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Seller Application

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NONDISCLOSURE AGREEMENT


1. Purpose. The Company and The Client wish to explore a business opportunity under which the Company will disclose its Confidential Information to The Client.


2. Definition. “Confidential Information” means any information, technical data, or know-how, including, but not limited to, that which relates to research, product plans, products, services, customers, markets, software, developments, inventions, processes, designs, drawings, engineering, hardware configuration information, marketing or finances. Confidential Information does not include information, technical data or know-how which: (i) was in the public domain at the time it was disclosed or falls within the public domain, except through fault of The Client; or (ii) was known to The Client at the time of disclosure, which knowledge The Client shall have the burden of establishing by clear and convincing evidence; or (iii) was disclosed after written approval of the Company; or (iv) becomes known to The Client from a source other than the Company provided that such source was not known by The Client to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company or any other party with respect to such information; or (v) is disclosed to third parties by the disclosing party without a duty of confidentiality; or (vi) was independently developed by The Client without the benefit of data received from the Company, which independent development the receiving party shall have the burden of establishing by clear and convincing evidence.


3. Non-Use and Non-Disclosure of Confidential Information. The Client agrees not to use the Confidential Information disclosed to it by the Company for its own use or for any purpose except to carry out discussions concerning, and the undertaking of, any business relationship between the Company and The Client. will not disclose any Confidential Information of the Company to third parties except those employees, consultants and agents of The Client who are required to have the information in order to carry out the discussions and the undertaking of the contemplated business relationship. The Client has had or will have those employees, consultants and agents to whom Confidential Information of the Company is disclosed or who have access to Confidential Information of the Company sign a Non-Disclosure Agreement in content substantially similar to this Agreement. The Client agrees that he will take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of the Company in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized hereunder to have any such information, which measures shall include the highest degree of care that The Client utilizes to protect his own Confidential Information of a similar nature. The Client agrees to notify the Company in writing of any misuse or misappropriation of such Confidential Information of the Company which may come to his attention.


4. Mandatory Disclosure. In the event that The Client or his respective employees, consultants or agents are requested or required by legal process to disclose any of the Confidential Information of the Company, The Client shall give prompt notice so that the Company may seek a protective order or other appropriate The Client. In the event that such protective order is not obtained and The Client required to make such disclosure, The Client shall disclose only that portion of the Confidential Information which its counsel advises that it is legally required to disclose.


5. Return of Materials. Any materials or documents which have been furnished by the Company to The Client will be promptly returned, accompanied by all copies of such documentation, after the business possibility has been rejected or concluded.


6. No License Granted. Nothing in this Agreement is intended to grant any rights to The Client under any patent, copyright, trade secret or other intellectual property right nor shall this Agreement grant The Client any rights in or to the Company's Confidential Information, except the limited right to review such Confidential Information solely for the purposes of determining whether to enter into and undertaking the proposed business relationship between the parties.


7. Term. The foregoing commitments of either party in this Agreement shall survive any termination of discussions and/or undertaking between the parties, and shall continue for a period of three (3) years following the date of such termination.


8. Miscellaneous. This Agreement shall be binding upon and for the benefit of the undersigned parties, their successors and assigns, provided that Confidential Information of the Company may not be assigned without the prior written consent of the Company.


9. Governing Law and Jurisdiction. This Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of California, and shall be binding upon the parties hereto. The federal and state courts within the State of California shall have exclusive jurisdiction to adjudicate any dispute arising out of this Agreement.


10. Remedies. The Client agrees that his obligations hereunder are necessary and reasonable in order to protect the Company and the Company's business, and expressly agrees that monetary damages would be inadequate to compensate the Company for any breach of any covenants and agreements set forth herein. Accordingly, The Client agrees and acknowledges that any such violation or threatened violation will cause irreparable injury to the Company and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the Company shall be entitled to obtain injunctive The Client against the threatened breach of this Agreement or the continuation of any such breach, without the necessity of proving actual damages.


11. No Obligation. Nothing herein shall obligate either party to proceed with any transaction between them, and each party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement concerning the business opportunity.


12. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED "AS IS". THE COMPANY MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE.

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