This Non-Disclosure Agreement (this "Agreement") is between NIKE Foundation, an Oregon nonprofit corporation with its principal place of operations at One Bowerman Drive, Beaverton, Oregon 97005-6453 ("Foundation") and any persons visiting the Yegna.org website.
Foundation and Recipient wish to discuss the possibility of establishing a relationship with each other. The Parties anticipate that during the course of their discussions, Foundation may furnish proprietary or confidential information to Recipient, and Recipient may be exposed to or have access to proprietary or confidential information of Foundation. Foundation is willing to furnish this information only on a confidential basis, and only for purposes described below.
The Parties agree as follows:
Definitions. The following capitalized terms have the meanings assigned to them in this Section:
"Affiliate" means, as to either Party, any Person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with that Party. The term "control" means the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise. The term “Affiliate” includes Persons who became Affiliates after the Effective Date of this Agreement. For purposes of this Agreement, Foundation’s Affiliates include, without limitation, Girl Hub, a UK charity, and NIKE, Inc. and its Affiliates.
"Business Day" means any day other than Saturday, Sunday or a U.S. federal holiday.
"Confidential Information" includes all information relating to the operations or other affairs of Foundation or its Affiliates, whether Disclosed before, on or after the Effective Date, regardless of the medium on which the information is stored, recorded, conveyed or communicated, and whether or not specifically identified as "Confidential" or "Proprietary," including: (a) accounting, economic and financial data; (b) technical plans, grant or program designs, artistic and scientific data, measurement and evaluation techniques; (c) ideas for research and development; (d) source code and other computer software (including software that is proprietary to third parties); (e) results, records, text, samples, photographs, graphic representations and audiovisual works; (f) confidential information of Foundation’s Affiliates or other information that Foundation must keep confidential as a result of obligations to third parties; (g) inventions, whether or not patentable; (h) the identity of Foundation's funders and grantees; (g) personnel and human resources data, files and other information about employees; (h) advocacy and marketing plans, strategies, policy statements and forecasts; (i) information to which Recipient has access while on Foundation's premises; (j) customized goods or services to be furnished by Recipient under an agreement with Foundation; (k) trade secrets; (l) summaries, excerpts, compilations and notes prepared by Recipient or others related to any of the preceding; and (m) the existence of this Agreement, or the fact that there was, is or may be a relationship or transaction between the Parties.
"Confidential Document" means any record containing or referring to Confidential Information, including computer files, voice-mail, disks, CD ROMs and papers.
"Disclose" means to divulge, permit access to or convey, whether intentionally or inadvertently.
"Order" means a subpoena, order compelling discovery or other order, issued by a court or other government body with valid jurisdiction.
"Party" means Recipient or Foundation (referred to collectively as the "Parties").
"Person" means an individual, corporation, partnership, limited liability company, co-operative, association, government body and any other legal or government entity.
"Receive" means gain access to, whether through intentional or inadvertent communication, transmission or other disclosure.
"Representatives" means a Party's directors, officers, employees, agents, consultants, advisors and other representatives (including legal counsel and accountants).
Permitted Uses; Restrictions.
Recipient will not use any Confidential Information for any purpose other than (a) to evaluate and discuss possible relationships between the Parties and (b) to perform its obligations under any agreement between the Parties resulting from the discussions.
Recipient will hold all Confidential Information in strict confidence and will not Disclose, without Foundation's prior written consent, any Confidential Information to any Person other than to Recipient's Representatives who: (i) have a "need to know"; (ii) have been advised of the confidential and proprietary nature of the Confidential Information; and (iii) are bound by non-use and confidentiality obligations that are at least as restrictive as those described in this Agreement. Recipient will be liable for (a) any use or Disclosure of Confidential Information by its Representatives that is not permitted pursuant to this Section Permitted Uses; Restrictions., (b) enforcing this Agreement as to its Representatives, and (c) taking any action, legal or otherwise, to cause them to comply with this Agreement (including all actions that Recipient would take to protect its own confidential information).
Recipient will protect all Confidential Information by using the same degree of care regarding the Confidential Information that Recipient would exercise regarding its own confidential information, but not less than reasonable care.
Recipient will not, without Foundation’s prior written consent, disassemble, reverse engineer or replicate in any way products embodying Confidential Information.
Exceptions. The obligations described in Section Permitted Uses; Restrictions., Orders to Disclose. If Recipient becomes subject to an Order that requires Recipient to produce Confidential Documents or otherwise Disclose Confidential Information, Recipient will, to the extent permitted by law: and Return of Confidential Documents. Upon the earliest of (a) Foundation's request, (b) the termination of discussions between the Parties without a definitive written agreement signed by the Parties or (c) the expiration or termination of any agreement the Parties execute, Recipient will, in Foundation's discretion: will not apply to any Confidential Information that Recipient can prove:
Was Disclosed or became generally available to the public without breach of this Agreement and through no act or omission of Recipient or its Representatives;
Recipient independently developed and recorded in writing (a) without reference to the Confidential Information and (b) before the date Recipient Received the Confidential Information;
Recipient Received, before Foundation Disclosed it to Recipient, from a third party that did not violate any agreement, duty or applicable law in Disclosing the information to Recipient, if Recipient provides Foundation with written notice of its possession either (a) before the Effective Date or (b) within 30 days after Recipient becomes aware it possesses such Confidential Information; or
Is legally required to be Disclosed, subject to Section Orders to Disclose. If Recipient becomes subject to an Order that requires Recipient to produce Confidential Documents or otherwise Disclose Confidential Information, Recipient will, to the extent permitted by law:.
Orders to Disclose. If Recipient becomes subject to an Order that requires Recipient to produce Confidential Documents or otherwise Disclose Confidential Information, Recipient will, to the extent permitted by law:
Promptly notify Foundation of the Order's terms and the circumstances surrounding its issuance;
Consult in good faith with Foundation regarding possible responses to the Order and, if requested by Foundation, make best efforts to narrow the Order's scope, obtain a protective order from the court, or produce documents to the court or government body under seal with appropriate instructions regarding preservation of the information's confidentiality; and
If disclosure is required to prevent Recipient from being subjected to contempt sanctions or other penalties, Disclose only the Confidential Information that, in the written opinion of counsel satisfactory to Foundation, is legally required to be Disclosed, consistent with a reasonable interpretation of the Order.
No Intellectual Property Rights. Neither Party acquires any intellectual property rights of the other under this Agreement. Nothing in this Agreement grants Recipient any right to use any Confidential Information for any purpose other than those stated in Section Recipient will not use any Confidential Information for any purpose other than (a) to evaluate and discuss possible relationships between the Parties and (b) to perform its obligations under any agreement between the Parties resulting from the discussions..
Publicity. Recipient will not (a) identify Foundation in any manner on a customer list or web site, or (b) otherwise use the name, assumed business name, trade name, logo, trademark, or service mark, whether or not registered, of Foundation or any Foundation Affiliate, in connection with publicity, advertisements, promotion or in any other manner.
No Representations or Warranties. Foundation retains the right to determine, in its sole discretion, what information it makes available to Recipient. Neither Foundation nor any of its Representatives makes any representation or warranty (express or implied) concerning the completeness or accuracy of any Confidential Information it Discloses.
No Obligation to Purchase. Nothing in this Agreement creates a legal obligation for either Party to purchase or license or sell any products or technology, or to purchase or sell any services, from the other.
Return of Confidential Documents. Upon the earliest of (a) Foundation's request, (b) the termination of discussions between the Parties without a definitive written agreement signed by the Parties or (c) the expiration or termination of any agreement the Parties execute, Recipient will, in Foundation's discretion:
Return to Foundation all copies of Confidential Documents and any other tangible material embodying or containing Confidential Information, including all Confidential Documents and Confidential Information in its Representatives' possession; or
Destroy every copy of Confidential Documents and any other tangible material embodying or containing Confidential Information (including all Confidential Documents in its Representatives' possession) and deliver to Foundation within five days a written statement signed by an authorized officer of Recipient certifying the destruction and including a list of the destroyed materials.
Injunctive Relief; Remedies. Recipient acknowledges that its breach of this Agreement will irreparably harm Foundation, and that the harm may not be susceptible to accurate measurement for the purpose of calculating money damages. Accordingly, Foundation will have the right to obtain an injunction or other equitable relief to prevent a breach or threatened breach of this Agreement, without the necessity of posting a bond or other security. All remedies are cumulative and in addition to any other remedies Foundation may have at law or in equity. Remedies may be exercised concurrently or separately, and no exercise of a remedy will constitute an election of that remedy to the exclusion of any other remedy.
Amendment. The Parties may amend this Agreement only by a written instrument that: (a) expressly refers to the amended provision(s) of this Agreement; (b) provides the full text of the amendment; and (c) is signed by an authorized representative of each Party.
Waiver. A Party's delay or failure to enforce or insist on strict compliance with any provision of this Agreement will not constitute a waiver or otherwise modify this Agreement. A Party's waiver of any right granted under this Agreement on one occasion will not (a) waive any other right, (b) constitute a continuing waiver or (c) waive that right on any other occasion.
Competition. Nothing in this Agreement will prohibit either Party from entering into discussions or business relationships with any competitor of the other Party.
Term; Survival. This Agreement will remain in effect from the Effective Date until terminated by either Party upon written notice to the other. As to Confidential Information Received before the termination date, Recipient's obligations under this Agreement will survive until such a time as the Confidential Information it Receives no longer qualifies as Confidential Information.
Choice of Law; Forum. This Agreement will be interpreted under, and any disputes arising out of this Agreement will be governed by, the laws of the State of Oregon, without regard to its conflict of laws principles. Each Party irrevocably consents to the jurisdiction of the state and federal courts located in the State of Oregon, USA, in connection with all actions arising out of or in connection with this Agreement, and waives any objections that venue is an inconvenient forum. Neither Party will initiate any action against the other Party in any other jurisdiction, provided that a final judgment in any such action or proceeding will be conclusive and may be enforced in any other jurisdiction by suit on the judgment or in any other manner provided by law.
Attorney Fees. If a suit, action, arbitration, or other proceeding of any nature whatsoever (including any proceeding under the US Bankruptcy Code) is instituted in connection with any controversy, interpretation, or enforcement of any rights under this Agreement, the Party substantially prevailing will be entitled to recover its attorney, paralegal, accountant, and expert fees, and all other reasonably necessary fees, costs, and expenses actually incurred in connection with that proceeding as determined by the court, arbitrator, or arbitration panel at trial, or in any appeal or other post-judgment proceeding, in addition to all other amounts provided by law. The court, arbitrator, or arbitration panel hearing the matter will determine which Party is substantially prevailing, taking into account the number and importance of all claims and defenses, the outcomes of those claims, and any offers of settlement made by the Parties.
Integration. This Agreement is the entire agreement between the Parties concerning its subject matter and supersedes all prior and contemporaneous oral and written agreements, commitments, and understandings concerning that subject matter.
Succession. This Agreement will bind and inure to the benefit of each Party and their respective permitted successors, assigns, and delegates.
Severability; Blue Penciling. If any court, arbitrator, or arbitration panel finds any provision of this Agreement to be invalid or otherwise unenforceable, that provision will be void to the extent it is contrary to applicable law. However, that finding will not affect the validity of any other provision of this Agreement, and the rest of this Agreement will remain in full force and effect unless enforcement of this Agreement without the invalidated provision would be grossly inequitable under all of the circumstances or would frustrate the primary purposes of this Agreement. Alternatively, if a court, arbitrator, or arbitration panel determines that any provision of this Agreement is not enforceable as expressly written, it is the intention of the Parties that those provisions be modified by the court, arbitrator, or arbitration panel only as is necessary for them to be enforceable.
Notices. Each notice or other communication required or permitted under this Agreement will be in writing, will be sent by certified mail (postage prepaid, return receipt requested) or by a recognized US overnight courier, and will be addressed to the other Party at the address shown in the first paragraph of this Agreement. Each notice, consent, request, or other communication will be deemed to have been received by the Party to whom it was addressed (a) on the fifth Business Day after the date of mailing if mailed, or (b) on the date officially recorded as delivered according to the record of delivery if delivered by overnight courier. Each Party may change its address for purposes of this Agreement by giving written notice to the other Party in the manner set forth above.
Interpretation. Section and paragraph headings are for convenience only and do not affect the meaning or interpretation of this Agreement. The word "including" is not limited in any way and means "including without limitation." Both Parties have had the opportunity to have this Agreement reviewed by their attorneys. Therefore, no rule of construction or interpretation that disfavors the Party drafting this Agreement or any of its provisions will apply to the interpretation of this Agreement. Instead, this Agreement will be interpreted according to the fair meaning of its terms.
Counterparts and Delivery. This Agreement may be executed in counterparts. Each counterpart will be considered an original, and all of them, taken together, will constitute a single Agreement. Facsimile signatures will be deemed original signatures for all purposes under this Agreement. Neither this Agreement, nor any amendment or modification of this Agreement may be executed by means of an electronic signature. This Agreement may be delivered by facsimile or electronically, and any such delivery will have the same effect as physical delivery of a signed original.
Authorization. Each individual whose visits the www.yegna.org website and accepts the NDA conditions here within or signs a physical copy of this NDA.