NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT
THIS NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT (the “Agreement”) is entered into as of (FILL DATE at the BOTTOM), by and between on the one hand, Turbo Ion Inc. dba CROC, a California Corporation (FILL NAME at the BOTTOM )and on the other hand, located at (FILL LOCATION AT the BOTTOM) Disclosing Party and Receiving Party may be referred to herein individually as “Party” or collectively, as “Parties.”
WHEREAS, the parties are evaluating potential business relationships or transactions relating to the opportunity to the distribution of proprietary products (hereinafter the “Contemplated Transactions”) and in furtherance of this evaluation it may be necessary or desirable for the Disclosing Party to disclose to the Receiving Party certain confidential or proprietary information relating to or in connection with the Contemplated Transactions and, therefore, may disclose Confidential Information (defined below) in connection therewith.
WHEREAS, in furtherance thereof, the Parties desire to enter into this Agreement.
NOW THEREFORE, in consideration of the mutual covenants and promises contained in this
Agreement, and as a condition precedent to discussing the Contemplated Transactions.
- Confidential Information. Receiving Party acknowledges that in the course of the discussions, due diligence, or other interactions relating to the Contemplated Transactions, Receiving Party may learn or become aware of valuable proprietary information belonging to or in the possession of the Disclosing Party which is not generally known to the public including, but not limited to, information that was or will be developed, created, or discovered by or on behalf of the Disclosing Party which has commercial value in the Disclosing Party’s business including, but not limited to, technology descriptions, trade secrets, business models, plans or know how, financial information, marketing sales or development reports, customers, clients, client lists, formulas, product analysis, testing and quality control, supplier information, non-public vendor relationships, potential clients, and/or business relationships, inventions, whether or not patentable, patents, copyrights, trademarks, service marks, trade names, trade secrets, designs, ideas, know-how, algorithms, heuristics, information, processes, data, techniques, software (including any and all source and/or object code), works of authorship, business and product development plans, customer lists and other information concerning Disclosing Party’s actual or anticipated business, or which is received in confidence by or for Disclosing Party from any other person (“Confidential Information”).
- Disclosure. Receiving Party shall limit disclosure of the Confidential Information to its directors, officers, employees, financial and legal advisors, consultants, accountants and
other similar persons or entities who are actually and actively involved in the due diligence or negotiation of the Contempated Transactions (collectively, “Related Persons”), and then only to those Related Persons who need to receive the Confidential Information to further the Contemplated Transactions or discussions of the Contemplated Transaction or as required by law. The Receiving Party agrees to take all steps reasonably necessary to ensure that the terms of this Agreement are not violated by such Related Persons. Receiving Party agrees to notify the Disclosing Party in writing of any misuse, misappropriation, or request by legal process of the Confidential Information which may come to Receiving Party's attention as soon as reasonably possible after the discovery of such misuse, misappropriation, or request.
- Limitations on Use of Confidential Information and Non-Solicitation.
- 3.1 Information of the Disclosing Party shall remain the property of the Disclosing Party. The Receiving Party agrees to protect, hold and maintain the Confidential Information in the strictest trust and confidence against unauthorized disclosure and for the sole and exclusive benefit of the Disclosing Party, and shall apply appropriate safeguards against the unauthorized disclosure of the Confidential Information. The Receiving Party shall be responsible for any breach of this Agreement by any of its Related Persons;
- 3.2 Without limiting the foregoing, the Receiving Party agrees that it: (I) shall not, without the prior written approval of the Disclosing Party, use for its own benefit, publish or otherwise disclose to others, or permit the use by others for their benefit or to the detriment of the Disclosing Party, any of the Confidential Information for purposes other than evaluating the Contemplated Transactions; (ii) shall not duplicate or copy the Confidential Information, without the prior written approval of the Disclosing Party; (iii) shall take all actions reasonably requested by the Disclosing Party to protect the confidentiality of the Confidential Information; and (iv) shall distribute, disclose or disseminate the Confidential Information only to its Related Persons with a need to know and who, in each case, have been informed of the confidential nature of the Confidential Information and have agreed in writing to be bound by the terms of this Agreement. Written evidence of such agreements and acknowledgments shall be provided to Disclosing Party forthwith upon execution;
- 3.3 Nothing in this Agreement is intended or shall grant any rights to the Receiving Party under any domain name, patent, trademark, copyright or other intellectual property right or the Disclosing Party, nor shall this Agreement grant the Receiving Party or its Related Persons any license, rights, or entitlement in or to the Confidential Information and the Confidential Information, and any patents, copyrights, trademarks, or other intellectual property rights flowing there from shall remain the sole and exclusive property of the Disclosing Party; and,
- 3.4 In addition, during the term of this Agreement and for a period of five (5) years following the termination or expiration of this Agreement, Receiving Party shall
not directly or indirectly, either alone or with others, solicit any of the Disclosing Party’s suppliers, customers, clients, or staff without prior written permission of the Disclosing Party. Receiving Party acknowledges that the terms of this sub- section are reasonable given that the proscribed solidication would be at an advantage gained by the disclosure of Confidential Information hereunder.
4.1. This Agreement shall not apply to Confidential Information, or any other
4.1.1. is required to be disclosed under legal process, provided that the Receiving Party provides the Disclosing Party with adequate prior written notice of such disclosure in order to permit the Disclosing Party to seek confidential treatment of such information.
- Documents. All documents of any kind furnished pursuant or relating to the Contemplated Transactions, or discussions of the Contemplated Transactions, shall remain the property of the Disclosing Party and the Receiving Party shall return all documents and copies to the Disclosing Party upon written request or certify that such documents and copies have been destroyed. Each Party shall keep all such documents and copies secure and control access to them while they are in its possession or control and shall prevent such documents and copies from falling into the public domain, which preventive measures shall include using the same degree of care, but in no event less than a reasonable standard of care, as the Receiving Party uses to protect its own Confidential Information. Documents, which contain Proprietary or Confidential Information, may be marked “Confidential” or “Proprietary” or, if disclosed orally, may be identified as confidential at the time of disclosure; however, the failure to mark or designate Confidential Information as such shall not change the confidential nature of the documents or information and shall not reduce the protections against disclosure or use provided herein and under all applicable law.
- Non-circumvention and Non-solicitation. The Parties agree that they shall not use the Confidential Information for any other purpose other than to evaluate the contemplated transactions between them. The Parties agree that they also shall not circumvent, solicit, directly or indirectly, by any means, any of the Confidential Information for any purpose other than the scope as outlined in this Agreement and during the Term of this Agreement.
- Term. This Agreement shall be effective as of the date last written below and continue for five (5) years after such date, provided, however, that the obligations set forth in Section 3 of this Agreement shall survive the termination of this Agreement indefinitely except as otherwise specifically provided in said Section 3 and its subsections. This Agreement shall apply to any and all discussions, negotiations, or documents arising out of or related to Contemplated Transactions or for any other purpose.
- Breach. The Parties agree that money damages may not be a sufficient remedy for any breach of any provision of this Agreement, and that in addition to all other remedies which the Disclosing Party hereto may have, the Disclosing Party may be entitled to seek specific performance and injunctive or other equitable relief as a remedy for any such breach. No failure or delay by the Disclosing Party hereto in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. The prevailing party in any litigation related to this Agreement will be entitled to reasonable attorneys’ fees and court costs.
- 9.1. Except as may otherwise be set forth in a signed, written agreement between the Parties, the Disclosing Party makes no representation or warranty as to accuracy, completeness, condition, suitability, or performance of Confidential Information and the Disclosing Party shall have no liability whatsoever to the Receiving Party resulting from its use of Confidential Information;
- 9.2. This Agreement and the Receiving Party’s obligations hereunder shall be binding on the representatives, assigns, successors, parent and subsidiary companies under common control of the Receiving Party and shall inure to the benefit of the assigns and successors of the Disclosing Party; and,
- 9.3. It is expressly understood that this Agreement is not intended to and does not constitute an agreement to consummate the Contemplated Transactions, and neither Party will have any rights or obligations of any kind whatsoever with respect to such transactions by virtue of this Agreement or any other written or oral expressions unless and until a definitive agreement between the Parties is executed and delivered, other than for the matters specifically agreed to herein. This agreement shall extend to all subsidiaries and affiliates of the parties.
- Miscellaneous. The Parties further agree that:
- 10.1. should any one or more provisions of this Agreement or of any agreement entered into pursuant to this Agreement be determined to be illegal or unenforceable, then this Agreement shall be given effect separately from the section deemed illegal or unenforceable as if such provision had not been part of it;
- 10.2. a Party may waive any rights under this Agreement only by written waiver duly signed by such Party, and no failure to exercise or delay in exercising a right under this Agreement shall constitute a waiver of such right;
- 10.3. this Agreement shall inure only to the benefit of the Parties hereto, and the rights and obligations of each Party under this Agreement may not be assigned or delegated without the prior written consent of the other Party;
- 10.4. all notices under this Agreement must be in writing and shall be deemed to have been delivered to and received by a Party, and will otherwise become effective, on the date of actual delivery thereof (by personal delivery, express delivery service, or certified mail) to the address of such Party set forth below;
- 10.5. this Agreement sets forth the entire understanding of the Parties regarding its subject matter and supersedes any other written or verbal agreement or understanding between the Parties;
- 10.6. this Agreement may be executed in counterparts, and the faxed or scanned signed Agreement shall have the same force and effect as the original signed Agreement; and,
- 10.7. this Agreement shall be interpreted under the laws of the State of California without regard to conflicts of law principles.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
Signature: TURBOION INC
Address: 6800 E 8th Street, Buena Park CA, (0620