This Confidentiality Agreement (“Agreement”) is made as of May 4th, 2021 (the “Effective Date”) by and between Reach, and the Recipient. In consideration of the premises and covenants set forth herein and for other good and valuable mutual consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Reach has invited the Recipient to participate in a pre-public test of the Reach mobile app, and the Recipient has agreed to do so. By agreeing to participate in this test, Recipient acknowledges having read and agreed to the terms of this Confidentiality Agreement. In connection with this test, the Recipient desires to receive certain information from Reach that is non-public, confidential, or proprietary in nature; and Reach desires to disclose such information to the Recipient, subject to the terms and conditions of this Agreement. Except as provided in Section 3 below, the term “Confidential Information” means all non-public, confidential or proprietary information disclosed before, on or after the Effective Date, by Reach to the Recipient (or that Recipient may become aware of or have access to), in any form or media, including, without limitation (a) information concerning Reach’s past, present and future business affairs including, without limitation, finances, pricing, customer information, supplier information, products, services, organizational structure and internal practices, forecasts, sales and other financial results, records and budgets, and business, marketing, development, sales and other commercial strategies, and (b) unpatented inventions, ideas, methods and discoveries, trade secrets, know-how, unpublished patent applications, formulae, source code, object code, processes, product plans, designs, know-how, inventions, ideas, or technical information and other confidential intellectual property. The existence of a business relationship between Reach and Recipient is considered to be Confidential Information subject to the provisions of this Agreement. The Confidential Information is to be used only for the Business Purpose, and Recipient recognizes there is a need to protect the Confidential Information from unauthorized use and disclosure. Confidential Information may include third-party confidential information included with, or incorporated in, any information provided by Reach, including confidential information of Reach’s affiliates, and includes Confidential Information disclosed between the parties prior to, on or after the Effective Date.
2. Recipient agrees that any feedback, comments, opinions or suggestions provided to Reach becomes the property of Reach and may not be made public or disclosed to any other party.
3. With respect to Reach’s Confidential Information provided under this Agreement, the Recipient shall:
i. hold the Confidential Information in confidence and prevent its disclosure except as expressly provided herein;
ii. protect the Confidential Information utilizing efforts no less than and in accordance with the security regulations by which it protects its own proprietary or confidential information that it does not wish to disclose, and in any event utilizing no less than a reasonable standard of care;
iii. restrict disclosure of the Confidential Information solely to those officers, directors, employees, agents, and/or independent contractors (individually a “Representative” and collectively “Representatives”) of the Recipient with a need to know such information solely for the Business Purpose, who agree to keep such information confidential in accordance with this Agreement, and who either are provided with a copy of this Agreement and agree to be bound by the terms hereof to the same extent as if they were parties hereto or are otherwise subject to confidentiality duties or obligations to the Recipient that are no less restrictive than the terms and conditions of this Agreement;
iv. use the Confidential Information only for the Business Purpose hereunder, except as may otherwise be agreed upon in writing; and
v. make only the number of copies of the Confidential Information necessary to disseminate the information to those Representatives who are entitled to have access to it under (iii) above and ensure that all confidential notices set forth on the Confidential Information are reproduced in full on such copies.
4. The term “Confidential Information” shall not include any information that:
i. was known by or in the possession of the Recipient or its Representatives, as established by documentary evidence, prior to being disclosed by or on behalf of Reach pursuant to this Agreement;
ii. at the time of disclosure is, or thereafter becomes, available to the Recipient on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information to the Recipient;
iii. at the time of disclosure is, or thereafter becomes, generally available to and known by the public other than as a result of, directly or indirectly, any violation of this Agreement by the Recipient or any of its Representatives; or
iv. was or is independently developed by the Recipient, as established by documentary evidence, without reference to or use of, in whole or in part, any of Reach’s Confidential Information.
Specific items of information shall not be deemed to fall within the foregoing exceptions merely because they may be embraced within a body of generally available information within such exceptions, nor shall any information or combination of information be deemed to fall within such exceptions merely because the individual components of such information are within such exceptions.
5. Any disclosure by the Recipient or its Representatives of any of Reach’s Confidential Information that is required pursuant to applicable federal, state or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction (a “Legal Order”) shall be subject to the terms of this Section. Prior to making any such disclosure, the Recipient shall provide Reach with: (i) prompt written notice of such requirement so that Reach may seek, at its sole cost and expense, a protective order or other remedy; and (ii) reasonable assistance, at Reach’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If, after providing such notice and assistance as required herein, the Recipient remains subject to a Legal Order to disclose any Confidential Information, the Recipient (or its Representatives or other persons to whom such Legal Order is directed) shall disclose no more than that portion of the Confidential Information which, on the advice of the Recipient’s legal counsel, such Legal Order specifically requires the Recipient to disclose and, upon Reach’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment.
6. Reach’s Confidential Information shall be deemed Reach’s property and, upon Reach’s request, the Recipient will (i) cease using the Confidential Information, (ii) promptly return to Reach all copies, whether in written, electronic or other form or media, of Reach’s Confidential Information, or destroy all such copies, and (iii) certify in writing that the Recipient has complied with the obligations set forth in this Section 5.
7. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of Delaware.
8. The Recipient agrees that an impending or existing violation of any provision of this Agreement would cause Reach irreparable injury for which it would have no adequate remedy at law, and agrees that Reach shall be entitled to seek immediate injunctive and other equitable relief prohibiting such violation, in addition to any other rights and remedies available to it (which Reach does not waive by the exercise of any rights hereunder).
9. Reach hereby retains its entire right, title and interest, including all intellectual property rights, in and to all of its Confidential Information. Any disclosure of such Confidential Information hereunder shall not be construed as an assignment, grant, option, license or other transfer of any such right, title or interest whatsoever to the Recipient or any of its Representatives.
10. The Recipient shall defend, indemnify and hold harmless Reach, its affiliates and their respective shareholders, officers, directors, employees, agents, successors and assigns from and against all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees, in connection with any third party claim, suit, action or proceeding arising out of or resulting from a breach of this Agreement by the Recipient or any of its Representatives.
11. Entering into this Agreement or furnishing or receiving Confidential Information hereunder shall not constitute or imply any obligation, promise or intention of: (i) Reach to disclose any Confidential Information to the Recipient, or (ii) either party or its affiliated companies to (a) make any purchase of products or services from the other party, or enter into any business or contractual relationship, investment, or transaction with the other party, or (b) modify or change any of its products or services.
12. The Recipient shall not perform any analytical chemistry or reverse-engineer, decompile, or disassemble any of Reach’s Confidential Information or any equipment, hardware or software provided or disclosed to it and shall not remove, overprint or deface any notice of copyright, trademark, logo, legend or other notice of ownership from any originals or copies of Reach’s Confidential Information.
13. Reach is providing its Confidential Information on an “as is” basis with all faults and neither Reach nor any of its Representatives make any representation or warranty, expressed or implied, as to the accuracy or completeness of the Confidential Information disclosed to the Recipient hereunder; provided that Reach represents to the Recipient that Reach has the right and authority to disclose its Confidential Information to the Recipient. Neither Reach nor any of its Representatives shall be liable to the Recipient or any of its Representatives relating to or resulting from the Recipient’s use of any of the Confidential Information or any errors therein or omissions therefrom. In particular, but without limiting the foregoing, any projected results for future periods or other forecasts or forward-looking information which may be contained in Reach’s Confidential Information are for indicative purposes only and neither Reach nor its Representatives warrant, or in any way accept liability for, their accuracy.
14. The Recipient agrees not to export, directly or indirectly, Reach’s Confidential Information or any other technical data acquired from Reach or any products utilizing such data if such export would be in violation of applicable laws or regulations. For purposes of this Section, “export” includes physical or electronic access to Reach’s Confidential Information or any other technical data acquired from Reach, by any person, whether located in the United States or elsewhere, who is not a U.S. citizen or U.S. permanent resident.
15. This Agreement may be signed in counterparts, each of which shall be deemed to be an original, and all of which taken together shall constitute one and the same instrument. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
16. No failure of either party to exercise any power given to it hereunder or to insist upon strict compliance by the other with any obligation or provisions hereunder, and no custom or practice of the parties at variance with the terms hereunder, shall constitute a waiver of the right to demand exact compliance with the terms hereof. Waiver by a non-defaulting party of any right arising from a default of the other party shall not affect or impair the rights of the non-defaulting party with respect to any subsequent default by the other party of the same or of a different nature.
17. This Agreement consists only of this document to which the parties have agreed by the act of the Recipient’s agreement to participate in the test of Reach app. This Agreement as so constituted is the entire Agreement between the parties with respect to the subject matter hereof and supersedes all other previous statements, communications or agreements, whether oral or written, including without limitations any press releases, advertising and sales literature. No modification, alteration or waiver of any provision hereof shall be binding upon the parties unless evidenced in writing and signed by both parties.
18. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
19. Neither this Agreement nor any rights granted hereunder may be sold, assigned or transferred by a party in any manner without the prior written consent of the other party, provided however that Reach may assign its rights hereunder in connection with a merger, the sale of substantially all of its assets or other disposition of its business to which this Agreement relates.
20. Recipient understands and acknowledges that Reach may now market or have under development products that are competitive with products or services now offered or that may be offered by the Recipient, and the parties’ communications hereunder will not serve to impair Reach’s right to independently develop, make, use, procure, or market products or services now or in the future that may be competitive with those offered by the Recipient, nor require Reach to disclose any planning or other information to the Recipient.
21. The Recipient shall notify Reach immediately upon discovery of any unauthorized use or disclosure of Reach’s Confidential Information, or any other breach of the Agreement by the Recipient or any of its Representatives, and will cooperate with Reach in every reasonable way to help Reach regain possession of its Confidential Information and prevent its further unauthorized use or disclosure. The Recipient shall be responsible for the acts of any of its Representatives that are in violation of this Agreement.
22. This Agreement shall become effective on the Effective Date indicated and shall continue for a period of one (1) year after the public launch of Reach app. Notwithstanding anything to the contrary herein, each party’s rights and obligations under this Agreement shall survive any expiration or termination of this Agreement for a period of [five (5) years] from the date of such expiration or termination, even after the return or destruction of Confidential Information by the Receiving Party; provided however, that such rights and obligations with respect to any Confidential Information that is a trade secret shall continue so long as such Confidential Information remains a trade secret under applicable law.
Recipient acknowledges that by participating in the test of Reach app, s/he agrees to the terms of this Confidentiality Agreement.