THIS CONFIDENTIALITY and NON-DISCLOSURE AGREEMENT (this "Agreement") is made on the date the Creator accepts it in the Sow app
Between
KIMANIMOORE IMEX LTD, trading as Sow and in the process of changing its name to SOW TECHNOLOGIES LTD (hereinafter referred to as "SOW", whose registered address is at [Nigerian registered address to be added], which expression shall where the context so admits include its successors in title and assigns) of the first part;
And
the Creator named in the Sow account accepting this Agreement (hereinafter referred to as the "Creator"), whose address is at the Creator named in the Sow account accepting this Agreement, which expression shall, where the context so admits, include his/her heirs, personal representatives and assigns.
SOW and the Creator shall collectively be referred to as "Parties" and individually as a "Party".
WHEREAS:
A. SOW (Kimanimoore IMEX Ltd, trading as Sow) is a technology company that operates a platform and provides technology-enabled services for the aggregation, tracking, reconciliation, administration and collection of creators' earnings and receivables, including facilitating access to eligible receivables where applicable.
B. The Creator creates and monetises content and is considering a commercial relationship with SOW in connection with the aggregation, tracking, administration and collection of the Creator's earnings and receivables and, where applicable, potential early access to eligible receivables (the "Transaction").
C. In connection with the evaluation, structuring, negotiation and potential implementation of the Transaction, each Party may disclose to the other certain confidential, proprietary, financial, commercial, technical and other information, including information relating to the Creator's historical earnings, receivables and payment history and SOW's technology, platform, systems, processes and commercial arrangements (collectively, the "Confidential Information").
D. The Parties intend that Confidential Information disclosed by either Party shall be used solely for the purpose of evaluating, negotiating, structuring, implementing and, where applicable, providing the services contemplated under the Transaction, including the verification, analysis, reconciliation, administration and collection of the Creator's earnings and receivables and the assessment and administration of any potential early access to eligible receivables (the "Permitted Purpose").
E. The Parties therefore wish to establish the terms upon which Confidential Information may be disclosed, received, used, protected, processed and, where applicable, returned or deleted, and have accordingly agreed to enter into this Agreement.
1. DEFINITION & INTERPRETATION:
1.1 Confidential Information: For the purposes of this Agreement, "Confidential Information" means all non-public information disclosed or made available by either Party to the other Party in connection with the Permitted Purpose whether orally, in writing, electronically, visually or in any other form. Such information includes, without limitation, the Parties' financial information, payment and settlement processes, security arrangements, customer and partner information, creator earnings records, historical earnings and revenue information, including earnings history for the preceding two (2) or three (3) years, platform analytics, invoices, receivables, payment histories, royalties, fees, commissions, information concerning platforms, distributors and other counterparties from whom amounts may be payable to the Creator. Confidential Information shall also include all analyses, calculations, reports, assessments, models, compilations, summaries, extracts, notes and other materials prepared by or on behalf of the Receiving Party which contain or are derived from the Confidential Information.
1.2 It also includes the existence, status and proposed terms of the Parties' discussions and the existence and nature of the Transaction, and all copies, notes, extracts and analysis containing or reflecting such information.
1.3 Information shall be confidential where it is identified as confidential or ought reasonably to be understood to be confidential having regard to its nature or the circumstances of its disclosure, whether disclosed before, on or after the date of this Agreement. For the avoidance of doubt, Personal Data may constitute Confidential Information.
1.4 Unless the context so otherwise requires, words importing the plural shall include the singular and vice-versa.
1.5 Data Breach means unauthorized access to, acquisition, disclosure, loss, destruction, alteration or use of Confidential Information or Personal Data.
1.6 Disclosing Party means a Party to this Agreement when it discloses Confidential Information, directly or indirectly, to a Party.
1.7 Receiving Party means a Party to this Agreement when it receives Confidential Information, directly or indirectly from a Party.
1.8 Permitted Purpose means the evaluation, due diligence, verification, negotiation, structuring, onboarding, implementation and provision of the Transaction and the services contemplated in connection therewith, including the aggregation, analysis, verification, tracking, reconciliation, collection and administration of the Creator's earnings and receivables, assessment of eligibility for and administration of any early access to eligible receivables, compliance, risk management, accounting, reporting and related operational purposes, and any other purpose expressly agreed in writing by the Parties.
1.9 Personal data is any information relating to an identified or identifiable individual, such as names, addresses, identification numbers, or other unique identifiers.
1.10 "Permitted Recipients" means, in relation to a Party, its Representatives, Affiliates, auditors, insurers, financiers, technology providers, payment service providers, consultants, contractors and other service providers who have a need to know the relevant Confidential Information and who are subject to confidentiality and data protection obligations appropriate to the nature of such information.
1.11 Representatives means a Party's directors, officers, employees, professional advisers and contractors who need access for the Permitted Purpose and are bound by written confidentiality obligations at least as protective as this Agreement or enforceable professional duties of confidentiality.
2. CONSIDERATION / UNDERTAKING
In consideration of the Disclosing Party disclosing Confidential Information, the Parties undertake on behalf of themselves, their affiliates, employees and representatives;
2.1 To keep the Confidential Information confidential, whether or not marked as such, including the existence and content of the Parties' negotiations and discussions, financial and commercial information, and any analysis or documents prepared by the Parties or their representatives containing or derived from such information;
2.1.1 not to disclose, publish or communicate the Confidential Information to any third party, except as expressly permitted under this Agreement;
2.1.2 to use the Confidential Information only for the Permitted Purpose;
2.1.3 not to copy, reduce to writing or otherwise record the Confidential Information except as reasonably necessary for the Permitted Purpose, including for electronic storage, processing, analysis, reconciliation, backup, compliance and record-keeping purposes.
2.1.4 Neither Party shall use Confidential Information received from the other Party for the purpose of bypassing, disintermediating or deliberately avoiding the other Party in relation to the specific commercial opportunity contemplated by the Transaction. Nothing in this Agreement shall restrict either Party from independently pursuing, entering into or maintaining any business relationship or transaction with any person or entity, provided that it does not use the other Party's Confidential Information in doing so.
2.1.5 not at any time, without the prior written consent of the Disclosing Party discuss, disclose or reveal the Confidential Information with or to any other person whatsoever other than its Permitted Recipients to the extent necessary for the permitted purpose, and on the condition that before such disclosure the Representative is first made aware of the terms of this Agreement and shall be required by the Receiving Party to observe all the restrictions regarding the Confidential Information that are contained in this Agreement;
2.1.6 ensure compliance by its Representatives of its obligations by maintaining appropriate written agreements with its Representatives that receive, or have access to, Confidential Information sufficient to enable it to comply with the terms of this Agreement and be liable for any breach of such obligations by its Representatives.
2.1.7 not to use, exploit, disclose or apply Confidential Information for any purpose other than the Permitted Purpose, except as expressly permitted by this Agreement; and
2.1.8 to always act in good faith in performing their respective obligations under this Agreement, such efforts to be at least equal to a Party's efforts employed to protect its own confidential, secret, and proprietary data and information of a similar nature and sensitivity.
2.2 Notwithstanding anything to the contrary in this Agreement, SOW may access, copy, upload, store, process, analyze, aggregate, reconcile and otherwise use the Creator's Confidential Information for the Permitted Purpose, including to assess earnings, receivables, payment patterns, eligibility, risk, projected collections and potential early access to eligible receivables.
2.3 SOW may create and retain internal reports, calculations, assessments, models, risk analyses, eligibility assessments, statistical information and other information derived from the Confidential Information for the Permitted Purpose. Information generated by SOW through aggregation or anonymization which does not identify the Creator and does not disclose the Creator's Confidential Information shall not constitute the Creator's Confidential Information.
2.4 Nothing in this Agreement shall prevent SOW from providing services to, or entering into commercial relationships with, any creator, platform, service provider, payment provider or other third party, provided that SOW does not use or disclose the Creator's Confidential Information in breach of this Agreement.
3. EXCLUSIONS
3.1 The Receiving Party may only disclose the Confidential Information to its Permitted Recipients to the extent reasonably required for the Permitted Purpose, provided that such Permitted Recipients are informed of the confidential nature of the information and are subject to confidentiality obligations or professional duties of confidentiality appropriate to the information disclosed.
3.2 Confidential Information shall exclude information or any portion of information that:
a. is, or becomes, before or after receipt thereof, published or generally available to the public, other than as a result of any unlawful act or omission on the part of the Receiving Party.
b. is, or was lawfully acquired from a third party who did not, to the Receiving Party's knowledge, obtain it in contravention of a confidentiality agreement with the Disclosing Party;
c. is known to, or in the possession of, the Receiving Party prior to the disclosure thereof by the Disclosing Party;
d. is independently developed by the Receiving Party;
e. is necessarily disclosed by the Receiving Party in carrying out any obligations contained in any agreement between, inter alia, the Disclosing Party and the Receiving Party;
4. MANDATORY DISCLOSURE
4.1 A Party may disclose Confidential Information to the minimum extent required where the Receiving Party is requested or required to disclose by an order of a court of competent jurisdiction, or any order, inquiry, or investigation by any competent judicial, governmental or regulatory body, provided the Receiving Party shall use its reasonable endeavours to the extent permitted by law or regulatory process to provide the Disclosing Party with prior written notice ahead of such disclosure.
4.2 Before a Party discloses any Confidential Information pursuant to Clause 4.1 above, it shall, to the extent practicable and permitted by law, use its reasonable endeavours to give the other Parties as much advance notice of this disclosure as possible, so far as notice of such disclosure is not prohibited.
4.3 Where prior notice is legally permitted, the Receiving Party shall, where reasonably practicable, consult with the Disclosing Party regarding the form, timing and extent of the proposed disclosure and shall disclose only that portion of the Confidential Information which it is legally required to disclose.
5. INTELLECTUAL PROPERTY
5.1 Confidential Information and associated intellectual property remain the property of the Disclosing Party or the relevant rights holder. No ownership, license or other right is granted except the limited right to use information for the Permitted Purpose. The Creator retains ownership of existing content, channels, trademarks and other intellectual property. SOW retains all right, title and interest in and to its existing and independently developed platform, software, technology, algorithms, databases, systems, processes, methodologies, models, know-how, documentation, templates and other intellectual property. Nothing in this Agreement transfers or grants to the Creator any ownership or other proprietary interest in any such SOW intellectual property.
5.2 Neither Party may use the other's name, image, logo, trademarks or content in publicity, endorsements, case studies or announcements without prior written consent.
5.3 This Agreement does not create an employment, agency, partnership, joint venture, exclusive relationship or obligation to proceed.
5.4 The Creator shall not, and shall procure that its Permitted Recipients do not, reverse engineer, decompile, disassemble, reproduce, modify, copy or attempt to derive the source code, algorithms, architecture, underlying structure or technical operation of any software, platform, system or technology made available by SOW.
6. RETURN AND DELETION
6.1 On written request or termination, the Receiving Party shall, within ten business days, return or securely delete Confidential Information and its copies, and direct its Representatives to do the same. On request, an authorized representative shall confirm compliance in writing. Notwithstanding the foregoing, SOW may retain information to the extent reasonably necessary for the Permitted Purpose, including information required for ongoing services, reconciliation, accounting, audit, compliance, legal, regulatory, fraud prevention, dispute resolution or record-keeping purposes, subject always to applicable confidentiality and data protection obligations.
6.2 Information may be retained only to the extent required by law or regulatory duties, as one restricted archival copy for legal compliance or dispute purposes, or in routine backups not reasonably accessible for ordinary use. Retained information remains protected, shall not be used for another purpose, and shall be deleted when the retention requirement ends or through the normal secure backup deletion cycle. The foregoing shall not require SOW to delete aggregated, anonymized or de-identified information which does not identify the Creator or disclose the Creator's Confidential Information.
7. CONSEQUENCES OF BREACH
The Parties agree that monetary compensation as damages may not be a sufficient remedy for any breach of this Agreement, and that in addition to any other remedies (which may be monetary) available either in law or in equity, the remedies of specific performance and injunctive or other equitable relief may be available as a remedy for any breach of this Agreement. None of the Parties will be liable for consequential or indirect damages towards the other Party.
8. DATA PROTECTION
8.1 Each Party undertakes to comply with the data protection laws, regulations and implementation framework (including the Nigeria Data Protection Act 2023 and any regulations, guidelines or directives applicable to its processing of Personal Data) in force in the Federal Republic of Nigeria.
8.2 Each Party shall process personal and sensitive data solely for the purpose for which the data is collected.
8.3 Where a Party utilizes third-party processors to perform its obligations under this Agreement, such Party shall ensure that the processor is under a similar confidentiality and data protection obligation as those contained in this Agreement. Each Party shall be liable for its unlawful processing of such personal data and that of its third-party processors.
8.4 Parties shall ensure that they adopt and implement adequate physical and technical measures to guarantee the confidentiality, secure processing and storage of personal and sensitive data obtained and processed pursuant to its obligations under this Agreement.
9. GOVERNING LAW & DISPUTE RESOLUTION
9.1 The arrangements set out in this Agreement, as well as the rights and obligations of the Parties hereunder, shall be governed by and construed in accordance with the laws of the Federal Republic of Nigeria.
9.2 If at any time a dispute shall arise between the Parties on matters relating to the interpretation or implementation, or any dispute whatsoever arising out of this Agreement, then the parties hereto shall endeavour in good faith to resolve any such dispute through amicable discussion but within a period of thirty days commencing on the date either Party serves written notice upon the other outlining the nature and substance of any such dispute. Failing amicable resolution of any such dispute within those thirty days, then such dispute shall be referred to and determined by the Lagos Multi-Door Courthouse in accordance with its applicable arbitration rules and the Arbitration and Mediation Act, 2023. The tribunal shall consist of one arbitrator appointed by agreement of the Parties, failing which the arbitrator shall be appointed in accordance with the applicable rules. The arbitration proceedings shall be held in English, and the place of arbitration shall be in Lagos, Nigeria, unless otherwise agreed by the parties in the arbitration. Each party may seek provisional measures from any court of competent jurisdiction, including without limitation provisional injunctive relief.
9.3 The proceedings in the arbitration shall be kept confidential, while the Parties shall share the cost of arbitration evenly except their own respective individual costs, which they shall bear individually.
10. STANDARD OF CARE
10.1 The Receiving Party will receive and use the Disclosing Party's Confidential Information in such a way as to prevent any unauthorized access to it.
10.2 If the Receiving Party becomes aware that the Disclosing Party's Confidential Information has been disclosed by it or its Permitted Recipients contrary to the terms of this Agreement, the Receiving Party will as soon as reasonably practicable and in any event within forty-eight (48) hours after becoming aware of the unauthorized disclosure, access, loss or use:
a. Inform the Disclosing Party in writing specifying what Confidential Information has been disclosed, how and to whom it has or may have been disclosed, when the unauthorized disclosure took place and what steps will be taken to retrieve the Confidential Information and prevent future unauthorized disclosures.
b. take such steps as are necessary or as the Disclosing Party directs to retrieve the Confidential Information from unauthorized persons and to prevent further unauthorized disclosure of the Confidential Information.
c. co-operate with the Disclosing Party in taking any steps to retrieve the Confidential Information from unauthorized persons and to prevent further disclosure of the Confidential Information.
d. Clause 10.2 is without prejudice to any rights of the Disclosing Party arising from the unauthorized disclosure of its Confidential Information.
11. AGREEMENTS AND ACKNOWLEDGMENTS
The Parties hereby agree and acknowledge that:
a. Neither Party nor any of its Representatives have made or will make any representation or warranty concerning the accuracy, reliability or completeness of its Confidential Information and shall be under no obligation to update or correct any inaccuracy in the Confidential Information.
b. Each Disclosing Party represents that, to the best of its knowledge, it is entitled to disclose the Confidential Information to the Receiving Party for the Permitted Purpose and that such disclosure does not knowingly violate any applicable law, contractual obligation or third-party right.
c. Each Party shall be solely responsible for conducting its own assessment of the Confidential Information and deciding whether or not to participate in the Proposed Transaction.
d. The Creator shall use reasonable efforts to ensure that information supplied to SOW concerning the Creator's earnings, receivables and payment history is accurate and complete in all material respects and shall promptly notify SOW of any material error or omission of which the Creator becomes aware.
12. NOTICES
12.1 For the purposes of giving any notice, the serving of any process and for any purposes arising from this Agreement, the Parties' respective addresses shall be:
Kimanimoore IMEX Ltd (trading as Sow; name change to Sow Technologies Ltd in progress) — Kimanimoore IMEX Ltd, trading as Sow (Nigeria) — notices: info@sowfintech.com, attention Kay Ikazoboh. Group companies: Sow Technologies Inc. (131 Continental Dr, Suite 305, Newark, Delaware 19713, USA); Sow Technologies Ltd (United Kingdom).
THE CREATOR — the Creator named in the Sow account accepting this Agreement
12.2 Each of the Parties shall be entitled from time to time, by written notice to the other party, to vary its contact details as the case may be.
12.3 Any notice given by a Party to the other which:
a. is delivered by hand during the normal business hours of the Addressee at the Addressee's office address for the time being shall be deemed, (unless the contrary is proved by the addressee), to have been received by the addressee at the time of delivery otherwise it shall be deemed to have been delivered on the next business day;
b. if transmitted by email to the email address forming a part of the addressee's email, be deemed to have been received by the addressee (unless the contrary is proved by the addressee) at the time it is sent.
13. TERM
13.1 This Agreement shall commence on the date first written above and shall remain in force for two (2) years unless terminated earlier by either Party by written notice.
13.2 Notwithstanding the expiry or termination of this Agreement, the obligations of confidentiality and restrictions on use contained in this Agreement shall continue for five (5) years from the date of disclosure of the relevant Confidential Information.
14. MISCELLANEOUS
14.1 This Agreement constitutes the entire agreement and understanding of the Parties relating to the subject matter hereof, and supersedes any arrangement, understanding or previous agreement between the Parties relating to the subject matter covered by this Agreement. No amendments to or waiver of rights under this Agreement shall be effective unless reduced to writing and signed by the Parties.
14.2 A failure to enforce or to require the performance at any time of any of the provisions of this Agreement shall not be construed to be a waiver of such provision and shall not affect either the validity of this Agreement, or any part hereof, or the right of any Party to enforce the provisions of this Agreement.
14.3 This Agreement may be executed by each Party in separate counterparts, each of which shall be an original but all of which shall together constitute one and the same agreement.
14.4 If for whatever reason, any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable in whole or in part, under any enactment or rule or law, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.
IN WITNESS WHEREOF THE PARTIES HAVE EXECUTED this agreement in the manner below the day and year first above written.
FOR Kimanimoore IMEX Ltd (trading as Sow; name change to Sow Technologies Ltd in progress): AUTHORIZED SIGNATORY
CREATOR: NAME (accepted electronically in the Sow app)