2023 Prototype House - NDA
This Mutual Confidentiality and Non-Disclosure Agreement (“Agreement”) is entered into as of the date of thelast signature below (“Effective Date”) by and between Prototype House, Inc., (“Prototype House”) and theundersigned company (“Company”).
1. PURPOSE. This Agreement is entered into for the purpose of authorizing the parties to exchange certainConfidential Information, as defined below, relating to (a) evaluating a potential business opportunity of mutualinterest, (b) furthering an existing business relationship, (c) fulfilling each party’s commitment if a proposedbusiness transaction is pursued, or (d) as the parties otherwise agree in writing (each, a “Permitted Purpose”).Pursuant to the foregoing, each party may disclose or has already disclosed to the other certain ConfidentialInformation which the disclosing party desires to be treated as confidential.
2. DEFINITION OF CONFIDENTIAL INFORMATION. As used herein, “Disclosing Party” and “Receiving Party”include each party’s officers, directors, employees, affiliates, subsidiaries and assigns. For purposes of thisAgreement, “Confidential Information” shall mean all tangible and intangible information or material disclosedby one party (“Disclosing Party”) or otherwise made available or accessible to the other party (“ReceivingParty”) whether intentionally or inadvertently, regardless of the manner or medium of disclosure or access (e.g.,visual, oral, writing, electronic form) that is described as proprietary or confidential or considered as confidentialand proprietary by the Disclosing Party and shall include, but is not limited to, the following types of informationand other information of similar nature: (a) the terms and conditions of this Agreement and any other agreementexecuted between the parties; (b) any information or communication about the Disclosing Party’s business,business plans, sales, pricing, marketing plans, promotional and product strategies, customer information,operations information, employee information (compensation and agreements), technical information, vendorlists, financial information, (including, without limitation, financial statements, projections, budgets and spendingplans), business records, models, test results, pro formas, and renderings; and (c) all information that is clearlymarked or designated as “Confidential,” or which under the circumstances surrounding disclosure, should bereasonably understood by the Receiving Party to be confidential or proprietary information of theDisclosing Party.
3. PERMITTED USE. The parties shall use the Confidential Information only in furtherance of a PermittedPurpose or as otherwise directed in writing by the Disclosing Party. Each Receiving Party shall treat allConfidential Information of the Disclosing Party with at least the same degree of care it accords its ownConfidential Information of like nature, but in no event less than reasonable care. Each Receiving Party will take(and will cause its employees and agents to take) commercially reasonable steps required to avoid inadvertentdisclosure of Confidential Information in its possession. 4. EXCLUSIONS. Notwithstanding the foregoing,Confidential Information shall not include information of the Disclosing Party that: (a) was in the public domain atthe time it was disclosed; (b) enters the public domain other than by breach of this Agreement by the ReceivingParty; (c) is known to the Receiving Party at the time of its disclosure by the Disclosing Party; (d) is disclosed tothe Receiving Party by a third party who has the right to do so; and (e) is developed by the Receiving Partyindependently of any disclosure by the Disclosing Party hereunder (as established by the Receiving Party’sbusiness records). 5. TERM. Notwithstanding the conclusion or termination of the parties’ relationship asdescribed herein, whether due to cancellation or otherwise, the Receiving Party shall continue to fulfill itsobligations hereunder and maintain the confidentiality of the Confidential Information for a period of two (2) years from the last date of disclosure.
6. ACCESS TO CONFIDENTIAL INFORMATION. The Receiving Party willfurnish access to the Confidential Information to its employees and third-party contractors solely on a need toknow basis in furtherance of a Permitted Purpose.7. NO LICENSE. All Confidential Information disclosed by the Disclosing Party shall at all times remain theproperty of the Disclosing Party. The Disclosing Party is not hereby granting or extending to the Receiving Partyany rights of any kind under any patent, copyright, trademark, trade secret or other intellectual property rightwhich the Disclosing Party may now have or may hereby obtain with respect to the Confidential Information.8. COPIES OF CONFIDENTIAL INFORMATION. Recording, copying, photographing or any other reproductionof Confidential Information is prohibited without the prior written approval of an authorized representative ofDisclosing Party.9. RETURN OF CONFIDENTIAL INFORMATION. The Receiving Party will, upon the written request of theDisclosing Party (a) promptly deliver to the Disclosing Party all Confidential Information, including all copies,reproductions, summaries, analyses or extracts thereof or based thereon; or (b) destroy all ConfidentialInformation in the Receiving Party’s possession or control and certify to the Disclosing Party the destructionthereof in a written certification signed by an authorized officer of the Receiving Party. This obligation to returnor destroy materials or copies thereof does not extend to automatically generated computer back-up or archivalcopies generated in the ordinary course of the Receiving Party’s information systems policies, provided that theReceiving Party shall make no further use of such copies.10. ASSIGNMENT. Neither party shall have the right to assign this Agreement without the prior written consent ofthe other party. Any assignment without such consent shall be void and is a material breach hereof.11. COMPELLED DISCLOSURES. The Receiving Party shall be permitted to disclose Confidential Information inconnection with a judicial or administrative proceeding to the extent that such disclosure is required underapplicable law or court order, provided the Receiving Party shall (to the extent permitted by applicable law)provide the
12. Disclosing Party prompt written notice of any such proceeding and offer reasonable cooperation in anyeffort to obtain a protective order.
13. NO USE OF NAMES. Neither party may use the name or logo of the other party or any of its affiliates, orany abbreviation or adaptation thereof, in any advertising, trade display, or published statement or pressrelease, or for any other commercial purpose, without the prior written consent of the other party. The fact thatthe parties are engaged in discussions concerning the potential business transaction, and the terms of thosediscussions, shall be deemed Confidential Information and may not be disclosed by either party for any purpose.
14. NO COMMITMENT. Nothing in this Agreement will constitute a commitment by either party to develop ordisclose any information or materials, including any Confidential Information, or to acquire or recommend anyproduct, service or asset of the other party. The provision of Confidential Information to the Receiving Party ascontemplated under this Agreement and discussions held in connection with the potential business transactionbetween the parties will not prevent either party from pursuing similar discussions with third parties or obligateeither party to continue discussions with the other party, nor will either party otherwise be obligated to take,continue or forego any action.
15. NO WARRANTY. The Receiving party acknowledges that the Disclosing Party makes no express or impliedrepresentations or warranties as to the accuracy or completeness of any Confidential Information and allConfidential Information is provided to the Receiving Party on an “AS IS” basis. The Receiving Party agrees that the Disclosing Party shall have no liability to the Receiving Party relating to or arising from the use of any Confidential Information or for any errors therein or omissions therein.16. SEVERABILITY. If any provision of this Agreement is held invalid or unenforceable, the balance of thisAgreement shall remain in effect.17. CHOICE OF LAW. This Agreement shall be construed and interpreted in accordance with the laws of theState of Florida, without regard to conflict of laws principles.18. ENTIRE AGREEMENT & AMENDMENT. This Agreement, together with all exhibits, schedules andattachments, constitutes the entire agreement between the parties with respect to the subject matter hereof.This Agreement supersedes, and the terms of this Agreement govern, any prior agreements with respect to thesubject matter hereof19. with the exception of any prior confidentiality agreements between the parties. This Agreement may only bechanged by mutual agreement of authorized representatives of the parties in writingIN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date of signature below.(Disclosing Party)
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Signed by Matthew Bordy
Signed On: January 9, 2023
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Document Name: 2023 Prototype House - NDA
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