Participant Company Name:
Participant Company Address:
This Mutual Non-Disclosure Agreement (“Agreement”) is entered into and is effective as of Today's Date by and between Q- MATICS, LLC (“Q-MATICS”), having offices at 7651 Southland Boulevard, Orlando, Florida 32809, and the “Participant” identified above (each a “Party” and together the “Parties”). In order to protect certain Confidential Information, as described below, Q-MATICS and the Participant agree as follows:
1. Disclosing Party; Receiving Party. The Party disclosing Confidential Information is referred to below as the “Disclosing Party.” The Party to whom Confidential Information is disclosed is referred to below as the “Receiving Party.”
2. Description of Confidential Information. “Confidential Information” is any information of a Disclosing Party and its affiliates in whatever form or medium (and includes any copies of such information that Receiving Party is authorized to make hereunder) that is: (a) proprietary or confidential to Disclosing Party or its affiliates or to their respective customers, suppliers or other business partners including, without limitation, information that is embedded in, or related to any product or the development, testing or commercial exploitation thereof, in whatever form or media; (b) is either specifically identified as proprietary or confidential prior to or at the time of its disclosure or would generally be considered proprietary or confidential in the wireless communications industry; and (c) directly or indirectly disclosed or to which Receiving Party is otherwise provided access by Disclosing Party or on Disclosing Party’s behalf. For the purposes of clarification, in relation to any discussions relating to patent rights, any prior art identified by Disclosing Party as a result of Disclosing Party expending time and/or money will constitute Confidential Information and may be used, reproduced or disclosed only as specifically provided herein.
3. Purpose. For purposes of this Agreement, “Purpose” means: (a) assessing the desirability or viability of establishing or furthering a business or contractual relationship between the Parties; and (b) to the extent this Agreement is incorporated by reference into any other agreement, achieving the objectives of that agreement.
4. Use, Disclosure and Reproduction. Except as specifically provided herein, Receiving Party will hold Confidential Information in strict confidence. Receiving Party will use and reproduce the Confidential Information only to the extent reasonably required to fulfill the Purpose. It will not be a breach of the obligations of Receiving Party if Receiving Party provides access to Confidential Information to, and authorizes the use and reproduction of the Confidential Information as is reasonably required to fulfill the Purpose by Receiving Party’s employees, agents or other representatives (“Representative(s)”); however, Receiving Party will be vicariously liable for the failure of any Representative to whom Confidential Information is disclosed to comply with Receiving Party’s obligations hereunder and, provided further, that the Representative has a need to know the Confidential Information to fulfill the Purpose, and has entered into a confidentiality agreement with Receiving Party on terms that afford no less protection to the Confidential Information than the terms of this Agreement. Receiving Party will not alter, modify, adapt, create derivative works, translate, deface, decompile, disassemble, convert into human readable form, or reverse engineer in whole or in part any Confidential Information.
5. Confidentiality Term. Receiving Party’s duties with respect to Confidential Information under this Agreement will expire three (3) years from the Effective Date hereunder (except for trade secrets, which will remain subject to the terms of this Agreement for so long as they constitute trade secrets). However, that any Confidential Information that constitutes a trade secret or intellectual property under applicable law shall be protected by this Agreement in perpetuity and shall survive the Confidentiality Period or termination of this Agreement.
6. Standard of Care. Receiving Party will use due care to prevent the unauthorized use, reproduction or disclosure of Confidential Information, which care will not be less than the degree of care that Receiving Party uses to protect Receiving Party’s own Confidential Information. For clarification, the foregoing sentence does not authorize Receiving Party to allow third parties to whom Receiving Party generally permits access to Receiving Party’s Confidential Information, access to Disclosing Party’s Confidential Information.
7. Exclusions. Information that Receiving Party can establish: (a) was lawfully obtained from a third party before receipt from Disclosing Party; or (b) is or becomes a matter of public knowledge through no fault of Receiving Party or breach of this Agreement; or (c) was independently developed or discovered by Receiving Party without use of Disclosing Party’s Confidential Information, will not be considered Confidential Information under this Agreement.
8. No Warranty. This Agreement does not obligate either Party to disclose any Confidential Information. All information disclosed hereunder is provided “as is” and neither Party makes any representation, warranty or guarantee whatsoever about such information or the accuracy or completeness thereof.
9. No Rights. Receiving Party hereby acknowledges and agrees that: (a) the Confidential Information has been developed at significant cost to Disclosing Party and has significant commercial value to Disclosing Party; and (b) Receiving Party will not acquire any ownership right, interest or title in or to any Confidential Information under this Agreement other than the rights expressly granted in Paragraph 3 above.
10. No Obligation. Nothing herein will obligate either Party to proceed with any transaction between them, and each Party reserves the right, in such Party’s sole discretion, to terminate the discussions contemplated by this Agreement. This Agreement does not constitute a joint venture or other such business agreement.
11. Non-Circumvention. The Parties agree and guarantee that they will pay a legal monetary penalty that is equal to the commission or fee the circumvented Party should have realized in such transactions, by the person(s) engaged on the circumvention for each occurrence.
12. No Agency. This Agreement does not create any agency or partnership relationship between the Parties.
13. Entire Agreement; Modifications. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter of this Agreement and cancels and supersedes any and all prior discussions, correspondence, understandings, agreements, or communication of any nature relating to the subject matter of this Agreement. All other amendments to or modifications of this Agreement must be made in writing and must be signed by both Parties.
14. Assignment. This Agreement may not be assigned by either Party without the other Party’s prior written authorization. Subject to the foregoing, this Agreement will inure to the benefit of and be binding upon the Parties, their successors and assigns.
15. Return or Destruction of Confidential Information. Upon the written request by Disclosing Party, Receiving Party shall either return to Disclosing Party or destroy all Confidential Information in its possession, including all copies of the same and all notes, analyses, compilations, studies or other documents prepared by, for or on behalf of Receiving Party or its Representatives that contain, reflect or are developed from such information. Notwithstanding the foregoing, to the extent Confidential Information is retained in electronic form in back-ups or electronic archives, the retention of such Confidential Information by Receiving Party after a request to return or destroy such Confidential Information is received shall not be a violation of this Agreement, provided (i) the Receiving Party has made a good faith effort to comply with the request to return or destroy such Confidential Information, (ii) such electronic back- ups or archives are subject to a written document retention policy which provides for their ultimate destruction, and (iii) such electronic copies of such Confidential Information are not actually accessed other than to determine their content for purposes of complying with either the document retention policy or an applicable court order.
16. Legally Required Disclosure. Nothing in this Agreement will prohibit Receiving Party from disclosing Confidential Information if legally required to do so by judicial or governmental order or by deposition, interrogatory, request for documents subpoena, civil investigative demand or similar process in a judicial or governmental proceeding (“Required Disclosure”), provided that: (a) Receiving Party promptly provides written notice to Disclosing Party so that Disclosing Party may seek a protective order or other remedy; and (b) in any event, Receiving Party only discloses such portion of the Confidential Information that Receiving Party is legally compelled to disclose. Any such required disclosure will not, in and of itself, change the status of disclosed information as Confidential Information under the terms of this Agreement.
17. Notices. All notices and other communications hereunder must be in writing and will be deemed given upon receipt by U.S. Mail or email to the address specified above or below.
18. Severability. If a court of competent jurisdiction declares any provision in this Agreement to be invalid or unenforceable, such invalidity or unenforceability will have no effect on the remainder of the Agreement which will remain in full force.
19. Governing Law; Injunctive Relief. This Agreement is to be governed by and construed under the laws of the State of Florida. The Parties hereby irrevocably consent to the jurisdiction of the state and federal courts located in Orange County, Florida, in any action arising out of or relating to this Agreement and waive any other venue to which either party might be entitled by domicile or otherwise. Each Party further waives any right to a trial by jury with respect to any lawsuit or judicial proceeding arising or relating to this Agreement. Receiving Party acknowledges and agrees that any violation of Receiving Party’s obligations under this Agreement may cause irreparable harm to Disclosing Party for which a monetary remedy at law may not be adequate and, therefore, in addition to any and all other remedies available to Disclosing Party, Disclosing Party may be entitled to injunctive relief or other equitable remedies in the event of any threatened or actual violation of any or all provisions hereof without the necessity of showing irreparable harm or the posting of bond, or by posting bond at the lowest amount required by law.
20. Signatures and Counterparts. This Agreement may be signed in two or more counterparts, each of which will be deemed to be an original and all of which together will constitute a single unified instrument. The execution and delivery of this Agreement and its transmission by facsimile or email or other electronic document transfer will be binding and enforceable by and against each Party. The person signing on behalf of each Party below has been duly authorized by such Party to execute and deliver this Agreement.
ACCEPTED AND AGREED TO BY:
November 30, 2023
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Signed by Peter Giansante
Signed On: January 31, 2022
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Document Name: NDA
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