Consolidated Analytics

Final NDA 2022

This Mutual Non-Disclosure Agreement is made and entered into as of the date set forth below by and between Consolidated Analytics, Inc., and collectively (the “Parties” and individually, a “Party”).  Parties may be discussing or evaluating possible business transactions (the “Business Transactions”).  In connection with these discussions, any Party may disclose or has disclosed, certain Proprietary Information (as hereinafter defined) which it desires to be used only for the limited purpose for which disclosed.  The parties also wish to agree as to the making of public statements or reports regarding the Business Transactions, if any.  The Party receiving Proprietary Information is referred to herein as “Recipient” and the Party disclosing Proprietary Information is referred to herein as “Discloser.”

Proprietary Information

For purposes of this Agreement, “Proprietary Information” of a Party shall mean:

1.     information disclosed by such Party relating to business practices, product development strategy and activity, product concepts and features, marketing strategy, corporate assessments and strategic plans, pricing, financial and statistical information, accounting information, identity of suppliers, software, systems, processes, formulae, inventions, discoveries, policies, guidelines, procedures, practices, disputes or litigation;
2.     confidential, proprietary or trade secret information orally disclosed by such Party and identified as such on the date of its first disclosure, with a written summary thereof provided to Recipient within thirty (30) days of disclosure;
3.     confidential, proprietary or trade secret information disclosed by such Party that is clearly and conspicuously identified in writing as such at the time of its first disclosure;
4.     confidential, proprietary or trade secret information disclosed by such Party, which a reasonable person employed in the mortgage industry or Recipient’s industry would recognize as such;
5.     information disclosed by such Party relating to employees, contractors or customers which, if released, would cause an unlawful invasion of privacy; or
6.     any compilation or summary of information or data that contains or is based on Proprietary Information.  For purposes of this Agreement, and without limiting the generality of the foregoing, the parties acknowledge and agree that;
(a)             all Proprietary Information disclosed by a Party shall be deemed to be the Proprietary Information of such Party, including, but not limited to, third-party confidential, proprietary or trade secret information that such Party is obligated to protect; and
(b)             information shall be deemed to be disclosed by a Party if such information is disclosed by any of its partners, affiliates, officers, employees, directors, contractors, agents or representatives or is otherwise disclosed on behalf of such Party.

II.             Protection
Recipient agrees to:

1.     receive Proprietary Information disclosed hereunder in confidence;
2.     implement appropriate measures to maintain the confidentiality, security, and integrity of such Proprietary Information and not disclose such Proprietary Information to third parties (except for;
(a)             Recipient's partners, affiliates, representatives, agents and contractors, acting for the sole benefit of Recipient, who have a need to know, are under a duty of non-disclosure with respect to such information, and are under a duty to implement appropriate measures to maintain the confidentiality, security and integrity of such information; and
(b)             Recipient’s regulator, upon request by such regulator and subject to Recipient’s formal request that such information be treated in confidence), which efforts shall accord such Proprietary Information at least the same level of protection against unauthorized use and disclosure that Recipient customarily accords to its own information of a similar nature but no less than a commercially reasonable degree of protection.
3.     use or permit the use of such Proprietary Information solely in accordance with the terms of this Agreement for the discussion and/or evaluation of the Business Transactions;
4.     promptly notify Discloser in writing of any actual or suspected loss or unauthorized use, disclosure or access of Discloser's Proprietary Information of which it becomes aware, and take all steps reasonably requested by Discloser to limit, stop or otherwise prevent such loss or unauthorized use, disclosure or access; and
5.     not to use any of the Proprietary Information other than for the purposes set forth herein and further agrees not to circumvent Consolidated Analytics in using the Proprietary Information as a way to engage with persons other than Consolidated Analytics in any business relationship or use the Proprietary information to allow others to circumvent Consolidated Analytics to engage in business with any person or entity to which Consolidated Analytics has a relationship, including any customer, client, employee or officer, other than through Consolidated Analytics.
III.           Exclusions
The restrictions on use and disclosure set forth above shall not apply when and to the extent that the Proprietary Information: 

1.     is or becomes generally available to the public or widely known in the mortgage industry through no fault of Recipient (or anyone acting on its behalf);
2.     was previously rightfully known to Recipient free of any obligation to keep it confidential;
3.     is subsequently disclosed to Recipient by a third-party who may rightfully transfer and disclose such information without restriction and free of any obligation to keep it confidential;
4.     is independently developed by Recipient without reference or access to Discloser's Proprietary Information; or
5.     is required to be disclosed by Recipient by applicable law, provided that Recipient uses all reasonable efforts to provide Discloser with at least ten (10) days' prior notice of such disclosure and Recipient discloses only that portion of the Proprietary Information that is legally required to be furnished based upon the advice of legal counsel of Recipient.

IV.           Rights
All Proprietary Information shall be deemed to be the property of Discloser or the appropriate third-party owner, as the case may be.  Except as Recipient reasonably requires to accomplish the purposes provided herein, Recipient shall not reproduce such Proprietary Information, in whole or in part, without written authorization of Discloser.  At the conclusion of the discussions between the parties or within five (5) business days of Discloser’s earlier request, Recipient shall cease use of all Proprietary Information received hereunder and shall return it to Discloser or, at Recipient’s option, destroy all tangible or retrievable materials embodying such Proprietary Information.  If Recipient elects to destroy rather than return Proprietary Information, Recipient will provide Discloser, at Discloser’s request, with an affidavit affirming that such Proprietary Information has been permanently and completely destroyed.  Notwithstanding the foregoing, machine-readable archival copies of Proprietary Information need only be destroyed in due course and Recipient and its auditors or legal counsel may retain one (1) copy of Proprietary Information to comply with document retention policies or for the purpose of establishing what Proprietary Information has been received or for the purpose of complying with any orders, subpoenas or legal requirements. Except as expressly provided herein, Discloser grants no license under any copyright, patent, trademark, trade secret or other intellectual property right by disclosure of Proprietary Information.

V.              Legends
Each Party agrees that it shall abide by and reproduce and include any restrictive legend or proprietary rights notice that appears in or on any Proprietary Information of the other Party (or any third-party owner) that it is authorized to reproduce.  Each Party also agrees that it shall not remove, alter, cover or distort any trademark, trade name, copyright or other proprietary rights notices, legends, symbols or labels appearing on or in any Proprietary Information of the other Party (or any third-party owner).

VI.           Records
Recipient shall at all times maintain appropriate measures to protect the security and integrity of any Discloser’s records Recipient obtains or accesses pursuant to this Agreement, including, but not limited to, measures designed to protect against the unauthorized use, access, destruction, loss, or alteration of such records.  Recipient shall also ensure that all of its partners, affiliates, representatives, agents and contractors who obtain or access Discloser’s records maintain appropriate measures to protect security and integrity of these records.

VII.         General Terms
1.     No Warranties.  Discloser provides information solely on an “as-is” basis, without warranties of any kind or duty to update or correct.  Each Party understands that portions of Proprietary Information may relate to products or services that are under development or planned for development by Discloser or a third-party.  Discloser does not warrant or represent that it will or will not introduce any product or service to which Proprietary Information disclosed herein is related.
2.     Limited Obligations.  Other than the obligations set forth herein, neither Party shall have any further obligations to the other unless and until a definitive written agreement is executed.  Either Party may negotiate with others and may withdraw from negotiations at any time, for any reason, without obligation to the other.  To the extent either Party incurs costs or changes position as a result of any discussions between the parties, it does so entirely at its own risk.  This Agreement does not create any agency or partnership relationship.
3.     Public Statements; Use of Name.  Neither Party shall make, deliver or publish any public statements or descriptions of the Business Transactions (including statements that a Business Transaction is being discussed) without the prior written consent of the other Party. Neither Party shall use the name or marks of the other for advertising or any other purposes without the prior written approval of the other Party.
4.     No Assignment.  Neither this Agreement nor any rights or obligations hereunder shall be assignable, delegable or otherwise transferable in whole or in part by either Party.
5.     Severability.  If any provision of this Agreement is held to be void or unenforceable, in whole or in part, the other provisions of this Agreement shall continue to be valid and the parties shall replace the void or unenforceable provision with one that is valid and enforceable and most nearly approximates their original intentions.  
6.     All notices, requests, demands, and other communications (other than routine operational communications) required or permitted hereunder shall be in writing and shall be deemed to have been received by a Party
(a)             when actually received in the case of hand delivery against a signed receipt, (ii) two (2) business days after being given to a reputable overnight courier; or
(b)             upon receipt, when mailed by first-class mail, postage prepaid, and addressed to such Party at its address set forth herein (or to such other address as such Party may designate in writing).
7.     Injunctive Relief.  The parties each acknowledge and agree that the unauthorized use or disclosure of the Discloser’s Proprietary Information would cause Discloser to incur irreparable harm and significant damages, the degree of which may be difficult to ascertain.  Accordingly, each Party agrees that the Discloser will have the right to seek immediate equitable relief to enjoin any unauthorized use or disclosure of its Proprietary Information, in addition to any and all other rights and remedies it may have at law or otherwise.
8.     Entire Agreement; Signatures.  This Agreement expresses the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior oral or written agreements, commitments and understandings.  This Agreement may be executed in one or more counterparts, each of which when so executed and delivered shall be an original and all of which together shall constitute one and the same instrument.  Facsimile and electronic signatures are deemed to be equivalent to original signatures for purposes of this Agreement.  No modification, amendment or waiver of any term or condition of this Agreement shall be binding upon a Party unless it is in writing and is executed by the duly authorized representative of the Party against whom such modification, amendment or waiver is sought to be enforced.
9.     Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or related to this Agreement or the matters contemplated hereunder shall be instituted in the state or federal courts of the United States in each case located in Orange County, California, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding and waives any objection based on improper venue or forum non-conveniens. Service of process, summons, notice, or other document by mail to such Party's address set out herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.
10.  Attorney’s Fees.  In the event of any dispute between the Parties concerning the terms and provisions of this Agreement, the Party prevailing in such dispute shall be entitled to collect from the other Party all costs incurred in such dispute, including reasonable attorneys’ fees.
In witness whereof, the Parties have caused this Agreement to be executed by their duly authorized representatives, on the date and year first above written.

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Signed by Chris McLain
Signed On: May 10, 2024

Signature Certificate
Document name: Final NDA 2022
lock iconUnique Document ID: 8202df19179bd384327211e1cca34e2334d39a6b
Timestamp Audit
February 15, 2022 1:47 pm PDTFinal NDA 2022 Uploaded by Chris McLain - IP
February 15, 2022 1:53 pm PDTChris McLain - added by Chris McLain - as a CC'd Recipient Ip:
February 15, 2022 1:55 pm PDTChris McLain - added by Chris McLain - as a CC'd Recipient Ip:
February 15, 2022 1:55 pm PDTChris McLain - added by Chris McLain - as a CC'd Recipient Ip:
February 15, 2022 1:57 pm PDTChris McLain - added by Chris McLain - as a CC'd Recipient Ip:
February 15, 2022 2:00 pm PDTChris McLain - added by Chris McLain - as a CC'd Recipient Ip:
February 15, 2022 2:24 pm PDTChris McLain - added by Chris McLain - as a CC'd Recipient Ip:
July 28, 2022 1:43 pm PDTChris McLain - added by Chris McLain - as a CC'd Recipient Ip:
May 9, 2024 9:34 am PDTChris McLain - added by Chris McLain - as a CC'd Recipient Ip: