Mutual nondisclosure and evaluation agreement
THIS MUTUAL NONDISCLOSURE AND EVALUATION AGREEMENT (the “Agreement”) is made and entered into as of the date and time of form submission between NextNav, LLC, having a place of business at 484 Oakmead Parkway, Sunnyvale, CA 94085 (“NextNav”) and the submitting Company (“Company”, and together with NextNav, the “Parties” and each separately a “Party”).
NOW, THEREFORE, in consideration of the foregoing, the Parties hereto, each fully authorized to enter into this Agreement and intending to be legally bound, hereby agree as follows:
PURPOSE
The Parties wish to continue to explore a business opportunity of mutual interest and in connection with this opportunity, each Party may disclose or have already disclosed to the other certain confidential technical and business information which the disclosing party desires the receiving Party to treat as confidential. Further, NextNav may provide to Company certain software, access credentials, documentation, interfaces and other facilities in connection with Pinnacle (as defined below) (collectively, the “Pinnacle Software and Documentation”) to enable Company to evaluate Pinnacle.
“Pinnacle” means NextNav’s altitude service, delivered through software facilities and interfaces, including SDKs, APIs or other mechanisms, licensed to you under this agreement”
1. CONFIDENTIAL INFORMATION
“Confidential Information” means any information, including, without limitation, Pinnacle and the Pinnacle Software and Documentation, disclosed previously or in the future by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects (including without limitation documents, prototypes, samples, plant and equipment). Confidential Information may also include information disclosed to a disclosing party by third parties. Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party’s files and records immediately prior to the time of disclosure; (iv) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; (v) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession; or (vi) is required by law to be disclosed by the receiving party, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure.
2. NON-USE AND NON-DISCLOSURE
Each party agrees not to use any Confidential Information of the other party for any purpose except to evaluate and engage in discussions concerning a potential business relationship between the parties. Each party agrees not to disclose any Confidential Information of the other party to third parties. Each party agrees not to disclose any Confidential Information of the other party to such party’s employees, except to those employees of the receiving party who are required to have the information in order to evaluate or engage in discussions concerning the contemplated business relationship, and only to those employees who have signed a non-use and non-disclosure agreement in content at least as protective as the provisions hereof, prior to any disclosure of Confidential Information to such employees. Neither party shall reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the other party’s Confidential Information, and which are provided to the party hereunder.
3. MAINTENANCE OF CONFIDENTIALITY
Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own most highly confidential information. Neither party shall make any copies of the Confidential Information of the other party unless the same are previously approved in writing by the other party. Each party shall reproduce the other party’s proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original. A party receiving Confidential Information shall promptly notify the party disclosing such Confidential Information of any use or disclosure of such Confidential Information in violation of this Agreement of which the receiving party becomes aware.
4. NO OBLIGATION
Nothing herein shall obligate either party to proceed with any transaction between them, and each party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement concerning the business opportunity.
5. NO WARRANTY; LIMITATION OF LIABILITY
THE PARTIES ACKNOWLEDGE AND AGREE THAT EXCEPT AS EXPRESSLY SET FORTH HEREUNDER, ANY CONFIDENTIAL INFORMATION, INCLUDING PINNACLE AND THE PINNACLE SOFTWARE AND DOCUMENTATION, IS PROVIDED “AS IS” AND WITHOUT FURTHER REPRESENTATION OR WARRANTY OF ANY KIND. NEXTNAV ITS SUPPLIERS MAKE NO FURTHER REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE CONFIDENTIAL INFORMATION, INCLUDING PINNACLE AND THE PINNACLE SOFTWARE AND DOCUMENTATION, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR ANY OTHER WARRANTIES WHETHER ARISING OUT OF COURSE OF DEALING, TRADE USAGE OR OTHERWISE.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, NO PARTY HERETO WILL BE LIABLE WITH RESPECT TO, OR RESPONSIBLE FOR, UNDER ANY LEGAL THEORY, INCLUDING, WITHOUT LIMITATION, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, WHETHER FOR LOSS OR INACCURACY OF DATA, COST OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR (A) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREIN; (B) THE INFRINGEMENT, MISAPPROPRIATION OR OTHER VIOLATION BY A PARTY OF THE INTELLECTUAL PROPERTY RIGHTS OF THE OTHER PARTY; OR (C) A CLAIM FOR DEATH OR BODILY INJURY TO THE EXTENT ARISING FROM A PARTY’S NEGLIGENCE, THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET OUT HEREIN SHALL APPLY TO EACH PARTY AND THEIR AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS AND EMPLOYEES
6. RETURN OF MATERIALS
All documents and other tangible objects containing or representing Confidential Information which have been disclosed by either party to the other party, and all copies thereof which are in the possession of the other party, shall be and remain the property of the disclosing party and shall be promptly returned to the disclosing party upon the disclosing party’s written request.
7. NO LICENSE
Nothing in this Agreement is intended to grant any rights to either party under any patent, mask work right, copyright, trade secret or other intellectual property right of the other party, nor shall this Agreement grant any party any rights in or to the Confidential Information of the other party except as expressly set forth herein.
8. PINNACLE AND PINNACLE SOFTWARE AND DOCUMENTATION EVALUATION
The Company’s evaluation of Pinnacle and the Pinnacle Software and Documentation will be governed by the terms in Appendix A hereto.
9. TERM
The obligations of each receiving party hereunder shall survive until such time as all Confidential Information of the other party disclosed hereunder becomes publicly known and made generally available through no action or inaction of the receiving party.
10. REMEDIES
Each party agrees that any violation or threatened violation of this Agreement may cause irreparable injury to the other party, entitling the other party to seek injunctive relief in addition to all legal remedies.
11. MISCELLANEOUS
Neither party may assign or otherwise transfer this Agreement without the prior written consent of the other party; however, either party may assign or transfer this Agreement in connection with a merger, acquisition, sale of substantially all its assets or other such corporate reorganization. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties hereto and their successors and assigns. This Agreement will be governed by and construed in accordance with the substantive laws of the State of California, without regard to or application conflicts of law principles or any other rules that would result in the application of a different body of law or to the United Nations Convention on Contracts for the International Sale of Goods. Each party hereto consents to the jurisdiction of the courts of the County of Santa Clara, California and irrevocably waives any objection on the grounds of venue, forum non convenience or any similar grounds and irrevocably consents to services of process by mail or in any other manner permitted by applicable law. The parties further hereby waive any right to a trial by jury with respect to any lawsuit or judicial proceeding arising out of or relating to this Agreement. This document contains the entire agreement between the parties with respect to the subject matter hereof, and neither party shall have any obligation, express or implied by law, with respect to trade secret or proprietary information of the other party except as set forth herein. If any provision of this Agreement is found to be illegal or unenforceable, the other provisions shall remain effective and enforceable to the greatest extent permitted by law. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties hereto. Any notice, request, demand or other communication required or permitted hereunder shall be sufficiently given only if in writing and only if delivered by hand or sent by registered mail (or its equivalent), courier or facsimile addressed to the other Party at the address set forth above or to such other person or address as the Parties may from time-to-time designate in writing delivered pursuant to this notice provision, with in the case of the NextNav, LLC, a copy to 484 Oakmead Parkway, Sunnyvale, CA 94085. The parties may execute this Agreement in counterparts, each of which is deemed an original, but all of which together constitute one and the same agreement.
APPENDIX A: PINNACLE AND PINNACLE SOFTWARE AND DOCUMENTATION
WHEREAS the Company desires to evaluate Pinnacle and the Pinnacle Software and Documentation using software, interfaces and documentation to be provided by NextNav in one or more areas in which NextNav offers its Pinnacle service, as may be disclosed to Company from time to time, for a period not to exceed 90 days (the “Evaluation Period”). The Evaluation Period shall commence on the effective date of this Agreement and may be extended by only mutual written agreement of the Parties. NextNav reserves the right to terminate your use of the service at any time in its sole discretion.
1. EVALUATION OF PINNACLE AND PINNACLE SOFTWARE AND DOCUMENTATION
1.1 Evaluation. Subject to the terms of this Agreement, NextNav shall provide Company with the Pinnacle Software and Documentation to enable Company to receive altitude location information (the “Data”) from Pinnacle for the Evaluation Period for testing and evaluation and for no other purposes.
1.2 Certain Restrictions. The Parties hereto recognizes that this right of access to Pinnacle and the Pinnacle Software and Documentation, Data and Test Points is granted solely for the purposes set forth in this Agreement and thus no Party shall (and shall not allow any third party to): (i) decompile, disassemble, or otherwise reverse engineer Pinnacle or the Pinnacle Software and Documentation or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of Pinnacle or the Pinnacle Software and Documentation by any means whatsoever; (ii) distribute, sell, sublicense, rent, lease or use Pinnacle or the Pinnacle Software and Documentation (or any portion thereof) or Data to or for third parties or otherwise make the functionality of Pinnacle or the Pinnacle Software and Documentation or Data available to third parties; (iii) make any commercial use of Pinnacle or the Pinnacle Software and Documentation or Data or use Pinnacle or the Pinnacle Software and Documentation or Data in a production environment; (iv) reproduce or modify any part of the Pinnacle Software and Documentation; (v) publicly disseminate or disclose to any third party the Data or derivatives, analysis or other such products incorporating the Data ; (vi) utilize Pinnacle or the Pinnacle Software and Documentation or Data, directly or indirectly, to calibrate, improve or modify any database that can be used to determine the location of any device or group of devices by accessing such database; (vii) remove or in any manner alter any product identification, proprietary, trademark, copyright or other notices contained in Pinnacle or the Pinnacle Software and Documentation or Data.
2. TITLE, OWNERSHIP AND PROPRIETARY RIGHTS. All worldwide right, title and interest to the Pinnacle and the Pinnacle Software and Documentation, Data and Test Results (as defined below) and all intellectual property rights with respect thereto, are and will remain the exclusive property of NextNav. Nothing contained in this Agreement grants or confers, or will be construed to grant or confer, any rights in or to Pinnacle or the Pinnacle Software and Documentation, expressly or by implication, except for the limited rights set forth in this Agreement. Company shall not allow any mortgage, lien, or other encumbrance to be placed on Pinnacle, the Pinnacle Software and Documentation, the Data or any derivatives thereof created through this Agreement. Upon the earlier of the completion of the Evaluation Period or expiration of this Agreement, the Pinnacle Software and Documentation shall be returned to NextNav, or, in the case of software APIs that access NextNav systems, disabled.
3. TEST RESULTS. Company will provide NextNav with a periodic report of test results based on Company’s evaluation of the Data collected during the Evaluation Period (the “Test Results”) in a format to be mutually agreed upon by the Parties. Such Data and Test Results, and derivatives, analysis or other products based upon or incorporating the Test Results shall be considered Confidential Information of NextNav.