This Agreement is made and entered into as of the date the User agrees to this non-disclosure agreement (the “Effective Date”), by and between:
[SZ DJI TECHNOLOGY CO., LTD], together with its affiliates( “DJI” and/or “Discloser”); and the user of DJI’s Beta SDK (“Recipient”)(respectively referred to as the “Party”, and together as the “Parties”).
WHEREAS Discloser wishes to allow Recipient to access Beta versions of DJI’s SDK. However, Beta versions of the SDK may contain information about unreleased products, which Discloser intends to keep confidential.
NOW, THEREFORE, for and in consideration of the mutual promises contained herein, the Parties hereto, intending to be legally bound, do agree as follows:
1. DEFINITIONS, INTERPRETATION AND ORDER OF PRECEDENCE
Capitalised terms used herein, shall have the meaning set forth in this Section 1.1 unless the context requires otherwise.
"Affiliate" means, with respect to a Party, any other individual or entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with, such Party.
"Agreement" means this Non-disclosure Agreement.
"Business Day" means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in [the People’s Republic of China].
"Change of Control" means any single transaction or series of related transactions which result in the transfer of the direct or indirect ownership of more than 50% of the issued and outstanding voting shares, or any securities convertible into voting shares, of the Recipient, other than an initial or secondary public offering of shares in the Recipient or a change of control resulting from a private financing upon such terms as the Discloser agrees in writing.
"Confidential Information" shall have the meaning ascribed to it in Section 2.1.
"Discloser" means a Party disclosing the Confidentiality Information to the other Party under this Agreement.
"Effective Date" shall have the meaning ascribed to it in the preamble.
"Event of Default" means the occurrence or existence of any of the following:
(a) failure of the Recipient to perform or comply with any obligations, terms, agreements, covenants, representations, warranties or conditions contained in this Agreement;
(b) inability or admission of its inability of the Recipient to pay its debts as they fall due or suspends making payments on any of its debts.
"Party" or "Parties" shall have the meaning ascribed to it in the preamble.
"Permitted Personnel" shall have the meaning ascribed to it in Section 2.4
"Project" shall have the meaning ascribed to it in the recital.
"Recipient" means the party receiving the Confidentiality Information from DJI under this Agreement.
The following rules of interpretation apply unless the context requires otherwise:
(a) headings to clauses and paragraphs are for ease of reference only and shall not affect construction thereof.
(b) save for where the context otherwise requires, words importing the singular include the plural and vice versa.
(c) save for where expressly provided otherwise, words denoting one gender only shall include the other gender and vice versa.
(d) unless specified otherwise herein, all references to time in this Agreement are expressed and shall be construed in accordance with the Gregorian calendar.
(e) references to parties and clauses are to the parties to and the clauses of this Agreement.
2. CONFIDENTIAL INFORMATION
2.1.1 Confidentiality Information shall mean:
(a) any information disclosed, directly or indirectly, by Discloser to Recipient pursuant to this Agreement (including, without limitation, information regarding research, development, product plans, products, services, equipment, software, trade secrets, inventions, know-how, processes, designs, drawings, formulations, specifications, product configuration information, prototypes, samples, data sets, marketing and finance matters, procurement manufacturing, markets, customers, investors sales, and forecasts) that: (i) if in written, graphic, machine readable or other tangible form, is marked “Confidential,” “Proprietary” or in other manner to indicate its confidential nature; (ii) if disclosed orally, is designated as confidential at the time of its initial disclosure; and (iii) is otherwise reasonably expected to be treated in a confidential manner under the circumstances of disclosure under this Agreement or by the nature of the information itself;
(b) information of a third party that is in the possession of Discloser and is disclosed to Recipient under this Agreement; and
(c) Information regarding unreleased DJI products.
Notwithstanding the foregoing, in any case of doubt regarding confidentiality of any information in connection with the Discloser, this Agreement as well as the Project to which the Recipient in any way has access, Recipient shall treat such information as Confidential Information, unless informed otherwise.
2.1.2 Confidential Information shall not include any information disclosed or made available to the Recipient which:
(a) prior to its disclosure by the Discloser, is already lawfully and rightfully known by or available to the Recipient as evidenced by written records or other tangible documents;
(b) through no wrongful act, fault or negligence on the part of the Recipient is or hereafter becomes generally available to the public;
(c) is developed by the Recipient independently without use of or reference to the Confidential Information, as evidenced by written records or other tangible documents in the possession of the Recipient prior to the disclosure by the Discloser;
(d) is lawfully received by the Recipient from a third party without restriction and without breach of this Agreement or any other agreement; or
(e) is approved for public release or use by written authorisation of the Discloser.
The burden of demonstrating the applicability of any of the exceptions set out above shall be upon the Party seeking to rely on such exception.
2.2 Non-use and Non-disclosure.
Recipient shall not use the Confidential Information for any purposes except to evaluate, review, discuss and, as the case may be, perform and complete the Project or its potential participation or involvement in relation thereto, and shall not disclose any Confidential Information to its employees or any third party unless permitted under this Agreement or otherwise approved by the Discloser in writing. Recipient shall not reverse engineer, disassemble or decompile any samples, prototypes, software or other tangible objects that embody the Confidential Information provided by the Discloser to the Recipient except with the express written authorisation from the Discloser. Recipient acknowledges and agrees that any unauthorised disclosure or use by the Recipient, whether intentional or unintentional, of any of the Confidential Information shall be detrimental to the Discloser.
Recipient agrees to protect and treat as confidential the Confidential Information, with at least commercially reasonable care.
2.4 Additional Precautions.
Without prior approvals of the Discloser, the Recipient shall not, except in pursuit of the limited purpose of the Project: (a) copy or otherwise duplicate any Confidential Information of the Discloser, in whole or in part, including derivations or (b) disclose any knowledge, product, process or procedure derived or developed from the Confidential Information by the Recipient to any third party not directly involved in the Project. Any copy of Confidential Information authorised by the Discloser to be made by Recipient shall conspicuously display a marking or statement indicating the Discloser’s proprietary interest therein.
2.5 Notice on Breach.
Recipient shall inform the Discloser immediately on becoming aware, or suspecting, that any unauthorised third party has become aware of any Confidential Information or that any terms or conditions of this Agreement has been breached in any way by the Recipient.
2.6 Compelled Disclosure.
Notwithstanding the foregoing, the Recipient shall not be liable for the disclosure of the Confidential Information pursuant to the requirement or request of any governmental or regulatory agency or court or tribunal of competent jurisdiction to the extent such disclosure is required by any valid laws, regulations, court orders or rules of relevant stock exchange, and provided that the Recipient shall, to the extent permitted by applicable laws, regulations, court orders or rules of relevant stock exchange immediately prior to disclosure of any Confidential Information and at its own expenses, (a) notify the Discloser of the existence, terms and circumstances surrounding such requirement or request, (b) use its best efforts to assist the Discloser in seeking a protective order or another appropriate remedy and (c) in any event, only disclose the exact Confidential Information or portion thereof specifically requested by such requirement or request. Any Confidential Information so disclosed shall maintain its confidentiality protection for all purposes other than the aforementioned legally required disclosure.
3. TERM AND TERMINATION
This Agreement shall become effective as of the Effective Date and shall, unless terminated pursuant to this Section 3, continue for a period of [five (5)] years. Unless otherwise agreed to in writing by the Parties, the obligations set forth herein to protect Confidential Information received prior to the termination of this Agreement shall in any case survive any termination of this Agreement for a period of [ten (10)] years from the Effective Date.
This agreement may be terminated as follows:
(a) by mutual written consent of the Parties;
(b) by a written notice by the Discloser, in its discretion, upon (i) occurrence of any Event of Default or (ii) occurrence of the Change of Control.
4. NO LICENSE, NO FURTHER COMMITMENT
Nothing contained in this Agreement shall be construed as (a) requiring either Party to disclose or accept any information; (b) requiring either Party to purchase or use any products, goods or manufacturing facilities of the other Party, or enter into any further agreement or negotiation with the other Party regarding this Project or any other matter; or (c) granting to a Recipient of Confidential Information any rights by license or otherwise, either express or implied, under any patents, patent applications, trademarks, copyrights, mask works, trade secrets, know-how, or other intellectual property right now or hereafter owned, obtained or licensable by a Discloser.
5. NO WARRANTY
DISCLOSER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY NATURE WHATSOEVER WITH RESPECT TO ANY INFORMATION FURNISHED BY DISCLOSER TO THE OTHER PARTY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PROJECT OR AGAINST INFRINGEMENT. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS-IS” AND “WITH ALL FAULTS”. DISCLOSER SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE ARISING FROM THE USE OF THE CONFIDENTIAL INFORMA TION WHA TSOEVER. DISCLOSER DOES NOT MAKE ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE NON-INFRINGEMENT OF THIRD PARTY PATENTS, COPYRIGHTS, TRADEMARKS OR TRADE SECRETS WITH RESPECT TO ITS RESPECTIVE CONFIDENTIAL INFORMATION.
Both Parties agree that should this Agreement be breached, money damages would be inadequate to remedy any such breach. As a result, a non-breaching Party shall be entitled to seek, and a court of competent jurisdiction may grant, specific performance and injunctive or other equitable relief as a remedy for any breach of this Agreement. Such remedy shall be in addition to all other remedies, including money damages, available to a non-breaching Party at law or in equity. The prevailing Party in such action shall be entitled to reasonable attorney fees in addition to any other amounts awarded as damages.
7. GOVERNING LAW
7.1 This Agreement shall be construed in accordance with and governed by the laws of [he Special Administrative Region of Hong Kong, without giving effect to the principles of conflict of laws.
7.2 The Parties agree that any disputes related to or arising out of this Agreement shall be submitted to Hong Kong International Arbitration Centre (HKIAC) according to its arbitration rules for the time being in force, which rules are deemed to be incorporated by reference in this clause. The seat of the arbitration shall be Hong Kong. The tribunal shall consist of three arbitrators. The claimant(s), irrespective of number, shall nominate jointly one arbitrator; the respondent(s), irrespective of number, shall nominate jointly one arbitrator; and a third arbitrator will be nominated jointly by the first two arbitrators and shall serve as chairman of the tribunal. The language of the arbitration shall be English. The arbitral award will be binding on both parties.
7.3 Notwithstanding the foregoing, the Discloser shall retain the right to seek injunctive relief. All obligations and rights of the Parties expressed in this Agreement shall be in addition to, and not in limitation of, those provided by applicable law.
8.1 To reach DJI for any requests, support, or issues with developer.dji.com or for any questions or concerns regarding any developer products or services, please contact us at dev.@dji.com.
9.1 Entire Agreement: Amendments.
This Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous undertakings, commitments or agreements, oral or written, as to its subject matter. This Agreement may be modified or amended only by an instrument in writing signed by authorised representatives of the Parties on or after the date thereof.
9.2 No Assignment.
Neither Party may assign or otherwise transfer this Agreement without the prior written consent of the other Party, provided, however, that either Party may assign or transfer this Agreement and all of its rights and obligations under this Agreement, without the consent of the other Party, to a successor of all or substantially all of its business or assets to which this Agreement pertains, whether by merger, sale, reorganization, reincorporation, operation of law or otherwise; provided that the assigning Party provides prompt written notice to the other Party of any such permitted assignment. Any assignment or transfer of this Agreement in violation of the foregoing shall be null and void.
If, for any reason, any provision of this Agreement shall be determined to be unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall be enforced to the extent possible.
No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise of any right, power or privilege.
Both Parties represent that the respective individuals executing this Agreement are fully authorised and empowered to do so for and on behalf of their respective principals.
This Agreement may be executed in facsimile or electronic mail counterparts, each of which counterpart, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same agreement.