This Non-Disclosure Agreement (“Agreement”) by and between David Yung Ho Kim, on the one hand (“Owner”), and Volunteer (‘Party-at-issue”).
WHEREAS, the parties above (“Parties” collectively, “Party” singularly) are contemplating, discussing and/or reviewing a potential business relationship, as presented by Owner and/or Owner’s campaign manager, concerning Owner’s congressional campaign (“Project”) and related information and materials therewith; and
WHEREAS, Owner would be sharing WHOLLY and ENTIRELY confidential information that it only wishes to disclose information to the extent necessary to allow Party-at-issue to review any documents and materials provided hereunder in connection with the Project for said contemplated or actual relationship; and
WHEREAS, both Parties agree that by entering into this Agreement in no way implies, means or constitutes any other agreement between the Parties to work together, and/or be jointly involved with said Project; and
WHEREAS, Party-at-issue understands that disclosing any and all information about the Project to any third party without Owner’s prior approval and/or authorization would cause serious harm, damage and/or loss to the Project and/or Owner;
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. PURPOSE. The Parties are considering entering into a potential relationship as described above, and in connection therewith, Owner will be disclosing certain confidential, private and/or proprietary information which the Parties agree to treat as entirely confidential pursuant to the terms herein (“Purpose”), including, without limitation, the Project, any drafts (i.e., Website), platforms, systems, plans, financials, private information, contact lists, notes, timelines and/or other sensitive, or related documents and information that has not been disclosed to the public by Owner and/or Owner’s campaign manager. Party-at-issue agrees to accept Owner’s information confidentially and only for the Purpose, and shall not use or exploit any such information and/or materials without Owner’s prior written consent.
2. CONFIDENTIAL INFORMATION. As used in this Agreement, except for anything granted to the contrary by each other through writing, “Confidential Information” means any information related to the Purpose which is disclosed by Owner to Party-at-issue concerning, without limitation, where applicable, the Project; any portion therein or concerning; business plans; marketing plans; development plans; staff info; financial info; agreements and related drafts; documents; agreement drafts; intellectual property; sponsorships; endorsements; internal Owner information and communication; industry or market research; and all materials and conversations regarding or relating to Owner’s plans and actions for or in relation to the Purpose or Project and anything reasonably related to such subject that is referenced, discussed or contemplated to any degree by both Parties, whether it be regarding the Project or not. Further, Confidential Information shall include all information Owner sends, communicates or discloses to Party-at-issue regarding sensitive, business or financial information about other individuals, companies and their operations, management, projects, financials and plans that is not already easily available to the public.
3. EXCEPTIONS TO CONFIDENTIAL INFORMATION. Notwithstanding Section 2 above, “Confidential Information” shall exclude information which (a) was generally known and publicly available prior to disclosure hereunder; (b) becomes generally known and publicly available after disclosure hereunder without breach of any confidentiality obligations; (c) was in Party-at-issue’s possession before disclosure hereunder as shown by the Party-at-issue’s records before the time of disclosure; (d) was obtained by Party-at-issue from a third party completely unrelated to Party-at-issue to any degree without breach of any confidentiality obligations herein; and/or (e) was independently developed by Party-at-issue without use of or reference to the Owner’s Confidential Information, as shown by Party-at-issue’s evidence. Confidential Information shall not be deemed to be publicly available for the purposes of the above exclusions merely because it is embraced by more general information in Party-at-issue’s possession, or such Confidential Information is expressed in public literature in general terms. Each Party shall establish by a preponderance of evidence the applicability of the exceptions under this Section.
4. OBLIGATIONS REGARDING CONFIDENTIAL INFORMATION. Party-at-issue shall (a) take reasonable security precautions with respect to the Confidential Information, at least as great as it uses to preserve and protect its own trade secrets from unauthorized disclosure and misappropriation; (b) not disclose Confidential Information to third parties; (c) limit access to Confidential Information to only those employees and consultants of Party-at-issue who need access to it for the Purpose and have signed a confidentiality agreement with obligations substantially equivalent to those herein at the very minimum; (d) not incorporate any Confidential Information into any work or produce or use Confidential Information for any purpose other than the Purpose; (e) not remove or alter any copyright notices or proprietary legends on any copies of Confidential Information; (f) notify Owner in writing within 5 business days if Party-at-issue becomes aware of any unauthorized access to or disclosure of the Confidential Information and restrict further unauthorized access and/or disclosure thereof; and (g) refrain from reverse engineering, decompiling or disassembling anything disclosed to Party-at-issue hereunder.
5. EXCEPTIONS TO CONFIDENTIALITY OBLIGATIONS. Party-at-issue may disclose Confidential Information to the extent the Confidential Information is required to be disclosed by applicable law, court or administrative order or regulation, provided that Party- at-issue gives the Owner advance written notice of any request or demand for such disclosure and permits Owner to contest such disclosure by seeking a protective order or the equivalent. Any disclosure of Confidential Information pursuant to this Section shall not otherwise relieve Party-at-issue of any of its obligations hereunder including, without limitation, Section 5.
6. NO REQUIRED DISCLOSURE. Nothing in this Agreement shall require Owner to disclose or receive Confidential Information.
7. NO WARRANTY. ALL CONFIDENTIAL IS PROVIDED ‘AS IS.’ OWNER HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING THE ACCURACY, COMPLETENESS, PERFORMANCE OR NON-INFRINGEMENT OF ANY CONFIDENTIAL INFORMATION.
8. TERM AND TERMINATION. This Agreement shall commence on the Effective Date and remain in effect for a period of four (4) years, provided that all obligations under Section 4 survive until two (2) years after the Effective Date, except obligations regarding Confidential Information which constitutes a trade secret under the California Uniform Trade Secrets Act, California Civil Code Section 3426 et seq. (which shall continue for so long as such Confidential Information qualifies as a trade secret thereunder), and the provisions of Sections 7 through 12 shall survive the expiration or termination of this Agreement. Within 10 business days after the termination effective date, Party-at-issue shall return to the other all documents and tangible objects containing or representing Confidential Information, or provide Owner with a written certificate signed by an officer of the Party-at-issue certifying that all Confidential Information received hereunder has been destroyed.
9. PROPRIETARY RIGHTS. Owner retains all rights in and to its Confidential Information, and no rights to any present or future patents, mask works, copyrights or trademarks are implied, offered, licensed, or granted under this Agreement. Both parties agree that this Agreement neither assigns any intellectual or proprietary property rights in Confidential Information of Owner to Party-at-issue, nor does it permit Party-at-issue to file an intellectual property application incorporating Confidential Information of the other or any other documentation required to establish any type of ownership, interest or claim therein whatsoever.
10. REMEDIES. Party-at-issue acknowledges that monetary damages may not be a sufficient remedy in the event of an actual or threatened breach of this Agreement, and that only Owner shall be entitled, without waiving any other rights, to seek injunctive and other equitable relief. In no way shall Owner be restrained or prevented from seeking special or consequential damages against Party- at-issue. Both Parties agree to waive any requirement for the securing or posting of any bond in connection with such remedy.
11. DISPUTE RESOLUTION.
11.1 This Agreement shall be construed in accordance with the laws of the State of California, without respect to its conflict of laws provisions. The federal and state courts within the State of California shall have exclusive jurisdiction to adjudicate any dispute arising out of this Agreement. Each Party hereby consents to jurisdiction and venue in the state and federal courts located in Los Angeles County, California and to accept service of process by U.S. certified or registered mail, return receipt requested, or as otherwise authorized by California law.
11.2 Notwithstanding the foregoing, nothing in this Section 11 shall prevent Owner from seeking any injunctive or equitable relief by a court of competent jurisdiction that is necessary to protect the rights or property of Owner until such dispute is resolved.
11.3 For any and all disputes arising under or in connection with this Agreement, each Party agrees to make good faith efforts to amicably resolve such dispute and in the event such disputes have not been resolved, the Parties agree to submit any such dispute first for arbitration. And either Party may initiate and require arbitration by giving notice to the other parties specifying the matter to be arbitrated. Except as provided to the contrary in these provisions on arbitration, the arbitration shall be in conformity with and subject to applicable rules and procedures of AAA (or any successor thereto). If AAA is not then in existence and there is no successor, or if for any reason AAA fails or refuses to act, the arbitration shall be in conformity with and subject to the provisions of applicable California statutes (if any) relating to arbitration at the time of the notice. The arbitrators shall be bound by this agreement and all related agreements. Pleadings in any action pending on the same matter shall, if arbitration is required as aforesaid, be deemed amended to limit the issues to those contemplated by the rules prescribed above. Each Party shall pay the costs of arbitration, including arbitrator’s fees, as awarded by the arbitrator(s). The number and selection of arbitrator(s) shall be in accordance with the rules prescribed above, except that (i) each arbitrator selected shall be neutral and familiar with the principal subject matter of the issues to be arbitrated, or such other subject matter as may be at issue, (ii) the testimony of witnesses shall be given under oath, and (iii) depositions and other discovery may be ordered by the arbitrator(s). Any arbitration awards, decisions and/or judgments that are rendered shall be final. Notwithstanding, in the event that arbitration does not happen within three (3) months upon first filing for arbitration due to the other Party’s lack of cooperation or inability to pay arbitration fees, the filing party may also opt to file a legal action in the Los Angeles County Court.
Notice: By initialing in the space below both Parties are agreeing to have any dispute arising out of the matters included in the “arbitration of disputes’ provision decided by neutral arbitration and both Parties are giving up any rights they might possess to have the dispute litigated in a court or by jury trial. By initialing in the space below both Parties are giving up their judicial rights to discovery and appeal. If either Party refuses to submit to arbitration after agreeing to this provision the relevant Party may be compelled to arbitrate under the authority of the applicable state statute. Both Parties’ agreement to this arbitration provision is voluntary. We have read and understand the foregoing and agree to submit disputes arising out of the matters included in the Arbitration of Disputes Provision to neutral arbitration.
12. MISCELLANEOUS. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereto and supersedes any and all prior understandings, arrangements and agreements between the Parties. No part of this Agreement shall be modified except by a written agreement signed by both Parties. No significant meaning or legal consideration of any kind shall be attached or made with respect to any titles or subtitles herein as to the validity of any provision herein. Nothing this Agreement creates any joint venture or partnership between the Parties. This Agreement may not be assigned by either Party without the prior written approval of the other, and shall be binding on, and inure to the benefit of, the successors in interest to either Party, including without limitation, successors by merger, or purchasers of all or substantially all of the assets of either Party. Each Party represents that it has authority to enter into this Agreement. No waiver of any breach committed by a Party in one instance shall constitute a waiver or license to commit or continue breaches in any other instance. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect.
13. NO OTHER AGREEMENT. This Agreement is not and shall not be construed as any form of a letter of intent or agreement to enter into any type of transaction. This Agreement is to evidence the Parties’ agreement to maintain the confidentiality of the Confidential Information, and shall not constitute any commitment or obligation on the part of either Party to enter into any specific contractual arrangement of any nature whatsoever.