Effective date: November 1, 2023
At Baton, we take your and your company’s data privacy seriously. Please read this Non-Disclosure Agreement to learn how we treat the confidentiality of your data. By using or accessing our Services in any manner, you acknowledge that you accept the practices and policies outlined below, and you hereby consent that we will collect, use, and share your information as described in this Non-Disclosure Agreement.
This Non-Disclosure and Non-Solicitation Agreement (this "Agreement" or “NDA”) strictly restricts the use of any Baton Seller’s Information or Confidential Information (as defined herein) by any party using the Services. Buyer and Baton Sellers shall herein be referred to collectively as the “Parties.” Baton and every Baton Seller is a party and/or third-party beneficiary of this Agreement and has the right to enforce all of its terms. This Agreement is effective as of the Buyer’s acknowledgment herein of its acceptance of all the terms specified herein (and the Buyer’s use of the Services).
Baton and Parties. Seller and Buyer have entered into separate agreements (the “Terms”) with Baton Market Inc. (“Baton”) to obtain access and certain services from Baton through the Baton website (the “Baton Platform”) for the purpose of selling and/or buying assets and/or stock, respectively. The Parties agree that access to Confidential Information, as defined herein, and/or other business information that is provided by Seller and obtained by Buyer through the Baton Platform is restricted. The Seller’s business information and Confidential Information shall be provided to Buyer by the Seller without prior review or auditing of the accuracy of information by Baton. The Buyer will access and evaluate Seller’s business and Confidential Information and otherwise negotiate with Seller to pursue the purchasing activities it chooses to pursue with Seller. Therefore, the Parties agree that Baton shall not be liable for any deficiency or inaccuracy of information provided by Seller and/or used by Buyer for any purpose, all such liability shall remain solely a liability of Seller, and the Parties hereby waive any claims known or unknown or are a result of the Seller’s disclosure of its business and Confidential Information, defined herein, to Buyer.
Confidentiality and Security.
Confidential Information. As used herein, "Confidential Information" means any and all technical and non-technical information provided by Seller to Buyer or any of its employees, officers, directors, partners, shareholders, agents, attorneys, accountants, or advisors (collectively, "Representatives"), whether disclosed on the Baton Platform, orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential." Confidential Information may include, without limitation, information regarding: (i) trade secrets; (ii) proprietary information, ideas, techniques, sketches, drawings, works of authorship, models, inventions, processes, apparatuses, equipment, algorithms, software programs, software source documents, and formulae related to the current, future, and proposed products and services of Seller, including without limitation, research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, sales and merchandising and marketing plans; (iii) all other information that Seller, through its agents, knows, or reasonably should know, constitutes Confidential Information; and (iv) all notes, analyses, compilations, reports, forecasts, studies, samples, data, statistics, summaries, interpretations and other materials prepared by Seller or its representatives that contain, are based on, or otherwise reflect or are derived from, in whole or in part, any of the foregoing.
Affirmative Covenants Relating to Protection and Non-Disclosure of Confidential Information. Notwithstanding the termination or cessation of Buyer's business relationship with Seller, Buyer covenants and agrees:
Confidential Information is and shall remain the sole property of Seller;
To hold any Confidential Information in strict confidence both during and after the term of the Parties’ relationship;
To use the Confidential Information for no purpose other than determining whether to purchase all or part of Seller’s assets or stock;
To protect Confidential Information with the highest degree of care; and
To limit access to the Confidential Information to only those of its Representatives having a need to know and are bound by written confidentiality obligations at least as restrictive as those contained herein.
These affirmative covenants shall survive the termination of this Agreement until the Seller notifies the Buyer in writing of their termination.
Negative Covenants Relating to Protection and Non-Disclosure of Confidential Information. Notwithstanding the termination or cessation of Buyer's business relationship with Seller, Buyer covenants and agrees that it shall not:
Directly or indirectly disclose, publish, communicate or make available Confidential Information, or allow this information to be disclosed, published, communicated or made available, in whole or part, to any entity or person whatsoever except as approved in writing by Seller;
Make, use or sell for any purpose any product or other item using, incorporating or derived from any Confidential Information;
Modify, copy, reverse engineer, decompile, create other works from, or disassemble any Confidential Information, including any software programs contained therein, without the prior written consent of Seller;
Reproduce or copy Confidential Information in any form except as required to accomplish the intent of this Agreement; or
Remove Confidential Information from the premises or control of Buyer, except as required in the performance of any of Buyer's duties to Seller or with the prior consent of an authorized officer acting on behalf of Seller in each instance.
These negative covenants shall survive the termination of this Agreement until the Seller notifies the Buyer in writing of their termination.
Disclosure Permitted by Court Order. Nothing in this Agreement shall be construed to prevent disclosure of Confidential Information as may be required by applicable law or regulation or pursuant to the valid order of a court of competent jurisdiction or an authorized government agency. Buyer shall promptly provide written notice of any such order to an authorized officer of Seller.
Irreparable Harm Caused by Buyer's Improper Use of Confidential Information. Seller's Confidential Information and Seller's ability to reserve it for the exclusive knowledge and use of Seller is of great competitive importance and commercial value to Seller, and improper use or disclosure of Confidential Information by Buyer will cause irreparable harm to Seller, for which remedies at law will not be adequate and will likely cause Seller to incur financial costs, loss of business advantage, liability under confidentiality agreements with third parties, civil damages, and criminal penalties.
Non-Solicitation. Buyer covenants and agrees that neither Buyer nor its Representatives shall, for itself or on behalf of another person or entity:
Directly or indirectly solicit for employment or otherwise induce, influence or encourage to terminate employment with Seller, or employ or engage as an independent contractor, any employee or independent contractor of Seller; or
Directly or indirectly solicit business from, or induce, influence or encourage, any client, customer, supplier or other similar third party of Seller to alter, terminate or breach its contractual or other business relationship with Seller.
This non-solicitation provision includes but is not limited to all forms of oral, written, and electronic communication, including text messaging, instant messaging and social media such as Facebook, Linkedln, lnstagram, Twitter and other similar social media platforms, virtual reality or other yet to be created medium for communication and/or sharing the Seller’s Confidential Information in any way for five (5) years.
4. Return of Confidential Information to Seller. Upon the termination or cessation of Buyer's business relationship with Seller, or at Seller's request at any time during the term of this Agreement, Buyer and its Representatives shall promptly return to Seller all copies of Confidential Information, whether in written, electronic or other form or media, or destroy all such copies (including those stored in electronic form on systems and data storage services provided by third parties) and certify in writing to Seller that such Confidential Information has been destroyed. Notwithstanding the termination of Seller's relationship with Buyer, Buyer's obligations under this Agreement will survive termination or cessation of Buyer's business relationship with Seller and will be binding upon Buyer's heirs, successors, and assigns.
5. Arbitration. THE SELLER AND BUYER AGREE THAT ANY DISPUTE OR CONTROVERSY ARISING OUT OF, RELATING TO, OR CONCERNING ANY INTERPRETATION, CONSTRUCTION, PERFORMANCE OR BREACH OF THIS AGREEMENT, SHALL BE SETTLED BY ARBITRATION TO BE HELD IN NEW YORK, NEW YORK IN ACCORDANCE WITH THE COMMERCIAL DISPUTE RESOLUTION RULES THEN IN EFFECT OF THE AMERICAN ARBITRATION ASSOCIATION. ONE ARBITRATOR SHALL BE APPOINTED BY THE AMERICAN ARBITRATION ASSOCIATION TO RESOLVE ANY DISPUTE. THE ARBITRATOR MAY GRANT INJUNCTIONS OR OTHER RELIEF IN SUCH DISPUTE OR CONTROVERSY. THE DECISION OF THE ARBITRATOR SHALL BE FINAL, CONCLUSIVE AND BINDING ON THE PARTIES TO THE ARBITRATION. JUDGMENT MAY BE ENTERED ON THE ARBITRATOR’S DECISION IN ANY COURT HAVING JURISDICTION. THE SELLER AND BUYER SHALL EACH PAY ONE-HALF OF THE COSTS AND EXPENSES OF SUCH ARBITRATION, AND EACH SHALL SEPARATELY PAY FOR THEIR RESPECTIVE COUNSEL FEES AND EXPENSES, UNLESS OTHERWISE DETERMINED BY THE TERMS OF THIS AGREEMENT IN SECTION 6(g).
THIS ARBITRATION CLAUSE CONSTITUTES A WAIVER OF BOTH PARTY’S RIGHT TO A JURY TRIAL AND RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS OF THE BUYER RELATIONSHIP DEFINED HEREIN AND ANY CLAIMS ARISING FROM THAT BUYER BUSINESS RELATIONSHIP.
6. Additional Terms.
a. No Rights in Confidential Information. Nothing contained in this Agreement shall be construed as granting any property rights, by license or otherwise, to Buyer in any Confidential Information disclosed under this Agreement or to any invention or any patent, copyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information.
Unauthorized Disclosure. Buyer will immediately notify Seller in the event of any unauthorized access, disclosure, loss or misuse of any Confidential Information, and Buyer shall use its best efforts to immediately contain and remedy any such unauthorized access, disclosure, loss or misuse.
Notice. All notices or reports permitted or required under this Agreement must be in writing and shall be delivered by personal delivery, electronic mail, facsimile transmission or by certified or registered mail, return receipt requested, and will be deemed given upon personal delivery, five days after deposit in the mail, or upon acknowledgment of receipt of electronic transmission.
Assignability. Seller may assign this Agreement to any subsidiary or corporate affiliate, or to any successor or assign (whether direct or indirect, by purchase, merger, consolidation, or otherwise) to all or substantially all of the business or assets of Seller. Buyer may not assign this Agreement without the Seller’s prior written approval.
Applicable Law and Venue. This Agreement shall be construed in accordance with, and its validity and effect (including any claims of breach of any of the terms thereof) shall be governed by, the laws of the State of New York. Seller and Buyer hereby submit to the personal jurisdiction of the courts of the State of New York and venue in federal and state courts having a situs in New York, New York for all matters relating to this Agreement and, for the purpose of any suit, action or other proceeding relating thereto, each of them expressly waives any and all objections to venue in any such courts.
Attorneys' Fees and Fee Shifting. If an arbitrator, or in the case of court of competent jurisdiction, determines that either Party to this Agreement has materially breached this Agreement, then the Party the arbitrator determines has breached this Agreement hereby agrees to pay reasonable attorneys' fees and costs incurred by the other Party seeking to enforce the terms of this Agreement and that such arbitrator or court shall enter judgment in favor of the successful Party in the litigation, arbitration or mediation, for the amount of these fees and costs.
Miscellaneous. Headings herein are for the convenience of the Parties and shall not affect the form or substance of this Agreement. If any one or more of the provisions of this Agreement shall be held to be invalid, unlawful or unenforceable in any respect, then the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby. Strict performance of the terms of this Agreement is required, and substantial performance in good faith and without willful failure shall not be deemed sufficient performance. All of the terms, provisions and conditions herein contained shall run to, bind and inure to the benefit of, the heirs, executors, administrators, legal representatives, successors, assigns, officers, directors, employees and affiliates of the parties hereto. This Agreement may not be altered, amended, changed, terminated or modified in any respect without the written consent of all of the parties hereto. No waiver by any Party hereto of any breach or default hereunder shall be deemed a waiver of any other or subsequent breach or default. In the event that any signature to this Agreement is delivered by facsimile transmission or by e-mail delivery of a ".pdf' format data file, such signature shall create a valid and binding obligation of the Party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or ".pdf' signature page were an original thereof. No Party shall raise the use of a facsimile machine or e-mail delivery of a ".pdf' format data file to deliver any such signature page or the fact that such signature was transmitted or communicated through the use of a facsimile machine or e-mail delivery of a ".pdf' format data file as a defense to the formation or enforceability of a contract and each Party forever waives any such defense.
Survival. All provisions of this Agreement which must survive in order to give effect to their meaning (including, without limitation, the grant of rights, representations, warranties, indemnities and confidentiality obligations) shall survive any expiration or earlier termination of this Agreement.