Request compliance materials

This Unilateral Disclosure Agreement (this "Agreement") is entered into between Kaya Intelligence, Inc., (formerly Kaya Global, Inc) a Delaware corporation, on behalf of itself and its Affiliates (collectively, the "Company"), and you, the person accepting this Agreement ("Counterparty"). This Agreement becomes effective, and is deemed accepted electronically, at the moment you check the acceptance box and submit your request through the Company’s Trust Center (the "Effective Date"),an act that constitutes your electronic signature, manifests your assent to be bound by this Agreement, and has the same legal effect as a handwritten signature. If you accept this Agreement on behalf of an entity, you represent that you are authorized to bind that entity, and "Counterparty" means that entity. The identifying details you submit with your request, together with the date and time of your acceptance and the version of this Agreement displayed to you at that time, identify the Counterparty for purposes of this Agreement. For purposes of this Agreement, "Affiliate" means, with respect to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with such party. As used herein, the "Discloser" means the Company, including any Affiliate thereof, and the "Recipient" means the Counterparty. This Agreement governs Recipient’s receipt and use of Discloser’s Confidential Information and does not impose any confidentiality obligation on Discloser with respect to any information Recipient may share with Discloser in connection with the Relationship.

1. Purpose

Recipient may use Confidential Information (as defined below) solely to evaluate Discloser’s security, compliance, and privacy posture in connection with a possible business relationship between Recipient and Discloser (the “Relationship”).

2. Definition of Confidential Information

"Confidential Information" means all information disclosed (whether in oral, written or other tangible or intangible form) by Discloser to Recipient, or acquired by the Recipient, whether before, on or after the Effective Date, that the Recipient knows or reasonably should know, given the facts and circumstances surrounding the disclosure of the information by the Discloser or acquisition of the information by the Recipient, is confidential or proprietary information of the Discloser. Confidential Information includes, without limitation: technical data, trade secrets, know-how, research, product or service ideas or plans, software codes and designs, algorithms, developments, inventions, patent applications, laboratory notebooks, processes, formulas, techniques, mask works, engineering designs and drawings, hardware configuration information, regulatory information, medical reports, clinical data and analysis, reagents, cell lines, biological materials, chemical formulas, agreements with third parties, lists of, or information relating to, employees and consultants of the Discloser (including, but not limited to, the names, contact information, jobs, compensation, and expertise of such employees and consultants), lists of, or information relating to, suppliers and customers, price lists, pricing methodologies, cost data, market share data, marketing plans, licenses, contract information, business plans, financial forecasts, historical financial data, budgets or other business information disclosed by Discloser. Confidential Information also includes the purpose of the Relationship and the existence of this Agreement and the fact that the parties may be or are involved in negotiations with respect to a possible business relationship or other transactions. The parties also acknowledge and agree that any analyses, compilations, studies or other embodiments or derivatives of Confidential Information of the Discloser prepared by the Recipient (or anyone to whom it discloses such Confidential Information) will be owned solely by the Discloser and treated as Confidential Information of the Discloser hereunder. However, Confidential Information excludes any information that the Recipient can prove by clear and convincing evidence (a) was publicly known before the Discloser’s disclosure of the information, or becomes publicly known, through no violation of the terms of this Agreement, after the Discloser’s disclosure of the information; (b) was already known by or in the possession of Recipient at the time of disclosure without any obligation of confidentiality; (c) was obtained by the Recipient from a third party without a breach of such third party’s obligations of confidentiality; or (d) was independently developed by Recipient in the course of work by its employees or other service providers, who neither used nor had access to Confidential Information. For purposes of this Agreement, “Confidential Information” also includes Protected Health Information (“PHI”), as defined by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and its implementing regulations, including 45 C.F.R. Parts 160 and 164, and any similar health information protected under applicable state or federal law.

3. Nonuse and Nondisclosure

Recipient may not use any Confidential Information disclosed to it by Discloser for its own use or for any purpose other than to carry out discussions concerning, and the undertaking of, the Relationship. Recipient may not disclose or permit disclosure of any Confidential Information of Discloser to third parties or to employees or other service providers of Recipient, other than directors, officers, employees, consultants and agents of Recipient who (a) have a need to know the Confidential Information to carry out the purpose of the Relationship (each such person, a "Representative") and (b) are under written obligations of non-disclosure and non-use with the Recipient on terms no less restrictive than those contained in this Section 3. The Recipient further agrees not to (i) reverse engineer, disassemble or decompile any prototypes, software or other tangible objects that contain or embody any of the Discloser’s Confidential Information, or (ii) export or reexport (within the meaning of U.S. or other export control laws or regulations) any of the Discloser’s Confidential Information or product thereof. Recipient will take reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of Discloser in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized under this Agreement to have any such information. Such measures must include the same degree of care that the Recipient utilizes to protect its own Confidential Information of a similar nature. Recipient will promptly notify Discloser of any misuse, misappropriation or unauthorized disclosure of Confidential Information of Discloser which may come to Recipient’s attention. In any event, the Recipient will be responsible for any breach of this Agreement by its employees, contractors, agents or any Representative, and Recipient will take all reasonable measures (including but not limited to initiating court proceedings) to enforce the terms of this Agreement with respect to such employees, contractors, agents or any Representative.

4. Permitted Disclosures

Notwithstanding Section 3, the Recipient may disclose the Confidential Information that the Recipient is required to disclose by law or by a subpoena or order issued by a court of competent jurisdiction (each, a "Court Order"), but solely on the conditions that the Recipient both (a) gives the Discloser written notice of the Court Order within 24 hours after receiving it and (b) cooperates fully with the Discloser before disclosure to provide the Discloser with the opportunity to interpose any objections it may have to disclosure of the information required by the Court Order and seek a protective order, confidential treatment, or other appropriate relief.

5. DTSA Notice

The misappropriation of trade secrets (a form of intellectual property) is a violation of law, just like the theft of any property. In addition to state law remedies, the Defend Trade Secrets Act of 2016 (the "DTSA") enables a trade secret owner to bring a trade secret misappropriation case in federal court. Notwithstanding any other provision of this Agreement to the contrary, pursuant to the DTSA, Recipient understands that Recipient will not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made (a) in confidence to a federal, state or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law; or (b) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. In addition, Recipient understands that the DTSA generally permits an individual to disclose trade secrets to the individual’s attorney in the course of pursuing a lawsuit where the person alleges retaliation for reporting a suspected violation of the law (or uses the trade secret information in such lawsuit, if the individual files any document containing the trade secret under seal and does not disclose the trade secret, except pursuant to court order). The DTSA does not, however, preclude the trade secret owner from seeking breach of contract remedies. Recipient understands the foregoing is a very generalized summary of the immunity provisions of the DTSA intended to satisfy the notification requirements of the DTSA and that Recipient is advised to seek legal counsel before disclosing any trade secrets if Recipient intends to seek immunity under the DTSA.

6. Data Protection

Recipient agrees to comply with applicable data protection and privacy laws, including but not limited to HIPAA, state privacy laws, and U.S. federal regulations. If Recipient receives, processes, or has access to PHI or other personal data, Recipient shall:(a) not use or disclose such data except as permitted under this Agreement or required by law;(b) implement appropriate safeguards (technical, administrative, and physical) to protect such data; (c) promptly notify Discloser without undue delay (and no later than five (5) business days) of any actual or suspected personal data breach; (d) upon termination, securely return or destroy such data, providing written certification of destruction; and (e) where applicable, enter into a separate Business Associate Agreement (“BAA”) to satisfy HIPAA requirements.

7. Information Security

Recognizing that the Confidential Information exchanged under this Agreement may include security-related materials (such as compliance reports, security questionnaires, and vulnerability or penetration test summaries), Recipient agrees, in addition to and not in lieu of its obligations under Section 6 (DataProtection):

(a) Safeguards. Recipient will apply administrative, technical, and physical safeguards to the Confidential Information that are at least as protective as those Recipient applies to its own confidential information of a similar nature, including: limiting access to Representatives with a need to know; applying appropriate technical protections to the Confidential Information in storage and in transit; and revoking access promptly once it is no longer needed for the Relationship.

(b) Incident Notification. If Recipient becomes aware of any unauthorized access to, or disclosure, loss, or destruction of, the Confidential Information, Recipient will notify Discloser without undue delay and in any event within two (2) business days of discovery, and will provide Discloser with reasonably requested information regarding the nature of the incident and the steps taken to contain and remediate it.

(c) Compliance Materials. As used in this Section 7, “Compliance Materials” means any audit report, certification, attestation, assessment, or other compliance-related documentation that Discloser furnishes to Recipient regarding Discloser’s security, privacy, or regulatory compliance posture, whether now existing or later obtained, developed, or adopted by Discloser. Compliance Materials are Confidential Information of Discloser and are subject to the following additional terms:

(i) Restricted Use. Recipient will not distribute, publish, post, forward, or otherwise share any Compliance Materials outside its Representatives with a need to know, and will not use, quote, or reference any Compliance Materials in any marketing material, public filing, RFP or RFI response, press release, or other public communication, without Discloser’s prior written consent. Recipient will also comply with any restricted-use legend, distribution restriction, or disclaimer appearing on the face of the Compliance Materials themselves, which apply in addition to this Agreement.

(ii) Limitation. Recipient may use Compliance Materials solely to evaluate Discloser’s security, compliance, or privacy posture in connection with the Relationship, and for no other purpose.

(iii) No Warranty. Compliance Materials are provided as of the date, or for the period, stated in the applicable material. Discloser makes no warranty, express or implied, that its compliance posture will remain unchanged after that date, and furnishing Compliance Materials does not obligate Discloser to notify Recipient of, or provide updated materials reflecting, any subsequent change.

(iv) Duration and Destruction. Notwithstanding Section 10 (Term), Recipient’s confidentiality obligations with respect to a given Compliance Material continue for the longer of (A) one (1) year from the date of disclosure, or (B) the period of validity stated in that Compliance Material. If Discloser furnishes a replacement or updated version of any Compliance Material, Recipient will promptly destroy or return the superseded version in accordance with Section 8 (Return or Destruction of Materials).

8. Return or Destruction of Materials

Recipient may not, except as otherwise expressly authorized by Discloser, make any copies or duplicates of any Confidential Information. Any materials or documents that have been furnished by Discloser to Recipient in connection with the Relationship will be and remain the property of the Discloser and must be promptly destroyed or returned by Recipient, accompanied by all copies of such documentation, within 10 days after the earlier of (a) the rejection or conclusion of the Relationship or (b) the written request of Discloser; provided, however, that Recipient may at its option retain one copy of such materials or documents for archival purposes only. Thereafter, the Recipient will not use the Discloser’s Confidential Information in any manner for any purpose. Upon the Discloser’s request, the Recipient will certify in writing its destruction of the Confidential Information.

9. No Rights Granted

Nothing in this Agreement will be construed as granting any license or rights under any patent, copyright, trade secret or other proprietary or intellectual property right of Discloser, nor will this Agreement grant Recipient any rights in or to Discloser’s Confidential Information other than the limited right to review such Confidential Information solely for the purpose of determining whether to enter into the Relationship. Nothing in this Agreement requires the disclosure of any Confidential Information, which may be disclosed, if at all, solely at Discloser’s option. Nothing in this Agreement requires the parties to proceed with or complete the Relationship or any transaction in connection with which the Confidential Information may be disclosed, and each party reserves the right, at any time and in its sole and absolute discretion, to terminate discussions concerning the Relationship.

10. Term

This Agreement applies to Confidential Information disclosed for five (5) years after the Effective Date. Obligations will survive for three (3) years after termination/expiration, except those obligations relating to PHI, personal data, and trade secrets will survive in perpetuity.

11. No Partnership; No Obligation

Nothing contained in this Agreement will be construed to (a) constitute the parties as partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking; or (b) obligate either party to enter into any contract, transaction or other relationship.

12. Remedies; Fees

Recipient acknowledges and agrees that Recipient’s obligations set forth in this Agreement are necessary and reasonable in order to protect Discloser and its business. Due to the unique nature of Discloser’s Confidential Information, monetary damages would be inadequate to compensate Discloser for any breach by Recipient of its covenants and agreements set forth in this Agreement. Accordingly, Recipient acknowledges and agrees that any such violation or threatened violation may cause irreparable injury to Discloser and, in addition to any other remedies that may be available at law, in equity or otherwise, including, without limitation, any protections afforded under applicable trade secret laws, Discloser will be entitled to obtain injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by Recipient, without the necessity of proving actual damages and without the necessity of posting a bond (or other security). The prevailing party will be entitled, in addition to any 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.

13. Miscellaneous.

The validity, interpretation, construction and performance of this Agreement, and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto will be governed, construed and interpreted in accordance with the laws of the State of New York, without giving effect to principles of conflicts of law. Each party (a) agrees that all actions and proceedings arising from or related to this Agreement or its subject matter may be litigated in state or federal courts located in New York, New York and (b) consents and submits to the personal jurisdiction and venue of any such court. This Agreement constitutes the entire agreement and understanding of the parties relating to the subject matter herein and supersedes all prior or contemporaneous discussions, understandings and agreements, whether oral or written, between them relating to the subject matter hereof. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing signed by the parties to this Agreement. No delay or failure to require performance of any provision of this Agreement will constitute a waiver of that provision as to that or any other instance. Except as otherwise provided in this Agreement, this Agreement, and the rights and obligations of the parties hereunder, will be binding upon and inure to the benefit of their respective successors, assigns, heirs, executors, administrators and legal representatives. The Company may assign any of its rights and obligations under this Agreement. No other party to this Agreement may assign, whether voluntarily or by operation of law, any of its rights and obligations under this Agreement, except with the prior written consent of the Company. Notwithstanding any terms in this Agreement to the contrary, Confidential Information of Discloser may not be assigned without the prior written consent of Discloser, unless the assignee will be the successor entity to the assignor upon the dissolution of the assignor in its present form. Any notice, demand or request required or permitted to be given under this Agreement must be in writing and will be deemed sufficient when delivered personally or by overnight courier or sent by email, or 48 hours after being deposited in the U.S. mail as certified or registered mail with postage prepaid. All notices to the Company must be addressed to the Company’s headquarters, care of its Chief Executive Officer. All notices to any other party must be addressed to the most recent address set forth in the Company’s books and records. If any provision of this Agreement is deemed to be void or unenforceable under applicable law, the parties agree to renegotiate such provision in good faith. If the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision will be excluded from this Agreement, (ii) the balance of this Agreement will be interpreted as if such provision were so excluded and (iii) the balance of this Agreement will be enforceable in accordance with its terms to the extent permitted by applicable law. This Agreement is the result of negotiations between and has been reviewed by each of the parties hereto and their respective counsel, if any; accordingly, this Agreement will be deemed to be the product of all of the parties hereto, and no ambiguity will be construed in favor of or against any one of the parties hereto.

ACCEPTANCE

By checking the acceptance box and submitting your request, you acknowledge that you have read this Agreement, that you agree to be bound by it, and that you are authorized to accept it on behalf of any entity you have identified in your request.

Your acceptance is recorded together with the details you submitted, the date and time of submission, and the version of this Agreement displayed to you at that time. A copy of the version you accepted is made available to you for download at the point of acceptance.