DATED THIS DAY OF XXXX
XXX with IdeaCARD
– A N D –
XXX
NON-DISCLOSURE AGREEMENT
Contents
1 Definitions and interpretation 3
2 Provision and Use of Confidential Information 5
3 Authorised disclosures 6
4 Excluded information 6
5 Intellectual Property Rights 6
6 Indemnity 7
7 Equitable Relief 7
8 Termination 7
9 Notices 8
10 Entire agreement 8
11 Further assurance 8
12 Variation 8
13 Assignment and transfer of rights 9
14 Cumulative rights 9
15 Set off 9
16 No partnership or agency 9
17 Severance 9
18 Waiver 9
19 Compliance with law 9
20 Counterparts 10
21 Costs and expenses 10
22 Third party rights 10
23 Dispute Resolution 10
24 Governing law 10
THIS AGREEMENT is made on this day of 2022
PARTIES
(1) XXX/ IdeaCARD, XXXX(the “Discloser”);
and
(2) XXXi, Address: XXXX, (each of the Discloser and the Recipient being
a party and together the Discloser and the Recipient are the parties).
BACKGROUND
A The Discloser carries on the business of IdeaCARD, which is a blockchain
phone application intended to connect businesses to their most loyal
customers through the sales of IdeaCARD NFTs and the Recipient is a 3 rd
party UI/UX designer who may work on the interface design of IdeaCARD.
B The Discloser wishes to disclose Confidential Information to the Recipient in
relation to his BizFintech Application, IdeaCARD, they are undertaking and to:
(a) regulate the Use of the Confidential Information by the Recipient;
(b) preserve the confidentiality of the Confidential Information; and
(c) protect its interest in the Confidential Information.
THE PARTIES AGREE:
1 Definitions and interpretation
1.1 In this Agreement:
Authorised
Person
means, in relation to the Recipient, any of the following only to the
extent that they are engaged in the evaluation or negotiation of
the Purpose: its Partners, employees, consultants or professional
advisers, and any other person who has been previously
approved in writing by the Discloser;
Business
Day
means a day other than a Saturday, Sunday or bank or public
holiday in United States of America, and specifically Wisconsin;
Confidential
Information
means any information in whatever form (whether in writing,
electronic or digital form, verbally or by inspection of documents,
computer systems or sites or pursuant to discussions or by any
other means ) which is confidential in nature, designated orally or
in writing by the Discloser as confidential or which may reasonably
be considered by a business person to be commercially sensitive
provided by the Discloser (directly or indirectly) by any means to
the Recipient (or to any Authorized Person) before or after the
date of this Agreement in connection with or in anticipation of the
Purpose including:
(a) data, ideas and information (whether technical,
commercial, financial or of any other type) in any form
acquired under, pursuant to or in connection with this
Agreement and any information utilised in or relating to the
Discloser’s (or its Group Members’) business (including
information relating to products (bought, manufactured,
produced, distributed or sold), services (bought or
supplied), operations, processes, formulae, methods,
plans, strategy, product information, know-how, design
rights, trade secrets, market opportunities, customer lists,
commercial relationships, marketing, sales materials and
general business affairs);
(b) information relating to the customers, suppliers, methods,
products, plans, finances, trade secrets or otherwise to the
business or affairs of the Discloser (or its Group Members);
(c) information acquired by observation by the Recipient or any
Authorized Person at the offices of or other premises of the
Discloser relating to the Purpose or to the affairs of the
Discloser;
(d) analyses, ideas, compilations, studies, and other material
created by the Recipient or any Authorized Person which
contain or otherwise reflect or are generated or derived
from the information referred to above; and
(e) the contemplation and implementation of the Purpose, and
the existence and content of this Agreement;
Group
Member
means in relation to a party, any subsidiary, parent, or affiliate
company of that party or including any other undertaking
controlled by such party, in each case from time to time;
Intellectual
Property
Rights
means intellectual and industrial property rights, including
copyright, patents, know-how, trade secrets, trademarks, service
marks, trade names, design rights, registered designs, get-up,
database rights, chip topography rights, mask works, utility
models, domain names, rights in trade and business names and
all similar rights and, in each case:
(a) whether registered or not;
(b) including any applications to protect or register such rights;
(c) including all renewals and extensions of such rights or
applications;
(d) whether vested, contingent or future;
(e) including rights in the nature of unfair competition rights
and rights to sue in passing off; and
(f) wherever existing;
Purpose Consult with recipient to see if he is the right person for the
interface design and then determine total cost of project while
keeping IdeaCARD protected; and
Use means receive, store, transmit, access, read, analyse, disclose,
share, print, copy, reproduce, extract, modify, adapt, incorporate,
exploit or use Confidential Information in whole or in part in any
manner whatsoever.
1.2 In this Agreement:
1.2.1 a reference to this Agreement includes its schedules, appendices and
annexes (if any);
1.2.2 any table of contents, background section and any clause, schedule or
other headings in this Agreement are included for convenience only
and shall have no effect on the interpretation of this Agreement;
1.2.3 a reference to a ‘party’ includes that party’s personal representatives,
successors and permitted assigns;
1.2.4 a reference to a ‘person’ includes a natural person, corporate or
unincorporated body (in each case whether or not having separate
legal personality) and that person’s personal representatives,
successors and permitted assigns;
1.2.5 a reference to a ’company’ includes any company, corporation or other
body corporate, wherever and however incorporated or established;
1.2.6 a reference to a gender includes each other gender;
1.2.7 words in the singular include the plural and vice versa;
1.2.8 any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or
any similar words and expressions shall be construed as illustrative
only and shall not limit the sense of any word, phrase, term, definition
or description preceding those words;
1.2.9 a reference to ‘writing’ or ‘written’ includes any method of reproducing
words in a legible and non-transitory form including email;
1.2.10 a reference to legislation is a reference to that legislation as in force at
the date of this Agreement and amended, extended, re-enacted or
consolidated from time to time;
1.2.11 a reference to legislation includes all subordinate legislation made as at
the date of this Agreement and from time to time under that legislation;
and
1.2.12 a reference to any English action, remedy, method of judicial
proceeding, court, official, legal document, legal status, legal doctrine,
legal concept or thing shall, in respect of any jurisdiction other than
Kenya, be deemed to include a reference to that which most nearly
approximates to the Kenyan equivalent in that jurisdiction.
2 Provision and Use of Confidential Information
2.1 The Discloser may (but is not obliged to) disclose during the term of this
Agreement Confidential Information only for the Purpose and, in consideration
of the Discloser disclosing any Confidential Information to the Recipient, the
Recipient undertakes to the Discloser that it shall, and shall procure that its
Authorised Persons shall:
2.1.1 keep all the Confidential Information secret and confidential, and not
disclose any of the Confidential Information to any person other than in
accordance with clause 3 ;
2.1.2 not Use any Confidential Information in any way except to the extent
reasonably necessary for the Purpose, and not Use or benefit from any
Confidential Information to procure any commercial advantage over the
Discloser; and
2.1.3 create and maintain the best industry standards of security (including
any reasonable arrangements specified by the Discloser from time to
time and the most secure arrangements that the Recipient maintains
for its own trade secrets) in order to ensure that the Confidential
Information is secure from unauthorised access, and shall inform
immediately the Discloser if the Recipient becomes aware of any
apparent unauthorised access.
2.2 To the extent determined from time to time by the Discloser, each of those of the
Discloser’s Group Members, if any, whose information is contained in the
Confidential Information disclosed to the Recipient under this Agreement shall
be entitled to enforce the rights expressed in favour of the Discloser under this
Agreement in respect only of that Confidential Information belonging to it as if
such rights were expressed to be in its favour.
2.3 None of the Discloser, its Group Members, and its directors, officers, agents,
employees, consultants, subcontractors, or advisers makes any
representation or warranty concerning the accuracy, efficacy, completeness
or capabilities of the Confidential Information disclosed by it (or of any
materials or media by which it is supplied), except to the extent, if any,
expressly agreed by the Discloser in writing. No representation or warranty is
made that the Confidential Information shall remain unchanged. There is no
obligation on the part of the Discloser to update or correct any inaccuracies in
any Confidential Information.
2.4 There is no representation, warranty or undertaking by the Discloser to continue
to disclose any Confidential Information or continue negotiations or enter into
a further agreement in relation to the Purpose or the Confidential Information,
which agreement can only be subject to a formal written agreement being
agreed and signed by the parties.
2.5 The Recipient’s confidentiality obligations under this Agreement shall survive and
subsist in relation to any Confidential Information (notwithstanding the prior
termination or expiry of this Agreement).
3 Authorized disclosures
3.1 The Recipient may disclose any of the Confidential Information to any of its
Authorised Persons, provided that it informs them beforehand of the duties of
confidence under this Agreement, ensures that they undertake to the
Recipient to comply with the same duties of confidence, keeps a written
account of each of the disclosures, advises the Discloser immediately it
becomes aware of any breach by an Authorised Person, and gives upon any
request by the Discloser evidence of compliance with this clause.
3.2 The Recipient further undertakes to procure that all Authorised Persons to whom
it discloses the Confidential Information shall comply with the confidentiality
obligations under this Agreement.
4 Excluded information
4.1 The Recipient’s obligations under this Agreement do not apply to, and the term
Confidential Information does not include, any information to the extent to
which the Recipient can prove to the Discloser’s reasonable satisfaction:
4.1.1 was at the time of disclosure by the Discloser, or subsequently
becomes, published, accessible to the public or otherwise in the public
domain, other than through any breach by the Recipient or any
Authorized Person of this Agreement or of any other obligation of
confidentiality to the Discloser;
4.1.2 has been agreed by the Discloser in writing as being excluded from
Confidential Information.
4.2 The Recipient shall not be in breach of its obligations under this Agreement to the
extent that any Confidential Information received by it may be required by law
or regulation having force of law; or the rules of any court or other body of
competent jurisdiction; or any governmental body to be disclosed, provided in
each case the Recipient, to the extent permitted by the foregoing requirement,
immediately notifies the Discloser in writing of any request or requirement for
disclosure and of all relevant surrounding circumstances prior to disclosure
and takes into account any representations made by the Discloser in relation
to the disclosure. If the Recipient is unable to notify the Discloser before such
disclosure is made, it shall to the extent permitted by the foregoing
requirement, notify the Discloser immediately afterwards.
5 Intellectual Property Rights
The Recipient acknowledges that ownership of the Confidential Information
including all Intellectual Property Rights in the Confidential Information
remains vested in and shall vest in the Discloser and its licensors, and that no
license or right is granted other than to the extent expressly set out in this
Agreement.
6 Indemnity
The Recipient shall indemnify the Discloser from and against all and any
losses, damages (including any consequential, direct, indirect, special,
incidental or punitive damages or loss or any other form of economic loss),
liability, costs, expenses, claims, actions, proceedings, judgment sums
(including sums arising from consent orders or judgments) fines and
penalties, however arising out of, or in connection with, the breach of this
Agreement or the unauthorized disclosure or Use of any of the Confidential
Information by the Recipient or by any of its Authorized Persons.
7 Equitable Relief
The Recipient recognizes that any breach or threatened breach of this
Agreement may cause the Discloser irreparable harm for which damages may
not be an adequate remedy. Accordingly, in addition to any other remedies
and damages available to the Discloser, the Recipient acknowledges and
agrees that the Discloser is entitled to the remedies of specific performance,
injunction and other equitable relief without proof of special damages.
8 Termination
8.1 Without prejudice to the confidentiality obligations under this Agreement, the term
of this Agreement shall expire or terminate on the earliest to occur of the
following dates or events:
8.1.1 the date on which the parties have agreed that the Purpose has been
fulfilled;
8.1.2 the entry by the parties of a contract providing for the completion of the
Purpose;
8.1.3 the date specified in a written notice of termination served by one party
on the other, being a date not less than one month following the date of
service of such a notice;
8.1.4 immediately upon service of a written notice served by the Discloser on
the Recipient following a material breach of this Agreement by the
Recipient; and
8.1.5 immediately upon service of a written notice of termination served by
the Discloser on the Recipient if the Recipient contests the secret or
substantial nature of the Confidential Information.
8.2 Upon the expiry or termination of this Agreement (howsoever caused) or upon
receipt by the Recipient of an earlier written demand from the Discloser:
8.2.1 the Recipient must immediately return or procure the return to the
Discloser or, as the Discloser may require, destroy or procure the
destruction of any and all materials containing the Confidential
Information together with all copies;
8.2.2 if the Discloser requires, the Recipient must provide the Discloser with
a certificate or such other evidence as the Discloser may reasonably
require duly signed or executed by an officer of the Recipient
confirming that the Recipient has complied with all of its obligations
under this Agreement including about return, destruction and deletion
of Confidential Information and media;
8.2.3 the Recipient must delete or procure the deletion of all electronic
copies of Confidential Information; and
8.2.4 the Recipient must make, and procure that the Authorised Persons
shall make, no further Use of the Confidential Information.
9 Notices
9.1 Any notice or other communication given by a party under this Agreement shall:
9.1.1 be in writing and in English;
9.1.2 be signed by, or on behalf of, the party giving it (except for notices sent
by email); and
9.1.3 be sent to the relevant party at the address set out in clause 9.3 .
9.2 Notices may be given, and are deemed received:
9.2.1 by hand: on receipt of a signature at the time of delivery;
9.2.2 by post: at 5.00 p.m. on the Tenth Business Day after posting;
9.2.3 by email: on delivery to the correct address.
9.3 Notices and other communications shall be sent to:
XXX
XXX
XXX@gmail.com
XXX
XXX
XXX@gmail.com, XXX
9.4 Any change to the contact details of a party as set out in clause 9.3 shall be
notified to the other party in accordance with clause 9.1 and shall be effective:
9.4.1 on the date specified in the notice as being the date of such change; or
9.4.2 if no date is so specified, ten Business Days after the notice is deemed
to be received.
9.5 All references to time are to the local time at the place of deemed receipt.
9.6 This clause does not apply to notices given in legal proceedings or arbitration.
10 Entire agreement
10.1 The parties agree that this Agreement and any documents entered into
pursuant to it constitutes the entire agreement between them and supersedes
all previous agreements, understandings and arrangements between them,
whether in writing or oral in respect of its subject matter.
10.2 Nothing in this Agreement purports to limit or exclude any liability for fraud.
11 Further assurance
Each party shall at the request of the other, and at the cost of the requesting
party, do all acts and execute all documents which are necessary to give full
effect to this Agreement.
12 Variation
No variation of this Agreement shall be valid or effective unless it is in writing,
refers to this Agreement and is duly signed or executed by, or on behalf of,
each party.
13 Assignment and transfer of rights
The Discloser can, but the Recipient shall not (without the Discloser’s prior
written consent), assign, novate, hold on trust, subcontract, or encumber any
right or obligation under this Agreement, in whole or in part.
14 Cumulative rights
The rights and remedies provided for in this Agreement are cumulative with,
and not exclusive of, any rights or remedies otherwise provided by law or in
equity. No exercise by a party of any one right or remedy shall operate so as
to hinder or prevent the exercise by it of any other right or remedy.
15 Set off
Each party shall pay all sums that it owes to the other party under this
Agreement without any set-off, counterclaim, deduction or withholding of any
kind, save as may be required by law.
16 No partnership or agency
The parties are independent persons and are not partners, principal and
agent or employer and employee, and this Agreement does not establish any
joint venture between them, other than the contractual relationship expressly
provided for in it. The Recipient shall not have, nor shall represent that it has,
any authority to make any commitment on the Discloser’s behalf.
17 Severance
17.1 If any provision of this Agreement (or part of any provision) is or becomes
illegal, invalid, or unenforceable, the legality, validity and enforceability of any
other provision of this Agreement shall not be affected.
17.2 If any provision of this Agreement (or part of any provision) is or becomes
illegal, invalid, or unenforceable but would be legal, valid and enforceable if
some part of it was deleted or modified, the provision or part-provision in
question shall apply with such deletions or modifications as may be necessary
to make the provision legal, valid and enforceable. In the event of such
deletion or modification, the parties shall negotiate in good faith in order to
agree the terms of a mutually acceptable alternative provision.
18 Waiver
18.1 No failure, delay or omission by either party in exercising any right, power or
remedy provided by law or under this Agreement shall operate as a waiver of
that right, power or remedy, nor shall it preclude or restrict any future exercise
of that or any other right, power or remedy.
18.2 No single or partial exercise of any right, power or remedy provided by law or
under this Agreement shall prevent any future exercise of it or the exercise of
any other right, power, or remedy.
18.3 A waiver of any term, provision, condition, or breach of this Agreement shall
only be effective if given in writing and signed by the waiving party, and then
only in the instance and for the purpose for which it is given.
19 Compliance with law
Each party shall comply with all laws, enactments, regulations, regulatory
policies, guidelines, and industry codes applicable to them and shall maintain
such authorizations and all other approvals, permits and authorities as are
required from time to time to perform their obligations under or in connection
with this Agreement.
20 Counterparts
20.1 This Agreement may be signed in any number of separate counterparts, each
of which when signed and dated shall be an original, and such counterparts
taken together shall constitute one and the same agreement.
20.2 Each party may evidence their signature of this Agreement by transmitting by
email a signed signature page of this Agreement in PDF format together with
the final version of this Agreement in PDF or Word format, which shall
constitute an original signed counterpart of this Agreement. Each party
adopting this method of signing shall, following circulation by email, provide
the original, hard copy signed Agreement to the other party as soon as
reasonably practicable.
21 Costs and expenses
Each party shall pay its own costs and expenses incurred in connection with
the negotiation, preparation, signature and performance of this Agreement
(and any documents referred to in it).
22 Third party rights
Except as expressly provided for in this Agreement, a person who is not a
party to this Agreement shall not be entitled to enforce any of its terms.
23 Dispute Resolution
23.1 The Parties will attempt in good faith to negotiate a settlement to any dispute
or differences between them arising out of or in connection with this
Agreement within Twenty (20) Business Days of either Party notifying the
other of the dispute or differences and such efforts will involve the escalation
of the dispute to the senior management of each Party.
23.2 Nothing in this dispute resolution procedure will prevent the Parties from
seeking from any court of competent jurisdiction an interim order restraining
the other Party from doing any act or compelling the other Party to do any act.
23.3 If the dispute cannot be resolved by the Parties pursuant to clause 23.1 , the
Parties will endevour to solve it amicably and failure to which the dispute will
be referred to arbitration. The Parties shall jointly appoint an Arbitrator within
Twenty (20) Business Days or such longer period as may be agreed by the
Parties, after the date of receipt of a notice by either Party to the other
requiring the Dispute to be referred for Arbitration. If the Parties fail to agree
on an Arbitrator, either Party may apply to the Chairperson for the time being
of the North American Chapter of the Chartered Institute of Arbitrators to
appoint an Arbitrator requesting that the appointment be made within Twenty
(20) Business Days of the date of receipt of the application. The arbitration
proceedings shall be conducted in Wisconsin, United States of America and
shall be conducted in accordance with the provisions of the Uniform
Arbitration Act or any statutory modification or re-enactment thereof for the
time being in force. The decision of the arbitrator shall be final and binding on
the Parties.
24 Governing law
This Agreement and any dispute or claim arising out of, or in connection with
it, its subject matter or its formation (including non-contractual disputes or
claims) shall be governed by, and construed in accordance with, the laws of
the State of Wisconsin.
IN WITNESS WHEREOF, the Parties have executed this Agreement as a deed as of
the day and year first above written.
c
EXECUTED on behalf of Josh Nelson w/
IdeaCARD by:
Signature
1. ………………………………………………
2.
……………………………………………………
………
……………………………………..
…..
[Co-Founder]
…………………………………….
Director
EXECUTED on behalf of Arpan Khatri by:
1. ………………………………………………
2.
…………………………………………………
……
Signature
………………………………………
.
[UI/UX Designer]
………………………………………
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