This Non-Disclosure and Confidentiality Agreement (the “Agreement”) is entered into and effective as of 6/2/2023 (the “Effective Date”), by and between Gab K, LLC, a New York limited liability company with offices at 1114 Avenue of the Americas, New York, NY, 10036, on the other hand (the “Company” or the “Disclosing Party”) and the signatory, or the “Recipient Party”. The Company and the Recipient Party may be referred to herein individually as a Party or collectively as the Parties.
WHEREAS, the Parties to this Agreement desire to explore entering into a mutually
beneficial business transaction (the “Transaction”); and WHEREAS, it is necessary and desirable that the Company disclose to the Recipient Party certain confidential and proprietary information for the purposes of pursuing the Transaction; and WHEREAS, it is acknowledged by both Parties that the business in which the Company is engaged is highly competitive, and the Company would be adversely affected and damaged in the event any of the above-mentioned information is made available to its competitors or used in violation of this Agreement.
NOW THEREFORE, in consideration of the forgoing that is a substantive part of this
Agreement, the mutual promises contained herein, and as a condition for disclosing any of the above-mentioned proprietary and confidential information, the Parties hereby covenant and agree as follows:
1. Protection of Proprietary and Confidential Information.
A. Definition. The Recipient Party acknowledges that the Disclosing Party
has invested considerable time, money and effort in designing, developing and marketing its “Proprietary and Confidential Information,” which is defined as any information, materials, items, or things that set forth any of the Disclosing Party’s written financial, marketing, business development and expansion, client, client’s customer, personnel, technology, product and Disclosing Party information, including, without limitation, any and all trade secrets (including recipes), know-how, and other confidential or proprietary information of or relating to the Disclosing Party or its products or services, whether written, oral, or otherwise, that is disclosed by or on behalf of the Disclosing Party or its related entities, affiliates, or consultants to the Recipient Party or its Representatives (defined below), whether disclosed before or after the date of this Agreement and regardless of the manner in which it was or is furnished, including, without limitation, marketing and promotional information and materials, referral sources, pricing information, market analysis, marketing strategies, methodologies, computations, algorithms, systems information, technical information, statistics, formulae, software, interfaces, computer code, source code, object code, methods of operation, specifications, materials, plans, hardware, equipment, designs, schematics, reports, studies, notes, analyses, summaries, business plans, marketing plans, development plans, customers lists, information regarding or relating to customers (past, current, or prospective), information regarding or relating to business partners (past, current, or prospective), information regarding or relating to competitors (past, current, or prospective), information regarding or relating to clients (past, current, or prospective) or their corresponding relationships, financial information, financial projections, corporate or business opportunities and contacts, strategic plans, financial plans, compilations, studies, artwork, documentation of the Company, vendors, suppliers, affiliates, related entities, consultants, and all other related information and materials that contain or reflect in whole or in part any such information or materials. The Recipient Party expressly acknowledges and agrees that Proprietary and Confidential Information may include, without limitation, confidential and proprietary information belonging to various third parties, such as affiliates, vendors, agents, or customers and prospective customers. The failure to mark or designate information as “Proprietary Information,” “confidential,” or “proprietary” shall not prevent information accessed by or disclosed to the Recipient Party from being deemed Proprietary Information under this Agreement.
Notwithstanding the foregoing, however, Proprietary and Confidential Information shall not include any information that: (i) has become available to the public (other than as a result of any unauthorized disclosure by the Recipient Party or its Representatives; (ii) was known to the Recipient Party prior to disclosure by the Disclosing Party or (iii) was or becomes available to the Recipient Party on a non-confidential basis from a source other than the Disclosing Party; provided, that such source is not bound by a confidentiality agreement with or other obligation of secrecy to the Disclosing Party.
B. Restrictions on Use. The Disclosing Party’s Proprietary and Confidential
Information, and any and all documents or information derived therefrom, shall be kept strictly confidential and, except as permitted by this Agreement, shall not be disclosed in any manner by the Recipient Party to any third party without the specific written authorization of the Disclosing Party. The Recipient Party further agrees that it shall not copy the Disclosing Party’s Proprietary and Confidential Information which is in tangible or intangible form and shall not use the Disclosing Party’s Proprietary and Confidential Information, or any information derived therefrom, for its own benefit or the benefit of others, except as authorized in writing by the Disclosing Party or pursuant to this Agreement. Neither shall the Recipient Party alter or remove from the Disclosing Party’s Proprietary and Confidential Information any proprietary, patent, copyright, trademark or trade secret legend, nor shall the Recipient Party attempt to decompile, reverse assemble, reverse compile or reverse engineer the Disclosing Party’s Proprietary and Confidential Information. The Recipient Party has been informed and acknowledges that the unauthorized taking, disclosure or use of the Disclosing Party’s Proprietary and Confidential Information may subject the Recipient Party to civil and/or criminal penalties.
C. Assignment of Rights in Developments. The Recipient Party hereby irrevocably assigns to the Company any and all rights worldwide in any development, property, or intellectual property which derives in any manner from the Company’s Proprietary and Confidential Information.
D. Representatives. The Recipient Party may only furnish or otherwise disclose the Disclosing Party’s Proprietary and Confidential Information or portions thereof to those of the Recipient Party’s partners, members, shareholders, directors, officers, agents or employees (collectively, “Representatives”) who need to know such information for the purpose of carrying out its obligations under this Agreement; provided, that such disclosure shall be made to such Representatives only to the extent necessary and for the sole purpose specified herein, and only after each such Representative has agreed to comply with terms and conditions protecting against the disclosure of proprietary and confidential information that are no less favorable to the Disclosing Party than the corresponding terms and conditions of this Agreement. The Recipient Party agrees to be responsible for any breach of this Agreement by any of its Representatives.
E. Compelled Disclosure. In the event that the Recipient Party becomes legally compelled to disclose any such information, the Recipient Party shall provide the Disclosing Party with prompt notice so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement.
F. Term; Obligations Survive this Agreement. The term of this Agreement
(the “Term”) shall be a period of five (5) years from the Effective Date. Unless otherwise stated in this Agreement, the obligations imposed regarding confidentiality and non-disclosure, e.g., this Section 1, shall survive expiration or termination of this Agreement in perpetuity or to the maximum extent as provided by applicable law, as the case may be.
2. No Warranty. The Recipient Party acknowledges that the Company’s Proprietary and Confidential Information is being furnished without any representation or warranty, express or implied, with respect to the accuracy or completeness of such Proprietary and Confidential Information. It is understood and agreed that the Disclosing Party bears no responsibility for any expenses, losses or actions incurred or undertaken by the Recipient Party as a result of its receipt or use of the Disclosing Party’s Proprietary and Confidential Information, and any estimates or forecasts provided by the Disclosing Party to the Recipient Party shall not constitute guarantees or commitments of any kind, except as otherwise provided in any such future agreement.
3. No Grant of Rights. Unless otherwise provided in this Agreement, nothing
contained in this Agreement shall be deemed or construed to grant to the Recipient Party, directly or indirectly, any rights by license or otherwise of any kind whatsoever, including rights of possession, use or distribution, under the laws of the United States or of any foreign country, either express or implied, in connection with any patent, copyright, trade secret, trademark, research and development, inventions, improvements, techniques, know-how, processes or other intellectual property of any kind owned by the Disclosing Party. Neither this Agreement nor the disclosure or receipt of any Proprietary and Confidential Information shall be construed as creating any obligation of the Disclosing Party to furnish additional information to the Recipient Party or for either party to enter into any subsequent agreement or relationship with the other party.
4. Return of Materials. Upon termination of this Agreement or upon request from
the Disclosing Party, the Recipient Party shall immediately surrender to the Disclosing Party any and all books, records, samples, drawings, flowcharts, manuals and reports, correspondence and all other materials and documents and other matter in any tangible form in the Recipient Party’s possession or control that contain the Disclosing Party’s Proprietary and Confidential Information, as well as all other property which is owned by the Disclosing Party.
5. Injunction Without Bond. The Parties acknowledge that, due to the nature of this
Agreement, a breach or threatened breach of any of the provisions of Section 1 by the Recipient Party will result in irreparable harm to the Company. Thus, in the event of a breach or threatened breach by the Recipient Party of the provision(s) of Section 1, the Company shall be entitled to seek and obtain injunctive relief without the posting of a bond to restrain the Recipient Party from disclosing in whole or in part any of the Proprietary and Confidential Information, and the Company will be further entitled to reimbursement for all costs and expenses, including reasonable attorneys’ fees, in connection therewith. This provision shall survive the expiration or termination of this Agreement.
6. Severability. If any court determines any provision(s) of this Agreement to be
invalid, such determination will not affect the validity of any other provision(s) of this Agreement, which will remain in full force and effect, and will be construed so as to be valid under applicable law.
7. Notice. All notices and other communications given under this Agreement shall be in writing, addressed to the undersigned representatives of the Parties at the addresses above, and shall be deemed to have been given on the date delivered when hand delivered, one (1) business day after mailing if sent via reputable overnight courier, or four (4) business days after mailing if sent by first-class registered or certified mail, postage prepaid.
8. Governing Law. This Agreement shall be governed and construed in accordance
with the internal laws of the State of New York without reference to the choice of law provisions thereof. Each Party irrevocably consents to the jurisdiction and venue of the state courts located in New York County, New York or any federal court within in the district comprised by the U.S. District Court for the Southern District of New York for the purpose of all judicial proceedings brought against any Party arising out of or relating to this Agreement or any obligation hereunder.
9. Interpretation; Survivability. Section headings in this Agreement are for
reference only and shall not be construed as modifying any provisions of this Agreement. The provisions of this Agreement which expressly provide for survivability or by their nature relate to continuing obligations of the Recipient Party, or are otherwise intended to, shall survive termination or expiration of this Agreement, including, without limitation, the Recipient Party’s non-disclosure and confidentiality obligations, e.g., Section 1, and the Parties’ right to enforce this Agreement.
10. Entire Agreement. This Agreement sets forth the entire understanding of the
Parties with respect to the subject matter of this Agreement, supersedes any and all previous agreements, understandings, and communications (oral or written) with respect to the subject matter of this Agreement, and may not be modified, amended, or waived, except by a specific written instrument duly executed by the Parties.
11. No Assignment. The Recipient Party may not assign this Agreement or delegate
any of its responsibilities or obligations to a third party without the prior written consent of the Disclosing Party. This Agreement shall inure to the benefit of and be binding upon the Parties’ heirs, successors, and permitted assigns.
12. Counterparts. This Agreement may be executed in counterparts, all of which
taken together shall constitute one and the same agreement.