This Non-Disclosure Agreement (the "NDA") between Second Nature Brands, Inc. (“Second Nature”), and you, the Voluntary Participant (“Participant” or “you” or “your”), both referred to herein individually as a “Party” or collectively as “Parties”.
- Purpose. You are volunteering to participate in a research study, and as a requirement to your participation in this study, you must provide your consent to waive any and all interests you may have now, or in the future, in the information you provide Second Nature as part of this research study in order to participate. This NDA is intended to allow the Parties to discuss and evaluate product ideas while protecting each Party's Confidential Information (including Confidential Information previously disclosed to the other Party) against unauthorized use or disclosure. For purposes of this NDA, the Party receiving Confidential Information is referred to as the "Receiving Party" and the Party disclosing Confidential Information is referred to as the "Disclosing Party".
- Definition of Confidential Information. "Confidential Information" means any oral, written, visual, electronic, graphic, machine readable information, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential,” including, without limitation, information concerning the Disclosing Party’s, and its subsidiaries and affiliates: (i) finances, customer information, products, services, organizational structure and internal practices, forecasts, sales and other financial results, records and budgets, and business, marketing, development, sales, and other commercial strategies; (ii) unpatented inventions, ideas, methods, and discoveries, trade secrets, know-how, unpublished patent applications, and other confidential intellectual property; (iii) designs, specifications, documentation, components, source code, object code, images, icons, and schematics, drawings, protocols, processes, and other visual depictions of any of the foregoing; (iv) third-party confidential information included with, or incorporated in, any information provided by the Disclosing Party; and (v) notes, analyses, compilations, reports, forecasts, studies, samples, data, statistics, summaries, interpretations, and other materials prepared by or for the Receiving Party or its representatives that contain, are based on, or otherwise reflect or are derived, in whole or in part, from any of the foregoing.
- Non-disclosure of Confidential Information.
- The Participant agrees not to use any Confidential Information disclosed to it by Second Nature for its own use or for any purpose other than to carry out discussions concerning, and the undertaking of, the Purpose. The Participant shall not disclose or permit disclosure of any Confidential Information of Second Nature to third parties or employees of the Participant other than employees, consultants, contractors and agents who are required to have the information in order to carry out the discussions regarding the Purpose. The Participant is responsible for breaches of this NDA by persons to whom it discloses Confidential Information received hereunder. The Participant agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of Second Nature in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized under this NDA to have any such information. Such measures shall include, but not be limited to, the highest degree of care that the Receiving Party utilizes to protect its own Confidential Information of a similar nature, which shall be no less than reasonable care. The Participant agrees to notify Second Nature in writing of any actual or suspected misuse, misappropriation or unauthorized disclosure of Confidential Information.
- Exceptions. Notwithstanding the above, the Participant shall not have liability to Second Nature with regard to any Confidential Information of Second Nature which the Participant can prove:
- was in the public domain at the time it was disclosed or has entered the public domain through no fault of the Participant;
- was known to or in the possession of the Participant, without restriction, at the time of disclosure, as demonstrated by files in existence, or other competent evidence, at the time of disclosure;
- was independently developed by the Participant without any use of the Confidential Information of Second Nature, as demonstrated by files created at the time of such independent development or other competent evidence; or
- becomes known to the Participant, without restriction, from a source other than Second Nature without breach of this NDA by the Participant and otherwise not in violation of Second Nature’s rights.
- Required Disclosures. If the Participant is confronted with legal action to disclose Confidential Information received under this NDA, unless prohibited by applicable law, the Participant shall promptly notify Second Nature so that Second Nature may seek a protective order or other remedy, and reasonably assist the Participant in obtaining a protective order, or other limitations on disclosure, to prevent or limit the requested disclosure. In the event that Second Nature is unable to obtain or does not seek a protective order, the Participant shall disclose, and, if applicable, shall require its representatives or other persons to whom such legal action is directed to disclose, no more than that portion of the Confidential Information which such legal action specifically requires and shall use commercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment.
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Return or Destruction of Confidential Information. Upon the termination of the research study, or at Second Nature’s request at any time during the research study, the Participant will promptly destroy or return to Second Nature all of Second Nature’s Confidential Information, together with all copies thereof and all Notes relating to the Confidential Information. Further, upon request of Second Nature, the Participant will provide Second Nature with a signed statement verifying that the Participant has complied with the terms of this NDA.
- Ownership of Confidential Information; No Rights Granted. The Participant agrees and acknowledges that all Confidential Information of Second Nature shall remain the exclusive property of Second Nature. Nothing in this NDA shall be construed as granting any rights or licenses under any patent, copyright or other intellectual property right of Second Nature, nor shall this NDA grant the Participant any rights in or to Second Nature’s Confidential Information other than the limited right to review such Confidential Information solely for the Purpose of this NDA.
- Term. Either Party may terminate this NDA at any time, for any reason or for no reason, upon written notice to Second Nature, and this NDA shall otherwise terminate at the termination of any agreement between the parties related to the Purpose; provided that the obligations confidentiality and non-use with respect to Confidential Information shall survive the termination of this NDA.
- Assignment. The Participant may not assign any of its rights or delegate any of its obligations hereunder without the prior written consent of Second Nature. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Participant of any of its obligations hereunder. This NDA is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this NDA.
- Severability. If one or more provisions of this NDA 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 (a) such provision shall be excluded from this NDA, (b) the balance of the NDA shall be interpreted as if such provision were so excluded and (c) the balance of the NDA shall be enforceable in accordance with its terms.
- Independent Contractors; No Obligation. The Participant is an independent contractor, and nothing contained in this NDA shall be construed to constitute the Parties as partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking. The Participant shall not incur any debts or make any commitments for the other under this NDA. Nothing contained in this NDA shall be construed as obligating either Party to enter into any agreement or transact any business with the other Party, or to purchase, transfer or otherwise dispose of any technology, services or products as a result of the execution of this NDA.
- Representations and Warranties.
- The Participant represents and warrants that: (i) the performance of its obligations herein does not and will not violate any other contract or obligation to which the Participant is a party, including covenants not to compete and confidentiality agreements; and (ii) it is not legally or contractually prohibited from discussing a potential relationship with Second Nature, receiving information about a potential relationship with Second Nature, or entering into a principal agreement with Second Nature.
- The Participant understands and acknowledges that neither Second Nature nor any of its representatives make any representation or warranty, express or implied, as to the accuracy or completeness, merchantability or fitness for a particular purpose, or with respect to the non-infringement of trademarks, patents, copyrights, or any other intellectual property rights or other rights of third persons or of either Party with respect to the Confidential Information. Any information exchanged under this NDA is provided "AS IS." Neither Second Nature nor any of its representatives will have any liability to the Participant or any other person resulting from the Participant’s participation in the research study.
- Governing Law; Jurisdiction. This NDA 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 North Carolina, without regard to its conflict of law provisions. The Participant agrees to submit any claim or dispute under this NDA exclusively to a state or federal court located in Raleigh, North Carolina, and the Participant irrevocably agrees to submit to the sole jurisdiction of such courts and to waive any claims that such courts constitute an improper venue.
- Remedies. Each Party agrees that its obligations set forth in this NDA are necessary and reasonable in order to protect Second Nature and its business. The Parties each expressly agree that due to the unique nature of Second Nature’s Confidential Information, monetary damages may be inadequate to compensate Second Nature for any breach by the Participant of its covenants and agreements set forth in this NDA. Accordingly, the Parties each agree and acknowledge that any such violation or threatened violation may cause irreparable injury to Second Nature and that, in addition to any other remedies that may be available, in law, in equity or otherwise, Second Nature shall be entitled to seek injunctive relief against the threatened breach of this NDA or the continuation of any such breach by the Participant, without the necessity of proving actual damages, and recovery of attorney's fees, arising out of or in connection with any breach or enforcement of the Participant’s obligations under this NDA or the unauthorized use or disclosure of Second Nature’s Confidential Information. The Participant hereby waives any requirement for the securing or posting of any bond or the showing of actual monetary damages in connection with such claim.
- Amendment; No Waiver. The terms of this NDA may only be amended in writing signed by duly authorized representatives of both Parties. Any amendment effected in accordance with this Section shall be binding upon the Parties and their respective successors and assigns. Failure to insist upon strict compliance with any provision of this NDA shall not be deemed waiver of such provision or any other provision hereof.
- Entire Agreement. This NDA constitutes the entire agreement between the Parties pertaining to the subject matter hereof, and supersedes all previous agreements, understandings and communications between the Parties related to the subject matter. Any and all other written or oral agreements existing between the Parties hereto regarding such transactions are expressly terminated.