CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT

 

This Confidentiality and Nondisclosure Agreement (“Agreement”) is entered into by and between Corbeau Tech, LLC, Project Success Academy, LLC, and Corbeau IP Holdings, LLC, each an Oklahoma limited liability company (collectively, “Corbeau”) and Party (“PARTY”) (each a “Party” or interchangeably referred to as “Receiving Party” or “Disclosing Party”; and collectively the “Parties”). This Agreement is effective the earlier of the first date of disclosure of Confidential Information or the last date of signature (the “Effective Date”).

RECITALS:

WHEREAS, the Parties desire to discuss and evaluate the possibility of entering into a business relationship (the “Relationship”);

WHEREAS, the Parties desire to discuss and evaluate certain terms and conditions of such Relationship (the “Discussions”);

WHEREAS, in the course of such Discussions and/or Relationship, each Party may have access to or have disclosed to it Confidential Information (as hereinafter defined); and

WHEREAS, the Parties each desire to establish and set forth the Parties’ obligations with respect to Confidential Information and certain other matters;

NOW THEREFORE, in consideration of the mutual promises, covenants and conditions contained herein, the Parties hereby mutually agree as follows:

AGREEMENT:

  1. “Confidential Information” as used in this Agreement will mean any and all technical and non-technical information disclosed pursuant to or in contemplation of this Agreement, including, but not limited to, trade secrets and proprietary information, inventions, know how, processes, architecture, customer lists, financial information, forecasts, marketing plans, operational details, pricing, software, software source documents, algorithms, and information related to the current, future, and proposed products and services of Disclosing Party and/or its parents, subsidiaries, customers, manufacturers, partners, and/or vendors. Without limiting the generality of the foregoing, the term “Confidential Information” will also be deemed to include all analyses, compilations, forecasts, studies or other documents prepared by Receiving Party in connection with Receiving Party’s review/evaluation of Confidential Information. Notwithstanding the foregoing, PARTY agrees that it will not disclose Confidential Information of a technical nature to Corbeau, and this Agreement shall not apply to any such technical Confidential Information disclosed by PARTY to Corbeau, unless Corbeau provides to PARTY its advance written authorization and agreement to receive such technical Confidential Information and have it be subject to the terms and conditions of this Agreement.
  2. Receiving Party agrees that Receiving Party will not make use of any Confidential Information that is supplied to or obtained by Receiving Party except to the extent necessary for evaluating/implementing and carrying out the contemplated Relationship and Discussions and conducting negotiations, discussions, and consultations on that subject with authorized Representatives (as hereinafter defined) of Disclosing Party.
  3. Receiving Party agrees that Receiving Party will disclose the Confidential Information only to those of Receiving Party’s members, managers, employees, agents, attorneys, financial advisors, accountants, Disclosing Party approved vendors and manufacturers (per Section 4 below), or consultants (individually a “Representative”; collectively the “Representatives”) who have a need (related to the evaluation, negotiation, implementation, and/or carrying out of the Relationship) to know such information. The Receiving Party shall use at least the same degree of care to preserve the confidentiality of the Disclosing Party’s Confidential Information as the Receiving Party uses to protect its own Confidential Information, but in no event less than a reasonable standard of care. The Receiving Party shall promptly notify the Disclosing Party upon the Receiving Party’s discovery of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information.
  4. Receiving Party will be liable for the unauthorized use or disclosure by Receiving Party’s Representatives of the Confidential Information or other breach of this Agreement by Receiving Party’s Representatives.
  5. Receiving Party further agrees that Receiving Party will not disclose any Confidential Information, except to the Representatives of Receiving Party. Receiving Party further agrees to obtain Disclosing Party’s prior written authorization before disclosing Confidential Information to any vendors, manufacturers, and consultants.
  6. Receiving Party’s obligations under Paragraphs 2, 3, and 4 with respect to any portion of the Confidential Information will terminate if Receiving Party can document that:

(a)         such Confidential Information was in the public domain at the time it was communicated to Receiving Party by Disclosing Party;

(b)         such Confidential Information entered the public domain subsequent to the time it was communicated to Receiving Party by Disclosing Party (but prior to the use or public disclosure of such Confidential Information by Receiving Party) through no fault of Receiving Party;

(c)         such Confidential Information was already lawfully in Receiving Party’s possession free of any obligation of confidence at the time it was first communicated to Receiving Party by Disclosing Party;

(d)         such Confidential Information was rightfully communicated to Receiving Party by a third party who is lawfully in possession of such information and who lawfully conveys such information free of any obligation of confidence subsequent to the time it was communicated to Receiving Party by Disclosing Party (but prior to the use or public disclosure of such Confidential Information by Receiving Party); or

(e)         such Confidential Information was developed by Receiving Party independently of and without reference to any information communicated to Receiving Party by Disclosing Party.

  1. Any communication of Confidential Information made by Receiving Party in response to a valid order by a court or other governmental body or that is otherwise required by law (but only to the extent of such order or requirement) will not be deemed to be a violation of Receiving Party’s obligations under Paragraphs 2, 3, or 4 provided that Receiving Party will (to the extent practical and permitted by applicable law) use Receiving Party’s commercially reasonable best efforts to provide Disclosing Party with reasonable prior notice of any disclosure to be made pursuant to such order or requirement and cooperate (at the expense of Disclosing Party) with the efforts of Disclosing Party to obtain a protective order or other sufficient assurance of confidential treatment of any Confidential Information to be disclosed pursuant to such order or requirement.
  2. Receiving Party and Receiving Party’s Representatives will not be deemed to have acquired by reason of this Agreement any intellectual property rights or license in or with respect to the Disclosing Party Confidential Information. All Confidential Information furnished to Receiving Party will remain the property of Disclosing Party and will, at the request of Disclosing Party, be destroyed or returned to Disclosing Party. Neither Disclosing Party nor its Representatives will be deemed to have made any warranty regarding the truth, accuracy, suitability, or completeness of any Confidential Information.
  3. The Parties are not obligated to disclose any particular Confidential Information. The Disclosing Party warrants that it owns or is otherwise authorized to disclose its Confidential Information to the Receiving Party and that disclosure of its Confidential Information will not violate any obligations it has to any third party. If a Disclosing Party Party’s Confidential Information contains any confidential or proprietary information belonging to a third party, the Disclosing Party warrants that it is authorized to disclose that third party’s information to the Receiving Party.
  4. If Receiving Party or Receiving Party’s Representative breaches any of their respective obligations hereunder, Disclosing Party will be entitled to equitable relief to protect its interest therein (without the requirement of posting bond), including but not limited to injunctive relief, as well as monetary damages. Receiving Party acknowledges that the Confidential Information of Disclosing Party consists of materials that constitute trade secret processes and property of great value owned by Disclosing Party, having been acquired by Disclosing Party through the expenditure of a significant amount of time, effort, and money, and that any disclosure to others of any portion of such Confidential Information will result in substantial monetary loss and irreparable damage to Disclosing Party.
  5. Until Disclosing Party notifies Receiving Party in writing that subsequent communications will not be governed by this Agreement, this Agreement will govern all communications between the Parties regarding the Relationship and Discussions (whether before or after the execution of this Agreement). Receiving Party’s obligations under Paragraphs 2, 3, and 4 with respect to Confidential Information that it has received will continue in perpetuity unless terminated pursuant to Paragraph 5.
  6. This Agreement does not create any agency, partnership, joint venture, or similar arrangement by or among the Parties hereto. Neither Party may assign this Agreement without the prior written consent of the other Party, except that a Party may assign this entire Agreement in connection with any sale, merger, acquisition, or similar transaction involving all or substantially all of the assigning Party’s assets or business.
  7. THIS AGREEMENT AND THE AGREEMENTS, INSTRUMENTS AND DOCUMENTS CONTEMPLATED HEREBY WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF OKLAHOMA (EXCLUSIVE OF CONFLICTS OF LAW PRINCIPLES). COURTS WITHIN THE STATE OF OKLAHOMA WILL HAVE EXCLUSIVE JURISDICTION OVER ANY AND ALL DISPUTES BETWEEN THE PARTIES HERETO, WHETHER IN LAW OR EQUITY, ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE AGREEMENTS, INSTRUMENTS AND DOCUMENTS CONTEMPLATED HEREBY.
  8. This Agreement represents the Parties’ entire agreement with respect to the subject matter of this Agreement and supersedes and replaces any prior agreement or understanding with respect to that subject matter. This Agreement may not be amended or supplemented except pursuant to a written instrument signed by the Party against whom such amendment or supplement is to be enforced.
  9. The Parties agree to comply, in all material respects, with all laws, rules, and/or regulations relating to the export of the Confidential Information.
  10. If any term or provision of this Agreement is determined to be invalid, illegal, or unenforceable under applicable law, that term or provision will be severed from this Agreement without affecting the remaining terms and provisions of this Agreement.
  11. A Party’s waiver of any right under this Agreement must be in writing and signed by the waiving Party. A Party’s failure to enforce any right under this Agreement is not a waiver of any rights or remedies unless a written waiver is obtained from that Party. A modification or amendment to this Agreement must in writing and signed by the Parties.
  12. Any ideas, suggestions, guidance or other information disclosed by Receiving Party related to Disclosing Party’s Confidential Information and any intellectual property rights relating to the foregoing shall be collectively deemed “Feedback”. Disclosing Party shall own all Feedback, and Receiving Party agrees to assign and hereby assigns to Disclosing Party all of its right, title, and interest in and to such Feedback. To the extent that the foregoing assignment is ineffective for whatever reason, Receiving Party agrees to grant and hereby grants to Disclosing Party a nonexclusive, 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.
  13. This Agreement may be executed electronically and in counterparts, all of which together will constitute one and the same instrument. Electronic (e.g., PDF) copies of signatures have the same effect as original signatures.

Last updated December 4, 2024