the time such portion was communicated to such Recipient by such Discloser through no fault of such Recipient, (b) was rightfully in such Recipient’s possession free of any obligation of confidence at or subsequent to the time such portion was communicated to such Recipient by such Discloser, or (c) was developed by employees or agents of such Recipient independently of and without reference to any information communicated to such Recipient by such Discloser. For purposes of clause (a) of the foregoing sentence,
“public domain” shall mean information that is reasonably accessible to the public in a written publication, and shall not include information which is only available by a substantial searching of the published literature or information the substance of which must be pieced together with substantial effort from a number of different publications and sources.
4. Ownership and Return of Confidential Information and Other Materials.
All Confidential Information of each of the parties, as Discloser, and any derivatives thereof whether created by such Discloser or the other party, as Recipient, shall remain the property of Discloser, and no license or other rights to such Discloser’s Confidential Information or derivatives is granted or implied hereby. At such Discloser’s request and no later than five (5) days after such request, such Recipient shall promptly destroy or deliver to such Discloser, at such Discloser’s option, (a) all materials furnished to such Recipient by such Discloser, (b) all tangible media of expression in such Recipient’s possession or control to the extent that such tangible media incorporate any of such Discloser’s Confidential Information, and (c) written certification of such Recipient’s compliance with such Recipient’s obligations under this sentence.
5. Disclosure of Third Party Information.
Neither party shall communicate any information to the other in violation of the proprietary rights of any third party.
6. No Assignment.
Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld; provided, however, that either party may, without the consent of the other party, assign this Agreement to an entity that acquires all or substantially all of its business or assets through merger, reorganization or otherwise.
7. Notices.
Any notices required or permitted by this Agreement shall be in writing and shall be delivered as follows, with notice deemed given as indicated: (a) by personal delivery, when delivered personally; (b) by overnight courier, upon written verification of receipt; (c) by facsimile transmission, upon acknowledgment of receipt of electronic transmission; or (d) by certified or registered mail, return receipt requested, upon verification of receipt. Notice shall be sent to the addresses set forth above or to such other address as either party may specify in writing.
8. Severability; Waiver; Amendment.
If any provision of this Agreement is held by a court of law to be illegal, invalid or unenforceable, (i) that provision shall be deemed amended to achieve as nearly as possible the same economic effect as the original provision, and (ii) the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby.
No term or provision hereof will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed by the party against whom such waiver or consent is asserted. The waiver by either party of, or consent of either party to, a breach of any provision of this Agreement by the other party shall not operate or be construed as a waiver of, consent to, or excuse of any other or subsequent breach by the other party. This Agreement may be amended or modified only by mutual agreement of authorized representatives of the parties in writing.
9. Injunctive Relief.
Recipient agrees that its obligations hereunder are necessary and reasonable in order to protect Discloser and its business, and expressly agrees that monetary damages would be inadequate to compensate Discloser for any breach of any covenant or agreement set forth herein. Accordingly, Recipient agrees and acknowledges that any such violation or threatened violation will cause irreparable injury to Discloser and that, in addition to any other remedies that may be available, in law, in equity or otherwise, Discloser shall be entitled to obtain injunctive relief (without the need to post bond or other security) against the threatened breach of this Agreement or the continuation of any such breach, without the necessity of proving actual damages.
10. Entire Agreement and Survival of Terms.
This Agreement constitutes the entire agreement with respect to the Confidential Information disclosed hereunder and supersedes all prior or contemporaneous oral or written agreements concerning such Confidential Information. This Agreement shall survive any termination of negotiations, discussions or consultations between the parties and shall continue for 24 months.
11. Governing Law and Jurisdiction.
This Agreement shall be governed by and construed in accordance with the laws of the United States of America, state of Florida. (without regard to principles of conflicts of laws). The parties agree that any dispute regarding the interpretation or validity of, or otherwise arising out of this Agreement, shall be subject to the exclusive jurisdiction of the courts of Palm Beach, Florida, United States of America.