MUTUAL NONDISCLOSURE ANDNON-CIRCUMVENTION AGREEMENT
This Mutual Nondisclosure and Non-Circumvention Agreement (the “Agreement”) is entered into as of the date of the last signature below (the “Effective Date”) by and between:
(a) DataPaid Inc., of Dock 72, Brooklyn, New York 11205 (“DataPaid”); and
(b) the company that completes the “Company” signature block below (“Company”).
DataPaid and Company are each a “Party” and together the “Parties.”
Company holds or controls operational or other business data (the “Company Data”). DataPaid wishes to evaluate certain Company Data and, if the Parties later agree in a separate written license, to acquire or license Company Data from Company. This Agreement governs that evaluation. It is not a data license and does not grant DataPaid or any Lab any right to use Company Data beyond the Purpose described below.
1. Purpose
The “Purpose” is DataPaid’s evaluation of the Evaluation Materials (defined below), including limited sharing with a Lab under a separate nondisclosure agreement as permitted by Section 4, during the Evaluation Period (defined in Section 6.1), solely to decide whether to negotiate a data license with Company. No Party is required to enter into any further agreement.
2. Definitions
2.1 Confidential Information. “Confidential Information” means all non-public information a Party discloses to the other Party, in any form, whether or not marked confidential, including: (i) as to Company, the Evaluation Materials and any other non-public information about the Company Data or Company’s business, customers, pricing, or operations; and (ii) as to DataPaid, the identity of any Lab or other actual or prospective buyer or licensee, DataPaid’s terms, process, and pricing, and any other non-public information about DataPaid’s business or its relationships with Labs and buyers.
2.2 Evaluation Materials. “Evaluation Materials” means only the data, files, descriptions, and information that Company actually delivers to DataPaid under this Agreement for this evaluation. Evaluation Materials do not include any other Company Data, or any later or additional delivery, unless the Parties agree in a writing signed by both Parties that the delivery is covered by this Agreement.
2.3 Lab. “Lab” means an artificial-intelligence laboratory or similar organization that develops, trains, or evaluates machine-learning models, together with its affiliates acting in the same evaluation.
3. Confidentiality
3.1 Obligations. Each Party will: (a) hold the other Party’s Confidential Information in strict confidence; (b) use it only for the Purpose; (c) protect it with at least the same degree of care it uses for its own confidential information, and in no event less than reasonable care; and (d) disclose it only as this Agreement expressly allows.
3.2 Need-to-know personnel. A Party may share the other Party’s Confidential Information with its employees, officers, directors, attorneys, and contractors who need to know it for the Purpose and who are bound by confidentiality duties at least as protective as this Agreement. This Section 3.2 does not allow DataPaid to share Evaluation Materials with any third party other than a Lab as provided in Section 4.
3.3 Exceptions. Confidential Information does not include information that the receiving Party can show: (a) is or becomes public through no breach of this Agreement; (b) was already in its possession without a confidentiality duty; (c) is independently developed without use of the disclosing Party’s Confidential Information; or (d) is rightfully received from a third party without a confidentiality duty.
3.4 Compelled disclosure. If the receiving Party is legally required to disclose Confidential Information, it will, if legally allowed, give the disclosing Party prompt notice so the disclosing Party may seek a protective order, and will disclose only the portion legally required.
4. Limits on DataPaid’s Use and Sharing
4.1 Sharing only with a Lab under a separate NDA. DataPaid may disclose Evaluation Materials and other Company Confidential Information only to a Lab, and only if DataPaid has a separate written nondisclosure agreement in place with that Lab that covers those materials, limits their use to evaluation, and restricts further disclosure (a “Lab NDA”). DataPaid will not share Evaluation Materials with any other buyer, broker, publisher, vendor, or person.
4.2 No schedule or identification required. DataPaid is not required to identify any Lab to Company, to list any Lab on a schedule, or to obtain Company’s further consent before making a disclosure permitted by Section 4.1. The identity of each Lab is DataPaid’s Confidential Information.
4.3 Lab use. A Lab may not further disclose or use the Evaluation Materials except as its Lab NDA and this Agreement allow, and in all cases only to evaluate them. DataPaid is responsible for any use or disclosure of the Evaluation Materials by a Lab that would breach this Agreement if done by DataPaid.
4.4 No license; no training or commercial use. Company retains all right, title, and interest in the Evaluation Materials and the Company Data. This Agreement is not a license, assignment, or option, except the limited right to use Evaluation Materials for the Purpose. Neither DataPaid nor any Lab may use the Evaluation Materials to train, fine-tune, or operate a model, to build a dataset or product, or for any commercial use or other purpose beyond the Purpose, unless and until a separate written license is signed.
4.5 Authority to disclose. Company represents that it has the right to disclose the Evaluation Materials to DataPaid for the Purpose. Each Party will handle any personal information in the Evaluation Materials in accordance with applicable law.
5. Non-Circumvention
5.1 No circumvention. During the Non-Circumvention Period, Company will not, directly or indirectly, contact, solicit, negotiate with, or otherwise deal with any Lab or other buyer that DataPaid identifies or introduces to Company, or that Company learns of through DataPaid, for the purpose of licensing, selling, or otherwise providing the same or similar data, in a manner that bypasses DataPaid or cuts DataPaid out of the transaction.
5.2 No use of DataPaid’s information. Company will not use DataPaid’s Confidential Information, including the identity of any Lab or other buyer, to circumvent DataPaid.
5.3 Period. The “Non-Circumvention Period” is twenty-four (24) months after the Effective Date.
5.4 Existing discussions. This Section 5 does not restrict Company’s existing written discussions already underway as of the Effective Date with parties that DataPaid did not introduce.
6. Evaluation Period; Deletion of Evaluation Materials
6.1 Evaluation Period; renewal. The “Evaluation Period” is ninety (90) days after the Effective Date. Company may renew the Evaluation Period only by a writing signed by Company and delivered to DataPaid before the Evaluation Period ends. Unless the renewal writing says otherwise, each renewal starts a new ninety (90)-day Evaluation Period on the date of the renewal. A renewal under this Section 6.1 does not require DataPaid’s signature.
6.2 Mandatory deletion. Unless Company has renewed the Evaluation Period under Section 6.1, when the Evaluation Period ends DataPaid will promptly and permanently delete and destroy all Evaluation Materials, and all copies and extracts of them, in its possession or control, including backup copies. DataPaid will also instruct in writing each Lab that received Evaluation Materials to permanently delete and destroy them, and all copies and extracts of them, in the same way. On Company’s request, DataPaid will confirm in writing that it has done so. DataPaid may not retain Evaluation Materials for the remainder of the Term or for any other purpose.
6.3 Other return or destruction. Upon the disclosing Party’s written request, or when the Purpose ends, the receiving Party will promptly return or securely destroy the disclosing Party’s other Confidential Information in its possession and confirm that in writing. For Confidential Information other than Evaluation Materials, the receiving Party may keep one copy solely for legal or archival purposes, still subject to this Agreement.
6.4 Obligations continue. The end of the Evaluation Period and the deletion of Evaluation Materials do not end any Party’s confidentiality obligations or Company’s obligations under Section 5, which continue as stated in Section 7.
7. Term and Survival
This Agreement begins on the Effective Date and continues for three (3) years (the “Term”). The Term does not extend DataPaid’s right to hold Evaluation Materials, which ends as provided in Section 6. Confidentiality obligations survive for three (3) years after the applicable disclosure (and, for trade secrets, for so long as they remain trade secrets). Section 5 survives for the Non-Circumvention Period. Sections 4.4, 6, 8, 9, and 10 also survive.
8. No Obligation; No Warranty
Nothing in this Agreement obligates either Party to enter into a license or any other transaction, or to disclose any particular information. Evaluation Materials are provided “as is,” without warranty of any kind, except as stated in Section 4.5.
9. Remedies
A breach of this Agreement may cause irreparable harm for which money damages would be inadequate. The harmed Party is entitled to seek injunctive or other equitable relief, without proving actual damages or posting a bond, in addition to any other remedies available at law or in equity.
10. General
10.1 Governing law; venue. This Agreement is governed by the laws of the State of New York, without regard to conflict-of-laws rules. The state and federal courts located in Kings County, New York, have exclusive jurisdiction over disputes arising out of this Agreement, and each Party consents to that venue.
10.2 Entire agreement; amendments. This Agreement is the entire agreement between the Parties on this subject and supersedes prior discussions relating to it. It may be amended only in a writing signed by both Parties.
10.3 Assignment. Neither Party may assign this Agreement without the other Party’s prior written consent, except to a successor in a merger or a sale of substantially all of its assets, provided the successor agrees in writing to be bound. This Agreement binds and benefits the Parties and their permitted successors and assigns.
10.4 Notices. Notices under this Agreement may be given by email and are effective on sending, unless the sender receives an immediate failure notice. Notices to DataPaid go to hello@datapaid.ai, or to any updated address DataPaid provides in writing. Notices to Company go to the email listed in Company’s signature block, or to any updated address Company provides in writing.
10.5 Severability; waiver; counterparts; electronic signatures. If a provision is held unenforceable, the rest of this Agreement remains in effect, and the provision will be modified to the minimum extent necessary to make it enforceable. A waiver must be in writing and applies only to the instance it describes. This Agreement may be signed in counterparts and by electronic signature, including a typed name entered in an electronic form and delivered as a PDF, each of which is deemed an original, and all of which together are one instrument.
The Parties have signed this Agreement as of the Effective Date.
DATAPAID INC.
COMPANY
Working draft prepared for DataPaid Inc. Not legal advice. Each Party should have counsel review this Agreement before signing.