This Nondisclosure Agreement (“Agreement”) effective as of the date You register for access to diamondfortress.com (the “Effective Date”) is being entered into by and between You, a registered user of the diamondfortress.com website (“You”), and Diamond Fortress Technologies, Inc., an Alabama corporation with its headquarters at 1500 1st Avenue North, Birmingham, AL 35203 (“DFT”),
WHEREAS, the parties wish to exchange certain information in the course of discussions regarding a potential or current business relationship between the parties, in particular information on the status of DFT for investor relations (the “Purpose”) which may result in You having access to the Confidential Information (as defined below) of DFT;
NOW THEREFORE, as and by way of inducement to DFT to disclose Confidential Information and for the benefits to be derived from mutual engagement,You and DFT, intending to be legally bound, hereby agree as follows:
- Definition of Confidential Information.
- “Confidential Information” means any and all proprietary or confidential information that is (i) marked as confidential or proprietary, or (ii) reasonably understood to be confidential given the nature of the information and the circumstances of disclosure , and (iii) all information accessible in the secure portion of the diamondfortress.com site denoted the “Investors” page;
- Confidential Information includes, without limitation, intellectual property including without limitation, patents, copyrights, trade secrets and patent and copyright applications pending, any technical or non-technical designs, drawings, plans, formulae, techniques, algorithms, patterns, processes, compilations, methods, systems, new product or technology information, software programs, source code, software source documents, passwords, pass codes, security procedures, manufacturing, development, or marketing techniques, business strategies and development plans, supplier information;
- Confidential Information shall also include third-party information held in confidence by a Party and any other information of a similar nature, whether or not reduced to writing or other tangible form.
- Confidential Information shall not include any information which (i) is or becomes publicly available by other than a breach hereof (including, without limitation, any information filed with any governmental agency and available to the public); (ii) is known to, or rightfully in the possession of, the You at the time of disclosure without breach or violation of any confidentiality agreement; (iii) thereafter becomes known to or comes into possession of the You from a third party that the You reasonably believes is not under any obligation of confidentiality to DFT (as defined below) and is lawfully in the possession of such information; (iv) is developed by the You independently of any disclosures previously made by DFT to the You; or (v) is required to be disclosed by order, or the process, of a court of competent jurisdiction, administrative agency or governmental body, or by subpoena, summons or other legal process, or by law, rule or regulation, or by applicable regulatory or professional standards, provided that prior to such disclosure by the You, DFT is given reasonable advance notice of such order and a meaningful opportunity to object to such disclosure.
- Nondisclosure and Restricted Use Obligations.
- Confidential Information received from DFT will be kept confidential by You and your affiliates, employees, subcontractors and agents and will not be disclosed, published or otherwise disseminated to anyone by You and You will take reasonable precautions to prevent any unauthorized use, reproduction or disclosure of Confidential Information, except that You may disclose the Confidential Information or portions thereof to those of your directors, officers and employees and representatives of your affiliates and agents (collectively “Representatives”) with a need to know such information in order to further the Purposes behind entering into this Agreement. You agree You shall not take any action that causes any Confidential Information to lose its status as Confidential Information; nor shall You fail to take any reasonable action that would prevent Confidential Information from losing that status. It is also understood that any Representatives receiving Confidential Information will be informed of its confidential nature, and will or have agreed to be bound in writing by terms and conditions substantially similar to those in this Agreement not to disclose the Confidential Information.
- You agree that any Confidential Information exchanged under the terms of this Agreement shall be used solely for the Purpose and You agree not to use Confidential Information of DFT in any manner other than to further the Purpose.
- You will not reverse engineer, disassemble, or decompile any prototypes, software, or other tangible objects that embody DFT’s Confidential Information provided to You hereunder.
- You agree to be responsible for any breach of this Agreement by You or your Representatives.
- In the event that You or any of your Representatives become legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose any of DFT’s Confidential Information, You shall provide DFT with prompt prior written notice of such requirement so that it, or the true owner of the information if not DFT, may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Agreement. In the event that such protective order or other remedy is not obtained, or DFT waives compliance with the provisions hereof, You nevertheless agree to furnish only that portion of the Confidential Information that it is legally required to produce.
- Term of Agreement; Return of Confidential Information.
This Agreement shall remain in effect until terminated by DFT. DFT may terminate this Agreement, in its sole discretion, at any time upon written notice to You. Upon termination of the Agreement, or upon written request by DFT, You promptly will return to DFT all copies of any Confidential Information in your possession or in the possession of your Representatives, and you will destroy all copies of any analyses, compilations, studies or other documents prepared by You containing, relying upon, or reflecting any Confidential Information of DFT. You shall not be entitled to retain DFT’s Confidential Information in any form of media, even if only for archival purposes, unless otherwise allowed by law or other agreement. Within ten (10) business days after DFT’s Confidential Information has been returned, You shall also deliver to DFT a written statement certifying that such action has been taken and is complete. You shall be bound by this Agreement’s obligations of confidentiality so long as this Agreement is in effect, but no less than a period of five (5) years from the date of disclosure of any Confidential Information, despite any termination and/or return or destruction of Confidential Information that occurs before the lapse of that five (5) year period.
You recognize that the wrongful disclosure of Confidential Information by You may cause great or irreparable damage to DFT. In such a case, money damages may be inadequate to compensate DFT and DFT shall be entitled to injunctive relief against such wrongful disclosure of Confidential Information, in addition to, and in no way a limitation of, any and all other remedies DFT may have in law or in equity against the You for enforcement of this Agreement.
- No Announcement or Publicity.
You and your Representatives, whether or not the Representatives have personally received Confidential Information, agree not to issue public statements, press releases or other publicity relating to the existence or nonexistence of this Agreement, including without limitation any of its terms or conditions, or the existence or nonexistence of any actual or potential business discussions between the Parties, including without limitation the status, substance, or goals of any such discussions.
Nothing in this Agreement shall be read to imply or require the establishment or existence of a formal business relationship between the Parties. This is not an “agreement to agree” to any contractual or other obligations, aside from the obligations of confidentiality imposed herein. This Agreement does not in any way obligate the Parties to enter into any discussions, negotiations, or business dealings with each other, including the very business discussions contemplated by this Agreement. Furthermore, the Parties agree that this Agreement in no way creates any agency or partnership relationship between them, and they do not intend for it to do so.
- Ownership of Confidential Information and Other Materials.
All Confidential Information disclosed or exchanged between DFT and You remains the property of DFT, and no license or other right to Confidential Information is granted or implied hereby.
This Agreement has been entered into for the benefit of the Parties, and DFT may institute appropriate proceedings against You to enforce its rights hereunder. You hereto irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the courts of the State of Alabama located in Birmingham for any actions, suits or proceedings arising out of or relating to this Confidentiality Agreement and the transactions contemplated hereby (and You agrees not to commence any action, suit or proceeding relating thereto except in such courts). You hereby irrevocably and unconditionally waive any objection to the laying of the venue of any actions, suit or proceeding arising out of this Agreement or the transactions contemplated hereby, in the courts of the State of Alabama located in Birmingham, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum. This Agreement will be governed by and construed in accordance with the internal laws of the State of Alabama excluding only the Alabama body of law concerning conflicts of laws.
This Agreement will be binding on and inure to the benefit of the Parties and their respective successors and assigns. However, You shall not assign this Agreement without the prior written consent of DFT which shall not be unreasonably withheld. This Agreement contains the complete, entire and final agreement between the Parties with respect to the subject matter hereof. This Agreement may not be amended, nor any obligation waived.