This confidential information access agreement (this "Agreement") governs your access to, and receipt and use of, the confidential information and trade secrets of Sionic Mobile Corporation, a Georgia corporation ("Sionic Mobile"), including as may be disclosed from time to time through Sionic Mobile’s shareholder portal. You accept this Agreement and agree to be bound by its provisions upon accessing Sionic Mobile’s shareholder portal or receiving, at your request, any of Sionic Mobile’s other confidential information and trade secrets.
The below terms have the following defined meanings, which are in addition to those terms defined elsewhere in this Agreement:
"Affiliate" means a Person that directly or indirectly controls, or is controlled by, another Person, or is under direct or indirect common control with another Person, where control is established when a Person owns or controls, directly or indirectly, at least 50 percent of the voting equity of another Person, or has the power to direct or cause to the direction of the management of another Person, whether through ownership of voting securities or otherwise.
"Business Day" means Monday through Friday, inclusive, although excludes public holidays as declared by the United States Congress and by the respective legislatures of each State in which a Party is headquartered.
"Confidential Information" means information of the Disclosing Party, regardless of whether written, oral, photographic, electronic, magnetic or in any other form, including in each instance copies, that obtains substantial value from not being generally known, and in each instance may include: (i) trade secrets, know-how (including negative know-how), patent applications, and other intellectual property; (ii) scientific or technical data and methods; (iii) computer programs, code, and algorithms; (iv) specifications, designs, blueprints, manufacturing information and processes as may relate to any product, service or offering of Sionic Mobile; (v) inventions and innovations; (vi) sales, marketing and business information; (vii) financial information, ledgers, and financial statements; (viii) pricing (including pricing of customers, vendors, or other third parties) models and projections; (ix) third party documents disclosed to Sionic Mobile on a confidential basis; (x) lists customers and customer prospects (xi) contracts, term sheets, letters of intent, memoranda of understanding, and other transactional documents, whether finalized or in draft; (xii) analyses, compilations, studies, internal memoranda, and correspondence; (xiii) technical specifications and other information concerning the Disclosing Party’s goods, services, business model, ideas, concepts, and operations; and (xiv) any Notes. Confidential Information does not include information, as established by competent evidence, that: (A) was available publicly before its disclosure by the Disclosing Party to the Receiving Party; (B) becomes known to the public other than by the wrongful act or omission of the Receiving Party; (C) is disclosed to the Receiving Party by a third party having no obligation of confidentiality, direct or indirect, as pertinent to information disclosed as Confidential Information under this Agreement; (D) was known to the Receiving Party on a non-confidential basis before its disclosure on a confidential basis under this Agreement by the Disclosing Party; or (E) corresponds to information a Disclosing Party has disclosed to a third party on a non-confidential basis.
"Disclosing Party" means Sionic Mobile and its Affiliates.
"Notes" means any summaries, notes, memoranda, compilations, analyses, reports or other documents or materials that the Receiving Party may draft, compile or organize containing or otherwise in regard to any of Confidential Information referenced in Section 2(c)(i) through (xiii).
"Party" means you as the Receiving Party and Sionic Mobile as the Disclosing Party.
"Person" means any individual, partnership (including any limited partnership form, like those designated as LP, LLP, or LLLP), corporation, trust, limited liability company, unincorporated organization, governmental authority, or any other entity.
"Purpose" means for the purpose of evaluating the business, operations, prospects, property, and performance of Sionic Mobile as relates to the Receiving Party’s status as a potential or actual investor or holder of stock in each instance of Sionic Mobile.
"Receiving Party" means you as the Party receiving Confidential Information, including any of your Affiliates.
"Representatives" means the directors, officers, executives, managers, employees, attorneys, professionals, contractors, agents, bankers, investment bankers, and lenders of a Receiving Party or of an Affiliate of a Receiving Party.
The Receiving Party shall:
protect, hold and maintain all Confidential Information in strictest confidence, subject in each instance to this Agreement, using not less than the greater of either those efforts that the Receiving Party uses to protect its own Confidential Information, or commercially reasonable efforts;
limit disclosure of Confidential Information to the Receiving Party’s Representatives, and also Affiliates and Representatives of the Receiving Party’s Affiliates, in each instance with a need to know that Confidential Information relative to the Purpose, duly bound in each instance by a duty or obligation of confidentiality not less than that imposed on the Receiving Party under this Agreement;
use the Confidential Information only for the Purpose and for no other reason, activity or undertaking, and shall not disclose that Confidential Information to any Person (including any Affiliate or Representative) except for the Purpose;
ensure, and is responsible for ensuring, that any Person (including Representative, Affiliate, or Affiliate Representative) with whom the Receiving Party shares Confidential Information, holds and maintains that Confidential Information as strictly confidential at all times in conformity with the non-disclosure obligations of this Agreement; and
notify the Disclosing Party immediately and in writing upon discovery of any loss, unauthorized disclosure, or use of the Confidential Information or any other breach of this Agreement by the Receiving Party or the Receiving Party’s Affiliates, or each of their respective Representatives, and without waiving or compromising any right or remedy that the Disclosing Party may have under this Agreement, in equity or at law, assist the Disclosing Party in regaining possession of and to prevent any additional unauthorized disclosure or use of Confidential Information.
The Receiving Party shall not:
reverse engineer any Confidential Information; or
disclose Confidential Information to Persons not permitted under Section 3(b) without the prior written consent of the Disclosing Party.
The Disclosing Party may at any time terminate the Receiving Party’s access to the Confidential Information, whether in whole or in part, whereupon, following notice from the Disclosing Party, the Receiving Party shall immediately: (a) return all Confidential Information disclosed to it; and (b) destroy all Confidential Information, including Notes, in the Receiving Party’s possession, as duly certified by the Receiving Party to the Disclosing Party in writing. No such termination of the Agreement or return or destruction of the Confidential Information or Notes shall waive or compromise any of the confidentiality obligations of the Receiving Party, or those of the Receiving Party’s Affiliates, all of which shall continue in full force and effect in accordance with this Agreement. Nothing stated in this paragraph shall require the Receiving Party or the Receiving Party’s Affiliates to return, destroy, or delete copies of Confidential Information residing in any computer records or files that have been created pursuant to automated processes such as document retention/archiving or backup policies/procedures, although only to the extent that such Confidential Information is kept confidential and cannot be accessed in the regular course of business, is maintained and archived in compliance with reasonable information security standards, and is properly deleted as required by the Receiving Party’s document retention and destruction policies.
The Receiving Party acknowledges that the Disclosing Party exclusively owns all Confidential Information together with all rights in ideas, inventions, works of authorship, strategies, plans, and data, created in or resulting from discussions between the Receiving Party and the Disclosing Party or that are otherwise based upon, derived from, or arise in relation to the Confidential Information, including all patent rights, copyrights, moral rights, rights in proprietary information, database rights, trademark rights, and other intellectual property rights. The Receiving Party shall promptly execute all assignments pertinent to this paragraph. Nothing in this Agreement shall be deemed to grant a license directly or by implication, estoppel, or otherwise, under any intellectual property right related to the Confidential Information.
Subject to and consistent with Section 3(a) and (b), without the Disclosing Party’s prior written consent, the Receiving Party may only disclose the minimal portion of Confidential Information that the Receiving Party’s counsel advises as legally required and necessary, and then only under the following circumstances: (a) the disclosure is mandated of the Receiving Party under applicable law (including the Securities Act of 1933, as amended, or the Securities and Exchange Act of 1934); or (b) the disclosure is responsive to an order, subpoena, investigative demand or other legitimate process of law issuing from a court, regulatory agency or other duly empowered governmental authority of competent jurisdiction, in which event to the extent not prohibited by law, the Receiving Party shall timely notify the affected Disclosing Party in writing before the disclosure is made so the Disclosing Party may seek a protective order or otherwise act to prevent the disclosure. Before disclosure under this paragraph, the Receiving Party shall cooperate with the Disclosing Party in appropriately limiting the disclosure of Confidential Information, and shall undertake all reasonable efforts to ensure confidential treatment of the Confidential Information, including by protective order in the event of disclosure requirement under subpart (b) of this paragraph.
The Receiving Party acknowledges:
This Agreement imposes no duty or obligation on the Disclosing Party to disclose any Confidential Information, the decision as to when, which, and how much of Confidential Information to disclose remaining at all times within the exclusive exercise of the Disclosing Party’s discretion;
The Receiving Party has no right, title or interest in or to a Disclosing Party’s Confidential Information, and no license or conveyance of any intellectual property rights is granted by the Disclosing Party, whether in whole or in part, expressly or impliedly, in consequence of this Agreement or its performance;
The Disclosing Party is not privy to or otherwise knowledgeable about the Receiving Party’s business or interests, or operations, practices, plans, organization, products, or services, is thus not responsible or liable for any decision that the Receiving Party may make in reliance upon any Confidential Information;
The Confidential Information, when and as presented, does not purport to be all‐inclusive or to contain all information that may deemed material to a transaction, or that may otherwise be required or deemed necessary to a fair evaluation of Sionic Mobile or its business, prospects or value;
Confidential Information may include information that is outdated or depends upon or incorporates assumptions or expectations that may prove, or that may have proven to be, incorrect in the fullness of time; and
The Confidential Information may include forward-looking statements and information for purposes of applicable securities laws and regulations, including in regard to projected financial performance; use of proceeds from the sale of the shares; expected development or performance of Sionic Mobile’s business, projects or ventures; attainment of Sionic Mobile’s vision and growth strategy, including in regard to acquisitions and sales of shares, execution upon available opportunities, and overall growth and progression of the business and operations; potential financing; status and likelihood of completion in regard to pending projects or projects that are otherwise in negotiation or under consideration; renewal, growth or continuation of existing vendor, customer, and contractor agreements and relationships; and future liquidity, working capital, and capital requirements. These and other forward-looking statements and information constitute management’s subjective beliefs and opinions in respect of the future and are not guarantees of future performance, and necessarily involve known and unknown risks and uncertainties that may cause actual performance and financial results in future periods to differ materially from current expectations.
The "Term" of this Agreement commences on the Effective Date and shall terminate as follows:
except for Confidential Information constituting a trade secret, this Agreement shall continue up to and including the third anniversary of the last item of Confidential Information to be disclosed under this Agreement, although in all regards, Confidential Information not constituting a trade secret shall cease to be confidential by the fifth anniversary of the date on which the Receiving Party is informed by notice from the Disclosing Party that it is to no longer have access to Confidential Information under this Agreement; and
for Confidential Information that constitutes a trade secret under the Georgia Trade Secrets Act of 1990, O.C.G.A. § 10-1-760 et seq., as amended from time to time, this Agreement shall remain in effect for so long as it remains a trade secret.
The Party’s further agree:
This Agreement is binding upon and inures to the benefit of the Parties and each of their respective successors and permitted assigns.
This Agreement is made and entered into, and is to be performed in, the State of Georgia (the "Forum State"). The laws of the Forum State shall govern and control without regard to the Forum State’s conflict of law principles. All actions arising under or in relation to this Agreement shall be exclusively heard and determined in the courts of competent jurisdiction in the Forum State. Each Party waives to the fullest extent legally permitted, any challenge to jurisdiction in the Forum State, including in regard to inconvenience of forum or lack of personal jurisdiction. A final judgment in the Forum State shall be conclusive and enforceable in all jurisdictions where a Party may seek enforcement. Nothing in this Agreement shall affect the right of a Party to prosecute or defend actions against Persons not Party to this Agreement at such time and in such fora as a Party may determine.
This Agreement is specific as to its subject matter and does not constitute or form a teaming, joint venture, or other such arrangement.
This Agreement is further to and not in replacement of any other agreements, if any, between the Parties. Accordingly, this Agreement provides rights and protections that are additional to and not in replacement of those stated in any other agreements between the Parties. To the extent there is a conflict between the provisions of this Agreement and those another agreement between the Parties, the provisions providing greater protection, rights and remedies in regard to Confidential Information shall control.
Without waiving or compromising the Receiving Party’s obligations under this Agreement, the Receiving Party shall undertake all reasonable measures to ensure any disclosure of Confidential Information complies with any export control laws which may govern such disclosure, and with respect to any technical data, where such technical data is subject to any export control laws, shall prohibit its released without first complying with all applicable export control laws and regulations, including without limitation, the requirement for obtaining necessary governmental approvals for such a released.
No change, modification, addition to, or waiver of, any provision of this Agreement shall be binding unless in writing and signed by authorized representatives of both parties. A Party’s failure to enforce or to demand strict conformity with this Agreement shall not be construed or enforced as a modification to this Agreement, or as a waiver or compromise of a Party’s right to require strict compliance with this Agreement.
If any term or other provision of this Agreement is invalid, illegal or unenforceable due to any public policy or other reason (in each instance an "Unenforceable Clause"), all other terms and provisions shall nevertheless remain in full force and effect. The court or other governmental authority making a determination that a provision of this Agreement is an Unenforceable Clause is authorized and instructed to modify this Agreement to effect the Parties’ original intention as closely as possible, so that the transactions contemplated by this Agreement are consummated as closely as possible to that intention.
The Receiving Party shall not assign this Agreement to any other Person without the prior written consent of the Disclosing Party, which consent shall not be unreasonably withheld, conditioned or delayed. Any purported assignment in violation of this Section shall be null and void.
The Receiving Party acknowledges that the Disclosing Party shall have no adequate remedy in money or damages in the event that the Receiving Party or the Receiving Party’s Affiliates, or each of their respective Representatives, engages in any disclosure or threatened disclosure of Confidential Information in material breach of this Agreement, and that in addition to all other rights and remedies that the Disclosing Party may have under this Agreement, in equity or at law, the Disclosing Party is also entitled to seek injunctive relief, specific performance, and other equitable relief without the necessity of first posting bond or other security or proving damages.
The headings of the Sections, parts and subparts of this Agreement are for reference and convenience only, and do not constitute a material part of this Agreement. The phrase "including" wherever it appears and in whatever form means "including, without limitation." Pronouns in the masculine, feminine or neuter genders include any other and all other genders. All words, titles and terms of this Agreement (including its defined terms) that are stated in the singular will be construed to include the plural, and the plural the singular, unless context requires a specific, numeric application.