BOMSync beta participant non-disclosure and confidentiality agreement

Effective date: The date on which the Participant first accesses the BOMSync platform.

This BOMSync Beta Participant Non-Disclosure and Confidentiality Agreement (“Agreement”) is entered into by and between:

(i) BOMSync, Inc., a Delaware corporation, if and when duly formed, or if BOMSync, Inc. has not yet been formed as of the Effective Date, Geoffrey M. Jennings, solely in his capacity as founder, owner, assignor, and authorized controller of the BOMSync technology and related intellectual property (the “Company”); and

(ii) the individual or entity accepting this Agreement (“Participant” or “you”).

For clarity, Participant acknowledges and agrees that, prior to formal assignment to BOMSync, Inc., any and all rights in the BOMSync platform, including all related inventions, patent rights, applications, trade secrets, copyrights, know-how, confidential information, and proprietary methods, are owned or controlled by Geoffrey M. Jennings and/or his affiliates, successors, or assigns, and that upon formation of BOMSync, Inc. such rights may be assigned, licensed, or otherwise transferred to BOMSync, Inc. without further notice to Participant. Any reference in this Agreement to the “Company” includes Geoffrey M. Jennings as interim owner/controller and BOMSync, Inc. and its successors and assigns thereafter.

1. Background and purpose

BOMSync is a proprietary cloud-based construction procurement and bill of materials management platform currently in beta development. The Company is making BOMSync available to a limited number of Participants for the purpose of product testing, feedback, and evaluation (the “Beta Program”). In connection with participation in the Beta Program, Participant may access non-public software, systems, methods, workflows, data models, business logic, user interface designs, technical architecture, outputs, documentation, and other information that is confidential and proprietary to the Company.

This Agreement establishes the terms under which Confidential Information may be accessed and strictly governs its protection.

2. Definitions

2.1 “Confidential Information”

“Confidential Information” means any and all non-public information, in any form or medium, disclosed to, made available to, observed by, or accessed by Participant in connection with the Beta Program, including but not limited to:

• (a) software source code, object code, algorithms, data structures, database schemas, APIs, models, and outputs;
• (b) system architecture, infrastructure design, security controls, cloud configuration methods, and deployment approaches;
• (c) procurement workflow logic, automation methods, business rule implementations, and operational processes;
• (d) bill of materials processing methods, configurator logic, decision trees, matching logic, and data transformation methods;
• (e) BIM, IFC, CAD, model integration methods, data pipelines, viewer behavior, and related computational workflows;
• (f) multi-tenant design, data isolation methods, access control architecture, and related technical or organizational measures;
• (g) product plans, beta features, technical documentation, roadmap information, business strategy, customer information, pricing information, and financial or commercial information;
• (h) screenshots, recordings, exports, demonstrations, test results, and observations of non-public platform behavior; and
• (i) any information designated as confidential or that a reasonable person would understand to be confidential given the nature of the information and the circumstances of disclosure.

2.2 “Beta Program”

“Beta Program” means the Company’s controlled pre-release testing and evaluation program for the BOMSync platform and all associated services, APIs, integrations, outputs, and related materials.

2.3 “Permitted Purpose”

“Permitted Purpose” means Participant’s internal business evaluation, testing, and use of BOMSync solely as expressly authorized by the Company during the Beta Program.

2.4 “Representatives”

“Representatives” means Participant’s employees and contractors who have a strict need to know the Confidential Information solely for the Permitted Purpose and who are bound by written confidentiality and use restrictions no less protective than those set forth in this Agreement.

3. Confidentiality and use obligations

3.1 Non-disclosure

Participant shall hold all Confidential Information in strict confidence and shall not, directly or indirectly, disclose, share, publish, transmit, distribute, or otherwise make available any Confidential Information to any third party except as expressly permitted by this Agreement or by the Company in writing.

3.2 Restricted use

Participant shall use Confidential Information solely for the Permitted Purpose and for no other purpose. Without limitation, Participant shall not use any Confidential Information for competitive analysis, product development, model training, benchmarking publication, investor presentation, public commentary, academic publication, standards participation, or the filing or support of any intellectual property application.

3.3 Standard of care

Participant shall protect the Confidential Information using at least the same degree of care Participant uses to protect its own confidential information of a similar nature, and in no event less than reasonable care.

3.4 Limited internal disclosure

Participant may disclose Confidential Information only to its Representatives, and only on a strict need-to-know basis for the Permitted Purpose. Participant shall be responsible for any act or omission of its Representatives that would constitute a breach of this Agreement if committed by Participant.

3.5 Notice of unauthorized access or disclosure

Participant shall promptly notify the Company in writing upon becoming aware of any actual or suspected unauthorized access to, disclosure of, or use of Confidential Information, and shall cooperate fully with the Company in mitigating and remedying such event.

4. Exclusions

The obligations of confidentiality and restricted use under this Agreement do not apply to information that Participant can demonstrate by competent written evidence:

• (a) was lawfully known to Participant without restriction before disclosure by the Company;
• (b) becomes publicly available through no breach of this Agreement or any other duty owed to the Company;
• (c) is lawfully received from a third party without breach of any confidentiality obligation; or
• (d) is independently developed by Participant without use of or reference to the Confidential Information.

5. Compelled disclosure

If Participant is required by law, regulation, subpoena, court order, or governmental demand to disclose any Confidential Information, Participant shall, to the extent legally permitted, promptly notify the Company in writing before making such disclosure so that the Company may seek a protective order or other appropriate remedy. Participant shall disclose only the minimum portion of the Confidential Information legally required and shall use reasonable efforts to obtain confidential treatment for any such disclosure.

6. Restrictions on reverse engineering, copying, and competitive use

Participant shall not, and shall not permit any third party to:

• (a) reverse engineer, decompile, disassemble, analyze, inspect, scrape, benchmark, monitor, test, or otherwise attempt to derive source code, architecture, logic, methods, workflows, non-public functionality, structure, sequence, organization, or implementation details of any part of the BOMSync platform, except to the limited extent such restriction is prohibited by non-waivable applicable law;
• (b) use any Confidential Information to develop, enhance, validate, benchmark, train, support, or assist in the development of any competing product, service, platform, workflow, or database architecture;
• (c) publish or distribute any benchmark, performance analysis, feature comparison, review, screenshot, video, recording, export, or reproduction of any non-public BOMSync interface, workflow, system behavior, or output, except as expressly authorized by the Company in writing or as required within the intended internal beta testing workflow authorized by the Company;
• (d) remove, alter, or obscure any proprietary notice, confidentiality notice, intellectual property legend, watermark, or technical protection measure associated with the Beta Program;
• (e) use the Beta Program or any Confidential Information beyond the Permitted Purpose.

7. Ownership and limited access right

7.1 Company ownership

All Confidential Information remains the sole and exclusive property of the Company. Nothing in this Agreement transfers to Participant any ownership interest in any Confidential Information, intellectual property, software, technology, method, workflow, or other proprietary right of the Company.

7.2 Limited evaluation right

Subject to this Agreement and any related BOMSync beta terms accepted by Participant, the Company grants Participant a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Beta Program solely for the Permitted Purpose.

7.3 No implied license

Except for the limited evaluation right expressly granted in Section 7.2, nothing in this Agreement grants Participant any license, right, title, or interest in or to any Confidential Information or intellectual property of the Company, whether express, implied, by estoppel, exhaustion, or otherwise.

8. Term and survival

This Agreement becomes effective upon Participant’s acceptance and remains in effect for the duration of Participant’s Beta Program access.

Thereafter:

• (a) with respect to Confidential Information that does not constitute a trade secret, the obligations under this Agreement shall continue for five (5) years following termination of access;
• (b) with respect to information qualifying as a trade secret, the obligations under this Agreement shall continue for so long as such information remains a trade secret under applicable law; and
• (c) all provisions relating to ownership, limited license, restricted use, reverse engineering restrictions, compelled disclosure, remedies, dispute resolution, return or destruction, and any accrued rights or obligations shall survive termination for the maximum period permitted by law.

The Company may suspend or terminate Participant’s access to the Beta Program at any time, with or without cause, without affecting Participant’s continuing obligations under this Agreement.

9. Return, deletion, and retention

Upon termination of Beta Program access, or upon written request by the Company, Participant shall promptly cease use of the Confidential Information and, at the Company’s election, return or permanently destroy all Confidential Information in Participant’s possession or control, including copies, notes, summaries, extracts, and derivative materials. Upon request, Participant shall certify such return or destruction in writing.

Notwithstanding the foregoing, Participant may retain one archival copy solely to the extent required for legal compliance, routine backup systems, or dispute-resolution purposes, provided that such retained material remains subject to this Agreement for so long as retained.

10. Remedies

10.1 Equitable relief

Participant acknowledges that any breach or threatened breach of this Agreement may cause irreparable harm to the Company for which monetary damages may be an inadequate remedy. Accordingly, the Company shall be entitled, to the fullest extent permitted by law, to seek temporary, preliminary, and permanent injunctive relief, specific performance, and other equitable remedies, in addition to any other remedies available at law or in equity.

10.2 Trade secret remedies

Unauthorized disclosure or misuse of Confidential Information may constitute trade secret misappropriation under applicable law, including the Defend Trade Secrets Act, 18 U.S.C. § 1836, and applicable state law.

11. Whistleblower immunity notice

Notwithstanding any other provision of this Agreement, pursuant to 18 U.S.C. § 1833(b), an individual shall not be held criminally or civilly liable under any federal or state trade secret law for disclosure of a trade secret that:

• (a) is made in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law; or
• (b) is made in a complaint or other document filed in a lawsuit or other proceeding, if filed under seal.

12. International participants; business use; data protection

12.1 Business evaluation use

The Beta Program is offered solely for business and internal commercial evaluation purposes. Participant represents that it is accessing the Beta Program in a business capacity and not primarily as a consumer.

12.2 Data protection

Nothing in this Agreement limits any non-waivable rights applicable to personal data under applicable data protection law. Personal data is governed separately by the Company’s Privacy Policy and, where applicable, any data processing terms.

12.3 Export controls

Participant agrees not to export, re-export, transfer, or disclose any Confidential Information or access to the Beta Program in violation of applicable export control or sanctions laws.

12.4 Non-waivable local rights

To the extent applicable law in Participant’s jurisdiction provides mandatory rights or protections that cannot be waived by contract, this Agreement shall be interpreted and enforced to the maximum extent permitted while preserving such non-waivable rights.

13. Governing law and dispute resolution

13.1 Governing law

This Agreement and any dispute arising out of or relating to this Agreement, the Beta Program, or the BOMSync platform shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to conflict of laws principles.

13.2 Arbitration

Except for claims eligible for injunctive or equitable relief under Section 13.3, any dispute, claim, or controversy arising out of or relating to this Agreement, the Beta Program, or the BOMSync platform shall be finally resolved by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The seat and legal place of arbitration shall be Travis County, Texas. The arbitration may be conducted by videoconference, remote means, or in person, as determined by the arbitrator or agreed by the parties.

13.3 Injunctive and equitable relief

Nothing in this Agreement prevents the Company from seeking temporary, preliminary, or permanent injunctive relief, specific performance, or other equitable remedies in any state court of competent jurisdiction located in Travis County, Texas, or in the United States District Court having jurisdiction over Travis County, Texas, where necessary to protect Confidential Information, trade secrets, intellectual property, or other proprietary rights.

13.4 Court proceedings related to arbitration

Any court proceeding to compel arbitration, confirm an award, or enforce an arbitral award may be brought in any court of competent jurisdiction permitted by applicable law and this Agreement.

14. General provisions

14.1 Entire agreement

This Agreement, together with any other agreements or terms accepted by Participant in connection with the Beta Program, constitutes the entire agreement between the parties with respect to its subject matter.

14.2 Relationship to other BOMSync terms

This Agreement applies in parallel with the BOMSync Intellectual Property, Confidentiality, Patent-Pending Technology, and Proprietary Methods Notice and Agreement and any Beta Program terms. To the extent of any conflict, the provision affording greater protection to the Company’s Confidential Information and intellectual property shall control to the maximum extent permitted by law.

14.3 Amendments

The Company may update this Agreement from time to time. Any material update shall require renewed electronic acceptance before continued Beta Program access is permitted.

14.4 Severability

If any provision of this Agreement is found invalid or unenforceable, that provision shall be modified to the minimum extent necessary to make it enforceable, and the remaining provisions shall remain in full force and effect.

14.5 No waiver

Failure to enforce any provision of this Agreement shall not constitute a waiver of the right to enforce that or any other provision in the future.

14.6 Assignment

Participant may not assign or transfer this Agreement or any rights or obligations under it without the Company’s prior written consent. The Company may assign this Agreement, in whole or in part, to Geoffrey M. Jennings, BOMSync, Inc., or any affiliate, successor, purchaser, or assignee of the relevant business or intellectual property.

14.7 Electronic acceptance

Participant agrees that electronic acceptance of this Agreement, including click-through acceptance, constitutes a valid and binding signature to the fullest extent permitted by applicable law.

By clicking “I agree,” accessing the platform, or otherwise participating in the Beta Program, Participant acknowledges that it has read, understood, and agrees to be bound by this Agreement.

Contact: legal@BIModular.com