Mutual Non-Disclosure Agreement
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THIS NON-DISCLOSURE AGREEMENT (this “Agreement”) is made and entered into as of the date of the last signature below (the “Effective Date”), by and between the person or entity listed in the signature block below (“Company”) and Hypori Inc., a Delaware company, having offices at 1801 Robert Fulton Drive, Suite 440, Reston, Virginia, 20191 Hereinafter, Hypori Inc., and Company may be collectively referred to as the “Parties” or individually referred to as a “Party.”
WHEREAS, the Parties represent that they each possess or may in the future possess certain technical, business, financial and other information which it considers proprietary to it; and
WHEREAS, it is recognized that, in order to consider business opportunities or engagements that may be of interest to the Parties and in connection with any current or future contractual relationship between the Parties, it may be both necessary and desirable that the Parties exchange the proprietary information described below.
NOW, THEREFORE, in consideration of the mutual covenants and promises set forth below, and other good and valuable consideration, the Parties agree as follows:
PURPOSE. This Agreement is entered for the purpose of __________________________________________________________ (“PURPOSE”).
1. PROPRIETARY INFORMATION. As used herein, the term “Proprietary Information” shall mean all information, technical data, trade secrets, know-how, business and financial information, pricing and other proprietary information, in written or documentary, recorded, machine readable, or other tangible form, that (i) relates to the Purpose, (ii) is clearly marked proprietary, confidential, or bears a marking of like import, or (iii) should reasonably be known by the receiving Party to be confidential. Information disclosed orally or visually shall be considered Proprietary Information only if it is identified as proprietary at the time of disclosure. Each Party shall endeavor to keep to a minimum the amount of Proprietary Information that is furnished to the other upon which restrictions are imposed.
2. NON-PROPRIETARY INFORMATION. Information shall not be deemed proprietary, and the receiving Party shall have no obligation with respect to any such information, that:
a. is or becomes known publicly through no wrongful act of the receiving Party; or
b. is known already to the receiving Party free of restriction; or
c. is authorized for release by the disclosing Party’s Designated Representative; or
d. is lawfully received by the receiving Party from a third party without restriction and without breach of this Agreement; or
e. is disclosed by the disclosing Party to a third party without a similar restriction on the rights of such third party; or
f. is developed independently by or for the receiving Party without reference to Proprietary Information and without a breach of this Agreement.
3. SAFEGUARDING AND LIMITATIONS ON USE. The receiving Party shall hold Proprietary Information of the disclosing Party in confidence and use such information solely for the Purpose set forth above, except where additional use and disclosure is permitted in writing by the disclosing Party.
4. PERIOD OF NONDISCLOSURE. The receiving Party shall not disclose to any third-party Proprietary Information received pursuant to this Agreement, in whole or in part, for the term of this Agreement unless otherwise permitted herein. Notwithstanding anything to the contrary herein, protection of technical information about a disclosing Party’s current products and services and all information about possible unreleased products or services shall never expire.
5. DEGREE OF CARE. The receiving Party shall (i) use at least the same degree of care in safeguarding Proprietary Information as it uses for its own proprietary information of like import provided such degree of care is reasonably calculated to prevent inadvertent disclosure or unauthorized use, (ii) limit access to Proprietary Information to those of its directors, officers, employees, contractors, advisors, and agents (collectively “Representatives”) who have a need to know and inform its Representatives who have access to Proprietary Information of its obligations under this Agreement, and (iii) upon discovery of any inadvertent disclosure or unauthorized use of Proprietary Information, promptly use reasonable efforts to prevent any further inadvertent disclosure or unauthorized use and promptly notify the disclosing Party. Neither Party shall be liable for monetary damages for any inadvertent disclosure thereof where the aforementioned degree of care has been exercised.
6. NOTICES AND AUTHORIZATIONS. All notices and authorizations under this Agreement shall be furnished in writing to the following individuals (“Designated Representative”):
Hypori Inc. “Company”
Att: Contracts Department Att:
11044 Research Boulevard Address:
Building B, Suite 530
Austin, TX 78759
Email: [email protected] Email:
Each Party may change its above-named designee(s) by written notice to the other Party.
7. RESTRICTIVE LEGEND. If the Purpose of this Agreement is for the receiving Party to submit a proposal to the U.S. Government, the receiving Party may disclose Proprietary Information of the disclosing Party to the U.S. Government with the restrictive legend at Federal Acquisition Regulation (FAR) 52.215-1(e).
8. COMPELLED DISCLOSURE. Nothing in this Agreement will prevent a receiving Party from disclosing Proprietary Information as required by order of a court or governmental entity of competent jurisdiction; provided that, before complying with such order, the receiving Party: i) asserts the confidentiality of the Proprietary Information sought; and ii) immediately notifies the disclosing Party of the order, in writing (email being sufficient), so the disclosing Party, with the cooperation of the receiving Party at the expense of the disclosing Party may seek to prevent or limit any required disclosure. In any event, the receiving Party shall disclose only so much of the Proprietary Information as it is legally compelled to disclose and will take commercially reasonable steps to obtain assurances that any Proprietary Information it must disclose will be treated confidentially to the extent possible.
9. TERM. This Agreement shall become effective upon its execution by both Parties as of the effective date above and shall apply only to Proprietary Information disclosed by the disclosing Party during the period of three (3) years following the effective date (“the Term”). This Agreement and its obligations shall automatically terminate from the date hereof. The Term may be extended by mutual written agreement between the Parties.
10. COSTS. Each Party shall bear all costs and expenses incurred by it in complying with this Agreement. This Agreement is solely for the purpose of protecting Proprietary Information and shall not be construed as a teaming agreement, joint venture, or other contractual arrangement or as an obligation to enter into a contract, subcontract, or other business relationship.
11. LICENSE AND TITLE. Nothing contained in this Agreement shall be construed as (i) requiring the disclosing Party to disclose, or the receiving Party to accept, any particular information, or (ii) granting to a Party a license, either express or implied, under any patent, copyright, trade secret, mask work protection right or other intellectual property right now or hereafter owned, obtained or licensable by the other Party. All Proprietary Information will remain the exclusive property of the disclosing Party or its licensors.
12. LIMITED WARRANTY. The disclosing Party warrants that it has the right to transmit or otherwise disclose to the receiving Party information disclosed to the receiving Party hereunder. Except for warranties arising from other signed agreements between the Parties, the disclosing Party makes no other warranties, express or implied, with respect to information delivered under this Agreement.
13. APPLICABLE LAW; JURISDICTION. This Agreement shall be subject to, and construed in accordance with, the laws of the Commonwealth of Virginia without regard to the conflict of law provisions of that state. All controversies or disputes arising out of this Agreement shall be heard in either the Circuit Court of Fairfax County, Virginia or the U.S. District Court for the Eastern District of Virginia, Alexandria Division. THE PARTIES HEREBY UNCONDITIONALLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING DIRECTLY OR INDIRECTLY OUT OF, RELATED TO, OR IN ANY WAY CONNECTED WITH, THE PERFORMANCE OR BREACH OF THIS AGREEMENT, OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN THEM. The scope of this waiver is intended to be all encompassing of any and all disputes that may be filed in any court or other tribunal. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT, AND RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. In the event of litigation, this Agreement may be filed as consent to a trial by the court.
14. CLASSIFIED INFORMATION. To the extent that the obligations of the Parties hereunder require or involve access to classified information, such information shall be protected under the National Industrial Security Program Operating Manual (NISPOM), any applicable U.S. Government security policy and program directives, and/or the security laws of any nation or group of nations, as applicable.
15. EXPORT. Each Party represents and warrants that, except as allowed under applicable U.S. Government export laws and regulations, no technical data, hardware, software, technology, or other information furnished to it hereunder shall be disclosed to any foreign person, firm, or country, including foreign persons employed by or associated with such Party. Furthermore, the receiving Party shall not allow any re-export of any technical data, hardware, software, technology, or other information furnished, without first complying with all applicable U.S. Government export laws and regulations. Prior to exporting any technical data, hardware, software, technology, or other information furnished hereunder, the receiving Party shall obtain the advance written approval of the other Party.
16. EQUITABLE REMEDIES. The Parties acknowledge that money damages may not be sufficient remedy for any breach of this Agreement by either Party and that the non-breaching Party may be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed exclusive remedies for breach but shall be in addition to all other remedies available at law or equity to the non-breaching Party.
17. ASSIGNMENT. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns. Neither Party may assign or transfer its rights or obligations under this Agreement without the prior written consent of the other; provided, however, that either Party may, without consent, assign this Agreement as a result of a merger or a sale of all or substantially all of the assets or stock of that Party or to a parent, subsidiary or affiliate as part of any internal reorganization.
18. SEVERABILITY. Should any provision of this Agreement be determined to be unenforceable or prohibited by any applicable law, this Agreement shall be considered severable as to such provision which shall then be inoperative, but the remaining provisions shall be valid and binding.
19. WAIVER. Disclosing Party’s failure to enforce receiving Party’s performance of any term herein will not constitute a waiver of disclosing Party’s right to subsequently enforce such term or any other term of this Agreement.
20. ORDER OF PRECEDENCE. The rights and obligations of the Parties under this Agreement shall take precedence over specific legends or statements associated with Proprietary Information received hereunder.
21. ENTIRE AGREEMENT AND MODIFICATIONS. This Agreement contains the entire understanding between the Parties, superseding all prior or contemporaneous communications, agreements, and understandings between the Parties with respect to the subject matter hereof. This Agreement may not be modified in any manner except by written amendment executed by each of the Parties.
Last updated: 08/10/2022