INDEX FRESH’S FRESH FACTS APP
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
This Agreement is made between you (the individual accessing the Proprietary Information and any single legal entity on behalf of which you are acting) (“You” or “you”) and Index Fresh, Inc. (“Index Fresh”), having a principal place of business at 3880 Lemon Street, Suite 100, Riverside, CA 92501.
Index Fresh wishes to protect and preserve proprietary, confidential and/or trade secret information that may be disclosed or made available to you in connection with Index Fresh’s Fresh Facts App which permits you to access and view daily and historical information compiled by Index Fresh about the avocado market, including price estimates, bin counts, inventory, and shipment information for California, Mexico, Chile, Peru, and Dominican avocados and other information related to the sales and marketing of avocados, and therefore, in consideration of the promises, mutual covenants, agreements, representations, and undertakings set forth herein, and subject to the terms and conditions hereof and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Index Fresh and you, agree as follows:
- All information, in any form, supplied to you in this App shall be treated as confidential (“Confidential Information”).
- You acknowledge that Confidential Information may relate to and include, without limitation, the following: Index Fresh’s financial information, business divisions, methods of transacting business, pricing estimates, produce inventory, shipment information, and Index Fresh’ method of compilation and actual compilation of data that provides Index Fresh’s with its business advantage, and related sales and marketing information (archived and current).
- “Confidential Information” shall not include: (a) information in the public domain at the time that it was provided by Index Fresh or which subsequently came into the public domain other than as a result of breach of this Agreement; (b) information obtained from a third-party unaffiliated with Index Fresh (provided such third party was not bound by confidentiality agreements with Index Fresh); or (c) information independently developed by you without reference to the Confidential Information.
- All Confidential Information: (a) shall remain the property of Index Fresh; (b) shall be treated as confidential by you, taking such action as shall be necessary or desirable to preserve and protect the confidentiality of the Confidential Information and in any event using means not less than those used to protect your own confidential information; (c) shall be used solely for purposes of evaluating sale or marketing transactions with Index Fresh, and for no other purpose; and (d) shall not be disclosed to any party, other than your officers, directors, employees, financial advisors, or accountants, as is strictly necessary to evaluate sale or marketing transactions with Index Fresh on a “need to know” basis (each an “Authorized Person”), without Index Fresh’s prior written consent. In the event that you, or any of your Authorized Persons become legally compelled (including, without limitation, by law, rule, or regulation, or administrative or similar agency as part of a judicial or administration proceeding (including, without limitation, by deposition, interrogatory, request for information or documents, subpoena, civil or criminal investigative demand or otherwise)) to disclose any of the Confidential Information, you shall provide Index Fresh with immediate written notice of such requirement so that Index Fresh may seek a protective order or other appropriate remedy or waive compliance with this paragraph.
- The Parties will comply with this Agreement and any and all applicable laws relating to the use, disclosure, downloading, uploading, exporting, copying, dissemination and distribution of any Confidential Information (including, but not limited to, any and all laws relating to Index Fresh’s proprietary rights or the export of any technical data included in such Confidential Information).
- The protections afforded to the Confidential Information under this Agreement are in addition to, and not in lieu of, the protections afforded under any applicable trade secrets laws.
- Index Fresh and you, each recognize that a breach of this Agreement may cause irreparable harm to the other Party and that actual damages may be difficult to ascertain and in any event may be inadequate. Accordingly, the Parties agree that in the event of such breach, the injured Party may be entitled to injunctive relief, in addition to such other legal or equitable remedies as may be available.
- The prevailing party will be entitled (in addition to any and all other remedies) to recover any and all costs and expenses (including, without limitation, reasonable attorneys’ fees) that it may incur in connection with any legal action to enforce this Agreement or to recover damages or other relief on account of any breach of this Agreement.
- Prior to disclosing the Confidential Information, you shall require each person who receives the Confidential Information to be cognizant of and to comply with the terms and conditions of this Agreement. You are authorized to share Confidential Information with your affiliate(s); however, if any affiliate of yours receives Confidential Information, such affiliate shall be responsible for compliance with the terms and conditions of this Agreement and you shall also be responsible and liable for compliance by your affiliate(s).
- Index Fresh makes no representation or warranty, express or implied, with respect to the accuracy or completeness of any Confidential Information provided hereunder. Without limitation of the foregoing, the Confidential Information is made available under this Agreement “AS IS,” with all defects, errors and deficiencies, and without any representation or warranty as to completeness or accuracy.
- Index Fresh shall not be liable to you hereunder for amounts representing loss of profits, loss of business or indirect, consequential or punitive damages of the other party in connection with the provision or use of Confidential Information hereunder, except to the extent that such provision or use constitutes a breach of this Agreement.
- This Agreement constitutes the entire agreement between the Parties relating to the subject matter hereof, and all prior agreements, understandings, writings, or negotiations, whether written or oral, are hereby superseded. No failure or delay by either Party in exercising its rights hereunder shall operate as a waiver thereof.
- If any provision of this Agreement is held to be invalid, void or unenforceable, all other provisions shall remain valid and be enforced and construed as if such invalid provision were never a part of this Agreement.
- This Agreement shall be governed by, and construed in accordance with the laws of the State of California, excluding its conflicts of laws rules.
- This Agreement will not be construed as an offer by either party, nor shall it give rise to any obligation of either party to enter into a contract, subcontract, or other business relationship.
- Any controversy, claim or dispute arising out of or relating to this Agreement, shall be settled solely and exclusively by binding arbitration. Notwithstanding the foregoing or anything to the contrary herein, neither party shall be prohibited from filing an action in small claims court. The parties to this Agreement shall use their best efforts to resolve any dispute, controversy or claim arising out of or relating in any way to this Agreement promptly by meeting and negotiating in good faith with one another. All disputes, which cannot be resolved by good faith negotiations, shall be resolved by arbitration governed by and conducted in compliance with the California Arbitration Act [California Code of Civil Procedure section 1280 et seq.] if you are located in California or in compliance with the Federal Arbitration Act [9 U.S.C. § 1, et seq.] if you are located outside California. There shall be one arbitrator. Arbitration shall take place in San Bernardino County, California. All decisions of the arbitrator shall be final, binding and conclusive on the parties. In any arbitration proceeding, the prevailing party shall be awarded its attorney’s fees. THE PARTIES AGREE TO GIVE UP HIS/HER/ITS RIGHT TO A JURY TRIAL AND HIS/HER/ITS RIGHT TO PARTICIPATE IN A CLASS ACTION BECAUSE ALL CLAIMS WILL BE RESOLVED EXCLUSIVELY THROUGH ARBITRATION. EACH PARTY AGREES THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN HIS/HER/ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Although all claims arising between the parties are subject to arbitration, unless otherwise prohibited by applicable law, each party retains the right to file, in a court of competent jurisdiction, an application for provisional injunctive relief and shall not be obligated to post a bond or other security in seeking such relief unless specifically required by law. Although a court may grant provisional injunctive relief, the arbitrator shall at all times retain the power to grant permanent injunctive relief, or any other final remedy.
- This Agreement shall survive any and all other contractual relationships between Index Fresh and you.
BY USING THIS APP, YOU ACKNOWLEDGE THAT (1) YOU HAVE READ AND REVIEWED THIS AGREEMENT IN ITS ENTIRETY, (2) YOU AGREE TO BE BOUND BY THIS AGREEMENT, (3) YOU HAVE THE POWER, AUTHORITY AND LEGAL RIGHT TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE GROWING ENTITY AND, (4) YOU AGREE TO ARBITRATE ALL CLAIMS, AND (5) THIS AGREEMENT CONSTITUTES BINDING AND ENFORCEABLE OBLIGATIONS OF YOU.
I FURTHER ACKNOWLEDGE THAT I CAN ACCESS A COPY OF THIS AGREEMENT LOCATED AT WWW.INDEXFRESH.COM/PRIVACY-POLICY