This Mutual Nondisclosure Agreement (this "Agreement") is entered into as of the date it takes effect under the Acceptance section (the "Effective Date") by and between Dovito® Business Solutions, Ltd., a Colorado limited liability company, with its principal place of business at 508 Main Street, Windsor, Colorado 80550 ("Dovito"), and the counterparty that signs or accepts it ("Counterparty"). Dovito and Counterparty are each a "Party."
Use. Dovito sends this Agreement before discovery calls, assessments, and proposals. If the Parties later sign Dovito's Master Services Agreement ("MSA"), Section 11 of the MSA governs disclosures made after the MSA's effective date, and this Agreement continues to govern disclosures made before it.
The Parties want to evaluate, negotiate, and potentially perform a business relationship in which Dovito may provide business-systems, software, automation, AI, and related services (the "Purpose"). In doing so, each Party may disclose Confidential Information to the other.
2.1 Definition. "Confidential Information" means non-public information that a Party ("Discloser") or its Affiliates disclose to the other Party ("Recipient"), before or after the Effective Date, in any form, that is marked confidential or that a reasonable person would understand to be confidential given its nature and the circumstances of disclosure. It includes business plans, financial information, customer and vendor information, pricing, personnel information, software, source code, system architecture, credentials, data, processes, methodologies, and the existence and terms of the Parties' discussions. "Affiliate" means an entity that controls, is controlled by, or is under common control with a Party.
2.2 Dovito's Confidential Information. Dovito's Confidential Information includes its methodologies (including the Systematics™ methodology), frameworks, software, prompts, skills, agent configurations, connectors, templates, proposals, assessments, and pricing.
2.3 Notes and Analyses. Confidential Information includes only those portions of the Recipient's notes, analyses, and compilations that contain the Discloser's Confidential Information. It does not include the Recipient's own methods, analyses, conclusions, or work product apart from that information.
2.4 Exclusions. Confidential Information does not include information that the Recipient can show: (a) is or becomes publicly available without the Recipient's breach; (b) was known to the Recipient without confidentiality obligation before receiving it from the Discloser; (c) is received from a third party without breach of an obligation to the Discloser; or (d) is independently developed by the Recipient without use of the Discloser's Confidential Information. Personal information about individuals remains protected even if one of these exclusions would otherwise apply.
3.1 Use. The Recipient will use Confidential Information only for the Purpose.
3.2 Protection. The Recipient will protect Confidential Information with at least reasonable care, and no less care than it uses to protect its own similar information.
3.3 Disclosure. The Recipient may disclose Confidential Information only to its and its Affiliates' employees, contractors, and professional advisors (together, "Representatives") who need to know it for the Purpose and are bound by confidentiality obligations at least as protective as this Agreement. The Recipient is responsible for its Representatives' compliance.
3.4 Compelled Disclosure. The Recipient may disclose Confidential Information when required by law, subpoena, or court order, if it gives the Discloser prompt notice where legally permitted, reasonably cooperates with the Discloser's efforts to obtain protective treatment at the Discloser's expense, and discloses only what is legally required.
3.5 Unauthorized Disclosure. The Recipient will notify the Discloser promptly after learning of any unauthorized use or disclosure of Confidential Information and will cooperate reasonably to limit it.
3.6 No Reverse Engineering. The Recipient will not reverse engineer, decompile, or disassemble any software, model, prototype, or other tangible item that embodies the Discloser's Confidential Information.
3.7 Credentials and Systems Access. If either Party provides credentials or access to its systems, the Recipient will use them only for the Purpose, only to the extent authorized, and will not retain them after the Purpose ends.
4.1 Learnings. Each Party may use, for any purpose, the general knowledge, skills, experience, ideas, concepts, techniques, and know-how retained in the unaided memory of its Representatives, provided it does not disclose the Discloser's Confidential Information or reproduce the Discloser's documents. A person's memory is unaided if the person has not intentionally memorized the information for the purpose of retaining and later using it. This Section grants no license under the Discloser's patents or copyrights.
4.2 Independent Development. Each Party understands that the other may already be developing, or may later develop, products, services, methodologies, or systems similar to those discussed. Nothing in this Agreement restricts a Party from doing so without use of the other Party's Confidential Information.
4.3 No Assignment of Improvements. Neither Party acquires any ownership of, or right in, the other Party's improvements, inventions, developments, or work product by reason of this Agreement or any disclosure under it. All Confidential Information remains the property of the Discloser.
5.1 Personnel. Counterparty will not use Dovito's Confidential Information, including information about Dovito's personnel, rates, or staffing, to solicit Dovito's employees or contractors. A non-solicitation covenant with a placement fee applies only if the Parties sign the MSA (see MSA Section 13).
5.2 Non-Circumvention. For the same period, Counterparty will not use Dovito's Confidential Information to contact Dovito's vendors, partners, or subcontractors identified to Counterparty in order to obtain from them, directly, services of the kind Dovito proposed to provide.
On the Discloser's written request, the Recipient will promptly return or destroy the Discloser's Confidential Information and confirm in writing. The Recipient may keep copies required by law or regulation, contained in routine backups, or needed to document its compliance with this Agreement, and those copies remain subject to this Agreement for as long as they are kept.
7.1 Term. This Agreement covers disclosures made during the three years after the Effective Date. Either Party may end it earlier for future disclosures by 30 days' written notice.
7.2 Survival. The Recipient's obligations for each item of Confidential Information continue for three years after this Agreement ends, and for trade secrets and personal information, for as long as they remain trade secrets or are held by the Recipient. Sections 2 through 11 survive.
8.1 As Is. Confidential Information is provided "as is." The Discloser makes no warranty about its accuracy or completeness, and has no liability for the Recipient's use of it, except as stated in a later signed definitive agreement.
8.2 No License. No license or other right is granted except the limited right to use Confidential Information for the Purpose.
8.3 No Obligation. Neither Party is obligated to disclose any particular information, to continue discussions, or to enter into any further agreement. Neither Party is bound by any proposal or understanding until a definitive written agreement is signed. This Agreement does not create a partnership, joint venture, agency, or exclusive relationship.
9.1 Equitable Relief. Unauthorized use or disclosure of Confidential Information may cause irreparable harm for which damages would be inadequate. The Discloser may seek a temporary restraining order, injunction, or specific performance under Section 10.4, without posting bond or proving actual damages, in addition to its other remedies.
9.2 Fees. In any proceeding to enforce this Agreement, the prevailing Party is entitled to recover its reasonable attorneys' fees, expert fees, and costs.
10.1 Governing Law. This Agreement is governed by the laws of the State of Colorado, without regard to conflict-of-laws rules, and by the Federal Arbitration Act as to this Section 10.
10.2 Negotiation and Mediation. A Party with a dispute arising out of or relating to this Agreement (a "Dispute") will give the other Party written notice. Senior representatives will meet within 15 days after the notice. If the Dispute is not resolved within 30 days after the notice, either Party may submit it to non-binding mediation administered by the American Arbitration Association ("AAA") in Weld County, Colorado, or by video conference, with the mediator's fees shared equally.
10.3 Binding Arbitration. Any Dispute not resolved within 60 days after the notice will be resolved by final and binding arbitration administered by the AAA under its Commercial Arbitration Rules, before a single arbitrator, seated in Weld County, Colorado. The arbitrator will apply Colorado law and issue a reasoned written award, and judgment may be entered in any court with jurisdiction. The Parties will keep the proceedings confidential.
10.4 Exceptions. Either Party may bring an individual action in small claims court, and either Party may seek temporary or preliminary equitable relief in any court of competent jurisdiction to protect its Confidential Information or intellectual property pending arbitration. For any matter permitted in court, the Parties submit to the exclusive jurisdiction of the state courts located in Weld County, Colorado, and the United States District Court for the District of Colorado, except that a Party may seek the equitable relief described above in any court of competent jurisdiction.
10.5 Jury and Class Waiver. EACH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ANY RIGHT TO A TRIAL BY JURY AND ANY RIGHT TO BRING OR PARTICIPATE IN A CLASS, COLLECTIVE, OR REPRESENTATIVE PROCEEDING.
10.6 Time Limit. To the extent permitted by law, any claim arising out of or relating to this Agreement, other than a claim for misappropriation of trade secrets, must be brought within one year after the claiming Party knew or reasonably should have known of it.
11.1 Entire Agreement. This Agreement is the entire agreement between the Parties about its subject matter and supersedes all prior nondisclosure agreements between them for disclosures made after the Effective Date, including any clause in a prior agreement that assigns improvements or developments to a Discloser. Disclosures made under a prior agreement remain protected by that agreement's confidentiality obligations.
11.2 Amendment and Waiver. Amendments and waivers must be in writing and signed by both Parties. Failure or delay in exercising a right is not a waiver.
11.3 Assignment. Neither Party may assign this Agreement without the other's written consent, except to an Affiliate or to a successor in a merger, acquisition, or sale of all or substantially all of its assets, on written notice.
11.4 Severability. If any provision is unenforceable, it will be enforced to the maximum extent permissible and reformed to the minimum extent necessary, and the rest remains in effect.
11.5 Notices. Notices must be in writing and delivered by hand, courier, certified mail, or email to the addresses in the signed copy of this Agreement or the related Order, and for Dovito, with a copy to legal@dovito.com.
11.6 Export. Each Party will comply with applicable export control and sanctions laws in handling Confidential Information.
11.7 Interpretation. "Including" means "including without limitation." No rule of construction against the drafter applies.
11.8 Counterparts and Electronic Signatures. This Agreement may be signed in counterparts and by electronic signature, each of which is an original.
This Agreement takes effect when both Parties sign it, including electronically, or when Counterparty signs or accepts a Dovito quote, Order, or Master Services Agreement that references it. To request a copy for signature, email legal@dovito.com.
Reviews
“David and the team at Dovito Business Solutions are phenomenal at creating solutions with automation, systems and processes to give business owners back valuable time to work ON the business not IN the business. I learn something new every time I have a conversation with this group.”