OneFund Investments LLC Non-Disclosure Agreement
This Non-Disclosure Agreement (this “Agreement”) is an agreement between you (“Recipient”) and OneFund Investments, LLC (“Disclosing Party”) and governs Recipient’s use of the Confidential Information (defined below). If Recipient does not agree to the terms and conditions set forth in this Agreement, Recipient may not access or otherwise use the Confidential Information.
1. Definitions. As used herein, the following terms have the following meanings:
“Affiliate” means, as to any party, any other person that controls, is controlled by, or is under common control with, such person. For these purposes, “control” shall mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract or otherwise.
“Confidential Information” means all information of Disclosing Party or its Affiliates, in oral, visual, written, electronic or any other form, whether or not marked or designated as “confidential,” and all notes, analyses, summaries and other materials prepared by Recipient or any of its Representatives that contain, are based on, or otherwise reflect, to any degree, any of the foregoing. Confidential Information also includes, without limitation: (a) any platform of the Disclosing Party or its Affiliates, including the information thereon, the platform’s user interface, and Recipient’s use and experience therewith; (b) the facts that the parties are in discussions regarding the Purpose (defined below) and that Confidential Information has been disclosed; (c) any terms, conditions or arrangements discussed among the parties; and (d) all other information of Disclosing Party or its Affiliates. Notwithstanding the foregoing, Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Recipient’s or its Representatives’ act or omission; (b) is obtained by Recipient or its Representatives on a non-confidential basis from a third party that was not legally or contractually restricted from disclosing such information; or (c) was in Recipient’s or its Representatives’ possession, as established by documentary evidence, before the Effective Date.
“Representatives” means the partners, members, directors, officers, employees, agents, and advisors (including, without limitation, attorneys, accountants, investment bankers, investment professionals and consultants) of (i) a specified party or (ii) of such specified party’s Affiliates.
2. Use of Confidential Information. In connection with the investment in one or more funds sponsored by Disclosing Party or its Affiliates (the “Purpose”), Disclosing Party may disclose to Recipient, or Recipient may otherwise receive access to, Confidential Information. Recipient shall use the Confidential Information solely for the Purpose and, subject to Section 3, shall not disclose or permit access to Confidential Information other than to its Representatives who: (a) have a need to know such Confidential Information for the Purpose; (b) know of the existence and terms of this Agreement; and (c) are bound by confidentiality obligations no less protective of the Confidential Information than the terms contained herein. Recipient shall safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most sensitive information and no less than a reasonable degree of care. Recipient shall promptly notify Disclosing Party of any unauthorized use or disclosure of Confidential Information and use its best efforts and cooperate with Disclosing Party to prevent further use or disclosure. Recipient will be responsible for any breach of this Agreement caused by its Representatives.
3. Legally Required Disclosure. If Recipient or its Representatives are required by a valid legal order to disclose any Confidential Information, Recipient shall, before such disclosure, notify Disclosing Party of such requirements so that Disclosing Party may seek a protective order or other remedy, and Recipient shall assist Disclosing Party therewith. If Recipient remains legally compelled to make such disclosure, it shall: (a) only disclose that portion of the Confidential Information that, in the written opinion of its legal counsel, Recipient is required to disclose; and (b) use reasonable efforts to ensure that such Confidential Information is afforded confidential treatment.
4. Return or Destruction of Confidential Information. At Disclosing Party’s request, Recipient shall promptly destroy all Confidential Information in its and its Representatives’ possession and certify in writing to Disclosing Party the destruction thereof. Recipient’s and its Representatives obligations hereunder shall survive any destruction of the Confidential Information.
5. No Representations or Warranties. Disclosing Party has no obligation under this Agreement to (a) disclose any Confidential Information or (b) negotiate for, enter into or otherwise pursue the Purpose. Disclosing Party provides all Confidential Information without any representation or warranty, expressed or implied, as to the accuracy or completeness thereof, and Disclosing Party will have no liability to Recipient or any other person relating to Recipient’s use of any of the Confidential Information or any errors therein or omissions therefrom.
6. No Grant of Rights. Disclosing Party retains its entire right, title and interest in and to all Confidential Information, and no disclosure of Confidential Information hereunder will be construed as a license, assignment or other transfer of any such right, title and interest to Recipient or any other person.
7. Indemnification. Recipient shall indemnify, defend and hold Disclosing Party and its representatives harmless from any claims, damages, liabilities and attorney fees and expenses (including fees and expenses to enforce this Agreement and to collect such fees and expenses) that are related to or arise out of any breach of this Agreement by Recipient or its Representatives.
8. Equitable Relief. Recipient acknowledges and agrees that any breach of this Agreement will cause injury to Disclosing Party for which money damages would be an inadequate remedy and that, in addition to remedies at law, Disclosing Party is entitled to equitable relief (including a restraining order) as a remedy for any such breach, without need to post a bond or to show irreparable harm, balancing of harms, consideration of the public interest or inadequacy of monetary damages as a remedy.
9. Miscellaneous. This Agreement and all matters relating hereto are governed by, and construed in accordance with, the laws of the State of Delaware, without regard to the conflict of law provisions of such jurisdiction. This Agreement may only be amended, modified, waived or supplemented by an agreement in writing signed by both parties. Except as otherwise expressly set forth herein, the obligations of the parties under this Agreement will continue forever, and shall have no termination date.