NON-DISCLOSURE AGREEMENT
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Both Wonderfull Inc. and signed dealership in this email Together with its affiliates
(Respectively referred to as the “Party”, and together as the “Parties”).
WHEREAS the Parties wish to exchange information for the Project of potential business opportunity in the interest of both Parties (the “Project” means the DJI agriculture drones from HK DJI Software Technology Co. Ltd) that would be to the mutual benefit of the Parties and each of the Parties desires to protect the confidentiality of certain information that may be included in the aforesaid exchange.
NOW, THEREFORE, for and in consideration of the mutual promises contained herein, the Parties hereto, intending to be legally bound, do agree as follows:
1. DEFINITIONS, INTERPRETATION, AND ORDER OF PRECEDENCE
1.1. Definition. Capitalized terms used herein, shall have the meaning set forth in this Section
1.2 Unless the context requires otherwise.
“Affiliate” means, with respect to a Party, any other individual or entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with, such Party.
“Agreement” means this Non-disclosure Agreement.
“Business Day” means a day (other than a Saturday, Sunday or public holiday)
“Change of Control” means any single transaction or series of related transactions which result in the transfer of the direct or indirect ownership of more than 50% of the issued and outstanding voting shares, or any securities convertible into voting shares, of the Recipient, other than an initial or secondary public offering of shares in the Recipient or a change of control resulting from private financing upon such terms as the Discloser agrees in writing.
“Confidential Information”
Shall have the meaning ascribed to it in Section 2.1.
“Discloser” means a Party disclosing the Confidentiality Information to the other Party under this Agreement.
“Effective Date” shall have the meaning ascribed to it in the preamble.
“Event of Default” means the occurrence or existence of any of the following:
(a) Failure of the Recipient to perform or comply with any obligations, terms, agreements, covenants, representations, warranties or conditions contained in this Agreement;
(b) Inability or admission of its inability of the Recipient to pay its debts as they fall due or suspends making payments on any of its debts.
“Party” or “Parties”
Shall have the meaning ascribed to it in the preamble.
“Permitted Personnel”
Shall have the meaning ascribed to it in Section 2.5.
“Project” shall have the meaning ascribed to it in the recital.
“Recipient” means a Party receiving the Confidentiality Information from the other
Party under this Agreement.
1.3. Interpretation. The following rules of interpretation apply unless the context requires otherwise:
(a) Headings to clauses and paragraphs are for ease of reference only and shall not affect construction thereof.
(b) Save for where the context otherwise requires, words importing the singular include the plural and vice versa.
(c) Save for where expressly provided otherwise, words denoting one gender only shall include the other gender and vice versa.
(d) Unless specified otherwise herein, all references to time in this Agreement are Expressed and shall be construed in accordance with the Gregorian calendar.
(e) References to parties and clauses are to the parties to and the clauses of this Agreement.
2. CONFIDENTIAL INFORMATION
2.1. Definition
2.1.1. Confidentiality Information shall mean:
(a) any information disclosed, directly or indirectly, by Discloser to Recipient pursuant to this Agreement (including, without limitation, information regarding research, development, product plans, products, services, equipment, software, trade secrets, inventions, know-how, processes, designs, drawings, formulations, specifications, product configuration information, prototypes, samples, data sets, marketing and finance matters, procurement manufacturing, markets, customers, investors sales, and forecasts) that:
(i) if in written, graphic, machine readable or other tangible forms, is marked “Confidential,” “Proprietary” or in other manner to indicate its confidential.
(b) Nature condition
(ii) if disclosed orally, is designated as confidential at the time of its initial disclosure; and
(iii) is otherwise reasonably expected to be treated in a confidential manner under the circumstances of disclosure under this Agreement or by nature of the information itself;
(c) information of a third party that is in the possession of Discloser and is disclosed to Recipient under this Agreement; and
(d) terms and conditions of this Agreement, the very existence of the Project, as well as any and all related discussions, negotiations, and agreements between Parties.
Notwithstanding the foregoing, in any case of doubt regarding confidentiality of any information in connection with the Discloser, this Agreement as well as the Project to which the Recipient in any way has access, Recipient shall treat such information as Confidential Information unless informed otherwise.
2.1.2. Confidential Information shall not include any information disclosed or made available to the Recipient which:
(a) prior to its disclosure by the Discloser, is already lawfully and rightfully known by or available to the Recipient;
(b) through no wrongful act, fault, or negligence on the part of the Recipient is or hereafter becomes generally available to the public;
(c) is developed by the Recipient independently without use of or reference to the Confidential Information;
(d) is lawfully received by the Recipient from a third party without restriction and without breach of this Agreement or any other agreement; or
(e) is approved for public release or use by written authorization of the Discloser.
The burden of demonstrating the applicability of any of the exceptions set out above shall be upon the Party seeking to rely on such exception.
2.2. Non-use and Non-disclosure.
Recipient shall not use the Confidential Information for any purposes except to evaluate, review, discuss and, as the case may be, perform and complete the Project or its potential participation or involvement in relation thereto, and shall not disclose any Confidential Information to its employees or any third party unless permitted under this Agreement or otherwise approved by the Discloser in writing.
Recipient shall not reverse engineer, disassemble or decompile any samples, prototypes, software or other tangible objects that embody the Confidential Information provided by the Discloser to the Recipient except with the express written authorization from the Discloser. Recipient acknowledges and agrees that any unauthorized disclosure or use by the Recipient, whether intentional or unintentional, of any of the Confidential Information, shall be detrimental to the Discloser.
2.3. Maintenance. Recipient agrees to protect and treat as confidential the Confidential Information, with at least of the same standard of care that the Recipient uses in protecting its own Confidential Information but in no event less than commercially reasonable care.
2.4. Additional Precautions. Without prior approvals of the Discloser, the Recipient shall not, except in pursuit of the limited purpose of the Project:
(a) copy or otherwise duplicate any Confidential Information of the Discloser, in whole or in part, including derivations or
(b) disclose any knowledge, product, process, or procedure derived or developed from the Confidential Information by the Recipient to any third party not directly involved in the Project. Any copy of Confidential Information authorized by the Discloser to be made by Recipient shall conspicuously display a marking or statement indicating the Discloser’s proprietary interest therein.
2.5. Permitted Personnel.
The Recipient shall only disclose the Confidential Information to its directors, officers, employees or legal, financial or tax advisers (the “Permitted Personnel”) with a demonstrable need to know such Confidential Information in connection with their activities relating directly to the proposed Project and restrict the disclosure, dissemination, and availability of any such Confidential Information to the Permitted Personnel.
The Recipient shall ensure that any Permitted Personnel do not disclose to any other third parties or otherwise use Confidential Information except pursuant to the terms of this Agreement. Recipient shall cause its Permitted Personnel to sign non-disclosure agreements in content at least as protective of Discloser and the Confidential Information as of the provisions of this Agreement, prior to any disclosure of Confidential Information to such Permitted Personnel.
Notwithstanding the foregoing, the Recipient shall be held liable for any breach of this Agreement, the virtue of non-compliance with the provisions herein by the Permitted Personnel.
2.6. Notice on Breach.
Recipient shall inform the Discloser immediately on becoming aware, or suspecting, that any unauthorized third party has become aware of any Confidential Information or that any terms or conditions of this Agreement have been breached in any way by the Recipient or the Permitted Personnel.
2.7. Compelled Disclosure.
Notwithstanding the foregoing, the Recipient shall not be liable for the disclosure of the Confidential Information pursuant to the requirement or request of any governmental or regulatory agency or court or tribunal of competent jurisdiction to the extent such disclosure is required by any valid laws, regulations, court orders or rules of the relevant stock exchange, and provided that the Recipient shall, to the extent commercially reasonable and permitted by applicable laws, regulations, court orders or rules of relevant stock exchange immediately prior to the disclosure of any Confidential Information,
(a) notify the Discloser of the existence, terms, and circumstances surrounding such requirement or request,
(b) use its efforts to assist the Discloser in seeking a protective order or another appropriate remedy and
(c) in any event, only disclose the exact Confidential Information or portion thereof specifically requested by such requirement or request.
Any Confidential Information so disclosed shall maintain its confidentiality protection for all purposes other than the aforementioned legally required disclosure.
3. TERMS AND TERMINATION
3.1. Terms. This Agreement shall become effective as of the Effective Date and shall, unless terminated pursuant to this Section 3, continue for a period of three (3) years. Unless otherwise agreed to in writing by the Parties, the obligations set forth herein to protect Confidential Information received prior to the termination of this Agreement shall in any case survive any termination of this Agreement for a period of seven (7) years from the Effective Date.
3.2. Termination. This Agreement may be terminated as follows:
(a) by mutual written consent of the Parties;
(b) by written notice by the Discloser, in its discretion, upon
(i) occurrence of any Event of Default or
(ii) occurrence of the Change of Control.
4. RETURN
All Confidential Information received by or made available to a Recipient and its Permitted Personnel hereunder shall remain the sole and exclusive property of the Discloser.
Within thirty (30) Business Days after completion of the Project, termination of this Agreement or the written request by the Discloser, whichever comes first, the Recipient shall, in the Discloser’s discretion either return to the Discloser or destroy in a manner satisfactory to the Discloser, all tangible objects containing or representing Confidential Information, including any and all copies or extracts thereof or notes derived therefrom.
5. NO LICENSE, NO FURTHER COMMITMENT
Nothing contained in this Agreement shall be construed as
(a) requiring either Party to disclose or accept any information;
(b) requiring either Party to purchase or use any products, goods or manufacturing facilities of the other Party, or enter into any further agreement or negotiation with the other Party regarding this Project or any other matter; or (c) granting to a Recipient of Confidential Information any rights by license or otherwise, either express or Implied, under any patents, patent applications, trademarks, copyrights, mask works, trade secrets, know-how, or other intellectual property right now or hereafter owned, obtained or licensable by a Discloser.
6. NO WARRANTY
DISCLOSER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY NATURE
WHATSOEVER WITH RESPECT TO ANY INFORMATION FURNISHED BY
DISCLOSER TO THE OTHER PARTY, INCLUDING, WITHOUT LIMITATION, ANY
WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR
PROJECT OR AGAINST INFRINGEMENT. ALL CONFIDENTIAL INFORMATION
IS PROVIDED “AS-IS” AND “WITH ALL FAULTS”. DISCLOSER SHALL NOT BE
LIABLE FOR ANY LOSS OR DAMAGE ARISING FROM THE USE OF THE
CONFIDENTIAL INFORMATION WHATSOEVER. DISCLOSER DOES NOT MAKE
ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE NONINFRINGEMENT OF THIRD PARTY PATENTS, COPYRIGHTS, TRADEMARKS OR
TRADE SECRETS WITH RESPECT TO ITS RESPECTIVE CONFIDENTIAL
INFORMATION.
7. EXPORT REGULATIONS
The Recipient agrees to comply with all applicable export and import control laws and regulations with respect to Confidential Information acquired from the Discloser or any product or process based thereon, and will not knowingly export or re-export such Confidential Information, product or process, directly or indirectly, to any country, entity or individual without first obtaining all necessary licenses and approvals.
8. REMEDIES
Both Parties agree that should this Agreement be breached, money damages would be inadequate to remedy any such breach. As a result, a non-breaching Party shall be entitled to seek, and a court of competent jurisdiction may grant, specific performance and injunctive or other equitable relief as a remedy for any breach of this Agreement. Such remedy shall be in addition to all other remedies, including money damages, available to a non-breaching Party at law or in equity. The prevailing Party in such action shall be entitled to reasonable attorney fees in addition to any other amounts awarded as damages.
All obligations and rights of the Parties expressed in this Agreement shall be in addition to, and not in limitation of, those provided by applicable law.
9. NOTICE
9.1. Each notice or other communication to be given under this Agreement (“Notice”) shall be in writing and be given by personal delivery, by facsimile or electronic mail with confirmed receipt, or by a reputable overnight courier service with confirmed receipt to the addressee at the physical address, facsimile number, electronic mail address, or postal address, and marked for the attention of the person or office holder (if any), from time to time designated for the purpose by the addressee to the other Party. The initial facsimile number, addresses, and relevant person or office holder of each Party are as follows:
(a) in the case of both parties.
9.2. No Notice will be effective until received. A Notice is, however, deemed to be received:
(a) in the case of personal delivery, when received;
(b) in the case of a facsimile or electronic mail, following receipt of a report from the machine on which the facsimile or electronic mail was sent confirming that all contents were successfully transmitted;
(c) in the case of delivery with a reputable overnight courier service, on the third (3rd) day following the date of deposit with such courier. provided that any Notice personally delivered or received by facsimile or electronic mail either after 5.00 pm on a Business Day, or on any day that is not a Business Day, will be deemed to have been received on the next Business Day.
10. MISCELLANEOUS
10.1. Entire Agreement: Amendments. This Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous undertakings, commitments or agreements, oral or written, as to its subject matter. This Agreement may be modified or amended only by an instrument in writing signed by authorized representatives of the Parties on or after the date thereof.
10.2. No Assignment. Neither Party may assign or otherwise transfer this Agreement without the prior written consent of the other Party, provided, however, that either Party may assign or transfer this Agreement and all of its rights and obligations under this Agreement, without the consent of the other Party, to a successor of all or substantially all of its business or assets to which this Agreement pertains, whether by merger, sale, reorganization, reincorporation, operation of law or otherwise; provided that the assigning Party provides prompt written notice to the other Party of any such permitted assignment. Any assignment or transfer of this Agreement in violation of the foregoing shall be null and void.
10.3. Severability. If, for any reason, any provision of this Agreement shall be determined to be unenforceable by a court of competent jurisdiction, the remaining provisions of this
Agreement shall be enforced to the extent possible.
10.4. No Conflicting Contracts. Each Party represents that they are not commercial parties to any contracts with any other entity or individual that would interfere with or prevent their respective compliance with the terms and provisions of this Agreement.
10.5. Waiver. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise of any right, power or privilege.
10.6. Authority. Both Parties represent that the respective individuals executing this Agreement are fully authorized and empowered to do so for and on behalf of their respective principals.
10.7. Counterparts. This Agreement may be executed in facsimile or electronic mail counterparts, each of which counterpart, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and The same agreement.
Signature Page Follows
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective duly authorized officers or agents as of the date and year first above written