Effective Date of Agreement: Noted on Signature Page.
This NON-DISCLOSURE CONFIDENTIALITY AGREEMENT (this “Agreement”) is made and entered into as of the Effective Date of Agreement set forth above by and between Inventor/Owner/Operator and Recipient.
PURPOSE OF AGREEMENT
This Agreement is intended to protect the proprietary technology, business model, intellectual property, and operational materials related to the Hungree distribution platform (referred to herein as “Hungree”) across all markets. It ensures that no party shall use, disclose, replicate, or commercialize any component of the platform or the Confidential Information shared, except as expressly authorized by the Inventor/Owner/Operator.
WITNESSETH:
WHEREAS, the parties hereto desire to have (or have already had) discussions related to the “Hungree” distribution app for benefit of the Inventor/Owner/Operator (the “Subject Matter”);
WHEREAS, it is contemplated that such discussions and any business transactions entered into in connection therewith will require the disclosure by Inventor/Owner/Operator to Recipient of Confidential Information (as hereinafter defined);
WHEREAS, both parties recognize the value of the Confidential Information and that it is in their mutual best interests to maintain the confidential, proprietary, and secret nature of the Confidential Information.
NOW, THEREFORE, for and in consideration of the above premises, and in further consideration of the mutual covenants and promises contained herein and other good and valuable consideration, the receipt, adequacy, and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. CONFIDENTIAL INFORMATION. Confidential Information shall include, but not be limited to trade secrets (which shall include, without limitation, all information of any nature considered a trade secret under law), documents, records, information and data (whether verbal, electronic or written), drawings, models, apparatus, sketches, designs, technology, framework, operations, schedules, product plans and developments, marketing plans, technical procedures, manufacturing processes, analyses, compilations, studies, software, prototypes, samples, formulas, methodologies, formulations, patent applications, know-how, experimental results, specifications and other business information, relating to Inventor/Owner/Operator’s business, assets, operations or contracts, furnished to Recipient and/or Recipient’s affiliates, employees, officers, owners, agents, consultants, or representatives, in the course of their work contemplated in this Agreement, regardless of whether such Confidential Information has been expressly designated as confidential or proprietary. Confidential Information also includes any and all compilations, work products, and other data or material prepared by or in the possession or control of the Recipient, which contain, include, refer to or otherwise reflect or are generated from any Confidential Information. Confidential Information may be provided in written, oral, electronic or other form.
1.1 SUBJECT MATTER – The Confidential Information covered by this Agreement includes, without limitation, all information relating to the Hungree distribution platform—including app designs, business strategy, user accounts, distribution frameworks for any and all items, marketing materials, incentives (badges, points, rewards), intellectual property, software (mobile/desktop/web), user engagement plans, communications, technical documentation, and any branding, logos, or ideas associated with “Hungree”, “HungreeApp”, “Hungree!”, or “iamhungree”, regardless of how disclosed (oral, written, digital, or visual).
2. FORM OF DISCLOSURE. Confidential Information may be oral, visual, by demonstration, or in some other form not permanently recorded regardless of whether such Confidential Information has been expressly designated as confidential or proprietary.
3. PERIOD OF CONFIDENTIALITY AND NON-USE. Recipient (including its affiliates, employees, agents, and consultants) shall maintain in strict confidence, all knowledge directly related and pertinent to “Hungree”, for five (5) years, or for the full duration of any relationship or business involvement with the Inventor/Owner/Operator—whichever period is longer, and shall not disclose any Confidential Information it receives from Inventor/Owner/Operator to any third party or use the Confidential Information for its own or any other party’s benefit, except in furtherance of its obligations to Inventor/Owner/Operator pursuant to any business transaction it may enter into with Inventor/Owner/Operator. Recipient shall use, as a minimum, the same degree of care to avoid disclosure or use of the Confidential Information as it employs with respect to its own confidential, proprietary and secret information of like importance, but in any case, using no less than a reasonable degree of care. Recipient shall limit access to all Confidential Information to only those of Recipient’s personnel, agents, and representatives who “need to know” such information for carrying out Recipient’s obligations to Inventor/Owner/Operator pursuant to any business transaction it may enter into with Inventor/Owner/Operator and the Confidential Information will be used only for carrying out Recipient’s obligations to Inventor/Owner/Operator pursuant to any business transaction it may enter into with Inventor/Owner/Operator. Recipient shall insure that its affiliates, employees, officers, directors, owners, agents, consultants, and representatives who are given access to the Confidential Information by or on behalf of Recipient shall be bound by and shall comply with the terms of this Agreement.
4. EXCLUSIONS. Information shall not be deemed Confidential Information, and Recipient shall have no obligation of confidentiality or restriction against use with respect to any information which:
4.1. was known, in the possession of and documented by Recipient through no wrongful act of the Recipient prior to Inventor/Owner/Operator’s disclosure of such information; or
4.2. is or becomes publicly known through no wrongful act of Recipient and/or through no breach of any obligation to Inventor/Owner/Operator; or
4.3. is rightfully received from a third party who is not subject to restrictions on the use and disclosure of such information in favor of Inventor/Owner/Operator; or
4.4. is approved for release by written authorization from Inventor/Owner/Operator; provided that, unless notice of said prior knowledge and possession or receipt from a third party is given to Inventor/Owner/Operator within thirty (30) days of receipt of the information from Inventor/Owner/Operator or from a third party, respectively, it shall be conclusively presumed that the said information was not previously in the Recipient’s knowledge and possession or received from a third party.
5. DISCLOSURES REQUIRED BY LAW. In the event Recipient is requested or required by a government or court order, or similar process, to disclose any Confidential Information supplied to it by Inventor/Owner/Operator, Recipient shall provide Inventor/Owner/Operator with prompt notice of such request so that Inventor/Owner/Operator may seek an appropriate protective order and/or waive Recipient’s compliance with the provisions of this Agreement.
6. INDEMNIFICATION. Recipient shall reimburse, indemnify and hold harmless Inventor/Owner/Operator and its affiliates, owners, Recipients, officers, directors, agents and representatives from any damage, loss, penalty, cost or expense incurred by Inventor/Owner/Operator as a result of or in connection with the use or disclosure of the Confidential Information contrary to the terms of this Agreement by Recipient or its affiliates, employees, directors, officers, owners, consultants, agents or representatives or any others to whom such Confidential Information has been disclosed by any such persons or entities. The term “affiliates” as used in this Agreement shall mean any persons, corporations, partnerships, limited liability companies, or other business entities, which directly or indirectly control, are controlled by, or are in common control with such party to this Agreement. As used herein, the term “control” shall mean possession, directly or indirectly, of power to direct or cause the direction of management or policies (whether through ownership of securities, by contract or otherwise).
7. NO PUBLIC COMMENT. Recipient shall not directly or indirectly make any public comment, statement, or communication with respect to, or otherwise disclose or permit the disclosure to any third party of any Confidential Information or of any matter relating to the Subject Matter or purpose or any transactions contemplated by the parties in connection therewith, without the prior written consent of Inventor/Owner/Operator.
8. NOTICE OF UNAUTHORIZED USE OR DISCLOSURE. Recipient shall notify Inventor/Owner/Operator immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this Agreement by Recipient or any third party, and will cooperate with Inventor/Owner/Operator in every reasonable way to help regain possession of the Confidential Information and prevent its further unauthorized use or disclosure.
9. OWNERSHIP, PROPRIETARY RIGHTS, AND RETURN OF CONFIDENTIAL INFORMATION. All Confidential Information disclosed to Recipient shall remain the exclusive property of the Inventor/Owner/Operator. Upon the earlier of (i) termination of discussions, (ii) written request by Inventor/Owner/Operator, or (iii) completion of the business purpose of this Agreement, Recipient shall, within five (5) business days, promptly return all Confidential Information (including all originals, copies, reproductions and summaries of such Confidential Information), or certify its destruction in writing, and keep the same confidential and secret in accordance with this Agreement. Recipient acknowledges that Inventor/Owner/Operator retains all intellectual property rights to the Hungree platform and all related materials. Recipient shall not engage in reverse engineering, disassembly, duplication, or modification of any system, app, or methodology revealed through the Confidential Information or affiliation with this project.
10. NO LICENSE. Nothing contained in this Agreement shall be construed as granting or conferring to Recipient any rights or license or otherwise, either expressly or by implication, in or to any Confidential Information disclosed by Inventor/Owner/Operator to Recipient as a result of this Agreement, including, without limitation, rights or license under any present or future patent, patent application, copyright, trademark, service mark, trade secret or other proprietary information owned, licensed or controlled by Inventor/Owner/Operator.
11. SURVIVAL. Recipient’s obligations of non-disclosure pursuant to the terms of this Agreement shall survive until all Confidential Information has been returned to Inventor/Owner/Operator or the destruction thereof has been certified to Inventor/Owner/Operator in writing.
12. RELATIONSHIP. This Agreement shall not be construed as a joint venture, pooling arrangement, partnership, teaming effort or agency arrangement. The Parties may choose to enter into an Inventor/Owner/Operator-Recipient relationship and any other financial arrangements shall be written in another document, under a separate contract.
13. NO WAIVER. Neither party waives any rights in invention or development lawfully possessed by it at the time of signing this Agreement. In addition, this Agreement does not imply any waiver of any rights or action under the patent, trademark, copyright, trade secret, unfair competition, fair trade or related laws. Failure to enforce any provision of this Agreement shall not constitute a waiver of any term hereof.
14. BINDING AGREEMENT. This Agreement shall be binding upon Recipient and its subsidiaries, successors, assigns, legal representatives, and all corporations controlling Recipient or controlled by Recipient and shall inure to the benefit of Inventor/Owner/Operator and its subsidiaries, successors, assigns, legal representatives, and all corporations controlling Inventor/Owner/Operator or controlled by Inventor/Owner/Operator.
15. INJUNCTIVE RELIEF. Recipient understands and agrees that any use or dissemination of Confidential Information in violation of this Agreement will cause Inventor/Owner/Operator irreparable harm, and that monetary damages may not be a sufficient remedy for unauthorized use or disclosure of Confidential Information, and that Inventor/Owner/Operator may be left with no adequate remedy at law; therefore, Inventor/Owner/Operator shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction. Such remedies shall not be deemed to be the exclusive remedy for any breach of this Agreement but shall be in addition to all other remedies available at law or in equity.
16. PREVAILING PARTY. If either party employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and expenses.
17. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado without regard to principles of conflict or choice of laws, and Recipient consents to venue and jurisdiction in and by the state and federal courts in the jurisdiction of the Inventor/Owner/Operator.
18. ASSIGNMENT. This Agreement may not be assigned by Recipient without the prior written consent of Inventor/Owner/Operator.
19. ENTIRE AGREEMENT. This Agreement contains the entire understanding between the parties relative to the protection of Confidential Information and supersedes all prior and collateral communications, reports, and understanding between the parties in respect thereto. No change, modification, alteration or addition to any provision shall be binding unless it is in writing and signed by an authorized representative of both parties.
20. SEVERABILITY. If a court of competent jurisdiction makes a final determination that any provision of this Agreement (or any portion thereof) is invalid, illegal or unenforceable for any reason whatsoever, and all rights to appeal the determination have been exhausted or the period of time during which any appeal of the determination may be perfected has been exhausted, (i) the validity, legality, and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby; and (ii) to the fullest extent possible, the provisions of this Agreement shall be construed so as to give effect to the intent manifested by the provisions held invalid, illegal or unenforceable.
21. HEADINGS. The headings in this Agreement are for reference purposes only and shall not limit or otherwise affect the meaning of the provisions.
22. INTERNET USAGE. The parties agree that Confidential Information may from time to time be communicated over the Internet via electronic mail (including attachments) and other methods including cloud storage. The unauthorized use, disclosure, copying, forwarding or alteration of --email transmissions or cloud storage materials-- is forbidden. Neither party shall be liable to the other Party for any damages relating to any virus passed on via email messages.
23. COUNTERPARTS. This Agreement may be executed in one or more counterparts including signing a facsimile or electronic signature copy. Each counterpart shall be deemed a binding original and all counterparts taken together shall constitute one and the same instrument.
24. NON-CIRCUMVENTION. Recipient agrees that it shall not, directly or indirectly, interfere with, circumvent, attempt to circumvent, avoid, or bypass the Inventor/Owner/Operator in any business transaction or relationship involving contacts, partners, service providers, vendors, clients, suppliers, or affiliates introduced or made known to Recipient through discussions related to the Subject Matter of this Agreement. This includes, but is not limited to, pursuing business opportunities, entering into agreements, or providing similar services without prior written consent from the Inventor/Owner/Operator. This clause shall remain in effect for a period of three (3) years following the termination of this Agreement.
25. NON-COMPETE. Recipient agrees that, for a period of three (3) years from the Effective Date of this Agreement, it shall not, directly or indirectly, develop, operate, invest in, consult for, or otherwise participate in any platform, application, or business that offers similar services or functionalities as the Hungree distribution platform, including any variation thereof (e.g., food or item or resource sharing apps, surplus distribution, rewards-based donation platforms, or community resource-sharing systems), whether under the name “Hungree” or otherwise. This restriction applies globally and extends to both Recipient and any affiliated individuals, businesses, or entities under Recipient’s influence or control. This clause does not restrict Recipient from engaging in unrelated business activities that do not use or exploit Confidential Information disclosed under this Agreement.
26. THIRD-PARTY AGENTS AND CONTRACTORS. Recipient agrees that any third-party agents, contractors, interns, or temporary workers who are granted access to Confidential Information shall be bound by a written agreement with Recipient that imposes confidentiality obligations consistent with, and no less protective than, those contained in this Agreement. Recipient shall be responsible for ensuring their compliance and shall be liable for any breach by such individuals or entities.
27. DATA PROTECTION COMPLIANCE. Each party agrees to comply with all applicable data protection and privacy laws, including but not limited to the General Data Protection Regulation (GDPR) for recipients in the European Union, and relevant U.S. privacy laws (such as CCPA). Recipient shall implement and maintain reasonable administrative, technical, and physical safeguards to protect Confidential Information from unauthorized access, disclosure, or use.
28. DISPUTE RESOLUTION AND ARBITRATION. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall first be subject to good faith mediation between the parties. If unresolved within 30 days, the matter shall be settled by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction. The arbitration shall be held in Denver, Colorado, in the English language, and each party shall bear its own legal costs and expenses, unless otherwise awarded.
IN WITNESS WHEREOF, the Parties hereto have agreed to the terms of this Agreement effective as of the effective date of Agreement first written above and signed on the dates written below.