2024-06-19_skoyanagi_Mutual NDA Template - March 2022.docx

MUTUAL NONDISCLOSURE AGREEMENT

THIS MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement”) is entered into and effective as of [__________] (the “Effective Date”) by and between TheKey, LLC and [Insert Name] (together, the “Parties” and each, a “Party”).

RECITALS

A.	The Parties have disclosed and/or anticipate disclosing certain Confidential Information (as defined below) for the sole purpose of entering into a transaction or other business arrangement between them (the “Business Purpose”).

B.	In consideration of such disclosure, each Party is willing to (i) maintain the confidentiality of Confidential Information (as defined below) and (ii) use Confidential Information (as defined below) only in furtherance of the Business Purpose in accordance with the terms and conditions hereof.

AGREEMENT

In consideration of the foregoing premises and the covenants, terms and conditions set forth herein, and intending to be legally bound, the Parties hereby agree as follows:

Confidential Information.

Definition.  Except as set forth in Section 1(b), “Confidential Information” means any and all confidential, secret, proprietary or otherwise nonpublic documents, materials and other information, in tangible and intangible form, disclosed by either Party (a “Discloser”) to the other Party (a “Recipient”) or any of its Representatives (as defined in Section 1(d)), directly or indirectly, whether before, on or after the Effective Date and whether disclosed in writing, orally, by electronic delivery, by inspection of tangible objects or otherwise.  “Confidential Information” will mean any and all technical and non-technical information provided by Discloser to Recipient, which may include without limitation information regarding: (a) patent and patent applications; (b) trade secrets; (c) proprietary and confidential information, ideas, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, algorithms, software programs, software source documents, and formulae related to the current, future, and proposed products and services of Discloser, including without limitation Discloser’s information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, sales and merchandising, marketing plans and information Discloser provides regarding third parties; and (d) all other information that Recipient knew, or reasonably should have known, was the Confidential Information of Discloser “Confidential Information” also includes (i) any third party confidential, secret, proprietary or otherwise nonpublic documents, materials and other information included with, or incorporated in, any documents, materials or other information provided by Discloser to Recipient or any of its Representatives and (ii) all notes, analyses, compilations, forecasts, studies, samples, data, statistics, summaries, interpretations and other materials prepared by or for Recipient or any of its Representatives that contain, are based on, or otherwise reflect or are derived from, in whole or in part, any documents, materials or other information disclosed by Discloser to Recipient or any of its Representatives (collectively, “Recipient Notes”).

Exceptions.  Except as required by applicable law or regulation, documents, materials and other information will not be, or will cease being, Confidential Information, as the case may be, as follows:  (i) from and after the date it becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach hereof or other act or omission by Recipient or any of its Representatives (or other disclosees); (ii) from and after the date it becomes available to Recipient on a nonconfidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such documents, materials or other information to Recipient by any legal, fiduciary or contractual obligation; or (iii) if it was known by or in the possession of Recipient without any obligation of confidentiality, as evidenced by bona fide written and dated documents, prior to being disclosed by or on behalf of Discloser pursuant hereto.

Maintenance of Confidentiality and Limitations on Use.  Recipient shall hold in strict confidence and keep confidential all Confidential Information.  Recipient shall use at least the same degree of care to protect, safeguard and avoid publication, disclosure or dissemination of Confidential Information as it uses with respect to its own documents, materials and other information of a similar nature, but in no event less than a commercially reasonable degree of care.  Recipient may not use Confidential Information, or permit it to be accessed or used, (i) for any purpose other than to effectuate the Business Purpose or (ii) in any manner to Discloser’s detriment.  Recipient will not make, have made, use or sell, for any purpose, any product or service using, incorporating, derived from or based upon Confidential Information.  Recipient shall comply with all applicable on-site access, remote access and related security rules and procedures of Discloser with respect to Confidential Information.  Recipient will not export or re-export, directly or indirectly, Confidential Information to any country, entity or individual prohibited from receiving such Confidential Information by the U.S. government or any agency thereof or for which an export license or other approval is required without first obtaining such license or approval.  Neither Party will disclose any individual’s Personal Information (as defined below) to the other Party and will redact all Personal Information (as defined below) from Confidential Information disclosed to the other Party.  “Personal Information” means information that:  (i) relates to an individual person; and (ii) identifies or can be used to identify, locate or contact that individual person, either alone or when combined with other personal or identifying information that is or can be associated with that specific individual person.

Limitations on Disclosure.  Recipient may disclose Confidential Information only to such employees, directors, officers, stockholders, independent contractors, attorneys, accountants and other agents (collectively, “Representatives”) of Recipient who (i) need to know such Confidential Information to assist Recipient, or act on Recipient’s behalf, in relation to the Business Purpose, (ii) are informed in writing by Recipient of the confidential nature of Confidential Information, and (iii) are bound by obligations to Recipient prohibiting unauthorized disclosure or use of Confidential Information which obligations are no less restrictive than the terms and conditions hereof applicable to Recipient.  Recipient shall be responsible for any breach hereof by any of its Representatives of the obligations hereunder.

Copying and Return of Confidential Information.  Except as reasonably required directly in support of the Business Purpose, Recipient will not make any copies or extracts of Confidential Information or include Confidential Information in any Recipient Notes.  Within five business days of receipt of Discloser’s written request, Recipient shall (i) cease using and, as instructed in writing by Discloser, either return or destroy all Confidential Information along with all tangible and electronic copies thereof that it may have made, extracts thereof and Recipient Notes and (ii) certify in writing to Discloser its compliance with the foregoing requirements.

Legally Required Disclosure.  Recipient will not be in breach hereof if it discloses Confidential Information pursuant to a valid order issued by a court or governmental agency of competent jurisdiction or as required by applicable law, provided that:  (i) any such disclosure is made only to the extent specifically required by such order or law upon the advice of Recipient’s legal counsel; (ii) prior to any such disclosure, Recipient promptly notifies Discloser, in writing, of the disclosure requirement so that Discloser may seek a protective order, confidential treatment or other remedy or take other appropriate measures in response to such order or law to protect its interests, in which event Recipient shall cooperate and provide reasonable assistance in such effort; and (iii) Recipient uses commercially reasonable efforts to obtain assurances from the applicable court or governmental agency that such Confidential Information will be afforded confidential treatment.

Additional Confidentiality Obligations.  Except as required by applicable law or regulation or with the advance written consent of the other Party, neither Party shall, nor permit any of its Representatives to, disclose to any entity or individual:  (i) that Confidential Information has been made available to it or any of its Representatives or that it or any of its Representatives has inspected any portion of Confidential Information; (ii) that discussions or negotiations may be, or are, underway between the Parties regarding Confidential Information or the Business Purpose, including the status thereof; or (iii) any of the terms, conditions or other arrangements that are being discussed or negotiated in relation to Confidential Information or the Business Purpose.

Term.  The term of this Agreement shall commence on the Effective Date and expire when the parties cease their business relationship.  However, either Party may terminate this Agreement at any time by providing written notice to the other Party.  Notwithstanding anything to the contrary herein, each Party’s rights and obligations hereunder shall survive any expiration or termination of this Agreement for a period of five years from the date of such expiration or termination, even after the return or destruction of Confidential Information by Recipient.

Certain Intellectual Property Matters.

No License.  Subject only to Recipient’s limited use rights expressly set forth in Section 1(c), (i) as between the Parties, all right, title and interest in, and right to possess, Confidential Information shall remain with Discloser and (ii) nothing herein shall be construed as granting or conferring any rights under any of Discloser’s patents, trademarks, copyrights, trade secrets or other intellectual property or proprietary rights, by license, implication, estoppel or otherwise.  Neither Recipient nor any of its Representatives will reverse engineer, disassemble, decompile or design around any of Discloser’s proprietary products, services and/or confidential intellectual property.

Feedback.  Recipient and its Representatives may, from time to time, provide ideas, suggestions, recommendations, comments or other feedback (collectively, “Feedback”) to Discloser with respect to Confidential Information provided by Discloser or Discloser’s products, services, technologies or business.  Discloser is not required to treat such Feedback as confidential information of Recipient or any of its Representatives and shall be free to act on such Feedback with no obligation to Recipient or any of its Representatives so long as Discloser does not infringe Recipient’s intellectual property rights in such Feedback.

No Other Obligation.  This Agreement does not require or compel either Party to disclose Confidential Information to the other Party or any of its Representatives.  Neither Party makes any commitment or representation, by virtue hereof, that it will carry out the Business Purpose or enter into any particular agreement with the other Party related to the Business Purpose, and each Party reserves the right to terminate any discussions or negotiations that may be contemplated hereby at any time.  Nothing herein shall prevent a Party from pursuing similar discussions or negotiations with third parties.

Representation and Warranties.  Each Party represents and warrants that it has the right to disclose Confidential Information to Recipient.  Except as set forth in the preceding sentence, neither Party makes any representations or warranties of any nature whatsoever, whether express, implied or statutory, with respect to Confidential Information it may provide pursuant hereto, including any warranties of noninfringement, completeness or accuracy.  All Confidential Information is provided on an “as-is” basis, and Recipient assumes all responsibility for its use thereof or reliance thereon.

Remedies.  Each Party acknowledges and agrees that a breach or threatened breach hereof by such Party or any of its Representatives will cause the other Party irreparable harm and that money damages might not be a sufficient remedy.  Therefore, in the case of such a breach or threatened breach, each Party agrees that the nonbreaching Party shall be entitled to, in addition to (and not in lieu of) other available rights and remedies, equitable relief (including injunctive relief and specific performance) without the necessity of (i) showing any actual damages or that money damages would not afford an adequate remedy or (ii) posting any bond or other security.  Each Party hereby consents to the issuance of an injunction or other equitable relief.

Successors and Assigns; Third Party Beneficiary Rights.  Neither Party may assign this Agreement or delegate any of its obligations hereunder without the prior written consent of the other Party.  Any purported assignment or delegation in violation of this Section 8 shall be deemed null and void from the initial date of such purported assignment or delegation, as the case may be.  This Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or shall confer upon any other entity or individual any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

Governing Law; Jurisdiction and Venue.  This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to conflict-of-law principles.  Any legal suit, action or proceeding arising out of or relating to this Agreement shall be resolved in the State of California, County of Santa Clara, whether in a state or federal court, as appropriate.  The Parties hereby irrevocably submit to the jurisdiction and venue of such courts and waive the defense of inconvenient forum to the maintenance of any such legal suit, action or proceeding, as appropriate, in such venue.  Notwithstanding the foregoing, Discloser may apply to any court of competent jurisdiction for equitable relief as provided in Section 7.

Notices.  All notices or other communications required or permitted hereunder shall be in writing and shall be deemed given or delivered upon the earlier of actual receipt or (i) when delivered personally, (ii) one business day after being deposited with an overnight courier service (costs prepaid) specifying next business day delivery, with written verification of receipt, (iii) when sent by facsimile or e-mail if sent during the recipient’s normal business hours and on the next business day if sent after the recipient’s normal business hours, in each case with confirmation of transmission by the transmitting equipment, or (iv) when received or rejected by the addressee, if sent by certified or registered mail, return receipt requested, postage prepaid.  Addresses, facsimile numbers and e-mail addresses for notice purposes for each Party shall be as set forth on the signature page hereto, as may be changed by notice to the other Party as provided herein.  Each notice or other communication to either Party that is required or permitted hereunder shall be addressed to the attention of the individual designated (by name or title) for such Party on the signature page hereto, as may be changed by notice to the other Party as provided herein.

Miscellaneous.  This Agreement sets forth the entire agreement and understanding between the Parties relating to the subject matter contained herein and supersedes all prior and contemporaneous understandings, agreements, discussions, representations and warranties, both written and oral, between the Parties with respect to such subject matter.  No amendment to this Agreement shall be effective unless it is in writing and signed by a duly authorized representative of each Party.  Any provision hereof may be waived (or the time for its performance may be extended), in writing, by the Party or Parties entitled to the benefit thereof.  The failure or delay of any Party to enforce at any time any provision hereof will not be construed to be a waiver of such provision nor in any way to affect the validity of this Agreement or any part hereof or the right of any Party thereafter to enforce each and every such provision.  No waiver of any breach hereof shall be held to constitute a waiver of any other or subsequent breach.  If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall remain in full force if the essential terms and conditions of this Agreement for each Party remain valid, binding and enforceable.  For purposes of this Agreement, the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation.”  The titles, captions and headings herein are for convenience of reference only and will not affect the meaning or interpretation hereof.  This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted.  This Agreement may be executed in counterparts, each of which shall be considered an original, but all of which, when taken together, shall be considered one and the same agreement.  In the event that either Party institutes any legal suit, action or proceeding against the other Party arising out of or relating to this Agreement, the prevailing Party in the legal suit, action or proceeding shall be entitled to receive, in addition to all other damages to which it may be entitled, the costs incurred by such Party in conducting the legal suit, action or proceeding, including attorneys’ fees and expenses and court costs where applicable law allows.

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives to be effective as of the Effective Date.

THEKEY, LLC 
Signature: ________________________
Name: ____________________________
Title: __________       _______________
Date: ____________________________ | [Insert Name]                               
Signature: ____________________________
Name: ____________________________
Title: ____________________________
Date: ____________________________