DEMONSTRATION AND MUTUAL NON-DISCLOSURE AGREEMENT
This Demonstration and Mutual Non-Disclosure Agreement (this “Agreement”) is entered into and made effective on the date that the appropriate button is checked or clicked (the “Effective Date”) by and between Nominal, Inc., a Delaware corporation, with a principal place of business located at 506 North Congress Avenue, Suite 200, Austin, TX 78701, together with its subsidiaries and affiliates (collectively, “Nominal”), and the other party whose representative clicked on the button (the “Company”). Nominal and Company may each be referred to herein individually as a “Party” and collectively as the “Parties”.
By clicking on the appropriate button you are agreeing to these terms. If you are an individual accepting this Agreement on behalf of Company, The individual accepting this Agreement you represent and affirm that you are authorized to bind Company. No handwritten or electronic signature on a separate document is required.
The Parties, for their mutual benefit, desire to engage in discussions regarding a potential business relationship, commercial opportunity, technical evaluation, partnership, customer or supplier relationship, or other mutually agreed business purpose (the “Purpose”). In connection with the Purpose, the Parties may disclose to each other certain confidential, proprietary, or non-public information or materials. Specifically, the Purpose contemplates that Company may provide Demonstration Data (defined herein) for Nominal to use in connection with the Nominal Platform to provide one or more Demonstrations to the Company. Accordingly, the Parties agree that the following terms and conditions shall govern the development of Demonstrations and the disclosure, use, and protection of such information when disclosed by one Party (“Disclosing Party”) to the other Party (“Receiving Party”).
The Parties acknowledge and agree that their mutual objective under this Agreement is to provide appropriate protection for proprietary and confidential information while permitting the Parties to evaluate and pursue the Purpose and continue conducting their respective business activities. Each Party will be responsible for compliance with this Agreement by its Representatives to whom it discloses Proprietary Information, subject to the terms of Section 2 herein.
NOW, THEREFORE, in consideration of the mutual covenants and obligations set forth herein, and intending to be legally bound, the Parties hereby agree as follows:
1. Proprietary Information. “Proprietary Information” means any and all non-public information, materials, or data disclosed by or on behalf of the Disclosing Party to the Receiving Party, directly or indirectly, in connection with the Purpose, whether disclosed on or after the Effective Date and regardless of the form or medium of disclosure, including, without limitation, technical data, software, source code, object code, APIs, algorithms, architectures, documentation, product roadmaps, inventions, concepts, designs, specifications, processes, methodologies, systems, test data, research and development activities, works in progress, business and marketing plans, customer and vendor information, pricing, financial information, analytics, know-how, trade secrets, intellectual property, patent applications, copyrights, trademarks, and other proprietary business or technical information. Proprietary Information includes information that (a) is marked or otherwise identified as confidential or proprietary; (b) if disclosed orally or visually, is identified as confidential or proprietary at the time of disclosure or confirmed as such within thirty (30) calendar days thereafter; or (c) by its nature or the circumstances of disclosure, a reasonable person would understand to be confidential or proprietary, whether or not marked or otherwise identified. The existence of this Agreement, the Purpose, and the fact and status of the Parties’ discussions will be deemed Proprietary Information of each Party.
2. Safeguarding and Restrictions. “Representatives” means, with respect to a Party, such Party’s directors, officers, employees, affiliates, agents, consultants, contractors, and legal, accounting, financial, and other professional advisors. Except as expressly permitted herein, the Receiving Party shall hold in confidence and not disclose the Disclosing Party’s Proprietary Information to any person or entity without the prior written consent of the Disclosing Party. The Receiving Party may disclose Proprietary Information to its Representatives who have a need to know such Proprietary Information for the Purpose and who are subject to confidentiality obligations by contract, professional duty, or otherwise that are no less protective in all material respects than the obligations applicable hereunder. The Receiving Party shall (i) use at least the same degree of care as it uses to protect its own confidential information of similar importance, but in no event less than a commercially reasonable degree of care; (ii) not disclose Proprietary Information except as expressly permitted by this Agreement; (iii) use Proprietary Information solely in connection with the Purpose; (iv) upon discovery of any reasonably suspected or actual unauthorized use or disclosure, promptly take commercially reasonable steps to prevent further unauthorized use or disclosure and promptly notify the Disclosing Party; and (v) implement and maintain reasonable technical and organizational security measures appropriate to the sensitivity of the Proprietary Information, consistent with industry-standard information security practices for SaaS companies.
3. Exceptions. The obligations and restrictions in Section Two (2) will not apply to any information or materials that:
(a) were, at the date of disclosure, or have subsequently become, generally known or available to the public through no act or failure to act by the receiving party;
(b) were rightfully known by the receiving party without restriction as to use or disclosure prior to receiving such information or materials from the disclosing party;
(c) are rightfully acquired by the receiving party from a third party who has the right to disclose such information or materials without breach of any obligation of confidentiality or restricted use to the disclosing party; or,
(d) are independently developed by the receiving party without access to any Proprietary Information of the disclosing party.
4. Compelled Disclosure. Nothing in this Agreement restricts a Party from disclosing the other Party’s Proprietary Information to the extent required by applicable law, regulation, legal process, subpoena, court order, or governmental authority; provided that, to the extent legally permissible, the Receiving Party shall give the Disclosing Party prompt written notice sufficient to permit the Disclosing Party to seek a protective order or other appropriate remedy and shall reasonably cooperate, at the Disclosing Party’s expense, with such efforts. The Receiving Party shall disclose only that portion of the Proprietary Information that its legal counsel advises is legally required to be disclosed and shall use commercially reasonable efforts to obtain confidential treatment for any Proprietary Information so disclosed.
5. Return or Destruction of Proprietary Information. Upon completion or abandonment of the Purpose, or earlier upon the Disclosing Party’s written request, the Receiving Party shall promptly return or destroy, at the Disclosing Party’s option, the Disclosing Party’s Proprietary Information in the Receiving Party’s or its Representatives’ possession or control, including copies and materials prepared by or on behalf of the Receiving Party that contain or reflect such Proprietary Information. Notwithstanding the foregoing, the Receiving Party and its Representatives may retain (a) copies required by applicable law, regulation, professional standards, bona fide document-retention policies, or legal or compliance requirements, and (b) Proprietary Information contained in routine computer backups or archival systems that are not reasonably accessible in the ordinary course, in each case subject to the continuing confidentiality and use restrictions of this Agreement for so long as retained. Upon written request, an authorized representative of the Receiving Party shall confirm in writing its material compliance with this Section 5.
6. No Obligations. Each Party retains the right, in its sole discretion, to determine whether to disclose any Proprietary Information, to reject any proposal, and to terminate discussions at any time, with or without cause. Except for the obligations expressly set forth in this Agreement, neither Party is obligated to enter into any transaction, commercial relationship, or other agreement with the other Party, and no such obligation will arise unless and until the Parties execute a separate definitive written agreement.
7. No License. All Proprietary Information remains the property of the Disclosing Party or its applicable owner. Nothing in this Agreement grants the Receiving Party any license or other right, by implication or otherwise, under any patent, copyright, trade secret, trademark, or other intellectual property or proprietary right, except the limited right to use Proprietary Information solely for the Purpose in accordance with this Agreement.
8. No Warranty. ALL PROPRIETARY INFORMATION IS PROVIDED “AS IS.” THE DISCLOSING PARTY MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE ACCURACY, COMPLETENESS, OR PERFORMANCE OF ANY PROPRIETARY INFORMATION, OR WITH RESPECT TO NON-INFRINGEMENT OR OTHER VIOLATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY OR OF THE RECEIVING PARTY. NEITHER THE DISCLOSING PARTY NOR ITS REPRESENTATIVES SHALL HAVE LIABILITY ARISING FROM THE RECEIVING PARTY’S USE OF OR RELIANCE UPON SUCH PROPRIETARY INFORMATION, EXCEPT TO THE EXTENT EXPRESSLY PROVIDED IN A SEPARATE DEFINITIVE WRITTEN AGREEMENT.
9. Term. This Agreement commences on the Effective Date and expires three (3) years thereafter; provided that either Party may terminate this Agreement earlier by written notice to the other Party. The confidentiality and use obligations applicable to Proprietary Information disclosed during the term shall survive expiration or termination for three (3) years thereafter; provided that, with respect to any Proprietary Information constituting a trade secret under applicable law, such obligations shall continue for so long as such information remains a trade secret through no breach of this Agreement by the Receiving Party or its Representatives.
10. Equitable Relief. Each party hereby agrees that the unauthorized use or disclosure of the disclosing party’s Proprietary Information may cause the disclosing party to incur irreparable harm and significant damages for which there may be no adequate remedy at law. Accordingly, each party agrees that the disclosing party will have the right to seek immediate equitable relief to enjoin any unauthorized use or disclosure of its Proprietary Information, in addition to any other rights and remedies that it may have at law or otherwise.
11. Confidentiality of Discussions. Except as expressly permitted by this Agreement, neither Party shall, without the prior written consent of the other Party, disclose to any person other than its Representatives the fact that discussions regarding the Purpose are taking place or have taken place, or the status thereof, except to the extent required by applicable law, regulation, legal process, or the rules of a national securities exchange; provided that any such required disclosure shall be subject to Section Four (4) to the extent applicable.
12. Independent Relationship. The Parties are independent contractors, and nothing in this Agreement creates or will be construed to create any partnership, joint venture, agency, fiduciary, employment, exclusivity, or other similar relationship between the Parties. Neither Party is authorized to make commitments of any kind, incur obligations, or enter into any agreement on behalf of the other Party, and neither Party shall hold itself out as having authority to do so. Nothing in this Agreement shall be construed to make either Party the agent, employee, legal representative, or partner of the other Party for any purpose whatsoever. Each Party will bear its own costs and expenses incurred in connection with the Purpose unless otherwise agreed in writing.
13. Regulated Information. Nothing in this Agreement authorizes or requires either Party to disclose U.S. Government classified information (as defined under Executive Order 13526, 75 Fed. Reg. 707 (Jan. 5, 2010), or any successor order), Controlled Unclassified Information (“CUI”) (as governed by Executive Order 13556 and 32 C.F.R. Part 2002), export-controlled technical data subject to ITAR (22 C.F.R. Parts 120–130) or EAR (15 C.F.R. Parts 730–774), or other information subject to special legal, contractual, or security handling requirements. The Parties expressly disclaim any intent to share classified information or CUI under this Agreement. Any such disclosure or access must be separately authorized in writing and may occur only after all applicable security authorizations, licenses, access controls, contractual requirements, and handling procedures are in place.
14. Compliance with Laws; Export Controls, Sanctions, and Anti-Corruption. Export Controls and Sanctions. Each Party shall comply with applicable anti-corruption, anti-bribery, sanctions, and export-control laws in connection with the Purpose, including, as applicable, the U.S. Foreign Corrupt Practices Act (15 U.S.C. §§ 78dd-1 et seq.), the International Traffic in Arms Regulations (“ITAR”) (22 C.F.R. Parts 120–130), the Export Administration Regulations (“EAR”) (15 C.F.R. Parts 730–774), and regulations administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) (31 C.F.R. Parts 500–598). Neither Party shall knowingly use, export, re-export, release, transfer, or disclose Proprietary Information in violation of applicable law. Each Party is responsible for determining and satisfying the legal requirements applicable to its own disclosure, receipt, access, use, and transfer of Proprietary Information. With respect to dual-use items and technologies, each Party shall (i) determine whether any Proprietary Information it discloses constitutes or contains items or technology controlled under EAR and obtain all required export licenses or authorizations before disclosure; (ii) not disclose EAR-controlled Proprietary Information to nationals of embargoed countries or parties on denied-party lists; and (iii) promptly notify the other Party if it determines that any Proprietary Information received may be subject to export-control restrictions that were not previously identified.
15. Anti-Corruption. Each Party represents, warrants, and covenants that, in connection with this Agreement and the Purpose, it has not and will not, directly or indirectly: (a) offer, promise, pay, give, or authorize the payment or transfer of any money, gift, or thing of value to any government official, political party, party official, or candidate for political office, or to any other person or entity, for the purpose of improperly influencing any act or decision, obtaining or retaining business, or securing any improper advantage; (b) engage in any act that violates the U.S. Foreign Corrupt Practices Act (15 U.S.C. §§ 78dd-1 et seq.), the U.K. Bribery Act 2010, or any other applicable anti-corruption or anti-bribery law or regulation; or (c) make any facilitation payments of any kind. Each Party shall maintain policies and procedures designed to ensure compliance with applicable anti-corruption laws and shall promptly notify the other Party in writing upon becoming aware of any actual or suspected violation of this Section in connection with this Agreement. Each Party shall, upon reasonable written request, provide the other Party with reasonable written certification of its compliance with this Section.
15. Privileged Information. Nothing in this Agreement requires either Party to disclose information protected by the attorney-client privilege, work-product doctrine, or any other applicable privilege or immunity. If privileged or protected information is inadvertently disclosed in connection with the Purpose, such disclosure is not intended to waive the applicable privilege or protection. Upon notice, the Receiving Party shall promptly return, destroy, or sequester the identified material and any copies, and the Parties shall reasonably cooperate to preserve the applicable privilege or protection to the fullest extent permitted by law.
16. Data Privacy. To the extent any Proprietary Information constitutes personal data, personal information, or personally identifiable information as defined under applicable privacy laws, including the General Data Protection Regulation (GDPR), the California Consumer Privacy Act (CCPA), and equivalent laws, each Party shall process such data only to the extent necessary for the Purpose and in compliance with applicable data protection laws. The Parties shall execute any additional data processing agreements required by applicable law. Neither Party shall use personal data received under this Agreement for its own independent commercial purposes. Where applicable law requires a lawful mechanism for the international transfer of personal data (including, without limitation, Standard Contractual Clauses issued by the European Commission or a UK International Data Transfer Addendum), the Parties shall implement such mechanism prior to transferring personal data across jurisdictions.
17. Demonstration Data. During the Term of this Agreement, Company may send Nominal materials for use with Nominal’s proprietary commercially available platform (the “Nominal Platform”). These materials may include information, data, files, content, instructions, code, and other materials supplied, submitted, uploaded, transmitted, or made available by or on behalf of Company to Nominal (hereinafter “Demonstration Data”). Company grants Nominal a limited, non-exclusive, non-transferable, royalty-free license during the Term to copy, store, process, and use the Demonstration Data in the Nominal Platform solely to create, modify, and present Demonstrations to Company and its Representatives in connection with the Purpose.
18. Demonstrations. “Demonstrations” here means any visual or audiovisual display, presentation, or rendering of the Nominal Platform, or of any of its features or functionality, prepared or provided by or on behalf of Nominal in connection with the Purpose, whether interactive or non-interactive, live or pre-recorded, and whether delivered in person, remotely, or asynchronously, which may include, depict, or reflect the ingestion, processing, analysis, visualization, or other use of Demonstration Data in the Nominal Platform. Demonstrations include, without limitation, live or guided walkthroughs; hands-on, sandbox, trial, or proof-of-concept environments; screen recordings and videos; screenshots; and dashboards, charts, or other views configured within the Nominal Platform, together with any copies or recordings of the foregoing.
18. Cloud and System Controls. The Receiving Party shall not store, transmit, or process Proprietary Information on or through any cloud storage service, SaaS platform, artificial intelligence or machine learning training system, or other third-party hosted service unless (A) such service is subject to confidentiality obligations no less protective than those set forth in this Agreement, and (B) the Receiving Party has assessed and is satisfied that the service’s security controls are appropriate for the sensitivity of the Proprietary Information. The Receiving Party shall not use Proprietary Information to train, fine-tune, or improve any artificial intelligence or machine learning model without the prior written consent of the Disclosing Party. Nothing in this Section restricts Nominal’s processing of Demonstration Data in the Nominal Platform, including its hosting infrastructure, as permitted under Section 18.
19. Restrictions on Demonstration Data. Company will not make available any Demonstration Data that contains Regulated Information as defined in Section 13 of this Agreement. Company further will not make available any Demonstration Data subject to export control, or other information subject to special legal, contractual, or security handling requirements. Company represents that they have
18. Usage Data. In the course of creating the Demonstrations, certain data may be collected, transmitted, and stored by Nominal in connection with this Agreement (“Usage Data”). Usage Data will include information related to the Platform, such as information about hardware devices and systems used to access and use the Platform, login information, user logs, and similar data. Usage Data will be used by Nominal for lawful purposes, including but not limited to, performing diagnostics and usage analyses, facilitating the provision of Software updates, providing product support, Professional Services, and other services, and to improve Nominal’s products and services and develop new ones. Usage Data will not contain Demonstration Data or other Company Proprietary Information. Nominal will not disclose Usage Data to any third party in a form that identifies Company or otherwise breaches this Agreement.
19. Ownership. As between the Parties, and subject to the terms and licenses set forth in this Agreement, Nominal owns all right, title, and interest in and to the Nominal Platform, including all improvements, modifications, and derivative works thereof, and the Nominal Platform constitutes Proprietary Information of Nominal. As between the Parties, and subject to the terms and licenses in this Agreement, Company owns its Demonstration Data and any Company-authored code that is independently created by Company and separable from the Nominal Materials. Demonstrations will be owned by Nominal but will not be disclosed to any third parties other than Company without prior written consent.
20. Feedback. During the Term, Company or its employees, contractors, or representatives may provide Nominal with suggestions, comments, feedback or the like with regard to the Nominal Materials (collectively, “Feedback”). Company hereby grants Nominal a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with Nominal’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the Nominal Materials. Company has no obligation to provide Feedback to Nominal.
18. Non-Solicitation. During the term of this Agreement and for one (1) year following its expiration or termination, neither Party shall directly solicit for employment any employee of the other Party with whom such Party had material contact in connection with the Purpose without the prior written consent of the employing Party; provided that this restriction shall not apply to (i) general public advertising or recruiting efforts not specifically targeted at such employees, or (ii) any employee who independently contacts the soliciting Party without solicitation.
20. Miscellaneous. Each Party represents and warrants that it has full right, power, and authority to enter into this Agreement and to perform its obligations hereunder, and that the execution of this Agreement has been duly authorized by all necessary corporate or organizational action. This Agreement will be governed by and construed in accordance with the laws of the State of New York, without giving effect to conflict-of-laws principles that would require application of another jurisdiction’s laws. Each Party irrevocably submits to the exclusive jurisdiction of the United States District Court for the Southern District of New York or, if such court lacks subject matter jurisdiction, the state courts of the State of New York located in the Borough of Manhattan, for any dispute arising out of or relating to this Agreement, and waives any objection to venue in such courts, including on the basis of forum non conveniens. EACH PARTY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT. This Agreement is the complete and exclusive agreement between the Parties with respect to its subject matter and supersedes all prior or contemporaneous agreements, communications, and understandings, oral or written, concerning such subject matter. No failure or delay by either Party in exercising any right, power, or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power, or remedy preclude any other or further exercise thereof or the exercise of any other right, power, or remedy. No waiver of any provision of this Agreement shall be effective unless made in writing and signed by a duly authorized representative of the waiving Party. This Agreement may be amended only by a written instrument executed by duly authorized representatives of both Parties. If any provision is held invalid, illegal, or unenforceable, it shall be enforced to the maximum extent permitted by law and the remaining provisions shall remain in full force and effect. Neither Party may assign this Agreement without the other Party’s prior written consent; provided that either Party may, without consent, assign this Agreement to an affiliate or to a successor to all or substantially all of the business or assets to which this Agreement relates, whether by merger, sale, operation of law, or otherwise. Subject to the foregoing, this Agreement is binding upon and inures to the benefit of the Parties and their respective successors and permitted assigns. The section headings used in this Agreement are for convenience of reference only and shall not affect the construction or interpretation of this Agreement. This Agreement may be executed in counterparts and by electronic signature, each of which will be deemed an original and all of which together constitute one instrument.
21. Survival. Sections 1 (Proprietary Information), 2 (Safeguarding and Restrictions), with respect to Proprietary Information disclosed during the term, 3 (Exceptions), 4 (Compelled Disclosure), 5 (Return or Destruction of Proprietary Information), 7 (No License), 8 (No Warranty), 10 (Equitable Relief), 14 (Compliance with Laws; Export Controls, Sanctions, and Anti-Corruption), 15 (Privileged Information), 16 (Data Privacy), 17 (Cloud and System Controls), and 20 (Miscellaneous) shall survive the expiration or termination of this Agreement for any reason. The survival of confidentiality and use obligations shall be subject to the periods set forth in Section 9 (Term).