NON-DISCLOSURE AGREEMENT REQUEST
THIS MUTUAL CONFIDENTIALITY AGREEMENT, by and between Discloser, and Receiver, hereinafter and individually and/or collectively hereinafter the “Party” or “Parties”.
WHEREAS, Discloser is a individual that is engaged in the business of development, sales, marketing, manufacturing and distributing of devices;
WHEREAS, Prototype Monster is also a company that is engaged in the business of development, sales, marketing, manufacturing and distributing.
WHEREAS, the Parties wish to enter into discussions concerning possible business affiliations for the mutual benefit of one another (hereinafter “Affiliation”), including but not limited to licensing, sales, marketing, manufacturing, design, distribution or other affiliations or relationships;
WHEREAS, nothing in this Agreement shall be deemed to prevent either party from engaging in their respective businesses provided such engagement would not otherwise constitute a breach of, or default under this Agreement;
WHEREAS, discussions concerning an Affiliation may require the disclosure by each
Party to the other of certain information regarded by the Parties as confidential, proprietary or trade secret;
WHEREAS, the Parties intend that the delivery and receipt of such confidential, proprietary or trade-secret information shall be limited to the use for which it was intended, namely to inform and support discussions of an Affiliation;
NOW, THEREFORE, in consideration of the foregoing, the mutual promises hereinafter contained and other good and valuable consideration, the Parties hereby agree as follows;
1. CONFIDENTIAL INFORMATION. For purposes of this Agreement, “Confidential Information” shall mean all information or material proprietary to any Party relating to the conduct or performance of the business of any Party, all discussions and terms of any potential Affiliation, and all information or material designated in writing by any Party as Confidential Information. “Confidential Information” includes, but is not limited to products, operational methods, marketing plans, product development techniques or plans, business acquisition plans, new personnel acquisition plans, methods of manufacture, technical processes, designs, and design projects, inventions and research
programs, trade “know-how,” trade secrets, recipes, marketing strategies, business procedures or techniques, customer and broker lists, forms, prospective customer and, customer points of contact information including names, addresses, telephone numbers, purchasing history or potential prospects, contacts, purchase order, pricing information, specifications, financial statements, financial projections and budgets, sales and purchases lists, arrangements, records, transportation contracts, production data, business systems, product and process formulations, operations procedures and processes, facility and equipment designs and specifications, licensee identities and records, customer identities and records, pricing, and vendor identities and records and other business
affairs of the Parties and their affiliated companies and subsidiaries. Confidential Information shall not include:
a) information which is in the public domain at the time of disclosure by any Party to the other;
b) information which becomes publicly known through no wrongful act of any Party;
c) information which is or becomes known to the recipient from another third-party source without a similar obligation of confidentiality and without a breach of this Agreement;
d) information which is approved for release or other use by the Party entitled to the protection of this Agreement with regard to such information; e) information which was already known to the recipient prior to disclosure
pursuant to this Agreement or the discussions herein contemplated, even if such
information is not within the public domain; f) information which is required under
applicable law to be disclosed in a manner not entitled to the protection of the
2. OBLIGATION OF CONFIDENTIALITY. Each Party hereto agrees that the Confidential Information for the other shall be used solely for the purposes of evaluating and developing any Affiliation contemplated hereby. Each Party additionally agrees that it will restrict access to the Confidential Information to a list of directors, officers, employees or professional consultants that have a need to know the Confidential Information and further that such directors, officers, employees and professional consultants shall be informed of the confidential nature of the Confidential Information and shall be directed to treat such Confidential Information consistent with the requirements of this Agreement. The obligations imposed on the Parties shall continue with respect to each unit of the Confidential Information following the termination of all relations between the Parties, and such obligations shall not terminate until such unit shall cease to be secret and confidential and shall be in the public domain, unless such event shall have occurred as a result of wrongful conduct by a Party, its agents, servants, officers, or employees or a breach of the covenants set forth in this Agreement.
3. OWNERSHIP OF CONFIDENTIAL INFORMATION. Each Party agrees that any Confidential Information received from the other Party shall remain the property of the delivering Party and that any notes, charts, diagrams, descriptions, memoranda, statements and other writings and records thus obtained shall be promptly returned to the delivering Party upon any termination of the discussions contemplated by this Agreement, unless the obligations of the Agreement shall have been superseded by the terms of a later written agreement making specific reference to Confidential Information. Each Party further agrees that, upon any such termination, it shall destroy any work product it may have generated that incorporates or makes reference to Confidential Information received from the
4. REMEDIES. Each Party assumes liability for damages arising from any breach of this Agreement by it or its directors, officers, employees, professional consultants or representatives. Each Party further agrees that any such breach or threatened breach may result in irreparable injury to the other, for which monetary damages may be an inadequate remedy, and agrees a) to take all reasonable measures, including but not limited to court proceedings, at its own expense to restrain its directors, officers, employees, professional consultants and representatives from
any such breach or threatened breach; and b) that the other Party shall be entitled to temporary and permanent injunctions restraining such breach or threatened breach.
5. ADEQUACY OF INFORMATION. Each Party agrees that it shall endeavor to supply information and Confidential Information known to it and which it believes to be relevant for the purposes contemplated by this Agreement. However, this Agreement shall not be construed as a representation or warranty of either Party to the other as to the accuracy, adequacy or completeness of any information or Confidential Information disclosed pursuant to this Agreement and neither Party shall have any obligation or liability whatsoever arising out of the use by the receiving Party of information or Confidential Information, except insofar as such obligation or liability arises under a different agreement or understanding between the Parties.
6. COMPETITIVE ACTIVITY. The Parties acknowledge that they are independently engaged in certain business activities that may compete with businesses of the other at some time and under some circumstances. Accordingly, each Party agrees that the competitive activities of the other shall not be construed as evidence or indication that this Agreement has been breached in any way, unless there is competent additional evidence to indicate that there has been a breach.
7. AGREEMENT NOT TO SOLICIT EMPLOYEES. The Parties agree that for a period of 60 months hereafter, the Parties will not, either directly or indirectly, on their own behalf or in the service or on the behalf of others solicit, divert, or hire away, or attempt to solicit, divert, or hire away any person then employed by another Party to this Agreement, nor encourage anyone to leave their employ.
8. NON-DISPARAGEMENT. The Parties agree that they will not, either directly or indirectly, disparage, defame, or besmirch the reputation, character, or image of the other Parties or their products, services, employees, directors, or officers.
9. TERMINATION OF DISCUSSIONS. Each Party may declare discussions contemplated by this Agreement to be terminated by giving written notice thereof to the other Parties, which shall be effective immediately upon receipt. If neither Party so notifies the other, then the discussions contemplated by this Agreement shall nevertheless be deemed terminated whenever the Parties cease diligently to pursue them.
PUBLICITY. Neither Party shall make any public disclosures regarding the other Party, or the subject matter hereof, including, without limitation, any advertisements, publications or documents, including to prospective or existing customers without the prior written approval of the other Party in each instance.
BINDING EFFECT. This Agreement shall be binding upon and inure to the benefit of the parents, subsidiaries, affiliates, and successors in interest, of all Parties the same as if such parents, subsidiaries and affiliates were directly made parties hereto.
NOTICES. Written notices hereunder may be personally delivered or sent by United States mail with prepaid postage and return receipt requested or transmitted by confirmed facsimile. Notices shall be deemed received on the date of actual delivery to the recipient as evidenced by confirmation thereof.
TERM. This agreement shall remain in effect for a 5-year term. Notwithstanding the foregoing, the Parties’ duty to hold in confidence Confidential Information that was disclosed during term shall remain in effect indefinitely.
GOVERNING LAW. This Agreement and the rights and obligations hereunder shall be governed and construed and interpreted for all purposes in accordance with the laws of the State of Florida, without reference to the body of law controlling conflicts of law. The Parties consent to the personal jurisdiction and venue of these courts for the purpose of enforcement of this Agreement.
This Agreement sets forth the entire agreement and understanding between the parties and supersedes all prior agreements and understanding between them with respect to the subject matter hereof and not representations, inducements, promise or agreement, oral or otherwise, not embodied herein, shall be of any force or effect.
IN WITNESS WHEREOF, the Parties have executed this Mutual Confidentiality Agreement the day and year written below.