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"file_name": " 064-19 Non Disclosure Agreement 2019.pdf",
"text": "NON-DISCLOSURE AGREEMENT\nRequired under JEA's Confidential Information Protection Program\nTHIS NON-DISCLOSURE AGREEMENT (\"Agreement\") is entered into this ______day of\n__________ by and between JEA, located at 21 West Church Street, Jacksonville, Florida 32202 (the \"Discloser\"), and ____________________________________________________________ with an address at ______________________________________________ (the \"Recipient\") (hereafter Discloser and Recipient shall be referred to as the PARTIES}.\nWHEREAS, the Recipient desires to work with the discloser and/or view ______________________________________________________________________documents regarding ____________________________________ (the \"Transaction\"); and\nWHEREAS, the discloser is required by its internal policies, state and federal laws, rules, regulations or standards to ensure that sensitive and confidential information is protected and not disclosed to the public;\nWHEREAS, the Parties have entered into a transaction related to the _______________________. The terms of those agreements are incorporated herein.\nJEA & Florida State Sunshine Application - JEA is a publicly owned utility and all official information sharing is governed by Florida Sunshine Laws. The Florida Sunshine law is a series of laws designed to guarantee that the public has access to the public records of governmental bodies in Florida. However, as per the Florida Sunshine Law, certain information that could impact safe and secure operation is exempt which includes information classified and protected under federal regulatory standards such as NERC CIP, HIPAA, FCRA, and FACTA. Section 119.0713(4)(a), 5(a), F.S. govern any local government agency exemptions from inspection or copying of public records and exempts certain information including Security measures, systems, or procedures from public disclosure including -\nI. Information related to the security of the technology, processes, or practices of a utility owned or operated by a unit of local government that are designed to protect the utility's networks, computers, programs, and data from attack, damage, or unauthorized access, which information, if disclosed, would facilitate the alteration, disclosure, or destruction of such data or information technology resources.\nII. Information related to the security of existing or proposed information technology systems or industrial control technology systems of a utility owned or operated by a unit of local government, which, if disclosed, would facilitate unauthorized access to, and alteration or destruction of, such systems in a manner that would adversely impact the safe and reliable operation of the systems and the utility.\nIII. Results of periodic internal audits and evaluations of the security program for an agency's data and information technology resources are confidential and exempt.\nThis agreement applies to disclosure of the protected information that is exempt from Florida Sunshine Law disclosure and in no shape or manner would this agreement supersede the provisions of Florida Sunshine Law.\nNOW THEREFORE, in consideration of moving forward with the Transaction, the Recipient and the Discloser agrees as follows:\n1. Definition of Confidential Information.\nFor purposes of this Agreement, \"Confidential Information\" means any data or information that is proprietary to the Parties and not generally known to the public, whether in tangible or intangible form, whenever and however disclosed, including but not limited to:\na. the documents described in the Whereas clause above;\nb. Critical Infrastructure Information (CII) or Bulk Electric System Information (BCSI) or Security Sensitive Information (SSI) classified by JEA\nc. Protected Health Information in both physical and electronic form (PHI and ePHI)\nd. Personal Identifiable Information (PII)\ne. any protected, non-public information concerning the design or operation of present or future critical infrastructure;\nf. any information that could be used to compromise or expose the vulnerability of the Parties Cyber systems, processes, programs data, communications, energy and operations systems or structures;\ng. any Copyright application code, source code, technical design (not released for open use), trade secret, scientific or technical information, invention, design, process, procedure, formula, improvement, technology or method;\nh. any computer software, source code, object code, flow charts or databases; and\ni. any other information that should reasonably be recognized as sensitive or confidential information of the Recipient or the disclosing party.\nConfidential Information shall not include information required to be disclosed in a judicial or administrative proceeding, or otherwise required to be disclosed by law or regulation, although the requirements of paragraph 6 hereof shall apply prior to any disclosure being made.\n2. Prohibition on Disclosure of Confidential Information.\nThe Parties will:\na. limit disclosure of any Confidential Information to its directors, officers, employees, agents or representatives (collectively \"Representatives\") who have a need to know such Confidential Information in connection with the Transaction, and only for that purpose;\nb. keep all Confidential Information strictly confidential by using a reasonable degree of care, but not less than the degree of care used by it in safeguarding its own confidential information; and\nc. not disclose any Confidential Information received to any third parties (except as otherwise provided for herein).\nThe Recipient shall provide the Discloser with original signed copies of all of the Acknowledgements required under the preceding paragraph. The Parties shall be responsible for any breach of this Agreement by any of their respective Representatives.\n3. Use of Confidential Information. The Parties agree to use the Confidential Information solely in connection with the Transaction and not for any purpose other than as authorized by this Agreement without the prior written consent of an authorized representative of the Parties. No other right or license, whether expressed or implied, in the Confidential Information is granted to the Parties hereunder. Title to the Confidential Information will remain solely with the Party. All use of Confidential Information by the Parties shall be for the benefit of the Parties and any modifications and improvements thereof by the Recipient shall be the sole property of Discloser. Notwithstanding the foregoing, Confidential Information shall include any proprietary records created in the course of the Recipient's course of engagement such as customized code, configuration, flowcharts or project data that was specifically designed to meet the needs of the Discloser.\nThe Parties agree to ensure that all copyright products, such as source codes, system design data/architecture, and other proprietary information, disclosed during the engagement is protected from any misuse, alteration, modification, sharing, or transfer to any party without express permission of the Discloser. Such data is provided for the sole use of the Parties, and limited for the use under this agreement.\n4. Obligations of Receiving Party.\na. No Use. The Receiving Party agrees not to use the Confidential Information in any way, or to manufacture or test any product embodying Confidential Information, except for the purpose set forth above.\nb. No Disclosure. The Receiving Party agrees to use the same degree of protection it uses for its own trade secret information, and in no event less than reasonable efforts, to prevent and protect the Confidential Information, or any part thereof, from disclosure to any person other than the Receiving Party's employees having a need for disclosure in connection with the Receiving Party's authorized use of the Confidential Information.\nc. Protection of Secrecy. The Receiving Party agrees to take all steps reasonably within its control to protect the secrecy of the Confidential Information, and to prevent the Confidential Information from falling into the public domain or into the possession of unauthorized persons.\nd. No Duplication. The Receiving Party shall not duplicate Confidential Information furnished in tangible form except for purposes of this Agreement.\ne. Return of Information. on a Party's request, the other Party shall return all Confidential Information of the requesting Party, except for that portion of such Confidential Information that may be found in analyses prepared by, or for, the returning Party (collectively, \"Analyses\"), and the returning Party and its Representatives shall not retain any copies of such Confidential Information except the returning Party may retain one copy of the Confidential Information as needed to comply with applicable law and/or returning Party's record retention policies. The Confidential Information retained by the returning Party, the portion of Confidential Information that may be found in Analyses prepared by, or for, the returning Party, and any Confidential Information furnished by the requesting Party not so requested or returned, will be held by the returning Party and kept subject to the terms of this Agreement or destroyed.\n5. Limits on Confidential Information. The obligations and restrictions imposed by this Agreement will not apply to any information that:\na. The Recipient can demonstrate was already known to the Recipient prior to the disclosure by the Discloser; or,\nb. has become publicly known through no wrongful act of the Recipient; or,\nc. was received by the Recipient without breach of this Agreement from a third party without restriction as to the use and disclosure of the Discloser's Confidential Information; or,\nd. was independently developed by the Recipient without use of the Discloser's Confidential Information; or\ne. was ordered to be publicly released by the requirement of a government agency. In this regard, the Parties understand that the Discloser is subject to Florida's Public Records Act, Chapter 119, Florida Statutes, and that section 1004.22, Florida Statutes, provides limited protection of documents received by the Discloser.\n6. Compelled Disclosure of Confidential Information.\na. The Recipient may disclose Confidential Information pursuant to any governmental, judicial, or administrative order, subpoena, discovery request, regulatory request or similar method, provided that the Recipient promptly notifies, to the extent practicable.\nb. The Recipient agrees that it shall not oppose and shall cooperate with efforts by, to the extent practicable, with respect to any such request for a protective order or other relief to preserve the confidentiality of the Confidential Information.\nc. Notwithstanding the foregoing, if the Discloser is unable to obtain or does not seek a protective order and the Recipient is legally requested or required to disclose such Confidential Information, disclosure of such Confidential Information may be made without liability.\n7. Term.\na. This Agreement shall remain in effect for a two-year term (subject to a one year extension if the parties are still discussing and considering the Transaction at the end of the second year) or the term of the contract, whichever is greater.\nb. Notwithstanding the foregoing, the parties' duty to hold in confidence Confidential Information that was disclosed during term shall remain in effect indefinitely.\n8. Remedies.\na. The Parties acknowledge that the Confidential Information is of a unique and valuable character, and that the unauthorized dissemination of the Confidential Information could cause irreparable harm to the Party and the general public.\nb. Therefore, the Parties shall be entitled to injunctive relief preventing the dissemination of any Confidential Information in violation of the terms hereof. Such injunctive relief shall be in addition to any other remedies available hereunder, whether at law or in equity.\nc. The Discloser shall be entitled to recover its costs and fees, including reasonable attorneys' fees, incurred in obtaining any such relief.\nThe Recipient further acknowledges that the unauthorized disclosure of certain information pertaining to \"Critical Assets\" or \"Critical Infrastructure\" may constitute a violation of state and federal law.\n9. Return of JEA Confidential Information.\nThe Recipient shall immediately return and redeliver to the other all tangible material embodying the JEA Confidential Information provided hereunder and all notes, summaries, memoranda, drawings, manuals, records, excerpts or derivative information deriving there from and all other documents or materials (\"Notes\") (and all copies of any of the foregoing, including \"copies\" that have been converted to computerized media in the form of image, data or word processing files either manually or by image capture) based on or including any JEA Confidential Information, in whatever form of storage or retrieval, upon the earlier of -\nI. the completion or termination of the dealings between the parties contemplated hereunder; or\nII. the termination of this Agreement; or\nIII. at such time as JEA may so request; provided however that the Recipient may retain such of its documents as is necessary to enable it to comply with its statutory document retention policies.\nAlternatively, the Recipient, with the written consent of JEA may (or in the case of Notes, at the Recipient's option) immediately destroy any of the foregoing embodying JEA Confidential Information (or the reasonably non-recoverable data erasure of computerized data) and, upon request, certify in writing such destruction by an authorized officer of the Recipient supervising the destruction). JEA reserves the right to require evidence supporting such an activity.\n10. Notice of Breach. The Recipient shall notify the Discloser immediately upon discovery that any Confidential Information has been communicated or distributed to any unauthorized person or entity and will cooperate with efforts by the Discloser to help the Discloser regain possession of Confidential Information and prevent its further unauthorized use.\n11. No Warranty.\nThe Discloser shall have no liability to the Recipient or the Representatives resulting from any use of the Confidential Information. The Discloser shall have sole responsibility for providing the Confidential Information necessary for Recipient to perform its obligations under the parties' Agreements.\n12. Miscellaneous.\na. This Agreement:\ni. is the complete agreement of the parties concerning the subject matter hereof and supersedes any prior such agreements with respect to further disclosures on such subject matter;\nii. may not be amended or in any manner modified except in writing signed by the parties;\niii. shall be governed and construed in accordance with the laws of the State of Florida without regard to its conflict of law provisions; and\niv. shall be binding upon and inure to the benefit of the parties and their respective successors, assigns and designees.\nb. The Federal and state courts located in Duval County, Florida shall have sole and exclusive jurisdiction over any disputes arising under this Agreement. If any provision of this Agreement is found to be unenforceable, the remainder shall be enforced as fully as possible and the unenforceable provision shall be deemed modified to the limited extent required to permit its enforcement in a manner most closely representing the intention of the parties as expressed herein. Any failure by the Discloser to enforce the strict performance of any provision of this Agreement will not constitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement.\nc. Any notices required or permitted to be given hereunder may be delivered by hand, deposited with a nationally recognized overnight carrier, electronic-mail, or mailed by certified mail, return receipt requested, postage prepaid, in each case, to the address of the other party first indicated above. All such notices or communications shall be deemed to have been given and received (a) in the case of personal delivery or electronic-mail, on the date of such delivery, (b) in the case of delivery by a nationally recognized overnight carrier, on the third business day following dispatch and (c) in the case of mailing, on the seventh business day following such mailing.\nIN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first above written.\nJEA Recipient\nBy __________________________ By __________________________\nName: Name:\nTitle: Title:\n",
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"file_name": "01_Bosch-Automotive-Service-Solutions-Mutual-Non-Disclosure-Agreement-7-12-17.pdf",
"text": "MUTUAL NON-DISCLOSURE AGREEMENT\nBetween\nAND\nSubject Matter:\nEffective Date of Agreement: Period , 2017\nfor Exchange of Information: , 2017 to\nPeriod of Confidentiality:\nTHIS AGREEMENT is made as of the Effective Date of Agreement noted above, by and between the above parties.\nBACKGROUND:\nI. The parties desire to have discussions of or relating to the Subject Matter for the purposes of evaluating a possible business relationship between them (\u201cPurpose\u201d). The parties may extend the Subject Matter or add additional parties by executing one or more addenda to this Agreement.\nII. Such discussions may involve disclosure by one party to the other party of confidential, proprietary or trade secret information of its own or its licensors (\u201cConfidential Information\u201d as defined below), during the Period for Exchange of Information.\nIII. Both parties recognize the value of the Confidential Information and that it is in their mutual best interests to maintain the confidential, proprietary and secret nature of the Confidential Information.\nTHEREFORE, in consideration of the Subject Matter, and the mutual promises herein, the parties agree as follows:\n1. CONFIDENTIAL INFORMATION. The term \u201cConfidential Information\u201d as used herein means all nonpublic information relating to the Subject Matter that is disclosed by either party, its Affiliates (as defined below), or their agents (where applicable, collectively referred to as the \u201cDisclosing Party\u201d), directly or indirectly, in writing, orally or by inspection of premises or tangible objects to the other party (the \u201cRecipient\u201d) that is: (i) marked confidential or proprietary, or (ii) given the nature of the information or the circumstances surrounding its disclosure, reasonably should be deemed confidential. Confidential Information includes, but is not limited to documents, drawings, models, apparatus, sketches, designs, schedules, product plans, marketing plans, technical procedures, manufacturing processes, software, prototypes, samples, methodologies, formulations, trade secrets, patent applications, know-how, experimental results, specifications and other business information.\n2. PERIOD OF CONFIDENTIALITY AND NON-USE. The Recipient will use Confidential Information only in connection with the Purpose as set forth in this Agreement. Recipient shall use the same degree of care to avoid disclosure or use of the Confidential Information as it uses for its own confidential, proprietary and trade secret information, but in no case use less than a reasonable degree of care. Recipient agrees to limit disclosure of Confidential Information to employees and employees of Affiliates having a specific need to know such Confidential Information for the Purpose and in the case of Affiliates only to the extent that such Affiliate is under obligation to hold such information in confidence and is made aware of these terms and conditions. Recipient will not disclose or permit access to Confidential Information to contract workers, consultants or contractors of Recipient or its Affiliates unless authorized by Disclosing Party in writing and on condition that such persons are bound by obligations of confidentiality inuring to the benefit of Disclosing Party and its Affiliates at least as restrictive as these terms and conditions. Recipient shall not without Disclosing Party\u2019s prior written consent reverse engineer, disassemble or decompile any prototypes, software or other objects which embody the Disclosing Party\u2019s Confidential Information to obtain access to Disclosing Party\u2019s trade secrets and to the extent such consent is granted Recipient shall receive and hold such Confidential Information subject to the terms of this Agreement.\n3. TERM. The term of this Agreement shall be for the Period of Exchange set forth above. Confidentiality obligations shall survive termination of this Agreement for the Period of Confidentiality set forth above unless the Confidential Information is a trade secret, in which case the confidentiality obligations shall continue for as long as the information is a trade secret. Either party may terminate this Agreement upon 30 days prior written notice.\n4. NOTICE OF UNAUTHORIZED USE. Recipient shall provide written notice to Disclosing Party without undue delay of any misuse or misappropriation of Confidential Information which may come to the attention of Recipient. The Recipient shall cooperate with and aid the Disclosing Party in mitigating and preventing the unauthorized use and disclosure and any furtherance thereof.\n5. EXCLUSIONS AND EXEMPTIONS. Recipient shall have no obligation of confidentiality with respect to any information which:\n5.1. is already known or in the possession of Recipient or its Affiliate at the time of disclosure as shown by the Recipient\u2019s and/or its Affiliates\u00b4 files and records prior to the time of disclosure, otherwise than as a result of any improper act or omission of Recipient or its Affiliate; or\n5.2. is or becomes public knowledge through no wrongful act of Recipient; or\n5.3. is rightfully acquired from others who did not obtain it under obligation of confidentiality; or\n5.4. is independently developed by an employee, agent or consultant of Recipient without reference to the Confidential Information; or\n5.5. is approved for release by written authorization from Disclosing Party.\n5.6. The Recipient is hereby notified that, as set forth in 18 U.S.C. \u00a71833(b), he/she does not have criminal or civil liability under U.S. trade secret law for the following disclosures of a trade secret:\n5.6.1. disclosure in confidence to a federal, state or local government official, either directly or indirectly, or to an attorney, provided the disclosure is for the sole purpose of reporting or investigating a suspected violation of law; and/or\n5.6.2. disclosure in a complaint or other document filed in a lawsuit or other proceeding if such filing is made under seal; and/or\n5.6.3. under those circumstances where Recipient files a lawsuit for retaliation against the Disclosing Party for reporting a suspected violation of law, Recipient may disclose the Disclosing Party\u2019s trade secret information to its attorney and may use the trade secret information in the court proceeding if Recipient files any document containing the trade secret under seal and does not disclose the trade secret, except pursuant to court order.\n6. REPRODUCTION AND RETURN OF CONFIDENTIAL INFORMATION. The Confidential Information provided by the Disclosing Party shall not be copied or reproduced without the Disclosing Party\u2019s prior written permission, except for such copies as may reasonably be required for the purpose as set forth in Section I of this Agreement. Disclosing Party may serve written request on Recipient for return or destruction of its Confidential Information at any time up to six (6) months after the termination or expiry of this Agreement and Recipient shall, within thirty (30) days of such request or termination, return to the Disclosing Party (or its designees) or certify as destroyed all Confidential Information, in whatever form, including written or electronically recorded information and all copies thereof (other than copies retained in automatic back-up and archive systems), provided however that Recipient shall be entitled to retain one copy of the Confidential Information with its legal counsel or other appropriate corporate representative to evidence the exchange of information hereunder and in connection with legal or statutory requirements. All such retained copies shall remain subject to the use and disclosure restrictions in this Agreement.\n7. DISCLOSURES REQUIRED BY LAW. If Recipient is requested, ordered or required by a regulatory agency or any other government authority or a court to disclose any Confidential Information, Recipient shall promptly notify Disclosing Party of such request, order or requirement so that Disclosing Party may have the opportunity to contest the disclosure, including seeking a protective order, or waive Recipient\u2019s compliance with this Agreement. If Recipient is (in the opinion of its counsel) compelled to disclose any Confidential Information, or else be liable for contempt or other penalty or be subject to claims from a third party, Recipient may disclose such Confidential Information without liability under this Agreement.\n8. EXPORT LAWS. Neither party shall export, directly or indirectly, any of the Confidential Information to any country, person or entity which the US Government, at the time of export, requires an export license or other governmental approval without first obtaining such license or approval. The Recipient shall first obtain the written consent of Disclosing Party prior to submitting any request for authority to export such Confidential Information. For the purposes of this Agreement, export occurs when Confidential Information is transferred from one country to another by any means, including but not limited to physical shipments, FTP file transfers, e-mails, faxes, oral transfers or remote server access and an export may also occur when Confidential Information is transferred to or accessed by a person who is neither a citizen nor permanent resident of the country in which such transfer or access is taking place.\n9. OWNERSHIP OF CONFIDENTIAL INFORMATION. Disclosing Party or its licensors, as the case may be, retain all rights in Confidential Information disclosed and all documents, prototypes, software development kits (SDKs) and other similar tangible property embodying, containing or reflecting the same shall remain the property of Disclosing Party.\n10. NO LICENSE. Neither the execution of this Agreement nor the disclosure of any Confidential Information is construed as granting either expressly or by implication, estoppel or otherwise, any license or right to the Confidential Information or any intellectual property rights embodied therein.\n11. NO WARRANTY. All Confidential Information provided under this Agreement is provided \u201cAS IS\u201d and specifically excludes any warranty, whether express or implied, including without limitation, any implied warranty of merchantability, fitness for a particular purpose, or accuracy. The Disclosing Party is not liable under this Agreement for any damages in connection with, related to, or arising out of the use of its Confidential Information.\n12. NO OBLIGATION. This Agreement shall not be construed in any manner to be an obligation to enter into a further substantive contract or to disclose any particular Confidential Information.\n13. INDEPENDENT DEVELOPMENTS. Disclosing Party understands that Recipient may develop or have developed information internally, or receive or have received information from other parties that is similar to the Confidential Information. Accordingly, nothing in this Agreement shall be construed as a representation that Recipient has not or will not independently develop products that compete with the products or systems contemplated by the Confidential Information provided that it does so without breaching the terms of this Agreement.\n14. RELATIONSHIP. Each party hereto shall be considered as an independent contractor responsible for its own expenses and financial obligations incurred in the performance of this Agreement.\n15. NO WAIVER. Neither party waives any rights in invention or development lawfully possessed by it at the time of signing this Agreement. In addition, this Agreement does not imply any waiver of any rights or action under the patent, trademark, copyright, trade secret, unfair competition, fair trade or related laws. Failure to exercise any rights under this Agreement shall not be construed as a waiver of such rights.\n16. INUREMENT. This Agreement shall inure to the benefit of the parties hereto and their respective \u201cAffiliates\u201d (as defined below), successors, assigns and legal representatives. The parties agree that each party and its Affiliates may receive Confidential Information from and/or disclose Confidential Information to the other party and the other party's Affiliates, and that all such Confidential Information shall be governed by this Agreement. Recipient shall be fully responsible to the Disclosing Party for any breach of this Agreement by the Recipient\u2019s Affiliates. \u201cAffiliate\u201d, as used herein, means an entity that directly or indirectly controls, is controlled by or is under common control with a party to this Agreement; and as used in this Section \u201dcontrol\u201d, \u201ccontrols\u201d or \u201dcontrolled\u201d means: (i) fifty-one percent (51%) or more ownership or beneficial interest of income or capital of such entity; (ii) ownership of at least fifty-one percent (51%) of the voting power or voting equity; or (iii) the ability to otherwise direct or share management policies of such entity.\n17. INJUNCTIVE RELIEF. The parties agree that any use of Confidential Information in violation of this Agreement may cause the other party irreparable harm, and may leave it with no adequate remedy at law and shall, thereby, entitle it to seek injunctive relief in any court with competent jurisdiction over the party or party\u2019s Affiliate in violation.\n18. CHOICE OF LAW. This Agreement is governed and construed in accordance with the laws of the State of Michigan, without regard to principles of conflict or choice of laws. The Parties hereby unconditionally and irrevocably agree to submit to the exclusive jurisdiction of the state and federal courts of the State of Michigan.\n19. SURVIVAL. Sections 1, 2, 3, 4, 5, 6, 17, 18, 19 and any sections (or parts thereof) which, by their nature, are intended to survive termination shall survive termination of this Agreement.\n20. SEVERABILITY. 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"text": "Non-Disclosure Agreement\nDate:\nParties: [NAME OF INDIVIDUAL RECEIVING INFORMATION] of [address of individual] and FRODSHAM TOWN COUNCIL whose registered office is at CASTLE PARK HOUSE, CASTLE PARK, FRODSHAM, WA6 6SB (the Discloser)\n1. The Discloser intends to disclose information (the Confidential Information) to the Recipient for the purpose of recommendation of future land use of the decommissioned play area on Ship Street (the Purpose).\n2. The Recipient undertakes not to use the Confidential Information for any purpose except the Purpose, without first obtaining the written agreement of the Discloser.\n3. The Recipient undertakes to keep the Confidential Information secure and not to disclose it to any third party.\n4. The undertakings in clauses 2 and 3 above apply to all of the information disclosed by the Discloser to the Recipient, regardless of the way or form in which it is disclosed or recorded but they do not apply to:\na) any information which is or in future comes into the public domain (unless as a result of the breach of this Agreement); or\nb) any information which is already known to the Recipient and which was not subject to any obligation of confidence before it was disclosed to the Recipient by the Discloser.\n5. Nothing in this Agreement will prevent the Recipient from making any disclosure of the Confidential Information required by law or by any competent authority.\n6. The Recipient will, on request from the Discloser, return all copies and records of the Confidential Information to the Discloser and will not retain any copies or records of the Confidential Information.\n7. Neither this Agreement nor the supply of any information grants the Recipient any licence, interest or right in respect of any intellectual property rights of the Discloser except the right to copy the Confidential Information solely for the Purpose.\n8. The undertakings in clauses 2 and 3 will continue in force indefinitely.\n9. This Agreement is governed by, and is to be construed in accordance with, English law. The English Courts will have non-exclusive jurisdiction to deal with any dispute which has arisen or may arise out of, or in connection with, this Agreement.\nSigned and Delivered as a Deed by:\n[name of Recipient] in the presence of:\n_____________________________\nSignature\n_____________________________\nSignature of witness\n_____________________________\nName of witness\n",
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"text": "Confidentiality Agreement\nThis Confidentiality Agreement (the \u201cAgreement\u201d) has been prepared on behalf of bpost SA/NV, a limited liability company of public law, and the City of Brussels (the \u201cSellers\u201d) with regard to the divestment of their respective surface areas (the \u201cSale\u201d) in the Munt Center/Centre Monnaie (the \u201cMunt\u201d).\nIn consideration of the Sellers agreeing to disclose confidential information (the \u201cConfidential Information\u201d) to the Candidate (\u201cDisclosee\u201d), the latter hereby undertakes to the Sellers that as Disclosee, they will keep confidential all and any Confidential Information received at any time. The Disclosee will procure that prior to the disclosure to any other person (including any professional advisor) of any Confidential Information, such other person is made aware of the provisions of this Agreement and the fact that the Disclosee will be liable.\nThe Disclosee acknowledges that the Confidential Information, in as far as it relates to bpost SA/NV, could be price sensitive information and ensures compliance with the relevant legal and other provisions in this respect (including, without being limited to, the provisions of the Belgian Law of 2 August 2002 on the supervision of the financial sector and on the financial services in relation to insider dealing and market manipulation). Confidential Information shall mean the following:\na) all such information, of any kind whatsoever (whether in oral, written or electronic form, and including, but not limited to, technical, commercial, financial, accounting, legal and administrative information) pertaining to the Sale of the Munt and the Sellers as may be provided to the Disclosee and their responsible managers, officers, employees, shareholders, members of the Board of Directors and advisors (including financial, legal and tax advisors and auditors) (\u201cRepresentatives\u201d), by the Sellers, their advisors or their representatives;\nb) all such analyses, compilations, forecasts, notes, memoranda and other documents as the Sellers or Deloitte Real Estate* and Laga** (the \u201cAdvisors\u201d) may have prepared or caused to be prepared and which may contain, refer to or simply result from, the information mentioned in point (a) above;\nc) the fact that the Disclosee (or any of their Representatives) are or have been involved in the analysis of, in meetings or negotiations related to the Sale, the contents, time and status of such negotiations, and generally any fact concerning the Sale.\nConfidential Information shall exclude:\na) information which had become available to the public prior to the date of disclosure thereof to the Disclosee or their Representatives, or that became available to the public after such date other than as a result of a breach of this Agreement by the Disclosee or their Representatives;\nb) information which was lawfully in the Disclosee\u2019s possession or in the possession of one or more of their Representatives prior to disclosure under this Agreement, in each case on a non-confidential basis, which, to their knowledge was free of any restriction as to its use or disclosure.\nThe Disclosee acknowledges that they may not approach the representatives of the Sellers and cannot contact anybody else other than the contact persons from the Advisors.\nThe Disclosee further undertakes and acknowledges, that neither the representatives of the Sellers nor their Advisors give any warranty or make any representation as to the accuracy or completeness of any of the Confidential Information or as to the reasonableness of any assumptions on which the information is based. The Disclosee agrees that the Sellers or Advisors shall not have any liability to the Disclosee or to any of their directors, employees, advisors or agents resulting from the use of Confidential Information.\nThis Agreement shall in no way constitute a commitment by any person to supply any Confidential Information or enter into any contract in connection with the Sellers. The obligations of the Disclosee under this Agreement shall expire the earlier of (a) three years after the date of this Agreement, or (b) the date the Sale between the Candidate and the Sellers is completed. The obligations of confidentiality and non-disclosure under this Agreement shall become effective as of the date of signing.\nIn the event that the Disclosee or any of its Representatives becomes legally compelled to disclose any of the Confidential Information to a regulatory authority or to any other entity or third party, the Disclosee shall immediately notify the Sellers before disclosing such Confidential Information, so that the Sellers may seek a protective order or other appropriate remedy, without prejudice to the Disclosee\u2019s remedies under this Agreement.\nIt is further understood and agreed that, without prejudice to any other rights or remedies which either party may have, any breach of these undertakings could cause the Sellers and/or its shareholders irreparable injury. In the event of an actual or threatened breach by the Disclosee and/or its Representatives of any provisions of this Agreement, the Sellers shall be entitled (i) to seek injunctive relief in any court of competent jurisdiction restraining the Disclosee and/or its Representatives from breaching the terms hereof or from disclosing any Confidential Information to any person and (ii) specific performance and other equitable relief.\nThis Agreement shall be governed by and construed in accordance with Belgian law and the Parties irrevocably agree to submit themselves to the exclusive jurisdiction of the Courts of Brussels. In accordance with the procedure defined in the candidacy file, we would be grateful if you could confirm your understanding and acceptance of the foregoing by returning to us a signed copy of the present document\nYours sincerely,\n_______________ _______________\nFr\u00e9d\u00e9ric Sohet Koen Van Gerven\nPartner CEO\nDeloitte Real Estate | Financial Advisory* bpost SA/NV\nThe Candidate / Disclosee\nName . . . . . . . . . . . . . . . . . . . . . . . . . . . .\nCompany . . . . . . . . . . . . . . . . . . . . . . . . . . . .\nTitle . . . . . . . . . . . . . . . . . . . . . . . . . . . .\nDate . . . . . . . . . . . . . . . . . . . . . . . . . . . .\nSignature\n*A department of Deloitte Consulting & Advisory CVBA\nCo\u00f6peratieve vennootschap met beperkte aansprakelijkheid/Soci\u00e9t\u00e9 coop\u00e9rative \u00e0 responsabilit\u00e9 limit\u00e9e\nRegistered Office: Gateway building, Luchthaven Nationaal 1 J, 1930 Zaventem\nVAT BE 0474.429.572 - RPR Brussel/RPM Bruxelles - IBAN BE 38 4377 5059 9172 - BIC KREDBEBB\nMember of Deloitte Touche Tohmatsu Limited\n\u00a9 2018.\n**Laga is a civil limited liability cooperative company.\nRegistered Office: Gateway building, Luchthaven Nationaal 1 J, 1930 Zaventem\n0471.858.874 - Brussels Trade Register - ING 310-1381442-54\nThe list of Laga partners can be obtained upon request or from the Laga website.\n",
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"text": "MUTUAL NON-DISCLOSURE/CONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT effective the day of , 2013.\nBETWEEN:\nHER MAJESTY THE QUEEN in right of the Province of Nova Scotia, as represented by the Minister of Finance\nOF THE FIRST PART\n-and-\nHALIFAX REGIONAL MUNICIPALITY, as represented by the Chief\nAdministrative Officer\nOF THE SECOND PART\nWHEREAS the Province of Nova Scotia (the \u201cProvince\u201d) and Halifax Regional Municipality (the \u201cHRM\u201d) hereinafter referred to as the \u201cReceiving or Disclosing Party\u201d or \u201cParties\u201d, may be facilitating the potential transaction of business related to the provision of SAP Services by the Province to the HRM where each Party may disclose certain confidential information to each other.\nAND WHEREAS each Party wishes to ensure that the other treats this information in the strictest confidence.\nNOW THEREFORE in consideration of the promises and mutual covenants contained herein, and other good and valuable consideration, the receipt of which is hereby acknowledged, the Parties agree as follows:\n1. The confidential, proprietary and trade secret information of the Disclosing Party (hereinafter \"Confidential Information\") provided hereunder is any and all information, in whatever form (including electronic data) that will be disclosed to facilitate the potential transaction of business (related to the provision of SAP Services to HRM) between the Parties, including, but not limited to, portions or parts of the November 1, 2012 Agreement (including any schedules or appendices) between the Province of Nova Scotia and IBM, each Party's disclosure of intellectual property, techniques, sketches, drawings, models, inventions, know-how, processes, apparatus, equipment, algorithms, software programs, software source documents, and formulae related to the current, future and proposed products, documents and services, research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, licensing, sales or service customer lists, business forecasts, sales and merchandizing, and marketing plans and information. For purposes of this Agreement confidential, proprietary and trade secret information of the Province\u2019s SAP Service Provider or any other Province\u2019s Service Provider, any parent company, subsidiary or affiliate of the Disclosing party shall be considered Confidential Information of the Disclosing Party for purposes of this Agreement.\n2. The term Confidential Information shall not include information, which is:\n(a) in the public domain other than by a breach of this Agreement by the Receiving Party; or\n(b) rightfully received from a third party with no duty of confidentiality; or\n(c) rightfully known to the Receiving Party without any limitation on use or disclosure prior to its receipt from the Disclosing Party; or\n(d) independently developed by employees, agents or consultants of the Receiving Party; or\n(e) generally made available to third parties by the Disclosing Party without restriction on disclosure.\n3. The Receiving Party agrees that Confidential Information shall be used only for the purposes of facilitating the business relationship between the Parties. Additionally, subject to section 4 below, the Receiving Party shall not disclose Confidential Information to any third party without the prior written approval of the Disclosing Party. The Receiving Party shall maintain the Confidential Information with at least the same degree of care that the Receiving Party uses to protect its own similar categories of confidential and proprietary information, but no less than a reasonable degree of care under the circumstances. The Receiving Party shall not make any copies of Confidential Information except as necessary to perform hereunder. Each Party shall be responsible for any breach of this Agreement by such Party, its employees, agents, officials, representatives or consultants acting within the scope of their engagement or employment.\n4. The HRM acknowledges and agrees that the Province may disclose the Confidential Information received from the HRM to its external or internal auditors, as well as the Province\u2019s SAP Service Provider or Province\u2019s other service providers for the purpose of provision or extension of the SAP Services to HRM.\n5. The Receiving Party will adhere to all Canadian export laws, rules and regulations, and will not export or re-export any technical data or products received from the Disclosing Party, nor will the receiving party export or re-export the associated products of such technical data, to any restricted country and/or to any company, individual or government entity listed in the Table of Denial Orders published from time to time by the Canadian Government (called denied persons).\n6. This Agreement will be effective as of the date of this Agreement, but will apply to any Confidential Information disclosed to the Receiving Party from the Disclosing Party prior to such date and will continue in perpetuity.\n7. Each Party agrees that the harm resulting from improper disclosure of Confidential Information may be irreparable; therefore, the Disclosing Party shall be entitled to seek injunctive and other equitable relief to prevent or restrain breaches of any of the provisions of this Agreement by the Receiving Party or any of its employees, agents, officials, representatives or consultants, or to enforce the terms and provisions hereof, by an action instituted in a court of competent jurisdiction, which remedy or remedies are in addition to and not in substitution for any other remedy to which the Disclosing Party may be entitled at law or in equity.\n8. Title to, interest in, and all other rights of ownership to Confidential Information shall remain with the Disclosing Party. The information provided hereunder, including Confidential Information, is provided strictly \"as is\" and without representation and warranty of any kind as to its accuracy, completeness, freedom from error, value, merchantability, fitness for a particular purpose or non-infringement.\n9. This Agreement will terminate on the date and time the Agreement between the Parties over the provision of SAP Services is terminated. In the event this Agreement is terminated, and the Disclosing Party so requests, the Receiving Party shall promptly return or destroy (and certify destruction of) all Confidential Information which it received from the Disclosing Party along with all copies. The obligations of the Receiving Party under this Agreement shall survive the termination of this Agreement or the return of the Confidential Information to the Disclosing Party.\n10. The Parties acknowledge and understand that all documentation and information, including Confidential Information, provided to the Province of Nova Scotia or HRM, as the case may be, pursuant to this Agreement shall be kept confidential, subject to the provisions of the Freedom of Information and Protection of Privacy Act, Province of Nova Scotia, and such other laws of the Province of Nova Scotia and Canada which may apply from time to time.\n11. This Agreement shall not be construed as creating a joint venture, partnership or other form of business association between the Parties, nor an obligation to buy or sell products using or incorporating the Confidential Information, nor to create an implied or express license from either Party to the other.\n12. The failure of either Party to enforce any right resulting from breach of any provision of this Agreement by the other Party shall not be deemed a waiver of any right relating to a subsequent breach of such provision or of any other right hereunder.\n13. This Agreement shall be governed by, and construed in accordance with the laws of the Province of Nova Scotia and the laws of Canada applicable therein.\n14. This Agreement constitutes the entire agreement, written or verbal, between the parties with respect to the terms set forth herein. This Agreement may not be amended except in writing signed by a duly authorized representative of the respective parties.\n15. Time shall be of the essence in this Agreement.\nIN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed by its duly authorized officers as of the day and year first above written.\nSIGNED, SEALED AND DELIVERED in the presence of:\n________________________________\nWitness\n________________________________\nWitness\nHER MAJESTY THE QUEEN in right of the Province of Nova Scotia as represented by the Minister of Finance\nPer: ____________________________________\nHALIFAX REGIONAL MUNICIPALITY as represented by the Chief Administrative Officer\nPer: ____________________________________\n",
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"file_name": "1588052992CCTV%20Non%20Disclosure%20Agreement.pdf",
"text": "Non-Disclosure Agreement\nThis Agreement is entered into this \u2026\u2026..(Date) day of \u2026\u2026\u2026\u2026.(Month), .......... (Year) between (Name of the Mission) (hereinafter called as \"Discloser\") and (Name of the Company with Address) (hereinafter called as \"Recipient\"), collectively \"Party\" or \"Parties\".\nWHEREAS the Discloser possesses certain information relating to the security set-up, security architecture, lay-out, security processes and procedures, designs, drawings, software and hardware configuration, computer programs, algorithms, services, customers etc that is confidential and proprietary in nature (hereinafter called as \"Confidential Information\"); and\nWHEREAS the Recipient is bound to get to know about the Confidential Information in pursuant to the terms of the Agreement for the purpose of supply, installation, testing and commissioning of a CCTV System (hereinafter called as \"Purpose\") in the (hereinafter called as \"Premises\");\nNOW THEREFORE, in consideration for the mutual undertakings of the Discloser and the Recipient under this Agreement, the Parties agree as follows:\n1. Disclosure: Recipient agrees not to disclose and the Discloser agrees to let the Recipient have the access to the Confidential Information as identified and reduced in writing or provided verbally or in any other way not reduced in writing at the time of such disclosure of the information.\n2. Confidentiality:\n2.1 No Use: Recipient agrees not to use the Confidential Information in any way or under any circumstances share the same, in writing or through any other means, with any Third Party.\n2.2 No Unauthorized Disclosure: Recipient agrees to use its best efforts to prevent and protect the Confidential Information, or any part thereof, from disclosure to any person(s) or entity (ies), even if authorized or directed under any law, without the express permission of the Discloser. Discloser, notwithstanding, shall have the right to deny such disclosure of the Confidential Information being detrimental to the security interests of the Discloser and/or its\n2.3 Protection of Secrecy: Recipient agrees to take all steps necessary to protect the secrecy of the Confidential Information, and to prevent the Confidential Information from failing into the public domain or into the possession of unauthorized person(s) and/or entity(ies).\n2.4 Recipient agrees that the layout plan of the structural design of the Premises, whether in in physical or electronic form, shall always be in the custody of the Discloser. However, the Recipient shall have the access to the layout plan for the purpose of carrying out the contract for installation of CCTV System.\n3. Notices: All notices hereunder shall be given by letter, addressed as follows:\n4. Term and Termination. The term of this Agreement shall commence on the [Name of the Mission/Post] [Name of the Company]\n[Address] [Address]\nAttention [Insert Name] Attention:[Insert Name]\nTitle:[Insert Designation] E- Title: [Insert Designation] E-\nmail:[Insert E-mail] mail:[Insert E-mail]\nTelephone:[Insert Number] Telephone: [Insert\nFax:[Insert Number] Number] Fax: [Insert Number]\nEffective Date i.e. the date of signing the Agreement for the Purpose and continue for such a period until and unless the Discloser terminates the Agreement or the Premises is relocated or vacated or abandoned, whichever is earlier.\n5. Breach. The Recipient acknowledges that disclosure or use of Confidential Information in violation of this Agreement could cause irreparable harm to Discloser including loss of lives and limbs of the persons and damage to the property, for which monetary damages may be difficult to ascertain or turn to be meaningless. The Recipient therefore agrees that Discloser will have the right, in addition to its other rights and remedies, to seek injunctive relief for violations of this Agreement.\n6. In case the Discloser suspects any violation of this Agreement, upon reasonable notice, it shall be binding for the Recipient to allow the Discloser to carry out an Audit by itself or by an authorized representative. In such a situation, the Recipient shall cooperate with the Discloser. The onus to rebut the suspicion shall lie on the Recipient\n7. Any dispute or difference arising out of or in connection with this Non- Discloser Agreement shall be setteled amicably by the Parties through mutual negotiations. Any unsettled dispute or difference shall be referred to Arbitration by a Sole Arbitrator. The Arbitration shall be conducted in accordance with the rules and procedure of UNCITRAL in force on the date of Agreement. Arbitration proceedings shall be held in India and will be conducted in English. The decision of Arbitral Tribunal shall be final and binding on all Parties. Cost of Arbitrtaion shall be borne by Parties themselves unless and otherwise ordered by the Tribunal.\n8. This Agreement shall be governed by and construed in accordance with the laws in force in India.\n9. Miscellaneous.\na) Except in the event of an amalgamation or merger with or takeover by a third party of their business, neither Party may assign or transfer its rights or obligations in this Agreement without the prior written consent of the other.\nb) The Parties do not intend that any agency or partnership relationship be created by them by this Agreement.\nc) All additions or modifications to this Agreement must be made in writing and signed by an authorized representative of each Party.\nACCEPTED AND AGREED\n[Name of the Mission/Post] [Name of the Company]\n[Address] [Address]\nAttention: [Insert Name]\nAttention: [Insert Name]\nTitle: [Insert Designation]\nTitle: [Insert Designation]\nE-mail:[Insert E-mail]\nE-mail:[Insert E-mail]\nTelephone:[Insert Number]\nTelephone:[Insert Number]\nFax: [Insert Number]\n",
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"text": "NON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (\u201cAgreement\u201d) made this ___________day of _________________, ________________ (\u201cEffective Date\u201d), by and between VIDAR Systems Corporation, a Virginia corporation, with offices in Herndon, Virginia (\u201cVIDAR\u201d), and _________________________________, a _____________________ [corporation/limited liability company/individual], whose address is ______________________________________________________ (\u201cReceiver\u201d).\nWHEREAS, in the course of its activities with VIDAR, Receiver will receive confidential information about VIDAR, including but not limited to VIDAR\u2019s products (hardware, software and firmware) and its design, engineering, research, development, software, marketing, manufacturing processes, pricing and business plans. Receiver has agreed to receive such information on a confidential basis and to disclose it only as provided for in this Agreement.\nNOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, and of other good and valid consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:\n1. Confidential Information. The term \u201cConfidential Information\u201d means any and all tangible and intangible information disclosed to Receiver in oral, written, graphic, recorded, photographic, any machine-readable or in any other medium or form relating to the intellectual property, management, operations, products, inventions, suppliers, customers, financials of VIDAR or any present or contemplated project, contract or relationship between VIDAR and Receiver, including without limitation, any and all plans, Intellectual Property (defined below), know-how, computer programs, software (source and object code), algorithms, computer processing systems, techniques, methodologies, formulae, compilations of information, designs, drawings, schematics, analyses, evaluations, formulations, ingredients, samples, processes, machines, prototypes, mock-ups, product performance data, proposals, job notes, reports, records, specifications, manuals, supplier and customer lists and information, licenses, the prices it obtains or has obtained for the licensing of its software products and services, purchase and sales records, marketing information or any other information concerning the business and goodwill of VIDAR and any information which is identified as being of a confidential or proprietary nature or should be considered confidential under the circumstances.\n2. Receiver\u2019s Obligations. Receiver shall: (i) hold the Confidential Information in strict confidence; (ii) use the Confidential Information only for the purposes as expressly directed by VIDAR; and (iii) provide such information only to those of its personnel who: (y) have a need to know the same to further VIDAR\u2019s interests; and (z) become a party to and bound by a confidentiality agreement at least as restrictive as this Agreement prior to receiving any such information. Receiver will not disclose Confidential Information to any party who do not meet the preceding requirements. Receiver shall use the same degree of care to protect and safeguard the confidentiality of Confidential Information as it uses to protect and safeguard the confidentiality of its own proprietary information, and Receiver represents, warrants and covenants to VIDAR that such degree of care is reasonably designed to protect the confidentiality of the Confidential Information.\n3. Additional Disclosures. Receiver may disclose Confidential Information if the same:\n(a) was generally available at the time it was disclosed other than as a result of a disclosure made by Receiver;\n(b) was known to the Receiver at the time it received such information, as evidenced by contemporaneous documentation in Receiver\u2019s files;\n(c) is disclosed with the prior written approval of VIDAR;\n(d) becomes known to Receiver on a non-confidential basis from a source other than VIDAR without breach of this Agreement by Receiver;\n(e) is disclosed to a third party by VIDAR without restrictions against non-disclosure similar to those contained in this Agreement;\n(f) is disclosed pursuant to the order or requirement of a court; administrative agency, or other government body, provided Receiver takes all reasonable steps to keep the Confidential Information from becoming part of public records; or\n(g) is hereafter independently developed by Receiver without the aid, application or use of any Confidential Information;\nprovided for each that: (i) Receiver promptly notifies VIDAR of such action; and (ii) in any action to enforce or remedy a breach of this Agreement, Receiver shall have the burden of establishing the applicability of the subsection on which it relies.\n4. Additional Receivers. An employee, director, officer, manager, member, partner, affiliate, associate, agent, attorney, accountant, consultant, banker, business adviser, financial adviser, scientific adviser or technical adviser of Receiver may become a party to this Agreement by signing a counterpart hereof, a copy of which shall be provided to VIDAR within five days of signature.\n5. Intellectual Property\n(a) Nothing in this Agreement shall be construed as granting or conferring any rights, interests or intellectual property rights by assignment, license or otherwise, relating to any Confidential Information in or for any intellectual property, invention, discovery or improvement or derivative made, conceived or acquired prior or subsequent to the Effective Date. Except for the limited right to use the Confidential Information as set forth above, all intellectual property, patent, copyright, trademark, trade secret and all other rights and interests in the Confidential Information and the products, inventions, ideas, works, creation, symbols, data, reports, opinions and all other concepts and materials developed, invented, reduced to practice, authored or created by Receiver (including portions and derivatives thereof) in any medium arising from or relating to this Agreement (\u201cIntellectual Property\u201d) shall be the sole and exclusive property of VIDAR.\n(b) All Intellectual Property that are original works of authorship shall be considered works made for hire (as that phrase is used in Section 101 of the United States Copyright Act, 17 U.S.C. \u00a7 101 or analogous law). If any Intellectual Property is found not to be a work made for hire and/or is owned by Receiver or any third party, Receiver hereby irrevocably (and shall cause any third party owner to) assigns and transfers all rights to and interests in such Intellectual Property to VIDAR without further consideration.\n(c) Receiver shall promptly disclose all Intellectual Property to VIDAR and shall make and maintain adequate and current written records of all Intellectual Property. Receiver agrees to take all actions, execute all instruments and fully cooperate with VIDAR, its successors, assigns or nominees in which, in the opinion of VIDAR, are expedient or necessary at any time to file, prosecute, register, evidence, secure, maintain or litigate all such VIDAR rights and interests in the Intellectual Property throughout the world, including all commercial, legal or administrative proceedings involving the same. All expenses of applying for and obtaining such rights and interests shall be borne by VIDAR. VIDAR shall reimburse Receiver for pre-approved expenses paid in connection with such cooperation.\n6. Return of Confidential Information. Upon the request of VIDAR or the termination or expiration of this Confidential Agreement, Receiver shall promptly return to VIDAR all copies of the Confidential Information and obtained by Receiver.\n7. Disclaimer. Receiver acknowledges that the Confidential Information may relate to processes or products that are developmental and may or may not have been reduced to practical application in prototype form. Accordingly, Receiver understands that neither VIDAR has made or makes any representation or warranty as to the accuracy, completeness or value of the Confidential Information. RECEIVER AGREES THAT NEITHER VIDAR NOR ANY OF ITS REPRESENTATIVES SHALL HAVE ANY LIABILITY TO RECEIVER OR ANY OF ITS REPRESENTATIVES RESULTING FROM RECEIVER\u2019S ACCESS TO OR USE OF THE CONFIDENTIAL INFORMATION.\n8. Injunction. Receiver acknowledges and agrees that: (i) the Confidential Information is proprietary to and valuable information of VIDAR; (ii) VIDAR derives economic value from the Confidential Information not being generally known to other persons who can obtain economic value from its disclosure or use; (iii) any disclosure or unauthorized use of the Confidential Information could cause irreparable harm and loss to VIDAR; and (iv) if this Agreement is breached, VIDAR can not be made whole by monetary damages. Accordingly, VIDAR, in addition to any other remedy to which it may be entitled by law or in equity, shall be entitled to an injunction to prevent further breaches of this Agreement and to an order compelling specific performance of this Agreement. Receiver shall reimburse VIDAR for all costs and expenses, including attorney\u2019s fees, incurred by VIDAR in enforcing the obligations of Receiver.\n9. General. This Agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Virginia and all actions involving this Agreement shall be brought in the state or federal courts located in the Commonwealth of Virginia, to which the parties consent to jurisdiction. This Agreement shall be binding upon and inure to the benefit of the parties, their legal representatives, successors and assigns. Except as otherwise expressly provided herein, neither this Agreement, nor any rights granted hereunder may be assigned, transferred, conveyed or encumbered, whether voluntarily or by operation of law, by Receiver without the prior written consent of VIDAR (which may be granted or withheld in VIDAR\u2019s sole and absolute judgment), and any attempt to do so will be deemed null and void. This Agreement becomes effective on the Effective Date and continues in effect thereafter for so long as any Confidential Information continues to exist. VIDAR may terminate this Agreement at any time for any reason. Any provision of this Agreement which is prohibited, unenforceable or not authorized in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition, unenforceability or non-authorization without invalidating the remaining provisions hereof or affecting the validity, enforceability or legality of such provision in any other jurisdiction. This Agreement contains the entire understanding and agreement of the parties hereto with respect to the subject matter contained herein, supersedes all prior oral or written understandings and agreements relating thereto, except as expressly otherwise provided, and may not be altered, modified or waived in whole or in part, except in writing, signed by duly authorized representatives of the parties hereto. The failure of either party to insist upon the performance of any of the terms, covenants, conditions or provisions of this Agreement shall not be considered a waiver or relinquishment of future compliance therewith; nor shall a waiver by either party of any breach or any term, covenant, condition, agreement or provision, operate as a waiver of any other term, covenant condition, agreement or provision. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same instrument.\nIN WITNESS WHEREOF, this Agreement has been executed by the following duly authorized representatives of the parties:\nVIDAR SYSTEMS CORPORATION RECEIVER\nBy: _____________________________ By: _____________________________\n Signature Signature\nPrint: _____________________________ Print: _____________________________\nTitle: _____________________________ Title: _____________________________\nDate: _____________________________ Date: _____________________________\n",
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"text": "Suite 25 Northwich Business Centre\nMeadow Street\nNorthwich\nCheshire CW9 5BF\nTel: 0845 466 4648\nFax: 01606 810 567\nEmail: details@business-partnership.com\nwww.business-partnership.com\nYOUR DETAILS (PLEASE USE CAPITALS)\nTitle \u2026\u2026\u2026. First Name \u2026\u2026\u2026..\u2026..\u2026\u2026\u2026\u2026\u2026\u2026\u2026.\u2026.. Last Name \u2026\u2026.\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.\u2026\u2026\u2026\u2026.\u2026.....\nAddress\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026..\u2026\u2026.\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026...\u2026\u2026.\u2026\u2026\u2026\u2026\u2026\u2026\u2026....\u2026\u2026\u2026..\n\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026..........................\nPost Code \u2026\u2026\u2026\u2026\u2026.\u2026\u2026\u2026. Email \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026....\u2026.\nTel \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.\u2026\u2026\u2026\u2026\u2026 Mobile \u2026\u2026\u2026\u2026.\u2026\u2026\u2026\u2026\u2026\u2026\u2026.\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026..\nCompany Name \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026..\u2026\u2026\u2026\u2026.\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026..................\nCompany Reg. No. \u2026\u2026\u2026\u2026...\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026...\nBusinesses or area of interest \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026..\nNON-DISCLOSURE AGREEMENT\nI fully understand and agree that all information relating to any client of The Business Partnership and supplied to me will be kept strictly confidential. I acknowledge that The Business Partnership has provided, and/or has agreed to provide in the future, to me information of a confidential or proprietary nature (the Confidential Information) Confidential Information shall mean any information or data relating to any clients of The Business Partnership business or affairs disclosed whether in writing, orally or by any other means. I agree that in respect of the Confidential Information received from The Business Partnership I will:\nTreat it as confidential and make no copies thereof not disclose it to any third party without the prior written consent of The Business Partnership and use it solely for the purpose as agreed between parties\nI further acknowledge that all documents and other material things embodying any of the Confidential Information which is received under this agreement shall remain the property of the supplying party (or other owner thereof) and I shall hold them as bailee for the supplying party, exercising reasonable care to keep them safe from access by unauthorised persons, and shall return them to the supplying party within one week of a written request from the supplying party.\nI will not attempt to contact the employees, customers, creditors, suppliers or landlords of any client of The Business Partnership at any time. I will not use the confidential information to seek to obtain any commercial advantage over any client of The Business Partnership.\nI acknowledge that this Agreement shall remain in force in perpetuity. The laws of England and Wales shall govern this Agreement. I confirm that I have funds or access to funds to enter negotiations for the business for which I have expressed an interest I confirm that no contact will be made with the vendor\nor company direct.\nTERMS AND CONDITIONS\nThe Sales Particulars you will receive, and any subsequent commercial information relating to this business, are supplied on the strict understanding that it should be kept confidential and must not be copied or supplied to a third party without the consent of The Business Partnership (TBP).\nAll recipients the Sales Particulars and any other details irrevocably agree:-\n1. To treat all information contained herein, and as may subsequently be supplied, with complete confidentiality.\n2. To make no approach directly to the Owner or the Business and or Property either personally, by telephone, or in writing without the consent of TBP.\n3. To visit the Owner and/or the Business or Property only and strictly by prior appointment to be made and confirmed through the Office of TBP.\n4. To make no approach to the Staff of the business or discuss the proposed sale with any staff member without the consent of the Owners.\n5. To request and obtain any and all information required, including any financial information, solely through the Offices of TBP.\n6. To submit any offer for the purchase of the Business and/or property directly through the Agents TBP and not directly to the Owner.\nOnce TBPs NDA and Terms and Conditions have been signed, further negotiations are subject to you agreeing:-\n1. That in the event of agreeing to purchase the Business and/or Property will pay to TBP a deposit as a sign of good faith amounting to 5% of the purchase price but subject to a minimum of \u00a35,000. This deposit will be held by TBP in a Non-Interest Earning Client Account, and will be applied to the purchase price at the time of completion. This deposit will be paid \"Subject to Contract\" and will be refundable (subject to clauses 2 and 3 below).\n2. In the event that you withdraw from the purchase without good reason and where such reason is not connected to the purchase of the business, then the deposit will be used to cover our Clients reasonable legal costs (up to a maximum of \u00a32,500), such costs being subject to VAT, up to the point of withdrawal.\n3. That if you withdraw for any reason once Heads of Terms or Memorandum of Sale has been prepared and issued you will be charged an Agents Fee of \u00a3695.00 plus VAT. The balance of the deposit shall be returned to you forthwith. Should the sale of the business be withdrawn by the Vendor for any reason, the deposit monies will be returned to you in full.\n4. That upon an offer being accepted on a Leasehold proposition you will agree to supply to TBP the names and addresses of appropriate referees including Bankers to whom TBP can apply for a reference in order to seek the Landlords consent for an assignment of the current Lease or issue of a new Lease.\nAny information provided herein are for the general guidance of intended purchasers and tenants and do not form any part of an offer or contract. All descriptions and any other details are given without responsibility on the part of TBP or their vendor client and any intending purchasers should not rely on them as statements or representations of fact. All intending purchasers or tenants should satisfy themselves to the correctness of all any statements contained herein prior to making an offer by inspection or otherwise. Neither TBP nor their employees make or give any warranty whatsoever in relation to the business and or the property described herein.\nSIGNED\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026. PRINT NAME\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026..\nPOSITION\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.. (Companies Only) DATE\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\n",
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"text": "NON-DISCLOSURE AGREEMENT\nThis Agreement is effective the [ ] day of [ ] 2019 (the \u201cEffective Date\u201d) between:\n(1) NSK Europe Limited, registered number 2223191 whose registered office is at Belmont Place, Belmont Road, Maidenhead, Berkshire SL6 6TB, UK, (\u201cNSK\u201d)\nand\n(2) [Supplier name], registered number [company reg. no. ] whose registered office is at [insert address] (\u201c[Insert name]\u201d) each party referred to as a \u201cParty\u201d and the parties jointly referred to as the \u201cParties\u201d.\nBACKGROUND\nA. The Parties intend to enter into discussions relating to the Purpose which will involve the exchange of Confidential Information between them.\nB. The Parties have agreed to comply with this Agreement in connection with the disclosure and use of Confidential Information.\nTHE PARTIES AGREE AS FOLLOWS:\n1. DEFINITIONS\nAffiliate: shall mean any other corporation or other form of business entity, which, directly or indirectly, controls, is controlled by, or is under common control with, a Party at any time during the term of this Agreement. For purposes of this definition, the term \u201ccontrol\u201d means direct or indirect beneficial ownership of more than 50% of the voting share or interest of the entity;\nConfidential Information: has the meaning given in clause 2 of this Agreement;\nDisclosing Party: a Party to this Agreement which discloses its Confidential Information to the other Party;\nPurpose: [[INSERT DETAILS e.g. to establish a business relationship in respect to the supply of [named service provision or goods] from X, etc]];\nReceiving Party: a Party to this Agreement which receives the Confidential Information from the other Party;\nRepresentatives: any employees, officers, directors, professional advisors or consultants in relation to each Party and any of its Affiliates, who are actively and directly engaged in the Purpose;\nTerm: has the meaning given in clause 10.1 of this Agreement.\n2. CONFIDENTIAL INFORMATION\n2.1. Confidential Information means all confidential information relating to the Purpose which the Disclosing Party or any of its Affiliates, discloses or makes available, to the Receiving Party or any of its Affiliates, before, on or after the Effective Date. This includes:\na) the fact that discussions and negotiations are taking place concerning the Purpose and the status of those discussions and negotiations;\nb) the terms of this Agreement;\nc) all confidential or proprietary information relating to: the business, affairs, customers, clients, suppliers, plans, business opportunities, finances, pricing, operations, processes, product information, techniques, know-how, technical information, design, trade secrets and findings or analysis derived from Confidential Information, whether in tangible or intangible form.\n2.2. Confidential Information does not include information which:\na) which is or subsequently becomes public knowledge or publicly available through no fault of the Receiving Party; or\nb) which is known by the Receiving Party prior to the time of receipt, as evidenced by its written records; or\nc) which is lawfully obtained by the Receiving Party from a third party and is not subject to a similar restriction on disclosure;\nd) which is independently developed by Receiving Party; or\ne) the Parties agree in writing is not confidential.\n3. CONFIDENTIALITY OBLIGATIONS\n3.1. In consideration of the Disclosing Party disclosing Confidential Information to the Receiving Party, the Receiving Party undertakes that it shall:\na) keep the Confidential Information secret and confidential, using at least the same degree of care as its uses to protect its own confidential information but no less than a reasonable degree of care;\nb) not use or exploit the Confidential Information in any way except for the Purpose;\nc) not disclose or make available any Confidential Information in whole or in part to any person except as expressly permitted by and in accordance with this Agreement; and\nd) to establish and maintain adequate security measures to safeguard the Confidential Information from unauthorized access or use.\n4. EXCEPTIONS\n4.1. Notwithstanding clause 3.1 of this Agreement, the Receiving Party may disclose the Confidential Information:\na) to its and its Affiliate\u2019s Representatives, provided always that the Receiving Party procures that such Representatives shall comply with the confidentiality obligations as set out in clause 3 of this Agreement, and the Receiving Party agrees to be liable for the actions or omissions of such Representatives in relation to the Confidential Information as if they were the actions or omissions of the Receiving Party; and\nb) as may be required by an order of any court of competent jurisdiction or governmental body in which case the Receiving Party shall, to the extent permitted by law, use reasonable endeavours to provide the Disclosing Party with prompt written notice of any such requirement prior to any disclosure so that the Disclosing Party may seek a protection order or other appropriate remedy. If no protective order or remedy is obtained by the Disclosing Party, the Receiving Party shall disclose only that portion of the Confidential Information that it is legally required to disclose.\n5. RETURN OR DESTRUCTION OF CONFIDENTIAL INFORMATION\n5.1. Upon the Disclosing Party\u2019s written request, the Receiving Party shall (as requested by the Disclosing Party) either return to the Disclosing Party or destroy (provided that any such destruction shall be confirmed in writing by the Receiving Party) all Confidential Information of the Disclosing Party including all copies, reproductions, notes, extracts and summaries which include, reflect, incorporate or otherwise contain the Disclosing Party\u2019s Confidential Information whether in tangible form or otherwise, such as electronic mail or computer files.\n5.2. Clause 5.1 of this Agreement shall not apply to:\na) Confidential Information held electronically in archive or back-up systems which are not otherwise reasonably retrievable by the Representatives of the Receiving Party or its Affiliates; or\nb) Copies of Confidential Information which must be retained by the Receiving Party pursuant to applicable law.\n5.3. The provisions of this Agreement shall continue to apply to any documents and materials retained by the Receiving Party pursuant to clause 5.2 of this Agreement.\n6. INTELLECTUAL PROPERTY\n6.1. Each Party reserves all rights in its Confidential Information.\n6.2. Nothing in this Agreement shall be interpreted as a grant, by the Disclosing Party, of any license, title, interest or proprietary right to the Receiving Party in the Disclosing Party\u2019s Confidential Information or its products embodying the same.\n6.3. All Confidential Information disclosed by the Disclosing Party to the Receiving Party pursuant to this Agreement shall be and remain the Disclosing Party\u2019s property.\n7. NO REPRESENTATION\n7.1. Neither of the Parties make any express or implied representation or warranty as to the accuracy, reliability or completeness of the Confidential Information, expressly disclaiming any and all liability that may be based on the Confidential Information, including any errors therein or omissions there from.\n7.2. The Parties further agree that they are not entitled to rely on the accuracy or completeness of the Confidential Information.\n8. INADEQUACY OF DAMAGES\n8.1. Without prejudice to any other rights or remedies that each Party may have, each Party acknowledges and agrees that damages alone would not be an adequate remedy for any breach of the terms of this Agreement by the other Party. Accordingly, each Party shall be entitled to the remedies of injunctions, specific performance or other equitable relief for any threatened or actual breach of this Agreement.\n9. NO OBLIGATION TO DISCLOSE OR CONTINUE DISCUSSIONS\n9.1. Nothing in this Agreement shall impose an obligation on either Party to disclose its information, whether Confidential Information or otherwise, to the other Party.\n9.2. Nothing in this Agreement shall impose an obligation on either Party to continue discussions or negotiations in connection with the Purpose or enter into any contract or business relationship with each other.\n10. TERM AND SURVIVAL OF CONFIDENTIALITY OBLIGATIONS\n10.1. The term of this Agreement shall be for a period of [three (3)] years from the Effective Date (the \u201cTerm\u201d) but may be terminated or extended upon both Parties\u2019 written agreement.\n10.2. The rights and obligations contained in this Agreement shall continue in full force and effect for [two (2)] years after expiration of the Term or termination of this Agreement.\n11. NO PARTNERSHIP OR AGENCY\n11.1. Nothing in this Agreement is intended to or shall be deemed to establish any partnership or joint venture between the Parties, create any commercial agency relationships between the Parties or authorise any Party to make or enter into any commitments for or on behalf of the other Party.\n12. GENERAL\n12.1. Assignment and other dealings. Neither Party shall assign, transfer, subcontract or deal in any other manner with any of its rights and obligations under this Agreement without the prior written agreement of the other Party.\n12.2. Entire Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.\n12.3. Variation. No variation of this Agreement shall be effective unless it is in writing and signed by the Parties.\n12.4. Waiver. No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.\n12.5. Severance. If any provision of this Agreement is or becomes invalid or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid and enforceable. Any modification to a provision under this clause shall not affect the validity and enforceability of the rest of the Agreement.\n12.6. Notice. Any notice given to a Party under or in connection with this Agreement shall be in writing and shall be delivered by hand, by pre-paid first class post or by a reputable next-day courier service at its registered office or principal place of business or sent by email to the address specified by the Party in writing. Any notice shall be deemed to have been received: if delivered by hand, at the time the notice is delivered at the proper address; if sent by pre-paid first class post, on the second business day after posting; if by next-day courier service, at the time recorded by the courier; or if by email, at the time of transmission. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.\n12.7. Third Party Rights. This Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.\n12.8. Governing Law. This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of England and Wales.\n12.9. Jurisdiction. Each Party irrevocable agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.\nThe undersigned are duly authorised to execute this Agreement on behalf of the parties.\nFor and on behalf of NSK Europe Limited For and on behalf of [Full company name]\nSignature\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026... 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"text": "Annex 5\nNon Disclosure Agreement\nIntroduction\nThis Non Disclosure Agreement (the \"NDA\") is made by and between the Ministry of Defence of the Kingdom of Norway (\"NMOD\") and Gripen International AB (\"GI\"), a business unit of Saab AB (publ), hereinafter jointly referred to as the \"Parties\" and individually referred to as \"Party\".\nThe Parties:\nare referring to the letter of agreement between NMOD and GI concerning industrial participation in further development of Gripen and related projects (the \"LOA\");\nnoting their wish to exchange information for the purpose of conducting evaluations of the Gripen aircraft, and pursuing discussions and work related to the Gripen Demonstrator Programme and other Gripen and defence related projects (\"LOA Projects\");\nnoting that such exchange of information may involve the disclosure of confidential information by either Party, and that the Parties wish to record their agreement to maintain the confidentiality of such information;\nnoting that exchanging information with GI shall also include exchanging information with Saab and upon such disclosure Saab shall confirm and be bound of the terms and conditions contained herein as if Saab was a Party to the NDA;\nnoting that exchanging information with the NMOD shall also include other Norwegian authorities and upon such disclosure said Norwegian authority shall confirm and be bound of the terms and conditions contained herein as if said Norwegian authority was a Party to the NDA.\nNOW, THEREFORE, the parties agree as follows:\nClause 1\nConfidential Information - information of whatever kind and in whatever form contained (and includes in particular but without prejudice to the generality of the foregoing, documents, drawings, computerized information, films, tapes, specifications, designs, models, equipment or data of any kind) which is clearly identified by the Disclosing Party as confidential by an appropriate legend or if orally disclosed then upon disclosure or within 30 days of such oral disclosure identified in writing by the Disclosing Party as confidential.\nDisclosing Party - the party from time to time disclosing Confidential Information.\nReceiving Party - the party from time to time receiving Confidential Information.\nClause 2\nSubject to the terms of the NDA the Receiving Party hereby undertakes to the Disclosing Party:\na) that it shall treat the Confidential Information directly or indirectly disclosed to it by the Disclosing Party as strictly confidential and will not without obtaining the prior written consent of the Disclosing Party disclose any part of the Confidential Information to any third party, except where compelled by law or regulation;\nb) that it shall not make use of any part of the Confidential Information disclosed to it by the Disclosing Party, except for LOA purposes;\nc) that it shall give access to the Confidential Information only,to those of its employees who need access to the Confidential Information for LOA purposes and will ensure that such employees adhere to the obligations and restrictions contained in the NDA;\nd) that it shall not copy or reproduce in any form any of the Confidential Information disclosed to it by the Disclosing Party, except to the extent necessary for the LOA purposes; and\ne) that it shall keep a current record of all copies and reproductions of the Confidential Information.\nClause 3\nThe obligations under the NDA do not apply to information of the Disclosing Party which is:\na) at the time of disclosure or thereafter available to the public generally through no failure on the part of the Receiving Party;\nb) known to the Receiving Party at the time of its disclosure;\nc) disclosed to the Receiving Party by a third party having the right to disclose Confidential Information and without restrictions as to use or disclosure; or\nd) developed independently by the Receiving Party without use of or reference to the Confidential Information received.\nClause 4\nThe Confidential Information shall remain the sole property of the Disclosing Party.\nThe Disclosing Party makes no representation, warranty, assurance, or inducement, express or implied, as to the Confidential Information's adequacy, sufficiency, or freedom from defect of any kind, including but not limited to, freedom from patent infringement that may result from use of such know-how information, nor shall the Disclosing Party incur any responsibility or obligation by reason of such Confidential Information, except as specifically provided herein.\nThe Receiving Party shall under no circumstances obtain any right in the Disclosing Party's patents, trademark or know-how by reason of the NDA.\nClause 5\nEither Party shall, upon 30 days written request by the other Party, return to the other party all Confidential Information which the latter has disclosed to the former, together with all copies or reproductions thereof together with a confirmation in writing that the Confidential Information in computerized form has been destroyed.\nFurthermore, at the request of the Disclosing Party the Receiving Party shall immediately cease to use the Confidential Information for any purposes whatsoever.\nClause 6\nThe NDA may also involve the exchange of classified information (which may or may not be Confidential Information), the handling of which shall be treated by the Parties according to applicable laws and regulations and other administrative acts and policies, now or hereinafter in effect.\nClause 7\nNothing in the NDA may be construed as compelling one Party to disclose any information to the other Party.\nClause 8\nThe Receiving Party shall notify the Disclosing Party immediately if it becomes aware that Confidential Information has been disclosed to or is in the possession of any person who is not authorized by the NDA to receive Confidential Information.\nClause 9\nNeither Party may assign or transfer (including but not limited to sublicense) any of its rights or obligations under the NDA.\nClause 10\nFor the purpose of exchanging Confidential Information and other communication the following persons are authorized contact persons:\nFor GI:\nFredrik Gustafsson Campaign Manager, Gripen International\nSE-581 88 Linkoping\nSweden\nFor NMOD:\nNorwegian Defence Logistic Organisation\nNew Fighter Aircraft Project (P7600)\nAtt: Lt. col. Geir Nilssen\nP.box 10\n2027 Kjeller\nNorway\nA change of a contact person shall be notified in writing.\nClause 11\nThe NDA constitutes the entire agreement between the parties with respect to its subject matter and shall not be changed except by written agreement signed by both Parties.\nClause 12\nThe NDA shall become effective on the date on the date of signatures and shall be valid for a period of two years thereafter, when it shall automatically expire\nunless otherwise agreed in writing between the parties. However, all Confidential Information exchanged during the validity hereof shall be subject to the obligations and restrictions under the NDA (including the undertakings in Clause 13 and 14 below) for a period of five years following expiration or other termination of the NDA.\nClause 13\nThe NDA shall be governed by and construed in accordance with the laws and regulations of Norway.\nClause 14\nAny disputes between the Parties arising out of or in connection with the NDA and which cannot be settled amicably shall be settled in the common court of law. The legal venue is Oslo tingrett, Norway.\nThe NDA has been executed in two originals of which the Parties have received one each.\nFor The Ministry of Defence For Gripen International AB\nof the Kingdom of Norway\nName: P\u00e5l Bj\u00f8rseth Name: Anders Frisen\nTitle: Deputy Director General Title: Commerci I Director\n................................... j,{ ...........\nSignature gnature\nr\n................ f/.. ......\nPlace and date Place and date\n",
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"text": "UNILATERAL NON-DISCLOSURE AGREEMENT\nBETWEEN Nordic Knowledge Partners ApS\nCentral Business Register (CVR) number: 36428198\nDampf\u00e6rgevej 9, 1.\n2100-DK Copenhagen\n(hereafter the \"Service provider\" or \"NKP\" or \"Recipient\")\nAND You the subject-matter expert\n(hereafter the \"Subject-matter expert\" or \"Expert\" or \"Recipient\")\nEach of Discloser and Recipient hereafter are also referred to as \"Party\" and collectively as the\n\"Parties\".\n1. CONTACT PERSONS\n1.1. Any notice given under or in relation to the Agreement shall be given in writing and for the attention to:\na) If to Discloser:\nAtt.: Andreas von Buchwald\navb@nordicknowledgepartners.com\nb) If to Recipient:\nAtt: You\n3. DEFINITIONS AND INTERPRETATION\n3.1. In the agreement, the following capitalised words and expressions have the following meaning:\n3.2. \"Affiliate\" means with respect to any person, any other person directly or indirectly, through one or more intermediaries, Controlling, or Controlled by, or under common Control with such person, where control has the meaning of the power to direct the management of a person (directly or indirectly), whether through ownership of securities, by contract or otherwise and shall be presumed to exist in relation to a controlled person when another person holds (i) a majority of the voting rights, (ii) the right to control more than half of the voting rights by virtue of an agreement, (iii) the right to direct the financial and operational management by virtue of articles of association or agreement, (iv) the right to appoint or remove the majority of the members of the supreme governing body having a controlling influence, or (v) possession of the actual majority of votes at general meetings or equivalent governance forum and thereby an actual controlling interest in such person; and \"Controlled\" and \"Controlling\" shall be construed accordingly.\n3.3. \"Agreement\" means this non-disclosure agreement including all appendices (if any).\n3.4. \"Client\" means any customers or business partners of the Party;\n3.5. \"Confidential information\" means any information of whatever form relating to the Project or Discloser or any of its Affiliates or Clients, supplied or made available by Discloser or on its behalf to recipient or Recipient Representatives, copies of any such information regardless of whether such information is identified as confidential or not; and information regarding:\n3.5.1. The existence of the Project;\n3.5.2. The identity of the Discloser and the willingness of the Discloser to enter into discussions and/or negotiations regarding the Project;\n3.5.3. Any information including those parts of analyses, compilations, studies and other documents which contain, reflect or are derived from such information referred to in this Clause 3.4 or discussions and negotiations relating to the project.\n3.6. \"Effective Date\" means the date when the last of the Parties signed the Agreement.\n3.7. \"Project\" has the meaning ascribed to it in Clause 4.1.\n3.8. \"Representatives\" means, in relation to a Party to the extent involved in the Project, (a) its Affiliates; (b) its contractors / suppliers of any tier and (c) all of the aforementioned entities' employees, directors, senior executives, professional advisors and consultants.\n4. BACKGROUND\n4.1. The Parties intend to engage in a Project/Projects where the Discloser will facilitate consultation(s) (in-person or remote, e.g. via telephone conference) between its Client and the Recipient (\"Subject-matter expert consultations\"). The Parties will as part of the Project disclose to each other certain non-public Confidential Information, subject to the terms and conditions set out in this Agreement, which both Parties hereby accept.\n5. CONFIDENTIALITY AND RESTRICTED USE\n5.1. Recipient shall:\n5.1.1. hold Confidential Information in confidence and protect it by using at least the same degree of care, but no less than a reasonable degree of care, as Recipient uses to safeguard its own confidential or proprietary information of a like nature from unauthorized use, disclosure or dissemination;\n5.1.2. use Confidential Information only for the Project;\n5.1.3. not copy or reproduce (or permit to be copied or reproduced) any Confidential Information, or directly or indirectly disclose or distribute any of it to any person other than those of its Representatives who are strictly required to perform Recipient's work in relation to the Project.\n5.2. The obligations in Clause 5.1 shall not apply for Confidential Information that:\n5.2.1. was, at the time of its disclosure, in the public domain or which, after Discloser's disclosure, comes into the public domain, unless it is in the public domain as a result of:\na) a breach by Recipient of its obligations contained in this Agreement (or by any person to whom disclosure of information is made as permitted under this Agreement); or\nb) a breach by a third party of any other obligation or duty of confidentiality or non-disclosure relating to that information that Recipient is or ought to be aware of;\n5.2.2. was or becomes available to Recipient on a non-confidential basis provided that the source is not known to Recipient to be bound by a confidentiality agreement and is not otherwise in breach of any obligation of confidentiality or restricted use;\n5.2.3. is otherwise agreed in writing by Discloser to no longer being confidential and/or restricted; or\n5.2.4. is required to be disclosed by law, regulation or any competent governmental, judicial or regulatory authority, or by a recognized stock exchange, or in response to a request from a regulatory body with a supervisory role over Recipient or any of its Affiliates, in which case Recipient will (or, if Recipient's Representative is subject to the disclosure obligation, Recipient will procure that such Representative will), in each case to the extent permitted by law, regulation or the relevant authority:\na) inform Discloser of the circumstances of the disclosure and the information that will be disclosed as soon as reasonably practicable;\nb) permit Discloser in its absolute discretion to seek to obtain an injunction or take other appropriate action to protect the Confidential Information;\nc) take all such steps as may be reasonable and practicable in the circumstances to agree the form, contents and timing of such disclosure with Discloser before making such disclosure, provided that Recipient shall not be required to take any action under this Clause which it considers in good faith to be contrary to any of its legal or regulatory obligations;\nd) consult with Discloser as to possible steps to prevent or limit such disclosure and take those steps to the extent reasonably practicable in the circumstances, provided that Recipient shall not be required to take any action under this Clause which it considers in good faith to be contrary to any of its legal or regulatory obligations; and\ne) request assurances as to confidentiality from anybody to which the Confidential Information is to be disclosed.\n5.2.5. Either Party must promptly inform the other Party after becoming aware of any breach of this Agreement whether committed by Recipient itself or its Representatives.\n5.3. Ownership \u2013 no rights intended\n5.3.1. All Confidential Information shall remain the property of Discloser or its relevant Representative, as applicable.\n5.3.2. The disclosure of Confidential Information to Recipient or its Representatives shall not give Recipient or its Representatives any licence or other rights in relation to that Confidential Information beyond the rights contained in this Agreement.\n5.3.3. Recipient shall not be entitled to file for patents or other statutory protection in any country based on any Confidential Information received hereunder. The disclosure of Confidential Information does not constitute any rights of prior use for Recipient\n5.4. As is\n5.4.1. With respect to the Confidential Information disclosed, Discloser provides the information \"as is\" and makes no representation or warranty, express or implied, to Recipient as to its condition, merchantability, design, operation, fitness, or use for the Project or any other matter.\n6. REPRESENTATIVES\n6.1. If Recipient discloses or distributes Confidential Information to any of its Representatives, such Representatives shall be subject to the same confidentiality and restricted use obligations as Recipient.\n6.2. Recipient shall be liable for its Representatives' acts and omissions as if such acts or omissions had been its own acts or omissions, even when such persons/entities cease to be (as the case may be) employee, director, senior executive, professional advisor, consultant, Affiliate or supplier of any tier in relation to Recipient.\n7. DURATION AND TERMINATION\n7.1. Duration\n7.1.1. The obligations contained in this Agreement shall start at the Effective Date and shall automatically terminate when the Project is terminated or completed.\n7.2. Termination\n7.2.1. Each Party may terminate the Agreement by giving one month prior written notice to the other Party.\n7.3. Continuing Obligations\n7.3.1. The obligations of confidentiality, non-disclosure and non-use set forth in this Confidentiality Agreement shall survive the termination or expiration of this Confidentiality Agreement (i) with respect to any Confidential Information that constitutes a trade secret under applicable law, for so long as such item shall continue to constitute a trade secret under applicable law, and (ii) with respect to any Confidential Information that does not constitute a trade secret under applicable law, for a period of 5 (five) years from and after the date of disclosure of such Confidential Information.\n8. RETURN OF CONFIDENTIAL INFORMATION\n8.1.1. Upon Discloser's request, Recipient shall promptly, and in any case within five (5) days from such request, return all documentation and other materials containing any Confidential Information of Discloser without retaining any copies thereof. Alternatively, at Discloser's option and request, Recipient shall destroy and/or erase all such materials and documentation and shall provide a written certification that all such materials and documentation have been destroyed and/or erased.\n8.1.2. Clause 8.1 shall not apply to Confidential Information which i) must be stored by Recipient according to provisions of mandatory law or ii) was made as a matter of routine backup provided that such Confidential Information and copies thereof shall be subject to an indefinite confidential obligation according to the terms and conditions set forth herein until returned and/or destroyed, as the case may be.\n9. OTHER PROVISIONS\n9.1. No Relationship Established\n9.1.1. This Agreement shall not constitute any rights or obligations for any of the Parties to this Agreement, to continue discussions or further to enter into any contract regarding the Project, and any Party can cease to continue such discussions at any time. The Agreement does not grant Recipient any exclusivity, and Discloser and its Affiliates may purchase similar services, works or goods from other suppliers.\n9.2. Public Statements\n9.2.1. Neither Party may use the other Party's name or trademarks or refer to the other Party directly or indirectly in any media release, public announcement, or public disclosure relating to the Agreement or its subject matter, including, but not limited to, in any promotional or marketing material or business presentations without the other Party's prior written consent in each case, except for such publication which is required under public procurement rules.\n9.3. Severability\n9.3.1. If any term or provision of the Agreement is held to be illegal, void or unenforceable in whole or in part under any enactment of law, such term or provision will be deemed not to form part of the Agreement. The enforceability of the remainder of the Agreement will not be affected.\n9.3.2. In the event that any term or provision of the Agreement, which is fundamental to the accomplishment of the purpose of the Agreement, is held to be illegal, void or unenforceable in accordance with Sub-Clause 9.3.1, the Parties shall immediately commence good-faith negotiations to reach an equitable agreement, which reflects the intent of the Parties.\n9.4. Waiver and Cumulative Rights\n9.4.1. The rights provided by the Agreement may be waived in writing only by the relevant Party in a manner that expressly indicates that a waiver is intended, and such waiver is only to apply to the specific circumstances referred to. Any failure to exercise or any delay in exercising a right by either Party will not constitute a waiver of that right or of any other rights.\n9.4.2. Unless a right of a Party is expressed to be an exclusive right, the exercise of it by the Party is without prejudice to its other rights.\n9.5. Cost\n9.5.1. Each Party shall be responsible for their own costs incurred by themselves and their Representatives.\n9.6. Written Modifications\n9.6.1. All modifications to this Agreement must be made in writing and must be signed by an authorized representative of the Parties.\n10. GOVERNING LAW AND DISPUTE RESOLUTION\n10.1. Governing Law\n10.1.1. The laws of Denmark govern the Agreement and any legal dispute arising out of or in relation to the Agreement must be solved in accordance with the laws of Denmark.\n10.2. Dispute Resolution\n10.2.1. The Parties will attempt to settle any dispute between them by entering into good-faith negotiations through the appropriate management level of governance in a timely manner. The Parties must as a minimum attend the first good-faith negotiations.\n10.2.2. Any dispute, controversy or claim arising out of or in connection with the Agreement or any breach, termination or invalidity hereof which is not resolved by prior negotiations, shall be finally settled by arbitration by The Danish Institute of Arbitration in accordance with the relevant rules adapted by The Danish Institute of Arbitration and applicable at the time of opening of the arbitration. The arbitration tribunal must have three arbitrators appointed by the Danish Institute of Arbitration unless the Parties agree otherwise. The arbitrators elect, from among their members, the chairman of the arbitration tribunal.\n10.2.3. The place of arbitration must be Copenhagen, and the language of the proceedings, including any written pleadings, must be in English, unless otherwise agreed by the Parties.\n10.2.4. Notwithstanding this Clause 10, breach of this Agreement may be stopped by injunctive relief at the ordinary courts. Nothing in this Agreement shall be construed as prohibiting Discloser from pursuing any remedies available in addition to those remedies available under the terms of this Agreement.\n11. SIGNATURE\n11.1. The Parties may choose to exchange signatures of the Agreement by means of electronic communication (by fax, email, or other electronic transmissions) and the Agreement shall not be invalid or unenforceable because the documents are exchanged electronically.\n11.2. The Agreement is executed as per your completion and submission of the form found on NKP's website https://www.nordicknowledgepartners.com/compliance.\n",
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"text": "Mutual Non-disclosure and Con\ufb01dentiality Agreement\nThis Mutual Non-disclosure and Con\ufb01dentiality Agreement (\u201dAgreement\u201d) is made by and between Ready4S, Ltd (\u201dReady4S\u201d) and the Client as named in the signature column below.\nReady4S and Client are sometimes collectively referred to herein as the \u201dParties\u201d and individually as a \u201dParty\u201d. A Party includes the entity named herein, its successors and assigns, any of its present or future corporate parents, subsidiaries, and organizations controlled by, controlling or under common control with such Party.\nEach of the Parties may be the \u201dDisclosing Party\u201d and the other party will be deemed to be the \u201dReceiving Party\u201d.\nRECITALS\nA. The Parties intend to enter into discussions regarding a potential future business relationship; and\nB. In order to facilitate those discussions the Parties may wish to disclose to each other certain Con\ufb01dential Information (as herein de\ufb01ned).\nTHEREFORE, it is agreed as follows:\n1 De\ufb01nitions and Interpretation\n1.1 1.1 In this Agreement:\nCon\ufb01dential Information means:-\n(a) information relating to the Disclosing Party regarding its business, partners, customers or \ufb01nancial a\ufb00airs (including details relating to any software the copyright in respect of which is vested in the Disclosing Party) which is obtained by the Receiving Party, either before or after this undertaking is entered into and either in writing or orally from or pursuant to the discussions with the Personnel of the Disclosing Party;\n(b) those portions of analyses, compilations, studies, reports and other documents prepared by the Disclosing Party which contain or otherwise re\ufb02ect or are generated from any such information as is speci\ufb01ed in paragraph (a) above;\n(c) information of a commercially sensitive nature relating to the Disclosing Party obtained by observation during any visits to the Disclosing Party\u2019s premises but subject always to the proviso set out in clause.\nDisclosing Party means the Party whose Con\ufb01dential Information is disclosed to the Receiving Party\nPersonnel means any and all sta\ufb00, employees, directors, o\ufb03cers and professional advisors of a Party\nPurpose means any and all discussions and negotiations relating to a potential agreement between the Parties hereto as more particularly set out in Recital (A)\nReceiving Party means the Party who is in receipt of Con\ufb01dential Information\n2 The Commitment\n2.1 In consideration of each Party agreeing to supply the other Party with Con\ufb01dential Information for the Purpose, and in consideration of the mutual undertakings set out herein the Parties each hereby separately agree and irrevocably undertake to each other that they will only use Con\ufb01dential Information for the Purpose and otherwise to act in accordance with the terms and conditions hereinafter contained.\n2.2 The disclosure of Con\ufb01dential Information by the Disclosing Party to the Receiving Party shall in no way be construed to imply any transfer of rights connected with the Con\ufb01dential Information including, without limitation, any trade marks or business secrets.\n2.3 A Receiving Party\u2019s obligations in respect of Con\ufb01dential Information made available by the Disclosing Party pursuant to this Agreement shall continue notwithstanding the termination of the Purpose.\n3 Safekeeping\n3.1 A Receiving Party shall treat and safeguard as private and con\ufb01dential all of the Con\ufb01dential Information and will take all reasonable precautions in dealing with any Con\ufb01dential Information so as to prevent any third party from having access to the Con\ufb01dential Information.\n4 Limited internal dissemination\n4.1 A Receiving Party shall only disclose or reveal any Con\ufb01dential Information disclosed to it to those of its Personnel who are required in the course of their duties to receive and consider the same in so far as is necessary to ful\ufb01l the Purpose.\n4.2 Prior to the disclosure of any Con\ufb01dential Information to any such Personnel, the Receiving Party shall inform them of the con\ufb01dential nature of the material and of the provisions of this con\ufb01dentiality undertaking and obtain written con\ufb01rmation of their acceptance of these terms.\n5 Non-disclosure to third parties\n5.1 Save as otherwise permitted herein, a Receiving Party shall not, and shall procure that its Personnel do not, at any time without the Disclosing Party\u2019s prior written consent:\n(a) disclose the Con\ufb01dential Information to any third party, either directly or indirectly; or\n(b) disclose to any person: -\n(i) the fact that discussions or negotiations are taking place between the Parties;\n(ii) the content of any such discussions or negotiations;\n(iii) any of the terms, conditions or other facts with respect to the Purpose; or\n(iv) that Con\ufb01dential Information has been requested or received, unless required to do so by law or by the order or ruling of a Court or tribunal or regulatory body or recognised stock exchange of competent jurisdiction, in which case, if the Receiving Party is required to disclose such Con\ufb01dential Information it shall, unless prohibited from doing so, notify the Disclosing Party promptly in writing of that fact and, in any event, prior to making such disclosure.\n6 Discussions through authorised representatives only\n6.1 It is understood that all communications regarding the Parties\u2019 discussions, requests for additional information or meetings or questions will be submitted or directed to authorised representatives of the Parties.\n7 Exclusion from Con\ufb01dential Information\n7.1 These terms and conditions will not apply to any Con\ufb01dential Information which:\n(a) is in or becomes part of the public domain or is or otherwise becomes public knowledge by any means other than by breach by a Receiving Party or their Personnel of any obligation contained herein;\n(b) was previously or is at any time hereafter disclosed to a Receiving Party by any third Party having the right to disclose the same provided that such source is not known to the Receiving Party to be bound by a con\ufb01dentiality agreement with, or other obligation to secrecy to, the Disclosing Party;\n(c) is released from the provisions of this undertaking by prior written consent given by a director or authorised representative of the Disclosing Party; or\n(d) was otherwise independently acquired or developed by the Receiving Party without violating its obligations hereunder.\n8 Return of Con\ufb01dential Information\n8.1 The Receiving Party shall, immediately upon receipt of Notice to that e\ufb00ect:\n(a) return to the Disclosing Party all Con\ufb01dential Information (including all copies held);\n(b) destroy those portions (and all copies) of any analyses, compilations, studies, reports or other documents prepared by it for its use containing or re\ufb02ecting or generated from, in whole or in part, any Con\ufb01dential Information; and\n(c) expunge and destroy any Con\ufb01dential Information from any computer, word processor or other device in its possession or custody or control containing such information.\n9 No responsibility for information provided\n9.1 The Receiving Party understands and acknowledge that neither the Disclosing Party nor any of its Personnel is making any representation or warranty, express or implied, as to the accuracy or completeness of the Con\ufb01dential Information, and neither the Disclosing Party or any of its Personnel will have any liability to the Receiving party or any other person resulting from any use of the Con\ufb01dential Information.\n10 Breach of Undertaking\n10.1 Each Party hereby acknowledges and agrees that damages would not be an adequate remedy for any breach of this undertaking and a Disclosing Party shall be entitled to the remedies of injunction, speci\ufb01c performance and other equitable relief for any threatened or actual breach of any such undertaking.\n11 Notices\n11.1 Any notice or other communication to be given under this Agreement shall be in writing in English and signed by or on behalf of the Party giving it (or its representative) and shall be delivered by hand to the address or sent by fax to the fax number given in clause 11.2 (or such other address or fax number as the receiving Party has speci\ufb01ed to the sending Party on at least 10 (ten) Business Days\u2019 notice).\n11.2 Any notice or other communication given or made under this Agreement shall, in the absence of earlier receipt, be deemed to have been received as follows:\n(a) if delivered by hand, at the time on the date of actual delivery; or\n(b) if sent by fax, with a con\ufb01rmed receipt of transmission from the receiving machine, on the day on which transmitted provided that a notice deemed to have been received on a day which is not a Business Day, or after 18:00 hours in the place of receipt, shall instead be deemed to have been received on the next Business Day at the commencement of normal business hours in the place of receipt.\n11.3 The provisions of this clause shall not apply in relation to the service of documents.\n12 Counterparts\n12.1 This Agreement may be executed in any number of counterparts and by the Parties on separate counterparts, each of which is an original but all of which together constitute one and the same instrument.\n13 Governing Law\n13.1 These terms and conditions shall be governed by and construed in all respects in accordance with the laws of England.\n14 Jurisdiction\n14.1 The Parties irrevocably agree that the English courts shall have the exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement. 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"text": "NON-DISCLOSURE AGREEMENT\nR 2019/01\n(Pls. fill in the form fields, print, sign and scan in color and email to your sales contact)\nbetween AdvanIDe companies worldwide and AdvanIDe Europe GmbH, & AdvanIDe Holdings Pte Ltd\nAm Klingenweg 6A 7 Temasek Boulevard Company Name\n65396 Walluf\nSuntec Tower One #06-01 Address Line 1\nGermany Singapore 038987\nAddress Line 2\nZIP / City\n& AdvanIDe Americas, Inc.\nCountry\n19 Sylvester Road,\nNatick, MA 01760 Contact Person\nBoston\nContact e-Mail\nCompany Website\nWHEREAS\nthe Parties may have disclosed and will further disclose certain confidential information (hereinafter referred to as\n\u201cInformation\u201c)for the purpose of\n(hereinafter referred to as \u201cBusiness Purpose\u201d).\nWHEREAS\nThe Parties wish to define their rights and obligations with respect to said Information by establishing the basis upon which said Information and / or documents will be disclosed by one party (hereinafter referred to as the \u201cDisclosing Party\u201d) and received, held, safeguarded by the other party (hereinafter referred to as the \u201cReceiving Party\u201d).\n1. For the purposes of this Agreement, Information means information relating to one party which is made available by such party to the other party for the Business Purpose, including but not limited to technical documentation, analyses, studies, knowledge and samples but excluding Information which:\nI. is publicly available or becomes publicly available (other than as a result of disclosure by the Receiving Party or any other person contrary to the terms of this Agreement; or\nII. was available (as can be demonstrated by the Receiving Party's written records or other reasonable evidence) to the Receiving Party or another person to whom it is furnished hereunder free of any restriction as to its use or disclosure prior to its being so furnished; or\nIII. becomes available to the Receiving Party (as can be demonstrated by the Receiving Party\u00b4s written records or other reasonable evidence) from a source other than the Disclosing Party, which source is not bound by any obligation of confidentiality to the Disclosing Party in relation to such Information; or\niv. is independently developed by the Receiving Party;\nv. or is required to be disclosed, retained or maintained by law or any regulation or any governmental organization. Confidential Information may also be handed out by a third party appointed by the Disclosing Party (i.e. manufacturer).\n2. Both Parties shall\nI. treat the Information with the same degree of care to avoid disclosure to any third party as is used with respect to the Receiving Party\u00b4s own Information of like importance which is to be kept confidential; Confidential\nII. keep the Information relating to the other party secret and confidential and not disclose any of it to any third person and only make it available to the Receiving Party\u00b4s executive board, directors, employees, advisers or subsidiaries and affiliates who need to know the same for the Purpose;\nIII. use the Information only for the Business Purpose unless the Disclosing Party gives its prior written consent to such Information being used for some other agreed purpose;\nIV. keep the Information, relating to the Disclosing Party, and any copies thereof secure and in such way so as to prevent unauthorized access by any third party, nor make any copies of it or reproduce it in any form;\nV. ensure that its employees and advisers comply with the obligations of non-disclosure arising from this Agreement;\n3. Either Party shall have the right to refuse to accept any Information under this Agreement prior to any disclosure and nothing herein shall obligate either Party to disclose any particular Information.\n4. All Information exchanged between the Parties pursuant to this Agreement shall upon respective request of the Disclosing Party either be returned to the Disclosing Party or be destroyed. On request the Receiving Party shall supply a written certificate signed by any of its directors confirming the destruction of the Information. 5.\nThe Information, relating to the other party, shall remain the property of such other party (as Disclosing Party) and its disclosure shall not confer on the other party (as Receiving Party) any rights. No license is hereby granted by either party to the other party, directly or indirectly, under any patent, trademark, trade secret or other intellectual property.\n6. The Parties disclaim any warranty for the correctness and completeness (including but not limited to warranties of merchantability, fitness for a particular purpose, and non-infringement) regarding Information under this Agreement.\n7. The Agreement shall continue in force for three years from the signing of this Agreement. Thereafter it shall automatically continue unless terminated upon thirty days prior notice in writing. The obligations accruing prior to termination as set forth herein, shall, however, survive the termination of this Agreement for a period of two years.\n8. This Agreement shall be governed and construed by the laws of Singapore, without regard to any conflict of law principles leading to the application of the laws of any other jurisdiction. The Parties hereby submit to the exclusive jurisdiction of the courts of Singapore.\n9. If any of the provisions of this Agreement are or become wholly or partly void, invalid or unenforceable, this shall not affect the validity of the remaining provisions. The provisions of this Agreement may not be modified, amended, nor waived, except by a written instrument duly executed by the Parties hereto. The requirement of written form can only be waived in writing.\n10. This Agreement may not be assigned by either party without the prior written consent of the other.\n11. Insofar as one of the Parties undergoes a transformation by change in its legal form preserving its identity or by a change in legal personality due to merger, break up or transfer of assets this Agreement shall be continued with the newly formed legal successor or the legal successor taking over one of the Parties.\nSingapore, Date Place, Date\n_\nHolger Roessner, Signatory Name\nAdvanIDe Europe GmbH &\nAdvanIDe Holdings Pte Ltd &\nAdvanIDe Americas, Inc\n",
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"text": "Please fill in your contact details, sign on the last page an fax this document to +31-84-8337781 or mail a scanned copy to info@ag-projects.com\nNon-Disclosure Agreement\nAG Projects, a Dutch corporation with its principal place of business at Dr. Leijdsstraat 92, 2021 RK Haarlem, Nederland [DISCLOSING PARTY] and the [RECEIVING PARTY] represented by:\nName:\nOrganization:\nAddress:\nCity:\nPostcode:\nCountry:\nTelephone:\nFax:\nE-mail:\nWebsite:\nBusiness profile:\nSolution vendor\n System integrator\n Service provider\n Employee or contractor\nOther, please specify: \u2026\u2026\u2026\u2026\u2026\u2026\u2026..\nContemplate one or more meetings and various communications that will involve the disclosure by one of the parties [DISCLOSING PARTY] to the other party [RECEIVING PARTY] of technical, business, marketing, planning, pricing and other information and data, in written, oral, electronic, magnetic, photographic and/or other forms, including information and data regarding Internet-based transport solutions (Collectively CONFIDENTIAL INFORMATION).\nThe parties agree as follows:\n1. CONFIDENTIAL INFORMATION: AG Projects products and services.\n2. Limited Purpose. The CONFIDENTIAL INFORMATION shall be used by the RECEIVING PARTY solely for the purpose of discussing AG Projects\u2019 services and products.\n3. Property of Disclosing Party. The CONFIDENTIAL INFORMATION is proprietary to the DISCLOSING PARTY and is, and shall remain, the property of the DISCLOSING PARTY.\n4. No Copies. Tangible forms of the CONFIDENTIAL INFORMATION shall not be copied, in whole or in part, without the prior written consent of the DISCLOSING PARTY.\n5. No Disclosure. The RECEIVING PARTY and its employees, officers, agents and affiliates shall hold the CONFIDENTIAL INFORMATION in confidence and take all reasonable steps to preserve the confidential and proprietary nature of the CONFIDENTIAL INFORMATION, including, without limitation: (i) refraining from disclosing the CONFIDENTIAL INFORMATION to persons within its organization not having a reason to know, and all persons outside its organization unless they have a reason to know and are bound by fiduciary duties of confidentiality to the RECEIVING PARTY; and (ii) advising all of its employees, officers, agents and affiliates who gain access to the CONFIDENTIAL INFORMATION of its confidential and proprietary nature. The obligations of this paragraph also apply to the fact of the existence of the CONFIDENTIAL INFORMATION, of this Agreement, and the occurrence of all meetings and communications of the parties that involve CONFIDENTIAL INFORMATION. In the event the RECEIVING PARTY receives in writing an opinion from its outside counsel that it must disclose certain information, prohibited by the terms herein, in order to avoid committing a violation of law, the RECEIVING PARTY may disclose only that information necessary to avoid committing such violation of the law.\n6. Discovery. In the event that the RECEIVING PARTY is requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the CONFIDENTIAL INFORMATION, the RECEIVING PARTY shall provide the DISCLOSING PARTY with prompt written notice of any such request or requirement so that the DISCLOSING PARTY may seek a protective order or other appropriate remedy or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the DISCLOSING PARTY, the RECEIVING PARTY is nonetheless, in the opinion of counsel, legally compelled to disclose CONFIDENTIAL INFORMATION to any tribunal or else stand liable for contempt or suffer other censure or penalty, the RECEIVING PARTY may, without liability hereunder, disclose to such tribunal only that portion of the CONFIDENTIAL INFORMATION which such counsel advises RECEIVING PARTY is legally required to be disclosed, provided that the RECEIVING PARTY will cooperate with the DISCLOSING PARTY in seeking to preserve the confidentiality of the CONFIDENTIAL INFORMATION before such tribunal.\n7. No Use. The RECEIVING PARTY understand and agrees that it is not allowed to sell, license or otherwise exploit any parts, products, services documents or information that embody in whole or in part any CONFIDENTIAL INFORMATION. The furnishing of any CONFIDENTIAL INFORMATION hereunder shall not be construed as the granting of a license under any patent, patent application, copyright, copyright registration, trade secret or other proprietary right by the DISCLOSING PARTY to any person or entity or as implying any obligation other than is specifically stated herein.\n8. Limitation. The confidentiality and non-disclosure obligations of the previous paragraphs shall not apply if, and to the extent that: the RECEIVING PARTY can prove that the CONFIDENTIAL INFORMATION was known to the RECEIVING PARTY prior to its receipt from the DISCLOSING PARTY (ii) the CONFIDENTIAL INFORMATION is or becomes part of the public domain other than by the fault of the RECEIVING PARTY; or (iii) the CONFIDENTIAL INFORMATION is rightfully disclosed to the RECEIVING PARTY by a third party that is legally free to disclose such CONFIDENTIAL INFORMATION.\n9. Return. All CONFIDENTIAL INFORMATION supplied by the DISCLOSING PARTY hereunder and all copies thereof, in whole or in part and on all media, shall be returned to the DISCLOSING PARTY by the RECEIVING PARTY within thirty (30) days upon demand by the DISCLOSING PARTY. All other information and all copies thereof prepared by the RECEIVING PARTY based on the CONFIDENTIAL INFORMATION, shall be either promptly destroyed or returned to the DISCLOSING PARTY upon demand, as determined by the DISCLOSING PARTY within its sole discretion.\n10. Duration. This Agreement shall apply to any CONFIDENTIAL INFORMATION that may have been provided to the RECEIVING PARTY prior to or after the date hereof, and shall continue to govern the delivery of CONFIDENTIAL INFORMATION until terminated by written notice from either party to the other, except that the obligations of the parties hereunder with regard to CONFIDENTIAL INFORMATION disclosed prior to termination shall continue for a period for two (2) years thereafter.\n11. Injunctive Relief. The RECEIVING PARTY understands and agrees that monetary damages will not be sufficient to avoid or compensate for the unauthorized use or disclosure of the CONFIDENTIAL INFORMATION and that injunctive relief would be appropriate to prevent any actual or threatened use of disclosure of such CONFIDENTIAL INFORMATION.\n12. Liquidated Damages. In case of unauthorized use or disclosure of the CONFIDENTIAL INFORMATION, The DISCLOSING PARTY shall be entitled to liquidated damages in the amount of \u20ac10 000 (ten thousand Euro) for each such use or disclosure. Notwithstanding the right to liquidated damages, the DISCLOSING PARTY has the right to take any measures available and to claim and receive a higher amount of compensation if the DISCLOSING PARTY can prove that the actual damage sustained will exceed the amount of liquidated damages.\n13. Definitive Agreement. The parties hereto agree that no contract or agreement between the parties shall be deemed to exist unless and until a final definitive agreement has been executed and\ndelivered to both parties.\n14. Miscellaneous. This Agreement shall be binding on the respective parties hereto and their successors and permitted assigns. This Agreement may be modified only in writing signed by both parties hereto.\n15. Governing law. 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"text": "CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nbetween\nAFRIGIS (PTY) LTD\nRegistration Number: 1997/006716/07\n(\u201cAfriGIS\u201d)\nand\nCLIENT NAME\nRegistration number: __________\n(\u201cClient\u201d)\nCollectively referred to as \u201cthe Parties\u201d\nTABLE OF CONTENTS\n1 INTERPRETATION ............................................................................................ 3\n2 INTRODUCTION ................................................................................................ 5\n3 DISCLOSURE OF CONFIDENTIAL INFORMATION ......................................... 6\n4 TITLE ................................................................................................................. 7\n5 RESTRICTIONS ON DISCLOSURE AND USE OF THE CONFIDENTIAL\nINFORMATION ................................................................................................ 7\n6 STANDARD OF CARE ...................................................................................... 7\n7 RETURN OF MATERIAL CONTAINING OR PERTAINING TO THE\nCONFIDENTIAL INFORMATION ..................................................................... 7\n8 EXCLUDED CONFIDENTIAL INFORMATION .................................................. 8\n9 TERM ................................................................................................................. 9\n10 CO-OPERATION ............................................................................................... 9\n11 WARRANTIES BY PARTIES ............................................................................. 9\n12 BREACH ............................................................................................................ 9\n13 DISPUTES ......................................................................................................... 9\n14 STIPULATIO ALTERI ...................................................................................... 10\n15 NON-SOLICITATION ....................................................................................... 10\n16 NOTICES AND DOMICILIUM .......................................................................... 11\n17 APPLICABLE LAW AND JURISDICTION ....................................................... 12\n18 SEVERABILITY ............................................................................................... 12\n19 COUNTERPARTS AND ELECTRONIC SIGNATURE ..................................... 12\n20 COSTS............................................................................................................. 13\n21 GENERAL ....................................................................................................... 13\n1 INTERPRETATION\n1.1 The head notes to the clauses of this Agreement are for reference purposes only and shall in no way govern or affect the interpretation of nor modify nor amplify the terms of this Agreement nor any clause hereof.\n1.2 Unless inconsistent with the context, the following words and expressions shall have the following meanings and cognate expressions shall bear corresponding meanings \u2013\n1.2.1 \u201cAgreement\u201d means this agreement and all amendments thereof;\n1.2.2 \u201cConfidential Information\u201d means any confidential information, documentation or data of whatever nature relating to a Party or its subsidiaries which may have been or which may be obtained by or disclosed to the other Party during the course of its relationship with such Party, whether in writing, in electronic form or pursuant to discussions, including without limitation: trade secrets, know-how, marketing and advertising strategies, strategic objectives, planning or ideas, research, business activities, business relationships, products or proposed products, proposals, pricing details, strategies, customer and client details, schematics, software, computer programmes and technology, operating procedures and methodologies, designs, drawings, functional and technical requirements and specifications and any other technical, business, financial or market information or any other information which may reasonably be regarded as being confidential and of a proprietary nature to such Party or any of its subsidiaries or holding companies and;\n1.2.3 \u201cDisclosing Party\u201d means the Party disclosing Confidential Information;\n1.2.4 \u201cAfriGIS\u201d means AfriGIS (Pty) Ltd (Registration Number: 1997/006716/07), a company incorporated in terms of the laws of South Africa.\n1.2.5 \u201cParties\u201d means the signatories to this Agreement and \u201cParty\u201d shall, as the context requires, be a reference to any one of them;\n1.2.6 \u201cReceiving Party\u201d means the Party receiving Confidential Information;\n1.2.7 \u201cSignature Date\u201d means the date of signature of this Agreement by the Party signing last in time; and\n1.2.8 \u201cClient\u201d means Client Name, a company incorporated in terms of the laws of South Africa which provides \u2026\u2026\u2026\u2026\u2026\u2026..\n1.2.9 Unless inconsistent with the context, an expression which denotes \u2013\n1.2.10 any one gender includes the other gender;\n1.2.11 a natural person includes a juristic person, partnership, trust or any association of persons and vice versa;\n1.2.12 the singular includes the plural and vice versa.\n1.3 If any provision appearing in a definition or elsewhere in this Agreement is a substantive provision conferring rights or imposing obligations on either Party, effect shall be given to it as if it were a substantive provision of this Agreement notwithstanding that it does not appear in the body of the Agreement.\n1.4 Defined terms appearing in this Agreement in title case shall be given their meaning as defined, while the same terms appearing in lower case shall be interpreted in accordance with their plain English meaning, and shall, unless the context otherwise requires, include the terms as defined. Terms, acronyms and phrases not defined in this Agreement and known in an industry will be interpreted in accordance with their generally accepted meanings in such industry.\n1.5 Reference to \u201cmonth(s)\u201d shall be construed as calendar month(s) (i.e. one or more of the twelve periods into which a conventional year is divided) and reference to \u201cyear\u201d shall be to 12 consecutive calendar months (e.g. 1 April to 31 March). Reference to \"days\" shall be construed as calendar days unless qualified by the word \"business\", in which instance a \"business day\" shall be any day other than a Saturday, Sunday or public holiday as gazetted by the government of the Republic of South Africa from time to time. Any reference to \"business hours\" shall be construed as being the hours between 08:00 and 16:30 on any business day. Any reference to time shall be based upon South African standard time.\n1.6 Unless specifically otherwise provided, any number of days prescribed shall be determined by excluding the first and including the last day or, where the last day falls on a day that is not a business day, the next succeeding business day.\n1.7 Where figures are referred to in numerals and in words, and there is any conflict between the two, the words shall prevail, unless the context indicates a contrary intention.\n1.8 Any reference in this Agreement to an enactment is to that enactment at the Signature Date as amended or re-enacted from time to time.\n1.9 The rule of construction that, in the event of ambiguity, the contract shall be interpreted against the Party responsible for the drafting thereof, shall not apply in the interpretation of this Agreement.\n1.10 The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement which expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.\n1.11 Any communication required to be in writing in terms of this Agreement may be sent by data message, as defined in the Electronic Communications and Transactions Act, No. 25 of 2002, as amended.\n2 INTRODUCTION\n2.1 Client is a company which provides \u2026\u2026\u2026\u2026\u2026\u2026.\n2.2 AfriGIS is a company which offers geographical data, customised mobile and web applications and location-based business consulting.\n2.3 The Parties are currently engaged in proprietary discussions pertaining to \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026... This entails the disclosure of Confidential Information.\n2.4 The Parties wish to record the terms and conditions upon which each shall disclose Confidential Information to the other, which terms and conditions shall constitute a binding and enforceable Agreement between the Parties and their agents.\n2.5 This Agreement shall also bind the Parties, notwithstanding the Signature Date, in the event that either Party shall have disclosed any Confidential Information to the other Party prior to the Signature Date.\n3 DISCLOSURE OF CONFIDENTIAL INFORMATION\n3.1 The Disclosing Party shall only disclose the Confidential Information to the Receiving Party to the extent deemed necessary or desirable by the Disclosing Party in its sole discretion.\n3.2 The Receiving Party acknowledges that the Confidential Information is a valuable, special and unique asset proprietary to the Disclosing Party.\n3.3 The Receiving Party agrees that it will, during or after the course of their relationship and/or the term of this Agreement as described in clause 9, keep the Confidential Information in the strictest confidence and will not disclose it to any third party for any reason or purpose whatsoever without the prior written consent of the Disclosing Party, save in accordance with the provisions of this Agreement, and the Parties undertake to each other that their holding and subsidiary companies or agents shall be bound by the provisions of this Agreement. For avoidance of doubt, in this Agreement \u201cthird party\u201d means any party other than Client and AfriGIS and their holding and subsidiary companies or agents.\n3.4 Notwithstanding anything to the contrary contained in this Agreement the Parties agree that the Confidential Information may be disclosed by the Receiving Party to its professional advisors on a need-to-know basis; provided that that Party takes whatever steps are necessary to procure that such professional advisors agree to abide by the terms of this Agreement to prevent the unauthorised disclosure of the Confidential Information to third parties. For purposes of this clause, the Receiving Party\u2019s professional advisers and employees, directors or managers shall be deemed to be acting, in the event of a breach, as that Party\u2019s duly authorised agents.\n3.5 The Receiving Party agrees \u2013\n3.5.1 not to utilise, exploit or in any other manner whatsoever use the Confidential Information for any purpose whatsoever whether for its own benefit or for that of others without the prior written consent of the Disclosing Party;\n3.5.2 that the unauthorised disclosure of the Confidential Information to a third party may cause irreparable loss, harm and damage to the Disclosing Party. Accordingly, the Receiving Party indemnifies and holds the Disclosing Party harmless against any loss, claim, harm or damage, of whatever nature, suffered or sustained by the Disclosing Party pursuant to a breach by the Receiving Party of the provisions of this Agreement.\n4 TITLE\nAll Confidential Information disclosed by the Disclosing Party to the Receiving Party is acknowledged by the Receiving Party \u2013\n4.1 to be proprietary to the Disclosing Party; and\n4.2 not to confer any rights to the Receiving Party of whatever nature in the Confidential Information.\n5 RESTRICTIONS ON DISCLOSURE AND USE OF THE CONFIDENTIAL INFORMATION\nThe Receiving Party undertakes not to use the Confidential Information for any purpose other than \u2013\n5.1 that for which it is disclosed;\n5.2 in accordance with the provisions of this Agreement; and\n5.3 in accordance with applicable data privacy legislation, as amended from time to time.\n6 STANDARD OF CARE\nThe Receiving Party agrees that it shall protect the Confidential Information disclosed to or obtained by it by using the same standard of care that the Receiving Party applies to safeguard its own proprietary, secret or Confidential Information and that the information shall be stored and handled in such a way as to prevent any unauthorised disclosure thereof.\n7 RETURN OF MATERIAL CONTAINING OR PERTAINING TO THE CONFIDENTIAL INFORMATION\n7.1 The Disclosing Party may, at any time, request the Receiving Party to return any material containing, pertaining to or relating to the Confidential Information and may, in addition request the Receiving Party to furnish a written statement to the effect that, upon such return, the Receiving Party has not retained in its possession, or under its control, either directly or indirectly, any such material.\n7.2 As an alternative to the return of the material contemplated in clause 7.1, the Receiving Party shall, at the instance of the Disclosing Party, destroy such material and furnish the Disclosing Party with a written statement from authorised officers to the effect that all such material has been destroyed.\n7.3 The Receiving Party shall comply with a request in terms of this clause, within 14 (fourteen) calendar days of receipt of such a request.\n8 EXCLUDED CONFIDENTIAL INFORMATION\nThe obligations of the Receiving Party pursuant to the provisions of this Agreement shall not apply to any Confidential Information that \u2013\n8.1 is or was known to, or in the possession of the Receiving Party prior to disclosure thereof by the Disclosing Party;\n8.2 is or becomes publicly known, otherwise than as a result of a breach of this Agreement by the Receiving Party;\n8.3 is developed independently of the Disclosing Party by the Receiving Party in circumstances that do not amount to a breach of the provisions of this Agreement;\n8.4 is disclosed by the Receiving Party to satisfy an order of a court of competent jurisdiction or to comply with the provisions of any law or regulation in force from time to time; provided that in these circumstances, the Receiving Party shall advise the Disclosing Party to take whatever steps it deems necessary to protect its interests in this regard and provided further that the Receiving Party will disclose only that portion of the information which it is legally required to disclose and the Receiving Party will use its reasonable endeavours to protect the confidentiality of such information to the greatest extent possible in the circumstances;\n8.5 is disclosed to a third party pursuant to the prior written authorisation of the Disclosing Party; and\n8.6 is received from a third party in circumstances that do not result in a breach of the provisions of this Agreement.\n9 TERM\nThis Agreement and the undertakings contained herein shall commence upon the Signature Date and shall continue for a period of 2 (two) years thereafter.\n10 CO-OPERATION\nThe Parties undertake at all times to co-operate with each other in good faith in order to carry out this Agreement and to implement all transactions and steps contemplated herein.\n11 WARRANTIES BY PARTIES\nEach Party warrants that \u2013\n11.1 it has the legal capacity and has taken all necessary corporate action required to empower and authorise it to enter into and implement this Agreement on the terms and conditions herein set out;\n11.2 this Agreement constitutes an agreement valid and binding on it and enforceable against it in accordance with its terms.\n12 BREACH\nIn the event that a Party should breach the provisions of this Agreement, then the other Party shall be entitled to invoke all remedies available to it in law including without limitation the institution of urgent interim proceedings, an action for damages and/or specific performance and/or any other equitable relief for any threatened or actual breach of the provisions of this Agreement.\n13 DISPUTES\n13.1 In the event of any dispute or difference arising between the Parties relating to or arising out of this Agreement, including the implementation, execution, interpretation, rectification, termination or cancellation of this Agreement, the chief executive officers of the Parties or any of their designated officials shall upon request by any Party meet to attempt to settle such dispute or difference, and failing settlement within a period of 7 (seven) business days from such a request, the said dispute or difference shall on demand by any Party be submitted to arbitration in Johannesburg in accordance with the Rules of the Arbitration Foundation of Southern Africa by an arbitrator or arbitrators appointed by the Foundation.\n13.2 The Parties irrevocably agree that the decision in any arbitration proceedings \u2013\n13.2.1 will be binding on all of them;\n13.2.2 will forthwith be carried into effect;\n13.2.3 may be made an order of any court of competent jurisdiction.\n13.3 Nothing herein contained shall be deemed to prevent or prohibit either Party from applying to the appropriate court for urgent relief.\n13.4 The provisions of this clause will continue to be binding on the Parties notwithstanding any termination or cancellation of the Agreement.\n14 STIPULATIO ALTERI\nTo the extent that any provisions of this Agreement purport to be for the benefit of a Client Brand, the Parties confirm that such provisions are intended to be a stipulatio alteri (i.e. a contract for the benefit of a third party) capable of acceptance at any time by such Client Brand. Such acceptance may only take place by way of a written notice to that effect given to AfriGIS by Client on behalf of the Client Brand in question.\n15 NON-SOLICITATION\nUnless agreed to the contrary between the parties each Party hereby undertakes in favour of the other that it will not at any time during the currency of this Agreement and for a period of 12 months after the expiry or termination of this Agreement (for any reason whatsoever), whether directly or indirectly:\n15.1 encourage or entice or incite or persuade any employee of the other (or any employee of any member of each other's group of companies or any entity in which either is interested) to terminate their employment by the other of them (or any member of its group of companies or any entity in which either is interested); and/or\n15.2. furnish any information or advice (whether written or oral) to any employee then employed by the other of them (or any member of each other's group of companies or any entity in which either is interested) to any prospective employer of such employee or use any other means which are directly or indirectly designed, or in the ordinary course of events calculated, to result in any such employee terminating his employment by the other of them (or any member of each other's group of companies or any entity in which either is interested) and/or becoming employed by or directly or indirectly in any way interested in or associated with any other person or entity.\n16 NOTICES AND DOMICILIUM\n16.1 The Parties hereto choose domicilium citandi et executandi for all purposes of and in connection with this Agreement as follows \u2013\n16.1.1 AfriGIS:\n - JV Communicatio For the attention of: The Managing Director\n Physical address: Rigel Park Block A\n 446 Rigel Avenue South\nErasmusrand\nEmail: legal@afrigis.co.za\n16.1.2 Client:\n For the attention of: The Managing Director Physical address: \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.. \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.. \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\n Fax/Email: \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.\n16.2 Any Party hereto shall be entitled to change its domicilium from time to time, and any such change shall only be effective upon receipt of notice in writing by the other Party of such change.\n16.3 All notices, demands, legal proceedings, communications or payments intended for any Party shall be made or given at such Party\u2019s domicilium for the time being.\n16.4 All notices to be given in terms of this Agreement shall be in writing and shall \u2013\n16.4.1 if delivered by hand during business hours, be rebuttably presumed to have been received on the date of delivery, and if delivered after business hours or on a day which is not a business day, be rebuttably presumed to have been received on the following business day;\n16.4.2 if sent by e-mail during business hours, be rebuttably presumed to have been received on the date of successful transmission of the email, and if sent after business hours or on a day which is not a business day, be rebuttably presumed to have been received on the following business day;\n16.4.3 if sent by air mail, be rebuttably presumed to have been received on the tenth day after posting.\n16.5 Notwithstanding anything to the contrary herein contained a written notice or communication actually received by a Party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen domicilium.\n17 APPLICABLE LAW AND JURISDICTION\n17.1 This Agreement will in all respects be governed by and construed under the laws of the Republic of South Africa.\n17.2 Subject to the provisions of this Agreement, the Parties hereto hereby consent and submit to the non-exclusive jurisdiction of the North Gauteng Provincial Division of the High Court of the Republic of South Africa in any dispute arising from or in connection with this Agreement. The Parties agree that any costs awarded will be recoverable in accordance with the High Court tariff, determined on an attorney-and-own-client scale.\n18 SEVERABILITY\nIf any clause or term of this Agreement or part thereof should be invalid, unenforceable, defective or illegal for any reason whatsoever, then the remaining terms and provisions of this Agreement shall be deemed to be severable therefrom and shall continue in full force and effect unless such invalidity, unenforceability, defect or illegality goes to the root of this Agreement.\n19 COUNTERPARTS AND ELECTRONIC SIGNATURE\n19.1 This Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which shall collectively constitute one and the same agreement.\n19.2 This Agreement shall be validly signed notwithstanding that the signature page is signed by the Parties in different locations and returned by email. In these circumstances the Parties shall endeavour to circulate the original Agreement for signature, but the failure to do so shall not invalidate this Agreement or change the date of its signature or coming into force.\n20 COSTS\nEach Party shall bear its own costs of and in connection with the negotiation, drafting and preparation of this Agreement.\n21 GENERAL\n21.1 This document cancels and supersedes all prior negotiations and agreement between the Parties with regard to the subject matter hereof and constitutes the sole record of the agreement between the Parties in regard to the subject matter thereof.\n21.2 No Party shall be bound by any express or implied term, representation, warranty, promise or the like, not recorded herein.\n21.3 Unless otherwise stipulated in this Agreement, no addition to, variation or consensual cancellation of this Agreement shall be of any force or effect unless in writing and signed by or on behalf of all the Parties.\n21.4 No indulgence which a Party (\u201cthe grantor\u201d) may grant to the other Party (\u201cthe grantee\u201d) shall constitute a waiver of any of the rights of the grantor, who shall not thereby be precluded from exercising any rights against the grantee which might have arisen in the past or which might arise in the future.\n21.5 The Parties undertake at all times to do all such things, to perform all such acts and to take all such steps and to procure the doing of all such things, the performance of all such actions and the taking of all such steps as may be open to them and necessary for or incidental to the putting into effect or maintenance of the terms, conditions and import of this Agreement.\nSIGNED AT THIS DAY OF 20__\nWITNESSES: for:\nAfriGIS\n1. ___________________________\n2. ___________________________ ______________________________\nwho warrants that he/she is duly authorised thereto\nSIGNED AT THIS DAY OF 20__\nWITNESSES: for:\nCLIENT\n1. ___________________________\n2. ___________________________ ______________________________\nwho warrants that he/she is duly\n",
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"text": "NON-DISCLOSURE AGREEMENT\nThis Agreement (\u201cAgreement\u201d) dated as of __________, is between ________________ (\u201cBorrower\u201d) and ____________________ (\u201cLending Agent\u201d), acting in its capacity as agent for its various securities lending clients (each a \u201cPrincipal\u201d).\nWHEREAS, Borrower and Lending Agent are parties to a securities lending agreement dated ________ (which, as the same may be amended from time to time, is herein referred to as \u201cBorrowing Agreement\u201d) pursuant to which Lending Agent loans securities to Borrower on behalf of Principals;\nWHEREAS, the Borrower is required to obtain certain information (specified below) in order to meet certain regulatory requirements with respect to its credit and risk management processes regarding its continuing business relationship with Principals, and for certain financial reporting calculations; and\nWHEREAS, in order for Lending Agent to provide such information, Lending Agent requires, and Borrower is willing to provide assurances that such information will be held in confidence by the credit, risk management and financial reporting areas of the firm, and to use the information only as set forth herein.\nNOW, THEREFORE, in consideration of the mutual agreements contained herein, the parties hereby agree as follows:\n1. In connection with any transaction entered or contemplated to be entered pursuant to the Borrowing Agreement, Lending Agent shall provide to the Borrower information regarding each Principal, including the Name, Tax or Government ID, address, and other specific identifying information, financial information, corporate structure and organization, and/or information concerning Loans entered into on behalf of specific Principals (collectively, the \u201cInformation\u201d).\n2. Borrower shall use the Information solely in its credit, risk management and net capital processes, including, without limitation, functions such as concentration limit monitoring, compliance or legal review, or senior management oversight as Borrower may reasonably deem necessary to comply with regulatory requirements including, without limitation, regulatory capital computation, regulatory reporting and concentration limit monitoring.\n3. Borrower shall limit the distribution of the Information within the firm to only those credit, risk management, regulatory reporting and compliance areas who perform the functions described above. In particular, Borrower shall not permit the trading desks within the firm to have access to the Information, except and only to the extent that such trading desks are involved in the ordinary course of business in risk management functions. Borrower may also disclose the Information to its legal counsel.\n4. Borrower shall maintain the Information in confidence and shall not disclose the information to any third party without the consent of Lending Agent; provided, however, that Borrower may disclose the Information to the extent required by subpoena, court order, request from a regulatory body with jurisdiction over Borrower, or as otherwise required by law or regulation. Borrower shall not be required to keep the Information confidential to the extent that the Information (a) becomes publicly known through means other than a breach of this Agreement by Borrower; (b) was in the possession of Borrower prior to receipt thereof from the Lending Agent; or (c) is independently learned, obtained or developed by Borrower without violating the terms of this Agreement.\n5. If Borrower (or its employees or agents) breaches or threatens to breach this Agreement, Lending Agent may, in addition to any other remedies available, seek any equitable remedy it deems appropriate to enjoin an actual or threatened violation by Borrower.\n6. Borrower acknowledges that, except with respect to information regarding loans entered into on behalf of specific Principals, Lending Agent did not create or compile the Information and is merely forwarding information obtained from Principals. 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"text": "CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis Confidentiality and Non-disclosure Agreement (hereinafter the \u201cAgreement\u201d) is made on the Insert Date of final Signature Here\nBETWEEN:\n(1) Aspiegel Limited, incorporated and registered in Ireland with company number 561134 whose registered address is at Unit 1B/1C Sandyford Business Centre, Burton Hall, Dublin 18 (\u201cAspiegel\u201d)\nand\n(2) Insert the other party\u2019s name or company name, incorporated and registered in insert country of incorporation with company number insert registered number whose registered address is at insert their full address (\u201cCompany\u201d)\nhereinafter known each as a \u201cParty\u201d and together the \u201cParties\u201d.\nWHEREAS\n(A) Each Party wishes to disclose to the other Party Confidential Information in relation to the Purpose. Each party wishes to ensure that the other party maintains the confidentiality of its Confidential Information.\n(B) In consideration of the benefits to the Parties of the disclosure of the Confidential Information, the Parties have agreed to comply with the following terms in connection with the use and disclosure of Confidential Information.\nNOW IT IS HEREBY AGREED AS FOLLOWS: -\n1. Definitions and Interpretation\nIn this Agreement the following words and expressions shall, where the context so admits, be deemed to have the following meanings:\nAffiliate(s): means in relation to a Party, any other person who Controls or is Controlled by, or under common Control with, that Party.\nConfidential Information: means all confidential information (however recorded, preserved or disclosed) disclosed by a Party or its Representatives to the other Party and that Party's Representatives including but not limited to:\n(a) the fact that discussions and negotiations are taking place concerning the Purpose and the status of those discussions and negotiations;\n(b) the existence and terms of this Agreement;\n(c) any information relating to:\n(i) the business, affairs, customers, clients, suppliers, plans, intentions, or market opportunities of the Disclosing Party or of the Disclosing Party's Affiliates; and\n(ii) the operations, processes, product information, know-how, designs, specifications, trade secrets, computer programs or software of the Disclosing Party or of the Disclosing Party's Affiliates; and\n(d) any information or analysis derived from Confidential Information.\nControl: means when a person directly or indirectly holds or controls a majority of the voting rights of, or the right to appoint or remove a majority of the board of directors of, or the right to exercise a dominant influence over or otherwise control (by virtue of an undertaking's constitution or otherwise), another person.\nDisclosing Party: means a Party to this Agreement which discloses or makes available directly or indirectly Confidential Information.\nPurpose: means insert a very precise purpose eg the evaluation or establishment of a collaboration in respect of a particular project.\nRecipient Party: means a Party to this Agreement which receives or obtains directly or indirectly Confidential Information.\nRepresentative(s): means employees, agents, officers, professional advisers and Affiliates of the Recipient Party.\nClause headings shall not affect the interpretation of this Agreement.\nA person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).\nUnless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.\nA reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment, and includes any subordinate legislation for the time being in force made under it.\nReferences to clauses are to the clauses of this Agreement.\n2. Confidentiality Undertaking\nIn consideration of the mutual disclosure of Confidential Information the Recipient Party undertakes:-\n(a) to keep secret and confidential all Confidential Information of the Disclosing Party;\n(b) to use or apply the Confidential Information of the Disclosing Party solely for the Purpose and so as to determine whether or not and on what terms the Parties might wish to proceed;\n(c) not to use, copy, adapt, alter, disclose or part with possession of or apply the Confidential Information of the Disclosing Party for any other purpose or its own purposes other than as described in paragraph (b) above;\n(d) not at any time, whether the negotiations proceed or not, to copy, disclose or otherwise make available to any third party without the written consent of the Disclosing Party, any of the Confidential Information of the Disclosing Party other than to its Representatives who are required for the Purpose to receive and consider the Confidential Information provided that the Recipient Party informs its Representatives of the confidential nature of the Confidential Information before disclosure and procures that its Representatives shall, in relation to any Confidential Information disclosed to them, comply with this Agreement as if they were the Recipient Party and the Recipient Party shall at all times be liable for the failure of any Representative to comply with the terms of this Agreement;\n(e) to provide proper and secure storage for each and every part of the Confidential Information received by it in tangible form whilst it is in its custody, power or control;\n(f) to return or destroy or if stored in electronic form to erase from its systems (to the extent possible) at its own expense the Confidential Information of the Disclosing Party together with any copies in its possession or in the possession of its Representatives at the request of the Disclosing Party.\n3. Disclosure to Third Parties\nThe Recipient Party shall have the right to disclose the Confidential Information to a third party involved in the Purpose, subject to the Recipient Party obtaining the prior written consent of the Disclosing Party to such disclosure and the Recipient Party agrees that it shall procure that the third party shall first enter into a written acknowledgement and undertaking of confidentiality in favour of both Parties to this Agreement and in a form which is acceptable to the Disclosing Party.\n4. Limitation\n4.1 The confidentiality undertakings at clauses 2 and 3 above shall not apply to any Confidential Information which the Recipient Party can prove:\n(a) is or becomes generally available to the public other than as a result of its disclosure by the Recipient Party or its Representatives in breach of this Agreement or of any other undertaking of confidentiality addressed to the Party to whom the information relates; or\n(b) is in its possession or known to it by being in its use or being recorded in its files or computers or other recording media, without any confidentiality obligation, prior to the disclosure thereof by the Disclosing Party; or\n(c) was obtained legally from any third party, and is not the subject of any restriction as to its use or disclosure imposed by or on that third party at the time of provision; or\n(d) is developed by the Recipient Party independently of the information disclosed by the Disclosing Party.\n4.2 Confidential Information shall not be deemed to be in the public domain merely because any part of said Confidential Information is embodied in general disclosures or because individual features, components or combinations thereof are known or become known to the public.\n4.3 The Recipient Party may disclose Confidential Information to the extent required:\n(a) by any order of any court of competent jurisdiction or any competent judicial, governmental, regulatory or supervisory body;\n(b) by the rules of any listing authority, stock exchange or any regulatory or supervisory body with which the Recipient Party is bound to comply; or\n(c) by applicable laws or regulations,\nprovided that before it discloses any Confidential Information the Recipient Party will, to the extent permitted by applicable law and regulation, inform the Disclosing Party of the full circumstances and the information required to be disclosed, consult with the Disclosing Party as to possible steps to avoid or limit disclosure, take such of those steps as the Disclosing Party may reasonably require and, where the disclosure is to be by way of a public announcement, make reasonable efforts to agree the wording of the announcement with the Disclosing Party in advance.\n5. No rights in and no warranty on Confidential Information\n5.1 Each Party acknowledges and agrees that it shall not acquire by implication or otherwise any right or licence on or title to any Confidential Information communicated by or acquired from the other Party;\n5.2 Neither Party makes any express or implied representation or warranty as to the accuracy or completeness of any Confidential Information;\n5.3 Nothing in this Agreement shall require any Party to disclose Confidential Information to the other Party nor limit either Party's right to conduct discussions with third parties so long as such discussions do not breach the terms of this Agreement.\n6. Term and Termination\n6.1 If either Party decides not to become, or continue to be involved in the Purpose it shall notify the other Party in writing immediately. The obligations of each Party shall, notwithstanding any earlier termination of negotiations or discussions between the Parties in relation to the Purpose, continue for a period of five (5) years from the termination of this Agreement.\n6.2 Termination of this Agreement shall not affect any accrued rights or remedies to which either Party is entitled.\n7. Remedies\nWithout prejudice to any other rights or remedies that any Party may have, the Recipient Party acknowledges and agrees that damages alone would not be an adequate remedy for any breach by the Recipient Party of the provisions of this Agreement, and that the remedies of injunction and specific performance as well an any other equitable relief for any threatened or actual breach by the Recipient Party or its Representatives would be more appropriate remedies.\n8. Entire Agreement and Variation\n8.1 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous drafts, agreements, arrangements and understandings between them, whether written or oral, relating to its subject matter.\n8.2 No variation of this Agreement shall be effective unless it is in writing and signed by each of the Parties (or their authorised representatives).\n9. No Waiver\n9.1 Failure by either Party to enforce any of its rights under this Agreement shall not be taken as or deemed to be a waiver of such.\n9.2 No waiver or amendment of any provisions of this Agreement shall be valid or binding against either Party unless the waiver or amendment is made in writing and signed by the duly appointed representatives of both Parties.\n10. Assignment\nThis Agreement is personal to the Parties and shall not be assigned or otherwise transferred in whole or in part by either Party without the prior written consent of the other Party.\n11. Notices\nAny notice required to be given under this Agreement, shall be in writing and shall be delivered personally, or sent by pre-paid first class post or recorded delivery or by commercial courier, to each Party required to receive the notice at its address as set out above or as otherwise specified by the relevant Party by notice in writing to each other Party.\n12. No Partnership\nNothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute any party the agent of another party, nor authorise any Party to make or enter into any commitments for or on behalf of any other Party.\n13. Third Party Rights\nA person who is not a Party to this Agreement shall not have any rights under or in connection with it.\n14. Governing Law\nThis Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with Irish law.\nThe parties irrevocably agree that the courts of Ireland shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).\nThis Agreement has been entered into on the date stated at the beginning of it.\nSigned for and on behalf of:-\nAspiegel Limited\nSigned: .....................................\nName: .....................................\nDate: .....................................\nSigned for and on behalf of:-\nInsert Name of Second Party\nSigned: .......................................\nName: .......................................\nDate: .......................................\n",
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"file_name": "Attachment B - Intent to Propose and Non-Disclosure Agreement.pdf",
"text": "ATTACHMENT B \u2013 INTENT TO PROPOSE AND NON DISCLOSURE AGREEMENT\n1. INTENT TO PROPOSE\nRFP 180000015\nBy signing this form, the contractor confirms that they have received the RFP and intend to submit a proposal in response to the RFP.\nPrinted Name of Authorized Representative\nTitle\nSignature\nDate\nContractor Name\n2. CONFIDENTIALITY AGREEMENT \u2013 STATE OF ALASKA\nThis Confidentiality Agreement (the \"Agreement\") applies to RFP 180000015, for AlaskaCare Travel Coordination and Administration and is made effective upon signature of the Agreement.\nBackground Information\nA. State is in the process of evaluating certain potential services to be provided by Recipient in connection with the administration of travel and care benefits (the \"Services\") under the self-funded health plan State sponsors for eligible employees (the \"Plan\").\nB. The data and information that State expects to provide to Recipient for use in evaluating Recipient's proposal to provide the Services is confidential and not public data and the parties desire to enter into a Confidentiality Agreement to set forth their respective duties and obligations regarding State's data and information.\nProvisions\nNOW, THEREFORE, in consideration of the foregoing Background Information, which is incorporated by this reference as if fully re-written herein and the mutual covenants and provisions set forth herein, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:\nSection 1. Confidential Information. As used in this Agreement, \"Confidential Information\" shall mean any and all technical and non-technical information about State, including, but not limited to data and information processed by State in connection with evaluating the Services. The term shall also include all \"protected health information\" (as defined by 45 C.F.R. \u00a7 160.103) and any other personally identifiable information (\"PII\") regarding any individual who is, or may become, eligible for the State's Plan (including, but not limited to, such Plan's travel benefit). The Recipient hereby agrees to abide by State's determination that such information is Confidential Information and that the same is of a special and unique nature and value, important and material, that it gravely affects the effective and successful conduct of the business and that it may include personal identification information or other information of State or State employees and their dependents that is to be maintained as confidential.\nSection 2. Preservation of Confidentiality. All Confidential Information (a) supplied by any employee, agent, consultant, or independent contractor of State (\"State Representatives\") to the Recipient or any employee, agent, officer, director, shareholder, independent contractor or representative of the Recipient (collectively, the \"Recipient Representatives\"), (b) obtained by the Recipient or any Recipient Representatives from any documents, meetings or telephone conversations with any State Representatives or from books or records of State, (c) obtained by the Recipient or any Recipient Representatives or in any other manner including through hosting the software evaluation on Recipient's website, or (d) jointly or individually developed by State and/or Recipient shall be protected and maintained by the Recipient on a confidential basis and the Recipient shall not use any of the Confidential Information for any purposes (other than as permitted by this Agreement). The Recipient shall refrain from directly or indirectly disclosing any of the Confidential Information to any person, firm, fund, or entity, or knowingly making any Confidential Information available to any others for any use (other than as permitted by this Agreement). Failure to mark any of the Confidential Information as confidential or proprietary shall not affect its status as Confidential Information. In furtherance and not in limitation of the foregoing provisions, the Recipient shall:\n(a) Restrict disclosure of the Confidential Information only to those of the persons as may be absolutely necessary;\n(b) Advise all persons to whom Confidential Information is disclosed of the strict obligations of confidentiality hereunder; and\n(c) Take such steps to protect the confidentiality of the Confidential Information as may be taken to protect the Recipient's own confidential materials, but in no event shall the Recipient use less than a reasonable degree of care.\nIn addition to the foregoing, Recipient agrees to use reasonable and appropriate administrative, physical and technological safeguards to: (i) prevent use or disclosure of the Confidential Information other than as provided for by this Agreement; and (ii) implement administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of Confidential Information. Recipient represents and warrants that it has implemented, and during the term of this Agreement shall maintain, comprehensive written privacy and security policies and procedures and the necessary administrative, technical and physical safeguards appropriate to the size and complexity of Recipient's operations and the nature and scope of its activities.\nSection 3. Report of Breach. Recipient shall promptly notify State of a breach of any Confidential Information within forty-eight (48) hours of when Recipient discovers such breach. A breach shall be treated as discovered by Recipient as of the first day on which such breach is known, or by exercising reasonable diligence would have been known, to any person, other than the person committing the breach, who is an employee, officer, Recipient Representative or other agent of Recipient. Recipient's notification shall be in writing and, if the Confidential Information is PHI or PII, shall include identification of each individual whose PHI or PII has been, or is reasonably believed by Recipient to have been, subject to the breach. Recipient shall include the following information in its notification of breach to State:\n(a) A description of the breach, including the date of the breach and the date of the discovery of the breach, if known;\n(b) A description of the types of Confidential Information that was involved in the breach (such as whether full name, social security number, date of birth, home address, account number, credit card numbers, diagnosis, disability code or other types of PHI or PII were involved);\n(c) Any steps that individuals should take to protect themselves from potential harm resulting from the breach;\n(d) A description of what Recipient is doing to investigate the breach, to mitigate the harm to individuals and to protect against further breaches; and\n(e) Contact procedures for Individuals to ask questions or learn additional information, which shall include a toll free telephone number, an e-mail address, Web site or postal address.\nIn the event that some of the above listed information is not known by Recipient at the time of notification of State of the breach, Recipient shall provide such information to State as soon as it becomes available to Recipient, but in no event later than thirty (30) days after Recipient discovers such breach. Recipient shall also provide such assistance and further information with regard to the breach to State as reasonably requested by State in order for State to timely meet its notice obligations to individuals, the media, and/or governmental agencies, as applicable, under any law or regulation requiring notification of breaches of PHI or PII.\nSection 4. Recipient Representatives. Recipient agrees to ensure that any Recipient Representative to whom it provides Confidential Information agrees in writing to the same restrictions and conditions that apply through this Agreement to Recipient with respect to Confidential Information. Such written agreement shall also require the Recipient Representative to implement reasonable and appropriate administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of the Confidential Information that it receives. Recipient, and not the State, is solely responsible for Recipient Representatives' uses and disclosures of Confidential Information.\nSection 5. Ownership of Information. All information learned or developed pursuant to this Agreement shall be \"Confidential Information\" as defined in this Agreement and shall be the property of State.\nSection 6. Information Not Covered Under This Agreement. This Agreement shall not apply to specific information if:\n(a) The information is or later becomes generally available to the public, except as a result of an unauthorized disclosure by the Recipient or Recipient Representatives;\n(b) State gives its prior written consent to the disclosure of information or the waiver of any provision of this Agreement; or\n(c) The information is disclosed to the Recipient by a third party (except an employee or former employee of Recipient or its affiliates) who is not under a legal restriction not to so disclose such information.\nSection 7. Fulfillment of Purpose. When requested by State, the Recipient shall:\n(a) Return all documents, copies of documents, computer records and other means of recording or storing Confidential Information in Recipient's or Recipient Representatives' possession to State within five (5) calendar days or, at Recipient's option, destroy all such items;\n(b) Certify in writing to State that the Recipient has so complied; and\n(c) Not use or disclose the Confidential Information or transact business in any manner based upon the Confidential Information.\nSection 8. Representations and Warranties. The Recipient represents, warrants and covenants to State that it is entering into this Agreement with the knowledge that this Agreement (including, specifically, this Section 8 is a substantive and material inducement to State to engage in the evaluation of the Recipient's Services, and that no disclosure would be made to the Recipient or the Representatives by State but for the existence of this Agreement.\nSection 9. Indemnification of State. The Recipient shall indemnify and hold State harmless from and against all liability, loss, cost or expense (including attorneys' fees) which State may sustain or incur by reason of the breach of any agreements, representations, warranties or covenants of or relating to Recipient or any of the Recipient Representatives contained in this Agreement or by reason of the enforcement by State of any such agreements, representations, warranties or covenants set forth herein. Without limiting the foregoing, in the event of a breach of PHI or PII or similar breach or wrongful disclosure as defined by an applicable law or regulation requiring notification or other remedial action due to the breach or wrongful disclosure of PHI, PII, or other personal or financial information (\"Breach Law\") that arose out of or related to Recipient's or Recipient Representatives' acts and omissions, Recipient shall indemnify State against all costs and expenses incurred by State that are associated with complying with the notification requirements under the Breach Law. Such indemnification shall include all costs related to notifying individuals or any other entity required to be notified by Breach Law, any remediation necessitated by the breach, any fines or penalties arising out of the breach, and any other actions required or that are customary in the industry to be taken pursuant to the Breach Law (including, without limitation, credit or identity monitoring for affected individuals).\nSection 10. Insurance to be Secured by the Recipient. The Recipient shall maintain professional liability insurance/network security as well as the comprehensive general commercial liability insurance, including coverage to protect against any errors or omissions of the Recipient and Recipient's Representatives, crime/dishonesty insurance relating to Recipient and Recipient's Representatives and the preserving of the Confidential Information and workers' compensation, if required by applicable law.\nSection 11. Term. This Agreement may be terminated by State on five (5) days prior written notice to the Recipient.\nSection 12. Survival. The restrictions and obligations under this Agreement shall survive any expiration, termination or cancellation of this Agreement and shall continue to bind Recipient, its successors and assigns.\nSection 13. Injunctive Relief. The Recipient agrees that this Agreement is necessary to protect the value of the Confidential Information, and the Recipient covenants that any breach of this Agreement shall result in irreparable damage to State to which State shall have no adequate remedy at law, and the Recipient consents to an injunction by any court of competent jurisdiction in Juneau City and Borough, Alaska in favor of State enjoining any breach of this Agreement without the necessity of posting bond, or if bond is required, the same shall not exceed one hundred dollars, without prejudice to any other right or remedy to which State may be entitled.\nSection 14. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Alaska (regardless of the laws that might be applicable under principles of conflicts of law) as to all matters, including but not limited to, matters of validity, construction, effect and performance.\nSection 15. Gender and Number. Words of any gender shall include the other gender and the neuter. Whenever the singular is used, the same shall include the plural wherever appropriate, and whenever the plural is used, the same shall also include the singular wherever appropriate. Without limiting the generality of the foregoing, the plural form of any term that is defined in the singular shall mean collectively all items so defined and the singular form of any term that is defined in the plural shall mean singly each item so defined.\nSection 16. References. All references in this Agreement to particular sections, subsections or articles shall, unless expressly otherwise provided, or unless the context otherwise requires, be deemed to refer to the specific sections or articles in this Agreement. The words \"herein\", \"hereof\", \"hereunder\", \"hereinabove\" and other words of similar import refer to this Agreement as a whole and not to any particular section, subsection or article hereof. Whenever a party to this Agreement agrees or is under an obligation not to unreasonably withhold its consent or approval to any matter, it shall be construed that such party is obligated not to unreasonably withhold, delay or condition its consent or approval.\nSection 17. Illustrative Terms. Whenever the word \"including\", \"includes\" or any variation thereof is used herein, such term shall be construed as a term of illustration and not a term of limitation. For example, the term \"including\" shall be deemed to mean \"including, without limitation\", and the term \"includes\" shall be deemed to mean \"includes, without limitation\".\nSection 18. Joint Preparation. This Agreement shall not be construed more strictly against any party because the party or its legal representatives participated in its drafting.\nSection 19. Response to Subpoena. Recipient shall promptly notify State if it receives a subpoena or other legal process seeking the disclosure of Confidential Information. Such notification shall be provided in a timeframe that allows State a reasonable amount of time to respond to the subpoena, object to the subpoena, or to otherwise intervene in the action to which the subpoena pertains.\nSection 20. Notification of Claims. Recipient shall promptly notify State upon notification or receipt of any civil or criminal claims, demands, causes of action, lawsuits, or governmental enforcement actions arising out of or related to this Agreement or the Confidential Information, regardless of whether State and/or Recipient are named as parties in such claims, demands, causes of action, lawsuits, or enforcement actions.\nSection 21. Assistance in Litigation or Administrative Proceedings. Recipient shall make itself and any Recipient Representatives, available to State to testify as witnesses, or otherwise, in the event of litigation or administrative proceedings being commenced against State based upon a claimed violation of any laws protecting the use or disclosure of the Confidential Information.\nSection 22. No Third Party Beneficiaries. It is the intent of the Parties that this Agreement is to be effective only in regards to their rights and obligations with respect to each other. 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"text": "NON-DISCLOSURE AGREEMENT\n(Technology Services Vendors)\nThis Non-Disclosure Agreement (this \u201cAgreement\u201d), dated as of ________________, 20 , is made by and between ______________________________________________________________________ (the \u201cContractor\u201d) and The Office of the Chief Administrative Officer of the U.S. House of Representatives (the \u201cCAO\u201d). The Contractor is a prospective offeror of (1) correspondence management system or constituent relationship management software services, (2) computer hardware maintenance services, and/or (3) systems administration support services (collectively, \u201cTechnology Services\u201d) to one or more offices within the U.S. House of Representatives (the \u201cHouse\u201d). As the contracting officer of the House, the CAO agrees to make available to the Contractor certain non-public, confidential and proprietary information about the House.\n\u201cConfidential Information\u201d means any information disclosed to the Contractor by the CAO or the House, including, but not limited to: (a) security practices, operational information, business plans, customer data, customer lists, customer names, designs, documents, drawings, engineering information, hardware configuration information, processes, products, product plans, research, services, specifications, software, source code and trade secrets; and (b) any other information designated (orally or in writing) as \u201cconfidential,\u201d \u201cproprietary\u201d or of such nature that a reasonable person would understand such information to be confidential to the CAO or the House.\nThe Contractor agrees that hereafter it shall (i) treat all Confidential Information confidentially, and (ii) use the Confidential Information solely for the purpose of evaluating the possible procurement of Technology Services (and, if such procurement is made, for the purpose of performing such Technology Services). The Contractor further agrees to require each of its employees and agents to sign a form that would bind them in writing to protect the confidentiality of such Confidential Information. All documents containing Confidential Information and all copies thereof shall be promptly returned to the CAO upon the CAO\u2019s request.\nThe Contractor understands that the CAO may seek any remedy available to it to ensure compliance with this Agreement, including, but not limited to, application for a court order prohibiting the disclosure of Confidential Information and/or disqualification from the solicitation and contracting process. The Contractor agrees that if the terms and conditions of this Agreement are violated, the Contractor and its employees and agents may be subject to administrative, civil or criminal action.\nTHE OFFICE OF THE CHIEF ADMINISTRATIVE OFFICER\nOF THE U.S. HOUSE OF REPRESENTATIVES\nCONTRACTOR ______________________________________________\nBy: ______________________________________________________\nName:\nTitle:\n",
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"text": "Attachment I. Non-Disclosure Agreement (Contractor)\nTHIS NON-DISCLOSURE AGREEMENT (\u201cAgreement\u201d) is made by and between the State of Maryland (the \u201cState\u201d), acting by and through _______________________________________ (Issuing Agency Name) (the \u201cDepartment\u201d or \u201cAgency\u201d or \u201cAuthority\u201d or \u201cCommission\u201d), and _____________________________________________ (the \u201cContractor\u201d).\nRECITALS\nWHEREAS, the Contractor has been awarded a contract (the \u201cContract\u201d) following the solicitation for ________________________________________________________ (Solicitation Title) Solicitation # ____________________; and\nWHEREAS, in order for the Contractor to perform the work required under the Contract, it will be necessary for the State at times to provide the Contractor and the Contractor\u2019s employees, agents, and subcontractors (collectively the \u201cContractor\u2019s Personnel\u201d) with access to certain information the State deems confidential information (the \u201cConfidential Information\u201d).\nNOW, THEREFORE, in consideration of being given access to the Confidential Information in connection with the solicitation and the Contract, and for other good and valuable consideration, the receipt and sufficiency of which the parties acknowledge, the parties do hereby agree as follows:\n1. Regardless of the form, format, or media on or in which the Confidential Information is provided and regardless of whether any such Confidential Information is marked as such, \u201cConfidential Information\u201d means (1) any and all information provided by or made available by the State to the Contractor in connection with the Contract and (2) any and all personally identifiable information (PII) (including but not limited to personal information as defined in Md. Ann. Code, General Provisions \u00a74-101(h) and Md. Ann. Code, State Govt. \u00a7 10-1301(c)) and protected health information (PHI) as defined in 45 CFR 160.103 that is provided by a person or entity to the Contractor in connection with this Contract. Confidential Information includes, by way of example only, information that the Contractor views, takes notes from, copies (if the State agrees in writing to permit copying), possesses or is otherwise provided access to and use of by the State in relation to the Contract.\n2. The Contractor shall not, without the State\u2019s prior written consent, copy, disclose, publish, release, transfer, disseminate, use, or allow access for any purpose or in any form, any Confidential Information except for the sole and exclusive purpose of performing under the Contract. The Contractor shall limit access to the Confidential Information to the Contractor\u2019s Personnel who have a demonstrable need to know such Confidential Information in order to perform under the Contract and who are bound by confidentiality obligations at least as restrictive as those set forth in this Agreement. Contractor shall provide copies of such agreements to the State. The names of such personnel are attached hereto and made a part hereof as Attachment I-2. Contractor shall update Attachment I-2 by adding additional names (whether Contractor\u2019s Personnel or a subcontractor\u2019s personnel) as needed, from time to time.\n3. If the Contractor intends to disseminate any portion of the Confidential Information to non-employee agents who are assisting in the Contractor\u2019s performance of the Contract or will otherwise have a role in performing any aspect of the Contract, the Contractor shall first obtain the written consent of the State to any such dissemination. The State may grant, deny, or condition any such consent, as it may deem appropriate in its sole and absolute subjective discretion.\n4. The Contractor hereby agrees to hold the Confidential Information in trust and in strictest confidence, adopt or establish operating procedures and physical security measures, and take all other measures necessary to protect the Confidential Information from inadvertent release or disclosure to unauthorized third parties and to prevent all or any portion of the Confidential Information from falling into the public domain or into the possession of persons not bound to maintain the confidentiality of the Confidential Information.\n5. The Contractor shall promptly advise the State in writing if it learns of any unauthorized use, misappropriation, or disclosure of the Confidential Information by any of the Contractor\u2019s Personnel or the Contractor\u2019s former Personnel. Contractor shall, at its own expense, cooperate with the State in seeking injunctive or other equitable relief against any such person(s).\n6. The Contractor shall, at its own expense, return to the State all Confidential Information in its care, custody, control or possession upon request of the State or on termination of the Contract.\n7. A breach of this Agreement by the Contractor or the Contractor\u2019s Personnel shall constitute a breach of the Contract between the Contractor and the State.\n8. Contractor acknowledges that any failure by the Contractor or the Contractor\u2019s Personnel to abide by the terms and conditions of use of the Confidential Information may cause irreparable harm to the State and that monetary damages may be inadequate to compensate the State for such breach. Accordingly, the Contractor agrees that the State may obtain an injunction to prevent the disclosure, copying or improper use of the Confidential Information. The Contractor consents to personal jurisdiction in the Maryland State Courts. The State\u2019s rights and remedies hereunder are cumulative and the State expressly reserves any and all rights, remedies, claims and actions that it may have now or in the future to protect the Confidential Information and seek damages from the Contractor and the Contractor\u2019s Personnel for a failure to comply with the requirements of this Agreement. In the event the State suffers any losses, damages, liabilities, expenses, or costs (including, by way of example only, attorneys\u2019 fees and disbursements) that are attributable, in whole or in part to any failure by the Contractor or any of the Contractor\u2019s Personnel to comply with the requirements of this Agreement, the Contractor shall hold harmless and indemnify the State from and against any such losses, damages, liabilities, expenses, and costs.\n9. The parties further agree that:\na. This Agreement shall be governed by the laws of the State of Maryland;\nb. The rights and obligations of the Contractor under this Agreement may not be assigned or delegated, by operation of law or otherwise, without the prior written consent of the State;\nc. The State makes no representations or warranties as to the accuracy or completeness of any Confidential Information;\nd. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement;\ne. Signatures exchanged by facsimile are effective for all purposes hereunder to the same extent as original signatures;\nf. The Recitals are not merely prefatory but are an integral part hereof; and\ng. The effective date of this Agreement shall be the same as the effective date of the Agreement entered into by the parties.\nIN WITNESS WHEREOF, the parties have, by their duly authorized representatives, executed this Agreement as of the day and year first above written.\nContractor: Department\nBy: By:\n(seal)\nPrinted Name:\nPrinted Name:\nTitle: Title:\nDate: Date:\nI-2 NON-DISCLOSURE AGREEMENT\nLIST OF CONTRACTOR\u2019S EMPLOYEES AND AGENTS WHO WILL BE GIVEN ACCESS TO THE CONFIDENTIAL INFORMATION\nPrinted Name and Employee (E) Signature Date\nAddress of\nIndividual/Agent or Agent (A)\n_______________________ __________ ____________________________ _________\n_______________________ __________ ____________________________ _________\n_______________________ __________ ____________________________ _________\n_______________________ __________ ____________________________ _________\n_______________________ __________ ____________________________ _________\n_______________________ __________ ____________________________ _________\n_______________________ __________ ____________________________ _________\n_______________________ __________ ____________________________ _________\n_______________________ __________ ____________________________ _________\n_______________________ __________ ____________________________ _________\n_______________________ __________ ____________________________ _________\n_______________________ __________ ____________________________ _________\n_______________________ __________ ____________________________ _________\n_______________________ __________ ____________________________ _________\n_______________________ __________ ____________________________ _________\n_______________________ __________ ____________________________ _________\n_______________________ __________ ____________________________ _________\n_______________________ __________ ____________________________ _________\n_______________________ __________ ____________________________ _________\n_______________________ __________ ____________________________ _________\n_______________________ __________ ____________________________ _________\n_______________________ __________ ____________________________ _________\nI-3 NON-DISCLOSURE AGREEMENT\nCERTIFICATION TO ACCOMPANY RETURN OR DELETION OF CONFIDENTIAL INFORMATION\nI AFFIRM THAT:\nTo the best of my knowledge, information, and belief, and upon due inquiry, I hereby certify that: (i) all Confidential Information which is the subject matter of that certain Non-Disclosure Agreement by and between the State of Maryland and __________________________ (\u201cContractor\u201d) dated __________________, 20_____ (\u201cAgreement\u201d) is attached hereto and is hereby returned to the State in accordance with the terms and conditions of the Agreement; and (ii) I am legally authorized to bind the Contractor to this affirmation. Any and all Confidential Information that was stored electronically by me has been permanently deleted from all of my systems or electronic storage devices where such Confidential Information may have been stored.\nI DO SOLEMNLY DECLARE AND AFFIRM UNDER THE PENALTIES OF PERJURY THAT THE CONTENTS OF THIS AFFIDAVIT ARE TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE, INFORMATION, AND BELIEF, HAVING MADE DUE INQUIRY.\nDATE: ______________________________\nNAME OF CONTRACTOR: __________________________\nBY: _____________________________________________________________\n(Signature)\nTITLE: ____________________________________________________\n(Authorized Representative and Affiant)\n",
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"text": "Mutual Non-Disclosure Agreement\nThis Mutual Non-Disclosure Agreement (\"agreement\") is between the parties signing below. \"We,\" \"us\" and \"our\" refer to both of the parties signing below and our respective affiliates. The \u201cCompany\u201d or \u201cIndividual\u201d named below will also be referred to as \u201cPartner\u201d and \u201cThe Bleecker Consulting Group, LLC\u201d will be referred to as \u201cBCG.\u201d\nCOMPANY or INDIVIDUAL THE BLEECKER CONSULTING GROUP, LLC\nBusiness Entity Type: Business Entity Type: Limited Liability Company\nState of Incorporation: State of Incorporation: Florida, United States\nPrincipal Address: Principal Address:\n11555 Heron Bay Blvd., Suite 200, Coral Springs, Florida,\n33076\nSign: Sign:\nPrint Name: Print Name: David Bleecker\nPrint Title: Print Title: Managing Partner\nSignature Date: Signature Date:\n1. The purpose of this agreement.\nThis agreement allows us to disclose confidential information to each other, to our own affiliates and to the other's affiliates, under the following terms. An \"affiliate\" is any legal entity that one of us owns, that owns one of us or that is under common control with one of us. \"Control\" and \"own\" mean possessing a 50% or greater Interest in an entity or the right to direct the management of the entity.\n2. Confidential information.\na. What is included, \"Confidential information\" is non-public information, know-how and trade secrets in any form that:\n\uf0b7 Are designated as \"confidential\"; or\n\uf0b7 A reasonable person knows or reasonably should understand to be confidential.\nb. What is not included? The following types of information, however marked, are not confidential information. Information that:\n\uf0b7 Is, or becomes, publicly available without a breach of this agreement;\n\uf0b7 Was lawfully known to the receiver of the information without an obligation to keep it confidential;\n\uf0b7 Is received from another source who can disclose it lawfully and without an obligation to keep it confidential;\n\uf0b7 Is independently developed; or\n\uf0b7 Is a comment or suggestion one of us volunteers about the other's business, products or services.\n3. Treatment of confidential information.\na. In general. Subject to the other terms of this agreement, each of us agrees:\n\uf0b7 We will not disclose the other's confidential information to third parties; and\n\uf0b7 We will use and disclose the other's confidential information only for purposes of our business relationship with each other.\nb. Security precautions. Each of us agrees:\n\uf0b7 To take reasonable steps to protect the other's confidential information. These steps must be at least as protective as those we take to protect our own confidential information;\n\uf0b7 To notify the other promptly upon discovery of any unauthorized use or disclosure of confidential information; and\n\uf0b7 To cooperate with the other to help regain control of the confidential information and prevent further unauthorized use or disclosure of it.\nc. Sharing confidential information with affiliates and representatives.\n\uf0b7 A \"representative\" is an employee, contractor, advisor or consultant of one of us or one of our respective affiliates.\n\uf0b7 Each of us may disclose the other's confidential information to our representatives (who may then disclose that confidential information to other of our representatives) only if those representatives have a need to know about it for purposes of our business relationship with each other. Before doing so, each of us must:\no Ensure that affiliates and representatives are required to protect the confidential information on terms consistent with this agreement; and\no Accept responsibility for each representative's use of confidential information.\n\uf0b7 Neither of us is required to restrict work assignments of representatives who have had access to confidential information. Neither of us can control the incoming information the other will disclose to us in the course of working together, or what our representatives will remember, even without notes or other aids. We agree that use of information in representatives' unaided memories in the development or deployment of our respective products or services does not create liability under this agreement or trade secret law, and we agree to limit what we disclose to the other accordingly.\nd. Disclosing confidential information if required to by law. Each of us may disclose the other's confidential information if required to comply with a court order or other government demand that has the force of law. Before doing so, each of us must seek the highest level of protection available and, when possible, give the other enough prior notice to provide a reasonable chance to seek a protective order.\n4. Length of confidential information obligations\na. Termination. This agreement continues in effect until one of us terminates it. Either of us may terminate this agreement for any reason by providing the other with 60 days' advance written notice. Termination of this agreement will not change any of the rights and duties made while this agreement is in effect.\nb. No other use or disclosure of confidential information. Except as permitted above, neither of us will use nor disclose the other's confidential information for three years after we receive it. The three-year\nc. time period does not apply if applicable law requires a longer period.\n5. General rights, obligations and miscellaneous.\na. Law that applies; jurisdiction and venue. The laws of the State of Florida govern this agreement. If federal jurisdiction exists, we each consent to exclusive jurisdiction and venue in the federal courts in Broward County, Florida. If not, we each consent to exclusive jurisdiction and venue in the Superior Court of Broward County, Florida.\nb. Non-solicitation- Clients. Each party expressly agrees to non-solicitation of business services with each other\u2019s existing customers. As part of subsequent agreements between Partner and BCG to engage in joint customer business, Partner agrees not to solicit business services from any of BCG\u2019s customers where BCG has engaged Partner on any such customer work orders and where BCG has introduced Partner to such customer(s). Conversely, BCG agrees not to solicit business services from any of Partner\u2019s customers where Partner has engaged BCG on any such customer work orders and where Partner has introduced BCG to such customer(s).\nc. Non-solicitation- Employees. During the term of the agreement and for a period of twelve (12) months thereafter, each party agrees not to solicit or recruit any employee of each other without the prior written consent of that party. Both BCG and Partner hereby agree that it will not solicit for hire, in any capacity whatsoever, any of each other\u2019s employees, contractors or other such affiliated resources without prior written consent from the other party.\nd. Compliance with law. Parties will comply with all laws regarding confidential information.\ne. Waiver. Any delay or failure of either of us to exercise a right or remedy will not result in a waiver of that, or any other, right or remedy.\nf. Money damages insufficient. Each of us acknowledges that money damages may not be sufficient compensation for a breach of this agreement. Each of us agrees that the other may seek court orders to stop confidential information from becoming public in breach of this agreement.\ng. Attorneys' fees. In any dispute relating to this agreement the prevailing party will be entitled to recover reasonable attorneys' fees and costs.\nh. Transfers of this agreement. If one of us transfers this agreement, we will not disclose the other's confidential information to the transferee without the other's consent.\ni. Enforceability. If any provision of this agreement is unenforceable, the parties (or, if we cannot agree, a court) will revise it so that it can be enforced. Even if no revision is possible, the rest of this agreement will remain in place.\nj. Entire agreement. This agreement does not grant any implied intellectual property licenses to confidential information, except as stated above. We may have contracts with each other covering other specific aspects of our relationship (\"other contracts\"). The other contract may include commitments about confidential information, either within it or by referencing another non-disclosure agreement. If so, those obligations remain in place for purposes of that other contract. With this exception, this is the entire agreement between us regarding confidential information. It replaces all other agreements and understandings regarding confidential information. We can only change this agreement with a signed document that states that it is changing this agreement.\n",
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"text": "NON-DISCLOSURE AGREEMENT\nBetween\nBEE ONLINE (PTY) LTD (\u201cBEE Online\u201d)\nRegistration number: 2004/004257/07\nAnd\n(\u201cthe company or individual\u201d)\nRegistration/Identity Number:\n (\u201cthe parties\u201d)\n1. INTRODUCTION\nThis document recognizes that BEE Online has entered into a contract with the named individual or organization in the normal course of our business. The contract entered into may result in the parties acquiring certain confidential information of the other (as defined below).\n2. CONFIDENTIAL INFORMATION\nThe information that is intended to be covered by this agreement shall include, without limitation, any designs, concepts, ideas, technical, scientific, commercial information, know-how, trade secrets and processes, communicated to either party (\u201cthe receiving party\u201d) by the other party (\u201cthe disclosing party\u201d) or acquired by the receiving party from the disclosing party, during the course of the negotiations and discussions referred to in 1 as well as during the course of any appointment of the Company as contemplated in 1. All such information collectively shall be referred to in this agreement as the \u201cconfidential information\u201d.\n3. CONFIDENTIALITY UNDERTAKING\n3.1 The parties acknowledge that the confidential information is a valuable, special and unique asset belonging to the disclosing party and accordingly, that it is of the utmost importance to the disclosing party that the confidential information not be used to advance the interest of any persons other than the disclosing party. In view thereof, the parties undertake that -\n3.2 they will not, without the prior written consent of the disclosing party:\n3.2.1 during the course of the negotiations and discussions referred to in 1 or at any time thereafter, directly or indirectly, use any of the confidential information, otherwise than for the purpose of such negotiations and discussions or for the implementation of any agreement resulting there from;\n3.2.2 divulge, discuss with, disclose or reveal the confidential information of the disclosing party to any person, firm, corporation, association or any other entity for any reason or purpose whatsoever (other than its employees and agents and only to the extent that such employees and agents require such information in the implementation of any agreement concluded between the parties);\n3.2.3 BEE Online shall only provide information about its activities to SANAS or the DTI on request. The MD will acknowledge receipt of request by email within 2 days and will be responsible for the release of the information within 7 days. Before submitting a Measured Enterprise\u2019s Confidential Information when requested by DTI, SANAS or required by Law, BEE Online shall notify the Measured Enterprise within 2 days of receiving the written request by email and will disclose the information within 7 days after Measured Enterprise has been notified BEE Online\n3.2.4 the parties will procure that their employees and agents to whom the confidential information is disclosed in terms of 3.2.2 are information of the confidential nature of the confidential information and prior to such disclosure, undertake to be bound by the terms of this agreement. Any breach of this confidentiality undertaking by any of the parties\u2019 employees and agents shall be deemed to be a breach of this agreement by that party in terms of 9 below.\n4. DISCLAIMER\nAll rights to confidential information are reserved by the disclosing party and no rights or obligations, other than those expressly recited herein, are granted or to be implied from this agreement. Nothing in this agreement or its operation shall preclude, impair or restrict either party from continuing to engage in its business. It is recorded that the disclosing party may well have had business dealings with the receiving party\u2019s customers and no right of exclusivity shall be afforded to the receiving party in this regard. For example, in larger corporate entities, it may well be that the receiving party and disclosing party are dealing with separate departments or individuals or may well have done so previously. The receiving party accepts this fact and whilst the disclosing party shall not intentionally interfere with the receiving party\u2019s marketing strategy, this may at times be inevitable.\n5. RETURN OF CONFIDENTIAL INFORMATION\nEither party may request in writing at any time that any confidential information or any documents containing such confidential information, disclosed pursuant to the terms of this agreement and any copies thereof be returned with a written statement to the effect that upon such return the receiving party has not knowingly retained in its possession or under its control, either directly or indirectly, any such confidential information or any documents containing such confidential information or any copies thereof and the receiving party shall comply with any such request within seven days of receipt of such request.\n6. TITLE\nAll confidential information of the disclosing party is acknowledged by the receiving party to be the property of the disclosing party and the disclosure of the confidential information shall not be deemed to confer any rights to that confidential information on the receiving party.\n7. STANDARD OF CARE\nThe parties agree to protect the confidential information of the other party using not less than the same standard of care that would be applied to its own proprietary, secret or confidential information and that the confidential information shall be stored and disclosed in such a way as to prevent unauthorised disclosure.\n8. EXCLUDED INFORMATION\nThe obligations pursuant to this agreement shall not apply to any confidential information \u2013\n8.1 is in the possession of the receiving party prior to receipt from the disclosing party;\n8.2 is or become publicly known, otherwise than as a consequence of a breach of this agreement;\nApproved By: Executive Committee Revision No.: 07\n8.3 is received from a third party without similar restrictions and without breach of this agreement.\n9. BREACH\nShould either party (the \u201cdefaulting party\u201d) breach any provision of this agreement and fail to remedy such breach within seven days after receiving written notice from the other party (the \u201caggrieved party\u201d) requiring it to do so, then the aggrieved party shall be entitled, without prejudice to the aggrieved party\u2019s other rights in law, to claim from the defaulting party such damages to which it may be entitled, without prejudice to the aggrieved party\u2019s other rights in law, to claim from the defaulting party such damages to which it may be entitled at common law or in equity including inter alia injunction and specific performance. Notwithstanding anything to the contrary contained in this agreement, neither party shall be entitled to cancel this agreement in any circumstances whatsoever.\n10. ACKNOWLEDGEMENTS\nThe parties acknowledge that the undertakings herein are fair and reasonable and are reasonably required to protect the other party\u2019s confidential information.\n11. GENERAL\n11.1 Any failure or delay by either party in exercising any right, power or privilege in relation to any confidential information and/or pursuant to this agreement will not constitute a waiver of that right, power or privilege, nor will any single or partial exercise thereof preclude any further exercise of that right, power or privilege.\n11.2 This agreement constitutes the sole record of the agreement between the parties in regard to the subject matter thereof.\n11.3 Neither party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded herein.\n11.4 No addition to, variation or agreed cancellation of this agreement shall be of any force or effect unless in writing and signed by or on behalf of the parties.\n12. DOMICILIUM AND NOTICES\nThe parties choose as their domicilium et executandi \u201cdomicilium\u201d for all purposes arising from or pursuant to this agreement the following address \u2013\nBEE ONLINE(PTY) LTD\nLandmark on Empire\n 12th Floor, 25 Owl Street Auckland Park 2092\n Marked for the attention of the MANAGING DIRECTOR\nTel: (011) 482 4809 Fax: (086) 623-8388\n PARTYS NAME & Address:\nTel: Fax:\n12.1 Any party shall be entitled from time to time, by written notice to the other party, to vary its domicilium to any other address within the Republic of South Africa which is not a post office box or poste restante.\n12.2 Any notice given by a party to the other \u2013\n12.2.1 Delivered by hand during the normal business hours of the addressee at the addressee\u2019s domicilium for the time being shall be rebuttably presumed to have been received by the recipient at the time of delivery.\n12.2.2 Posted by prepaid registered post from an address within the Republic of South Africa to the addressee\u2019s domicilium for the time being shall be rebuttably presumed to have been received by the recipient on the fourth day after the date of posting.\n12.2.3 Any notice given by telefacsimile during the normal business hours of the address to the addressee\u2019s domicilium for the time being shall be rebuttably presumed to have been received on the first business day succeeding the day on which the telefacsimile is transmitted.\nSigned at \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026. on \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026 20__.\nFor BEE Online (Proprietary) Limited\n\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.\nwho warrants that he/she is duly authorised hereto\nSigned at \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026. on \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026 20__.\nFor ___________________________\n The Company or Individual\n\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.\n who warrants that he/she is duly authorised hereto\n",
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"text": "CONFIDENTIALITY AND NON-DISCLOSURE AGREEEMENT\nbetween\nTRANSNET LIMITED\nand\n______________________________________________________\n(\u201cinsert name\u201d)\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis agreement (\u201cAgreement\u201d) is entered into as of the date first written below (the \u201cEffective Date\u201d) by and between TRANSNET LIMITED (hereinafter referred to as \u201cTransnet\u201d or \u201cthe Disclosing Party\u201d) having as its principal place of business at 38th Floor, Carlton Centre, Johannesburg, 2001, and ___________________________________ (Registration number____________________) (hereinafter referred to as \u201cthe Bidder\u201d or the \u201cReceiving Party\u201d) with its principal place of business at __________________________________________ (Transnet and the Bidder shall hereinafter referred to as the \u201cParties\u201d).\nWHEREAS, the Bidder is interested in participating in the disposal process being undertaken by Transnet in relation to the business of Luxrail (hereinafter referred to as \u201cthe Blue Train\u201d or \u201cthe Target\u201d) (such disposal hereinafter referred to as the \u201cProposed Transaction\u201d);\nAND WHEREAS, it is agreed that in order to enable the Bidder to assess the Target, Transnet will disclose Confidential Information relevant to the Proposed Transaction to the Bidder;\nAND WHEREAS, the Bidder recognises that careful protection and non-disclosure by the Bidder of Confidential Information disclosed by Transnet is of vital importance to the prosperity of the Target, Transnet and clientele of Transnet;\nNOW THEREFORE, Transnet agrees to disclose the Confidential Information and the Bidder agrees to receive the Confidential Information under the following terms and conditions.\n1. CONFIDENTIAL INFORMATION\n1.1 Definition. When used herein, Confidential Information shall mean any information and data (in electronic form, in hard copy or given verbally) of a confidential or proprietary nature which is disclosed by the Disclosing Party to the Receiving Party, including but not limited to, group corporate strategy and initiatives, customer information, Target information, proprietary technical, financial, personnel and/or commercial information with respect to the Proposed Transaction, Transnet or the Target and any information which is disclosed pursuant to this Agreement and marked \u201cConfidential\u201d by the Disclosing Party. Confidential information specifically excludes the following:\n1.1.1 information which is in the public domain or enters the public domain other than by reason of a breach of the terms of this Agreement;\n1.1.2 where it becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party or the individual members of the Disclosing Party, as the case may be;\n1.1.3 where it was known to the Receiving Party prior to having access to the Confidential information; and\n1.1.4 where the Receiving Party is obliged to disclose by law, or by order or under the rules of any competent regulatory authority or court.\n1.2 Purpose. The purpose of the disclosure of Confidential Information is to enable the Target\u2019s assets and liabilities relevant to the Proposed Transaction to be assessed.\n1.3 Ownership. The Confidential Information is and shall be considered valuable trade secrets owned exclusively by the Disclosing Party. The Disclosing Party retains all right, title and interest in the Confidential Information and any reasonably related information which may be subsequently developed, and the Receiving Party waives all rights to the intellectual property and copyright therein in favour of the Disclosing Party.\n1.4 No License. No license is granted to the Receiving Party in relation to any intellectual property rights that attach to or may be embodied in any Confidential Information, or is implied by the conveying of such Confidential Information to the Receiving Party.\n1.5 No Warranties. The Disclosing Party assumes no responsibility for any loss or damages suffered by the Receiving Party or any third party caused by or arising from the Confidential Information, and the Disclosing Party makes no warranties of any kind, whether express or implied, as to the accuracy or completeness of the Confidential Information.\n1.6 Authorised. The Disclosing Party is authorised to provide Confidential Information to the Receiving Party.\n2. NON-DISCLOSURE\n2.1 Use of Confidential Information. The Receiving Party may use the Confidential Information solely for the purposes of assessing the Target for purposes of the Proposed Transaction. The Receiving Party recognises that this Agreement imposes an affirmative duty to hold such information in confidence and protect it from dissemination to and use by any unauthorised persons. In the absence of the Disclosing Party\u2019s prior written consent, the Receiving Party shall not produce nor disclose the Confidential Information, or any part thereof, to any third party.\n2.2 Disclosure of Confidential Information. The Confidential Information is proprietary information and for the exclusive and non-transferable use of the persons to whom it is addressed and the recipients of the Confidential Information agree that all of the information contained herein is of a confidential nature and is subject to this Confidentiality Agreement, and that they will not, directly, or indirectly, disclose or permit their agents or affiliates to disclose any such information without the prior written consent of Transnet except as expressly permitted by the terms of this Agreement.\n2.3 Return of Confidential Information. Promptly following the request of the Disclosing Party, the Receiving Party will deliver to the Disclosing Party all confidential information (and copies and extracts thereof) furnished to, or created by or on behalf of, the Receiving Party. Notwithstanding the return of the Confidential Information, the Receiving Party will continue to be bound by its obligations of confidentiality and other obligations hereunder.\n2.4 Remedies. The Receiving Party recognises and acknowledges that the Confidential Information is of a special, unique and extraordinary character to the Disclosing Party and the Target and the disclosure, misappropriation or unauthorised use of such Confidential Information by the Receiving Party cannot be fully compensated and that, further, any such disclosure, misappropriation or unauthorised use of the Confidential Information shall cause irreparable injury to the Disclosing Party and/or the Target. The Receiving Party expressly agrees, therefore, that the Disclosing Party, in addition to any rights and remedies it may have under this Agreement or at law or in equity, shall be entitled to seek injunctive and other equitable relief to prevent the breach, or the further breach, of any of the provisions of this Agreement. The Receiving Party agrees to reimburse the Disclosing Party for any and all losses, liabilities, damages, costs, opportunity costs, and direct or indirect expenses (including reasonable attorney\u2019s fees, profit opportunity returns foregone and any court costs) incurred by the Disclosing Party as a result of any prima facie breach of this Agreement by the Receiving Party.\n3. GENERAL\n3.1 Term and Termination. Notwithstanding whether or not the Proposed Transactions are concluded, the Receiving Party shall maintain the Confidential Information in confidence and in accordance with the terms of this Agreement for a period of five (5) years from the date of disclosure.\n3.2 Binding Successors. This agreement shall be binding upon and inure to the benefit of the Parties and their successors and assigns.\n3.3 Waiver. The waiver or failure of either Party to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of any further right under this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law or otherwise unenforceable, it shall be enforced to the extent legally permissible and as necessary to reflect the intent of the Parties and shall not affect the remaining provisions of this Agreement, which shall remain in full force and effect.\n3.4 Variation. No amendment, alteration, addition or variation of the Agreement or any provision or term thereof, or any agreement or other document issued or executed pursuant to or in terms of this Agreement shall be binding unless recorded in a written document signed by the Parties.\n3.5 Binding Agreement. This Agreement is binding upon each Party and the Receiving Party shall procure that it becomes binding on its respective agents, affiliates, partners, employees, advisors and consultants.\n3.6 Jurisdiction. This Agreement shall be deemed to be a contract made under the laws of the Republic of South Africa and shall be governed by such laws without reference to any principles relating to resolving conflicts of law. The distribution of the Confidential Information in overseas jurisdictions may be restricted by law and therefore persons into whose possession that Confidential Information comes should inform themselves about and observe any such restrictions.\n3.7 Copyrights and Proprietary Rights. The Receiving Party shall not remove any copyright or proprietary rights notice attached to or included in the Confidential Information.\n3.8 Entire Agreement. This Agreement represents the entire agreement between Parties with respect to the subject matter of this Agreement.\n3.9 Storage of Confidential Information. The Confidential Information must not be copied, reproduced, distributed, stored digitally or by other means, or passed to others at any time other than in accordance with this Confidentiality Agreement or with the prior written consent of Transnet.\nIN WITNESS WHEREOF, the Parties have duly executed this document as of the date first written below.\nSigned for Transnet Limited by__________________________________, in his/her capacity as _______________________________ on this _____ day of _________________ 2007.\nSignature: _____________________\nwho warrants that he is duly authorised to enter into this Agreement\nWitnesses:\n_____________________ _______________________\nDate: ________________ Date: __________________\nSigned for ______________________by __________________________, in his/her capacity as _______________________________ on this _____ day of _________________ 2007.\nSignature: _____________________\nwho warrants that he is duly authorised to enter into this Agreement\nWitnesses:\n_____________________ _______________________\nDate: ________________ Date: __________________\n",
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"text": "Bacon Business Group\nBuyer Confidential Non-Disclosure Agreement Broker Disclosure\nOur agreement with the Seller requires that we obtain a Non-Disclosure and evidence of financial ability before disclosing the name and location of his/ her business. This information will be kept confidential. In consideration of the broker, (\"Broker\") providing the information on businesses for sale, I/we understand and agree:\n1. (a) That any information provided on any business is sensitive and confidential, and that its disclosure to others may be damaging to the businesses and their owners.\n(b) Not to disclose, for a period of three years from the date I/we sign this Non-Disclosure Agreement, any information regarding these businesses to any other person who has not also signed this Agreement, except to secure the advise and recommendations of my business advisors (accountants, attorneys, etc.) \"Information\" as used in this Agreement shall include the fact that the businesses are for sale, plus any other data provided.\n(c) Not to contact the business owners or their landlords, employees, suppliers or customers except through Broker. All correspondence, inquiries, offers to purchase and negotiations relating to the purchase or lease of any business presented by Broker will be conducted exclusively through Broker.\n(d) Notto circumvent or interfere with Broker's contract with the Seller in any way, I/we understand that if I/we interfere with Broker's contract right to its fee from Seller, I/we may be personally liable to Broker for payment of the Seller's fee. We understand that should I/we become a manager or otherwise connect with any of the businesses shown or offered to me/us for sale, or should I/we buy, trade, lease or exchange any of the businesses disclosed to me/us, then a fee will be due to Broker. I/we understand that if I/we make the purchase through Broker, I/we will not be liable for the fee to be paid by Seller to Broker.\n2. That all information regarding businesses for sale is provided by the Seller or other sources and is not verified in any way by Broker. Broker has no knowledge of the accuracy of said information and makes no warranty, express or implied, as to the accuracy of such information. Understanding that I/we shall make an independent verification of said information prior to entering into an agreement to purchase any business. I/we agree that Broker is not responsible for the accuracy of any of the information I/we receive or fail to receive, and I/we agree to indemnify and hold Broker and its agent harmless from any claims or damages which may occur by reason of the inaccuracy or incompleteness of any information provided to me/us with respect to any business I/we might purchase.\n3. That should I/we enter into an agreement to purchase a business, I/we will provide a financial statement and a personal and business history, and I/we authorize the Seller to obtain through standard reporting agencies financial and credit information about me/us or the companies I/we represent.\n4. That Broker is not an agent for me/us, butis an agent for the Seller and has a contract providing for a fee to be paid to Broker by Seller upon sale, trade, lease, or transfer of Seller's business or property.\n5. I/we acknowledge that we will receive confidential information about the Seller's business, operations, customers, and employees and agree not to start a business similar to the sellers listed above and not to solicit or contact Seller's employees or customers for a period of three years from the date herein. In the event Buyer for whatever reason does not purchase the business, Buyer agrees to immediately return to Broker any and all materials related to Seller without retaining any copies.\nI/we acknowledge that I/we have received an exact copy of this Agreement and that I/we have read this Agreement carefully and fully understand it.\nSignature Date Broker Signature Company Name\nPrint Name Print Name\nStreet Address Street Address\nCity, State, Zip City, State, Zip\nSignature Date Agent for BBG Broker Date\nPrint Name\nStreet Address\nCity, State, Zip\n",
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"text": "NON-DISCLOSURE AGREEMENT (NDA)\nThis Nondisclosure Agreement (the \"Agreement\") is entered into by and between _______________ with its principal offices at _______________, (\"Disclosing Party\") and _______________, located at _______________ (\"Receiving Party\") for the purpose of preventing the unauthorized disclosure of Confidential Information as defined below. The parties agree to enter into a confidential relationship concerning the disclosure of certain proprietary and confidential information (\"Confidential Information\").\n1. Definition of Confidential Information. For purposes of this Agreement, \"Confidential Information\" shall include all information or material that has or could have commercial value or other utility in the business in which Disclosing Party is engaged. If Confidential Information is in written form, the Disclosing Party shall label or stamp the materials with the word \"Confidential\" or some similar warning. If Confidential Information is transmitted orally, the Disclosing Party shall promptly provide writing indicating that such oral communication constituted Confidential Information.\n2. Exclusions from Confidential Information. Receiving Party's obligations under this Agreement do not extend to information that is: (a) publicly known at the time of disclosure or subsequently becomes publicly known through no fault of the Receiving Party; (b) discovered or created by the Receiving Party before disclosure by Disclosing Party; (c) learned by the Receiving Party through legitimate means other than from the Disclosing Party or Disclosing Party's representatives; or (d) is disclosed by Receiving Party with Disclosing Party's prior written approval.\n3. Obligations of Receiving Party. Receiving Party shall hold and maintain the Confidential Information in strictest confidence for the sole and exclusive benefit of the Disclosing Party. Receiving Party shall carefully restrict access to Confidential Information to employees, contractors and third parties as is reasonably required and shall require those persons to sign nondisclosure restrictions at least as protective as those in this Agreement. Receiving Party shall not, without the prior written approval of Disclosing Party, use for Receiving Party's benefit, publish, copy, or otherwise disclose to others, or permit the use by others for their benefit or to the detriment of Disclosing Party, any Confidential Information. Receiving Party shall return to Disclosing Party any and all records, notes, and other written, printed, or tangible materials in its possession pertaining to Confidential Information immediately if Disclosing Party requests it in writing.\n4. Time Periods. The nondisclosure provisions of this Agreement shall survive the termination of this Agreement and Receiving Party's duty to hold Confidential Information in confidence shall remain in effect until the Confidential Information no longer qualifies as a trade secret or until Disclosing Party sends Receiving Party written notice releasing Receiving Party from this Agreement, whichever occurs first.\n5. Relationships. Nothing contained in this Agreement shall be deemed to constitute either party a partner, joint venture or employee of the other party for any purpose.\n6. Severability. If a court finds any provision of this Agreement invalid or unenforceable, the remainder of this Agreement shall be interpreted so as best to affect the intent of the parties.\n7. Integration. This Agreement expresses the complete understanding of the parties with respect to the subject matter and supersedes all prior proposals, agreements, representations, and understandings. 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"file_name": "Bio-FIP-EOI-NDA.pdf",
"text": "CONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT is made on of 2016\nBETWEEN:\n(1) ENERGY TECHNOLOGIES INSTITUTE LLP, a limited liability partnership (company no. OC333553) whose registered office is at Holywell Building, Holywell Way, Loughborough, Leicestershire, LE11 3UZ (the \u201cETI\u201d); and\n(2) The parties named in Schedule 1 of this Agreement (the \u201cRespondents\u201d), (collectively the \u201cParties\u201d and individually a \u201cParty\u201d)\nBACKGROUND:\nThe Parties intend to exchange certain Information on or after the Effective Date for or in relation to the Purpose. The Parties agree to receive such Information, and to treat it as confidential information, on the following terms and conditions.\nIT IS AGREED:\nIn consideration of the above and for other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound, the Parties agree as follows:\n1. In this Agreement, unless the context requires otherwise, the following words shall have the following meanings:\n\u201cDisclosing Party\u201d means any Party that discloses Information pursuant to this Agreement;\n\u201cEffective Date\u201d means the date of execution of this Agreement;\n\u201cEoI\u201d means the request for expressions of interest relating to the Project, issued by the ETI on 11th May 2016;\n\u201cETI Affiliates\u201d means the Secretary of State for Business, Innovation and Skills (and any successor governmental department or agency from time to time) and any other entity which is entitled to appoint the directors or otherwise having the ability to direct management policies of the ETI (together with any affiliates of those entities), together with their respective officers, employees, agents and consultants;\n\u201cInformation\u201d means any and all confidential information or data exchanged, submitted or otherwise disclosed in respect of or further to the Purpose or prepared for or in relation to the Purpose, including but not limited to written Submission documentation, due diligence materials, contractual documentation, reports, and the fact that the Parties have entered into this Agreement and are discussing and considering a business relationship;\n\u201cProject\u201d means the proposed project under the ETI\u2019s Bioenergy Programme entitled the \u201cBiomass Feedstock Improvement Process Project\u201d;\n\u201cProject Commissioning Process\u201d means the ETI\u2019s commissioning process for the Project as defined and as set out in the EoI or as later may be notified or published by the ETI;\n\u201cProject Contract\u201d means a Project Contract as such term is defined in the EoI;\n\u201cPurpose\u201d means:\na. the preparation and/or submission of any Submission and related documents in response to the EoI;\nb. the Project Commissioning Process;\nc. any activities related to the assessment of any Submission for the Project; and\nd. any related exchanges of Information, clarifications, clearances, discussions, due diligence, meetings, and/or negotiations in respect of the EoI, the Project Commissioning Process and/or the Project;\n\u201cReceiving Party\u201d means any Party that receives Information pursuant to this Agreement; and\n\u201cSubmission\u201d means a submission as such term is defined in the EoI;\n\u201cThird Party IP\u201d means any intellectual property rights that are not licensed or owned by a Respondent and identified by a Respondent as relevant to its Submission.\n2. The Receiving Party shall with regard to any Information disclosed pursuant to this Agreement by or on behalf of a Disclosing Party on or after the Effective Date:\na. hold the Information in confidence and, except as is otherwise stated herein or agreed in writing by the Disclosing Party, shall not disclose or make available the Information by publication or otherwise to any third party (including for the avoidance of doubt, disclosure in any patent application or to any patent office) and shall use any Information disclosed to it pursuant to this Agreement only for carrying out the Purpose;\nb. make copies of the Information (or any further information derived from the Information) in whatever form or medium only to the extent that the copies are reasonably necessary for the Purpose and clearly mark all such copies as confidential;\nc. take all necessary and proper security precautions (and at least as great as those it takes to safeguard its own information) to safeguard every part of the Information to prevent it from being disclosed or otherwise made available to any third party except as permitted by this Agreement; and\nd. at the request and direction of the Disclosing Party, and without delay, return or destroy any Information provided to it pursuant to this Agreement and any copies of such Information, except that one copy may be kept by the Receiving Party for archival purposes and for the purpose of defending itself against any claims arising in connection with this Agreement.\n3. The obligations set out in clause 2 shall not apply to Information that:\na. the Receiving Party can prove (using written or electronic records), was lawfully known to the Receiving Party or in its possession prior to its communication by or at the direction of the Disclosing Party and was not communicated to the Receiving Party subject to any restrictions on disclosure or use; or\nb. is or becomes a part of the public domain through no wrongful act of the Receiving Party or any person on its behalf, provided that this clause 3(b) shall only apply from the date that the relevant Information so enters the public domain; or\nc. the Receiving Party receives from a third party without similar obligations of confidence in circumstances where the third party did not obtain that Information as a result of a breach of an obligation of confidence; or\nd. subject to clause 4, is required to be disclosed or made available by the Receiving Party pursuant to any applicable law, governmental regulation, or decision of any court or tribunal of competent jurisdiction or any government body, agency or regulatory body.\n4. If a Receiving Party believes it is required by law to disclose any Information under clause 3(d) above, the Receiving Party shall (in each case and to the extent not prohibited in law):\na. provide the Disclosing Party with prompt written notice of such requirement or obligation (together with a copy of any relevant access request, court order or other evidence giving rise to such belief) in advance of the required disclosure, to enable the Disclosing Party to seek appropriate protective relief and/or to take other steps to resist or narrow the scope of any required disclosure;\nb. where it is not permitted in law to notify the requirement for disclosure in advance of the required disclosure, notify the Disclosing Party as soon as reasonably practicable after the disclosure confirming the nature of and extent of the disclosure; and\nc. co-operate with the Disclosing Party with respect to such matters, and in any event disclose only such Information as it has ascertained, after taking legal advice, it is legally compelled to disclose.\n5. The ETI shall be entitled to disclose or make available any Information it receives from the Respondents (or any of them) to:\na. such of the ETI Affiliates, and either the ETI\u2019s or the ETI Affiliates\u2019 employees, officers, secondees, agents, consultants, sub-contractors, proposed sub-contractors, professional advisers and proposed professional advisers where such disclosure is necessary for the Purpose, provided that all such aforementioned persons to whom any Information is disclosed by the ETI are bound by obligations of confidentiality and the ETI shall be responsible for breaches of the obligations by such persons and each ETI Affiliate may enforce this clause in accordance with the Contracts (Rights of Third Parties) Act 1999; and\nb. the Department of Business, Innovation and Skills (or other relevant government department), the European Commission and such other bodies and/or individuals (including without limitation professional advisers) as may reasonably be required for the notification of, to seek advice in relation to, as part of an assessment of, or otherwise in relation to, State aid.\n6. The ETI shall be entitled to disclose or make available any Information it receives from a Respondent to any other Respondent where it is necessary for the Purpose.\n7. Each Respondent shall be entitled to disclose or make available any Information it receives from the ETI or any other Respondent to such of its employees, officers, consultants, sub-contractors, proposed sub-contractors, proposed funders, proposed owners or lessors of sites for the Project, owners or licensors of Third Party IP and professional advisers where such disclosure is necessary for the Purpose provided that all such persons to whom any Information is disclosed are bound by written obligations that are no less restrictive than those in this Agreement. The Respondent disclosing Information shall be responsible for breaches of the obligations by such persons.\n8. Each Respondent shall be entitled to disclose or make available any Information it receives from the ETI to any other Respondent where it is necessary for the Purpose.\n9. Each Party as Receiving Party expressly agrees and accepts that except in the case of fraud, no representation or warranty, express or implied, is made by the Disclosing Party as to the accuracy, completeness, reasonableness or otherwise in respect of the use of the Information, and that neither the Disclosing Party or any of its affiliates nor any of its or their respective employees, officers, secondees, agents, consultants, sub-contractors and professional advisers (as applicable) shall have any liability to the Receiving Party as a result of the Receiving Party\u2019s possession or use of the Information.\n10. The Parties agree that money damages would not be a sufficient remedy for any breach of this Agreement and that the Disclosing Party shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach. Such remedy shall not be deemed to be the exclusive remedy for breach of this Agreement, but shall be in addition to all other remedies available at law or equity.\n11. No rights or obligations other than those expressly set out in this Agreement are to be implied and nothing contained in this Agreement:\na. constitutes an offer by or on behalf of the Disclosing Party; or\nb. confers upon the Receiving Party a licence or other transfer of rights in respect of any Party\u2019s interest in any Information or in any present or future patent or patent application; or\nc. affects the present or prospective rights of the Disclosing Party under the patent laws of any country or precludes the filing or prosecution of any patent applications by the Disclosing Party.\n12. This Agreement represents the entire agreement between the Parties in relation to the subject matter contained herein and supersedes all other agreements and representations, whether oral or written, between the Parties relating to such subject matter. This Agreement may only be modified if such modification is in writing and signed by a duly authorised representative of each Party. Each Party also agrees that it shall have no remedies or claims under this Agreement for any innocent or negligent misrepresentation based on statements made prior to the Effective Date.\n13. The Parties agree that the ETI may disclose that one or more of the Respondents are involved in discussions with the ETI and the subject matter of the discussions provided that the ETI will provide a copy of any press release or other announcement to the Respondents and seek the approval of the Respondents prior to its publication or release. Other than as set out in this clause, none of the Parties will make any public announcements, statements or otherwise publicise the subject matter of this Agreement (or its existence) without the prior written consent of the other Parties and no Party will use the business names or trade marks of any other Party in any way without that Party\u2019s prior written consent.\n14. This Agreement shall come into force on the Effective Date and shall continue in full force and effect, notwithstanding the completion of the Purpose, for a period of seven years from the Effective Date unless extended, superseded or otherwise varied by a subsequent written agreement between the Parties.\n15. It is not intended that a third party (other than an ETI Affiliate) should have the right to enforce a provision of this Agreement pursuant to the Contracts (Rights of Third Parties) Act 1999.\n16. The rights of the Disclosing Party under this Agreement are in addition to and not exclusive of rights under the general law and may be waived only in writing and specifically. Delay in exercising or non-exercise of any right under this Agreement is not a waiver of that or any other right, partial exercise of any right under this Agreement shall not preclude any further or other exercise of that right or any other right under this Agreement and waiver of a breach of any term of this Agreement shall not operate as a waiver of breach of any other term or any subsequent breach of that term.\n17. If any provision of this Agreement is or becomes illegal, invalid or unenforceable in any jurisdiction, that shall not affect:\na. the legality, validity or enforceability in that jurisdiction of any other provision of this Agreement; or\nb. the legality, validity or enforceability in any other jurisdiction of that or any other provision of this Agreement.\n18. Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the Parties (or any of them), or to authorise any Party to act as agent for another, and no Party shall have authority to act in the name or on behalf of or otherwise to bind any other in any way.\n19. Except as provided otherwise, no person may assign any of its rights under this Agreement or any document referred to in it.\n20. This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this Agreement, but all the counterparts shall together constitute the same agreement. No counterpart shall be effective until each Party has executed at least one counterpart.\n21. This Agreement shall be construed in accordance with and governed by English law and the Parties hereby submit to the non-exclusive jurisdiction of the English Courts.\nThe Parties have caused this Agreement to be executed by their duly authorised representatives.\nENERGY TECHNOLOGIES INSTITUTE LLP\nBy: ________________________________\nName: _____________________________\nTitle: _______________________________\nDate: ______________________________\n",
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"text": "BUSINESS SALE NON-DISCLOSURE AGREEMENT\n7 Ferry Road London SW13 9RX T 0333 939 8010 E info@ideologyconsulting.co.uk ideologyconsulting.co.uk RE: (We will complete the name of the business on receipt of this NDA)\n (\u201cthe Business\u201d)\nYou have expressed an interest in discussing the acquisition of the above Business (\u2018the Proposed Transaction\u201d). This letter of agreement sets out the terms upon which we will supply information to you in respect of the Business in order to enable discussions to take place on an informed basis (\u201cthe Confidential Information\u201d).\nYOU AGREE WITH US:\nA) that the Confidential Information shall comprise all information (in whatever form, including written, oral or electronic and including material created from such information provided to us by you such as notes, reports or analyses) provided by us to you or any third party on our behalf in connection with the Proposed Transaction, including the fact that discussions relating to the Proposed Transaction are taking place between us.\nB) to keep the Confidential Information secret at all times\nC) not to use the Confidential Information in whole or in part, either during or after the discussions relating to the Proposed Transaction, for any purpose apart from in connection with our discussions relating to the Proposed Transaction.\nD) to reveal the Confidential Information only to those of your employees or third party advisers who need to know in connection with our discussions relating to the Proposed Transaction.\nE) to take all proper and reasonable measures to ensure the confidentiality and security of the Confidential Information at all times.\nF) to acknowledge that the property and copyright in the Confidential Information belongs to us and that no licence or any other right is granted to you in respect of the Confidential Information.\nG) to destroy immediately on our written request all Confidential Information in your possession including any copies made (save where we are required pursuant to some law or enactment or regulation or the rules of any Stock Exchange to retain originals or copies of any of the Confidential Information).\nH) that we are not required or obliged to disclose any information of any kind to you.\nI) that no warranty or representation, whether express or implied, is given as to the accuracy, completeness, appropriateness or otherwise of the Confidential Information.\nJ) that this agreement does not create any right enforceable by any person who is not a party to it and that the Contracts (Right of Third Parties) Act 1999 as amended shall not apply.\nIn consideration of the said discussions both parties agree:\n1) that this agreement does not oblige or imply any obligation on either party to enter into any transaction or further agreement.\n2) that this agreement may only be modified or waived by a separate written agreement between the parties which specifically and expressly modifies or waives this agreement or part of it.\n3) that this agreement shall be governed by and construed in accordance with the law of England and Wales and the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims)\n4) that in the event of any term of this agreement being held to be illegal or unenforceable either in whole or in part that term shall be deemed not to be part of this agreement but the enforceability of the remainder shall be unaffected.\n5) that any notices under this agreement shall be sent by first-class prepaid post to the address of the recipient party as set out in this letter and shall be deemed to have been received on the second week day (that is, any day excluding Sundays or public or bank holidays in England) following the day on which it was posted.\n6) that the provisions of this agreement shall last for the duration of the discussions relating to the Proposed Transaction and for 2 years following their conclusion.\n7) that these terms shall not apply where the Confidential Information:\n 7.1 was known to us (by means not importing any requirement of confidentiality or involving a breach of confidentiality by a third party) prior to its provision to us;\n 7.2 is in or subsequently comes in to the public domain (through no fault on our part);\n 7.3 is required to be disclosed pursuant to any legal, statutory or regulatory requirement.\nSigned\nYour Name Position\nCompany\nAddress\nPostcode\nTelephone Number\nEDT (Electronic document transmissions) Emails with Original Signatures (not electronic) shall be deemed valid and enforceable in respect of any provisions of this NDA (Non-Disclosure Agreement).\nEDT documents shall be subject to European Community Directive No. 95/46/EEC, as applicable. Please note that should you choose to return the NDA via Email, we respectfully request that the original is returned by post.\n",
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"text": "NON-DISCLOSURE / CONFIDENTIALITY\nAGREEMENT\nBETWEEN: [Name and address of Data Owner], represented by [name and position of person signing the agreement], hereinafter referred to as \"the data owner\";\nAND: [Name and address of prospective applicant], represented by [name and position of person signing the agreement], hereinafter referred to as \"the prospective applicant\";\nTogether \u201cthe Parties\u201d\nWHEREAS THE PARTIES CONFIRM THAT:\nThe prospective applicant is seeking to refer to data that the data owner owns;\nThe prospective applicant is seeking to do so for a purpose under the Biocidal Products Regulation 528/2012 (\u201cthe BPR\u201d);\nThe data owner is under an obligation in certain circumstances to share data with the prospective applicant and may in any event choose to do so regardless of that obligation;\nThe Parties are entering into data sharing negotiations;\nA non-disclosure agreement is necessary to reassure the Parties that the use to which any information exchanged or otherwise disclosed during the negotiations will be limited to the legitimate purpose as established in the BPR;\nTHE PARTIES HAVE THEREFORE AGREED AS FOLLOWS:\n1. Disclosure of Information\na. A Party may disclose to the other Party information with a view to negotiating the sharing of data for a purpose under the BPR (\u201cthe Purpose\u201d). The Parties agree that the terms and conditions set forth in this Agreement shall govern any such disclosure of information. All information disclosed by a Party or by Affiliates of a Party to the other Party or its respective Affiliates orally, electronically, writing or by any other means during the data sharing negotiations shall be considered as confidential unless expressly stated otherwise by the disclosing Party. All such confidential information shall be referred to hereinafter as \" \". Information shall also include the identity of the Parties, the contents of this agreement and the fact that they have entered into this Agreement.\nb. The Information, including any material support containing Information, will remain the exclusive property of the disclosing Party and the receiving Party will not acquire any right, title, license or interest on or to the Information.\nc. For any disputes arising from the supply, receipt or use of Information by an Affiliate of a Party, this Party shall bear sole responsibility for the purposes of this Agreement. \u201c \u201d shall mean any company controlling, controlled by, or under common control with a Party to this Agreement, control meaning in this context the direct or indirect ownership of more than fifty percent (50%) of the voting stock/shares of a company, or the power to nominate more than half of the directors, or the power otherwise to determine the policy of a company or organisation.\n2. Use of Information\na. The receiving Party undertakes not to use the Information disclosed to it for any purpose except the Purpose. This Agreement does not constitute a license by implication or otherwise to use the Information commercially or otherwise.\nb. The Parties shall disclose the Information to their employees, Affiliates, external experts and/or consultants only on a need to know basis and only to the extent absolutely necessary for the Purpose. Each Party shall require that its external experts and/or consultants also have such policies and procedures in place to ensure their compliance with these confidentiality obligations.\nc. The obligations specified in this Article shall not apply to Information for which the receiving Party can reasonably demonstrate that such Information:\ni. was known to the receiving Party on a non-confidential basis prior to its disclosure pursuant to this Agreement;\nii. is publicly known at the time of disclosure or thereafter becomes publicly known without breach of the terms of this Agreement on the part of the receiving Party;\niii. becomes known to the receiving Party through disclosure by sources other than the disclosing Party, having a right to disclose such Information,\niv. was independently developed by the receiving Party without access to the disclosing Party\u2019s Information.\n3. Applicable law and arbitration\na. The Parties shall first attempt to settle amicably any dispute arising out of this Agreement. Any dispute that cannot be settled amicably between the Parties shall be exclusively resolved by arbitration. The arbitration rules of [ \u2026 ] shall be applicable. The place of any hearing shall be [ \u2026 ] and the language of the arbitration shall be [ \u2026 ].\nb. This Agreement shall be governed by the laws of [ \u2026 ], without regard to any principle of conflict or choice of laws that would cause the application of the laws of any other jurisdiction.\nc. If at any time any provision of this Agreement is or becomes invalid or illegal in any respect, this shall have no effect on the validity of the remaining contractual provisions. The invalid provisions are to be replaced, backdated to the time of their becoming ineffective, by provisions which come closest to achieving their objective as agreed by the Parties.\n4. Assignment\na. This Agreement may not be assigned by a Party hereto without the express written consent to such assignment by the other Parties.\n5. Other\na. 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"text": "DEPARTMENT OF HOMELAND SECURITY\nNON-DISCLOSURE AGREEMENT\nI, _______________________________________, an individual official, employee, consultant, or subcontractor of or to _____________________ (the Authorized Entity), intending to be legally bound, hereby consent to the terms in this Agreement in consideration of my being granted conditional access to certain information, specified below, that is owned by, produced by, or in the possession of the United States Government.\n(Signer will acknowledge the category or categories of information that he or she may have access to, and the signer\u2019s willingness to comply with the standards for protection by placing his or her initials in front of the applicable category or categories.)\nInitials:\nProtected Critical Infrastructure Information (PCII)\nI attest that I am familiar with, and I will comply with all requirements of the PCII program set out in the Critical Infrastructure Information Act of 2002 (CII Act) (Title II, Subtitle B, of the Homeland Security Act of 2002, Public Law 107-296, 196 Stat. 2135, 6 USC 101 et seq.), as amended, the implementing regulations thereto (6 CFR Part 29), as amended, and the applicable PCII Procedures Manual, as amended, and with any such requirements that may be officially communicated to me by the PCII Program Manager or the PCII Program Manager\u2019s designee.\nInitials:\nSensitive Security Information (SSI)\nI attest that I am familiar with, and I will comply with the standards for access, dissemination, handling, and safeguarding of SSI information as cited in this Agreement and in accordance with 49 CFR Part 1520, \u201cProtection of Sensitive Security Information,\u201d \u201cPolicies and Procedures for Safeguarding and Control of SSI,\u201d as amended, and any supplementary guidance issued by an authorized official of the Department of Homeland Security.\nInitials:\nOther Sensitive but Unclassified (SBU)\nAs used in this Agreement, sensitive but unclassified information is an over-arching term that covers any information, not otherwise indicated above, which the loss of, misuse of, or unauthorized access to or modification of could adversely affect the national interest or the conduct of Federal programs, or the privacy to which individuals are entitled under Section 552a of Title 5, as amended, but which has not been specifically authorized under criteria established by an Executive Order or an Act of Congress to be kept secret in the interest of national defense or foreign policy. This includes information categorized by DHS or other government agencies as: For Official Use Only (FOUO); Official Use Only (OUO); Sensitive Homeland Security Information (SHSI); Limited Official Use (LOU); Law Enforcement Sensitive (LES); Safeguarding Information (SGI); Unclassified Controlled Nuclear Information (UCNI); and any other identifier used by other government agencies to categorize information as sensitive but unclassified.\nI attest that I am familiar with, and I will comply with the standards for access, dissemination, handling, and safeguarding of the information to which I am granted access as cited in this Agreement and in accordance with the guidance provided to me relative to the specific category of information.\nI understand and agree to the following terms and conditions of my access to the information indicated above:\n1. I hereby acknowledge that I have received a security indoctrination concerning the nature and protection of information to which I have been provided conditional access, including the procedures to be followed in ascertaining whether other persons to whom I contemplate disclosing this information have been approved for access to it, and that I understand these procedures.\n 2. By being granted conditional access to the information indicated above, the United States Government has placed special confidence and trust in me and I am obligated to protect this information from unauthorized disclosure, in accordance with the terms of this Agreement and the laws, regulations, and directives applicable to the specifi c categories of information to which I am granted access.\n3. I attest that I understand my responsibilities and that I am familiar with and will comply with the standards for protecting such information that I may have access to in accordance with the terms of this Agreement and the laws, regulations, and/or directives applicable to the specifi c categories of information to which I am granted access. I understand that the United States Government may conduct inspections, at any time or place, for the purpose of ensuring compliance with the conditions for access, dissemination, handling and safeguarding information under this Agreement.\n4. I will not disclose or release any information provided to me pursuant to this Agreement without proper authority or authorization. Should situations arise that warrant the disclosure or release of such information I will do so only under approved circumstances and in accordance with the laws, regulations, or directives applicable to the specific categories of information. I will honor and comply with any and all dissemination restrictions cited or verbally relayed to me by the proper authority.\n5. (a) For PCII - (1) Upon the completion of my engagement as an employee, consultant, or subcontractor under the contract, or the completion of my work on the PCII Program, whichever occurs first, I will surrender promptly to the PCII Program Manager or his designee, or to the appropriate PCII officer, PCII of any type whatsoever that is in my possession.\n(2) If the Authorized Entity is a United States Government contractor performing services in support of the PCII Program, I will not request, obtain, maintain, or use PCII unless the PCII Program Manager or Program Manager\u2019s designee has first made in writing, with respect to the contractor, the certification as provided for in Section 29.8(c) of the implementing regulations to the CII Act, as amended.\n(b) For SSI and SBU - I hereby agree that material which I have in my possession and containing information covered by this Agreement, will be handled and safeguarded in a manner that affords sufficient protection to prevent the unauthorized disclosure of or inadvertent access to such information, consistent with the laws, regulations, or directives applicable to the specific categories of information. I agree that I shall return all information to which I have had access or which is in my possession 1) upon demand by an authorized individual; and/or 2) upon the conclusion of my duties, association, or support to DHS; and/or 3) upon the determination that my official duties do not require further access to such information.\n6. I hereby agree that I will not alter or remove markings, which indicate a category of information or require specific handling instructions, from any material I may come in contact with, in the case of SSI or SBU, unless such alteration or removal is consistent with the requirements set forth in the laws, regulations, or directives applicable to the specific category of information or, in the case of PCII, unless such alteration or removal is authorized by the PCII Program Manager or the PCII Program Manager\u2019s designee. I agree that if I use information from a sensitive document or other medium, I will carry forward any markings or other required restrictions to derivative products, and will protect them in the same matter as the original.\n7. I hereby agree that I shall promptly report to the appropriate official, in accordance with the guidance issued for the applicable category of information, any loss, theft, misuse, misplacement, unauthorized disclosure, or other security violation, I have knowledge of and whether or not I am personally involved. I also understand that my anonymity will be kept to the extent possible when reporting security violations.\n8. If I violate the terms and conditions of this Agreement, such violation may result in the cancellation of my conditional access to the information covered by this Agreement. This may serve as a basis for denying me conditional access to other types of information, to include classified national security information.\n9. (a) With respect to SSI and SBU, I hereby assign to the United States Government all royalties, remunerations, and emoluments that have resulted, will result, or may result from any disclosure, publication, or revelation of the information not consistent with the terms of this Agreement.\n(b) With respect to PCII I hereby assign to the entity owning the PCII and the United States Government, all royalties, remunerations, and emoluments that have resulted, will result, or may result from any disclosure, publication, or revelation of PCII not consistent with the terms of this Agreement.\n10. This Agreement is made and intended for the benefit of the United States Government and may be enforced by the United States Government or the Authorized Entity. By granting me conditional access to information in this context, the United States Government and, with respect to PCII, the Authorized Entity, may seek any remedy available to it to enforce this Agreement including, but not limited to, application for a court order prohibiting disclosure of information in breach of this Agreement. I understand that if I violate the terms and conditions of this Agreement, I could be subjected to administrative, disciplinary, civil, or criminal action, as appropriate, under the laws, regulations, or directives applicable to the category of information involved and neither the United States Government nor the Authorized Entity have waived any statutory or common law evidentiary privileges or protections that they may assert in any administrative or court proceeding to protect any sensitive information to which I have been given conditional access under the terms of this Agreement.\n11. Unless and until I am released in writing by an authorized representative of the Department of Homeland Security (if permissible for the particular category of information), I understand that all conditions and obligations imposed upon me by this Agreement apply during the time that I am granted conditional access, and at all times thereafter.\n12. Each provision of this Agreement is severable. If a court should find any provision of this Agreement to be unenforceable, all other provisions shall remain in full force and effect.\n13. My execution of this Agreement shall not nullify or affect in any manner any other secrecy or non-disclosure Agreement which I have executed or may execute with the United States Government or any of its departments or agencies.\n14. These restrictions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by Executive Order No. 12958, as amended; Section 7211 of Title 5, United States Code (governing disclosures to Congress); Section 1034 of Title 10, United States Code, as amended by the Military Whistleblower Protection Act (governing disclosure to Congress by members of the military); Section 2302(b)(8) of Title 5, United States Code, as amended by the Whistleblower Protection Act (governing disclosures of illegality, waste, fraud, abuse or public health or safety threats); the Intelligence Identities Protection Act of 1982 (50 USC 421 et seq.) (governing disclosures that could expose confidential Government agents); and the statutes which protect against disclosure that may compromise the national security, including Sections 641, 793, 794, 798, and 952 of Title 18, United States Code, and Section 4(b) of the Subversive Activities Act of 1950 (50 USC 783(b)). The definitions, requirements, obligations, rights, sanctions, and liabilities created by said Executive Order and listed statutes are incorporated into this agreement and are controlling.\n15. Signing this Agreement does not bar disclosures to Congress or to an authorized official of an executive agency or the Department of Justice that are essential to reporting a substantial violation of law.\n16. I represent and warrant that I have the authority to enter into this Agreement.\n17. I have read this Agreement carefully and my questions, if any, have been answered. I acknowledge that the briefing officer has made available to me any laws, regulations, or directives referenced in this document so that I may read them at this time, if I so choose.\nDEPARTMENT OF HOMELAND SECURITY\nNON-DISCLOSURE AGREEMENT\nAcknowledgement\nTyped/Printed Name: Government/Department/Agency/Business Address Telephone Number:\nI make this Agreement in good faith, without mental reservation or purpose of evasion.\nSignature:\nWITNESS:\nTyped/Printed Name: Government/Department/Agency/Business Address Telephone Number:\nSignature:\nThis form is not subject to the requirements of P.L. 104-13, \u201cPaperwork Reduction Act of 1995\u201d 44 USC, Chapter 35.\n",
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"file_name": "CCS-Salt-Cavern-RfP-NDA.pdf",
"text": "File Ref No: CCS/SALT CAVERN/RFP/NDA\nCONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT is made on of 2016\nBETWEEN:\n(1) ENERGY TECHNOLOGIES INSTITUTE LLP, a limited liability partnership (company no. OC333553) whose registered office is at Holywell Building, Holywell Way, Loughborough, Leicestershire, LE11 3UZ (the \u201cETI\u201d); and\n(2) The parties named in Schedule 1 of this Agreement (the \u201cRespondents\u201d), (collectively the \u201cParties\u201d and individually a \u201cParty\u201d)\nBACKGROUND:\nThe Parties intend to exchange certain Information on or after the Effective Date for or in relation to the Purpose. The Parties agree to receive such Information, and to treat it as confidential information, on the following terms and conditions.\nIT IS AGREED:\nIn consideration of the above and for other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound, the Parties agree as follows:\n1. In this Agreement, unless the context requires otherwise, the following words shall have the following meanings:\n\u201cDisclosing Party\u201d means any Party that discloses Information pursuant to this Agreement;\n\u201cEffective Date\u201d means the date of execution of this Agreement;\n\u201cETI Affiliates\u201d means the Secretary of State for Business, Innovation and Skills (and any successor governmental department or agency from time to time) and any other entity which is entitled to appoint the directors or otherwise having the ability to direct management policies of the ETI (together with any affiliates of those entities), together with their respective officers, employees, agents and consultants;\n\u201cInformation\u201d means any and all confidential information or data exchanged, submitted or otherwise disclosed in respect of or further to the Purpose or prepared for or in relation to the Purpose, including but not limited to written proposal documentation, due diligence materials, contractual documentation, reports, and the fact that the Parties have entered into this Agreement and are discussing and considering a business relationship;\n\u201cProject\u201d means the proposed project under the ETI\u2019s Carbon Capture and Storage Programme entitled the \u201cSalt Cavern Appraisal for Hydrogen and Gas Storage Project\u201d;\n\u201cProject Commissioning Process\u201d means the ETI\u2019s commissioning process for the Project as defined and as set out in the RFP or as later may be notified or published by the ETI;\n\u201cProject Contract\u201d means a Project Contract as such term is defined in the RFP;\n\u201cProposal\u201d means a Proposal as such term is defined in the RFP;\n\u201cPurpose\u201d means:\na. the preparation and/or submission of any Proposals and related documents in response to the RFP;\nb. the Project Commissioning Process;\nc. any activities related to the assessment of any Proposals for the Project; and\nd. any related exchanges of Information, clarifications, clearances, discussions, due diligence, meetings, and/or negotiations in respect of the RFP, a Project Contract, the Project Commissioning Process and/or the Project;\n\u201cReceiving Party\u201d means any Party that receives Information pursuant to this Agreement;\n\u201cRFP\u201d means the request for proposals relating to the Project, issued by the ETI on 20th April 2016; and\n\u201cThird Party IP\u201d means any intellectual property rights that are not licensed or owned by a Respondent and identified by a Respondent as relevant to its Proposal.\n2. The Receiving Party shall with regard to any Information disclosed pursuant to this Agreement by or on behalf of a Disclosing Party on or after the Effective Date:\na. hold the Information in confidence and, except as is otherwise stated herein or agreed in writing by the Disclosing Party, shall not disclose or make available the Information by publication or otherwise to any third party (including for the avoidance of doubt, disclosure in any patent application or to any patent office) and shall use any Information disclosed to it pursuant to this Agreement only for carrying out the Purpose;\nb. make copies of the Information (or any further information derived from the Information) in whatever form or medium only to the extent that the copies are reasonably necessary for the Purpose and clearly mark all such copies as confidential;\nc. take all necessary and proper security precautions (and at least as great as those it takes to safeguard its own information) to safeguard every part of the Information to prevent it from being disclosed or otherwise made available to any third party except as permitted by this Agreement; and\nd. at the request and direction of the Disclosing Party, and without delay, return or destroy any Information provided to it pursuant to this Agreement and any copies of such Information, except that one copy may be kept by the Receiving Party for archival purposes and for the purpose of defending itself against any claims arising in connection with this Agreement.\n3. The obligations set out in clause 2 shall not apply to Information that:\na. the Receiving Party can prove (using written or electronic records), was lawfully known to the Receiving Party or in its possession prior to its communication by or at the direction of the Disclosing Party and was not communicated to the Receiving Party subject to any restrictions on disclosure or use; or\nb. is or becomes a part of the public domain through no wrongful act of the Receiving Party or any person on its behalf, provided that this clause 3(b) shall only apply from the date that the relevant Information so enters the public domain; or\nc. the Receiving Party receives from a third party without similar obligations of confidence in circumstances where the third party did not obtain that Information as a result of a breach of an obligation of confidence; or\nd. subject to clause 4, is required to be disclosed or made available by the Receiving Party pursuant to any applicable law, governmental regulation, or decision of any court or tribunal of competent jurisdiction or any government body, agency or regulatory body.\n4. If a Receiving Party believes it is required by law to disclose any Information under clause 3(d) above, the Receiving Party shall (in each case and to the extent not prohibited in law):\na. provide the Disclosing Party with prompt written notice of such requirement or obligation (together with a copy of any relevant access request, court order or other evidence giving rise to such belief) in advance of the required disclosure, to enable the Disclosing Party to seek appropriate protective relief and/or to take other steps to resist or narrow the scope of any required disclosure;\nb. where it is not permitted in law to notify the requirement for disclosure in advance of the required disclosure, notify the Disclosing Party as soon as reasonably practicable after the disclosure confirming the nature of and extent of the disclosure; and\nc. co-operate with the Disclosing Party with respect to such matters, and in any event disclose only such Information as it has ascertained, after taking legal advice, it is legally compelled to disclose.\n5. The ETI shall be entitled to disclose or make available any Information it receives from the Respondent to:\na. such of the ETI Affiliates, and either the ETI\u2019s or the ETI Affiliates\u2019 employees, officers, secondees, agents, consultants, sub-contractors, proposed sub-contractors, professional advisers and proposed professional advisers where such disclosure is necessary for the Purpose, provided that all such aforementioned persons to whom any Information is disclosed by the ETI are bound by obligations of confidentiality and the ETI shall be responsible for breaches of the obligations by such persons and each ETI Affiliate may enforce this clause in accordance with the Contracts (Rights of Third Parties) Act 1999; and\nb. the Department of Business, Innovation and Skills (or other relevant government department), the European Commission and such other bodies and/or individuals (including without limitation professional advisers) as may reasonably be required for the notification of, to seek advice in relation to, as part of an assessment of, or otherwise in relation to, State aid.\n6. The ETI shall be entitled to disclose or make available any Information it receives from a Respondent to any other Respondent where it is necessary for the Purpose.\n7. Each Respondent shall be entitled to disclose or make available any Information it receives from the ETI or any other Respondent to such of its employees, officers, consultants, sub-contractors, proposed sub-contractors, proposed funders, proposed owners or lessors of sites for the Project, owners or licensors of Third Party IP and professional advisers where such disclosure is necessary for the Purpose provided that all such persons to whom any Information is disclosed are bound by written obligations that are no less restrictive than those in this Agreement. The Respondent disclosing Information shall be responsible for breaches of the obligations by such persons.\n8. Each Respondent shall be entitled to disclose or make available any Information it receives from the ETI to any other Respondent where it is necessary for the Purpose.\n9. Each Party as Receiving Party expressly agrees and accepts that except in the case of fraud, no representation or warranty, express or implied, is made by the Disclosing Party as to the accuracy, completeness, reasonableness or otherwise in respect of the use of the Information, and that neither the Disclosing Party or any of its affiliates nor any of its or their respective employees, officers, secondees, agents, consultants, sub-contractors and professional advisers (as applicable) shall have any liability to the Receiving Party as a result of the Receiving Party\u2019s possession or use of the Information.\n10. The Parties agree that money damages would not be a sufficient remedy for any breach of this Agreement and that the Disclosing Party shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach. Such remedy shall not be deemed to be the exclusive remedy for breach of this Agreement, but shall be in addition to all other remedies available at law or equity.\n11. No rights or obligations other than those expressly set out in this Agreement are to be implied and nothing contained in this Agreement:\na. constitutes an offer by or on behalf of the Disclosing Party; or\nb. confers upon the Receiving Party a licence or other transfer of rights in respect of any Party\u2019s interest in any Information or in any present or future patent or patent application; or\nc. affects the present or prospective rights of the Disclosing Party under the patent laws of any country or precludes the filing or prosecution of any patent applications by the Disclosing Party.\n12. This Agreement represents the entire agreement between the Parties in relation to the subject matter contained herein and supersedes all other agreements and representations, whether oral or written, between the Parties relating to such subject matter. This Agreement may only be modified if such modification is in writing and signed by a duly authorised representative of each Party. Each Party also agrees that it shall have no remedies or claims under this Agreement for any innocent or negligent misrepresentation based on statements made prior to the Effective Date.\n13. The Parties agree that the ETI may disclose that one or more of the Respondents are involved in discussions with the ETI and the subject matter of the discussions provided that the ETI will provide a copy of any press release or other announcement to the Respondents and seek the approval of the Respondents prior to its publication or release. Other than as set out in this clause, none of the Parties will make any public announcements, statements or otherwise publicise the subject matter of this Agreement (or its existence) without the prior written consent of the other Parties and no Party will use the business names or trade marks of any other Party in any way without that Party\u2019s prior written consent.\n14. This Agreement shall come into force on the Effective Date and shall continue in full force and effect, notwithstanding the completion of the Purpose, for a period of seven years from the Effective Date unless extended, superseded or otherwise varied by a subsequent written agreement between the Parties.\n15. It is not intended that a third party (other than an ETI Affiliate) should have the right to enforce a provision of this Agreement pursuant to the Contracts (Rights of Third Parties) Act 1999.\n16. The rights of the Disclosing Party under this Agreement are in addition to and not exclusive of rights under the general law and may be waived only in writing and specifically. Delay in exercising or non-exercise of any right under this Agreement is not a waiver of that or any other right, partial exercise of any right under this Agreement shall not preclude any further or other exercise of that right or any other right under this Agreement and waiver of a breach of any term of this Agreement shall not operate as a waiver of breach of any other term or any subsequent breach of that term.\n17. If any provision of this Agreement is or becomes illegal, invalid or unenforceable in any jurisdiction, that shall not affect:\na. the legality, validity or enforceability in that jurisdiction of any other provision of this Agreement; or\nb. the legality, validity or enforceability in any other jurisdiction of that or any other provision of this Agreement.\n18. Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the Parties (or any of them), or to authorise any Party to act as agent for another, and no Party shall have authority to act in the name or on behalf of or otherwise to bind any other in any way.\n19. Except as provided otherwise, no person may assign any of its rights under this Agreement or any document referred to in it.\n20. This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this Agreement, but all the counterparts shall together constitute the same agreement. No counterpart shall be effective until each Party has executed at least one counterpart.\n21. This Agreement shall be construed in accordance with and governed by English law and the Parties hereby submit to the non-exclusive jurisdiction of the English Courts.\nThe Parties have caused this Agreement to be executed by their duly authorised representatives.\nENERGY TECHNOLOGIES INSTITUTE LLP\nBy: ________________________________\nName: _____________________________\nTitle: _______________________________\nDate: ______________________________\n",
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"text": "MUTUAL NON-DISCLOSURE AGREEMENT\nTable of Contents\n1 Parties ............................................................................................................................................ 3\n2 Confidential Information ................................................................................................................. 4\n3 Nondisclosure Obligations ............................................................................................................. 5\n4 General Provisions ........................................................................................................................ 6\n1 PARTIES\nThis Non-Disclosure Agreement (\u201cAgreement\u201d) is entered into this date:\n ____ day of , 200__ (\u201cEffective Date\u201d),\nby and between AMC-Consult A/S (Company Reg.no. 16987344), a Danish company with limited liability, having its registered address at Grundtvigsvej 29, 1864 Frederiksberg C, Denmark,\ne-mail info@amc.dk (\u201cAMC\u201d), and:\n (Company Reg. no. ) ,\na corporation having its principal place of business at\ne-mail (\u201cCompany\u201d).\nIn consideration of the mutual promises and covenants contained in this Agreement, the parties hereto agree. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives effective as of the Effective Date.\nAMC-Consult A/S\nSignature: _________________________ Date: ______________\nSigned by: Peter Makki, CEO\nCompany (Name)\nSignature: _________________________ Date: ______________\nSigned by: __________________ (Name / Title in capital letters)\n2 CONFIDENTIAL INFORMATION\n(a) \u201cConfidential Information\u201d means any proprietary information that is disclosed in writing by Disclosing Party (defined herein) to Receiving Party (defined herein) and is duly and recognizably marked \u201cConfidential\u201d on each document / sheet. By the execution of this Agreement the parties agree that all and any documents and information/facts specifically listed in Exhibit A to this Agreement is deemed Confidential Information.\n(b) Confidential information relates to Disclosing Party\u2019s business (including without limitation, business plans, financial data, customer and consumer information, including personal information, marketing plans, etc.), technology (including without limitation, technical drawings, designs, schematics, algorithms, technical data, product plans, research plans, software, etc. whether or not covered by copyright or any other intellectual property right ), products, services, trade secrets, know-how, formulas, processes, ideas, and inventions (whether or not patentable) which should be reasonably understood by Receiving Party as the confidential or proprietary information of Disclosing Party.\n(c) Confidential Information does not include any information that Receiving Party can document: (i) is or becomes generally known to the public without fault of Receiving Party; (ii) was in its possession without any obligation of confidentiality prior to receipt thereof from Disclosing Party; (iii) is independently developed by Receiving Party without use of or reference to the Confidential Information of Disclosing Party; or (iv) is rightfully obtained by Receiving Party from a third party without any obligation of confidentiality to Disclosing Party.\n3 NONDISCLOSURE OBLIGATIONS\n(a) Confidential Information of each party (\u201cDisclosing Party\u201d) may be used by the other party (\u201cReceiving Party\u201d) solely for the purpose of fulfilling obligatons and activities within the scope of the Parties mutual cooperation and must not be used for any other purpose (\u201cPurpose\u201d). For a period of five (5) years following the date of disclosure by Disclosing Party, Receiving Party will hold Disclosing Party\u2019s Confidential Information in strictest confidence and must not use or disclose Disclosing Party\u2019s Confidential Information without the prior written consent of Disclosing Party, which consent will not be unreasonably withheld or delayed. Receiving Party shall take all reasonable measures to protect the Confidential Information of Disclosing Party from becoming known to the public or falling into the possession of persons other than those persons authorized to have any such Confidential Information, which measures will include the highest degree of care that Receiving Party uses to protect its own information of a similar nature, but in no event less than a reasonable degree of care. Each party may disclose the other party\u2019s Confidential Information to its employees, contractors and Affiliates who have a legitimate \u201cneed to know,\u201d have been advised of the obligations of confidentiality under this Agreement and are bound to obligations of confidentiality substantially similar to those set out in this Agreement.\n(b) Nothing in this Agreement will prohibit Receiving Party from disclosing Confidential Information of Disclosing Party if legally required to do so by judicial or governmental order or in a judicial or governmental proceeding (\u201cRequired Disclosure\u201d); provided that Receiving Party shall: (i) give Disclosing Party reasonable notice of such Required Disclosure prior to disclosure; (ii) cooperate with Disclosing Party in the event that it elects to contest such disclosure or seek a protective order with respect thereto; and (iii) in any event only disclose the exact Confidential Information, or portion thereof, specifically requested by the Required Disclosure.\n4 GENERAL PROVISIONS\n(a) All Confidential Information of Disclosing Party is and will remain the property of Disclosing Party. Nothing contained in this Agreement will be construed as granting or conferring any rights by license or otherwise, either express, implied or by estoppel, to any Confidential Information of Disclosing Party, or under any patent, copyright, trademark or trade secret of Disclosing Party. Receiving Party must not copy, alter, modify, reverse engineer, or attempt to derive the composition or underlying information, structure or ideas of any Confidential Information and must not remove, overprint, deface or change any notice of confidentiality, copyright, trademark, logo, legend or other notices of ownership from any originals or copies of Confidential Information it receives from the Disclosing Party.\n(b) This Agreement will continue from the Effective Date for the period of cooperation between the parties and a period of three (3) years after expiration of the cooperation. The parties\u2019 obligations under Section 2 will survive any termination or expiration of this Agreement. At expiration Receiving Party must cease all use of and upon request from Disclosing Party return to Disclosing Party all copies or extracts of Disclosing Party\u2019s Confidential Information, in any medium, or certify, in writing by an authorized officer of Receiving Party, the destruction of the same to Disclosing Party. Nothing contained herein shall require the destruction or purging of Confidential Information maintained on routine computer system backup tapes, disks or similar storage devices.\n(c) Receiving Party must not assign or transfer this Agreement or any of its rights hereunder or delegate any of its obligations hereunder (whether by merger, acquisition, or operation of law) without the prior written consent of Disclosing Party, which consent will not be unreasonably withheld or delayed. Notwithstanding the foregoing, AMC may assign this Agreement to any of its Affiliates. \u201cAffiliates\u201d means, with respect to any legally recognizable entity, any other such entity directly or indirectly Controlling, Controlled by, or under common Control with such entity. \u201cControl\u201d means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a legally recognizable entity, whether through the ownership of more than fifty percent (50%) of the voting shares, by contract, or otherwise; but in any such case, such entity shall be deemed to be an Affiliate only so long as such Control exists. No permitted assignment will relieve the Receiving Party of its obligations hereunder with respect to Confidential Information disclosed to it prior to such assignment. Any assignment in violation of this Section 3(c) will be void. Subject to the foregoing, this Agreement will inure to the benefit of and be binding upon the parties, their permitted successors and permitted assigns.\n(d) Nothing in this Agreement will be construed to require Disclosing Party to disclose any Confidential Information to Receiving Party or to negotiate or enter into any business transaction with Receiving Party.\n(e) Any notice under this Agreement must be in writing and will be effective only if it is delivered by e-mail, hand or mailed, certified or registered mail, postage prepaid, return receipt requested, addressed to the appropriate party at its address set forth on the first page of this Agreement.\n(f) This Agreement will be construed and governed by the laws of Denmark, without giving effect to principles of conflicts of law or choice of law that would cause the substantive laws of any other jurisdiction to apply. The parties hereby submit to the personal jurisdiction of, and agree that any legal proceeding with respect to or arising under this Agreement must be brought solely in first instance in the City Court of Copenhagen. Notwithstanding the foregoing, either party will at all times have the right to commence proceedings in any other court of its choice with the appropriate jurisdiction for interim injunctive relief. If any legal action or proceeding is commenced in connection with any dispute arising under, relating to or otherwise concerning this Agreement, the prevailing party, as determined by the court, will be entitled to recover its attorneys\u2019 and experts\u2019 fees and all costs and necessary disbursements actually incurred in connection with such action or proceeding.\n(g) This Agreement constitutes the entire agreement between the parties with respect to Non Disclosure and the subject matter hereof and supersedes any prior understanding and agreements between and among them respecting the subject matter hereof. It will not be modified except by a written agreement signed by both parties.\n(h) This Agreement is executed by both the parties and each signed Agreement will be deemed an original, but all of which together will constitute one and the same agreement.\n",
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"text": "Annex III \u2013 Non Disclosure Agreement\nThis agreement is made between PricewaterhouseCoopers LLP, a limited liability partnership incorporated in England (number OC303525) whose registered office is at 1 Embankment Place, London WC2N 6RH (\"PwC\"); and whose registered office is at (\u201cyou\u201d).\nBackground\nIn connection with our discussions relating to \u2018[Insert project name]\u2019 (the \u201cpurpose\u201d) certain confidential information may be disclosed between us.\n1 Definitions\nIn this agreement the following words have the meanings given to them below:\n\u201cconfidential information\u201d means any information disclosed by one party to the other party in connection with the purpose, which is of a confidential nature irrespective of whether it is marked as such.\n\u201cdisclosing party\u201d means the party to this agreement disclosing the confidential information. \u201cPwC firm\u201d means any entity or partnership within the worldwide network of PricewaterhouseCoopers firms and entities.\n\u201creceiving party\u201d means the party to this agreement to whom the confidential information is disclosed.\n2 Confidentiality\n2.1 The receiving party agrees:\n(a) to keep the disclosing party\u2019s confidential information, confidential;\n(b) not to use the disclosing party\u2019s confidential information except in connection with the purpose; and\n(c) not to disclose the disclosing party\u2019s confidential information to anyone else.\n2.2 Each party agrees that it will keep the purpose and the existence of this agreement confidential.\n2.3 This agreement will not apply to information which:\n(a) is publicly available; or\n(b) has been received from someone else who owes no duty of confidence in relation to it; or\n(c) was already known by the receiving party.\n2.4 Nothing in this agreement will prevent the receiving party from disclosing confidential information:\n(a) if the disclosing party has given its prior written consent; or\n(b) to its lawyers; or\n(c) if the disclosure is required by law, regulation or professional requirements; or\n(d) in the case of PwC, to other PwC firms or relevant subcontractors.\n2.5 The receiving party will ensure that anyone who receives confidential information under clause 2.4 (b) is bound by confidentiality obligations before the confidential information is disclosed.\n2.6 Nothing in this agreement will restrict your ability to disclose PwC\u2019s advice concerning the tax (including social security) treatment or tax structure of any transaction regardless of any confidentiality markings on any communications.\n3 Term\n3.1 This agreement will come into effect on the date of signature by both parties and will continue indefinitely, subject to any subsequent agreement entered into between the parties in relation to the purpose which includes obligations relating to the protection of confidential information. The subsequent agreement will then replace this agreement with effect from the commencement of our services.\n3.2 Following a written request from the disclosing party, the receiving party will, as soon as practicable, either destroy or return all confidential information to the disclosing party or, in the case of electronic copies of confidential information, delete them or make them reasonably inaccessible. However, PwC may retain a copy of the confidential information for our internal purposes.\n4 General\nThis agreement forms the entire agreement between the parties relating to confidential information disclosed in connection with the purpose. It replaces any earlier agreements, representations or discussions. Neither party excludes liability for any fraud.\n5 Governing law and jurisdiction\nThis agreement and any dispute arising from it, whether contractual or non-contractual, will be governed by English law and be subject to the exclusive jurisdiction of the English courts.\nSIGNED for and on behalf of PricewaterhouseCoopers LLP\nBy \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026..\nPosition\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\nDate \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\nSIGNED for and on behalf of [ ]\nBy \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\nPosition\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026..\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.\n",
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"text": "NON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (\u201cNon-Disclosure Agreement\u201d) dated as of _____ __, 20__ (the \u201cEffective Date\u201d), between [_____________] (\u201cContractor\u201d), a [_______________] [corporation] [limited liability company] [limited liability partnership] having offices at [_____________] and [insert legal National Grid entity] d/b/a National Grid (\u201cNational Grid\u201d), a [____________] [corporation] [limited liability company][limited liability partnership], having offices at [_____________] (each, individually, a \u201cParty\u201d and, collectively, the \u201cParties\u201d).\nRECITALS\nWHEREAS, the Parties and their respective Affiliates (as such term is defined below) possess certain confidential and proprietary Information (as such term is defined below); and\nWHEREAS, each Party may elect, in its sole discretion, to disclose Information to the other Party or its Representatives (as such term is defined below) in connection with [Fill In Purpose] (the \u201cPurpose\u201d), subject to the terms and conditions of this Non-Disclosure Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants contained herein and for other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the Parties agree as follows:\n\u00a71. Certain Definitions.\n(a) The term \u201cInformation\u201d means\n(i) all financial, technical and other non-public or proprietary information which is furnished or disclosed orally, in writing, electronically or in other form or media by Disclosing Party and/or its Representatives to Recipient and/or its Representatives in connection with the Purpose and that is described or identified (at the time of disclosure) as being non-public, confidential or proprietary, or the non-public or proprietary nature of which is apparent from the context of the disclosure or the contents or nature of the information disclosed;\n(ii) all memoranda, notes, reports, files, copies, extracts, inventions, discoveries, improvements or any other thing prepared or derived from the information described in\n\u00a71(a)(i), above;\n(iii) all CEII (as such term is defined below and only if CEII is exchanged under this Non-Disclosure Agreement);\n(iv) all Personal Information (as defined in the ISA Exhibit and only if Personal Information is exchanged under this Non-Disclosure Agreement); and\n(v) all Customer Information (as such term in is defined below and only if Customer Information is exchanged under this Non-Disclosure Agreement).\n(b) The term \u201cRecipient\u201d means a Party to whom the other Party or its Representatives discloses Information.\n(c) The term \u201cDisclosing Party\u201d means the Party disclosing Information in its possession, or on whose behalf Information is disclosed, to a Recipient.\n(d) The term \u201cRepresentative(s)\u201d means the Affiliates of a Party and the officers, directors, members, managers, employees, contractors, legal advisors, financial advisors and representatives of such Party and its Affiliates.\n(e) The term \u201cAffiliate\u201d means any Person controlling, controlled by, or under common control with, any other Person; \u201ccontrol\u201d shall mean the ownership of, with right to vote, 50% or more of the outstanding voting securities, equity, membership interests, or equivalent, of such Person.\n(f) The term \u201cCustomer Information\u201d includes, but is not limited to, one or more National Grid customers\u2019 names, addresses, account numbers, billing information, load information, and usage information.\n(g) The term \u201cPerson\u201d includes any natural person, individual, firm, corporation, company, partnership (general or limited), limited liability company, business trust, joint venture, consortium, government or political subdivision, or any agency, instrumentality, or authority of any government or political subdivision, or other entity or association.\n\u00a72. Permitted Disclosure, Personal Information and Critical Energy/Electric Infrastructure Information.\n(a) Recipient shall receive all Information in strict confidence, shall exercise reasonable care to maintain the confidentiality and secrecy of the Information, and, except to the extent expressly permitted by this Non-Disclosure Agreement, shall not divulge Information to any third party without the prior written consent of Disclosing Party. The foregoing notwithstanding, Recipient may disclose Information to its Representatives to the extent each such Representative has a need to know such Information for the Purpose contemplated by this Non-Disclosure Agreement and agrees to observe and comply with the obligations of Recipient under this Non-Disclosure Agreement with regard to such Information. Recipient shall immediately notify Disclosing Party regarding, and shall be responsible hereunder for, any breach of the terms of this Non-Disclosure Agreement to the extent caused by its Representatives.\n(b) The Parties acknowledge that Information and/or data disclosed under this Non-Disclosure Agreement may include Personal Information (as such term is defined in the ISA Exhibit attached hereto). To the extent Personal Information is disclosed under this Non-Disclosure Agreement, the Parties obligations shall be governed by the Information Security Addendum (attached hereto as the ISA Exhibit) which is hereby incorporated by reference and explicitly made a part of this Non-Disclosure Agreement.\n(c) The Parties acknowledge that Information and/or data disclosed under this Non-Disclosure Agreement may include \u201cCritical Energy / Electric Infrastructure Information\u201d (\u201cCEII\u201d) as defined and designated by Disclosing Party, consistent with applicable Federal Energy Regulatory Commission (\u201cFERC\u201d) and North American Electric Reliability Corporation (\u201cNERC\u201d) regulations. Only if such Information contains CEII, Recipient shall, and shall cause its Representatives to, strictly comply with any and all laws, rules and regulations (including, without limitation, FERC and NERC rules, regulations, orders and policies) applicable to any such CEII that is disclosed by or on behalf of Disclosing Party or that relates to any of Disclosing Party\u2019s or Disclosing Party\u2019s Affiliates\u2019 facilities. Recipient shall not divulge, and shall cause its Representatives not to divulge, any such CEII to any Person or entity, directly or indirectly, unless permitted to do so by applicable law and unless Recipient has first obtained, in each case, the express specific written consent of Disclosing Party and any affected Affiliate of Disclosing Party. In any event, to the extent that Recipient or any of its Representatives seeks or is ordered to submit any such CEII to FERC, a state regulatory agency, a court or other governmental body, whether in connection with the Purpose or otherwise, Recipient shall (and, to the extent applicable, shall cause its Representatives to), in addition to obtaining Disclosing Party\u2019s and its Affiliate\u2019s (as applicable) prior written consent, seek a protective order or other procedural protections to ensure that such information is accorded CEII protected status and is otherwise treated as confidential. With respect to CEII, in the event of any conflict or inconsistency between this Section and any other term or provision of this Non-Disclosure Agreement, this Section shall govern in connection with such CEII.\n(d) Recipient shall (i) identify any and all Representatives of Recipient who are authorized to receive, or have access to, CEII on the List of Representatives Authorized to Receive CEII attached hereto as the CEII Exhibit which may from time to time be amended by mutual agreement of the Parties. Each Representative named in the CEII Exhibit shall not be granted access to CEII until such individual submits to Recipient an executed Certificate of Non-Disclosure (set forth in Schedule A to the CEII Exhibit). This Section shall survive any termination, expiration or cancellation of this Non-Disclosure Agreement. The Parties shall, and shall cause their respective Representatives to, continue to comply with this Section notwithstanding expiration of the Term (as such term is defined below) or any earlier termination of this Non-Disclosure Agreement.\n\u00a73. Exclusions from Application.\n(a) This Non-Disclosure Agreement shall not apply to Information that,\n(i) at the time of disclosure by or on behalf of Disclosing Party hereunder, is in the public domain, or thereafter enters the public domain without any breach of this Non-Disclosure Agreement by Recipient or any of its Representatives,\n(ii) is rightfully in the possession or knowledge of Recipient or its Representatives prior to its disclosure by or on behalf of Disclosing Party hereunder,\n(iii) is rightfully acquired by Recipient or its Representative(s) from a third party who is not under any obligation of confidence with respect to such Information, or\n(iv) is developed by Recipient or its Representatives independently of the Information disclosed hereunder by or on behalf of Disclosing Party (as evidenced by written documentation).\n(b) Recipient is hereby notified that, as set forth in 18 U.S.C. \u00a71833(b), individuals do not have criminal or civil liability under U.S. trade secret law for the following disclosures of a trade secret:\n(i) disclosure in confidence to a federal, state or local government official, either directly or indirectly, or to an attorney, provided the disclosure is for the sole purpose of reporting or investigating a suspected violation of law;\n(ii) disclosure in a complaint or other document filed in a lawsuit or other proceeding if such filing is made under seal; and/or\n(iii) under those circumstances where Recipient files a lawsuit for retaliation against Disclosing Party for reporting a suspected violation of law, Recipient may disclose Disclosing Party\u2019s trade secret information to its attorney and may use the trade secret information in the court proceeding if Recipient files any document containing the trade secret under seal and does not disclose the trade secret, except pursuant to court order.\n(c) Nothing herein or in any other agreement between the Parties is intended to conflict with 18 U.S.C. \u00a7 1833(b) or create any liability for disclosures of trade secrets that are expressly allowed by such section.\n\u00a74. Production of Information. Recipient agrees that if it or any of its Representatives are required by law, by a court or by other governmental or regulatory authorities (including, without limitation, by oral question, interrogatory, request for information or documents, subpoena, civil or criminal investigative demand or other process) to disclose any of Disclosing Party\u2019s Information, Recipient shall provide Disclosing Party with prompt notice of any such request or requirement, to the extent permitted to do so by applicable law, so that Disclosing Party may seek an appropriate protective order or waive compliance with the provisions of this Non-Disclosure Agreement. If, failing the entry of a protective order or the receipt of a waiver hereunder, Recipient (or any Representative of Recipient) is, in the opinion of its counsel, legally compelled to disclose such Information, Recipient may disclose, and may permit such Representative to disclose, such portion of the Information that its counsel advises must be disclosed and such disclosure shall not be deemed a breach of any term of this Non-Disclosure Agreement. In any event, Recipient shall use (and, to the extent applicable, shall cause its Representatives to use) reasonable efforts to seek confidential treatment for Information so disclosed if requested to do so by Disclosing Party, and shall not oppose any action by, and shall reasonably cooperate with, Disclosing Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Information.\n\u00a75. Scope of Use. Recipient and each of its Representatives shall use Information disclosed by or on behalf of Disclosing Party solely in connection with the Purpose and shall not use, directly or indirectly, any Information for any other purpose without Disclosing Party\u2019s prior written consent.\n\u00a76. No Representations; No Rights Conferred. Disclosing Party makes no representations or warranties, express or implied, with respect to any Information disclosed hereunder, including, without limitation, any representations or warranties as to the quality, accuracy, completeness or reliability of any such Information; all such representations and warranties are hereby expressly disclaimed. Neither Disclosing Party nor its Representatives shall have any liability whatsoever with respect to the use of, or reliance upon, the Information by Recipient or its Representatives. Neither Recipient nor its Representatives shall acquire any rights in Information by virtue of its disclosure hereunder. No license to Recipient or its Representatives, under any trademark, patent, or other intellectual property right, is either granted or implied by the disclosure of Information under this Non-Disclosure Agreement.\n\u00a77. Return or Destruction of Information. Recipient shall return and deliver, or cause to be returned and delivered, to Disclosing Party, or destroy or cause to be destroyed (with certification of destruction delivered to Disclosing Party), all tangible Information, including copies and abstracts thereof, within thirty (30) days of a written request by Disclosing Party (a \u201cRequest\u201d). The foregoing notwithstanding, Recipient may retain one (1) copy of such Information for archival purposes only and subject to compliance with the terms of this Non-Disclosure Agreement. Notwithstanding the foregoing, each Party agrees that Recipient shall not be required to return to Disclosing Party, or destroy, copies of Disclosing Party\u2019s Information that (A) reside on Recipient\u2019s or its Representatives\u2019 backup, disaster recovery or business continuity systems, or (B) that Recipient or its Representatives are obligated by applicable law and/or governmental regulations to retain. Recipient agrees that, following its receipt of the Request, it shall neither retrieve nor use Disclosing Party\u2019s Information for any purpose other than that specified in clause (B) above.\n- 5 -\n\u00a78. No Partnership, Etc. Nothing contained herein shall bind, require, or otherwise commit a Party (or any Affiliate thereof) to proceed with any project, sale, acquisition, or other transaction of or with the other Party or any other entity. No agency, partnership, joint venture, or other joint relationship is created by this Non-Disclosure Agreement. Neither this Non-Disclosure Agreement nor any discussions or disclosures hereunder shall prevent either Party from conducting similar discussions with other parties or performing work, so long as such discussions or work do not result in the disclosure or use of Information in violation of the terms of this Non-Disclosure Agreement. The terms of this Non-Disclosure Agreement shall not be construed to limit either Party\u2019s right to independently engage in any transaction, or independently develop any information, without use of the other Party\u2019s Information.\n\u00a79. Term and Termination. Except with respect to any Information that is Customer Information, CEII or Personal Information, Recipient\u2019s obligations and duties under this Non-Disclosure Agreement shall have a term of [ ] [()] years from the Effective Date (the \u201cTerm\u201d), but in no event will the confidentiality obligations herein terminate less than one (1) year from the date of the last disclosure. In the case of any Information that is Customer Information, CEII or Personal Information, Recipient\u2019s obligations and duties under this Non-Disclosure Agreement shall survive for (i) the Term, or (ii) so long as such Customer Information, CEII or Personal Information, as applicable, is required to be kept confidential under applicable law, whichever period is longer (the \u201cSpecial Information Term\u201d). Either Party may terminate this Non-Disclosure Agreement by written notice to the other Party. Notwithstanding any such termination, all rights and obligations hereunder shall survive (i) for the Special Information Term for all Customer Information, CEII or Personal Information disclosed prior to such termination, and (ii) for the Term for all other Information disclosed prior to such termination.\n\u00a710. Injunctive Relief. The Parties acknowledge that a breach of this Non-Disclosure Agreement by Recipient may cause irreparable harm to Disclosing Party for which money damages would be inadequate and would entitle Disclosing Party to injunctive relief and to such other remedies as may be provided by law.\n\u00a711. Governing Law; Consent to Jurisdiction. This Non-Disclosure Agreement shall be governed and construed in accordance with the laws of the [Commonwealth of Massachusetts][State of New York][State of Rhode Island] without regard to the principles of the conflict of laws contained therein. Each Party hereby submits to the personal and subject matter jurisdiction of the courts of the [Commonwealth of Massachusetts][State of New York][State of Rhode Island] for the purpose of interpretation and enforcement of this Non-Disclosure Agreement.\n\u00a712. Amendments. This Non-Disclosure Agreement may be amended or modified only by an instrument in writing signed by authorized representatives of all Parties.\n\u00a713. Assignment. This Non-Disclosure Agreement may not be assigned without the express written consent of all Parties hereto; provided, however, that any Party may assign this Non-Disclosure Agreement to an Affiliate of such Party without the consent of any other Party.\n\u00a714. Severability. Whenever possible, each provision of this Non-Disclosure Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision hereof shall be prohibited by, or determined to be invalid under, applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Non-Disclosure Agreement. All obligations and rights of the Parties expressed herein shall be in addition to, and not in limitation of, those provided by applicable law.\n\u00a715. Entire Agreement. This Non-Disclosure Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof, and any and all previous representations or agreements with respect to such subject matter, either oral or written, are hereby annulled and superseded.\n\u00a716. Consents and Waivers. Any consent or waiver of compliance with any provision of this Non-Disclosure Agreement shall be effective only if in writing and signed by an authorized representative of the Party purported to be bound thereby, and then such consent or waiver shall be effective only in the specific instance and for the specific purpose for which it is given. No failure or delay by any Party in exercising any right, power or privilege under this Non-Disclosure Agreement shall operate as a waiver thereof, nor shall any single or partial waiver thereof preclude any other exercise of any other right, power or privilege hereunder.\n\u00a717. No Publicity. [No Party shall issue any press release or make any other public announcement regarding the existence of this Non-Disclosure Agreement or any discussions among the Parties regarding the Purpose without the prior written consent of all Parties.]\n\u00a718 Notices. Where written notice is required by this Non-Disclosure Agreement, such notice shall be deemed to be given when delivered personally, mailed by certified mail, postage prepaid and return receipt requested, or by facsimile or electronic mail, as follows:\nTo National Grid: [_____________]\nAttn: __________________________ _______________ _______________\nTo [_____________]: [_____________] Attn: __________________________ _______________ _______________\n\u00a719 Counterparts. This Non-Disclosure Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Non-Disclosure Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement. The exchange of copies of this Non-Disclosure Agreement and of signature pages by facsimile or in electronic form (\u201c.pdf\u201d or \u201c.tif\u201d) shall constitute effective execution and delivery of this Non-Disclosure Agreement as to the Parties and may be used in lieu of the original Non-Disclosure Agreement for all purposes. Signatures of the Parties transmitted by facsimile or in electronic format shall be deemed to be their original signatures for all purposes. In proving this Non-Disclosure Agreement it shall not be necessary to produce or account for more than one such counterpart signed by the Party against whom enforcement is sought.\nIN WITNESS WHEREOF, this Non-Disclosure Agreement has been executed by duly authorized representatives of the Parties as of the date first above written.\n[insert legal National Grid entity] [_insert legal name of Contractor]\nBy:_________________________________ By:_________________________________\nName: Name:\nTitle: Title:\nISA Exhibit\nInformation Security Addendum\nThe following terms and conditions shall apply with regard to Personal Information as defined in this Information Security Addendum (\u201cAddendum\u201d). In the case of any inconsistency, conflict, or any other difference with respect to Personal Information between the Non-Disclosure Agreement and any of the terms in this Addendum, the terms of this Addendum shall in all cases be controlling. To the extent any capitalized terms are not defined in this Addendum, such shall have the same definition as have been provided in the preceding Non-Disclosure Agreement. The obligations of Contractor under this Addendum shall be deemed to apply to and bind Contractor\u2019s Representative to the extent such Representative or Affiliate receives or has access to any Personal Information; provided, however, that Contractor shall remain solely liable for any noncompliance with the terms of this Addendum caused by its Representatives.\n1.0 DEFINITIONS\n1.1 \u201cPersonal Information\u201d \u2013 means information defined as \u201cpersonal information or \u201cpersonal data\u201d under applicable Law. Without limiting the foregoing, Personal Information includes information that identifies or could be used to re-identify a specific person, including but not limited to first name and last name or first initial and last name in combination with any one or more of the following data elements: addresses; residential and/or mobile telephone numbers; e-mail addresses; social security numbers; medical insurance numbers; state issued identification card number (including tribal identification numbers); driver\u2019s license numbers or other driver identification data; personnel records; financial account information; credit related information, including any information relating to credit checks or background checks; credit or debit card numbers and personal identification numbers such as access codes, security codes or passwords that would permit access to an individual\u2019s financial account; and medical or health information. Without limiting the foregoing, Personal Information includes all private data of National Grid and its affiliates\u2019 employees, officers, directors, subcontractors, agents, and customers, that Contractor receives from National Grid, and as may be defined by applicable state and/or federal statutes and regulations. Personal Information shall not include publicly available information, lawfully made available to the general public in federal, state, or local government records.\n1.2 \u201cLaw\u201d \u2013 means, with respect to this Addendum, any foreign, federal, state or local law or regulation, promulgated or amended from time to time during the term of this Non-Disclosure Agreement, applicable to Personal Information received by Contractor from National Grid, including, but not limited to, the Protection of Personal Information of Residents of the Commonwealth of Massachusetts, 201 CMR 17.00 (the \u201cMA Security Regs\u201d), the Rhode Island Identity Theft Protection Act, RIGL \u00a7 11-49.3-1 (the \u201cRI Security Regs\u201d) and the California data security regulations, Cal. Civ. Code \u00a7 1798.81.5, (the \u201cCA Security Regs\u201d).\n2.0 SECURITY\n2.1 Contractor hereby agrees to comply with all Laws it receives from National Grid during the term of the Non-Disclosure Agreement and ensure that all subcontractors or vendors who have access to National Grid\u2019s Personal Information comply with all Laws.\n2.2 Contractor agrees to, and agrees to ensure that its subcontractors and/or vendors who have access to National Grid\u2019s Personal Information will, implement and maintain appropriate physical, technical and administrative security measures for the protection of Personal Information as required by any Law or as required by National Grid; including, but not limited to: (i) encrypting all transmitted records and files containing Personal Information that will travel across public networks, and encryption of all data containing Personal Information to be transmitted wirelessly; (ii) prohibiting the transfer of Personal Information to any portable device unless such transfer has been approved in advance; (iii) retaining Personal Information for a period no longer than is reasonably required to provide the services requested, to meet the purpose for which it was collected, or in accordance with a written retention policy or as may be required by Law; and (iv) encrypting any Personal Information to be transferred to a portable device.\n2.3 Contractor shall develop, document and implement quality assurance measures and internal controls, including implementing tools and methodologies, so that the Services outlined in the any agreements between the Parties are performed in an accurate and timely manner, in accordance with such agreement and applicable Law.\n2.4 Contractor shall: (i) maintain a strong control environment in day-to-day operations; (ii) document the processes and procedures for quality assurance and internal controls; (iii) develop and execute a process to ensure regular internal control self-assessments are performed with respect to the Services; and (iv) maintain an internal audit function sufficient to monitor the processes and systems used to provide the Services.\n2.5 Contractor shall not, directly or indirectly, divulge, disclose or communicate any Personal Information it receives from National Grid to any Person, firm, or corporation, except with the written permission of National Grid.\n2.6 All records pertaining to Personal Information received from National Grid, whether developed by National Grid or others, are and shall remain the property of National Grid.\n2.7 In addition to the above requirements, Contractor shall adopt, implement and maintain security procedures sufficient to protect Personal Information from improper access, disclosure, use, or premature destruction. Such security procedures shall be reasonably acceptable to National Grid and in compliance with all applicable Laws as they are promulgated or amended. Contractor shall maintain or adopt a written information security program (\u201cWISP\u201d) or its equivalent consistent with the MA Security Regs and the RI Security Regs, and any other applicable Laws that govern the protection of Personal Information received from National Grid or maintained on behalf of National Grid. Contractor agrees to apply the standards and requirements of the MA Security Regs and RI Security Regs to all such Personal Information, regardless of the jurisdiction in which the subject of Personal Information resides. During the term of the Non-Disclosure Agreement and for a period of seven (7) years thereafter, Contractor shall maintain, and provide for National Grid\u2019s review, at National Grid\u2019s request, (a) Contractor\u2019s WISP; and (b) other applicable security program documents, including summaries of its incident response policies, encryption standards and/or other computer security protection policies or procedures, that constitute compliance with applicable Laws. Contractor shall provide National Grid with notice of any amendments to its WISP and such policies or programs, and any new policies or programs related to information privacy and security as may be adopted by Contractor from time to time, within thirty (30) days after the adoption of any such amendment, policy or program or changes in applicable Law.\n2.8 Contractor agrees to notify National Grid promptly, but in no event later than 24 hours, after discovery of a security vulnerability, including, but not limited to, an exploitation of security vulnerabilities by third parties that have resulted in corruption, unauthorized modification, sale, rental, and/or otherwise damages to or materially alters the integrity of National Grid\u2019s Information, and shall work with National Grid to mitigate such vulnerabilities.\n2.9 Contractor shall have a process for managing both minor and major security incidents. Contractor shall notify National Grid promptly, and in no event later than five (5) days after discovery, in writing, of any unauthorized access, possession, use, destruction or disclosure of Personal Information (a \u201cSecurity Breach\u201d). Contractor shall promptly and in writing provide National Grid with full details of the Security Breach, and shall use reasonable efforts to mitigate such Security Breach and prevent a recurrence thereof. Security Breaches include, but are not limited to, a virus or worm outbreak, cyber security intrusions into systems directly responsible for supporting National Grid data and services, physical security breaches into facilities directly responsible for supporting National Grid data and services, and other directed attacks on systems directly responsible for supporting National Grid data and services. Contractor shall not be required to provide a written report of attempted security incidents. \u201cAttempted Security Incidents\u201d means, without limitation, pings and other broadcast attacks on firewall, port scans, unsuccessful log-on attempts, common denial of service attacks, and any combination of the above, so long as no such incident results in unauthorized access, use or disclosure of Personal Information or other serious vulnerability to National Grid\u2019s data. In the event of a Security Breach, the parties shall cooperate to (a) mitigate and resolve any data privacy or security issues involving Personal Information, and (b) make any notifications to individuals affected by the Security Breach, and/or governmental/administrative entities as required by Law. Contractor\u2019s failure to comply with this Article 2.9 shall be considered a material breach of the Non-Disclosure Agreement, for which no cure period shall apply.\n2.10 Following a Security Breach, National Grid, or its designated agent, shall have the right, upon reasonable notice to Contractor, to complete a review of Contractor\u2019s security measures and ensure that unauthorized access to Personal Information has been eliminated.\n2.11 Contractor agrees to ensure that any subcontractor or vendor to which it provides National Grid\u2019s Information, including Personal Information received from National Grid, or to which it provides National Grid\u2019s Information and/or Personal Information created or received by Contractor on behalf of National Grid, agrees to the same restrictions and conditions set forth herein through a written contractual agreement.\n2.12 Contractor agrees that National Grid\u2019s data, including Personal Information, may not be maintained, stored, or transmitted outside of the United States of America, except for entities that are legally affiliated with Contractor or are wholly owned subsidiaries of Contractor.\n2.13 Contractor agrees that it shall be responsible for any and all acts of any subcontractors or vendors to which it allows access to National Grid Information and/or Personal Information.\n2.14 Contractor shall provide National Grid with a list of all subcontractors and vendors that will have access to National Grid\u2019s Confidential and/or Personal Information.\n2.15 Contractor understands the extremely sensitive nature of the Information, including Personal Information it receives from National Grid, and acknowledges that National Grid would suffer irreparable harm, for which damages would not be an adequate remedy, if National Grid\u2019s Personal Information were improperly disclosed. Contractor therefore agrees that National Grid shall be entitled to seek and obtain equitable relief in addition to all other remedies at law to protect its Personal Information.\n2.16 Contractor agrees that, to the fullest extent permitted by law, it shall be and remain strictly liable for the security of all Personal Information when in Contractor\u2019s possession and when being transmitted from Contractor or received by Contractor. Without limiting any other obligations under any agreement entered into between the Parties, Contractor agrees that it shall defend, indemnify and hold harmless National Grid and its Affiliates and their officers, directors, employees, agents, servants, successors and assigns, from and against any and all claims, losses, demands, liabilities, costs and other expenses (including but not limited to, reasonable attorneys\u2019 fees and costs, administrative penalties and fines, costs expended to notify individuals and/or to prevent or remedy possible identity theft, financial harm or any other claims of harm related to a breach) incurred as a result of, or arising directly out of or in connection with any acts or omissions of Contractor or any party under its control, including, but not limited to, negligent or intentional acts or omissions, resulting from a Security Breach or encryption failure in the transmission of such Personal Information, except to the extent such act or omission is caused by the sole negligence of National Grid. This provision shall survive termination of this Addendum, the Non-Disclosure Agreement and any other agreement between the Parties relevant to the Purpose.\n2.17 Contractor shall maintain or cause to be maintained sufficient insurance coverage as shall be necessary to insure Contractor and its employees, agents, Representatives and subcontractors against any and all claims or claims for damages arising under this Addendum and the Non-Disclosure Agreement and such insurance coverage shall apply to all services provided by Contractor or its Representatives, agents or subcontractors.\n2.18 When required by law, by a court or by other governmental or regulatory authorities (including, without limitation, an employment tribunal), Contractor shall provide, and formally document, a method that ensures that it can secure, preserve, and transfer digital evidence and artifacts to National Grid in a format that shall comply with such law or be admissible by such court or authority. Deviations from the documented method, either ad-hoc or permanent (e.g. due to new case law or technological advancements), must be agreed upon by the Parties in advance and must still adhere to the aforementioned format and documentation requirements.\n2.19 In the event that Contractor fails to fulfill the above obligations or in the event that such failure appears to be an imminent possibility, National Grid shall be entitled to all legal and equitable remedies afforded it by law as a result thereof and may, in addition to any and all other forms of relief, recover from the undersigned all reasonable costs and attorneys\u2019 fees encountered by it in seeking any such remedy.\n3.0 DATA SCRUBBING VERIFICATION\n3.1 Upon termination of all agreements between the Parties relevant to and in connection with the Purpose, Contractor shall return to National Grid all Personal Information or destroy such Personal Information beyond recovery and certify such destruction in writing to National Grid. Without limiting the foregoing, upon termination of all agreements between the Parties relevant to and in connection with the Purpose, Contractor shall use the best possible means to scrub, or otherwise destroy beyond recovery all electronic Personal Information in its possession, certifying such destruction in writing to National Grid\u2019s procurement agent, and providing National Grid with a written explanation of the method used for data disposal/destruction, along with a written certification that such method meets or exceeds the National Grid\u2019s data handling standards and industry best practices for the disposal/destruction of sensitive data. If such return or destruction is not feasible, Contractor shall provide to National Grid notification of the conditions that make return or destruction infeasible. Upon National Grid\u2019s written agreement that return or destruction of Personal Information is infeasible, Contractor shall extend the protections of this Addendum to such Personal Information and limit further uses and disclosures of such Personal Information to those purposes that make the return or destruction infeasible, for so long as Contractor maintains such Personal Information.\n4.0 AUDIT\n4.1 Contractor shall, from time to time during the term of the Non-Disclosure Agreement and for a period of seven (7) years thereafter, during regular business hours and upon reasonable notice, permit National Grid or its representatives to perform audits of Contractor\u2019s facilities, equipment, books and records (electronic or otherwise), operational systems and such other audits as may be necessary to ensure: (a) Contractor\u2019s compliance with this Addendum, (b) Contractor\u2019s compliance with all applicable Law, and (c) Contractor\u2019s financial and operational viability, including but not limited to Contractor\u2019s internal controls, security policies, business resumption, continuity, recovery, and contingency plans.\n4.2 National Grid requires an annual written self-certification from Contractor based on an independent third party audit that scrutinizes and confirms the effectiveness of controls. If Contractor fails to perform its audit obligations hereunder, National Grid (or an independent third party auditor on its behalf that is subject to confidentiality obligations) may audit Contractor and subservice providers control environments and security practices relevant to services provided once in any twelve (12)-month period, with reasonable prior written notice (at least seven (7) days\u2019 notice) and under reasonable time, place and manner conditions.\n4.3 In addition to the above, National Grid may also request Contractor to participate in an audit and information disclosure in the event (a) National Grid receives any audit requests from a governmental or regulated agency, and/or (b) within 24 hours if Contractor suffers a Security Breach.\n5.0 MISCELLANEOUS\n5.1 Where applicable, if, and only with National Grid\u2019s prior consent, Contractor processes Personal Information received from National Grid from the \u201cEuropean Economic Area\u201d or \u201cEEA\u201d (as defined below) in a jurisdiction that is not an approved jurisdiction under the EEA, Contractor shall ensure that it has a legally approved mechanism in place to allow for the international data transfer prior to the transfer of any such Personal Information and Contractor will abide by the obligations under Regulation (EU) 2016/679, the General Data Protection Regulation, fair and lawful use requirements, together with any additional implementing legislation, rules or regulations that are issued by applicable supervisory authorities with respect to such Personal Information. The \u201cEEA\u201d means those countries that are members of European Free Trade Association (EFTA), and the then-current, post-accession member states of the European Union.\n5.2 Contractor agrees to cooperate fully with National Grid and to execute such further instruments, documents and agreements, and to give such further written assurances as may be reasonably requested by the other Party, to better evidence and reflect the transactions described in and contemplated by this Addendum, and to carry into effect the intents and purposes of this Addendum.\n5.3 The terms of this Addendum shall survive the termination of all agreements between the Parties related to or in connection with the Purpose for any reason.\nCEII Exhibit\nList of Contractor Representatives Authorized to Receive CEII\nSchedule A\nCERTIFICATE OF NON-DISCLOSURE\nI, the undersigned, hereby certify my understanding that the Information which includes critical energy/electric infrastructure information (\u201cCEII\u201d) is being provided to me pursuant to the terms and restrictions of the Non-Disclosure Agreement by and between National Grid and ____________ dated _________, ___ 20__ (\u201cNon-Disclosure Agreement\u201d). I also certify that I have been given a copy of that Non-Disclosure Agreement, have read its terms and conditions, and agree to be bound by, and comply with, such terms of conditions. I understand that the contents of the Information and any notes, memoranda, computer software, software documentation or any other forms of information regarding or derived from the Information shall not be disclosed to anyone other than in accordance with the Non-Disclosure Agreement and shall be used only for the Purpose as defined in the Non-Disclosure Agreement. I further certify that I will retain an executed copy of this executed Schedule A for seven (7) years from the expiration of the Non-Disclosure Agreement and will forward a signed copy of the same to my National Grid contact.\nI further acknowledge and agree that, in the event that I cease to be engaged in the Purpose, I shall continue to be bound by the terms and conditions of this Non-Disclosure Agreement.\nSignature: ______________________________\nPrint Name: _____________________________\n",
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"text": "BUYER\u2019S CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\n1. DEFINITIONS AND INTERPRETATION\n1.1 In this Agreement, unless the context clearly indicates otherwise, the following terms shall have the meanings assigned to them hereunder:\n1.1.1 \u201cAldes\u201d \u2013 means and includes Aldes Business Brokers Franchise Africa (Pty) Ltd (Registration Number: 2006/036900/07) and any and all of its subsidiaries, any and all of its holding companies, any other entities forming part of its group of companies and/or any and all of its franchisees from time to time, or any one of them as the context may require;\n1.1.2 \u201cBusiness/es\u201d \u2013 means such assets (whether tangible or intangible), business/es and/or entity/ies (albeit close corporations, partnerships, trusts, private companies, public companies, joint ventures, sole proprietors and/or otherwise) introduced by Aldes to the Buyer for sale (albeit as is listed for sale on the Aldes database or website or otherwise);\n1.1.3 \u201cBuyer\u201d \u2013 means the person/entity described and identified as such in the Buyer\u2019s Profile on the face of this Agreement;\n1.1.4 \u201cConfidential Information\u201d \u2013 means any and all information disclosed by Aldes, the Seller/s and/or the Business/es to the Buyer from time to time regarding, in respect of and/or related to the Business/es or Seller/s and/or for purposes of the possible acquisition of the Business/es by the Buyer;\n1.1.5 \u201cConfidential Materials\u201d \u2013 means any materials and/or documents which contain Confidential Information;\n1.1.6 \u201cSeller/s\u201d \u2013 means each of the owners, of each of the Business/es introduced by Aldes to the Buyer from time to time, independently and separately.\n1.2 In this Agreement, unless the context clearly indicates a contrary intention, words in the singular shall include the plural and vice versa, words in the masculine gender shall include the feminine and neuter gender and vice versa, and a reference to natural persons shall include created entities (corporate and unincorporated) and vice versa.\n1.3 The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.\n1.4 The terms of this Agreement, having been negotiated, shall not be interpreted against the person/entity who procured its preparation and drafting, nor shall exclusion clauses contained in this Agreement be construed against the person/entity relying on same.\n1.5 This Agreement shall be governed by, construed and interpreted in accordance with the law of the Republic of South Africa.\n1.6 This Agreement constitutes a stipulatio alteri (namely, a benefit in favor of a third party which may be accepted by such third party) in favor of the Business/es and the Seller/s, the benefits of which may be accepted by them at any time.\n2. BACKGROUND\n2.1 The Buyer records that it is (and/or has been and/or will be) partaking in investigations of (and/or negotiations with) various Seller/s and/or Business/es, with a view towards potentially acquiring such Business/es. The Buyer further acknowledges that it is serious in its investigations towards potentially acquiring a Business.\n2.2 The Buyer realises that, in the course of its investigations (and/or negotiations), Aldes, the Business/es and/or the Seller/s will be required to disclose Confidential Information and/or Confidential Material to the Buyer, albeit for the purposes of assisting the Buyer in determining whether or not it wishes to acquire any Business/es or otherwise.\n2.3 The Buyer acknowledges and agrees that the sole reason for, and the sole purpose of, any disclosures of Confidential Information and/or Confidential Material by Aldes, the Business/es and/or the Seller/s is strictly limited to that stated in clauses 2.1 and 2.2 above (the \u201cPurpose\u201d).\n3. PERIOD\n3.1 This Agreement shall be taken to have commenced, notwithstanding the signature date hereof, on the earliest of:\n3.1.1 the date of signature of this agreement by the Buyer; or\n3.1.2 the date of the first meeting or correspondence between Aldes and the Buyer regarding any Business/es and/or Seller/s;\nand shall continue in perpetuity thereafter.\n4. UNDERTAKING OF CONFIDENTIALITY\n4.1 The Buyer undertakes, towards and in favour of each of Aldes, the Business/es and the Seller/s (jointly and severally), with regard to and in respect of any and all of the Confidential Information and/or Confidential Materials, that it will keep same (irrespective of how same was disclosed to the Buyer) strictly confidential and secret and that it will hold same in absolute trust and confidence.\n4.2 The Seller/s and/or the Business/es shall retain ownership of all their Confidential Information and/or Confidential Materials, which shall be deemed to be lent to the Buyer for the Purpose only.\n5. LIABILITY\n5.1 The Buyer acknowledges that it will be liable, responsible and accountable to each of Aldes, the Business/es and the Seller/s (jointly and severally) for a breach of this Agreement by itself or any of its related or inter related parties, employees, consultants, advisers and/or agents.\n6. NON-CIRCUMVENT\n6.1 The Buyer acknowledges that Aldes will be deemed and regarded (and will be) the effective cause of any transaction which may transpire and/or materialise between the Buyer and any Business/es and/or Seller/s.\n6.2 The Buyer warrants and guarantees that it will never circumvent Aldes (albeit directly itself or indirectly through any of its subsidiaries, holding companies, group companies, related parties and/or inter-related parties or otherwise indirectly), in negotiating or concluding any transactions, arrangements and/or agreements contemplated in clauses 2.1 and/or 2.2 above with (or with regard to) any Seller/s and/or Business/es. For avoidance of doubt, the Buyer will at all times act in good faith and will only transact and deal with Seller/s and/or Business/es, via the brokerage, intervention and mediation of Aldes.\n6.3 The Buyer acknowledges and agrees that Aldes is, will be and will remain entitled to receipt of its agreed brokerage commission (albeit due and payable by the Seller/s, the Business/es, the Buyer or any of them), should the Buyer (albeit directly itself or indirectly through any of its subsidiaries, holding companies, group companies, related parties and/or inter-related parties or otherwise indirectly) or anyone else the Buyer may have introduced to the Business/es and/or Seller/s, conclude any agreements and/or transactions contemplated in clauses 2.1 and/or 2.2 above with (or with regard to) any Business/es and/or Seller/s.\n7. GENERAL\n7.1 No alteration or variation to or of this Agreement shall be of any force or effect unless it is recorded in writing and signed by the Buyer and Aldes.\n7.2 Any indulgence, latitude or extension of time which may be allowed by either of Aldes, the Seller/s and/or the Business/es shall not under any circumstances be taken as preventing any of them from exercising their rights contained in this Agreement.\n8. BUYER\u2019S INFORMATION\n8.1 The Buyer notes that Aldes\u2019 decision to introduce any Business/es for sale to the Buyer (and the Seller/s and/or Business/es decision to enter into discussions with the Buyer) is, in part, based on the information presented by the Buyer under and in terms of the Buyer\u2019s Profile on the face of this Agreement. As such, the Buyer warrants and guarantees that all information presented and provided via and in terms of the Buyer\u2019s Profile was, is and will remain true, complete and accurate and that it will immediately inform Aldes should there be any change in the information provided/presented.\n9. FURTHER CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENTS\n9.1 Aldes may from time to time, dependant on the nature, scope and extent of information to be provided to the Buyer, require that the Buyer enter into and conclude further and/or additional confidentiality and non-disclosure agreements. Should the Buyer fail and/or refuse to enter into and conclude such further agreements, Aldes may, in its sole and absolute discretion, refuse to disclose further information to the Buyer regarding any and/or all Seller/s and/or Business/es.\n9.2 It is noted and agreed that the Buyer and certain of the Seller/s and/or Business/es may from time to time enter into and conclude one or more confidentiality and/or non-disclosure agreements amongst, by and between themselves. It is noted and agreed that those agreements will be in addition to, and not in substitution of/for, this Agreement. Those Agreements will in no way, manner or form detract from, limit, terminate and/or negate any of the terms, conditions and provisions of this Agreement, unless Aldes has given its specific prior written consent to the contrary.\nDated and signed this __________ day of ______________________________________________________\nSignature: _______________________________________________________________\nName and Surname: _______________________________________________________________\nIdentity Number: _______________________________________________________________\nHe/She being duly authorised thereto for and on behalf of the Buyer\n",
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"text": "NON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT is by and between the Stockbridge-Munsee Community d.b.a. Mohican North Star Gaming and Resort located at W12180 County Road A, Bowler, WI 54416 (\u201cCasino\u201d), and _______________________________________________ with offices located at ________________________________________________________ (\u201cReceiving Party\u201d).\nWHEREAS, Casino and Receiving Party have entered into discussions to _______________________________________________ (herein after referred to as the \u201cProject\u201d) and, in the course of these discussions, Receiving Party will have access to Confidential Information (as defined below) about the Casino; and WHEREAS, the parties wish to protect such Confidential Information.\nNOW, THEREFORE, the parties agree as follows:\n1. \u201cConfidential Information\u201d means any and all confidential and/or proprietary information disclosed by the Casino to the Receiving Party, which may include without limitation: financial information, business information, marketing data, trade secrets, and other data, materials, products, plans, specifications, reports, manuals, computer software or programs, contractual relationships and other similar information delivered in any form or media.\n2. Confidential Information is disclosed to Receiving Party solely for the purpose of providing services for the Project. Receiving Party agrees to hold such Confidential Information in strict confidence. Receiving Party agrees not to use, divulge, reproduce or otherwise make available the Confidential Information other than for the purposes of the Project and to disclose it only to its officers, agents, employees, partners, and professional advisors as necessary, who shall also be bound to comply with this Agreement.\n3. Receiving Party shall protect the Confidential Information with at least the same degree of care that it uses to protect its own confidential information, but in no case, less than reasonable care.\n4. Receiving Party will immediately notify the Casino upon the discovery of any loss or unauthorized disclosure of the Confidential Information.\n5. Receiving Party shall have no obligations under this Agreement with respect to Confidential Information if it can demonstrate that the information: (a) is publicly available at the time of disclosure; (b) becomes publicly available after disclosure through no act of the receiving party or its representatives; (c) is in the receiving party\u2019s possession free of obligation; (d) is developed by the receiving party without use of the Confidential Information or through other breach of this Agreement; (e) is disclosed to the receiving party by a third party without obligation; (e) is not identifiable as confidential; or (f) is required to be publicly disclosed pursuant to a properly executed subpoena or other regulatory or court order (\u201cOrder\u201d), provided the receiving party (i) gives reasonable written notice to the disclosing party, (ii) gives the disclosing party a reasonable opportunity to respond to the Order, and (iii) limits disclosure to that portion of the Confidential Information required by the Order.\n6. Upon the request of Casino, Receiving Party shall immediately return all Confidential Information received in written or tangible form, including all notes, copies, or media containing such Confidential Information. Alternatively, Casino may direct Receiving Party to destroy such Confidential Information, in which case Receiving Party shall confirm such destruction in writing within twenty (20) days thereafter.\n7. Receiving Party shall not disclose any Confidential Information to any other person or entity other than as provided herein, without Casino\u2019s prior written consent. Neither party nor any of its representatives shall contact, either directly or indirectly, any governmental official, lender or other third party (other than a representative as provided herein) to discuss the Project or the business or the assets of the other party, or a potential business transaction with or concerning the other party, without first obtaining the written consent of the other party.\n8. Waiver of any provision of this Agreement must be made in writing. A waiver or breach of one provision of this Agreement does not constitute a waiver or acceptance of a breach of another provision of this Agreement.\n9. Neither party shall assign this Agreement to any third party without the prior written consent of the other party.\n10. This Agreement shall have a term of three (3) years. Receiving Party\u2019s obligations in relation to technical and personally-identifiable information shall be indefinite.\n11. The parties agree that a breach of this Agreement by the receiving party may cause irreparable damage to the Casino and hereby agree that Casino will be entitled to seek injunctive relief or other equitable relief to remedy or prevent any threatened or actual breach of this Agreement.\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives.\nRECEIVING PARTY: CASINO:\nBY: _____________________________ BY: _____________________________\nDATE: __________________________ DATE: __________________________\n",
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"text": "CRITICAL ENERGY INFRASTRUCTURE INFORMATION\nNON-DISCLOSURE AGREEMENT\nIndividual Receiving Party: Name:_____________________________________________________ Mailing Address:____________________________________________ _____________________________________________\nEmail Address:______________________________________________\nTelephone Number:__________________________________________\nCompany Receiving Party: Full Company Name:_________________________________________\nState of Organization:_________________________________________\nContact Person:______________________________________________\nMailing Address:____________________________________________ _____________________________________________\nEmail Address:______________________________________________\nTelephone Number:__________________________________________\nThe individual or company specified above (\"Receiving Party\"), Dominion Energy South Carolina, Inc., a corporation organized and existing under the laws of the state of South Carolina and located at 220 Operation Way, Cayce, SC 29033, on behalf of itself, its corporate parent Dominion Energy and its corporate affiliate Dominion Energy South Carolina, Inc. Transmission (collectively, \"DESC\"), and South Carolina Public Service Authority (\"Santee Cooper\"), a state-owned electric and water utility organized and existing under the laws of the state of South Carolina and located at 1 Riverwood Dr., Monks Corner, SC 29461 (each of DESC and Santee Cooper, a \"Disclosing Party\" and DESC and Santee Cooper collectively, the \"Disclosing Parties\"), enter into this Non-Disclosure Agreement (\"Agreement\") as of _________________________ (\"Effective Date\").\nBackground. The Disclosing Parties may, in their discretion, provide the Receiving Party information related to their confidential and critical energy infrastructure information.\nNOW, THEREFORE, in consideration of the mutual promises and covenants made herein, and with the intent to be legally bound hereby, the Receiving Party agrees as follows:\n1. Confidential Information. The term \"Confidential Information\" means all written, electronic, printed or other materials disclosed by the Disclosing Parties, and all information ascertained through discussions with the Disclosing Parties, concerning the planning process. Confidential Information shall include, but is not limited to, all analyses, compilations, forecasts, studies, models, \"base cases\", plans, procedures, calculations, reports or other documents prepared by the Disclosing Parties that may contain or reflect such information.\n2. Critical Energy Infrastructure Information. The term \"Critical Energy Infrastructure Information\" or \"CEII\" as used in this Agreement refers to the official definition provided in 18 C.F.R. \u00a7 388.113(c)(1). CEII shall be protected under the terms of this Agreement. For purposes of this Agreement, CEII shall also include any information which may be described as non-public transmission information including, but not limited to, the following: maps, charts, and diagrams, including location, longitude and latitude for either or both of the Disclosing Parties' electric systems; and system studies including flow studies, models, \"base cases\" and system planning for either or both of the Disclosing Parties. All CEII is also Confidential Information. Given the sensitive nature of CEII, the Receiving Party has a higher duty of care to maintain the confidentiality of this information.\n3. Disclosure and Use of Confidential Information.\nThe Receiving Party shall use the Confidential Information solely for the purpose of its internal evaluation. The Receiving Party shall not make any other use, in whole or in part, of any such Confidential Information without the prior written consent of the respective Disclosing Party.\nThe Receiving Party agrees that, in complying with its confidentiality obligations under this Agreement, it shall exercise the same care used to protect its own confidential proprietary information, but no less than reasonable care, to prevent the disclosure and to protect the confidentiality of the Confidential Information. If the Receiving Party is an individual, the Receiving Party may not disclose any Confidential information to any person or entity without the Disclosing Parties' prior written consent in each instance. If the Receiving Party is a company, the Receiving Party may disclose Confidential Information (i) to the Receiving Party's directors, officers and employees (collectively, \"Representatives\"), in each case only to the extent reasonably necessary for the Receiving Party's internal use and only after informing each Representative of the restrictions in this Agreement on the disclosure and use of the Confidential Information and that he or she must comply with such restrictions, and (ii) to any other person or entity only with the Disclosing Parties' prior written consent in each instance. The Receiving Party agrees to take all reasonable steps to cause its Representatives to comply with the terms of this Agreement and to be responsible for any breach of this Agreement by any Representative.\nThe Receiving Party shall keep all Confidential Information strictly confidential and shall not, without the respective Disclosing Party's prior written consent in each instance, disclose Confidential Information or any reports, work product or other documents containing any Confidential Information to any third party, firm, corporation or entity.\nExcept as may be required by applicable law, without the prior written consent of the respective Disclosing Party, the Receiving Party shall not: (a) confirm or deny any statement made by a third party regarding Confidential Information and/or CEII/CII; (b) disclose to any person the fact that Confidential Information and/or CEII/CII have been made available to it; (c) confirm that any investigations, discussions or negotiations are taking place; or (d) disclose any of the terms or conditions with respect to same. If any such actions are required by applicable law, the Receiving Party shall comply with the requirements of Section 5 below.\n4. Additional Provisions Relating to Disclosure and Use of CEII.\nThe Receiving Party shall not use CEII, in whole or in part, for any purpose other than that for which the CEII was specifically provided, without the prior written consent of the respective Disclosing Party. The Receiving Party may make copies of CEII, but such copies become CEII and subject to these same terms and conditions. The Receiving Party shall not knowingly use CEII for an illegal or non-legitimate purpose. The Receiving Party agrees that, in complying with its obligations under this Agreement, it shall employ an enhanced standard of care in order to prevent the disclosure and to protect the confidentiality of the CEII. The Receiving Party shall maintain CEII in a secure manner and place and shall be responsible for ensuring that its Representatives who receive CEII do the same.\nThe Receiving Party shall not, without the respective Disclosing Party's prior written consent in each instance, disclose CEII or any reports, work product or other documents containing any CEII to any third party, firm, corporation or entity. The Receiving Party may disclose CEII (i) only to its Representatives who have properly executed individual non-disclosure or confidentiality agreements in the course of their employment specifically pertaining to confidential information and CEII they receive in the course of their employment and (ii) only after informing each Representative of the restrictions in this Agreement on the disclosure and use of the CEII and that he or she must comply with such restrictions.. Further, such disclosure must be limited to the extent that it is reasonably necessary to evaluate the subject matter of the requested materials. The Receiving Party agrees to take all reasonable steps to cause its Representatives to comply with the terms of this Agreement and to be responsible for any breach of this Agreement by any Representative. The Receiving Party shall not disclose any CEII to any of its Representatives who have been convicted of any felony.\nExcept as allowed under Section 5, Required Disclosure, the Receiving Party shall not submit CEII obtained from the Disclosing Parties to any government agency for any reason without first obtaining written permission from the respective Disclosing Party, and then fully complying with the requirements of 18 C.F.R. \u00a7\u00a7 388.112, 113 for requesting special treatment of the CEII.\n5. Required Disclosure. In the event that the Receiving Party is requested or required by depositions, interrogatories, requests for information or documents, subpoena, civil investigation, demand or similar process (i) to disclose any CEII or other Confidential Information received pursuant to this Agreement, (ii) to disclose any discussions pertaining thereto, or (iii) to take any other action described in the last paragraph of Section 3 above, the Receiving Party shall provide to the relevant Disclosing Parties prompt written notice of such request(s) and shall use reasonable efforts to resist disclosure until an appropriate protective order may be sought. If, in the absence of a protective order, Receiving Party is nonetheless, in the written opinion of its counsel, legally required to disclose CEII or other Confidential Information received pursuant to this Agreement, then, in such event Receiving Party may disclose such information after the Receiving Party gives the Disclosing Party written notice of the proposed disclosure and a reasonable opportunity to review the proposed disclosure.\n6. Return of Documents and Destruction of Electronically Stored Information. Disclosing Parties may elect at any time to terminate further use of or access to the CEII. In such case, the Receiving Party shall return any and all CEII upon the Disclosing Party's written re(cid:84)uest, including all hardcopy originals, copies, translations, notes, reports, schematics, flowcharts, e-mails, tape recordings, or any other form of said material, without retaining any copy or duplicate supplement thereof and shall promptly destroy any and all written, printed or other material or information derived from the Confidential Information. The Receiving Party shall provide attested certification from an authorized representative confirming such return and destruction \"provided however, Receiving Party may retain one (1) copy of such documentation in its secure legal files for the sole purpose of administering its obligations under this agreement, as well as copies of electronically exchanged Confidential Information that are made as a matter of routine information technology back-up, which copies shall continue to be kept confidential in accordance with the terms and conditions of this Agreement.\"\n7. Survival of Obligations. Regardless of any termination of any business relationship between the Parties, the obligations and commitments established by this Agreement shall remain in full force and effect.\n8. Nature of Information; Injunctive Relief. The Receiving Party hereby accepts the representations of Disclosing Parties that the CEII disclosed pursuant to this Agreement is of a special, unique, extraordinary, and intellectual character and that money damages would not be a sufficient remedy for any breach of this Agreement by the Receiving Party or its representatives and that specific performance and injunctive or other equitable remedies for any such breach shall be available to it. If there is a breach, then Disclosing Parties shall be entitled, in addition to all other rights and remedies which they may have at law or in equity, to seek to have a decree of specific performance or an injunction issued by any competent court, requiring the breach to be cured or enjoining all persons involved from continuing the breach. The Receiving Party also acknowledges that the interests of Disclosing Parties in such CEII may be irreparably injured by disclosure. The remedy stated above may be pursued in addition to any other remedies applicable at law or equity for breach of this Agreement. The existence of any claim or cause of action which either party may have against the other shall not constitute a defense or bar to the enforcement of any of the provisions of this Agreement.\n9. Governing Law. The validity and interpretation of this Agreement and the legal relations of the Receiving Party and Disclosing Parties to it shall be governed by the laws of the State of South Carolina, excluding its conflict of laws principles. Any action arising out of the performance of this Agreement must be filed and resolved exclusively in a state or federal court or tribunal sitting in the State of South Carolina. The parties consent and submit to the jurisdiction and venue of those courts and tribunals.\n10. No Other Agreement. The Receiving Party expressly understands that this Agreement is not and shall not be construed as any form of a letter of intent or agreement to enter into any type of transaction. This agreement is to evidence the Receiving Party's agreement to maintain the confidentiality of the Confidential Information/CEII disclosed to it by Disclosing Parties, and shall not constitute any commitment or obligation on the part of either Party to enter into any specific contractual arrangement of any nature whatsoever.\n11. No Representation or Warranties. With respect to any information, including but not limited to CEII, which either Disclosing Party furnishes or otherwise disclose to Receiving Party, the Receiving Party understands and agrees that that Disclosing Party does not make any representations or warranties as to the accuracy, completeness or fitness for a particular purpose thereof. Neither this Agreement, nor the disclosure of CEII hereunder, shall be construed in any way as granting any license or rights to any information or data now or hereafter owned or controlled by Disclosing Parties to Receiving Party and all such Confidential Information/CEII shall remain the property of Disclosing Parties.\n12. Right to Execute. The undersigned representative signing below affirms and warrants that he/she has all right and duly delegated authority to bind the entity to the terms and conditions set forth in this Agreement.\n13. Assignment. Neither this Agreement nor any rights or obligations under it shall be assigned or delegated, and any purported assignment shall be void.\n14. No Waiver. No failure or delay by either Disclosing Parties or Receiving Party 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 of any right, power or privilege hereunder.\n15. Survival. This Agreement shall survive indefinitely and shall not be affected by the performance, termination or expiration of any other obligations or agreements between the Disclosing Parties and Receiving Party.\n16. Notices. Any notice required or permitted under this Agreement must be in writing and must be delivered by FedEx or another nationally recognized overnight delivery service or by U.S. certified mail, return receipt requested, to the respective addresses of the parties listed above, or such other addresses of which a party gives the other party written notice in accordance with this Section 16.\n17. Entire Agreement. This Agreement contains the entire agreement between the Disclosing Parties and Receiving Party concerning the subject matter hereof, and supersedes all prior discussions and agreements with respect to the subject matter hereof, and no modifications of this Agreement or waiver of the terms and conditions hereof will be binding, unless approved in writing by the Disclosing Parties and the Receiving Party. E-mail is expressly excluded as a form of amendment.\nIN WITNESS WHEREOF, the parties have entered into this Agreement as of the Effective Date.\nReceiving Party (if an individual)\nSignature: _____________________________\nPrint Name: ______________________________\nReceiving Party (if a company)\nPrint Name of Company:_____________________________________\nBy:_____________________________________\nPrint Name:_______________________________\nTitle:____________________________________\nDisclosing Parties\nDominion Energy South Carolina, Inc. on behalf of itself, Dominion Energy and DESC Transmission\nBy:_________________________________________\nTitle:_______________________________________\nSouth Carolina Public Service Authority\nBy:_________________________________________\nTitle:_______________________________________\n",
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"file_name": "CON-NDA-PTL-01-2012-v1%20Non-Disclosure%20Agreement%20and%20Checklist.pdf",
"text": "NON-DISCLOSURE AGREEMENT FOR PROJECT PROPOSALS\nThis Agreement is made effective as of _________________, 20___\nBETWEEN:\n____________________ (\u201cCompany\u201d)\nand\n___________________ (\u201cContractor\u201d)\nPREAMBLE\n[Describe context]\n1. DEFINED TERMS\n1.1 In this Agreement, the following definitions shall apply:\nAgreement means this Non-Disclosure Agreement for Project Proposals.\nConfidential Information means all information relating to the Project or the Contractor\u2019s proposal for the Project and all information relating to the nature of either Party\u2019s business, affairs or trade secrets, which either Party directly or indirectly receives or acquires from the other Party, or the other Party\u2019s representative, either in writing or verbally (but in the case of verbal information, only that which is reduced to writing by the Disclosing Party and delivered to the Receiving Party within 10 days of the verbal disclosure), or through observation of the Project, except information falling into any one or more of the following categories:\n(a) information which the Receiving Party can show was in its possession on a non-confidential basis before receipt of the information from the Disclosing Party;\n(b) information which is lawfully in the public domain at the time of the Receiving Party\u2019s receipt of the information from the Disclosing Party, but not including the Company\u2019s request for proposals for the Project;\n(c) information which, after the Receiving Party\u2019s receipt of the information from the Disclosing Party, becomes part of the public domain through no act of the Receiving Party or of any third party under an obligation of confidence with respect to such information, but only after such information becomes part of the public domain; or\n(d) information which, after receipt of the information by the Receiving Party, is lawfully obtained by the Receiving Party from a third party, but only after such information is so received, and provided such third party is under no obligation of confidence with respect to such information.\nDisclosing Party means the Party disclosing Confidential Information.\nEffective Date means the date on which this Agreement is deemed to be effective, as first written above.\nInitial Term means the 1 year period commencing on the Effective Date and expiring at 11:59 pm. on _____________, 20__.\nParty means either the Company or Contractor and Parties means both of them.\nPermitted Purpose means the purpose for which the Confidential Information is disclosed by the Disclosing Party to the Receiving Party and which is more particularly described as:\n(i) responding to the Company\u2019s request for proposals for the Project, in the case of the Contractor;\n(ii) assessing the Contractor\u2019s proposal, in the case of the Company; and\n(iii) if applicable, negotiation by the Parties of a definitive agreement related to the Project.\nPermitted Recipients means those persons who have a need to know the Confidential Information for the Permitted Purpose and who are officers, directors, employees, agents or contractors (at any level) of the Receiving Party or its affiliates, or anyone else for whom the Receiving Party takes responsibility for under this Agreement.\nProject means the Company\u2019s project in relation to which it is seeking proposals for performance of work or services or the provision of materials or equipment.\nReceiving Party means the Party receiving Confidential Information from the Disclosing Party.\n2. PERMITTED PURPOSE\n2.1 The Company and the Contractor believe it is in their mutual best interest to disclose information to support the Permitted Purpose. Either Party may disclose Confidential Information to the other for the Permitted Purpose, which disclosure will be governed by the Agreement.\n3. PROTECTION\n3.1 Except as expressly permitted by this Agreement, the Receiving Party shall not disclose the Disclosing Party\u2019s Confidential Information and shall use reasonable care, which is at least the same degree of care that the Receiving Party ordinarily uses with respect to its own proprietary information, in relation to the use, transmittal and storage of the Disclosing Party\u2019s Confidential Information.\n3.2 The Receiving Party shall not use the Confidential Information of the Disclosing Party for any purpose other than the Permitted Purpose and, subject to section 3.3, shall limit the disclosure of the Confidential Information of the Disclosing Party to Permitted Recipients.\n3.3 The Receiving Party shall not make any copies, reproductions or abstracts of the Confidential Information of the Disclosing Party except as specifically may be required for the Permitted Purpose. All copies, reproductions and abstracts of the Confidential Information shall also be deemed to be Confidential Information of the Disclosing Party to the same extent as any originals.\n3.4 Before disclosing any Confidential Information of the Disclosing Party to the Permitted Recipients, the Receiving Party shall identify to the Permitted Recipients that it is the Disclosing Party\u2019s Confidential Information and is subject to disclosure and usage restrictions, and shall ensure that the Permitted Recipients have:\n(a) executed Appendix A \u2013 Permitted Recipient\u2019s Acknowledgement; or\n(b) are bound in writing by confidentiality terms, policies or procedures no less restrictive than those in this Agreement.\n3.5 The Receiving Party will be responsible for any breach of this Agreement by the Permitted Recipients.\n3.6 Confidential Information shall be used and stored in secure locations that are not accessible to the personnel who are not Permitted Recipients.\n3.7 The Receiving Party shall immediately notify the Disclosing Party, in writing, upon the earlier of knowing of any application to obtain any disclosure order or of any disclosure order being granted which would require disclosure of any part or all of the Confidential Information. The Receiving Party shall cooperate reasonably with the Disclosing Party, at the Disclosing Party\u2019s expense, in challenging the disclosure order or obtaining a protective order. The Receiving Party will disclose only that portion of the Confidential Information which is required by such disclosure order.\n4. RELATIONSHIP OF THE PARTIES\n4.1 This Agreement is not intended to and does not obligate either Party:\n(a) to disclose any specific Confidential Information; or\n(b) to enter into any subsequent business arrangements regarding the Permitted Purpose or any other matter.\n4.2 This Agreement does not create any exclusivity between the Parties; each Party remains free to negotiate and enter into any agreement with any third party covering all or any part of the Permitted Purpose without any liability to the other Party under this Agreement.\n4.3 No joint venture, partnership or other fiduciary relationship shall be deemed to exist or arise between the Parties as a result of this Agreement or exchanging Confidential Information.\n5. TERM AND RETURN OR DESTRUCTION OF CONFIDENTIAL INFORMATION\n5.1 This Agreement shall govern all disclosures of Confidential Information made during the Initial Term.\n5.2 Any disclosure of any Confidential Information to the Receiving Party made during the Initial Term shall continue to be subject to this Agreement for a period of 2 years thereafter, provided that any trade secret shall be entitled to protection for the life of the trade secret.\n5.3 Subject to section 5.4, within 10 days of a written request by the Disclosing Party, the Receiving Party shall, unless otherwise precluded by any legal obligation:\n(a) return to the Disclosing Party or destroy all of the Disclosing Party\u2019s original tangible Confidential Information, together with all tangible copies and reproductions;\n(b) subject to subsection 5.3(c), make its best efforts to delete all electronic copies of the Confidential Information received from the Disclosing Party;\n(c) safeguard any electronic Confidential Information that cannot be destroyed due to the Receiving Party\u2019s archiving practices or policies with the same degree of care as it would its own Confidential Information; and\n(d) retain electronic Confidential Information described in subsection 5.3(c) only for the period it normally maintains such records, which electronic Confidential Information shall remain subject to the provisions of this Agreement until destroyed.\n5.4 Notwithstanding anything in section 5.3, the Receiving Party shall not be obliged to return or destroy any derivative materials or reports prepared by the Receiving Party for the Permitted Purpose, which materials and reports shall nonetheless remain subject to the confidentiality obligations in this Agreement.\n5.5 Upon request of the Disclosing Party, the Receiving Party shall certify in writing to the Disclosing Party that it has complied with section 5.3.\n6. REMEDIES\n6.1 Each Party acknowledges that monetary damages would be inadequate to protect the other Party against any actual or threatened breach of this Agreement, and, without prejudice to any other rights and remedies otherwise available to the other Party, agrees to the granting of injunctive relief in favour of the other Party without proof of actual damages.\n6.2 The Receiving Party shall indemnify the Disclosing Party against any loss or damage suffered by the Disclosing Party as a result of the failure of the Receiving Party or such other persons who are disclosed Confidential Information under this Agreement to comply with the terms of this Agreement.\n7. COSTS AND EXPENSES\n7.1 Each Party shall pay its own costs and expenses incurred in connection with this Agreement.\n8. NOTICES\n8.1 All notices required pursuant to this Agreement shall be in writing delivered by personal service or commercial carrier to:\nIf to Company: If to Contractor:\n8.2 Should either Party change its address while the Agreement is in effect, it is the obligation of that Party to provide notice to the other Party, in writing, of its new address and the date the new address is effective prior to changing its address.\n9. GENERAL PROVISIONS\n9.1 All Confidential Information provided by the Disclosing Party remains its property and the Receiving Party obtains no right of any kind to any Confidential Information provided to it.\n9.2 This Agreement is not intended to and does not grant, expressly or by implication, any right or license to any permit, patent, trademark, copyright, trade secret, improvement, or any other intellectual property right or similar proprietary right of any kind that the other Party may possess.\n9.3 Neither Party's failure or delay in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof.\n9.4 Neither Party may assign its rights or delegate its duties under this Agreement without the prior written consent of the other Party, or otherwise dispose of any right, title or interest in all or part of this Agreement, including assignment by operation of law or otherwise, without such consent. Either Party may grant or withhold consent in its sole discretion. The terms and provisions of this Agreement shall be binding upon and inure to the benefit of any permitted successor of either Party.\n9.5 To the extent that any statute, regulation or other legislation applies to the Confidential Information, the Parties shall comply with same.\n9.6 If any provision of this Agreement is held to be invalid, void, or unenforceable by any court of competent jurisdiction, that holding shall not affect the validity or enforceability of the remaining provisions of this Agreement.\n9.7 This Agreement constitutes the entire agreement between the Parties concerning its subject matter and supersedes all prior agreements and conduct, whether written or oral.\n9.8 This Agreement shall be governed by and interpreted under the laws of the Province of Alberta and the Parties consent to the exclusive jurisdiction of the courts of the Province of Alberta for all disputes arising out of this Agreement.\n9.9 This Agreement shall only be amended in writing and signed by authorised representatives of both Parties.\nThis Agreement has been executed by the duly authorised representatives of the Parties, effective as of the Effective Date and may be executed and delivered electronically and in any number of counterparts, each of which shall be deemed an original and all of which taken together shall constitute one and the same Agreement.\nCOMPANY CONTRACTOR\nBy: By:\nPrinted Name: Printed Name:\nTitle: Title:\nAppendix A \u2013 Permitted Recipient\u2019s Acknowledgement\nI _______________________________ [name], am _______________________________ [position] with _______________________________ [Company or Contractor] and have read and understood the attached Non-Disclosure Agreement for Project Proposals (the \u201cAgreement\u201d).\nI acknowledge that I am one of the individuals defined in the Agreement as a Permitted Recipient of Confidential Information.\nI agree to be bound by the same obligations of confidentiality that bind the Company and the Contractor. I also agree that disclosure of Confidential Information that is not in accordance with the Agreement will cause irreparable harm and significant injury to the Party to whom that Confidential Information belongs and that it may be difficult to ascertain and that specific performance or injunctive relief, in addition to other legal and equitable relief, may be appropriate remedies for any actual or threatened violation or breach of confidentiality by me.\nThis Permitted Recipient\u2019s Acknowledgement has been executed by the Permitted Recipient effective as of the Effective Date.\n",
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"file_name": "Clause-de-non-divulgation.pdf",
"text": "ANNEX 2 - Non Disclosure Agreement\nDate:\nTHIS AGREEMENT IS ENTERED INTO BY AND BETWEEN:\nDEFTA Group\nA compagny having its registered office at MEAUX Val d'Europe 77701\n Immeuble Le Galil\u00e9e, 10 Rue de la Fontaine Rouge. Val d'Europe - Marne La Vall\u00e9e - 77701\nRepresented by Jean-Fran\u00e7ois KER RAULT\nGroup Purchasing Director\nHereinafter called \"Buyer\"\nAND\nVWX\nA company having its registered office at YYY\nRepresented by YYY\nits YYY\nHereinafter called \"Supplier\"\nBuyer and the Supplier are together hereinafter referred to as \"Parties\", and individually \"Party\".\nWITNESSES\nWHEREAS, the Parties wish to pursue exploratory discussions concerning possible collaborations between them in relation to project XXX.\nWHEREAS, during the performance of this Purchasing Frame Contract, it will become necessary for the Parties hereto to disclose to each other certain technical, financial or business information of a proprietary or confidential nature, hereinafter referred to as \u201cProprietary Information\u201d; and\nWHEREAS, the Parties hereto are willing to provide for the conditions of such disclosure of Proprietary Information and the rules governing the use and the protection there of;\nNOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:\n1. As used in this Agreement the term \"Proprietary Information\" shall mean any information or data disclosed by any Party to the other, pursuant to this Agreement, either in writing or orally, subject to the conditions set forth hereafter, and including without limitation any written or printed documents (plans, drawings, photographs, etc\u2026), samples prototypes, models, technology, know-how, specifications, software, commercial or financial information or any means of disclosing such Proprietary Information that each Party may elect to use during the life of this Agreement.\n2. Nothing in this Agreement may be construed as compelling any Party hereto to disclose any Proprietary Information to the other, or to enter into any further contractual relationships.\n3. Each Party, to the extent of its right to do so, shall disclose to the other Party the Proprietary Information which are appropriate to fulfil the objectives of this Agreement as set up in the recitals. The Parties hereby represent that the disclosure of Proprietary Information by and between themselves is not contrary to the laws and regulations of their respective countries.\n4. The receiving Party hereby covenants that, during the validity period of this Agreement and for a period of five (5) years after its end or its termination, the Proprietary Information received from the disclosing Party shall:\n(a) be protected and kept in strict confidence by the receiving Party which must use the same degree of precaution and safeguards as it uses to protect its own proprietary information of like importance, but in no case any less than reasonable care,\n(b) be only disclosed to and used by those persons who have a need to know and solely for the purpose specified in this Agreement, within the receiving Party's organisation and to its professional advisors, provided that in this latter case the disclosing Party so notifies the other Party and obtains the authorization from the other Party to make such disclosure, such authorization not being unreasonably withheld, and provided that such advisor(s) agree(s) to be bound by the terms and conditions of this Agreement. (Buyer shall be entitled to freely disclose such information to its affiliated companies, to its co -contractors for a project and to its final customer).\n(c) not be used in whole or in part for any purpose other than the purpose of this Agreement as specified in the preamble and for the Project above without the prior written consent of the disclosing Party,\n(d) neither be disclosed nor caused to be disclosed whether directly or indirectly to any third Party or persons other than those mentioned in subparagraph b) or the Buyer Clients or its co -contractors for the Project,\n(e) neither be copied, nor otherwise reproduced nor duplicated in whole or in part where such copying, reproduction or duplication have not been specifically authorized in writing by the disclosing Party.\n5. Any Proprietary Information and copies thereof disclosed by either Party to the other shall remain the property of the disclosing Party and shall be returned by the receiving Party immediately upon request.\nThe above provisions shall not apply to the Proprietary Information disclosed by the Supplier to the Buyer and which fall under clause 12.2 of the General Purchase Conditions.\n6. Except as aforementioned, the receiving Party shall have no obligations or restrictions with respect to any Proprietary Information which that receiving Party can prove:\n(a) has come into the public domain prior to, or after the disclosure thereof and in such case through no wrongful act of that receiving Party, or\n(b) is already known to the receiving Party, as evidenced by written documentation in the files of the receiving Party, or\n(c) has been lawfully received from a third party without restrictions or breach of this Agreement, or\n(d) has been or is published without violation of this Agreement, or\n(e) is independently developed in good faith by an employee or employees of that receiving Party who did not have access to the Proprietary Information, or\n(f) is approved for release or use by written authorization of the disclosing Party.\n8. Except as provided under clause 12.2 of the General Purchase Conditions, it is expressly understood and agreed by the Parties hereto that the disclosure and provision of Proprietary Information under this Agreement by a Party to the other Party shall not be construed as granting to the receiving Party under the laws of any country any rights whether expressed or implied by licenceor otherwise on the matters, inventions or discoveries to which such Proprietary Information pertains or any copyright, trademark or trade secret rights.\nThe property in all information and/or data disclosed by the Buyer to the Supplier pursuant to this Agreement shall subject to any right of any other owner, rest with the Buyer.\n9. This Agreement shall enter into force on the date of its signature and shall be valid for a term of 5(five) years.\n10. The execution, existence and performance of this Agreement shall be kept confidential by the Parties hereto and shall not be disclosed by either Party without the prior written consent of the other.\n11. The end or termination of this Agreement shall not relieve the receiving Party of complying with the obligations imposed by paragraph 4 thereof with respect to the use and protection of the Proprietary Information received prior to the date of termination or end of this Agreement. Such obligations shall continue for the period applicable as set forth in said paragraph.\n12. This Contract shall be governed by Buyer country laws and its appropriate courts of Paris. It is expressly agreed that if any dispute should arise, the competent jurisdiction of Paris in France shall be the sole competent jurisdiction.\n13. The effective date of this Agreement shall be the date on which it is executed by all Parties hereto.\nIN WITNESS WHEREOF, each of the Parties hereto has caused this Agreement to be executed by its duly authorised officers or representatives.\nFOR SUPPLIER\nName\nTitle\nSignature\nFOR BUYER\nName:\nTitle:\nSignature\n",
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"text": "CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis Agreement, made this ____ day of ___________, 2009, between _________________________, (hereinafter \u201cDisclosing Party\u201d), and _________________________(hereinafter \u201cReceiving Party\u201d).\nBACKGROUND\nThe Disclosing Party and Receiving Party wish to discuss and exchange certain items and information (the \u201cInvention\u201d) which the parties hereto consider highly confidential and proprietary.\nNOW THEREFORE, the parties hereto, intending to be legally bound in consideration of the mutual covenants and agreements set forth herein, hereby agree as follows:\n1. DEFINITIONS\n1.1 \u201cInvention\u201d, the Pipeline Piranha Invention, Patent Pending #103573330A, shall mean all information relating to products, applications, systems, components, technologies and business topics. Including but not limited to prototypes, drawings, data, trade secrets and intellectual property relating to the \u201cPatent Pending\u201d invention named Pipeline Piranha.\n1.2 \u201cConfidential Information\u201d shall mean all information provided by Disclosing Party with respect to the Invention regardless of whether it is written, oral, audio tapes, video tapes, computer discs, machines, prototypes, designs, specifications, articles of manufacture, drawings, human or machine readable documents. Confidential Information shall also include all information related to the Invention provided by Disclosing Party to Receiving Party prior to the signing of this agreement. Confidential Information shall not include any information in the public domain at the time of the disclosure, or subsequently comes within the public domain without fault of the Receiving Party.\n2. USE OF CONFIDENTIAL INFORMATION\nThe Receiving Party agrees to:\n(a) Receive and maintain the Confidential Information in confidence;\n(b) Examine the Confidential Information at its own expense;\n(c) Not reproduce the Confidential Information or any part thereof without the express written consent of Disclosing Party;\n(d) Not, directly or indirectly, make known, divulge, publish or communicate the Confidential Information to any person, firm or corporation without the express written consent of Disclosing Party;\n(e) Limit the internal dissemination of the Confidential Information and the internal disclosure of the Confidential Information received from the Disclosing Party to those officers and employees, if any, of the Receiving Party who have a need to know and an obligation to protect it;\n(f) Not use or utilize the Confidential Information without the express written consent of Disclosing Party;\n(g) Not use the Confidential Information or any part thereof as a basis for the\ndesign or creation of any method, system, apparatus or device similar to any method, system, apparatus or device embodied in the Confidential Information unless expressly authorized in writing by Disclosing Party; and\n(h) Utilize the best efforts possible to protect and safeguard the Confidential Information from loss, theft, destruction, or the like.\n3. RETURN OF CONFIDENTIAL INFORMATION\nAll information provided by the Disclosing Party shall remain the property of the Disclosing Party. Receiving Party agrees to return all Confidential Information to Disclosing Party within 15 days of written demand by Disclosing Party. When the Receiving Party has finished reviewing the information provided by the Disclosing Party and has made a decision as to whether or not to work with the Disclosing Party, Receiving Party shall return all information to the Disclosing Party without retaining any copies.\n4. NON-ASSIGNABLE\nThis agreement shall be non-assignable by the Receiving Party unless prior written consent of the Disclosing Party is received. If this Agreement is assigned or otherwise transferred, it shall be binding on all successors and assigns.\n5. GOVERNING LAW\nThis agreement and all questions relating to its validity, interpretation, performance and enforcement (including, without limitation, provisions concerning limitations of actions), shall be governed by and construed in accordance with the laws of the State\nof Oregon, notwithstanding any conflict-of-laws doctrines of such state or other jurisdiction to the contrary, and without the aid of any canon, custom or rule of law requiring construction against the draftsman.\n6. NO LICENSE\nNeither party does, by virtue of disclosure of the Confidential Information, grant, either expressly or by implication, estoppels or otherwise, any right or license to any patent, trade secret, invention, trademark, copyright, or other intellectual property right.\n7. BINDING NATURE OF AGREEMENT\nThis agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors and assigns.\n8. PROVISIONS SEPARABLE\nThe provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part.\n9. ENTIRE AGREEMENT\nThis agreement sets forth all of the covenants, promises, agreements, conditions and understandings between the parties and there are no covenants, promises, agreements or conditions, either oral or written, between them other than herein set forth. No subsequent alteration, amendment, change or addition to this Agreement shall be binding upon either party unless reduced in writing and signed by them.\n10. ARBITRATION\nAny controversy or claim arising out of or relating to this agreement, or the breach thereof, shall be resolved by arbitration conducted by the Commercial Division of the American Arbitration Association and in accordance with the rules thereof, or in any other convenient forum agreed to in writing by the parties. Any arbitration award shall be final and binding, and judgment upon the award rendered pursuant to such arbitration may be entered in any court of proper jurisdiction. Notwithstanding the foregoing, either party may seek and obtain temporary injunctive relief from any court of competent jurisdiction against any improper disclosure of the Confidential Information.\nIN WITNESS OF THEIR AGREEMENT, the parties have set their hands to it below effective the day and year first written above.\nDisclosing Party Receiving Party\nBy:__________________________________ By:_______________________________\n",
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"text": "CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT made effective as of the __ day of _______________, 2016.\nBETWEEN:\nFTI CONSULTING CANADA INC., in its capacity as receiver and manager (the \"Receiver\") of Phenomenome Discoveries Inc. and Phenomenome Laboratory Services Inc. (collectively \"Phenomenome\" or the \"Company\"), and not in its personal or corporate capacity,\n- and -\n______________________________________ (the \"Recipient\")\nWHEREAS:\nA. The Receiver was appointed, pursuant to an Order (the \"Receivership Order\") of the Honourable Justice B.J. Scherman of the Court of Queen's Bench of Saskatchewan on February 25, 2016;\nB. The Recipient is desirous of evaluating a possible transaction(s) (the \"Transaction\") with or involving the assets of the Company and, more particularly, the sale of some or all of the assets, properties and undertakings (the \"Assets\") of the Company and, as such, has obtained and/or will from time to time hereafter obtain, certain information relating to the assets, undertaking, properties and business of the Company;\nC. The Receiver is willing to make certain Confidential Information available to the Recipient for the sole purpose of permitting the Recipient to consider, evaluate, and if a Transaction proceeds, implement a Transaction (the \"Permitted Purpose\") all subject to the terms and conditions of this Agreement (as defined below);\nD. As a pre-condition to the Receiver, its representatives or agents providing information concerning the Company and the Assets to the Recipient, the Receiver requires, and the Recipient has agreed, to execute and deliver to the Receiver, a confidentiality agreement in form and substance satisfactory to the Receiver;\nNOW, THEREFORE, in consideration of these premises, and other good and valuable consideration, the receipt and sufficiency of which consideration is hereby acknowledged, the Recipient covenants and agrees with the Receiver as follows:\n1. Definitions\n(a) \"Affiliate\" means, as to any Person, any other Person which, directly or indirectly, controls, or is controlled by, or is under common control with, such Person and, for this purpose, \"control\" (including \"controlled by\" and \"under common control with\"), shall mean the possession, directly or indirectly, of the power to direct or cause the direction of management or policies of a Person, whether through the ownership of securities or partnership or other ownership interests, by contract or otherwise;\n(b) \"Confidential Information\" means:\n(i) all data and information, in whatever form communicated or maintained, whether orally, in writing, electronically, in computer readable form or otherwise, that the Receiver or any of its Representatives (in each case on behalf of the Company) and/or the Company or any of the Company's Representatives discloses or has disclosed to, or that is gathered by inspection by, the Recipient or any of the Recipient's Representatives, whether provided before or after the date of this Agreement, including, information that contains or otherwise reflects information concerning the Company, the Assets, the business or affairs, operations, prospects, activities, and intellectual property rights of the Company and specifically includes, without limitation, all data, records, reports, studies, projections, knowledge, patents, theories, information (financial, corporate, business or otherwise), intellectual property, designs, drawings, plans, opportunities, prototypes, specifications, manuals, photographs, software, hardware, equipment, printouts, reports, market research, business plans, customer lists, supply sources, trade secrets, information relating to existing and potential financiers and investors, trade lists, processes, techniques, ideas, improvements, innovations, know-how, research and development, calculations, opinions, and documents, and any information provided to the Receiver, the Company or any of their Representatives by third parties under circumstances in which the Receiver, the Company or any of their respective Representatives has an obligation to protect the confidentiality of such information, including all information received by the Receiver and/or the Receiver's Representatives (on behalf of the Company) or the Company in connection with the Company, the Assets, or its business and disclosed and communicated to, or gathered by, the Recipient or any of the Recipient's Representatives;\n(ii) all plans, proposals, reports, analyses, notes, studies, forecasts, compilations or other information, in any form, that are based on, contain or reflect any Confidential Information regardless of the identity of the Person preparing same (\u201cNotes\u201d);\n(iii) the existence and terms of this Agreement and any other agreements related to a possible Transaction;\n(iv) the fact that information has been disclosed or made available to the Recipient or the Recipient's Representatives; and\n(v) the fact that discussions or negotiations are or may be taking place with respect to a possible Transaction, the proposed terms of any such Transaction and the status of any discussions or negotiations under this Agreement or in connection with any possible Transaction;\n\"Confidential Information\" does not include any information that:\n(vi) is available to the Recipient or the Recipient's Representatives on a non-confidential basis from a source other than the Receiver, the Company or any of the Receiver's Representatives or the Company's Representatives, provided that such source is not known by the Recipient, after reasonable investigation, to be bound by a contractual, legal or fiduciary obligation of confidentiality to the Receiver or the Company or any other person with respect to such information; or\n(vii) is at the time of disclosure known to the Recipient or thereafter becomes generally available to the public, other than as a result of a disclosure by the Recipient or any of the Recipient's Representatives in breach of this Agreement.\nThe foregoing exclusions do not apply to Confidential Information that is personal information.\n(c) \"Definitive Agreement\" means a binding definitive written agreement to consummate a Transaction;\n(d) \"party\" means a party to this Agreement and \"parties\" means all parties to this Agreement;\n(e) \"Permitted Purpose\" shall have the meaning set out in Recital C;\n(f) \"Person\" is to be broadly interpreted to include any individual, corporation, company, partnership or limited partnership, limited liability company, trust or other group or entity or organization (including any court, government or agency, commission, board or authority thereof, federal, state or local, domestic, foreign or multinational);\n(g) \"Representatives\" means, in respect of a party, such party\u2019s agents, directors, officers, employees, representatives, consultants and advisers (including legal counsel); and\n(h) \"Transaction\" shall have the meaning set out in Recital B.\n2. As a condition to receiving the Confidential Information, the Recipient agrees to treat confidentially, and not to disclose, and to cause the Recipient\u2019s Representatives to treat confidentially and not disclose (except as permitted herein), any Confidential Information.\n3. The Recipient hereby recognizes and acknowledges the competitive value and confidential nature of the Confidential Information and the damage that would result to the Company, if any of the Confidential Information is disclosed to any third party. Accordingly, the Recipient hereby agrees that the Confidential Information will be used solely for the Permitted Purpose and not any other purpose.\n4. The Recipient may disclose Confidential Information only to the limited group of the Recipient's Representatives, who are actually engaged in and need to know the Confidential Information for the Permitted Purpose, who have been informed of the confidential nature of the Confidential Information, and who agree to keep such information confidential and not use such Confidential Information for any purpose other than the Permitted Purpose. The Recipient shall ensure that each of the Recipient's Representatives will observe all terms and conditions of this Agreement. The Recipient further agrees that it shall be responsible for any breach of this Agreement by any of the Recipient's Representatives, and that the Recipient shall take all reasonable measures, including, without limitation, court proceedings, at the Recipient\u2019s sole expense, to restrain the Recipient\u2019s Representatives from making unauthorized disclosure or use of the Confidential Information.\n5. The Confidential Information shall remain at all times the property of the Company. No rights to use, license, or otherwise exploit the Confidential Information are granted to the Recipient, by implication or otherwise, by virtue of Confidential Information being made available to the Recipient or any of the Recipient\u2019s Representatives.\n6. The Recipient acknowledges and agrees that the Company would not have an adequate remedy at law and would be irreparably damaged by any unauthorized disclosure or use of any Confidential Information or in the event that any of the provisions of this Agreement were not performed by the Recipient and the Recipient\u2019s Representatives in accordance with their specific terms or were otherwise breached by the Recipient or any of the Recipient's Representatives. Without prejudice to the rights and remedies otherwise available to the Receiver, the Recipient agrees that the Receiver shall be entitled, without the requirement of posting a bond or other security, to equitable relief, including an injunction or specific performance, in the event of any breach or threatened breach of the provisions of this Agreement by the Recipient or the Recipient's Representatives. Such remedies shall not be deemed to be exclusive remedies but shall be in addition to all other remedies available at law or equity to the Receiver or the Company. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that the Recipient or any of the Recipient's Representatives have breached this Agreement, then the Recipient shall be liable and pay to the Receiver the reasonable costs and expenses (including attorney's fees on a full indemnity solicitor and his own client basis) incurred by the Receiver in connection with such litigation, including any appeal therefrom. The Recipient shall indemnify and hold harmless the Receiver and the Receiver's directors, officers, employees, consultants, representatives, advisors and agents from all damages and losses of any nature whatsoever (including consequential damages) arising out of a breach by the Recipient or any of the Recipient's Representatives of any of the terms and conditions of this Agreement.\n7. The Recipient agrees that the Receiver shall not disclose to the Recipient or any of the Recipient\u2019s Representatives information about identifiable individuals forming part of the Confidential Information (\"Personal Information\") unless required by the Recipient, acting reasonably, for the purpose of evaluating the Transaction. If Personal Information is provided to the Recipient, then:\n(a) the Recipient shall comply with the Canada Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, as amended, and any similar provincial legislation governing the protection of personal information in the private sector applicable to the Recipient in the course of collecting, using and disclosing Personal Information in connection with the Transaction;\n(b) prior to the closing of the Transaction (the \"Closing\"), the Recipient shall: (i) collect and use Personal Information only for the purpose of evaluating the Transaction; (ii) only disclose Personal Information to those of the Recipient\u2019s Representatives who need to know such Personal Information for the purpose of evaluating the Transaction; and (iii) use appropriate security measures to safeguard all Personal Information against unauthorized collection, access, use or disclosure; and\n(c) if the Transaction proceeds, following the Closing, the Recipient shall, and shall cause its Representatives to, use or disclose Personal Information obtained as a result of the Transaction only for purposes of carrying on the business conducted by the Company or the carrying out of the objects for which the Transaction took place or otherwise for purposes for which such Personal Information was collected by the Company, unless the consent for other use or disclosure has been obtained from the individuals to whom such Personal Information relates has been obtained as permitted or required by law.\n8. In the event you or any of the Recipient's Representatives become legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigation, demand, order or other legal process) to disclose any of the contents of the Confidential Information, or either the fact that discussions or negotiations are taking place concerning a possible Transaction between the Receiver and you, or any of the terms, conditions or other facts with respect to any such possible Transaction, including the status thereof, the Company agrees that you and the Recipient's Representatives may do so without liability, provided you (i) cooperate with the Receiver in any attempts it may make to obtain a protective order or other appropriate assurance that confidential treatment will be afforded the Confidential Information, and (ii) if no protective order is obtained and disclosure is required, (a) furnish only that portion of the Confidential Information that, in your counsel's opinion, you are legally compelled to disclose, and (b) take all reasonable measures to obtain reliable assurance that confidential treatment will be accorded the Confidential Information.\n9. The Receiver may elect at any time to terminate further access by the Recipient to the Confidential Information. If at any time the Recipient determines not to proceed with the possible Transaction, the Recipient will promptly notify the Receiver in writing. Following any request by the Receiver or any of its Representatives, the Recipient agrees (i) to promptly re-deliver to the Receiver all written Confidential Information and any other written material containing or reflecting any of the Confidential Information in the possession of the Recipient or the Recipient's Representatives, (ii) the Recipient and the Recipient's Representatives will not retain any copies, extracts or other reproductions in whole or in part, mechanical or electronic, of such written material, and (iii) all Notes prepared by the Recipient or the Recipient's Representatives will be destroyed, with all such destruction being confirmed by the Recipient to the Receiver in writing.\n10. Except to the extent necessary to carry out the Permitted Purpose, none of the Recipient or its Representatives are allowed to make copies of Confidential Information without the prior written approval of the Receiver (excepting that copies made by virtue of electronic communications or storage or printed copies for review by a permitted individual shall not be a breach of this prohibition).\n11. Notwithstanding Section 9 or anything to the contrary in this Agreement, the Recipient and its Representatives are not required to destroy any computer files containing the Confidential Information that are created during automatic computer system backup, provided that such files are stored securely by the Recipient and its Representatives, cannot be destroyed without undue efforts, and access to such files are limited. With respect to such backup computer files, the non-use and confidentiality obligations set forth in this Agreement shall apply in perpetuity and survive expiration or termination of this Agreement.\n12. If the Recipient or any of the Recipient's Representatives are provided with physical access to any properties or facilities of the Company, the Recipient agrees that neither the Recipient nor any of the Recipient\u2019s Representatives shall have, and shall not make, any claims whatsoever against the Receiver, or any of its Representatives as a result of such access including, without limitation, any and all claims and causes of action for personal injury, death or property damage occurring as a result of the Recipient or any of the Recipient's Representatives' access to such properties or facilities and the Recipient agrees to indemnify, defend and hold harmless the Receiver, or any of its Representatives from and against any and all liabilities, claims and causes of action for personal injury, death or property damage occurring on or to such property or facility as a result of entry onto the premises by the Recipient or any of the Recipient\u2019s Representatives. You shall, and shall cause your Representatives to, comply fully with all rules, regulations and instructions issued by the Receiver regarding you or the Recipient's Representatives' access to such properties or facilities.\n13. The Recipient understands and acknowledges that neither the Receiver nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information. The Recipient agrees that neither the Receiver nor any of its Representatives shall have any liability to the Recipient or any of the Recipient's Representatives relating to or resulting from use of the Confidential Information by the Recipient or the Recipient\u2019s Representatives. The Recipient further understands and agrees that (i) the Receiver (a) shall be free to conduct the process for a Transaction as it in its sole discretion shall determine (including changing or terminating such process, providing any information to any other Person, negotiating with any other Person or entering into a Definitive Agreement with any other Person with respect to any transaction, in each case, at any time and without notice to you or any other Person) and (b) shall be free at its sole discretion to at any time accept or reject any proposal relating to the Assets for any reason without notice to you or any other Person, and (ii) the Recipient shall have no claim against the Receiver or any of its Representatives in connection with any of the foregoing.\n14. The Recipient hereby represents and warrants that it is not bound by the terms of any agreement with a third party that would conflict with any of the Recipient\u2019s obligations under this Agreement.\n15. In accepting and reviewing the Confidential Information, the Recipient represents and warrants that it is acting solely for itself. Further, the Recipient represents and warrants that neither the Recipient nor any of the Recipient's Representatives have discussed or shared, and the Recipient hereby covenants that unless it has first received the written consent of the Receiver neither the Recipient nor any of the Recipient's Representatives will discuss or share, with any third party any aspect of the Confidential Information, except in accordance with Section 4 or 8 of this Agreement. The Recipient acknowledges that the effect of this covenant is that without the full disclosure to and the written consent of the Receiver, neither the Recipient nor any of the Recipient's Representatives can act as agent, partner, co-participant or co-venturer for any third party or third parties with respect to a proposed Transaction. In order to obtain the consent of the Receiver, which the Receiver is entitled to withhold in its sole discretion, the Recipient shall notify the Receiver of the identity of each Person for whom or with whom the Recipient or any of the Recipient's Representatives had considered pursuing a possible Transaction and the nature and interest the Recipient or any of the Recipient's Representatives and each such Person would have in respect of such possible Transaction.\n16. The Recipient agrees that, unless and until a Definitive Agreement is entered into between the Receiver and the Recipient with respect to the Transaction, neither the Receiver nor the Recipient will be under any legal obligation of any kind whatsoever with respect to the Transaction by virtue of this or any other written or oral expression, except with respect to the matters specifically agreed to herein. Except for the matters set forth in this Agreement or in any Definitive Agreement, neither party shall be entitled to rely on any statement, promise, agreement or understanding, whether oral or written, any custom, usage of trade, course of dealing or conduct.\n17. The Recipient agrees that all (i) communications regarding the Transaction, (ii) requests for additional information, (iii) requests for facility tours or management meetings, and (iv) discussions or questions regarding procedures, will be submitted or directed only to the Receiver. The Recipient further agrees that under no circumstances will the Recipient or the Recipient's Representatives discuss or otherwise communicate any aspect of the Transaction to any member of the management of the Company without the express written permission of the Receiver. Without the Receiver's prior written consent, the Recipient shall not, and shall direct the Recipient's Representatives not to, make any contact of any nature regarding a proposed Transaction (including inquiries or requests concerning Confidential Information) with any employee, supplier, customer, creditor, bank or other lender of or to the Company or any of its Affiliates.\n18. This Agreement may be executed by facsimile or electronic transmission and in any number of counterparts, each of which when so executed shall be deemed an original, but such counterparts shall together constitute one and the same agreement.\n19. The Recipient agrees that the restrictions contained in this Agreement are reasonable in order to protect the legitimate interests of the Receiver and the Company and all defences to the strict enforcement of the restrictions by the Receiver are hereby waived by the Recipient.\n20. If any term or provision of this Agreement is declared to be void or unenforceable in whole or in part by a court of competent jurisdiction, it shall be deemed to be severable from the rest of this Agreement and it shall not affect or impair the enforceability or validity of any other covenant or provision of this Agreement.\n21. This Agreement shall be governed by and interpreted in accordance with the laws in force in the Province of Alberta. The Recipient hereby irrevocably attorns to the exclusive jurisdiction of the Courts of the Province of Alberta for the determination of all matters arising hereunder in the event the Receiver should bring an action on this Agreement in the Courts of the Province of Alberta. The Recipient hereby agrees that, notwithstanding the foregoing, the Receiver may bring an action on this Agreement in any jurisdiction where the Recipient has assets or in any jurisdiction where this Agreement has been breached or where a breach is threatened, and in such an event, the Recipient hereby irrevocably attorns to the jurisdiction of the Courts of such jurisdictions for the determination of all matters arising hereunder.\n22. This Agreement will continue indefinitely, unless otherwise agreed in writing by the Receiver.\n23. No waiver of any particular requirement hereunder shall be construed as a general waiver of this Agreement, and any failure by or delay by the Receiver in enforcing its rights against any particular breach of this Agreement shall not limit or affect its rights to enforce its rights against any other breach hereof.\n24. This Agreement may not be assigned by the Recipient without the prior written consent of the Receiver.\n25. This Agreement shall enure to the benefit of the Receiver and its successors and assigns and shall be binding upon the Recipient and its successors and permitted assigns.\n26. This Agreement constitutes the entire agreement between the parties hereto and supersedes all prior contracts, agreements and understandings pertaining to the subject matter of this Agreement. No modification or alteration of this Agreement shall be binding unless executed in writing by the parties hereto. There are no representations, warranties, collateral agreements or conditions affecting this transaction other than as are expressed or referred to herein in writing.\n27. Nothing contained in this Agreement shall in any way limit the rights or remedies available to the Receiver at law, in equity or under statute arising in any way in connection with the disclosure of the Confidentiality Information in the event of a breach or a threatened breach of this Agreement. IN WITNESS WHEREOF the parties have executed this Agreement on the day and year first above written.\nFTI CONSULTING CANADA INC., in its capacity as Receiver and Manager of Phenomenome Discoveries Inc. and Phenomenome Laboratory Services Inc., and not in its personal or corporate capacity,\nPer:\n______________________________________\nPer:\nName of Recipient (please print)\nSignature of Recipient and/or Signing Officer\n",
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"text": "CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis Confidentiality and Non-Disclosure Agreement (\u201cAgreement\u201d) is entered into by and between ______________________________________ (\u201cVENDOR\u201d) and Arkansas State University (\u201cUNIVERSITY\u201d).\nWHEREAS, the parties wish to confirm their understandings with respect to the confidential nature of the relationship between the parties relating to the transmission, use, and protection of certain confidential data, it is hereby agreed as follows:\n1. Confidential Information. VENDOR acknowledges that in the course of providing services to UNIVERSITY, VENDOR will be given or have access to confidential student and/or employee information (\u201cConfidential Information\u201d) protected from disclosure by privacy laws. VENDOR, its employees, agents, contractors and subcontractors shall, in addition to their respective obligations hereunder, use best efforts at all times to adopt and follow procedures and practices to protect the confidentiality of the Confidential Information and prevent its disclosure to others without the express written consent of UNIVERSITY.\nVENDOR specifically, acknowledges Federal privacy laws such as Gramm-Leach-Bliley Act (Title 15, United States Code, Sections 6801(b) and 6805(b)(2)) applicable to financial transactions and Family Educational Rights and Privacy Act (Title 20, United States Code, Section 1232g) applicable to student records and information from student records.\nVENDOR further acknowledges that UNIVERSITY\u2019S willingness to disclose Confidential Information to VENDOR is predicated on VENDOR entering into committing to abide by the terms of this Agreement and all applicable privacy laws.\n2. Nondisclosure. VENDOR, its employees, agents, contractors, and subcontractors shall use the Confidential Information solely in connection with performance by VENDOR of the services provided to UNIVERSITY and for no other purpose. Neither VENDOR nor any of its employees, agents, contractors, or subcontractors shall sell, release, transfer, reprint, duplicate, recreate, disclose or permit the disclosure to any other person or entity of any of the Confidential Information or of any files, compilation, study, report, or analysis or data base containing, based on, or derived from the Confidential Information without the express written consent of UNIVERSITY and in full compliance with applicable state and federal privacy laws.\nVENDOR shall maintain the privacy of protected personal information and shall be financially responsible, if and to the extent that any security breach relating to protected personal information results from acts or omissions of VENDOR, or its personnel, for any notifications to affected persons (after prompt consultation with UNIVERSITY), and to the extent requested by UNIVERSITY, administratively responsible for such notification.\n3. Disclosure Sought Under Legal Process. VENDOR shall immediately notify UNIVERSITY in writing of any subpoena, court order, or other legal process seeking or purporting to compel disclosure of any of the Confidential Information and shall challenge, oppose, or appeal any such subpoena, order, or legal process to the extent deemed appropriate by UNIVERSITY. In no event shall VENDOR voluntarily, without a court order, disclose or permit the disclosure of any of the Confidential Information in response to legal process unless and until VENDOR has given the required notice to UNIVERSITY and VENDOR has exhausted any and all legal remedies available to it to limit or prevent the disclosure.\n4. Return of Materials. Upon request of UNIVERSITY at any time VENDOR shall return all or such part of the Confidential Information as UNIVERSITY may designate to be returned. In addition, upon the completion of the services provided by VENDOR to UNIVERSITY, VENDOR shall return or destroy, as UNIVERSITY may instruct, all Confidential Information in VENDOR\u2019S possession or control, whether in printed, electronic or any other format, including all duplicates and copies thereof of any files, compilation, study, report, analysis, or data base containing, based on or derived from the Confidential Information.\n5. Loss of Access. VENDOR\u2019S disclosure of Confidential Information to third parties without UNIVERSITY\u2019S authorization, or VENDOR\u2019S failure to return or destroy Confidential Information per Provision 4, above may result in the UNIVERSITY or the U.S. Department of Education denying VENDOR access to Confidential Information for a period of at least five years.\n6. Immediate Notice. VENDOR shall give UNIVERSITY immediate notice of any unauthorized use or disclosure of the Confidential Information, or of any breach or threatened breach by VENDOR, or its employees, agents, contractors, or subcontractors of their obligations under this Agreement, upon learning of same.\n7. Appropriate Forum. VENDOR and UNIVERSITY agree that this Agreement is entered into in the State of Arkansas and that the legal forums located in the State of Arkansas are the appropriate forums in the event any party seeks legal action or injunctive relief under this Agreement. Both parties consent to venue and personal jurisdiction in the appropriate forum in the State of Arkansas.\n8. Termination. This Agreement shall survive the termination of the services to be provided by VENDOR or any other agreement by and between the parties.\n9. Severability. All of the provisions of this agreement are severable. If any provision of this Agreement is rendered invalid or unenforceable by State or Federal statute or regulations or declared null and void by any court of competent jurisdiction, the remaining provisions of this Agreement will remain in full force and effect.\n10. Entire Agreement Amendments. This Agreement is intended as the complete, final and exclusive statement of the parties with respect to the subject matter hereof, and supersedes any prior agreements or understandings between the parties hereto. This Agreement may be amended, modified or supplemented only by a written agreement signed by VENDOR and UNIVERSITY. Any waiver of the terms and conditions of this Agreement must be in writing signed by the party granting such waiver and shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure to perform.\n11. Original Copy. 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"text": "CONFIDENTIALITY AGREEMENT between and Anton Paar GmbH, Anton-Paar-Stra\u00dfe 20, 8054 Graz, Austria.\nBACKGROUND\nThe parties intend to disclose to each other certain confidential information for the purpose of evaluating each party's potential interest in mutual business activities relating to\nOPERATIVE PROVISIONS\n1 DEFINITIONS\n1.1 \u201cRecipient\u201d means the party receiving Confidential Information.\n1.2 \u201cDiscloser\u201d means the party disclosing Confidential Information to the other party.\n1.3 \u201cPurpose\u201d means\na) any discussions and negotiations between or within the parties with respect to or in connection with the establishment of a business relationship between the parties; and subsequently,\nb) any activities in connection with the business relationship between the parties.\n1.4 \u201cConfidential Information\u201d means any data or information that is proprietary to the Discloser relating to each party\u2019s respective business or affairs (including, but not limited to, current and future products, designs, business plans, operations, know-how, technologies, customers, employees, procurement, contracts, research and development, manufacturing processes and plans, marketing strategies, financial information, intellectual property, and related information) disclosed to Recipient after the effective date of this agreement by the Discloser or any third party on behalf of Discloser, whether in written, oral or any other tangible or intangible form. Confidential Information includes any information generated by (or for) Recipient that contains, reflects, or is derived from any of the foregoing.\n1.5 Confidential Information shall not include information that Recipient can demonstrate:\na) is at the time of disclosure, or subsequently becomes, generally available to the public without breach of this agreement by Recipient;\nb) to have had rightfully in its possession prior to disclosure to Recipient by Discloser;\nc) is independently developed by Recipient without the use of any Confidential Information; or\nd) Recipient rightfully obtains from a third party who has the right to transfer or disclose it; or\ne) was disclosed to a third party with the Discloser's prior written consent; or\nCONFIDENTIALITY AGREEMENT\nf) was disclosed to a third party after the period of seven (7) years from the date of the disclosure.\n2 NON-DISCLOSURE AND NON-USE OF CONFIDENTIAL INFORMATION\n2.1 Recipient agrees to treat Confidential Information confidential and use the same degree of care that it uses to protect its own confidential and proprietary information of similar importance (but in no event less than reasonable care). Recipient warrants that it will take all necessary cautions to prevent the unauthorized use, disclosure, publication or dissemination of Confidential Information. Recipient may disclose the Confidential Information only to its directors or employees who have a need to know the Confidential Information for the Purpose, provided that such party agrees to be bound by this or comparable agreements to the same extent as Recipient is bound and Recipient agrees to be responsible for any breach by these employees and directors. Recipient shall not create a copy or reproduce in any form (electronic or otherwise) any materials or documents containing Confidential Information, except as reasonably necessary to further the Purpose. All copies of the Confidential Information will as of their creation become the property of Discloser. Recipient will return any and all tangible Confidential Information provided to it by Discloser and copies thereof, to Discloser within 30 days after Discloser\u2019s written request, provided, however, Recipient shall destroy such information if Discloser elects so. In case of any breach of this agreement, the Recipient shall return the Confidential Information and all copies thereof immediately.\n2.2 The parties acknowledge and agree that they are part of organizations of one or more legal entities in different jurisdictions and that it may be required for them to provide information to their respective Subsidiaries (as defined below). Therefore, the parties agree that\na) Recipient may disclose Confidential Information to its Subsidiaries without Discloser\u2019s consent, if and to the extent such disclosure is required in order to fulfill the Purpose; and\nb) a disclosure to or by a party\u2019s respective Subsidiaries shall be considered as disclosure to or by the respective party; and\nc) each party is responsible and liable for its respective Subsidiaries\u2019 compliance and due delivery of the obligations set out in this agreement.\n2.3 For the purposes of this agreement, \u201cSubsidiaries\u201d shall mean any subsidiary, in which a party holds, directly or indirectly, fifty percent (50%) or more of the controlling or voting rights.\n3 INJUNCTIVE RELIEF AND COMPENSATION\n3.1 The parties will compensate each other for any damages arising from the breach of the present agreement. The parties hereby acknowledge that the unauthorized disclosure or use of Confidential Information could cause irreparable damage and substantial disadvantage to the parties or their current or future customers which may be difficult to determine. Therefore, the parties agree that the party which has suffered a disadvantage shall be entitled, in addition to any other rights and remedies that it may have, to seek injunctive relief in order to enforce the obligations under the agreement.\n3.2 In addition and regardless of negligence or fault or proof of an actual damage, the parties agree to contractual penalty in the amount of EUR 15,000.00 for the event of a breach of this agreement. Further claims of the injured party remain unaffected.\nCONFIDENTIALITY AGREEMENT\n4 RESTRICTIONS AND WARRANTY\n4.1 Recipient (i) shall not disclose Confidential Information, neither in whole nor in part, to any third party; (ii) shall only use the Confidential Information for the Purpose; and (iii) shall not, without the Discloser\u2019s written consent, neither in whole nor in part, commercially exploit or use the Confidential Information. Notwithstanding the foregoing, Recipient may make such disclosure if it is required to do so by law, provided always that Recipient has informed Discloser about such disclosure at least two business days prior to the disclosure.\n4.2 Discloser warrants that it authorizes the Recipient to use the Confidential Information for the Purpose.\n4.3 Nothing in this agreement or any disclosure hereunder creates any obligation to disclose Confidential Information, use the Confidential Information in any product, warrant the accuracy or completeness of the Confidential Information, or the fitness of the Confidential Information for a particular purpose, or grant any license or other right to Confidential Information under copyright or other intellectual property right to the Discloser other than the right to use the Confidential Information for the Purpose.\n4.4 The Discloser disclaims all warranty that the use of the Confidential Information does not infringe upon the rights of any third party or otherwise causes damages. The Discloser shall not be liable for any damages resulting from the infringement of third party rights or otherwise.\n5 WAIVER\n5.1 Any failure or delay to enforce any provision of this agreement shall not constitute a waiver thereof or of any other provision, unless the respective party expressly waives its right to enforce such provision in writing.\n6 ASSIGNMENT\n6.1 Neither party may assign or otherwise transfer its rights and obligations out of this agreement, neither in whole nor in part, without the other party\u2019s prior written consent.\n7 APPLICABLE LAW & JURISDICTION\n7.1 This agreement shall be governed by and construed in accordance with Austrian law, excluding its conflict of laws provisions and each party hereby irrevocably submits to the jurisdiction of the courts in Graz, Austria.\nIN WITNESS WHEREOF, the parties hereto have caused this agreement to be duly executed by their duly authorized representatives.\nCONFIDENTIALITY AGREEMENT\nAnton Paar GmbH\n_______________, ____________________ Graz, ____________________\n_________________________________ _________________________________\n (signature) (signature)\nName: Name:\nTitle: Title:\n_________________________________ _________________________________\n (signature) (signature)\nName: Name:\nTitle: Title:\n",
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"text": "Confidentiality Agreement\nbetween\nHelu Kabel GmbH\nDieselstra\u00dfe 8-12\n71282 Hemmingen\n-Supplier-\nand\n[COMPANY]\n[CONTACT PERSON]\n[ADDRESS]\n[POSTCODE, CITY]\n[COUNTRY]\n-Buyer-\n1. The parties maintain a supply relationship. In the frame of this cooperation, confidential information also be exchanged.\n2. Every contract party can disclose confidential information to the other contract party orally or in writing. If the disclosure is in writing, the disclosing party will mark the confidential documents with the additional terms \u201cConfidential\u201d or \u201cLiable to Secrecy\u201d so that it is apparent to the other party which information is especially in need to protection.\n3. The contract parties are obligated to preclude disclosure of confidential information to third parties. The parties will entrust confidential information solely to those employees, consultants and third party companies which are concerned with the processing of the order and which are legally or contractually obligated to secrecy.\n4. To the extent that technical drawings of certain third-party companies are not to be made known, the buyer must point this fact out on its own initiative.\n5. All confidential information remains the property of the disclosing contract party.\n6. The confidentiality agreement does not apply to statements of the company Helukabel in its catalogues, datasheets and on the homepage and also not to information which\na) the receiving party was already aware of or which was developed by the disclosing party itself independent of the disclosure,\nb) is publicly known without this agreement having been broken,\nc) was received by a third party without infringement of this or any other confidentiality agreement.\n7. If the recipient is forced to expose the confidential information due to a legal regulation, a legally valid judgement or a non-disputable official decision or decree in part or in whole, it shall immediately inform the owner of the confidential information in writing so that the owner can take measures to protect the confidential information.\n8. This agreement becomes effective with the signatures of both parties and is valid for three years. It is tacitly extended by one year if it is not terminated three months before its expiration.\n9. At the end of the contract the receiving party shall return the confidential information and any possibly extant copies after receipt of a written request, provided that this is technically feasible and does not violate the retention obligations. As an alternative to that, the receiving party can also ensure in writing the destruction of the received documentation if that is technically feasible.\n10. The confidential information will be provided as is. The disclosing party does not assume any warranty for the correctness, completeness or usability of the confidential information.\n11. The parties agree that for this agreement German law applies excluding the United Nations Convention on Contracts for the International Sale of Goods. The legal venue for all disputes arising from this agreement is the head office of the company Helukabel in Hemmingen.\nHemmingen, ___________ _____________________\nPlace, Date\n_________________________ _____________________\nHelu Kabel GmbH Buyer\n",
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"text": "KITTY HAVEN SANCTUARY OF UTAH CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis Confidentiality and Non-Disclosure Agreement (this \"Agreement\") is entered into as of Kitty Haven Sanctuary of Utah, a Utah corporation and IRS 501(c)(3) nonprofit organization (Disclosing Company) and Volunteer Applicant (Recipient) (each referred to as a \"Party\" and collectively referred to as the \"Parties\"). In consideration of the premises and covenants herein set forth and other good and valuable consideration, the legal sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:\n1. Treatment of Confidential Information. The Confidential Information (as defined in Section 2), whether transmitted orally, in writing or in any other form, and whether prepared by a Party or its employees, agents, advisors or other representatives, shall be preserved in strict confidence by the receiving Party, shall not be disclosed, disseminated or distributed by the receiving Party other than as expressly authorized herein, and shall be used exclusively for the purposes or transactions contemplated by this Agreement. Disclosure of the Confidential Information may be made only to employees, agents or independent contractors of a Party who are directly involved in consideration of the transaction, which is the subject of this Agreement and who are bound to maintain its confidence.\n2. Definition of Confidential Information. The term \"Confidential Information\" shall mean for purposes of this Agreement, any and all sensitive business, financial and technical information provided prior to the execution of this Agreement and to be provided after the execution of this Agreement by a transmitting Party to the receiving Party, including, without limitation, financial statements, reports and data, customer lists, trade secrets, technical data, proprietary information, and any other confidential information regarding the transmitting Party, its subsidiaries and its respective businesses. Confidential Information does not include information, which is shown by clear and convincing evidence to be (i) publicly available without breach by the receiving Party of its obligations to the disclosing Party under this Agreement; (ii) known to the receiving Party prior to the disclosing Party's disclosure of such information to the receiving Party; (iii) known to the receiving Party other than by the breach of an obligation of confidentiality owed to the disclosing Party under this Agreement from a source other than the disclosing Party; (iv) independently developed by the receiving Party; (v) disclosed by the disclosing Party to a third party free of any duty of confidentiality on the third party; (vi) disclosed under operation of law provided the receiving Party gives the disclosing Party reasonable notice prior to such disclosure and cooperates with the disclosing Party in its efforts to keep the Confidential Information confidential;\n(vii) disclosed by the receiving Party with the prior written approval of the disclosing Party; or (viii) inherently disclosed in products or services being developed or marketed by the receiving Party prior to the receipt of pertinent Confidential Information from the disclosing Party.\n3. Ownership of Confidential Information. The disclosing Party shall retain all right, title and interest in and to the Confidential Information, including all intellectual property represented thereby or associated therewith, and no license or assignment, by implication, estoppel or otherwise, is granted by the disclosing Party to the receiving Party to make, have made, use, or sell any product using the Confidential Information, or a license under any patent, patent application, utility model, copyright, trade secret, trademark, service mark or any other similar industrial or intellectual property right. At no time and under no circumstances shall the receiving Party reverse-engineer, decompile or disassemble any part of the Confidential Information .\n4. Responsibility for Breach. Each Party agrees to be responsible for any breach of this Agreement by any third party to whom such Party has provided Confidential Information, or any portion thereof. If a Party or any third party to whom such Party has provided Confidential Information becomes legally compelled (by oral question, deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or by rule, regulation or other applicable law) to disclose any Confidential Information, such Party shall promptly notify the other Party of such requirement before any disclosure is made so that the other Party may seek a protective order or other appropriate remedy or may waive compliance with the terms of this Agreement. If such protective order or other remedy is not obtained, or if a Party waives compliance with the provisions hereof, each Party agrees that only that portion of the Confidential Information which it is legally required to disclose (as advised by a written opinion of counsel) will be disclosed, and each Party agrees to exercise its best efforts to obtain assurance that the Confidential Information will be treated confidentially upon disclosure.\n5. Term. This Agreement will continue in full force and effect until both parties agree in writing to terminate this agreement and for one-year thereafter. The Parties agree that if the negotiated transaction does not proceed within a reasonable time, or upon any request from either Party, each Party shall promptly deliver to the other Party all written Confidential Information and any other written material containing or reflecting Confidential Information and will not retain any copies, extracts or other reproductions in whole or in part of such written material. All documents, memoranda, notes and other writings whatsoever prepared by each Party, or respective representatives, based on the information included in the Confidential Information shall be promptly destroyed, and such destruction shall be ce1tified in writing by an authorized officer supervising such destruction. Notwithstanding the return or destruction of any Confidential Information, each Party shall continue to be bound by its obligations o f confidentiality and other obligations hereunder.\n6. Form of Relief. The Parties hereby acknowledge and agree that, in the event of any breach of this Agreement by either Party, including, without limitation, the actual or threatened disclosure of a Party's Confidential Information without the express prior written consent of that Paity, such Party will suffer irreparable harm and injury and no remedy at law will afford it adequate protection against, or appropriate compensation for, such injury. Accordingly, each Party hereby agrees that, in any such event, the harmed Party shall be entitled to seek specific performance of the other Party's obligations under this Agreement, as well as such further injunctive relief as may be granted by a court of competent jurisdiction.\n7. Confidentiality of Discussions. Unless otherwise required by law, without the prior written consent of the other Party, neither a Party nor its representatives shall disclose to any person (including any corporation, company, partnership or individual) either the fact that discussions or negotiations are taking place concerning a possible transaction between the Parties or any of the terms, conditions or other facts with respect to any such possible transaction, including the status thereof.\n8. Assignment. This Agreement and the rights and obligations of either Party under this Agreement may be assigned or transferred only upon the prior written approval of the other Party hereto. The rights and obligations of the Parties hereto will inure to the benefit of, will be binding upon, and will be enforceable by the Parties hereto, their representatives and their permitted successors and assigns.\n9. Modifications. No modifications of this Agreement or waiver of any of its terms will be effective unless set forth in writing signed by the Party against whom it is sought to be enforced.\n10. Choice of Law. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH, EXCLUDING CHOICE OF LAW AND CONFLICTS OF LAW PRINCIPLES WHICH DIRECT THE APPLICATION OF THE LAWS OF A DIFFERENT STATE. The rule of construction that contracts are to be construed strictly against the drafter is expressly made inapplicable to this Agreement.\n11. Severability. If any provision of this Agreement is held by final judgment of a court of competent jurisdiction to be invalid, illegal or unenforceable, such invalid, illegal or unenforceable provision shall be severed from the remainder of this Agreement, and the remainder of this Agreement shall be enforced. In addition, the invalid, illegal or unenforceable provision shall be deemed to be automatically modified, and, as so modified, to be included in this Agreement, such modification being made to the minimum extent necessary to render the provision valid, legal and enforceable. Notwithstanding the foregoing, however, if the severed or modified provision concerns all or a portion of the essential consideration to be delivered under this Agreement by one Party to the other, the remaining provisions of this Agreement shall also be modified to the extent necessary to equitably adjust the Parties' respective rights and obligations hereunder.\n12. Counterparts. This Agreement may be executed in any number of counterparts and any Party hereto may execute any such counterpart, each of which when executed and delivered shall be deemed to be an original and all of which counterparts taken together shall constitute but one and the same instrument. This Agreement shall become binding when all counterparts taken together shall have been executed and delivered by the Parties. A telecopied facsimile of an executed counterpart of this Agreement shall be sufficient to evidence the binding agreement of each Party to the terms hereof.\n13. RELEASE. As consideration for being permitted by Kitty Haven to participate in activities and provide Services, I hereby agree that I, my assignees, heirs, distributees, guardians, and legal representatives will not make a claim against, sue, or attach the property of Kitty Haven Sanctuary of Utah for injury or damage resulting from any act, omission, negligence or other acts, howsoever caused, by any employee, agent, contractor, or representative of Kitty Haven as a result of my participation in activities and performance of the Services and any A-V Recordings. I hereby release Kitty Haven from all actions, claims, or demands that I, my assignees, heirs, distributees, guardians, and legal representatives now have or may hereafter have for injury or damage resulting from my participation in activities and performance of the Services and any A-V Recordings.\n ____________________________________________________ ___________________________\nSignature of Visitor or Volunteer Date\n_____________________________________________________\n",
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"text": "CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT (Rev 10/20/16)\nBETWEEN _________________ AND THE KANSAS DEPARTMENT OF LABOR (KDOL) FOR ____insert name of project\nThis Confidentiality and Non-Disclosure Agreement is entered into the date and year last appearing below, by and between ___________________ (hereinafter \"Authorized Person\") and KDOL for the purpose of allowing Authorized Person access to confidential information for the purpose of insert a description of the project_.\nAccess to any confidential information is specifically conditioned upon compliance with the following:\nUse of Confidential Information\nThe term \u201cconfidential information\u201d shall include: any information or data maintained by KDOL that has been obtained pursuant to the administration of the Employment Security Law, and includes personally identifiable information (PII) maintained by KDOL such as:\n\u2022 The name of a person\n\u2022 His or her mailing address\n\u2022 His or her taxpayer identification number\n\u2022 Email addresses\n\u2022 Telephone numbers\n\u2022 Social Security Numbers\n\u2022 Bank account numbers\n\u2022 Date and place of birth\n\u2022 Mother\u2019s maiden name\n\u2022 Biometric data (e.g., height, weight, eye color, fingerprints)\n\u2022 The name or identity of an employing unit\n\u2022 Records described in K.A.R. 50-2-2\n\u2022 Any combination of the preceding\nOfficials, employees and agents of Authorized Person having access to any confidential information obtained pursuant to this agreement shall be subject to all federal and state laws, and regulations, and will comply with limitations on use, treatment, and safeguarding of data under the following laws, regulations and agreements: K.S.A. 44-714(e), and amendments thereto; the Privacy Act of 1974 (5 U.S.C. 552a), as amended by the Computer Matching and Privacy Protection Act of 1988, related Office of Management and Budget guidelines, the Federal Information Security Management Act of 2002 (44 U.S.C. \u00a7 3541, et seq.), and related National Institute of Standards and Technology guidelines; SSA\u2019s \u201cElectronic Information Exchange Security Requirements and Procedures for State and Local Agencies Exchanging Electronic Information with the Social Security Administration\u201d (TSSR v7); the US Department of Health and Human Services requirements relating to National Directory of New Hires data; and the Information Exchange Agreement between the Social Security Administration and the State of Kansas Department of Labor. For any tax return data, officials, employees and agents of Authorized Person will also comply with the \u201cTax Information Security Guidelines for Federal, State and Local Agencies,\u201d Publication 1075, published by the Secretary of the Treasury. All of which said laws, regulations and agreements involve the requirement to maintain confidentiality of any information, reports, returns and other documentation obtained pursuant to this agreement.\nOfficials, employees and agents of Authorized Person will provide to KDOL a current list upon request of the officials, employees and agents of Authorized Person who have access to confidential information disclosed under this agreement. The list shall include each person\u2019s full name, date of birth, social security number and states of residence of each individual.\nThis agreement does not grant or authorize the Authorized Person to have unescorted direct access to KDOL systems. Additionally, execution of this agreement alone does not fulfill all requirements to permit Authorized Person access to confidential information. Additional requirements must also be satisfied, including but not limited to the requirements found in Section 5.11 of the SSA TSSR v.7; requirements of the Information Exchange Agreement between the Social Security Administration and the State of Kansas Department of Labor; and the terms and conditions set forth in the Computer Matching and Privacy Protection Act Agreement (\u201cCMPPA Agreement\u201d) between SSA and the State of Kansas, governing the State Agency\u2019s use of the data disclosed from SSA\u2019s Privacy Act System of Records.\nConfidential information provided hereunder, or identifiable information derived therefrom, shall not be disclosed to any individual(s) that is/are not subject to this agreement. Information provided hereunder, or identifiable information derived therefrom, shall not be copied, downloaded or otherwise placed in any format, including working papers, which may become a public record pursuant to the Kansas Open Records Act (KORA). Authorized Person agrees that they will not provide or allow access of the information obtained hereunder to any agent, third party, contractor, subcontractor, or any other public agency, unless authorized in writing by KDOL, and then conditioned upon said agent, third party, contractor, subcontractor, or any other public agency agreeing in writing to be bound by the use and confidentiality terms and conditions of this Confidentiality Agreement. A copy of any such agreement shall be available for inspection upon request by the KDOL and will not be subject to disclosure to third parties by anyone other than KDOL.\nAuthorized Person agrees that any confidential information or reports generated from such confidential information shall be in aggregate form, and shall not in any way contain personally identifiable information or information which alone, or in combination with other information, is linked, or is linkable, to a specific individual, and which would thereby allow a reasonable person in the community, who does not have personal knowledge of the relevant circumstances, to identify the individual with reasonable certainty. Additionally, Authorized Person agrees that the Authorized Person will use confidential information or reports generated from such confidential information only for the purpose stated in the first paragraph of this agreement.\nAny information maintained by KDOL that has been obtained pursuant to the administration of the Employment Security Law, shall be held confidential and shall not be published or be open to public inspection, other than to public employees in the performance of their public duties, in any manner revealing an individual\u2019s or employing unit\u2019s identity.\nAuthorized Person agrees to comply with all data storage requirements in IRS Publication 1075 for all information systems used for receiving, processing, storing, or transmitting confidential information obtained pursuant to this agreement.\nBoth parties shall exercise reasonable and prudent security procedures to protect such information, reports, returns and other documentation in their possession, including electronic versions thereof, from any unauthorized access and/or disclosure. Access to the information covered by this agreement shall be limited to the minimum number of individuals necessary to achieve the stated purpose of the agreement.\nNotwithstanding any provisions of this agreement, any breach of the confidentiality or non-disclosure provisions above shall be grounds for immediate termination of this agreement without notice, and legal action may be immediately commenced.\nDisposal of Confidential Information\nOnce confidential information or data obtained hereunder is no longer useful for the purposes described herein, Authorized Person agrees to immediately destroy all such confidential information or data maintained on any information system platform or any form of storage media subject to any schedule of retention established by the Kansas Records Board, in the following manner:\nConfidential information obtained pursuant to this agreement, and any paper material generated therefrom, such as copies, photo impressions, computer printouts, notes, and work papers, must be destroyed by burning or shredding. Printed material to be burned must be burned in an incinerator that produces enough heat to burn the entire bundle, or the bundle must be separated to ensure that all pages are incinerated. Printed material to be shredded must be shredded in the following manner: The paper must be inserted so that lines of print are perpendicular to the cutting line; The paper must be shredded to effect 5/16-inch-wide or smaller strips. Consideration should be given to the use of cross-cut shredders; If shredding deviates from the 5/16-inch specification, Confidential information must be safeguarded until it reaches the stage where it is rendered unreadable through additional means, such as burning or pulping.\nConfidential information obtained pursuant to this agreement that is stored in electronic format must be destroyed in the following manner: Electronic media (e.g., hard drives, tapes, CDs, and flash media) must be destroyed according to IRS Publication 1075 guidance in Section 9.3.10.6, Media Sanitization (MP-6), and Section 9.4.7, Media Sanitization. Electronic media containing confidential information must not be made available for reuse by other offices or released for destruction without first being subjected to electromagnetic erasing. If reuse is not intended, the tape must be destroyed by cutting into lengths of 18 inches or less or by burning to effect complete incineration.\nMicrofilm and microfiche must be shredded to effect 1/35-inch by 3/8-inch strips.\nAuthorized Person agrees to permit KDOL to audit and inspect all Authorized Person\u2019s compliance with these requirements.\nModification of Agreement\nNo modification to this agreement shall be effective unless reduced to writing and signed by the parties hereto.\nAUTHORIZED PERSON KANSAS DEPARTMENT OF LABOR\nBy: ______________________ By: ________________________\nPrint name Print Name\nSignature: ______________________ Signature: ________________________\nDate: _______________ Date: _______________\n",
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"text": "CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT FOR DISTRIBUTED GENERATION SERVICE\nTHIS AGREEMENT, is made and entered into this ____ day of ________, 20__, between _____________________________ (\u201cCustomer\u201d) and Minnesota Power. Customer and Minnesota Power may be individually referred to as the \u201cParty\u201d or collectively referred to as the \u201cParties\u201d.\nWHEREAS, Customer desires to interconnect a distributed generation system with Minnesota Power pursuant to the terms set forth in the model Electric Service Agreement for Distributed Generation Service adopted as part of Minnesota Power\u2019s Rider for Distributed Generation Service; and\nWHEREAS, in connection with such Electric Service Agreement, Customer desires to receive Minnesota Power\u2019s Distributed Generation Capacity and Energy Payment Schedule (\u201cPayment Schedule\u201d); and\nWHEREAS, Minnesota Power is willing to disclose such proprietary, non-public information regarding its Payment Schedule; and\nWHEREAS, the Parties recognize the confidential nature of the information and that disclosure or unauthorized use of such information to or by third parties could result in damage to Minnesota Power and its customers;\nNOW, THEREFORE, in consideration of the promises, covenants and agreements contained herein to be kept and performed by the Parties, it is mutually agreed as follows:\n1. Minnesota Power shall furnish to Customer, by any means or medium, the proprietary, non-public information concerning Minnesota Power\u2019s Payment Schedule.\n2. The information, knowledge and material exchanged pursuant to the preceding paragraph shall be referred to as the \u201cInformation.\u201d The Parties hereby agree to retain, and to require all respective representatives to retain, the Information provided pursuant to this Agreement in strict confidence in accordance with the terms set forth below.\n3. It is agreed that the Information will be used by Customer only for the limited purpose of interconnecting a distributed generation system with Minnesota Power. Without the prior written consent of Minnesota Power, any disclosure or other unauthorized use of the Information by Customer is prohibited. This Agreement shall not prohibit disclosure to third party consultants and professional advisors provided such third parties enter into and agree to be bound by this Agreement.\n4. The term \u201cInformation\u201d does not include information which Customer demonstrates by clear and convincing evidence:\na. is already known to Customer, provided that such prior knowledge can be substantiated by written records and documents; or\nb. has become publicly known through no act of the Customer; or\nc. has been rightfully received from a third party not subject to this Agreement; or\nd. has been independently developed by the Customer without reliance on Information, provided that such independent development can be substantiated by written records and documents; or\ne. has been approved for release by written authorization of Minnesota Power; or\nf. has been disclosed pursuant to a requirement of a governmental agency or court of law through no voluntary action or inaction by the Customer.\n5. Customer and Minnesota Power hereby acknowledge that unauthorized disclosure or use of the Information may result in irreparable harm to Minnesota Power. Accordingly, Customer agrees that Minnesota Power shall have the right to obtain a temporary restraining order enjoining disclosure or use of all Information subject to this Agreement. Customer agrees not to contest the granting of such temporary restraining order. Such order shall become permanent upon adequate showing of irreparable injury and ruling by a court of law. The Parties may participate in any contest relating to a permanent injunction.\n6. Upon the written request of Minnesota Power, the Customer shall return to Minnesota Power all documentation and electronic media containing Information and shall provide written certification that copies of all Information have been destroyed or returned.\n7. Customer agrees that, without the prior written consent of Minnesota Power, it will not make any statement to any competitor, customer or other third party with respect to the Information exchanged hereunder or regarding the Project itself.\n8. In further consideration of Minnesota Power disclosing its Information hereunder, Customer agrees that it will not use the Information for any third-party\u2019s benefit or in providing services to third parties (which shall specifically include any wholesale or retail customer served by Minnesota Power).\n9. This Agreement shall be effective for a term of ______ (__) years from the day first written above. Notwithstanding the Parties entering into any further agreement or arrangement, or any other event or occurrence, the provisions of this Agreement relating to nondisclosure (including the provisions relating to the breach of this Agreement) or use of the Information shall remain in full force and effect for ________ years or as long as the Information is confidential and non-public, whichever is less, unless otherwise agreed to in writing by the Parties hereto.\n10. If one or more of the sections or parts hereof are found to be unenforceable, illegal, or contrary to public policy or are in some other manner declared to be unenforceable by a court of competent jurisdiction, this Agreement shall remain in full force and effect except for that paragraph or portion thereof determined to be unenforceable.\n11. Nothing contained in the Agreement shall be construed as granting any rights under any patent, trademark or copyright, by license or otherwise, protecting any Information subject to this Agreement, and that this Agreement does not create a partnership, joint venture or other legal relationship between the Parties. The construction, interpretation and performance of this Agreement, and all transactions under it, shall be governed by the laws of the State of Minnesota, without regard to Minnesota law governing conflict of laws, even if one or more of the Parties hereto may be a resident of, or domiciled in, any other state or country.\n12. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective heirs, successors, representatives and assigns. This Agreement constitutes the entire agreement between the Parties. Customer and Minnesota Power acknowledge and agree that no other statements, representations, agreements or warranties, except those outlined herein, apply to the terms and conditions of this Agreement.\nIN WITNESS WHEREOF, the Parties hereto have duly executed this Agreement on the day and year first above written.\nMinnesota Power Customer\nBy By\nIts\n",
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"text": "Haldex Non-disclosure Agreement\nMay 2015. REG NO: HDX4-51-130\nThis non-disclosure agreement (the \u201cAgreement\u201d) is entered into by and between _______________________, with company registration number ___________________, address at __________________________________ and fax number ________________ hereinafter referred to as \u201cHaldex\u201d, and\n______________________, with company registration number ___________________ , address at __________________________________ and fax number_____________________ hereinafter referred to as the Supplier.\nHaldex and Supplier are hereinafter jointly referred to as Parties and individually as Party.\n1. Purpose\nHaldex and the Supplier will evaluate the possibility to enter into an agreement regarding ________________ ________________________. For this purpose, the Parties need to exchange Confidential Information.\n2. Confidential Information\n2.1 Confidential Information shall mean:\ni) all technical, financial and business information disclosed by one Party to the other Party or by another Haldex Group entity to the Supplier including, but not limited to, documents, data, information, prototypes or components relating to devices, methods, materials, apparatus, designs, research, yields and specifications; and\nii) information relating to the existence of this Agreement;\n2.2 Confidential Information shall not include:\ni) information which was known by a Party prior to receiving it from the other Party if this can be demonstrated by written record;\nii) information which at the time of disclosure is in the public domain or which is published after disclosure or otherwise becomes part of the public domain without breach of this Agreement;\niii) information which the Party can show was received from a third party who did not to the best knowledge of the Party receive the information, directly or indirectly, from the other Party under any obligation of confidentiality; iv) information developed or created by one Party independently of the other, without any part thereof having been developed or created with assistance or information received from the other Party; and\nv) information which is disclosed due to any requirement under mandatory law.\n3. Undertakings of the Parties\nThe Parties undertake:\ni) to treat all Confidential Information as absolutely secret, private and confidential;\nii) to take all steps necessary to preserve such confidentiality and secrecy;\niii) to prevent disclosure of any such Confidential Information to any third party;\niv) to use the Confidential Information solely for the purpose set out in Section 1;\nv) to disclose the Confidential Information only to those of its directors, employees and consultants who need the Confidential Information to conduct tasks in relation to the purpose set out in Section 1;\nvi) to ascertain that each person who receives Confidential Information is made aware of and comply with this Agreement; and\nvii) to immediately upon request deliver to the other Party all Confidential Information that belong to that Party in any form without retaining any copies thereof, or, at the other Party\u2019s option, certify in writing that all copies of such information have been destroyed.\n4. Disclosure under mandatory law\nIf either Party due to mandatory law is forced to disclose information which would otherwise be considered as Confidential Information, the Party shall prior to the disclosure inform the other Party hereof and the Parties shall mutually decide how to minimize the negative consequences thereof.\n5. Indemnification\nThe Parties undertake to reimburse, indemnify and hold the other Party harmless from any damages, loss or expense incurred by it as a result of either Party violating the terms of this Agreement.\n6. No license\nNothing in this Agreement shall be deemed to constitute or to imply the granting of any license, immunity or other right under any intellectual property right of either Party, or to provide a commitment of any kind by either Party to enter into further agreements with the other Party.\n7. Disputes and Governing Law\n7.1 Any and all disputes, controversies and claims arising out of or in connection with this Agreement, or the breach, termination or invalidity hereof, shall be settled by arbitration in accordance with the Rules of the Arbitration Institute of the Stockholm Chamber of Commerce. The arbitral tribunal shall be composed of three arbitrators. The place of arbitration including the making of the award shall be Stockholm, Sweden. The language to be used in the arbitral proceedings shall be English.\n7.2 This Agreement shall be governed by the substantive laws of Sweden.\n8. Term and termination\n8.1 This Agreement enters into force when signed by both Parties. The initial term of the Agreement is three (3) years. If the Agreement is not terminated by notice six (6) months prior to the end of each term, it shall be extended with twelve (12) months with the same notice period until terminated as aforesaid by any Party. 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"id": 85,
"file_name": "confidentialityandnondisclosureagreement.pdf",
"text": "Confidentiality and Non-Disclosure Agreement\nThis Confidentiality and Non-Disclosure Agreement regarding confidential information (hereinafter \"Information\"), which the Receiving Party has received or will receive from the Inventor/Disclosing Party, is entered in\nbetween\n(hereinafter referred to as the \"Inventor/Disclosing Party\")\nand\n(hereinafter referred to as the \"Receiving Party\")\n1. The Information is supplied in the form of the following documents, prototypes or the like: (List of disclosed material):\n2. The Receiving Party undertakes to keep the Information confidential and not to disclose it to any third parties and to avoid the risk of the information being disclosed to any third parties.\n3. The Receiving Party agrees not to use the Information in any other way than set forth in this Agreement.\n 4. At any time, the Inventor/Disclosing Party is entitled to be informed about how the Receiving Party keeps the Information con\ufb01dential in relation to third parties.\n5. The Receiving Party undertakes not to reveal the Information to any person with whom he cooperates, to any of his employees or the like, in a way exceeding what is considered necessary or justi\ufb01able. If considered necessary or justi\ufb01able, the Receiving Party shall, before passing on the information to third parties, instruct such third parties about the con\ufb01dentiality of the Information, and they shall sign a con\ufb01dentiality and non-disclosure agreement.\n6. Before the Information can be handed over, wholly or partly, to third parties not mentioned in the above provision, the Receiving Party shall obtain Inventor\u2019s/Disclosing Party\u2019s written consent.\n7. The Receiving Party shall register all employees or others having gained insight into the Information. The register must be accessible to the Inventor/Disclosing Party.\n8. If not otherwise agreed in writing, the Receiving Party shall, at the request of the Inventor/ Disclosing Party, immediately return all material describing the Information, as stipulated in provision 1.\nIn the event of the following statement not being signed by the Inventor/Disclosing Party, the Receiving Party is not entitled to copy the Information:\nThe Disclosing Party hereby authorizes the Receiving Party to copy or otherwise reproduce the material disclosed to the extent necessary for an appropriate handling of the material.\n9. This agreement does not cover:\na. Technical information or other information which, at the time when the Inventor/ Disclosing Party provided the Receiving Party with the Information, was considered publicly known or later on becomes publicly known without the Receiving Party being liable for making it publicly known.\nb. Information being communicated to the Receiving Party in a legitimate way, either directly or indirectly via other parties than the Inventor/Disclosing Party. If the Receiving Party holds such information, please state it briefly below:\n10. Additional provisions:\nThe Receiving Party is held liable to the Inventor/Disclosing Party for damages in the event of breach of this Agreement. The Receiving Party is also held liable in case of breach of the Agreement by third parties to whom the Receiving Party has handed over the Information wholly or partly.\nAny disputes, arising out or relating to this Agreement, shall be settled by the ordinary courts in the Inventor's/Disclosing Party's home country and according to the legislation of the Inventor's/Disclosing Party's home country.\nLocation:\nDate:\nInventor/Disclosing Party:\n",
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"id": 90,
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"text": "Data Use and Non-Disclosure Agreement Concerning the Disclosure of Data for MICHIGAN\u2019S TRAUMA REGISTRY\nThe parties to this Agreement are the Michigan Department of Health and Human Services and _____________________________________________________________________________ (Reporting Entity). This Agreement is effective when the authorized representatives of each party have signed it.\nIn accordance with this Agreement, data are provided by the Reporting Entity to the Michigan Department of Health and Human Services (MDHHS) for the Michigan Trauma Registry.\nThe parties agree to the provisions specified in this Agreement and, as applicable, the Health Insurance Portability and Accountability Act (HIPAA), the Michigan Identity Theft Protection Act, and all other applicable public health, research, and confidentiality laws.\nThe data elements to be provided to MDHHS under this Agreement will be consistent with the required element designated by MDHHS and as identified in the Michigan Administrative Code R. 325.125 et. seq. The data provided to MDHHS will be used only for purposes of the Michigan Trauma Registry, consistent with Part 209 of the Public Health Code and the Michigan Administrative Code R 325.125 through 325.138.\nData in the Michigan Trauma Registry will be disclosed to Regional Trauma Networks through access to the Michigan Trauma Registry database. Individuals granted access to the Michigan Trauma Registry database will be required to execute user agreements with MDHHS. With regard to the data disclosed to MDHHS under this Agreement, the MDHHS agrees to:\n1. Use and disclose the data only in accordance with this Agreement, or as otherwise authorized by law;\n2. Notify Reporting Entity within a reasonable time prior to disclosing data that is required by law so that Reporting Entity may have an opportunity to object to such disclosure if necessary;\n3. Limit access to these data only to those MDHHS employees whose job responsibilities require access to the information;\n4. Use appropriate safeguards to prevent the use or disclosure of the information other than as provided by this Agreement;\n5. Report to the Reporting Entity within ten (10) business days of discovery any actual or suspected inappropriate use, disclosure, or breach of information from the Michigan Trauma Registry that involves data submitted under this Agreement;\n6. Make no attempt to identify or contact the individuals or entities within the data provided unless permitted in Part 209 of the Public Health Code or the Michigan Administrative Code R 325.125 through 325.138;\n7. Destroy all originals and copies of potentially identifiable information, in any format, in accordance with industry standards when no longer needed. This includes, but is not limited to: magnetic tapes, micro disk files, paper records, etc.;\n8. Clean computer hard drives (including, but not limited to, those stored in computers, laptops, printer, and copiers) and any portable storage media of any data received under this Agreement in accordance with industry standards before disposing of; and\n9. Not use the data provided to engage in any method, act, or practice which constitutes a commercial solicitation or advertisement of goods, services, or real estate to consumers.\nThis Agreement may be terminated upon sixty days (60) written notice of the non-terminating party by the terminating party.\nThis Agreement may be amended in a writing that is signed by each party\u2019s authorized representative.\nThe parties acknowledge and agree that the unauthorized use or disclosure of confidential information is punishable by imprisonment or fine or both under applicable state and federal laws specific to the data released.\nThe parties have read and understand the above conditions and acknowledge that by their authorized representative\u2019s signature below they agree to the terms and conditions above. Each party acknowledges that its authorized representative has the authority to execute this agreement its behalf.\nAUTHORIZED REPORTING ENTITY REPRESENTATIVE:\n___________________________________________________________________________\nPrint Name Title\n___________________________________________________________________________\nSignature Date\nAUTHORIZED MDHHS REPRESENTATIVE:\n___________________________________________________________________________\nPrint Name Title\n___________________________________________________________________________\nSignature Date\n",
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"id": 97,
"file_name": "dhs-nda.pdf",
"text": "DEPARTMENT OF HOMELAND SECURITY\nNON-DISCLOSURE AGREEMENT\nI, _______________________________________, an individual official, employee, consultant, or subcontractor of or to _____________________ (the Authorized Entity), intending to be legally bound, hereby consent to the terms in this Agreement in consideration of my being granted conditional access to certain information, specified below, that is owned by, produced by, or in the possession of the United States Government.\n(Signer will acknowledge the category or categories of information that he or she may have access to, and the signer\u2019s willingness to comply with the standards for protection by placing his or her initials in front of the applicable category or categories.)\nInitials:\nProtected Critical Infrastructure Information (PCII)\nI attest that I am familiar with, and I will comply with all requirements of the PCII program set out in the Critical Infrastructure Information Act of 2002 (CII Act) (Title II, Subtitle B, of the Homeland Security Act of 2002, Public Law 107-296, 196 Stat. 2135, 6 USC 101 et seq.), as amended, the implementing regulations thereto (6 CFR Part 29), as amended, and the applicable PCII Procedures Manual, as amended, and with any such requirements that may be officially communicated to me by the PCII Program Manager or the PCII Program Manager\u2019s designee.\nInitials:\nSensitive Security Information (SSI)\nI attest that I am familiar with, and I will comply with the standards for access, dissemination, handling, and safeguarding of SSI information as cited in this Agreement and in accordance with 49 CFR Part 1520, \u201cProtection of Sensitive Security Information,\u201d \u201cPolicies and Procedures for Safeguarding and Control of SSI,\u201d as amended, and any supplementary guidance issued by an authorized official of the Department of Homeland Security.\nInitials:\nOther Sensitive but Unclassified (SBU)\nAs used in this Agreement, sensitive but unclassified information is an over-arching term that covers any information, not otherwise indicated above, which the loss of, misuse of, or unauthorized access to or modification of could adversely affect the national interest or the conduct of Federal programs, or the privacy to which individuals are entitled under Section 552a of Title 5, as amended, but which has not been specifically authorized under criteria established by an Executive Order or an Act of Congress to be kept secret in the interest of national defense or foreign policy. This includes information categorized by DHS or other government agencies as: For Official Use Only (FOUO); Official Use Only (OUO); Sensitive Homeland Security Information (SHSI); Limited Official Use (LOU); Law Enforcement Sensitive (LES); Safeguarding Information (SGI); Unclassified Controlled Nuclear Information (UCNI); and any other identifier used by other government agencies to categorize information as sensitive but unclassified.\nI attest that I am familiar with, and I will comply with the standards for access, dissemination, handling, and safeguarding of the information to which I am granted access as cited in this Agreement and in accordance with the guidance provided to me relative to the specific category of information.\nI understand and agree to the following terms and conditions of my access to the information indicated above:\n1. I hereby acknowledge that I have received a security indoctrination concerning the nature and protection of information to which I have been provided conditional access, including the procedures to be followed in ascertaining whether other persons to whom I contemplate disclosing this information have been approved for access to it, and that I understand these procedures.\n 2. By being granted conditional access to the information indicated above, the United States Government has placed special confidence and trust in me and I am obligated to protect this information from unauthorized disclosure, in accordance with the terms of this Agreement and the laws, regulations, and directives applicable to the specifi c categories of information to which I am granted access.\n3. I attest that I understand my responsibilities and that I am familiar with and will comply with the standards for protecting such information that I may have access to in accordance with the terms of this Agreement and the laws, regulations, and/or directives applicable to the specifi c categories of information to which I am granted access. I understand that the United States Government may conduct inspections, at any time or place, for the purpose of ensuring compliance with the conditions for access, dissemination, handling and safeguarding information under this Agreement.\n4. I will not disclose or release any information provided to me pursuant to this Agreement without proper authority or authorization. Should situations arise that warrant the disclosure or release of such information I will do so only under approved circumstances and in accordance with the laws, regulations, or directives applicable to the specific categories of information. I will honor and comply with any and all dissemination restrictions cited or verbally relayed to me by the proper authority.\n5. (a) For PCII - (1) Upon the completion of my engagement as an employee, consultant, or subcontractor under the contract, or the completion of my work on the PCII Program, whichever occurs first, I will surrender promptly to the PCII Program Manager or his designee, or to the appropriate PCII officer, PCII of any type whatsoever that is in my possession.\n(2) If the Authorized Entity is a United States Government contractor performing services in support of the PCII Program, I will not request, obtain, maintain, or use PCII unless the PCII Program Manager or Program Manager\u2019s designee has first made in writing, with respect to the contractor, the certification as provided for in Section 29.8(c) of the implementing regulations to the CII Act, as amended.\n(b) For SSI and SBU - I hereby agree that material which I have in my possession and containing information covered by this Agreement, will be handled and safeguarded in a manner that affords sufficient protection to prevent the unauthorized disclosure of or inadvertent access to such information, consistent with the laws, regulations, or directives applicable to the specific categories of information. I agree that I shall return all information to which I have had access or which is in my possession 1) upon demand by an authorized individual; and/or 2) upon the conclusion of my duties, association, or support to DHS; and/or 3) upon the determination that my official duties do not require further access to such information.\n6. I hereby agree that I will not alter or remove markings, which indicate a category of information or require specific handling instructions, from any material I may come in contact with, in the case of SSI or SBU, unless such alteration or removal is consistent with the requirements set forth in the laws, regulations, or directives applicable to the specific category of information or, in the case of PCII, unless such alteration or removal is authorized by the PCII Program Manager or the PCII Program Manager\u2019s designee. I agree that if I use information from a sensitive document or other medium, I will carry forward any markings or other required restrictions to derivative products, and will protect them in the same matter as the original.\n7. I hereby agree that I shall promptly report to the appropriate official, in accordance with the guidance issued for the applicable category of information, any loss, theft, misuse, misplacement, unauthorized disclosure, or other security violation, I have knowledge of and whether or not I am personally involved. I also understand that my anonymity will be kept to the extent possible when reporting security violations.\n8. If I violate the terms and conditions of this Agreement, such violation may result in the cancellation of my conditional access to the information covered by this Agreement. This may serve as a basis for denying me conditional access to other types of information, to include classified national security information.\n9. (a) With respect to SSI and SBU, I hereby assign to the United States Government all royalties, remunerations, and emoluments that have resulted, will result, or may result from any disclosure, publication, or revelation of the information not consistent with the terms of this Agreement.\n(b) With respect to PCII I hereby assign to the entity owning the PCII and the United States Government, all royalties, remunerations, and emoluments that have resulted, will result, or may result from any disclosure, publication, or revelation of PCII not consistent with the terms of this Agreement.\n10. This Agreement is made and intended for the benefit of the United States Government and may be enforced by the United States Government or the Authorized Entity. By granting me conditional access to information in this context, the United States Government and, with respect to PCII, the Authorized Entity, may seek any remedy available to it to enforce this Agreement including, but not limited to, application for a court order prohibiting disclosure of information in breach of this Agreement. I understand that if I violate the terms and conditions of this Agreement, I could be subjected to administrative, disciplinary, civil, or criminal action, as appropriate, under the laws, regulations, or directives applicable to the category of information involved and neither the United States Government nor the Authorized Entity have waived any statutory or common law evidentiary privileges or protections that they may assert in any administrative or court proceeding to protect any sensitive information to which I have been given conditional access under the terms of this Agreement.\n11. Unless and until I am released in writing by an authorized representative of the Department of Homeland Security (if permissible for the particular category of information), I understand that all conditions and obligations imposed upon me by this Agreement apply during the time that I am granted conditional access, and at all times thereafter.\n12. Each provision of this Agreement is severable. If a court should find any provision of this Agreement to be unenforceable, all other provisions shall remain in full force and effect.\n13. My execution of this Agreement shall not nullify or affect in any manner any other secrecy or non-disclosure Agreement which I have executed or may execute with the United States Government or any of its departments or agencies.\n14. These restrictions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by Executive Order No. 12958, as amended; Section 7211 of Title 5, United States Code (governing disclosures to Congress); Section 1034 of Title 10, United States Code, as amended by the Military Whistleblower Protection Act (governing disclosure to Congress by members of the military); Section 2302(b)(8) of Title 5, United States Code, as amended by the Whistleblower Protection Act (governing disclosures of illegality, waste, fraud, abuse or public health or safety threats); the Intelligence Identities Protection Act of 1982 (50 USC 421 et seq.) (governing disclosures that could expose confidential Government agents); and the statutes which protect against disclosure that may compromise the national security, including Sections 641, 793, 794, 798, and 952 of Title 18, United States Code, and Section 4(b) of the Subversive Activities Act of 1950 (50 USC 783(b)). The definitions, requirements, obligations, rights, sanctions, and liabilities created by said Executive Order and listed statutes are incorporated into this agreement and are controlling.\n15. Signing this Agreement does not bar disclosures to Congress or to an authorized official of an executive agency or the Department of Justice that are essential to reporting a substantial violation of law.\n16. I represent and warrant that I have the authority to enter into this Agreement.\n17. I have read this Agreement carefully and my questions, if any, have been answered. I acknowledge that the briefing officer has made available to me any laws, regulations, or directives referenced in this document so that I may read them at this time, if I so choose.\nDEPARTMENT OF HOMELAND SECURITY\nNON-DISCLOSURE AGREEMENT\nAcknowledgement\nTyped/Printed Name: Government/Department/Agency/Business Address Telephone Number:\nI make this Agreement in good faith, without mental reservation or purpose of evasion.\nSignature:\nWITNESS:\nTyped/Printed Name: Government/Department/Agency/Business Address Telephone Number:\nSignature:\nThis form is not subject to the requirements of P.L. 104-13, \u201cPaperwork Reduction Act of 1995\u201d 44 USC, Chapter 35.\n",
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"text": "Non-Disclosure / Confidentiality Agreement\nPartner Ireland Insurance Limited\n-and-\n Individual(s) submitting information via the eHandshake on partnerre.com\nPARTIES\n(1) Partner Ireland Insurance Limited of 5th Floor, Block 1, The Oval, 160 Shelbourne Road, Dublin 4, Ireland and registered in Ireland with company number 395190.\n(2) Individual(s) submitting information via the interactive e-handshake on partnerre.com Each a \u201cParty\u201d and collectively referred to as the \u201cParties\u201d.\nBACKGROUND\nIn order to allow the Parties to engage in insurance mediation activities (the \u201cBusiness Under Discussion\u201d) the Parties have agreed to enter into this non-disclosure / confidentiality agreement (the \u201cAgreement\u201d) with respect to all Information (as hereinafter defined) furnished by one Party (the \u201cProviding Party\u201d) to the other (the \u201cReceiving Party\u201d). The execution of this Agreement does not constitute the creation of a business relationship.\nIT IS AGREED\n1. The Receiving Party agrees to treat all information provided by the Providing Party in connection with the Business Under Discussion to the Receiving Partner and/or any of its partners, directors, officers, employees, affiliates, insurers, agents, advisors or auditors (the \u201cRepresentatives\u201d), regardless of the manner in which it is so furnished, together with any analyses, compilations, data, studies or other documents or records, whether of an oral, written or electronically retrievable nature (collectively the \u201cInformation\u201d), as strictly confidential.\n2. The Receiving Party shall limit the possession and use of the Information to a \u201cneed-to-know\u201d basis among its Representatives.\n3. Information does not include, however, information which (a) is or becomes generally available to the public; (b) was available to the Receiving Party on a non-confidential basis prior to its disclosure by the Providing Party; (c) is independently developed by the Receiving Party; or (d) becomes available to the Receiving Party on a non-confidential basis after the date hereof from a third party which was not known by the Receiving Party to be subject to a confidentiality agreement with the Providing Party and which is not otherwise prohibited from transmitting the information to the Receiving Party.\n4. The Receiving Party agrees that the Information will be used solely for giving effect to the Business Under Discussion and further that it will not disclose to any person (i) the Information and (ii) the fact that the Information has been made available to the Receiving Party or that the Receiving Party have inspected any portion of the Information, for any reason or purpose whatsoever, unless the Providing Party has consented in writing to such disclosure or except as stated otherwise herein or as required by law, order, decree, regulation, or governmental agency request. The term \u201cperson\u201d as used in these provisions shall be broadly interpreted to include without limitation any corporation, company, partnership, individual or group.\n5. In the event that the Receiving Party is required by applicable law or regulation or by legal process to disclose any of the Information, the Receiving Party agrees that it will provide the Providing Party with prompt written notice of such request(s) prior to the required disclosure and the Providing Party shall use reasonable efforts, at its own expense, to seek a protective order or other appropriate remedy. If a protective order or other remedy is not obtained and a waiver hereunder is not received, the Receiving Party shall disclose only that portion of the Information which is legally required and shall use its best efforts to obtain assurances that confidential treatment will be accorded to such Information.\n6. If any of the Parties determine that they do not wish to proceed or continue with the Business Under Discussion, it will promptly advise the other Party of that decision in writing or by email. 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Any breach or threatened breach of this Agreement shall constitute a breach that may cause irreparable injury, not readily measurable in money, and for which the Providing Party, without waiving any other rights or remedies at law or in equity, shall be entitled to seek injunctive relief or other equitable relief. Any such right or remedy and any and all other rights or remedies provided for herein shall be cumulative and not exclusive and in addition to any and all other rights or remedies which the Providing Party may have under this Agreement or otherwise.\n9. The Parties agree that, in the event of loss or damage to the Providing Party as a result of breach of the provisions of this Agreement, the Receiving Party shall be liable only in respect of loss or damage resulting directly from the breach, and no liability will be accepted in respect of any special, indirect, incidental or consequential losses or damages whatsoever (including, but not limited to, lost profits or revenue) suffered by the Providing Party or any person connected with the Providing Party, arising out of the performance or breach of this Agreement, whether claims for said losses or damages are premised on contract, tort (including negligence), or otherwise.\n10. 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"file_name": "Generic-NDA-Pitch-Deck-Fire.pdf",
"text": "NON DISCLOSURE AGREEMENT\n(Generic NDA provided by Pitch Deck Fire)\nTHIS AGREEMENT is made and entered into as on _________________ (\u201cEffective Date\u201d), by and between ____________________, (\u201cthe Disclosing Party\u201d) and ___Pitch Deck Fire___, (\u201cthe Recipient\u201d) (collectively, \u201cthe Parties\u201d).\nPurpose for Disclosure (\u201cBusiness Purpose\u201d): Relevant information will be disclosed by the\nDisclosing Party to the Recipient for the purposes of providing a quote for services and for providing services, generally the completion of a pitch deck or similar materials by the Recipient for Disclosing Party\u2019s use at their discretion. Products of services also fall under this non-disclosure agreement, with the sole exception that the Recipient can use products of services as portfolio examples on the Pitchdeckfire.com website or otherwise, provided that the images are in a non-editable format, and scrubbed clean of branding and specific content (blurred out all logos, company and industry specific content), unless contrary written permission is given by the disclosing party.\nThe Parties hereby agree as follows:\n1. For purposes of this Agreement, \"Confidential Information\" shall mean any and all non-public information, including, without limitation, technical, developmental, marketing, sales, operating, performance, cost, know-how, business plans, business methods, and process information, disclosed to the Recipient. For convenience, the Disclosing Party may, but is not required to, mark written Confidential Information with the legend \"Confidential\" or an equivalent designation.\n2. All Confidential Information disclosed to the Recipient will be used solely for the Business Purpose and for no other purpose whatsoever. The Recipient agrees to keep the Disclosing Party\u2019s Confidential Information confidential and to protect the confidentiality of such Confidential Information with the same degree of care with which it protects the confidentiality of its own confidential information, but in no event with less than a reasonable degree of care. Recipient may disclose Confidential Information only to its employees, agents, consultants and contractors on a need-to-know basis, and only if such employees, agents, consultants and contractors have executed appropriate written agreements with Recipient sufficient to enable Recipient to enforce all the provisions of this Agreement. Recipient shall not make any copies of Disclosing Party\u2019s Confidential Information except as needed for the Business Purpose. At the request of Disclosing Party, Recipient shall return to Disclosing Party all Confidential Information of Disclosing Party (including any copies thereof) or certify the destruction thereof.\n3. All right title and interest in and to the Confidential Information shall remain with Disclosing Party or its licensors. Nothing in this Agreement is intended to grant any rights to Recipient under any patents, copyrights, trademarks, or trade secrets of Disclosing Party. ALL CONFIDENTIAL INFORMATION IS PROVIDED \"AS IS\". THE DISCLOSING PARTY MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR ITS ACCURACY, COMPLETENESS OR PERFORMANCE.\n4. The obligations and limitations set forth herein regarding Confidential Information shall not apply to information which is: (a) at any time in the public domain, other than by a breach on the part of the Recipient; or (b) at any time rightfully received from a third party which had the right to and transmits it to the Recipient without any obligation of confidentiality.\n5. In the event that the Recipient shall breach this Agreement, or in the event that a breach appears to be imminent, the Disclosing Party shall be entitled to all legal and equitable remedies afforded it by law, and in addition may recover all reasonable costs and attorneys' fees incurred in seeking such remedies. If the Confidential Information is sought by any third party, including by way of subpoena or other court process, the Recipient shall inform the Disclosing Party of the request in sufficient time to permit the Disclosing Party to object to and, if necessary, seek court intervention to prevent the disclosure.\n6. The validity, construction and enforceability of this Agreement shall be governed in all respects by the law of the state of Colorado. This Agreement may not be amended except in writing signed by a duly authorized representative of the respective Parties. This Agreement shall control in the event of a conflict with any other agreement between the Parties with respect to the subject matter hereof.\nIN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written.\nDisclosing Party: The Recipient:\nCompany: _______________________ Company: _____Pitch Deck Fire______\nName: __________________________ Name: _______Stacie Shaw__________\nRole: ___________________________ Role: _________Founder___________\nPhone Number: __________________ Phone Number: ___214-770-9216____\nSignature: Signature:\n_______________________________ _______________________________\n",
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"text": "Confidentiality & Non-Disclosure Agreement\n1. PARTIES AND DATE:\nThis agreement is made on: [Date] between:\n(1) [Company] of [Address] ; and\n(2) ICT Strategic Consulting, 56 Minnamorra Avenue, Earlwood NSW, 2206 Australia (\u201cICTSC\u201d).\n2. BACKGROUND\nThe parties intend to investigate a Project or Business Opportunity concerning:\nPotential investment, sale or acquisition of ICT businesses in Australia.\nFor this purpose (\u201cPurpose\u201d), the parties intend to make confidential information available to each other, and wish to protect this information in accordance with this agreement.\n3. DEFINITIONS AND INTERPRETATIONS\n\"Confidential Information\" of a disclosing party (\"Discloser\") means the following, regardless of its form and including copies made by the receiving party (\"Recipient\"), whether the Recipient becomes aware of it before or after the date of this Agreement:\n\uf0b7 all information treated by the Discloser as confidential; and\n\uf0b7 disclosed by the Discloser to the Recipient or of which the Recipient becomes aware, including but not limited to, the information specified in Schedule 1;\nexcept where that information is:\n\uf0b7 made public other than by the Recipient breaching this agreement;\n\uf0b7 legally required to be disclosed by the Recipient;\n\uf0b7 known to the Recipient free of any obligation to keep it confidential; or\n\uf0b7 Independently developed by the Recipient without use, directly or indirectly of Confidential Information received from the Discloser.\n\"Unauthorised Persons\" means officers, employees or advisers of the Recipient who are not required to have access to the Confidential Information for the Purpose, and any other person who is not a party to this agreement.\nReferences to clauses and parties are references to clauses of, and parties to, this agreement; references to things include parts of those things; references to persons include legal and natural persons; and words importing the singular include the plural and vice versa.\n4. CONFIDENTIAL INFORMATION OBLIGATIONS\nIn consideration of each party disclosing its Confidential Information to the other party for the Purpose, the Recipient must ensure that Confidential Information is:\n\uf0b7 maintained confidential with at least the standard of care that the Recipient maintains to protect its own confidential information;\n\uf0b7 not disclosed to any Unauthorised Person;\n\uf0b7 only used for the Purpose; and\n\uf0b7 not reproduced in any form except as required for the purpose.\nThe Recipient must ensure that access to Confidential Information is only given to those of its officers, employees and advisers who require access for the Purpose, and that those officers, employees and advisers are informed of the confidential nature of the Confidential Information and keep that information confidential. Parties to whom the information is imparted must be warned that included \u2018insider information,\u2019 regarding publicly listed and traded shares may preclude them from such trade in those shares.\nThe Confidential Information remains at all times the property of the Discloser, and other than as provided in this agreement, no rights in respect of the Confidential Information are granted or conveyed to the Recipient.\nIn the event that the Recipient is legally required to disclose any Confidential Information, the Recipient must immediately notify the Discloser of that fact.\nWithin 7 days of a written request by the Discloser, the Recipient must return all Confidential Information, and provide a signed certificate stating that all Confidential Information in the Recipient's possession or control has been returned.\n5. RELATIONSHIP OF PARTIES\nThe parties are independent parties and nothing in this agreement constitutes a joint venture, partnership or agency. Neither party has, nor may hold itself out as having, any obligation to perform any activity or to enter into any business relationship in relation to the purpose for which confidential information was made available.\nNeither party may make any public announcement or press release concerning the purpose or this agreement without the prior written consent of the other party.\n6. GENERAL\nThe parties make no warranties or representations to each other in relation to any Confidential Information including (without limitation) as to the accuracy or completeness of any Confidential Information.\nA power or right in this agreement may only be waived in writing, signed by the party to be bound by the waiver, and this agreement may only be amended or supplemented in writing executed by both parties.\nThe obligations in this agreement survive the termination or purported termination of this agreement.\nThis agreement is governed by the laws of New South Wales, Australia. 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"file_name": "IMOA%20Molybdenum%20Consortium%20NDA%20Agreement%20amended%20Jan%2008,%20valid%20March%2009%20onwards.pdf",
"text": "NON-DISCLOSURE AND NON-USE AGREEMENT (First Amendment, January 2008)\nThis Non-Disclosure and Non-Use Agreement (the \u201cAgreement\u201d) is made and entered into by and among\nTHE UNDERSIGNED INDIVIDUAL COMPANIES (each of them being referred to as \u201cReceiving Party\u201d).\nWHEREAS the Receiving Party intends to become party to the REACH Consortium Agreement of 1 January 2007 (the \u201cConsortium Agreement\u201d);\nWHEREAS, pursuant to the provisions of the Consortium Agreement, the Receiving Party will be provided with Materials for registration under Regulation of the European Parliament and of the Council concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (\u201cREACH\u201d);\nWHEREAS, Section 14 of the Consortium Agreement requires the signature by each Member of the Consortium of the present Non-Disclosure and Non-Use Agreement;\nNOW, THEREFORE, for and in consideration of the premises and covenants herein contained, it is agreed as follows:\n1. Definitions\nFor the purpose of the present Agreement, \u201cMaterial\u201d is defined as any data, test, study or any information in support of the Registration under REACH made available to the Consortium or generated or determined or used in any way by the Consortium to comply with the requirements of REACH and provided to the Receiving Party for the purpose of registration under REACH. This Material shall include, without limitation: (i) Data and/or Studies acquired, licensed, developed or contracted or obligated for by the Consortium pursuant to Section 10 of the Consortium Agreement; (ii) Registration Dossier - technical dossier comprising studies, including test results; study summaries; proposals for testing; classification and labelling; guidance on safe use; plus a chemical safety report; and (iii) draft Registration Dossier, interim and working documents related to the preparation of the Registration Dossier, know-how, technical information, researches, methods, practices, procedures, processes, formulas and more generally any information with respect to substances that is made available, in written or oral form, to the Receiving Party by the Consortium and/or the Consortium Members. Unless defined herein, the definitions in this Agreement shall be the same as those set forth in the Consortium Agreement.\n2. Non-disclosure and Restriction on Use\nThe Receiving Party agrees to retain the Material in confidence and not to use the Material for any purpose other than in accordance with the terms of this Agreement and of the Consortium Agreement.\nIn Particular, the Receiving Party undertakes (in addition and without prejudice to any commitments under the Consortium Agreement), that:\na. the Receiving Party shall not disclose the Material to any Third Party except with the Steering Committee\u2019s prior written consent and provided that no other legal disclosure requirement applies;\nb. the Material shall neither be copied, nor otherwise reproduced nor duplicated in whole or in part where such copying, reproduction or duplication have not been specifically authorized by the Consortium Agreement or otherwise approved in writing by the Steering Committee;\nThe Receiving Party acknowledges that the covenants of non-disclosure and non-use in this Agreement shall be effective in every country in the world.\nThe Receiving Party shall take all reasonable measures to protect the secrecy of and avoid disclosure or improper use of the Material, to prevent the material from falling into the public domain, and to protect it from falling into the possession of Third Parties. Such measures include, but shall not be limited to, the highest degree of care that the Receiving Party utilises to protect its own confidential information. In the event of loss or theft of any documents, items of work in progress, or any work products embodying Material, the Consortium Secretariat must be notified immediately by the Receiving Party, who shall cooperate fully in remedying same.\n3. Permitted Disclosure of Material\na. The Receiving Party shall solely disclose the Material to its affiliates, employees and persons in the Receiving Party\u2019s organization who (i) have responsibility for or are directly concerned with the purposes of this Agreement and of the Consortium Agreement; (ii) are subject to non-disclosure or confidentiality obligations to the Receiving Party (the Material constituting protected information for purposes of such obligations); and (iii) have been informed and are fully aware of the Receiving Party\u2019s obligations under this agreement and under the Consortium Agreement.\nb. The Receiving Party may provide its customers with (i) Safety Data Sheets as defined in Article 31 of REACH, (ii) relevant exposure scenarios, or (iii) other available and relevant information about the substance that is necessary to enable appropriate risk management measures to be identified and applied.\nc. The Receiving Party may disclose the Material if and to the extent that such disclosure is required by law or court order, provided that the Receiving Party notifies the Disclosing Party. Any disclosure of Data and/or Studies that could result in public disclosure of the Data and/or Studies shall only be permissible after prior approval from the Steering Committee or the IMOA Executive Committee.\nd. The Receiving Party and its Affiliates may use the Material for compliance with laws and regulations in other non-EU jurisdictions provided that the confidentiality of the Material is guaranteed and in compliance with the NDA. Any disclosure of the Data and/or Studies for the purposes of compliance with non-EU regulatory requirements that could result in public disclosure of the Data and/or Studies shall only be permissible after prior approval from the Steering Committee or the IMOA Executive Committee.\ne. For the avoidance of doubt, nothing in this Non-Disclosure Agreement shall prevent an Individual Member from supplying Data and/or Studies in its possession or control to a Governmental Authority where required to do so by law or regulation and where refusing to do so would require the Individual Member to violate that law or regulation and subject the Individual Member to fines or other sanction by the Governmental Authority.\n4. Exceptions to Non-Disclosure\nThe Receiving Party shall not be subject to the obligations of this Agreement with respect to Material which:\na. is or becomes known publicly through no wrongful act of the Receiving Party; or\nb. was already known to the Receiving Party at the time of disclosure hereunder as shown by the Receiving Party\u2019s prior written records; or\nc. is learned by the Receiving Party from a third party under no obligation to the Consortium; or\nd. is independently developed by an employee, agent, or consultant of the Receiving Party with no knowledge of disclosure hereunder;\ne. is approved for release by the Consortium Committee in compliance with Article 119 of REACH on electronic public access with the decision for submission of a Registration Dossier;\nf. is approved for release by written authorisation of the Steering Committee or the IMOA Executive Committee; or\ng. is publicly disclosed in accordance with the provisions of Section 15 of the Consortium Agreement.\n5. Term\nThis Agreement shall survive until the earlier of (i) such time as all the material disclosed hereunder becomes publicly known pursuant to Section 15 of the Consortium Agreement and made generally available without violation of this Agreement, or (ii) twelve (12) years from date of Registration.\n6. No Licence\nNothing in this Agreement is intended to grant any rights to the Receiving Party under any patent, copyright or any other intellectual property right, nor shall this Agreement grant the Receiving Party any rights in or to the material except as expressly set forth herein and in the Consortium Agreement.\n7. Indemnity\nThe Receiving Party acknowledges and agrees that any breach of this Agreement would cause immediate and irreparable injury to the Consortium and its Members. Should the Receiving Party violate any of the terms and conditions of this Agreement, the Consortium Members shall be entitled, in addition to any other remedies that maybe available, in law, in equity or otherwise, to obtain injunctive relief against the threatened breach of this Agreement or the continuation of any such breach, without the necessity of proving actual damages.\nIn addition, in case of violation of this Agreement, the Receiving Party may be expelled from the Consortium in accordance with the conditions provided in Section 4 of the Consortium Agreement.\n8. Waiver\nNo failure or delay by either party in exercising any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right hereunder.\n9. Severability\nIf any one or more of the provisions of this Agreement shall for any reason be invalid, illegal or unenforceable, such circumstance shall not affect any other provision of the Agreement and the Agreement shall continue in full force and effect and be construed as if such provision, to the extent that it is invalid, illegal or unenforceable, had never been contained herein or therein.\n10. Governing Law and disputes\nThis Agreement shall be governed by, and all disputes arising under or in connection with this Agreement shall be resolved in accordance with the laws of England and Wales.\n11. Amendment\nNo modifications, change, or waiver of this Agreement shall be valid unless made in writing and signed by authorised representatives of the Individual Members.\n12. Counterparts\nThis Agreement will be executed in a number of counterparts, which shall together constitute a single agreement. Each undersigned Receiving Party shall execute two (2) signature pages, retain one for its file and communicate the other to the Consortium Secretariat.\nIN WITNESS WHEREOF, the undersigned, by their duly authorised representative(s), have executed and delivered this Agreement.\nCOMPANY NAME:\nBy:\n(Signature)\n(Name)\nTITLE:\nDATE:\n",
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"text": "LAST MAN STANDS INTERNATIONAL NON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT is made on ____________________________________ (Date)\nBETWEEN\n1. Last Man Stands, (the \"Disclosing Party\"); and\n2. _____________, (the \"Receiving Party\"),\nCollectively referred to as the \"Parties\".\nRECITALS\nA. The Receiving Party understands that the Disclosing Party has disclosed or may disclose information relating to Last Man Stands which to the extent previously, presently, or subsequently disclosed to the Receiving Party is hereinafter referred to as \"Proprietary Information\" of the Disclosing Party.\nOPERATIVE PROVISIONS\n1. In consideration of the disclosure of Proprietary Information by the Disclosing Party, the Receiving Party hereby agrees: (i) to hold the Proprietary Information in strict confidence and to take all reasonable precautions to protect such Proprietary Information (including, without limitation, all precautions the Receiving Party employs with respect to its own confidential materials), (ii) not to disclose any such Proprietary Information or any information derived there from to any third person, (iii) not to make any use whatsoever at any time of such Proprietary Information except to evaluate internally its relationship with the Disclosing Party, and\n(iv) not to copy or reverse engineer any such Proprietary Information. The Receiving Party shall procure that its employees, agents and sub-contractors to whom Proprietary Information is disclosed or who have access to Proprietary Information sign a nondisclosure or similar agreement in content substantially similar to this Agreement. For a period of eighteen months following the execution of this agreement to the Receiving Party shall not, directly or indirectly hire, solicit, or encourage to leave the Disclosing Party employment, any employee, contractor or player of the Disclosing Party or hire any such employee or contractor who has left the Disclosing Parties employment, contractual engagement or player within one year of such employment or engagement, the Receiving Party. For a period of three years following the execution of this agreement, the contractor shall not start up his/her own cricket related business using the customer lists, trade secrets, inventions, innovations, processes, information, records and specifications of the Disclosing Party and/or used by the Disclosing party in connection with the operation of its business including, without limitation, the Disclosing parties business and product processes, methods, accounts and procedures.\n2. Without granting any right or license, the Disclosing Party agrees that the foregoing shall not apply with respect to any information after five years following the disclosure thereof or any information that the Receiving Party can document (i) is or becomes (through no improper action or inaction by the Receiving Party or any affiliate, agent, consultant or employee) generally available to the public, or (ii) was in its possession or known by it prior to receipt from the Disclosing Party as evidenced in writing, except to the extent that such information was unlawfully appropriated, or (iii) was rightfully disclosed to it by a third party, or (iv) was independently developed without use of any Proprietary Information of the Disclosing Party. The Receiving Party may make disclosures required by law or court order provided the Receiving Party uses diligent reasonable efforts to limit disclosure and has allowed the Disclosing Party to seek a protective order.\n3. Immediately upon the written request by the Disclosing Party at any time, the Receiving Party will return to the Disclosing Party all Proprietary Information and all documents or media containing any such Proprietary Information and any and all copies or extracts thereof, save that where such Proprietary Information is a form incapable of return or has been copied or transcribed into another document, it shall be destroyed or erased, as appropriate.\n4. The Receiving Party understands that nothing herein (i) requires the disclosure of any Proprietary Information or (ii) requires the Disclosing Party to proceed with any transaction or relationship.\n5. The Receiving Party further acknowledges and agrees that no representation or warranty, express or implied, is or will be made, and no responsibility or liability is or will be accepted by the Disclosing Party, or by any of its respective directors, officers, employees, agents or advisers, as to, or in relation to, the accuracy of completeness of any Proprietary Information made available to the Receiving Party or its advisers; it is responsible for making its own evaluation of such Proprietary Information.\n6. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. If any part, term or provision of this Agreement is held to be illegal or unenforceable neither the validity, nor enforceability of the remainder of this Agreement shall be affected. Neither Party shall assign or transfer all or any part of its rights under this Agreement without the consent of the other Party. This Agreement may not be amended for any other reason without the prior written agreement of both Parties. This Agreement constitutes the entire understanding between the Parties relating to the subject matter hereof unless any representation or warranty made about this Agreement was made fraudulently and, save as may be expressly referred to or referenced herein, supersedes all prior representations, writings, negotiations or understandings with respect hereto.\n7. This Agreement shall be governed by the laws of the jurisdiction in which the Disclosing Party is located (or if the Disclosing Party is based in more than one country, the country in which its headquarters are located) (the \"Territory\") and the parties agree to submit disputes arising out of or in connection with this Agreement to the non-exclusive of the courts in the Territory.\n[Receiving Party]\nSignature ___________________________\nName and Tile:_______________________\nAddress: ____________________________\n",
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"text": "MUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (the \"Agreement\") is entered into as of the ______ day of ________, ______ (the \"Effective Date\") by and between Anderson Cargo Services, Inc. having principal offices at 917 Lone Oak Road #400, Eagan, Minnesota 55121 and ______________________ having principal offices at _________________________________.\n1. Definition of Confidential Information. For purposes of this Agreement, \"Confidential Information\" shall mean information disclosed by the disclosing party (the \"Disclosing Party\") to the receiving party (the \"Receiving Party\") which relates to product plans, designs, costs, prices and names, finances, marketing plans, business opportunities, research, development, know-how, or personnel, including confidential information disclosed by third parties and information relating to any type of technology; provided that information disclosed by the Disclosing Party will be considered Confidential Information by the Receiving Party only if such information is conspicuously designated as \"Confidential\" (i) in writing, if communicated in writing, or (ii) confirmed in writing within thirty (30) days of disclosure, if disclosed orally or in other non-tangible form; and provided further that Confidential Information shall not include information that (A) is now or subsequently becomes generally available to the public through no fault or breach on the part of the Receiving Party; (B) the Receiving Party can demonstrate to have had rightfully in its possession prior to disclosure to the Receiving Party by the Disclosing Party; (C) is independently developed by the Receiving Party without the use of any Confidential Information; or (D) the Receiving Party rightfully obtains from a third party who has the right to transfer or disclose it.\n2. Non-Disclosure and Non-Use of Confidential Information. The Receiving Party shall not, without the prior written approval of the Disclosing Party in each instance or unless otherwise expressly permitted in this Agreement, 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. The Receiving Party shall carefully restrict access to the Confidential Information to those of its officers, directors and employees who clearly need such access in order to participate on behalf of the Receiving Party in the analysis and negotiation of a business relationship or any contract or agreement, or the advisability thereof, with the Disclosing Party and who are bound by written confidentiality agreements that protect third party information. 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"text": "Mutual Non-Disclosure Agreement\n THIS MUTUAL NON DISCLOSURE AGREEMENT is made and entered into this ____day of _________, 20______ between Product Development Experts, Inc. with address at; 2440 SE Federal Hwy., Suite 101-P Stuart FL 34994 and _______________________________________________________________________ (Inventor), with address at; __________________________________________________________________________________\nPurpose. The parties wish to explore a business opportunity of mutual interest and in connection with this opportunity, each party may disclose to the other party certain confidential technical and business information which the disclosing party desires the receiving party to treat as confidential.\n\"Confidential Information\" means any information disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, including without limitation documents, prototypes, samples, plant and equipment, research, product plans, products, services, customer lists, software, developments, inventions, processes, designs, drawings, engineering, hardware configuration, marketing materials or finances, which is designated as \"Confidential,\" \"Proprietary\" or some similar designation. Information communicated orally shall be considered Confidential Information if such information is confirmed in writing as being Confidential Information within a reasonable time after the initial disclosure. Confidential Information may also include information disclosed to a disclosing party by third parties. Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party's files and records immediately prior to the time of disclosure; (iv) is obtained by the receiving party from a third party without a breach of such third party's obligations of confidentiality; (v) is independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information, as shown by documents and other competent evidence in the receiving party's possession; or (vi) is required by law to be disclosed by the receiving party, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure.\nNon-use and Non-disclosure. Each party shall not use the Confidential Information of the other party for any purpose except to evaluate and engage in discussions concerning a potential business relationship between the parties. Neither party shall disclose any Confidential Information of the other party to third parties. If any party makes copies of the Confidential Information of the other party, such copies shall also constitute Confidential Information and any and all confidential markings on such documents shall be maintained. Neither party shall reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the other party's Confidential Information and which are provided to the party hereunder.\nMaintenance of Confidentiality. Each party shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own most highly confidential information, and shall promptly notify the disclosing party of any misuse or misappropriation of Confidential Information of which it becomes aware. Each party shall disclose Confidential Information only to those officers, directors, employees and contractors who are required to have the information in order to evaluate or engage in discussions concerning the contemplated business relationship, and such party shall remain responsible for compliance with the terms of this Agreement by its officers, directors, employees and contractors.\nNo Obligation. Nothing herein shall obligate either party to proceed with any transaction between them, and each party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement concerning the business opportunity.\nNo Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED \"AS IS.\" NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE.\nPaid For Work. All paid for information, work, designs, ideas will become the property of the payor (the person or company paying).\nReturn of Materials. All documents and other tangible objects containing or representing Confidential Information which have been disclosed by either party to the other party, and all copies thereof which are in the possession of the other party, shall be and remain the property of the disclosing party and shall be promptly returned to the disclosing party upon the disclosing party's written request.\nNo License. Nothing in this Agreement is intended to grant any rights to either party under any patent, mask work right or copyright of the other party, nor shall this Agreement grant any party any rights in or to the Confidential Information of the other party except as expressly set forth herein.\nTerm. The obligations of each receiving party hereunder shall survive for a period of five years after the disclosure of the Confidential Information or until such time as all Confidential Information of the other party disclosed hereunder becomes publicly known and made generally available through no action or inaction of the receiving party, whichever is earlier. Parties agree to honor all patent protections.\nRemedies. Each party agrees that any violation or threatened violation of this Agreement may cause irreparable injury to the other party, entitling the other party to seek injunctive relief in addition to all legal remedies.\nChoice of Laws and Forum. The interpretation and enforcement of this Agreement shall be governed by the laws of the State of Florida, U.S.A., as it applies to a contract executed, delivered, and performed solely in such state. Both PARTIES agree that all disputes concerning the interpretation and enforcement of this Agreement shall be heard by a court of competent jurisdiction in the State of Florida, U.S.A. Furthermore, both PARTIES hereby consents to personal jurisdiction in the State of Florida, U.S.A., for any dispute arising out of a violation of this Agreement, or any attempt to recover losses incurred on such dispute.\nMiscellaneous. Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party. Any attempted assignment in violation of this Section 11 will be null and void. This Agreement shall be governed by the laws of the State of Florida, without reference to conflict of laws principles. This document contains the entire agreement between the parties with respect to the subject matter hereof, and neither party shall have any obligation, express or implied by law, with respect to trade secret or proprietary information of the other party except as set forth herein. The invalidity or unenforceability of any provision of this Agreement, or any of its terms or provisions, will not affect the validity of this Agreement as a whole, which will at all times remain in full force and effect. A failure to enforce any provision of this Agreement will not constitute a waiver thereof or of any other provision. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties hereto. Any notices required to be given under this agreement shall be deemed given upon the earlier of receipt of five (5) days after mailing by certified mail, return receipt requested, or hand delivery by messenger or express service, to the addresses stated on the first page, or to such other address as the either party may specify to the other in writing form time to time.\nProduct Development Experts, Inc. ____________________________________, Inventor\nBy: ________________________, President Signed:________________________________\nSigned: ______________________________ Print Name:____________________________\nDate; ________________________________ Title:__________________________________\n",
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DEFINITIONS\n\u201cPurpose\u201d shall mean the purpose referred to in recital A.\n\u201cConfidential Information\u201d shall mean all information in whatever form, whether imparted orally or in writing or by other medium including all copies of the same which one party hereto discloses to the other pursuant to the Purpose.\n\u201cDisclosing Party\u201d shall mean a party hereto who discloses its Confidential Information to the other Party hereto.\n\u201cReceiving Party\u201d shall mean a party hereto who receives Confidential Information.\n2. USE OF CONFIDENTIAL INFORMATION\n2.1. A Receiving Party agrees:\n2.1.1. to keep the Confidential Information of the other strictly confidential and not copy, supply or make the same available to any person other than as permitted in Clauses 2.1.2 and 2.1.3 below;\n2.1.2. to use the Confidential Information of the other solely in, and to the extent necessary for the Purpose and not to copy or use any Confidential Information of the other save to the extent necessary for the Purpose;\n2.1.3. not to disclose any Confidential Information to any person or entity other than to such of its employees who need to know for the Purpose (\u201cPermitted Disclosees\u201d), provided that the Receiving Party shall ensure that its Permitted Disclosees keep all Confidential Information confidential and only use it on the terms of this Agreement, as if such Permitted Disclosees were party to this Agreement.\n3. CARE\n3.1. Without prejudice to the generality of Clause 2, the Receiving Party shall exercise no less a degree of care in protecting the Confidential Information than which it uses to protect its own information of like sensitivity and importance.\n4. EXCLUSIONS\n4.1. The provisions of this Agreement shall not apply to information:\n4.1.1. publicly available prior to the date of this Agreement or that is made publicly available on or after the date of this Agreement by the Disclosing Party without restriction;\n4.1.2. that is independently obtained by the Receiving Party without breach by it of any obligation of confidentiality;\n4.1.3. already in the Receiving Party's possession and was lawfully received from sources other than the Disclosing Party;\n4.1.4. which is required to be disclosed by law, provided that, to the extent the Receiving Party is not prohibited from doing so by law, it undertakes to give the Disclosing Party not less than two business days\u2019 notice of such requirement of disclosure and, to such extent, will make such disclosure in the manner and with the content agreed by the Disclosing Party.\nIf any portion of Confidential Information falls within any of the above exceptions, the remainder shall continue to be subject to the restrictions of this Agreement.\n5. COMPLETENESS OF INFORMATION\n5.1. The Confidential Information is disclosed on an AS IS basis. Neither party makes any warranties expressed or implied either regarding the sufficiency or completeness of the Confidential Information for any purpose or regarding any infringements which may arise from the use of the Confidential Information.\n6. RIGHTS\n6.1. Neither party shall acquire any intellectual property rights or other right, title or interest in any Confidential Information of the other as a result of or in connection with this Agreement.\n6.2. Except as provided herein, no right or license whatsoever, either expressed or implied, is granted to either party pursuant to this Agreement under any patent, patent application, trademark, copyright or other proprietary right now or hereafter owned or controlled by the other party.\n7. RETURN OF CONFIDENTIAL INFORMATION\n7.1. Each party shall forthwith upon request by the other return to the other all Confidential Information (including, without limitation, all summaries, copies and excerpts of Confidential Information), and other information, given to it by the other and shall expunge and destroy all Confidential Information from any equipment or other device in its possession or control. Furthermore, the receiving party shall destroy all copies of analyses, compilations, studies or other documents or derivative works which contain any Confidential Information. Each party shall on request provide a letter signed by a director confirming that it has complied with this clause.\n8. NO WAIVER AND REMEDIES\n8.1. Delay or failure of either party to insist upon or enforce strict performance of any provision of this Agreement or to exercise any right, power or remedy under this Agreement shall not operate as a waiver of that provision, right, power or remedy or preclude its exercise later and no single or partial exercise thereof shall preclude any further exercise thereof.\n8.2. Without prejudice to any other rights or remedies which the other party may have (whether or not expressly provided or contemplated in this Agreement), each party acknowledges and agrees that damages may not be an adequate remedy for breach by it of the provisions of this Agreement, and accordingly it agrees that (subject, where applicable, to the discretion of the court) the other party shall be entitled to the remedies of injunction, specific performance and any other equitable relief for any threatened or actual breach of such provisions and no proof of special damages shall be necessary for its enforcement.\n8.3. (Notwithstanding Clause 8.2) each party shall indemnify and keep indemnified the other party against any and all liabilities, claims, expenses, losses and damages suffered or incurred by that other party as a result of any breach by it of its obligations under this Agreement.\n9. GENERAL\n9.1. Each party confirms that it is entering into this Agreement as principal and not as agent or broker for any other party.\n9.2. Neither party shall assign or transfer this Agreement or any part thereof to any other party\n9.3. No change, amendment or modification of any provision of this Agreement shall be valid or binding on the parties unless made in writing and signed by a duly authorised representative of each of the parties.\n9.4. This Agreement shall apply without limit of time to all Confidential Information disclosed in connection with the Purpose.\n9.5. Headings are inserted in this Agreement for convenience only and no account shall be taken of headings in construing this Agreement.\n9.6. If any part or any provision of this Agreement shall to any extent prove invalid or unenforceable in law the remainder of such provision and all other provisions of this Agreement shall remain valid and enforceable to the fullest extent permissible by law, and such provision shall be deemed to be omitted from this Agreement to the extent of such invalidity or unenforceability. The remainder of this Agreement shall continue in full force and effect and the parties shall negotiate in good faith to replace the invalid or unenforceable provision with a valid, legal and enforceable provision which has an effect as close as possible to the provision or terms being replaced.\n9.7. The parties agree that the construction, validity and performance of this Agreement shall be governed by and construed under English Law, and for all matters arising under, out of, or in connection with the Agreement, they shall submit themselves to the exclusive jurisdiction of the English Courts.\nSIGNED by the duly authorised representatives of the parties on the date written at the beginning of this Agreement.\nFor and on behalf of\nAcumen Business Systems Ltd.\nName\nSigned\nFor and on behalf of\nName\nSigned\n",
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"text": "NON DISCLOSURE AGREEMENT (page 1 of 3)\nTHIS AGREEMENT is made between the parties named at the end of this document.\nWHEREAS, both parties may provide certain confidential and proprietary information to each other in connection with the business purposes described in Exhibit A attached hereto (\"the Business Purpose\") and each desires that any such information provided shall be kept confidential by the other party; and\nWHEREAS, in consideration of the disclosure of such information each party is willing to keep the other party's information confidential in accordance with the terms and conditions set forth in this Agreement.\nNOW IT IS HEREBY AGREED AS FOLLOWS:\n1. Confidentiality\nEach party may use the information received from the other party hereunder and may provide such information to its parent corporation or any other subsidiaries thereof and their respective employees as applicable for their use only in connection with the Business Purpose.\nEach party agrees that, for a period of 5 years from receipt of information from the other party hereunder, such party shall use the same means it uses to protect its own confidential and proprietary information to prevent the disclosure and to protect the confidentiality of both:\ni) written information received from the other party which is marked or identified as \"confidential\"; and\nii) oral or visual information identified as confidential at the time of disclosure which is reduced to written form and provided to the other in such written form promptly after such oral or visual disclosure,\nhereinafter collectively referred to as \"the Information\".\nThe foregoing shall not prevent either party from disclosing Information which is:\ni) already known by the recipient party prior to the disclosure thereof with no obligation of confidentiality; or\nii) publicly known or becomes publicly known not due to any unauthorised act of the recipient party; or\niii) rightfully received from a third party; or\niv) independently developed by the recipient party without use of the other party's Information; or\nv) disclosed without similar restrictions by the party owning the Information to any third party; or\nvi) approved by the other party for disclosure; or\nvii) required to be disclosed pursuant to a governmental or legal requirement provided that the disclosing party gives to the other party written notice of such requirement prior to any such disclosure.\nviii) publicly known or becomes publicly known not due to any unauthorised act of the recipient party; or\nix) rightfully received from a third party; or\nx) independently developed by the recipient party without use of the other party's Information; or\nxi) disclosed without similar restrictions by the party owning the Information to any third party; or\nxii) approved by the other party for disclosure; or\nxiii) required to be disclosed pursuant to a governmental or legal requirement provided that the disclosing party gives to the other party written notice of such requirement prior to any such disclosure.\n2. Return of Information\nUpon completion of the Business Purpose and/or upon written request of the party providing the Information, the other party shall within 14 days return all copies of the Information to the providing party or certify in writing that all copies of the Information have been destroyed. Nothing in this clause shall affect the right of either party voluntarily to return the Information, or any part thereof, to the other party at any time.\n3. No Warranty/Liability\nNeither party makes any warranty, express or implied, with respect to the Information. Neither party shall be liable to the other or to any other person hereunder for amounts representing loss of profits or loss of business or indirect, consequential or punitive damages of the other or of such other person in connection with the provision or use of the Information hereunder.\n4. No Further Rights\nNothing contained in this Agreement shall be construed as granting or conferring any rights by licence or otherwise in the Information except as provided herein.\n5. Business Purpose\nThe parties expressly agree that the provision of Information hereunder and any discussions held in connection with the Business Purpose shall not prevent either party from pursuing similar discussions with third parties provided that no breach of this Agreement is so occasioned or oblige that party to take, continue or forego any action relating to the Business Purpose. Any forecasts or similar material provided by either party to the other shall not constitute any commitments.\n6. Injunctive Rights\nEach party acknowledges and agrees that the Information is the confidential and/or proprietary and/or trade secret information of the other and the unauthorised use or disclosure of the Information could cause irreparable harm and significant injury to the other party for which that other party would have no adequate remedy at law. Therefore, each party shall have the right, in addition to any other rights it may have at law or in equity, to seek and obtain immediate injunctive relief in respect of any breach or potential breach of this Agreement by the other.\n7. Media Releases\nNo media releases, public announcements or public disclosure by either party relating to this Agreement, its subject matter or the Information, including but not limited to promotional or marketing, shall be made without the prior written consent of the other party.\n8. General\n8.1 Notices\nAny notices required under this Agreement shall be in writing and posted by registered mail return receipt requested to the applicable address indicated in Exhibit A.\n8.2 Entire Agreement\nThis Agreement and any attachments hereto:\ni) are the complete and exclusive statement between the parties with respect to the protection of the confidentiality of the Information; and\nii) supersede all related discussions and other communications between the parties; and\niii) may only be modified in writing by authorised representatives of the parties.\n8.3 Governing Law\nThis Agreement shall be governed by and interpreted in accordance with the law of England and shall be subject to the exclusive jurisdiction of the courts of England.\nAS WITNESS WHEREOF the parties named below have caused this Agreement to be signed and delivered by its duly authorised representative on this date: \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026..\nFor and on behalf of For and on behalf of\niTagg Limited \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\n(herein known as \u201cParty 1\u201d) (herein known as \u201cParty 2\u201d)\nAddress Address\n3rd Floor\n12 Gough Square\nLondon\nEC4A 3DW\nEngland\nCompany number 4344060 Company number..............................\nSigned Signed................................................\nName Steve Procter Name..................................................\nTitle Director Title....................................................\nEXHIBIT A\n1. Business Purpose:\nAll business related support services, as well as affiliate, reseller and introducer deals and all commercial and business opportunities. For the purpose of clarity, all information and discussions related to service and product prices, costs, commissions, fees and other monetary matters are also covered under this agreement and to be kept confidential. This includes any prices, costs, commissions, fees or other monetary information offered by one party to the other even if not accepted, as well as any prices, costs, commissions, fees or other monetary information that are accepted by both parties and drawn into a subsequent contract between the parties.\n2. Addresses for Notices:\na) Party 1: As above\nb) Party 2: As above (insert alternative address and contact name below if necessary)\n",
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"text": "CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis Confidentiality and Non-Disclosure Agreement (\u201cAgreement\u201d) is entered into on [INSERT DATE], 2016 (\u201cEffective Date\u201d), by and between Media News Group, Inc. and its subsidiaries and affiliates (collectively, the \u201cDisclosing Party\u201d) and [NAME OF COMPANY], and its subsidiaries and affiliates (collectively, the \u201cRecipient\u201d). Disclosing Party and Recipient may each be referred to herein as a \u201cParty\u201d and together as the \u201cParties\u201d to this Agreement.\nRECITALS\nWHEREAS, for the purpose of assisting the Recipient in evaluating the merits of a potential investment in or other financing of the Disclosing Party (the \u201cPurpose\u201d), Recipient wishes to receive certain information that the Disclosing Party desires to keep confidential relating to its business plan, financial matters, and products and/or services currently under development; and\nWHEREAS, the Disclosing Party desires to disclose such information to the Recipient, subject to the terms and conditions of this Agreement.\nNOW, THEREFORE, in consideration of the foregoing and the mutual covenants, representations, warranties, agreements and promises hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree to the foregoing and as follows:\n1. The term \u201cConfidential Information\u201d shall mean any confidential, proprietary, financial or otherwise non-public information, in written or electronic form, relating to the Disclosing Party, or the Purpose that is disclosed before, on or after the Effective Date, by the Disclosing Party to the Recipient or its affiliates, or to any of such Recipient\u2019s or its affiliates\u2019 employees, officers, directors, partners, shareholders, agents, attorneys, accountants or advisors (collectively, \u201cRepresentatives\u201d), whether disclosed or accessed in written, electronic or other form, including, without limitation: (a) information concerning the Disclosing Party\u2019s and its affiliates\u2019 business affairs, finances, forecasts, sales and other financial results, records and budgets, and business, marketing, development, sales and other commercial strategies; and (b) notes, analyses, compilations, reports, forecasts, data, statistics, summaries, interpretations and other materials prepared by or for Recipient or its Representatives that contain, are based on, or otherwise reflect or are derived, in whole or in part, from any of the foregoing. Confidential Information provided by Disclosing Party must be expressly marked or designated in writing by the Disclosing Party in a manner to indicate its confidential, proprietary or otherwise non-public nature.\n2. Recipient shall protect and safeguard the confidentiality of all such Confidential Information with at least the same degree of care as the Recipient would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care to protect and safeguard the confidentiality of all such Confidential Information.\n3. Recipient shall not, and shall cause its Representatives not to, (a) disclose all or any portion of Confidential Information to any third parties (other than to its Representatives who need to know the Confidential Information to assist Recipient in its evaluation of the Purpose), or (b) use or permit any Confidential Information to be accessed or used for any purpose other than for the evaluation of the Purpose. Recipient will be responsible for any breach of the terms of this Agreement caused by its Representatives. Notwithstanding anything to the contrary contained in this Agreement, Disclosing Party acknowledges and agrees that (a) the Recipient is expressly authorized to disclose the Confidential Information to certain lenders and investors, in furtherance of Recipient\u2019s performance of its obligations with respect to the Purpose and (b) under no circumstances will Recipient have any liability for any disclosure by such lenders or investors of any of the Confidential Information.\n4. Except as otherwise provided in this Agreement, without the prior written consent of the Disclosing Party, Recipient shall not disclose to any person or entity (other than its Representatives who are involved in its evaluation of the Purpose) any information with respect to the occurrence or content of any discussions or negotiations between the Parties.\n5. Recipient may disclose the Confidential Information in the event and to the extent Recipient reasonably believes any Confidential Information is required to be disclosed by Recipient under the terms of: (i) a valid and effective subpoena; (ii) a statute or regulation binding upon Recipient; (iii) an order issued by a court of competent jurisdiction; or (iv) by a demand or information request from an executive, regulatory or administrative agency or other governmental authority. Recipient shall endeavor to promptly notify the Disclosing Party of the existence, terms and circumstances surrounding such potential disclosure unless recipient reasonably believes that applicable law prohibits Recipient from informing the Disclosing Party of the potential disclosure.\n6. Recipient understands and agrees that neither the Disclosing Party nor any person or entity delivering the Confidential Information on behalf of Disclosing Party is making any representation or warranty, express or implied, as to the accuracy or completeness of any information furnished or to be furnished by it to Recipient (any representation or warranty with respect thereto must be set forth or provided for in a definitive agreement between the parties, if any is entered into in connection with the Purpose or certification from Disclosing Party).\n7. For purposes of this Agreement, \u201cConfidential Information\u201d shall not include any information which (a) is or becomes publicly available, other than through disclosure by Recipient in violation of this Agreement, (b) was known or available to Recipient prior to disclosure pursuant hereto, (c) was independently developed by Recipient without reference to the Confidential Information disclosed to it pursuant hereto, or (d) in the future is received from a third party who, to the knowledge of Recipient at the time of disclosure, is under no obligation of confidentiality with respect thereto.\n8. Recipient hereby further agrees that, in the event of its breach or threatened breach of this Agreement, the Disclosing Party would suffer irreparable harm and the Disclosing Party\u2019s remedies shall include, in addition to any other remedies available at law or in equity, equitable remedies such as specific performance and injunctive relief and shall not be limited to monetary damages. Specifically, the Disclosing Party shall be entitled to seek immediate injunctive relief prohibiting such violation.\n9. Nothing contained in this Agreement shall be construed as granting or conferring any rights by way of license or otherwise in or to any Confidential Information disclosed pursuant hereto. The disclosure or receipt of information pursuant hereto in no way obligates either Party to agree to any business transaction, whether or not relating to the Purpose.\n10. Neither Party may assign, transfer or sell any of its rights under this Agreement, or delegate any of its obligations hereunder without the prior written consent of the other Party. Each Party understands and agrees that no failure or delay by the other in exercising any of its rights or remedies hereunder will operate as a waiver thereof, nor will any waiver in any instance constitute a waiver with respect to any other instance.\n11. Upon request of the Disclosing Party (which request may be made at any time upon reasonable notice), Recipient will destroy (or, if stored electronically, purge) or deliver to the Disclosing Party all copies of written Confidential Information (except for that portion of the Confidential Information that may be found in analysis, compilation, or other documents prepared by Recipient) in Recipient\u2019s possession. That portion of the Confidential Information that may be found in analysis, compilations and other documents prepared by Recipient will continue to be subject to the terms of this Agreement or shall be destroyed (or, if stored electronically, purged). Notwithstanding the foregoing, Recipient may retain copies of Confidential Information that it reasonably believes it is required to retain under applicable laws, banking regulations and internal policies of which relate to any services provided to the Disclosing Party. This Agreement shall terminate upon the earliest of (i) one (1) year from the date hereof, (ii) the date all Confidential Information is destroyed by Recipient or returned to the Disclosing Party, or (iii) upon the closing of any transaction between Recipient and the Disclosing Party for credit accommodations or banking services, at which time duties of confidentiality shall be determined by the transaction agreements and applicable law.\n12. If any provision of this Agreement is determined to be in violation of applicable law, then such provision shall be void and the other provisions of this Agreement shall remain in full force and effect. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof. This Agreement shall be interpreted in accordance with the laws of the State of New York without regard to the principles of conflict of laws to the extent that such principles would permit or require the application of laws of another jurisdiction. Any suit, action or proceeding arising out of or relating to this Agreement shall be brought in the federal or state courts located in New York, New York, and both Parties consent to jurisdiction and venue in such courts for purposes of any suit, action or proceeding arising out of or relating to this Agreement.\n[SIGNATURE PAGE FOLLOWS]\nIN WITNESS WHEREOF, the Parties hereto have executed, or caused to be executed by their duly authorized representatives, this Agreement as of Effective Date.\nDISCLOSING PARTY RECIPIENT\nMedia News Group, Inc. [INSERT COMPANY NAME]\nBy: By:\nName: Name:\nTitle: Title:\n",
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"text": "Non Disclosure Agreement\nRef M E Benson\nAnd\n Urban Wind Turbines\u2122\nNon Disclosure Agreement1\nDATE: [ \u2026\u2026\u2026\u2026\u2026 ]2\nPARTIES:3\n(1) [MEB Engineering & Commercial Services Ltd], a company incorporated in [ U K] (Nr 52109405 ) having its registered office at [Old Pages Cottage c / o P O Box 2184 Maids Moreton Buckingham MK18 9AZ ] (\u201c The Discloser \u201c)4; and\n(2) [ ], a company incorporated in [England and Wales] (registration number ) having its registered office at [\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026 ], (the \u201cRecipient\u201d).\nAGREEMENT:\n1. Definitions\nIn this Agreement:\n\u201cAgreement\u201d means this non disclosure agreement and any amendments to it from time to time;\n\u201cConfidential Information\u201d means:\n[(a) any information disclosed by [or on behalf of] the Discloser to the Recipient [during the Term / before the end of the Term] (whether disclosed in writing, orally or otherwise) that at the time of disclosure: (i) was marked as \u201cconfidential\u201d; or (ii) should have been reasonably understood by the Recipient to be confidential;]\n[(b) the terms [(but not the existence)] of this Agreement; and]5\n[(c) [specify other confidential information here];]\n\u201cPermitted Purpose\u201d means input with respect to Purpose being input with respect to input with respect to Urban Wind Turbines \u201c TM \u201c and\n\u201cTerm\u201d means the term of this Agreement.\n2. Term\nThis Agreement will come into force on the [date of its execution]6 and will continue in force [indefinitely, unless and until terminated in accordance with Clause [5] / until [date] [event], upon which it will terminate automatically, unless terminated in accordance with Clause [5]].\n3. Confidentiality obligations\n3.1 The Recipient agrees and undertakes:\n(a) that it will keep all Confidential Information strictly confidential and will not disclose any part of it to any other person without the Discloser's prior written consent[, and then only under conditions of confidentiality no less onerous than those contained in this Agreement];\n(b) that it will use the same degree of care to protect the Confidential Information as it uses to protect its own confidential information of a similar nature, being at least a reasonable degree of care; and\n[(c) that it will act in good faith at all times in relation to the Confidential Information, and will not use any of the Confidential Information for any purpose other than the Permitted Purpose.]\n3.2 Notwithstanding Clause [3.1(a)], the Recipient may disclose the Confidential Information to its [officers, employees, professional advisers, insurers, agents and sub-contractors] [who have a need to have access to the Confidential Information for the performance of their work with respect to the Permitted Purpose and] who are bound by a written agreement or professional obligation to protect the confidentiality of the Confidential Information.\n3.3 This Clause [3] imposes no obligations upon the Recipient with respect to Confidential Information which:\n(a) is known to the Recipient before disclosure by [or on behalf of] the Discloser, and is not subject to any obligation of confidentiality;\n(b) is or becomes publicly known through no act or default on the part of the Recipient; or\n[(c) is obtained by the Recipient from a third party in circumstances where the Recipient has no reason to believe that there has been a breach of a duty of confidence.]\n3.4 The restrictions in this Clause [3] do not apply to the extent that any Confidential Information is required to be disclosed by any law or regulation, judicial or governmental request or order, or pursuant to the disclosure requirements relating to the listing of the stock of the Recipient on any recognised stock exchange.\n4. Warranties\n4.1 The Recipient warrants to the Discloser that it has the legal right and authority to enter into and perform its obligations under this Agreement.\n4.2 The Discloser warrants to the Recipient that it has the legal right and authority to enter into and perform its obligations under this Agreement.\n4.3 All of the parties' warranties and representations in respect of the subject matter of this Agreement are expressly set out in the terms of this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.\n5. Termination\n5.1 [Either party] may terminate this Agreement [forthwith] at any time by giving written notice of termination to the other party.\n5.2 Upon termination:\n[(a) the Recipient will immediately cease to use the Confidential Information; and]\n(b) all the provisions of this Agreement will cease to have effect, save that the following provisions of this Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses [1, 3, 5.2 to 5.4, and 6].\n[5.3 Within [5] working days following the date of effective termination of this Agreement the Recipient will destroy or return to the Discloser (at the Discloser's option) all media containing Confidential Information, and will irrevocably delete and remove all Confidential Information from its computer systems.]\n5.4 Termination of this Agreement will not affect either party\u2019s accrued rights as at the date of termination.\n6. General\n6.1 No breach of any provision of this Agreement will be waived except with the express written consent of the party not in breach.\n6.2 If a Clause of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of this Agreement will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).\n6.3 This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.7\n6.4 Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise dispose of or deal in this Agreement or any rights or obligations under this Agreement.\n6.5 This Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.8\n6.6 Nothing in this Agreement shall exclude or limit any liability for a party for fraud or fraudulent misrepresentation, or any other liability which may not be excluded or limited under applicable law. Subject to this:\n(a) this Agreement constitutes the entire agreement between the parties in relation to the subject matter of this Agreement, and supersedes all previous agreements, arrangements and understandings between the parties in respect of that subject matter[; and\n(b) neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into this Agreement].\n6.7 This Agreement will be governed by and construed in accordance with the laws of [England and Wales];9 and the courts of [England]10 will have exclusive jurisdiction to Purpose being input with respect to input with respect to Urban Wind Turbines\u2122\nThe parties have indicated their acceptance of this Agreement by executing it below.\nEXECUTION:11\nSIGNED by [name of signatory]\nduly authorised for and on behalf\nof the Discloser ................................ Date:\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026..\nAddress \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026..\nWitness \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026..\nAddress \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026..\nSIGNED by [name of signatory]\nDuly authorised for and on behalf\nof the Recipient ................................... 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"text": "MUTUAL NON-DISCLOSURE AGREEMENT\nThis Agreement is between (Party One) having a principal place of business at and Design 1st Inc. (Party Two), having its principal place of business at 314 Athlone Ave., Ottawa, Ontario Canada K1Z 5M4.\n1. Purpose. The purpose of this Agreement is to protect the Confidential Information of the parties, as defined below, which is being disclosed for the purpose of a business relationship between the parties. Party One and Party Two include its family members, associates, employees, agents, or any other such person or persons individually as well as collectively.\n2. Definition. \"Confidential Information\" includes, but is not limited to prototypes, trade secrets, intellectual property, information, technical data, research, products, software, services, development, macros, source code, unreleased software, inventions, ideas, processes, designs, drawings, engineering, marketing, markets, customer information, business plans, business policies or practices, forecasts or financial information, team process, design process, part supply, pricing, development process and procedures, disclosed by Party One and Party Two under this Agreement which at the time of disclosure is designated as confidential (or like designation), is disclosed in circumstances of confidence, or would be understood by the parties, exercising reasonable business judgment, to be confidential. Confidential Information shall include, but not be limited to, all materials marked \"Confidential Information\". The confidential business information which is to be provided by Party One to Party Two is the sole property of Party One, including but not limited to; financial information, printed material, marketing brochures and literature, photographs, videos, plans, methods, policies and strategies; insofar as the same are and remain confidential business information of Party One not generally known or available to the public.\n3. Disclosure. All disclosures of Confidential Information (whether written or oral) by Party One and Party Two shall (a) remain in confidence for a period of three (3) years from the date of disclosure, except that any trade secrets or information with respect to Party One products or research and development will remain in confidence in perpetuity; (b) be disclosed only to employees of Party Two who have executed written confidentiality agreements with the employer; and (c) be reproduced or used by Party Two only to the extent necessary to fulfill it\u2019s obligations hereunder. Party One and Party Two shall protect shared Confidential Information with the same degree of care as it normally exercises to protect its own confidential information of similar nature, but at a minimum with a reasonable degree of care to prevent its unauthorized use, dissemination or publication. Each party shall be entitled to disclose Confidential Information of the other party where compelled by law to so disclose pursuant to any legal, judicial or administrative proceeding, provided the disclosing party provides all reasonable prior notice to the other party to allow it to seek a protective order or other appropriate relief. Party One and Party Two pledges and agrees that it shall keep totally confidential any and all of the said information and other such matters arising hereto, and shall not disclose to any other person or persons, corporation, agent or consultant with whom it is or may be associated with, any such confidential information without express permission being given in writing by an authorized officer of other Party.\n4. Use. Party One and Party Two each agrees not to use the other party's Confidential Information for its own use or for any purpose except for the purpose described in Section 1. Party One and Party Two each agrees not to disclose the confidential information to others, without the express written permission of the other party.\n5. Future Development. Party Two shall not directly or indirectly acquire any interest in, or design, create, manufacture, sell or otherwise deal with any item or product, based upon or derived from the Confidential Information provided by Party One , except as may be expressly agreed to in writing by Party One .\n6. Property Rights, Return of Materials. All materials, including Confidential Information disclosed by Party One and Party Two under this Agreement shall remain the property of the disclosing party. Each party shall, upon the completion of the purpose of this Agreement or request by the other party, return all materials received or obtained under this Agreement, including Confidential Information, and all copies and all documents containing any portion of any Confidential Information.\n7. Disclosure Required by Law. Notwithstanding anything to the contrary contained in paragraphs 3 and 4 hereof, the Confidential Information may be disclosed to the extent that such disclosure is necessary to comply with any law, regulation, or order of court, provided that each party shall give the other party reasonable advance notice of any such proposed disclosure, shall use its reasonable best efforts to secure an agreement in writing to be bound by the provisions of paragraphs 3 and 4 of this Agreement from any person obtaining access to the Confidential Information pursuant to this paragraph 7, and shall advise the other party in writing of the manner of such disclosure.\n8. Information Not Confidential. Information shall be deemed not to be confidential if such information is or becomes publicly known through no wrongful act of the receiving party, or is already known by the receiving party as evidenced by competent proof thereof, or is approved for release by the prior written approval of the disclosing party, or is rightfully received by the receiving party from a third party without restriction and without breach of this agreement, or is disclosed by the disclosing party to a third party without a similar restriction on the rights of such third party, or is independently developed by the receiving party without the use of the Confidential Information.\n9. Non-solicitation: Each party agrees that, for a period of 18 months following the date of this Agreement, it shall not solicit to employ or enter into a consulting arrangement with any of the officers, employees, directors or consultants of the other party which whom such party has had contact or were identified to such party in connection with its evaluation of a possible transaction between the parties. The term \u201csolicit to employ or enter into a consulting arrangement with\u201d shall not be deemed to include generalized searches by Party One for employees or consultants through media advertisements, employment firms or otherwise, that are not focused on persons employed by or who consult for Party Two.\n10. Remedies. Party One and Party Two each acknowledge that compliance with the provisions of this Agreement is necessary to protect their proprietary interests. Each party further acknowledges that any unauthorized use or disclosure to any person or entity in breach of this Agreement will result in irreparable and continuing damage, and that each party shall be authorized and entitled to obtain immediate injunctive relief and any other rights or remedies to which it may be entitled. If either party violates any of the above agreements, it acknowledges that money damages will be an inadequate remedy and that the violated party will be entitled to specific performance or to injunctive relief to prohibit the violating party from continuing to violate this agreement even if no money damages can be proven.\n11. Right to Disclose. Each party represents and warrants that it has the right to disclose any information provided to the other party in furtherance of the purpose described in Section 1, without violating any agreement with or right of any other person or company. Confidential Information disclosed by a party hereunder may include Confidential Information of a third party, provided that the third party has authorized such disclosure, and in such event this Agreement shall apply equally to such Confidential Information and shall inure to the benefit of such third party.\n12. No License or Business Relationship. Nothing in this Agreement shall be construed to as a granting to a party a license under any patent, copyright, trade secret or other intellectual property right now or hereinafter obtained by the other party. Further nothing in this Agreement implies a partnership, joint venture or other commercial relationship between the parties, an authorization by for either party to act as agent for the other or an agreement or commitment by either party to purchase, acquire, develop or use the products or services of the other party.\n13. Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of Ontario and the laws of Canada applicable therein. Each party hereby attorns to the jurisdiction of Ontario.\n14. Miscellaneous. Failure to enforce any provision of this Agreement shall not constitute a waiver of any term hereof. This Agreement contains the entire agreement of the parties, and supersedes any and all prior understandings, oral or written, with respect to the subject matter hereof. This Agreement is binding upon and for the benefit of the parties, their successors and assigns, provided that the right to Confidential Information may not be assigned without the written consent of the respective party.\n15. Term. This agreement shall remain in effect for a period of Three (3) Years or the life of any Agreements, Contracts or Commercial Arrangements which may arise from the joint efforts of the parties hereto, whichever shall be longer.\nPARTY TWO PARTY ONE\nName Ian Kayser Name\nTitle Director, Operations Title\nSignature Signature\nDate: Date:\n",
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"text": "Non Disclosure Agreement\nThe following terms and conditions apply to the provision of services between Mandarin Trading (Pty) Ltd. (trading as ResRequest) and _______________________________ (referred to hereafter as the Business Partner).\n1. Definitions\nMandarin: means Mandarin Trading (Pty) Ltd.\nAgreement: means the agreement that is made between Mandarin and the Business Partner for the provision of products or services.\nMaterials: means literary works or other works of authorship which are developed in the course of the agreement, such as programs, specifications, database definitions, reports and similar works.\nBusiness partner: means an individual or organisation with whom Mandarin is conducting business in terms of the agreement.\n2. Confidentiality\n2.1. Either party agrees that it shall ensure that it and its associated companies and their respective officers and employees shall keep confidential, both during and after the duration of the agreement, all information which:\n2.2. Consists of any of the commercial secrets of the other party; or\n2.3 Consists of any other information of a confidential nature belonging to, or connected with, the other party and its activities and clients, and designated by such party as confidential;\n2.4 And undertakes not to disclose any of such information to any third party without the prior written permission of the other party except as required by any applicable law or government regulation, and provided that each party may\ndisclose the agreement on a confidential basis to its public accountants, attorneys and financial advisors and/or funders. 2.5 Neither party shall be required to keep confidential any information which is, or becomes, publicly available, is independently developed by either party outside the scope of this agreement, or is rightfully obtained from third parties.\n3. Materials ownership and copyright\n3.1 Each party shall retain sole ownership of the software developed within their respective systems for the purpose of the interface.\n3.2 Any Business Partner shall maintain the material as confidential and shall not publish, disclose or distribute all or any portion of it (or any copies of it) to any other person or permit any other person access to it, save for employees, consultants or agents of the Business Partner for purposes specifically related to Mandarin\u2019s use of the material. 4. ResRequest connection service\n4.1 The Business Partner agrees that access to ResRequest information will be used for the sole use of the Business Partner and no auxiliary distribution is permitted, unless agreed upon by both parties.\n5. Limitation of liability\n5.1 Neither party shall be liable to the other for any special, indirect or consequential damages or loss.\n6. Dispute\n6.1 Any legal dispute arising from this agreement will be subject to the jurisdiction of South African law.\n7. Execution\nThis agreement is executed for and on behalf of:\nMandarin Trading (Pty) Ltd\nBy .................................................. In his / her capacity as a director of the company\nSIGNATORY AS WITNESS\nSigned at ...........................................\nOn .....................................................\nThe Business Partner\nBy .................................................. In his / her capacity as a director of the company\nSIGNATORY AS WITNESS\nSigned at ...........................................\nOn .....................................................\n",
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"text": "Non-Disclosure Agreement\nTHIS CONFIDENTIALITY DEED is made on 2018\nPARTIES\n(1) Jasmine Technologies Ltd, a company incorporated in England and Wales under number 88338303 whose registered office is 11 Claylands Place London SW8 1NL (Discloser);\n(2) , a company incorporated in under number whose address is (the Recipient),\nBACKGROUND\nA The parties intend to execute this agreement as a deed.\nB The Disclosers wish to disclose Confidential Information to the Recipient in relation to the Purpose and to:\n(i) Franchise agreement\nTHE PARTIES AGREE:\n1 Definitions and interpretation\n1.1 In this Agreement:\nAgreement means this agreement\nAuthorised Person means, in relation to the Recipient, any of the following only to the extent that they are engaged in respect of the Purpose: its officers, directors, employees, and any other person who has been previously approved in writing by the Disclosers;\nBusiness Day means a day other than a Saturday, Sunday or bank or public holiday in England or Wales;\nConfidential Information means any information in whatever form (whether in writing, electronic or digital form, verbally or by inspection of documents, computer systems or sites or pursuant to discussions or by any other means ) which is confidential in nature, designated orally or in writing by the Disclosers as confidential or which may reasonably be considered by a business person to be commercially sensitive provided by the Disclosers (directly or indirectly) by any means to the Recipient (or to any Authorised Person) including without limitation via its legal representatives before or after the date of this Agreement in connection with or in anticipation of the Purpose including:\n(a) data, ideas and information (whether technical, commercial, financial or of any other type) in any form acquired under, pursuant to or in connection with this Agreement and any information utilised in or relating to the Disclosers (or its Group Members\u2019) business (including information relating to products (bought, manufactured, produced, distributed or sold), services (bought or supplied), operations, processes, formulae, methods, plans, strategy, product information, know-how, design rights, trade secrets, market opportunities, customer lists, commercial relationships, marketing, sales materials and general business affairs);\n(b) information relating to the customers, suppliers, methods, products, plans, finances, trade secrets or otherwise to the business or affairs of the Disclosers (or its Group Members);\n(c) information acquired by observation by the Recipient or any Authorised Person at the offices of or other premises of the Disclosers relating to the Purpose or to the affairs of the Disclosers;\n(d) analyses, ideas, compilations, studies and other material created by the Recipient or any Authorised Person which contain or otherwise reflect or are generated or derived from the information referred to above; and\n(e) the contemplation and implementation of the Purpose, and the existence and content of this Agreement;\nGroup Member means in relation to a party, any undertaking (as defined in section 1161 of the Companies Act 2006) of that party, in each case from time to time;\nIntellectual Property Rights means intellectual and industrial property rights, including copyright (including moral rights), patents, know-how, trade secrets, trademarks, service marks, trade names, design rights, registered designs, get-up, database rights, chip topography rights, mask works, utility models, domain names, rights in trade and business names and all similar rights and, in each case:\n(a) whether registered or not;\n(b) including any applications to protect or register such rights;\n(c) including all renewals and extensions of such rights or applications;\n(d) whether vested, contingent or future;\n(e) including rights in the nature of unfair competition rights and rights to sue in passing off; and\n(f) wherever existing;\nPurpose Franchise agreement\nUse means receive, store, transmit, access, read, analyse, disclose, share, print, copy, reproduce, extract, modify, adapt, incorporate, exploit or use Confidential Information in whole or in part in any manner whatsoever.\n1.2 In this Agreement:\n1.2.1 a reference to this Agreement includes its schedules, appendices and annexes (if any); 1.2.2 any table of contents, background section and any clause, schedule or other headings in this Agreement are included for convenience only and shall have no effect on the interpretation of this Agreement;\n1.2.3 a reference to a \u2018party\u2019 includes that party\u2019s personal representatives, successors and permitted assigns;\n1.2.4 a reference to a \u2018person\u2019 includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person\u2019s personal representatives, successors and permitted assigns\n1.2.5 a reference to a \u2019company\u2019 includes any company, corporation or other body corporate, wherever and however incorporated or established;\n1.2.6 a reference to a gender includes each other gender;\n1.2.7 words in the singular include the plural and vice versa;\n1.2.8 any words that follow 'include', 'includes', 'including', \u2018in particular\u2019 or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;\n1.2.9 a reference to \u2018writing\u2019 or \u2018written\u2019 includes any method of reproducing words in a legible and non-transitory form including email;\n1.2.10 a reference to legislation is a reference to that legislation as in force at the date of this Agreement and amended, extended, re-enacted or consolidated from time to time;\n1.2.11 a reference to legislation includes all subordinate legislation made as at the date of this Agreement and from time to time under that legislation; and\n1.2.12 a reference to any English action, remedy, method of judicial proceeding, court, official, legal document, legal status, legal doctrine, legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English equivalent in that jurisdiction.\n2 Provision and Use of Confidential Information\n2.1 The Disclosers may (but are not obliged to) disclose during the term of this Agreement, and/or may have already disclosed, Confidential Information to the Recipient for the Purpose and, in consideration of the Disclosers disclosing any Confidential Information to the Recipient and the payment to the Recipient of \u00a31 (one pound) the receipt of which is acknowledged by the Recipient), the Recipient undertakes to the Disclosers that it shall, and shall procure that its Authorised Persons shall:\n2.1.1 keep all the Confidential Information secret and confidential, and not disclose any of the Confidential Information to any person other than in accordance with clause 3;\n2.1.2 not Use any Confidential Information in any way except to the extent reasonably necessary for the Purpose, and not Use or benefit from any Confidential Information to procure any commercial advantage over the Disclosers; and\n2.1.3 create and maintain the best industry standards of security (including any reasonable arrangements specified by the Disclosers from time to time and the most secure arrangements that the Recipient maintains for its own trade secrets) in order to ensure that the Confidential Information is secure from unauthorised access, and shall inform immediately the Disclosers if the Recipient becomes aware of any apparent unauthorised access.\n2.2 To the extent determined from time to time by the Disclosers, each of those of the Disclosers\u2019 Group Members, if any, whose information is contained in the Confidential Information disclosed to the Recipient under this Agreement shall be entitled to enforce the rights expressed in favour of the Disclosers under this Agreement in respect only of that Confidential Information belonging to it as if such rights were expressed to be in its favour.\n2.3 None of the Disclosers, its Group Members, and its or their directors, officers, agents, employees, consultants, subcontractors, or advisers makes any representation or warranty concerning the accuracy, efficacy, completeness or capabilities of the Confidential Information disclosed by it (or of any materials or media by which it is supplied), except to the extent, if any, expressly agreed by the Disclosers in writing. No representation or warranty is made that the Confidential Information shall remain unchanged. There is no obligation on the part of the Disclosers to update or correct any inaccuracies in any Confidential Information. Any projected results or management accounts which may be contained in the Confidential Information are for indicative purposes only and are not warranted for accuracy or completeness. The Recipient must make its own independent assessment of the Confidential Information and the Purpose and rely on its own judgment in reaching any conclusion or decision.\n2.4 There is no representation, warranty or undertaking by the Disclosers to continue to disclose any Confidential Information or continue negotiations or enter into a further agreement in relation to the Purpose or the Confidential Information, which agreement can only be subject to a formal written agreement being agreed and signed by the parties.\n2.5 The Recipient\u2019s confidentiality obligations under this Agreement shall survive and subsist indefinitely in relation to any Confidential Information (notwithstanding the prior termination or expiry of this Agreement).\n3 Authorised disclosures\n3.1 The Recipient may disclose any of the Confidential Information to any of its Authorised Persons, provided that it informs them beforehand of the duties of confidence under this Agreement, ensures that they undertake to the Recipient to comply with the same duties of confidence, keeps a written account of each of the disclosures, advises the Disclosers immediately it becomes aware of any breach by an Authorised Person, and gives upon any request by the Disclosers evidence of compliance with this clause.\n3.2 The Recipient further undertakes to procure that all Authorised Persons to whom it discloses the Confidential Information shall comply with the confidentiality obligations under this Agreement and, if required by the Disclosers, to procure that they enter into a confidentiality agreement directly with the Disclosers in reasonably similar terms as those set out under this Agreement.\n4 Excluded information\n4.1 The Recipient's obligations under this Agreement do not apply to, and the term Confidential Information does not include, any information to the extent to which the Recipient can prove to the Disclosers\u2019 reasonable satisfaction has been agreed by the Disclosers in writing as being excluded from Confidential Information.\n4.2 The Recipient shall not be in breach of its obligations under this Agreement to the extent that any Confidential Information received by it may be required by law or regulation having force of law; or the rules of any court or other body of competent jurisdiction; or any governmental body to be disclosed, provided in each case the Recipient, to the extent permitted by the foregoing requirement, immediately notifies the Disclosers in writing of any request or requirement for disclosure and of all relevant surrounding circumstances prior to disclosure and takes into account any representations made by the Disclosers in relation to the disclosure. The Recipient shall use its best endeavours to resist any requirement for disclosure and to assist the Disclosers in resisting that requirement.\n5 Intellectual Property Rights\nThe Recipient acknowledges that ownership of the Confidential Information including all Intellectual Property Rights in the Confidential Information remains vested in and shall vest in the Disclosers and its licensors, and that no licence or right is granted other than to the extent expressly set out in this Agreement.\n6 Indemnity\nThe Recipient shall indemnify the Disclosers from and against all and any losses, damages (including any consequential, direct, indirect, special, incidental or punitive damages or loss or any other form of economic loss), liability, costs (including legal fees), expenses, claims (including any settlements of claims before or after issue of proceedings), actions, proceedings, judgment sums (including sums arising from consent orders or judgments) fines and penalties, however arising out of, or in connection with, the breach of this Agreement or the unauthorised disclosure or Use of any of the Confidential Information by the Recipient or by any of its Authorised Persons.\n7 Equitable Relief\nThe Recipient recognises that any breach or threatened breach of this Agreement may cause the Disclosers irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to the Disclosers, the Recipient acknowledges and agrees that the Disclosers is entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.\n8 Delivery Up\n8.1 Upon receipt by the Recipient of a written demand from the Disclosers:\n8.1.1 the Recipient must return or procure the return to the Disclosers or, as the Disclosers may require, destroy or procure the destruction of any and all materials containing the Confidential Information together with all copies;\n8.1.2 if the Disclosers requires, the Recipient must provide the Disclosers with a certificate or such other evidence as the Disclosers may reasonably require duly signed or executed by an officer of the Recipient confirming that the Recipient has complied with all of its obligations under this Agreement including about return, destruction and deletion of Confidential Information and media;\n8.1.3 the Recipient must delete or procure the deletion of all electronic copies of Confidential Information; and\n8.1.4 the Recipient must make, and procure that the Authorised Persons shall make, no further Use of the Confidential Information.\n9 Entire agreement\n9.1 The parties agree that this Agreement and any documents entered into pursuant to it constitute the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.\n9.2 The Recipient acknowledges that it has not entered into this Agreement or any documents entered into pursuant to it in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in this Agreement or any documents entered into pursuant to it. 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"text": "NON DISCLOSURE AGREEMENT\nThis NON DISCLOSURE AGREEMENT is entered into this __________ 2004 (\"Effective Date\") by Forschungszentrum Karlsruhe GmbH, Weberstra\u00dfe 5, 76133 Karlsruhe, Federal Republic of Germany (hereinafter referred to as \"Forschungszentrum\") acting on its behalf and on behalf of the participants in the EU project HySafe, which are the following\nL\u2019Air Liquide\nFederal Institute for Materials Research and Testing\nBMW Forschung und Technik GmbH\nBuilding Research Establishment Ltd\nCommissariat \u00e0 l\u2019Energie Atomique\nDet Norske Veritas AS\nFraunhofer-Gesellschaft zur Foerderung der Angewandten Forschung e.V.\nForschungszentrum Juelich GmbH\nGexCon AS\nThe United Kingdom\u2019s Health and Safety Laboratory\nFoundation INASMET\nInstitut National de l\u2019Environnement industriel et des RISques\nInstituto Superior Technico\nEuropean Commission - Joint Research Centre - Institute for Energy\nNational Center for Scientific Research Demokritos\nNorsk Hydro ASA\nRis\u00f8 National Laboratory\nTNO\nUniversity of Calgary\nUniversity of Pisa\nUniversidad Polit\u00e9cnica de Madrid\nUniversity of Ulster\nVOLVO Technology Corporation\nWarsaw University of Technology\nand\nMr./Mrs. \u2026\n(hereinafter referred to as \"Mr./Mrs. \u2026\")\nWHEREAS, Forschungszentrum is Coordinator of the Network of Excellence \"Safety of Hydrogen as an Energy Carrier\" (HySafe), a project in the Sixth Research and Technological Development Framework Programme of the European Community.\nWHEREAS, according to Section 5.2.3.8 of the Consortium Agreement concluded between all participants in HySafe, an Advisory Council can be constituted, which consists of distinguished scientists from organisations, companies and universities outside the Network as well as representatives from industry and authorities. It advises the Network and makes recommendations on all important matters of substance (e.g. scientific, industry and end user evaluations).\nWHEREAS, Mr./Mrs. \u2026 is appointed as a member of the Advisory Council.\nWHEREAS, each participant in HySafe may provide own confidential information related to HySafe to the Advisory Council, all such information to be considered as the \u201cConfidential Information\u201d, and whereupon the parties hereto wish to record the terms and conditions upon which this information will be disclosed.\nTHEREFORE it is hereby agreed as follows:\n1 In this agreement:\n \u201cDisclosing Party\u201d shall mean any participant in HySafe.\n\u201cRecipient\u201d shall mean Mr./Mrs. \u2026.\n 2 Recipient shall hold the Confidential Information in strict confidence and shall take all reasonable and prudent precautions to prevent the Confidential Information from reaching third parties. Recipient shall use the Confidential Information exclusively for HySafe purposes, especially to advice the Governing Board of HySafe.\n3 Recipient's obligations under this agreement shall not apply to any information which Recipient can document beyond any reasonable doubt was available to the public or known to or developed by the Recipient prior to the date first above written. These obligations shall cease as to any information which Recipient can document thereafter became or becomes available to the public, otherwise than as a result of disclosure by Recipient or was or is disclosed to Recipient by a party unrelated to Recipient, that does not have a nondisclosure obligation with respect to it. Moreover, Recipient's obligations under this agreement shall not apply to Confidential Information Recipient has a legal obligation to disclose to public authorities under law, regulation or lawful administrative decision.\n4 At any time, upon the respective Disclosing Party's request, Recipient shall promptly deliver to the respective Disclosing Party the Confidential Information and all materials relating to or involving Confidential Information (whether prepared by the respective Disclosing Party or otherwise), and will not retain any copies, extracts or other reproductions in whole or in part regarding the Confidential Information. The delivery of such material shall not relieve Recipient of its obligation of confidentiality or other obligations hereunder.\n5 Nothing in this agreement shall be construed as granting Recipient any rights of any kinds in the Confidential Information, by license or otherwise.\n6 This agreement shall be governed by the laws of Belgium. All disputes or differences arising in connection with this agreement which cannot be settled amicably shall be finally settled by arbitration in Brussels under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators to be appointed under the terms of those rules. In any arbitration in which there are three arbitrators, the chairman shall be of juridical education. It shall be conducted in English.\nThe award of the arbitration will be final and binding upon the parties concerned.\nThe parties concerned may instead elect to resolve by mediation a dispute or difference arising in connection with this agreement which cannot be settled amicably.\n7 Any Disclosing Party may act individually in relation to the Recipient under this Non Disclosure Agreement.\n8 This agreement shall come into force after signature of both parties hereto on the Effective Date and shall expire on February 28, 2009. The obligations pursuant to Article 2 shall remain valid for the Recipient even after the end of this agreement for a period of five (5) years thereafter.\nIN WITNESS WHEREOF, the parties hereto have executed this agreement\nForschungszentrum Karlsruhe GmbH\n_____________________________________\nHeinz-J\u00fcrgen FABER Oliver WITTEK\nCentral Legal and Insurance Department\nMr./Mrs. \u2026\n____________________________\nThe employer of Mr./Mrs. \u2026 hereby confirms that he has taken note of this Non Disclosure Agreement and acknowledges that Confidential Information disclosed to Mr./Mrs. \u2026 shall not be used for any internal purposes.\n[Company Name]\n____________________________\n_____________________________\n",
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"text": "Non-Disclosure Agreement\nThis mutual Nondisclosure Agreement (the \"Agreement\") is entered into between\nACCRUENCE GMBH\nLOEWENICHSTR. 3\n91054 ERLANGEN, GERMANY\nand\nand is e\ufb00ective as of the last date signed.\nThe parties agree that in order for them to explore opportunities and examine how they might work together to their mutual bene\ufb01t, it will be necessary and desirable that they disclose con\ufb01dential business information.\nThe parties agree to protect each other's Con\ufb01dential Information disclosed before or after the execution of this Agreement on the following terms.\n1. Each party shall use its reasonable best e\ufb00orts to keep the other's Con\ufb01dential Information secret. Each party shall use at least the same degree of care to avoid unauthorized disclosure or use of the other's Con\ufb01dential Information as it employs with respect to its own Con\ufb01dential Information of like importance.\n2. Neither party has any obligation with respect to any Con\ufb01dential Information which (a) that party independently develops without reference to the Con\ufb01dential Information; (b) is or becomes publicly known without a breach of this Agreement by either party or is known prior to the date hereof; (c) is disclosed to it by a third person who is not required to maintain its con\ufb01dentiality; (d) is approved for release by the other party in writing. The party claiming any of the above exceptions has the burden of proving its applicability.\n3. Each party may disclose Con\ufb01dential Information only on a need-to-know basis to its own employees and to its consultants under appropriate written burden of con\ufb01dentiality. Each party shall take appropriate action with its employees and advisors to satisfy its obligations under this Agreement. Each party shall be responsible to the other for any violation of this Agreement by its own employees or consultants.\n4. Neither party may print or copy, in whole or in part, any documents or magnetic media containing any Con\ufb01dential Information without the prior written consent of the other party other than copies for employees or consultants who are working on the matter and have a need to know.\n5. Neither party may use the other's Con\ufb01dential Information for any purpose but the Business Purpose stated above.\n6. Each party's Con\ufb01dential Information shall remain its own property. Upon the termination of the business relationship or upon request, whichever is sooner, each party shall return all of the other's Con\ufb01dential Information, certifying destruction of any copies or partial copies made.\n7. The obligation of con\ufb01dentiality shall extend to three years from and including the date of return of the Con\ufb01dential Information and certi\ufb01cation of destruction of any copies made. At any time, either party may notify the other party in writing that future disclosures shall not be governed by this Agreement.\n8. If either party becomes legally obligated, or receives a subpoena or other legal demand, to disclose any of the other party's Con\ufb01dential Information, the party subject to the obligation shall notify the other party in writing immediately, shall cooperate with the other party in seeking a prospective order or other appropriate remedy, and shall use its reasonable best e\ufb00orts to protect the con\ufb01dential and proprietary status of any disclosed Con\ufb01dential Information.\n9. Each party agrees that in the event of a breach or threatened breach by either party, including its agents, directors, or employees, of the provisions of this Agreement, the non-breaching party may have no adequate remedy in money damages and, accordingly, shall be entitled to an injunction against such breach, in addition to any other legal or equitable remedies available to it.\n10. This Agreement is governed by the laws of Germany without regard to its rules on con\ufb02icts of law, and both parties consent to the venue and jurisdiction of its courts. Neither party may assign its rights or obligations under this Agreement. No modi\ufb01cation of this Agreement shall be e\ufb00ective unless in writing and signed by both parties. No waiver of any provision of this Agreement shall be e\ufb00ective unless signed by the waiving party.\nThis Agreement is the entire agreement between the parties on nondisclosure of con\ufb01dential information and supersedes all prior representations and agreements between the parties on that subject.\nErlangen, DD/MM/YYYY\n_________________________ _________________________\n",
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"text": "P.L. Berry & Associates Ltd\nPATENT ATTORNEYS\nP O Box 1250, Christchurch 8140\nPhone (03) 366-2761, Fax (03) 379-5744\nEmail: office@plberry.co.nz\nNON-DISCLOSURE / SECRECY AGREEMENT\nI/We (Insert name of person or company to whom information is being disclosed) of (Address) hereby agree to keep confidential any information which has already or may be disclosed to us by: -\n(b) (Inventor\u2019s name) of (c) (Address)\nConcerning the (d) (Insert brief description of invention) and we will not use it for our own benefit or disclose it to any other party without the written approval of:\n(b) (Inventor\u2019s name)\nThis obligation of confidentiality and non-use does not apply to information which:\n1. Was in our possession before the Inventor disclosed it to me/us.\n2. Is made publicly available after its disclosure to me/us other than by any act or omission by us.\n3. Becomes known to us after its disclosure by (b) (Inventor\u2019s name) from a third party who is under no obligation of confidentiality to (b) (Inventor\u2019s name)\nAccepted for and on behalf of\n(a) (Insert name of person or company to whom information is being disclosed)\nSigned Dated\nSigned Dated\nSigned Dated\nCLIENTS OF THE ABOVE PRACTICE MAY COPY THIS DOCUMENT FOR THEIR OWN USE\n",
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"text": "MUTUAL NON-DISCLOSURE AGREEMENT\nThis MUTUAL NON-DISCLOSURE AGREEMENT (\u201cAgreement\u201d) made this _____ day of _____ 20___, between YOUR COMPANY having a principal place of business at YOUR COMPANY ADDRESS and ____________________,whose principal address is ___________________________________________________.\nWHEREAS: To determine the feasibility of a commercial relationship, the parties will be having discussions relating to both parties' business and technology. It is contemplated that to make such a determination, each party may disclose certain information to the other in confidence.\nNOW THEREFORE, in consideration of mutual promises and covenants contained in this Agreement and the disclosure of Confidential Information to each other, the parties to this Agreement agree as follows:\n1. Definition. The term \"Confidential Information\" as used herein means all trade secrets or confidential or proprietary information of either party, whether or not marked \u201cConfidential\u201d, whether in written or oral form, relating to such party's business or technology, including without limitation, its products, customer data, development and marketing plans, and financial information. In addition, Confidential Information shall include all terms and conditions of this Agreement including the fact that the parties are having discussions in order to determine the feasibility of a commercial relationship.\n2. Non-Disclosure of Confidential Information. The party receiving Confidential Information (the \u201cReceiving Party\u201d) shall not disclose Confidential Information to any third party without the prior written consent of the party disclosing such confidential information (the \u201cDisclosing Party\u201d) and shall restrict dissemination of Confidential Information within its own organization to those employees who have a need to have access to the Confidential Information. The Receiving Party agrees to protect Confidential Information by using the same degree of care as it would use to protect its own information of like importance, but in no case less than reasonable care. Any use of Confidential Information shall be solely for the purpose authorized above. Each party shall take appropriate measures, and in no event less than reasonable measures, by instruction and agreement prior to disclosure to such employees to assure against unauthorized use or disclosure. The Receiving Party agrees not to reverse engineer, disassemble, or otherwise restructure and/or copy or in any way recreate in whole or in part any Confidential Information of the Disclosing Party.\n3. Exceptions to Confidential Information. The Receiving Party shall have no obligation with respect to information which: (i) was rightfully in possession of or known to the Receiving Party without any obligation of confidentiality prior to receiving it from the Disclosing Party, as evidenced by the Receiving Party\u2019s records; (ii) is or becomes part of the public domain without breach of this Agreement by Receiving Party; (iii) becomes known or available to Receiving Party from a source other than the Disclosing Party with the legal right to use and disclose such information; (iv) is independently developed by the Receiving Party without use of the Confidential Information; or (v) is disclosed by the Receiving Party pursuant to a valid order issued by a court or government agency, provided, however, that the Receiving Party provides the Disclosing Party: (a) prior written notice of such obligation; and (b) the opportunity to oppose such disclosure or obtain a protective order.\n4. Return or Destruction of Confidential Information. Upon written demand by the Disclosing Party, the Receiving Party shall: (i) cease using the Confidential Information; (ii) promptly return the Confidential Information and all copies, notes or extracts thereof to the Disclosing Party within seven (7) days of receipt of demand; and/or (iii) upon request of the Disclosing Party, destroy all such Confidential Information, including copies thereof, and shall furnish the Disclosing Party with written certification of destruction.\n5. Injunctive Relief. The provisions of this Agreement are necessary for the protection of the business of each party and are considered by the other party to be reasonable for such purpose. Each party agrees that any breach of this Agreement may cause the other party substantial and irreparable damages and, therefore, in the event of any such breach, in addition to other remedies that may be available, each party shall have the right to seek specific performance and other injunctive and equitable relief against the other.\n6. Ownership and Disclaimer. Each party shall retain all right, title and interest to such party\u2019s Confidential Information disclosed to the other party. Subject only to the Receiving Party\u2019s limited use of the Confidential Information for the purpose set forth above, the Receiving Party acknowledges and agrees that nothing in this Agreement shall be construed as granting or implying any rights, license or otherwise, to any Confidential Information disclosed pursuant to this Agreement whether under any trademark, patent or copyright, or application of same which are now or thereafter may be obtained by such party. The Receiving Party shall not violate any of the Disclosing Party\u2019s intellectual property or other rights in or to the Confidential Information.\nALL CONFIDENTIAL INFORMATION IS PROVIDED \u201cAS IS\u201d WITHOUT ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL THE DISCLOSING PARTY BE LIABLE FOR THE ACCURACY OR COMPLETENESS OF ANY CONFIDENTIAL INFORMATION.\n7. Term. This Agreement shall remain in effect for a period of five (5) years from the Effective Date hereof.\n8. No Obligation to Do Business. Each party acknowledges and agrees that nothing in this Agreement shall impose upon either party any obligation to consummate a transaction. Subject to the terms and conditions of this Agreement, discussions and communications between the parties hereto shall not impair the right of either party to develop, make, use, procure and/or market any products or services (now or in the future) which may be competitive with those offered by the other party, provided none of the foregoing activities violate the terms of this Agreement.\n9. General\n9.1 Severability. The provisions of this Agreement shall be deemed severable, and the invalidity or unenforceability of any one or more of the provisions herein shall not affect the validity or enforceability of other provisions herein.\n9.2 Choice of Laws. The laws of the State of YOUR COMPANY STATE shall govern the validity, construction and performance of this Agreement, provided, however, that no choice of law or rule of the State of YOUR COMPANY STATE, or any other jurisdiction, which would cause any such matter to be referred to the law of any jurisdiction other than YOUR COMPANY STATE shall be given any force or effect. Any legal action or proceeding with respect to this Agreement must be brought in the courts of the State of YOUR COMPANY STATE located in YOUR COMPANY STATE CAPITAL, YOUR COMPANY STATE or the courts of the United States of America for the Northern District of YOUR COMPANY STATE, and, by execution and delivery of this Agreement, each party hereby accepts for itself and in respect of its property, generally and unconditionally, the jurisdiction of the aforesaid courts. The parties hereto hereby irrevocably waive any objection, including, without limitation, any objection to the laying of venue or based on the grounds of forum non conveniens, that any party may now or hereafter have to the bringing of any such action or proceeding in such jurisdictions.\n9.3 Notice. Any notice, approval, request, authorization, direction or other communication required or permitted under this Agreement shall be given in writing and shall be deemed to have been delivered: (i) one (1) business day after deposit with a commercial overnight courier with written verification of receipt; or (ii) five (5) business days after the mailing date if sent by U.S. mail, return receipt requested, postage and charges prepaid. Notice shall be given to each party at the addresses set forth above.\n9.4 Assignment and Delegation. This Agreement shall not be assignable by either party, without the prior written consent of the other party. Any purported or attempted assignment hereof without such written consent shall be void and of no force or effect. This Agreement shall inure to the benefit of any successors.\n9.5 No Waiver. No waiver by either party of any breach or default of any of the covenants or agreements herein contained shall be deemed a waiver as to any subsequent or similar breach or default. No right or remedy herein conferred upon either party is exclusive of any other right or remedy herein or by law or in equity provided or permitted.\n9.6 Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof, and is the final, complete and exclusive expression of the terms and conditions thereof. All prior or contemporaneous agreements, representations, negotiations and understandings of the parties hereto, oral or written, express or implied, are hereby superseded and merged herein.\n9.7 Amendments and Modifications. No amendment, modification, or supplement to this Agreement shall be binding on any party unless it is in writing and signed by the parties.\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.\nYOUR COMPANY NAME ______________________________\nBy: _________________________________ By: _______________________________\nName: ______________________________ Name: _____________________________\nTitle: _______________________________ Title: ______________________________\nDate: _______________________________ Date: ______________________________\n",
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"text": "NON-DISCLOSURE AGREEMENT\nThis Agreement is made on day of , 20\nPARTIES:\nSINGAPORE ART MUSEUM, a company registered in Singapore under UEN No.: 201330746G having its office at 61 Stamford Road, #02-02, Stamford Court, Singapore 178892. (the Discloser)\nand\nRecipient Company, a company registered in Singapore under UEN No.: having its office at . (the Recipient)\nWHEREAS\nThe Discloser has engaged the Recipient for the purpose of Invitation to Tender: Managed Website Hosting Environment for Singapore Art Museum (SAM/ITT/2019/0002) . The Recipient would receive information from the Discloser during the course of their work via the Recipient\u2019s corporate email address ___________________________________________________. (the Purpose)\nNOW IT IS AGREED AS FOLLOWS:\n1. Definitions \u2013 In this Agreement the following words are to have the following meanings:\n1.1 \u201cConfidential Information\u201d refers to:\n1.1.1 In respect of Information provided in documentary form or in other electronic form, Information which at the time of provision is marked or otherwise designated to show expressly or by necessary implication that is imparted in confidence;\n1.1.2 In respect of Information that is imparted orally, any Information that the Discloser or its representatives informed the Recipient at the time of disclosure was imparted in confidence;\n1.2 \u201cInformation\u201d means but is not limited to information and data whether concerning commercial, financial, technical or any matter provided directly or indirectly by the Discloser to the Recipient in documentary form, orally, or other electronic form.\n1.3 \u201cPermitted Purpose\u201d or \u201cthe Purpose\u201d means any such purposes which the Discloser has sought the services of the Recipient and includes but is not limited to the reviewing of contracts and documents.\n2. Confidentiality\n2.1 The Recipient undertakes to the Discloser to:\n2.1.1 Receive and keep the Confidential Information secret and confidential and not disclose such Confidential Information to any third party;\n2.1.2 Use the Confidential Information only for the Permitted Purpose; and\n2.1.3 Not disclose the Confidential Information to any other person without the Discloser\u2019s written consent.\n2.1.4\n3. Exceptions\n3.1 The undertakings in clauses 2 above apply to all of the information disclosed by the Discloser to the Recipient, regardless of the way or form in which it is disclosed or recorded but they do not apply to:\n3.1.1 any information which is or in future comes into the public domain (unless as a result of the breach of this Agreement); or\n3.1.2 any information which is already known to the Recipient and which was not subject to any obligation of confidence before it was disclosed to the Recipient by the Discloser.\n4. Terminations of Services\n4.1 Upon the termination of the Recipient for the Purpose;\n4.1.1 The Recipient will, on request from the Discloser, return all copies and records of the Confidential Information to the Discloser and will not retain any copies or records of the Confidential Information; and\n4.1.2 The Recipient shall make no further use of the Confidential Information.\n5. Intellectual Property in the Confidential Information\n5.1 The Recipient acknowledges and agrees that the intellectual property and in particular, the\ncopyright in the Confidential Information disclosed by the Discloser, including any documents, files and other items containing any Confidential Information belongs to the Discloser.\n5.2 This Agreement is neither to prejudice nor limit the rights of the Discloser in respect of any intellectual property rights in the Confidential Information.\n5.3 This Agreement is not to be construed to:\n5.3.1 Grant the Recipient any licence or rights other than as expressly set out in this Agreement in respect of the Confidential Information; nor\n5.3.2 Require the Discloser to disclose any Confidential Information to the Recipient.\n6. Variations\n6.1 Any variations to this Agreement are to be made in writing and signed by both the Discloser and the Recipient.\n7. Governing Law and Disputes\n7.1 The validity, construction and performance of this Agreement are to be governed by the laws of the Republic of Singapore. Any dispute arising under or in connection with this Agreement is to be subject to the exclusive jurisdiction of the Singapore courts to which the Discloser and the Recipient submit.\n8. Third Parties\n8.1 This Agreement does not create any right enforceable by any person who is not a party to it under the Contracts (Rights of Third Parties) Act (Cap 53B, 202 Rev. Ed).\nAGREED BY THE PARTIES:\nFor and on behalf of Singapore Art Museum For and on behalf of the Recipient\nName: Name:\nDesignation: Designation:\nSignature and Company Stamp Signature and Company Stamp\n",
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"text": "NON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (\u201cAgreement\u201d) is entered into by and between PromonLogicalis Tecnologia e Participa\u00e7\u00f5es Ltda. and PTLS Servi\u00e7os de Tecnologia e Assessoria T\u00e9cnica Ltda., both with main office at Av. Presidente Juscelino Kubitschek, 1830, 1\u00ba andar, Torre I and II, S\u00e3o Paulo, SP, Brasil, (\u201chereinafter referred to \u201cPromonLogicalis\u201d), and the Company. PromonLogicalis and the Company are individually referred to herein as the \u201cParty\u201d, \u201cDisclosing Party\u201d or \u201cReceiving Party\u201d, as appropriate, or collectively as the \u201cParties\u201d.\nThe Parties agree this Agreement shall be deemed valid and legal from the moment the authorized representative of the Company click \"Sign Non-Disclosure Agreement\" at PromonLogicalis\u2019 website where is located the form for creation and acceptance of this Non-Disclosure Agreement (\"Execution Date\").\nThe Parties have entered into this Non-Disclosure Agreement, which is governed by the following terms and conditions:\n1. This agreement\u2019s purpose is to ensure secrecy and confidentiality of the information to be provided, from the Execution Date, by one Party (\"Disclosing Party\") and its Affiliates to the other (\"Receiving Party\") during any evaluation, negotiations or commercial relationship, that may be engaged between them (\u201cScope\u201d). For the purpose of this Agreement, Affiliates means with respect to a party, any corporation or entity which (i) controls either directly or indirectly that party, or (ii) is controlled directly or indirectly by that party, or (iii) is under common control with the party.\n2. All the information that (i) is written and marked as CONFIDENTIAL, or (ii) is disclosed verbally, and at the time of its disclosure, the Disclosing Party's identify such information to be protected in accordance with this Agreement (\"Confidential Information\"), shall be considered confidential and restricted property of the Disclosing Party.\n3. The term \"Information\" shall include all written information, verbal or otherwise presented in tangible or intangible way, including, but not limited to, trade secrets, discoveries, ideas, concepts, know-how, techniques, technology, products, designs, specifications, drawings, diagrams, data, computer programs, business activities and operations, reports, studies and other technical, commercial, financial information of each Party or its Affiliates.\n4. 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No license or right under any intellectual property right is granted by the mere transmittal of Confidential Information to the Receiving Party, nor shall such a transmission constitute any representation or warranty by the Disclosing Party with respect to infringement of intellectual property rights of third parties.\n5. The Receiving Party agrees for the period specified in Section 13 that it will:\na. Restrict disclosure of the Confidential Information to the minimum required number of people (such as employees, directors, officers, legal counsels, accountants or consultants who shall also be personally bound to maintain the Information in confidence);\nb. Direct its employees, agents and subcontractors to abide by non-disclosure terms at least as protective of the Confidential Information as those set forth herein;\nc. Maintain the confidentiality and take proper measures to protect the secrecy of the Confidential Information, using the same degree of care that it uses to protect its own confidential information, but in any event shall use at least commercially reasonable care .;\nd. Immediately notify the other party of any misappropriation or misuse of Confidential Information.\n6. The breach of the terms set forth herein imply:\nPromonLogicalis\na. Termination of any agreement executed by and between the Parties, without any obligation to compensation for the complainant, being due, however, the penalties for breach of contract by the party which gives cause to termination;\nb. Payment of damages as set forth in Section 9 and the applicable law.\n7. Confidential Information shall not include information which is:\na. The information was already known by the Receiving Party prior to its disclosure by a legal and legitimate way, not subject to any obligation to be kept confidential;\nb. There has been prior written consent of Disclosing Party, to release the obligation of secrecy and confidentiality;\nc. Lawfully obtained by the Receiving Party from a third party without restrictions as to use and disclose; d. If the Receiving Party receives a court order to disclose Confidential Information. In this case Receiving Party shall (i) promptly notify the Disclosing Party in order to allow the latter to act and avoid such disclosure, and (ii) upon request, but provided that it complies with applicable Law, cooperate with the Disclosing Party in preventing such a disclosure;\ne. Publicly available through lawful disclosure; or\nf. Independently developed by or for the Receiving Party.\n8. All information (either Confidential Information or not) furnished under this Agreement shall remain the property of the Disclosing Party and shall be returned to it or destroyed promptly at its request (together with all relevant copies, extracts, plans, schematics or other reproductions). ALL CONFIDENTIAL INFORMATION IS PROVIDED \u201cAS IS.\u201d NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING THE ACCURACY, COMPLETENESS OR PERFORMANCE OF THE CONFIDENTIAL INFORMATION, AND EACH PARTY EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.\n9. The Parties acknowledge that the breach of secrecy has the character of serious irregularity and can cause serious damages to the other Party.\n9.1 In case of breach of any obligation set forth herein by the Receiving Party, the Disclosing Party shall recover any and all damages. Notwithstanding any other provision herein, neither Party shall be liable for indirect damages or loss of profits.\n9.2 Accordingly, the actual or threatened unauthorized disclosure or use of any Information shall give the Disclosing Party the right to seek injunctive relief restraining such unauthorized disclosure or use, without the necessity of proving actual damages, in addition to any other remedy otherwise available to the Disclosing Party. Any third party owner of Information disclosed by a party hereto shall be an intended third party beneficiary of this Agreement and shall be entitled to rely upon and directly enforce the terms and conditions hereof.\n10. Neither the execution of this Agreement nor the furnishing of any information under this Agreement shall be construed as granting any Party or any of its representatives, either expressly or by implication, any license or right to use any Confidential Information for its own benefit or the benefit of any other person, firm or entity, and each party expressly agrees not to so use any such information. Nothing contained in this Agreement shall be construed as conferring any rights, by license or otherwise, to any invention, discovery, or improvement made, conceived or acquired prior to, during or after the date of this Agreement.\n11. The disclosure of confidential information is not a commitment by Disclosing Party to enter into any business arrangement with the Receiving Party or third parties. If the Parties wish to pursue business opportunities, they shall execute a separate written agreement to govern such relationship.\n12. Failure to enforce any provision of this Agreement shall not constitute a waiver of any term.\n13. This Agreement shall be in force on the Execution Date and shall remain in force for a period of twenty-four (24) months. Notwithstanding the term of the Agreement, the Parties undertake to maintain the confidentiality obligation for a period of three (3) years after Confidential Information disclosure.\n14. This Agreement binds not only the parties, but also their successors and assignees.\n15. Governing law and Venue:\n(i) If you the Company is located in Latin America countries: This Agreement shall be governed by and construed in accordance with the laws of Brazil. 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"text": "NON-DISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (the \"Agreement\") is entered into by and between The National Archives, (the \"Disclosing Party\"), and _______________________, located at __________________ _________________________________________________ (the \"Receiving Party\"), for the purpose of preventing the unauthorised disclosure of Sensitive Information as defined below, in line with HMG\u2019s Security Policy Framework. The parties agree to enter into a confidential relationship with respect to the disclosure of certain sensitive, proprietary or protected information (\"Sensitive Information\").\n1. Definition of Sensitive Information. For purposes of this Agreement, \"Sensitive Information\" shall include all information or material that\n\uf0b7 has or could have commercial value or other utility in the business in which Disclosing Party is engaged\n\uf0b7 might lead to the security of the Disclosing Party\u2019s physical or information assets or the safety of its staff and customers being compromised.\nIf Sensitive Information is in a physical or electronic form, the Disclosing Party shall label or stamp the materials with the words OFFICIAL-SENSITIVE, or some similar warning, in line with HMG\u2019s protective marking scheme. If Sensitive Information is transmitted orally, the Disclosing Party shall promptly provide a writing indicating that such oral communication constituted Sensitive Information.\n2. Exclusions from Sensitive Information. Receiving Party's obligations under this Agreement do not extend to information that is: (a) publicly known at the time of disclosure or subsequently becomes publicly known through no fault of the Receiving Party; (b) discovered or created by the Receiving Party before disclosure by Disclosing Party; (c) learned by the Receiving Party through legitimate means other than from the Disclosing Party or Disclosing Party's representatives; (d) is disclosed by Receiving Party with Disclosing Party's prior written approval; or (e) independently developed by the Receiving Party outside the scope of this agreement.\n3. Obligations of Receiving Party. Receiving Party shall hold and maintain the Sensitive Information in strictest confidence for the sole and exclusive benefit of the Disclosing Party. Receiving Party shall carefully restrict access to Sensitive Information to employees, contractors and third parties as is reasonably required and shall require those persons to sign nondisclosure restrictions at least as protective as those in this Agreement. Receiving Party shall put in place effective governance controls to monitor compliance and respond to (and report) any security breach incidents. Receiving Party shall not, without prior written approval of Disclosing Party, use for Receiving Party's own benefit, publish, copy, or otherwise disclose to others, or permit the use by others for their benefit or to the detriment of Disclosing Party, any Sensitive Information. Receiving Party shall return to Disclosing Party any and all records, notes, and other written, printed, or tangible materials in its possession pertaining to Sensitive Information within a reasonable time period if Disclosing Party requests it in writing.\n4. Time Periods. The non-disclosure provisions of this Agreement shall survive the termination of this Agreement and Receiving Party's duty to hold Sensitive Information in confidence shall remain in effect until the Sensitive Information no longer qualifies as a trade secret or otherwise needing protection until Disclosing Party sends Receiving Party written notice releasing Receiving Party from this Agreement, whichever occurs first.\n5. Relationships. Nothing contained in this Agreement shall be deemed to constitute either party a partner, joint venture or employee of the other party for any purpose.\n6. Severability. If a court finds any provision of this Agreement invalid or unenforceable, the remainder of this Agreement shall be interpreted so as best to effect the intent of the parties.\n7. Integration. This Agreement expresses the complete understanding of the parties with respect to the subject matter and supersedes all prior proposals, agreements, representations and understandings. This Agreement may not be amended except in writing signed by both parties.\n8. Waiver. The failure to exercise any right provided in this Agreement shall not be a waiver of prior or subsequent rights.\nThis Agreement and each party's obligations shall be binding on the representatives, assigns and successors of such party. Each party has signed this Agreement through its authorised representative. __________________________________________________________________________ (Signature, on behalf of Disclosing Party)\nDate: _______________\n__________________________________________________________________________ (Signature, on behalf of Receiving Party)\n",
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"text": "NON DISCLOSURE AGREEMENT\n(NDA covering any Pitch Deck Fire organized workshop or event)\nTHIS AGREEMENT is made and entered into by all parties who participate in any way (as an event ticket holder or otherwise, paid event or otherwise) in _______Zero to Pitch Deck \u2013 February 11th 2017_______ (\u201cthe Event\u201d) that is organized by Pitch Deck Fire or it\u2019s officers. Parties agree to enter into this agreements by purchasing a ticket to or attending the event as on the date of the ticket purchased or event date, whichever comes first (\u201cEffective Date\u201d). The agreement covers information shared by and between any event participant (\u201cthe Disclosing Party\u201d) and any other event participant, (\u201cthe Recipient\u201d) (collectively, \u201cthe Parties\u201d).\nPurpose for Disclosure (\u201cBusiness Purpose\u201d): Relevant information may be disclosed by the Disclosing Party to the Recipient during the course of activities of the event to collaboratively ensure that attendees fully understand and effectively utilize the training material. This agreement covers the entirety of the event and any and all information shared by any party at the event to any other party at the event or after the event. The information may be shared verbally, visually, in a document, via email or other digital forum. The Parties hereby agree as follows:\n1. For purposes of this Agreement, \"Confidential Information\" shall mean any and all non-public information, including, without limitation, technical, developmental, marketing, sales, operating, performance, cost, know-how, business plans, business methods, and process information, disclosed to the Recipient. For convenience, the Disclosing Party may, but is not required to, mark written Confidential Information with the legend \"Confidential\" or an equivalent designation.\n2. All Confidential Information disclosed to the Recipient will be used solely for the Business Purpose and for no other purpose whatsoever. The Recipient agrees to keep the Disclosing Party\u2019s Confidential Information confidential and to protect the confidentiality of such Confidential Information with the same degree of care with which it protects the confidentiality of its own confidential information, but in no event with less than a reasonable degree of care. Recipient may disclose Confidential Information only to its employees, agents, consultants and contractors on a need-to-know basis, and only if such employees, agents, consultants and contractors have executed appropriate written agreements with Recipient sufficient to enable Recipient to enforce all the provisions of this Agreement. Recipient shall not make any copies of Disclosing Party\u2019s Confidential Information except as needed for the Business Purpose. At the request of Disclosing Party, Recipient shall return to Disclosing Party all Confidential Information of Disclosing Party (including any copies thereof) or certify the destruction thereof.\n3. All right title and interest in and to the Confidential Information shall remain with Disclosing Party or its licensors. Nothing in this Agreement is intended to grant any rights to Recipient under any patents, copyrights, trademarks, or trade secrets of Disclosing Party. ALL CONFIDENTIAL INFORMATION IS PROVIDED \"AS IS\". THE DISCLOSING PARTY MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR ITS ACCURACY, COMPLETENESS OR PERFORMANCE.\n4. The obligations and limitations set forth herein regarding Confidential Information shall not apply to information which is: (a) at any time in the public domain, other than by a breach on the part of the Recipient; or (b) at any time rightfully received from a third party which had the right to and transmits it to the Recipient without any obligation of confidentiality.\n5. In the event that the Recipient shall breach this Agreement, or in the event that a breach appears to be imminent, the Disclosing Party shall be entitled to all legal and equitable remedies afforded it by law, and in addition may recover all reasonable costs and attorneys' fees incurred in seeking such remedies. If the Confidential Information is sought by any third party, including by way of subpoena or other court process, the Recipient shall inform the Disclosing Party of the request in sufficient time to permit the Disclosing Party to object to and, if necessary, seek court intervention to prevent the disclosure.\n6. The validity, construction and enforceability of this Agreement shall be governed in all respects by the law of the state of Colorado. This Agreement may not be amended except in writing signed by a duly authorized representative of the respective Parties. This Agreement shall control in the event of a conflict with any other agreement between the Parties with respect to the subject matter hereof.\nIN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written.\nPitch Deck Fire confirms that this information has been made clear and publically available to all event attendees.\nPitch Deck Fire agrees that if a Participant delivers to Pitch Deck Fire any information or data marked or identified as confidential or proprietary (\"confidential information\"), then Pitch Deck Fire shall not, except as otherwise permitted or instructed by the applicable Participant in writing (a) disclose or otherwise make available the confidential information to any third party except to the extent otherwise expressly permitted by this Agreement, (b) modify, copy, transmit, alter, merge, decompile, disassemble, reverse engineer or adapt any portion of the confidential information.\nName: Stacie Shaw__________\nTitle: Founder and Lead Designer \u2013 Pitch Deck Fire__\nSignature: _______________________________\n",
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"text": "CONFIDENTIALITY, NON-DISCLOSURE AND CONFLICT OF INTEREST AGREEMENT\nVer 1\nAdopted by the SAMED Board on:\nNovember 2013\nBetween\nSouth African Medical Devices Industry Association (SAMED)\nAnd\n(who is a Member of the Board of SAMED and/or a member of SAMED Committee)\nHereinafter collectively \u201cthe parties\u201d\n1. Confidentiality Policy\n1.1 The purpose of this agreement is to ensure that confidential matters brought before the Members of the Board of SAMED or any of its committees, are not disclosed until disclosure is properly authorized. SAMED Board and Committee members are in positions of trust towards SAMED as a voluntary membership organization, and such trust may require that elected and appointed persons act with the highest integrity and keep certain information confidential, and avoid conflicts of interest.\n1.2 This agreement is designed to provide clarity for each Board Member and Committee Member with regard to confidential matters that come before- or arise out of meetings and matters of the Members of the Board of SAMED or any of its committees, and provides certainty as to how situations of conflict of interest are to be handled.\n1.3 Its objective is to address matters of confidentiality in a manner that facilitates the Board, and Committees in maintaining the highest business and ethical standards, protects the integrity of SAMED, the Board, and Committees, allows for appropriate levels of transparency and accountability in matters before the Board, and supports the maintenance of effective relationships among Board Members, SAMED and Committee Members.\n2. Definitions\n2.1 \u201cAgreement\u201d means this Confidentiality and Non-Disclosure Agreement\n2.2 \"Board\" means the Board of SAMED.\n2.3 \u201cBoard Members\u201d means members of the Board.\n2.4 \u201cChair\u201d means Chair of the Board.\n2.5 \"Committee\" means a committee of the Board.\n2.6 \"Committee Members\" means members of any Committee.\n2.7 \"Meeting\" means a meeting of the Board or a Committee, as applicable.\n2.8 \"Policy\" means this Confidentiality Policy\n2.9 \u201cSAMED\u201d means South African Medical Devices Industry Association\n2.10 \u201cVice-Chair\u201d, means Vice-Chair of the Board\n3. The information\n3.1 \"Information\" shall for the purposes of this agreement include, without limitation, any technical, commercial, scientific information, know-how, trade secrets, processes, machinery, designs, drawings, technical specifications, clients, prospects, historical and forecast financial information, organisational and operational structure and data in whatever form, communicated to the receiving party or acquired by the receiving party from the disclosing party during the course of the parties' association with one another.\n4. Confidentiality\n4.1 Regular Board meetings are, in the ordinary course of events, not open to the public and/or media.\na) Members of SAMED may on invitation attend Board meetings.\nb) Once the Board has dealt with an issue in a board meeting and has decided on that matter, the issue is considered to be accessible to members to the extent of that decision. Matters that are so declared may be accessible to the public at large to the extent so declared by the Board.\nc) All decisions that would be accessible to the general membership and/or the public at large will be recorded as such in the Board minutes.\nd) If no recordal is made, the matter, discussions and all resolutions should be deemed to be confidential unless declared by the Board by resolution as not confidential.\ne) When considering whether matters are confidential or not, the nature of SAMED as a membership organization, the prospects of harm to SAMED (including harm to its reputation, good processes and procedures and good governance), as well as the impact of any such decision on members or groups of members, must, amongst others, be considered.\n4.2 The Board also holds in-camera meetings, All present at any in-camera meeting will be bound to keep the proceedings confidential, unless otherwise directed by the Chairperson of the Board of Directors or any committee created by it with a support of the majority. Exiting and re-entering an in camera session will be permitted with the understanding that all present are obligated to keep the proceedings confidential.\n4.3 Non-members will be permitted to attend an in-camera session of the Board of Directors or any Committee created by it, only after a motion requesting attendance to an in camera session is approved by a majority vote of members present and voting. External consultants present during such in camera sessions may be required to preserve the confidentiality of discussions during such a session.\n4.4 If any person in attendance at a meeting of the Board of Directors or any Committee created by it, held in-camera, shall give notice of their intention not to be bound by the provisions of this by-law of SAMED, and refuse to leave the room when requested to do so, the Chair shall, subject to a resolution of the board supported by a majority vote, adjourn the meeting, after having informed members that it will be reconvened at a time and place of which the offending person will not be notified.\n4.5 Committees are advisory to the Board. Only the full Board makes formal decisions. Committee meetings are held in-camera, and their recommendations should not be discussed outside of the Committee or the Board. Discussions with others for the purpose of gathering input for committee consideration are acceptable and each Committee chair would have to exercise discretion and communication that decision to all present during a Committee meeting where an external person is present.\n5. Conflict of Interest\n5.1 A conflict of interest arises when there is a relationship which exists which could result in the Board or Committee member being perceived as being biased either for or against the topic of discussion.\n5.2 Any Member of the SAMED Board, Executive, and/or Staff who has a personal interest, directly or indirectly, in any contract, transaction, proposed contract, or proposed transaction, under consideration of the Board of Directors or of a Committee created by it shall be deemed as being in a conflict of interest, where:\na) Contract is defined as any written or verbal agreement between two or more parties for the doing or not doing of something specified which is related to the matter at hand.\nb) Transaction is defined as an exchange of money, services, goods, position, or favours are exchanged for money, services, goods, position or favours.\nc) Interest is defined as any instance where any contract or transaction, proposed contract or proposed transaction could be to the benefit or detriment of themselves, family, partners, roommates/housemates, other organizations to which they are currently affiliated, that do not pertain to their job description or mandate.\n5.3 Conflicts of interest may also arise in matters that may lead to a direct benefit to a particular Board member and/or his/her company, which position may conflict with either the law and/or codes of good practice and/or SAMED policy on a particular matter or the approach that should be taken to specific types of matters.\n 5.4 Where the Board of Directors or a Committee created by it is of the opinion that a conflict of interest exists that has not been declared, the Board of Directors or Committee may declare, by a resolution carried by two-thirds of the members present and voting at the meeting, that a conflict of interest exists and that the member found in conflict shall follow the procedure below.\n 5.5 In the event of a conflict of interest, the interested party shall:\na) Prior to any vote on the issue, declare the conflict of interest to the Chair or Board as a whole.\nb) Refrain from voting in relation to the matter.\nc) Withdraw from the meeting when the matter is discussed if requested to do so by a simple majority of the members present and voting at the meeting.\n6. Breaches\n6.1 A breach of this Confidentiality and Conflict of Interest Agreement may result in action being taken against the member (up to and including removal from the Board and/or SAMED Committee).\n6.2 In the case of a breach by a Board or Committee Member, the Board will determine what steps should be taken under the circumstances (provided that consideration of the removal of a Board member shall be on thirty (30) days notice to the Board Member. After thirty (30) days notice to the Board Member, the Board, may remove the person from the Board through the applicable provisions and procedures created by the SAMED Constitution.\n7. Terms\n7.1 This agreement shall commence upon the date of signature by both parties (\u201cthe effective date\") to this agreement and shall continue to bind the parties for the duration of one year. A new agreement must be signed should a person be re-elected or re-appointed as a Board- and/or Committee member.\n8. Additional action\n8.1 Each party to this agreement shall execute and deliver such other documents and do such other acts and things as may be necessary or desirable to give effect to the terms and provisions of this agreement. This may include the return and/or distraction of documents, information, files, emails and the like that came to be in his/her possession during his/her tenure as a Board- and/or Committee member, upon resignation or removal from such a position.\n9. Amendments\n9.1 No amendment, interpretation or waiver of any of the provisions of this agreement shall be effective unless reduced to writing and signed by both the parties.\n10. Entire agreement\n10.1 This agreement contains the entire agreement of the parties with respect to the subject matter of this agreement and supersedes all prior agreements between the parties, whether written or oral, with respect to the subject matter of this agreement.\n11. Governing law\n11.1 This agreement and the relationship of the parties in connection with the subject matter of this agreement shall be governed and determined in accordance with the laws of South Africa.\n12. Severability\n12.1 In the event of any one or more of the provisions of this agreement being held for any reason to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this agreement, and this agreement shall be construed as if such invalid, illegal or unenforceable provision was not a part of this agreement, and the agreement shall be carried out as nearly as possible in accordance with its original terms and intent.\n13. Undertaking Respecting Confidentiality and Conflicts of Interest\nWhereas, and based on the above rules, from time to time, arising out of the relationship between the undersigned and the Board and/or any Committee of SAMED, the undersigned shall come into possession or have knowledge of certain matters, information and things which are confidential, i.e. \u201cconfidential information and s/he may be in situations of conflict as outlined in the aforementioned provisions, therefore the person declares as follows:\nI have read the above undertakings and certify that I fully understand the nature and effect of these undertakings, and acknowledge receipt of a copy thereof.\nI further agree to be bound by the rules of confidentiality and conflict of interest as set out above. I also understand the need for these requirements and I believe I can meet the requirements as set out above.\nSigned at on\nFor Board / Committee Member:\nFull names and surname of Signature\nFor SAMED:\nFull names and surname Signature\n",
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"text": "MUTUAL NON-DISCLOSURE AGREEMENT\nPARTIES: McMaster University (\u2018University\u2019)\n1280 Main Street West\nHamilton, ON L8S 4L8\nCompany/Organization name(\u2018Company\u2019)\nCompany/organization address\nDATE: March 12,2019 (\u2018Effective Date\u2019)\nIn consideration of the mutual covenants set out in this Agreement and for other good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged by each of the Parties), the Parties agree as follows:\n1. DEFINITION OF CONFIDENTIAL INFORMATION\nConfidential Information means any information disclosed by one party (the \u2018Discloser\u2019) to the other (the \u2018Recipient\u2019) relating directly or indirectly to Name of Technology/Project, file # which is identified by the Discloser, either orally or in writing, as confidential, either at the time of disclosure or, if disclosed orally, confirmed in writing within thirty (30) days following the original disclosure.\n2. EXCEPTIONS TO CONFIDENTIAL INFORMATION\nThis Agreement does not apply to information that:\ni. was available to the public at the time of disclosure, or subsequently became available to the public without fault of Recipient;\nii. was known to Recipient at the time of disclosure or was independently developed by Recipient, provided there is adequate documentation to confirm such prior knowledge or independent development;\niii. was received by Recipient from a third party and Recipient was not aware that the third party had a duty of confidentiality to Discloser in respect of the information;\niv. is used or disclosed by Recipient with Discloser\u2019s prior written approval; or\nv. is required to be disclosed by law, provided that Recipient gives Discloser sufficient prior written notice of any such disclosure to allow Discloser to contest the disclosure. Any action taken by Discloser to contest the disclosure must not compromise the obligations of Recipient under the order to disclose or cause Recipient to be subject to any fine, penalty or prosecution.\n3. DESIGNATED REPRESENTATIVES\nEach party designates a representative for coordinating receipt, release and delivery of Confidential Information, which for the University will be Name of Principal Investigator and/or Technology Transfer Office representative and for Company: Name of designated representative for company, or another individual(s) as the party may designate in writing to the other party.\n4. USE OF CONFIDENTIAL INFORMATION\nRecipient may only use the Confidential Information for the purpose of type of purpose/or a research collaboration and not for any commercial purpose (\u2018Permitted Purpose\u2019). Recipient must not use the Confidential Information for any other purpose without the prior written approval of Discloser.\n5. NON-DISCLOSURE\nRecipient must keep the Confidential Information in confidence. Recipient may only disclose the Confidential Information to its employees, directors, officers, agents, students (in University\u2019s case) and consultants who have a need-to-know the Confidential Information for the Permitted Purpose, provided that they are advised of the confidential nature of the Confidential Information and are under an obligation to maintain its confidentiality. Recipient must not otherwise disclose Confidential Information to any person or third party without the prior written approval of Discloser.\n6. STANDARD OF CARE\nRecipient must use at least the same standard of care in protecting the confidentiality of the Confidential Information as it uses in protecting its own information of a similar nature and, in any event, no less than a reasonable standard of care. Recipient must notify Discloser promptly upon discovery that any Confidential Information has been accessed or otherwise acquired by or disclosed to an unauthorized person.\n7. RETURN OF CONFIDENTIAL INFORMATION\nIf requested in writing by Discloser, Recipient must cease using, return to Discloser and/or destroy all Confidential Information and any copies of Confidential Information in its possession or control. Recipient may retain one archival copy of such Confidential Information for the sole purpose of establishing the extent of the disclosure of such Confidential Information, provided that such information is not used by Recipient for any other purpose and is subject to the confidentiality requirements set out in this Agreement.\n8. NO LICENCE OR OTHER RIGHTS\nAll Confidential Information remains the property of Discloser and no licence or any other rights to the Confidential Information is granted to Recipient under this Agreement. This Agreement does not obligate the Discloser to make any disclosure of Confidential Information to the Recipient or require the parties to enter into any business relationship or further agreement.\n9. LIMITED WARRANTY & LIABILITY\nDiscloser warrants that it has the right to disclose the Confidential Information to Recipient. Discloser makes no other warranties in respect of the Confidential Information and provides all information \u201cAS IS\u201d without any express or implied warranty of any kind, including any warranty as to merchantability, fitness for a particular purpose, accuracy, completeness or violation of third party intellectual property rights. Neither party will be liable for any special, incidental or consequential damages of any kind whatsoever resulting from the disclosure, use or receipt of the Confidential Information.\n10. TERM\nThis Agreement and Recipient\u2019s obligation to keep Confidential Information confidential expires three (3) years after the Effective Date.\n11. GENERAL PROVISIONS\n11.1 Notices - All notices given under this Agreement must be in writing and delivered by courier or registered mail, return receipt requested, or facsimile, to the address of the party set out on page one of this Agreement. All notices to the University must be addressed to:\nExecutive Director\nMcMaster Industry Liaison Office\n175 Longwood Road South\nMcMaster Innovation Park, Rm. 305\nHamilton, ON L8P 0A1\nTel. 905.525.9140, ext. 23164\nFax. 905.546.1372\nyuyitun@mcmaster.ca\nand all notices to the Company must be addressed to:\ntitle/contact name for position.\nNotices will be deemed to have been received on the date of delivery, if delivered by courier, on the fifth business day following receipt, if delivered by registered mail or on the first business day following the electronic confirmation of the successful transmission of the facsimile, if sent by facsimile.\n11.2 Remedies - Recipient agrees that damages may not be an adequate remedy for any breach or threatened breach of the Recipient\u2019s obligations under this Agreement. Accordingly, in addition to any and all other available remedies, Discloser will be entitled to seek a temporary or permanent injunction or any other form of equitable relief to enforce the obligations contained in this Agreement.\n11.3 No waiver \u2013 Failure of a party to enforce its rights on one occasion will not result in a waiver of those rights on any other occasion.\n11.4 Assignment - Neither party may assign any of its rights or obligations under this Agreement without the prior written consent of the other party.\n11.5 Regulatory compliance \u2013 Each party must comply with all applicable laws, regulations and rules in its jurisdiction, including but not limited to those relating to the export of information and data.\n11.6 Entire Agreement \u2013 This Agreement represents the entire agreement between the parties with regard to the Confidential Information and supersedes any previous understandings, commitments or agreements, whether written or oral. No amendment or modification of this Agreement will be effective unless made in writing and signed by authorized representatives of both parties.\n11.7 Severability \u2013 If any provision of this Agreement is wholly or partially unenforceable for any reason, all other provisions will continue in full force and effect.\n11.8 Binding Effect - This Agreement is binding upon and will enure to the benefits of the parties and their respective successors and permitted assigns.\n11.9 Execution - This Agreement may be executed by the parties in counterparts and may be executed and delivered by facsimile or electronically by PDF and all such counterparts, facsimiles and PDF copies shall together constitute one agreement. 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"text": "University of Arkansas at Little Rock\nSTANDARD NON-DISCLOSURE AGREEMENT\nThis Agreement is effective (____/_____/______) between ___________________ (hereinafter \u201cRecipient\u201d) with its principal place of business at this address __________________________________________ and the Board of Trustees of the University of Arkansas acting for and on behalf of the University of Arkansas at Little Rock (hereinafter \u201cUniversity\u201d), a not-for-profit educational institution formed under the laws of the State of Arkansas, with offices at _2801 S. University Ave, Little Rock AR, 72204.\nThe parties agree as follows:\nArticle\n1. Confidential Information is defined as any information, whether written or verbal, of either party hereto, (Disclosing Party) which is disclosed to or observed by the other party (Receiving Party) in connection with or as a result of the evaluation of any possible transaction between the University of Arkansas at Little Rock and ______________________________ and which is, at the time of disclosure, marked as being Confidential or Proprietary, or is reasonably identifiable as confidential, proprietary information of the Disclosing Party pertaining to information in the areas of (subject matter): _______________________________________________ ___________________________. Such Confidential Information may include, but is not limited to, business plans, forecasts, content, processes, projections or analysis, software, hardware, product, or system designs, specifications, documentation, code, structure, or protocols. Confidential Information that is disclosed verbally will also be included as proprietary.\n2. Unless expressly authorized in writing by the Disclosing Party, the Receiving Party agrees to retain the Confidential Information in confidence and shall not copy or disclose the Confidential Information to or use the Confidential Information for the benefit of any third party. Confidential Information shall only be disclosed to the Receiving Party\u2019s employees and, even then, only to the extent that such employees have a specific need to know of the Confidential information, for the evaluation of the proposed transaction. Before receiving any part of the Confidential Information, Receiving Party\u2019s employees shall be required to read this Non-disclosure Agreement and, by receiving such Confidential Information, such employee shall acknowledge and agree to abide by the Receiving Party\u2019s obligations hereunder.\n3. Notwithstanding any other provisions of the Agreement, each party acknowledges that Confidential Information shall not include any information which:\na. was known to the Receiving Party prior to the disclosure hereunder;\nb. was received from a third party not under an obligation of confidence to Receiving Party;\nc. is in the public domain at the time of disclosure hereunder or subsequently entered in the public domain without the fault of the Receiving Party;\nd. has been independently developed by an employee of the Receiving Party that has not had access directly or indirectly to Confidential Information, and Receiving Party can substantiate any claim of independent development by written evidence; or\ne. is required to be disclosed by law, provided however that the Receiving Party shall give immediate notice of any such request for disclosure and cooperate with the Disclosing Party in its efforts to obtain a protective order or other protection from the requirement or consequences of disclosure.\n4. 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"text": "CONFIDENTIAL INFORMATION\nNON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT (the \u201cAgreement\u201d) is made by the undersigned _________________________________of ________________________________ with a principal place of business at _______________________________________ (individually and collectively (Recipient\u201d), in favor of Vermont Electric Power Company, Inc. and Vermont Transco LLC (collectively \u201cVELCO\u201d), with its primary address located at 366 Pinnacle Ridge Road, Rutland, Vermont 05701.\nWHEREAS, the Recipient has requested that VELCO disclose to the Recipient certain information, all or a portion of which may be classified by VELCO as Critical Energy Infrastructure Information (CEII) or BES Cyber System Information (BCSI) or business confidential information (CI) (collectively referred to as Classified Information); and\nWHEREAS, the Federal Energy Regulatory Commission has defined CEII as \u201cspecific engineering, vulnerability, or detailed design information about proposed or existing critical infrastructure that: (1) relates details about the production, generation, transportation, transmission, or distribution of energy; (2) could be useful to a person in planning an attack on critical infrastructure; (3) is exempt from mandatory disclosure under the Freedom of Information Act, 5 U.S.C. \u00a7 552 (2000); and (4) does not simply give the general location of the critical infrastructure,\u201d (see 18 C.F.R. \u00a7 388.113 (c) (1)); and\nWHEREAS, the North American Electric Reliability Corporation Critical Infrastructure Protection Standards (NERC CIP), has defined BCSI as \u201cinformation about the BES Cyber System that could be used to gain unauthorized access or pose a security threat to the BES Cyber System. BES Cyber System Information does not include individual pieces of information that by themselves do not pose a threat or could not be used to allow unauthorized access to BES Cyber Systems;\u201d and,\nWHEREAS, VELCO has identified and described, or will identify and describe, certain business sensitive information as CI in agreements or in the course of doing business; and,\nWHEREAS, VELCO must comply with federal rules and regulations relative to CEII and/or BCSI; and\nWHEREAS, the Recipient is working on ___ provide a short description of the project here___________ requiring access to certain Classified Information which may be classified as BCSI, CEII, or CI\nNOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto wish to enter into this Agreement to protect and safeguard the confidentiality of that information and agree as follows:\nSection I: BES Cyber System Information (BCSI)\nFor purposes of this Agreement, \u201cBCSI\u201d shall mean: (i) all information designated as such by VELCO, whether furnished before or after the date hereof, whether oral, written or recorded/electronic, and regardless of the manner in which it is furnished; and (ii) all reports, summaries, compilations, analyses, notes or other information which contain such information. Written information containing BCSI furnished by VELCO shall be labeled \u201cConfidential BCSI.\u201d\nSection II: Critical Energy Infrastructure Information (CEII)\nFor purposes of this Agreement, CEII shall mean: (i) all information designated as such by VELCO, whether furnished before or after the date hereof, whether oral, written or recorded/electronic, and regardless of the manner in which it is furnished; and (ii) all reports, summaries, compilations, analyses, notes or other information which contain such information. Written information containing CEII that is furnished by VELCO shall be labeled \u201cConfidential CEII\u201d.\nSection III: Business Confidential Information (CI)\nFor purposes of this agreement, CI shall mean any confidential, proprietary or trade secret information that is owned or controlled, or is specifically marked or identified as \u201cConfidential\u201d, by VELCO prior to disclosure to Recipient. It includes information of third parties in VELCO\u2019s possession that VELCO is obligated to keep confidential. CI subject to this Agreement may be in intangible form, such as information communicated orally or by visual observation, or may be embodied in tangible form, such as a document. The term \"document\" includes written memoranda, drawings, sketches, maps, training materials, specifications, notebook entries, photographs, graphic representations, firmware, computer information or software, information communicated by other electronic or magnetic media, or models.\nSection IV: Use and Protection of Classified Information\n1. Information labeled \u201cConfidential BCSI\u201d shall be treated and protected in accordance with the enforceable version of the NERC CIP-011 Cyber Security \u2013 Information Protection standard and shall require a Recipient background check and Recipient\u2019s successful completion of VELCO-designated training in addition to compliance with the other requirements of and protections in this Agreement; and\n2. Recipient shall keep all Classified Information in a secure place. Recipient shall limit access to Classified Information to other Recipients who also have the right pursuant to an agreement with VELCO to access the identical material. Any notes made by Recipient containing Classified Information shall be marked and designated in accordance with Sections I, II, and/or III above, and Recipient shall protect the Classified Information in accordance with that designation.\n3. The Recipient shall exercise reasonable care to maintain the confidentiality and secrecy of the Classified Information, and shall not divulge Classified Information to any third party without the prior written consent of the VELCO. The foregoing notwithstanding, the Recipient may disclose classified information to its employees or contractors (hereafter Representatives) to the extent each such Representative has a need to know such information to conduct the work referenced in the Whereas clauses, and shall comply with Recipient\u2019s obligations under this Agreement. The Recipient is responsible for its Representative\u2019s breach of the terms of this Agreement.\n4. Recipient and each of its Representatives shall use all Classified Information disclosed by VELCO solely in connection with the work referenced in the Whereas clauses and shall not use, directly or indirectly, any information for any other purpose without VELCO\u2019s prior written consent. A Recipient will not use or allow a Representative to use Classified Information directly or indirectly for any illegal purpose, non-legitimate purpose, or any purpose other than the work referenced in the Whereas clause.\n5. In the event that the Recipient is required to disclose Classified Information by subpoena, law or other directive of a court, administrative agency, or arbitration panel, the Recipient will provide VELCO with immediate notice of such request in order to enable VELCO (and Recipient shall cooperate fully with VELCO) to seek an appropriate protective order or other remedy. Recipient shall also consult with VELCO to identify steps available to quash or narrow the scope of such request or legal process. VELCO may in its sole discretion waive compliance, in whole or in part, with the terms of this Agreement. In the event that such protective order or other remedy is not obtained, or VELCO waives compliance, the Recipient shall furnish only that portion of the Classified Information which the Recipient/\u2019s counsel advises is legally required to comply with a governmental order or directive and shall exercise best efforts to obtain assurance that confidential treatment will be accorded such Classified Information.\n6. In the event that VELCO, in its sole discretion, so requests, the Recipient will promptly return to VELCO or destroy in accordance with VELCO\u2019s instructions, all Classified Information, including all copies, reproductions, compilations, analyses or extracts thereof, whether electronic or paper media.\n7. Change in Status. If there is a change in status of the Recipient to his/her employer, he/she must inform VELCO immediately in writing at the address given above (Attention: Information Protection Coordinator) and follow VELCO\u2019s instructions with respect to disposition of the Classified Information.\n8. CEII and BCSI \u201con Loan\u201d. CEII and BCSI information provided pursuant to this Agreement is \u201con loan.\u201d If the Recipient is an employee of a federal or state agency, he/she must note that the Classified Information is not the property of the agency, and is not subject to Freedom of Information Act, Vermont\u2019s Public Records Act , or similar statutes. In addition, if the Recipient is an employee of the State of Vermont, he/she must note that the information qualifies under federal law for restricted and limited use/distribution, and may be disclosed only to specifically designated persons, and in both cases, with prior VELCO approval.\n9. No Warranty. The Classified Information is provided \u201cas is\u201d with all faults. In no event shall VELCO be liable for the accuracy or completeness of the Classified Information. VELCO shall not have liability to the Recipient, or any other person or entity, for the Recipient\u2019s use of any Classified Information disclosed pursuant to this Agreement.\n10. Equitable Relief; Audit. The provisions of this Agreement are necessary for the protection of the business and goodwill of the parties and are considered by the parties to be reasonable for such purpose. Recipient agrees that any breach of this Agreement would cause VELCO substantial and irreparable harm and, therefore, in the event of any such breach or threatened breach, in addition to other remedies which may be available, VELCO shall have the right to specific performance and other injunctive and equitable relief, it being acknowledged that legal remedies are inadequate. VELCO may audit the Recipient\u2019s compliance with this Agreement.\n11. Survival. The Recipient/ remains bound by these provisions unless VELCO rescinds the Classified Information designation.\n12. No Waiver. The Recipient understands and agrees that no failure or delay by VELCO in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\n13. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Vermont without regard to its conflicts of laws principles.\n14. Assignment Prohibited. Any assignment of the Recipient\u2019s rights, obligations or duties under this Agreement without VELCO\u2019s prior written consent shall be void.\n15. Entire Agreement. This Agreement contains the entire agreement between the parties concerning the protection of Classified Information and no modification of this Agreement or waiver of the terms and conditions hereof shall be binding upon the parties, unless approved in writing by each of them.\n16. Severability. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth below.\nNDA For Individual Only NDA For Company \u2013 By signing here, you represent that your company assumes responsibility for your employees\u2019, contractors\u2019, and consultants\u2019\nCheck Here: \uf0a3\ncompliance with this NDA.\nCheck Here: \uf0a3\nRecipient Signature\nName (please print)\nTitle\nOrganization\nDate\nAddress\nPhone\n",
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"text": "NON-DISCLOSURE AGREEMENT\nThe parties to this Agreement are MPD Technologies, Inc. (\"Disclosing Party\") and the undersigned \"Recipient\". The parties desire that Disclosing Party disclose certain Information or Items to Recipient, but Disclosing Party desires to maintain the trade secret, proprietary or private nature of such Information or Items.\nAs used herein, the following words have the indicated meanings:\n(i) \"Disclose\" means to reveal, make known, make available, furnish, or permit access to, whether or not intentionally.\n(ii) \"Information\" means all oral, written, or other information whatsoever, including information in documents and other recording media and information embodied in any item, which in connection with the Matter, is (a) obtained by Recipient from or through Disclosing Party, (b) obtained by or through Recipient by an examination of any Item, or (c) created by or through Recipient with the use of information in (a) or (b). It includes but is not limited to ideas, inventions, discoveries, formulas, methods, designs, drawings, specifications, engineering and manufacturing data. This information is limited to trade secrets and other proprietary or private information of Disclosing Party or of any third party if disclosed by or through Disclosing Party.\n(iii) \"Item\" means any system, subsystem, assembly, subassembly, device, components, product, or machine, work of authorship, or part thereof, or substance which is disclosed by or through Disclosing Party hereunder, which embodies trade secret or other proprietary or private information of Disclosing Party or of any third party if disclosed by or through Disclosing Party.\n(iv) \"Matter\" means the project or other matter in connection with which this Agreement is executed. This matter is or relates to the potential acquisition by the Recipient of a controlling ownership interest in the share capital or business of the Disclosing Party.\nThe parties to this Agreement have agreed as follows:\n1. Non-Disclosure. Recipient agrees as follows:\n1.1. For a period of three (3) years from the date of entering in to this Agreement, not to disclosure any Information or Item, in any manner whatsoever, directly or indirectly, whether in whole or in part, without the prior written consent of Disclosing Party, to any individual, firm or entity, excepting solely an individual who (a) is an officer, director or employee of Disclosing Party or of the Recipient and (b) has a clear need to know for purposes directly related to the Matter.\n2. Exclusions. The obligations of a Recipient under Section 1.1 hereof shall not apply to the following:\n2.1. Any Information which, at the time of disclosure, is already rightfully possessed by Recipient or is already in the public domain;\n2.2. Any Information which, after the disclosure, enters the public domain without any action or fault of Recipient.\n2.3. Any Information which is obtained, other than in connection with the Matter, from any individual, firm or entity which had the unrestricted right to disclose it;\n2.4. Any Information which is developed independently by Recipient without reference to any Information or Item;\n3. Non-Disclosure Agreements from Third Parties. If Disclosing Party gives its written consent to Recipient to disclose Information or Items to a third party, Recipient shall require the third party to execute a non-disclosure agreement in form, and substance satisfactory to Disclosing Party. Recipient shall promptly furnish Disclosing Party with a copy of all such non-disclosure agreements.\n4. Notification of Mandatory Disclosure by Recipient. In the event you are required by any legal or civil proceeding to disclose the Information or Items to a third party, you agree to provide prompt notice to the Disclosing Party, so that we might attempt to secure an appropriate protective order, or waive your compliance with this Agreement. You agree to cooperate with the Disclosing Party in its attempts to secure such a protective order.\n5. Only One Source of Discussion. You agree that you will only discuss the Matter with Mr. Al Weber, Chief Executive Officer, or Mr. Thomas V. Gilboy, Chief Financial Officer of the Disclosing Party. Under no circumstances will you discuss the Matter, or admit that the Matter has been a topic of discussion with any other employees of the Disclosing Party, or any other third party. In addition, during 2000, you agree not to undertake any unusual efforts to research the business, operations, prospects or finances of the Disclosing Party, where such research efforts would include discussions with any third party, except in the ordinary course of business.\n6. Employees. For a period of two (2) years Recipient (or any agent or affiliates of the Recipient) will not have discussions with any \"Covered Employees\" of the Disclosing Party regarding employment opportunities with the Recipient or any of its affiliates. \"Covered Employees\" will include any person who is employed by the recipient as a part or full time employee either as of the date of this Agreement, or persons that subsequently become employees of the Disclosing Party. However, if a person subsequently terminates their employment with the Disclosing Party, then the recipient can have such discussions with that person, after a 5-day waiting period. In addition, if the Recipient published a general posting for employment opportunities in any publication or web site, and one of the Recipient's Covered Employees should respond to the posting, then the Recipient will be free to have such discussions with that person.\n7. Survival. This Agreement shall survive the execution of any subsequent contract between the parties hereto, excepting solely if the subsequent contract relates to the Matter and expressly addresses Recipient's non-disclosure obligations with respect to the Matter.\n8. Preservation of Markings. Recipient shall not alter or delete any markings on any Information or Item restricting its disclosure, use or reproduction or indicating its proprietary or private status. Recipient shall include all such markings in all copies of any Information which it makes.\n9. No Proprietary Right; Return of Information or Items. Nothing herein shall confer upon Recipient any right, title, interest or license whatsoever in or to any Information or Items. At the end of our discussions regarding the Matter, the Disclosing Party has the right to request that the Recipient return all Information or Items to the Disclosing Party.\n10. No Obligations regarding any Transaction. Neither party is under any obligation to pursue or conclude a transaction in connection with the Matter. Both parties will bear their own expenses associated with discussions pertaining to the Matter.\n11. No Representations or Warranties. The Disclosing Party makes no representation or warranties of any nature regarding the accuracy or completeness of the Information or Items provided to the Recipient at this time.\n12. Injunction. In the event of any breach of this Agreement by either party, or any threatened or attempted breach by either party, the other party to this Agreement shall be entitled to an injunction against the breaching party. Nothing contained herein precludes the other party from pursuing any other remedies available hereunder or at law or equity for such breach, including the recovery of damages.\n13. General\n13.1. This agreement constitutes the entire, final and complete agreement between the parties relevant to the subject matter hereof, and it supersedes and replaces all written and oral agreements relevant to the subject matter made or existing by and between the parties or their representatives, and there shall be no modifications hereto unless it is in writing signed by the parties.\n13.2. Validity, interpretation, performance, remedies, and all other issues relating to this Agreement shall be governed by the internal law of the State of New York.\n13.3. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, legal representatives, successors and assigns.\nMPD TECHNOLOGIES, INC. TELEFONAKTIEBOLAGET LM ERICSSON\nSignature: /s/ Thomas V. Gilboy Signature: /s/ Rolf Eriksson\n--------------------- ------------------------\nName: Thomas V. Gilboy Name: Rolf Eriksson\n------------------------ -----------------------------\nTitle: Chief Financial Officer Title: Vice President\n----------------------- ----------------------------\nDate: 6 July 2000 Date: 6 July 2000\n----------------------- -----------------------------\n4\n",
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"text": "NON-DISCLOSURE AGREEMENT\nThis Agreement, dated as of May 21, 1996 is between Granite State Energy, Inc., with offices at 25 Research Drive, Westboro, MA, (\"GSEnergy\") and New England Power Company, with offices at 25 Research Drive, Westborough, MA (\"Company\").\nWHEREAS, the Company and GSEnergy wish to discuss a prospective purchase of power for purposes of the New Hampshire Retail Competition Pilot Program (the \"Prospective Purchase\");\nFOR GOOD AND VALUABLE CONSIDERATION, GSEnergy and the Company agree as follows:\n1. In connection with the Prospective Purchase, the Company will provide GSEnergy with certain proprietary and commercially sensitive information and develop further such information with GSEnergy (all of the foregoing hereinafter referred to as \"Information\") which it wishes GSEnergy to maintain as confidential. GSEnergy agrees that it will safeguard such Information maintaining it confidential and not using it except for the purposes of such review and analysis.\nThe term \"Information\" shall mean and includes all information in whatever form, provided for the purpose of GSEnergy's review and analysis, but is not information which:\n(a) is in the public domain at the time of disclosure to GSEnergy; or\n(b) enters the public domain after disclosure to GSEnergy, except where such entry is the result of a breach by GSEnergy of this Agreement; or\n(c) was already in the possession of GSEnergy prior to disclosure to GSEnergy and was not then subject to an obligation of confidence; or\n(d) is rightfully disclosed to GSEnergy by a third person.\n2. GSEnergy agrees to maintain all Information in secrecy and confidence for a period of seven (7) years from the date of disclosure thereof, using the same degree of care as is used to protect its own Information. In no event will this degree of care be less than a reasonable degree of care.\n3. If GSEnergy desires to use individuals not employed by GSEnergy, GSEnergy shall not disclose Information to these individuals without obtaining prior written approval from the Company and having appropriate non-disclosure agreements signed in form and substance satisfactory to the Company.\n4. It will not constitute a violation of this Agreement for GSEnergy to disclose Information as required by a governmental body or a court of competent jurisdiction or as otherwise required by law, provided that the Company has been given notice of such requirement and been afforded a reasonable opportunity to contest it, if applicable.\n5. If any provision of this Agreement is or becomes or is deemed invalid, illegal or unenforceable in any jurisdiction, such provision shall be deemed amended to conform to applicable laws so as to be valid and enforceable or, if it cannot be so amended without materially altering the intention of the parties, it shall be stricken, and the remainder of this Agreement shall remain in full force and effect.\n6. This Agreement shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of Massachusetts.\n7. This Agreement may be executed in any number of counterparts, each of which shall be an original and all of which shall constitute together but one and the same document.\n8. All notices from GSEnergy hereunder shall be in writing and delivered to the attention of Mr. Michael J. Hager, New England Power Company, 25 Research Drive, Westborough, MA 01582. All notices from the Company hereunder shall be in writing and delivered to GSEnergy at the above address.\nIN WITNESS WHEREOF, GSEnergy and the Company have caused this Agreement to be executed by their authorized representatives.\nGRANITE STATE ENERGY, INC.\nBy: s/John H. Dickson\nTitle: President\nNEW ENGLAND POWER COMPANY\nBy: s/Jeffrey Tranen\nTitle: President\n",
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"text": "MUTUAL NON-DISCLOSURE AGREEMENT\nThis Agreement, made as of this 27th day of September, 1999 (the \"Effective Date\") by and between Ben & Jerry's Homemade, Inc., a Vermont corporation headquartered at 30 Community Drive, South Burlington, Vermont 05403 (\"Ben & Jerry's\") and Conopco, Inc., with an address at 390 Park Avenue, New York, NY 10022 (collectively, the \"Company\"), sets forth the terms and conditions of the confidential disclosure of certain information between the parties. The party from time to time disclosing Confidential Information, as herein defined, shall be referred to as the \"Discloser\" with respect to such Confidential Information and the party from time to time receiving such Confidential Information shall be referred to as the \"Recipient\" with respect to such Confidential Information. The terms \"Ben & Jerry's Confidential Information\" and the \"Company's Confidential Information\" shall refer to the Confidential Information disclosed by Ben & Jerry's and the Company as Disclosers, respectively.\nIn consideration of the premises set forth below and other valuable consideration, the receipt of which in hereby acknowledged by each party, Ben & Jerry's and the Company agree as follows:\n1. \"Confidential Information\" shall mean all information disclosed to Recipient by Discloser or its agents or employees in any manner, whether orally, visually or in tangible form (including, without limitation, documents, devices and computer readable media) and all copies thereof, whether created by Discloser or Recipient. Tangible materials that disclose or embody Confidential Information shall be marked, to the extent practicable, by Discloser as \"Confidential,\" \"Proprietary\" or the substantial equivalent thereof.\n2. Except as expressly permitted herein, Recipient shall not disclose Confidential Information and shall prevent the disclosure of such information by Recipient or its affiliates and their respective employees, directors, counsel, advisors, agents and independent contractors (all of which collectively \"Representatives\") by using the same degree of care to keep confidential the Confidential Information as it uses to keep confidential its own confidential information. In addition, except as permitted herein, Recipient shall not disclose the fact that the parties are exchanging Confidential Information and having discussions. In connection therewith, it is agreed that no public release or disclosure of any contemplated transaction shall be made except by a mutually agreed disclosure except that each party may make such disclosure if advised by its outside securities counsel in writing that such disclosure is required; PROVIDED, HOWEVER, that in such event such party will notify the other party that it intends, as a preliminary matter, to take such action and the outside securities counsel of such party shall first discuss the mater with the outside securities counsel of the other party before any definitive decision is made on the disclosure.\n3. Recipients shall use Confidential Information solely for the purpose (the \"Permitted Purpose\") specified at the end of this Agreement.\n4. Recipient shall disclose Confidential Information only to those of its Representatives who have a need to know such information for the Permitted Purpose.\n5. Confidential Information shall not include any information that:\n(a) was in Recipient's or its Representative's possession prior to disclosure by Discloser hereunder;\n(b) was generally known, in the trade or business in which it is practiced by Recipient or its Representatives at the time of disclosure to Recipient or its Representatives hereunder, or becomes so generally known after such disclosure, through no act of Recipient or its employees, agents or independent contractors in violation of this Agreement;\n(c) has come into the possession of Recipient or its Representatives from a third party who is not, to Recipient's knowledge, under any obligation to Discloser to maintain the confidentiality of such information;\n(d) was developed by Recipient or its Representatives independently of and without reference to Confidential Information.\nIf a particular portion or aspect of Confidential Information becomes subject to any of the foregoing exceptions, all other portions or aspects of such information shall remain subject to all of the provisions of this Agreement.\n6. Recipient agrees not to reproduce or copy by any means Confidential Information, except as reasonably required to accomplish such Recipient's Permitted Purpose. Upon written demand by Discloser at any time, Recipient shall return promptly to Discloser or destroy, at Recipient's option, all tangible materials that disclose or embody Confidential Information except that Recipient's counsel may, upon written notice to Disclosure's counsel, retain a single copy of Confidential Information in its records solely for use in dispute resolution or as otherwise required by law. Recipient shall not remove any proprietary rights legend from, and shall, upon Discloser's reasonable written request, add an appropriate proprietary legend to, materials disclosing or embodying Confidential Information.\n7. In the event that Recipient is ordered to disclose Discloser's Confidential Information pursuant to a judicial or governmental request, requirement or order, Recipient shall promptly notify Discloser and take reasonable steps at Discloser's expense to assist Discloser in contesting such request, requirement or order or otherwise protecting Discloser's rights.\n8. Discloser understands that Recipient is an ice cream manufacturer and engaged in distribution (and with arrangements with distributors or subdistributors) and that planned activities in all such areas that are independently developed, pursued or acquired by the Recipient may contain ideas and concepts similar or identical to those contained in Discloser's Confidential Information. Discloser agrees that entering into this Agreement shall not preclude Recipient from developing, pursuing or acquiring projects similar to Discloser's, without obligation to Discloser, provided Recipient does not breach its obligations to Discloser under this Agreement or use the Confidential Information to develop or pursue such projects. The parties agree that unless and until a definitive written agreement between the Company and Ben & Jerry's has been executed and delivered relating to a specific transaction (which agreement contains customary conditions, representations, warranties and covenants for an agreement of that kind), neither party shall be under any obligation whatsoever with respect to such a transaction by virtue of this or any written or oral communication with respect to such a transaction by it or any of its respective Representatives.\n9. The rights and obligations herein shall bind the parties and their successors and assigns. This Agreement expresses the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes al prior oral or written agreements, commitments and understandings pertaining to the subject matter hereof. Any modifications of or changes in this Agreement shall be in writing and signed by both parties. This Agreement shall remain in full force and effect for two years. Any causes of action accrued on or before the expiration of such period shall survive the expiration of the applicable statute of limitations.\n10. This Agreement and any controversies, disputes or claims arising out of or relating to the subject matter of this Agreement shall be governed by and construed in accordance with the laws of the State of New York and the parties agree to submit any and all such controversies, disputes, or claims to the exclusive jurisdiction of the federal courts located in New York, New York.\nPERMITTED PURPOSES\nA. The \"Permitted Purpose\" with respect to Confidential Information disclosed to the Company shall be, to evaluate whether or not to enter into an agreement with Ben & Jerry's relating to a joint venture, other cooperative venture or the like between Ben & Jerry's and the Company.\nB. The \"Permitted Purpose\" with respect to Confidential Information disclosed to Ben & Jerry's shall be: to evaluate whether or not to enter into an agreement with the Company relating to a joint venture, other cooperative venture or the like between Ben & Jerry's and the Company.\nIN WITNESS WHEREOF, each party has caused this Agreement to be executed and delivered by its authorized officer.\nCONOPCO, INC., BEN & JERRY'S HOMEMADE, INC.,\nBy: /S/MART LAIUS By: /S/ PERRY D. ODAK\n--------------------------- -----------------------------------\nTitle: VICE PRESIDENT Title: Chief Executive Officer\nDate: September 27, 1999 Date: September 27, 1999\n",
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"text": "NON-COMPETITION, REFERRAL AND NON-DISCLOSURE AGREEMENT\nNON-COMPETITION, REFERRAL AND NON-DISCLOSURE AGREEMENT (the \"Agreement\"), dated as of May 10 , 1999, by and between CompuCom Systems, Inc., a Delaware corporation (\"CompuCom\"), and ENTEX Information Services, Inc., a Delaware corporation (\"Seller\").\nRECITALS\nWHEREAS, CompuCom and Seller have entered into an Asset Purchase Agreement dated as of May 10 , 1999 (the \"Asset Purchase Agreement\");\nWHEREAS, the execution of this Agreement is a condition to CompuCom acquiring, and Seller disposing of, the Purchased Assets (as defined in the Asset Purchase Agreement) in connection with the Asset Purchase Agreement;\nNOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, CompuCom and Seller hereby agree as follows:\nARTICLE I\nDEFINITIONS\n1.1 For purposes of this Agreement, the following terms have the following meanings:\n(1) \"Configuration\" means the preparation of a computer and related hardware and integration of components into a computer system; provided that the term \"Configuration\" shall not include installation of a computer or related hardware at a customer site.\n(2) \"Non-Competition Period\" means the period commencing on May 12, 1999 and ending on May 11, 2000.\n(3) \"Product\" means any computer or related hardware and peripherals (including hubs, switches and routers or networking hardware) or software products (including networking software products) which CompuCom has the ability to sell.\n(4) \"Product Business\" means the acceptance and fulfillment of customer orders for Products, including the manufacturing, channel assembly, co-location or centralized image loading and Configuration of Products; provided that the term \"Product Business\" shall not include on-site Configuration of computer or related hardware or software products made subsequent to the initial image load/configuration.\n(5) \"Outsourcing and Professional Services\" means (a) consulting, system migrations, project management, other services typically referred to as \"high-end\" services, and (b) outsourcing contracts having a term of more than one year which require pricing be done on a per seat basis. Agreements that consist primarily of lower-end services, including, but not limited to, break/fix, IMAC, warranty and low-end staff augmentation, other than agreements priced on a per-seat basis, are not Outsourcing and Professional Services agreements.\n(6) \"Service Accounts\" means the customer accounts of Seller listed on Exhibits B and C hereto.\n(7) \"Services\" means all IT services offered by Seller, including, but not limited to, all outsourcing, professional services, break/fix, staff augmentation and consulting services; provided that the term \"Services\" shall not include (i) on-site Configuration of Products by CompuCom or (ii) the sale (but not the performance) by CompuCom of extended warranty contracts at time of initial sale of Products to customers.\n(8) \"Subsidiary,\" with respect to any person, means (i) any corporation of which the outstanding capital stock having at least a majority of the votes entitled to be cast in the election of directors under ordinary circumstances shall at the time be owned, directly or indirectly, by such person or (ii) any other person of which at least a majority of the voting interest under ordinary circumstances is at the time, directly or indirectly, owned by such person.\nCapitalized terms used in this Agreement and not otherwise defined shall have the meanings ascribed thereto in the Asset Purchase Agreement.\nARTICLE II\nAGREEMENT TO COOPERATE\nSubject to the limitations set forth in Article III, Seller and CompuCom agree that with respect to each account listed on Exhibit A hereto, that until the earlier of (a) May 11, 2000 or (b) the termination of the existing contract between Seller and such account (i) each party will cooperate with the other in delivering Services and Products to such account in substantially the same manner in which such Services and Products were delivered to such account prior to Closing and (ii) each party's representative will be permitted to call on such account.\nARTICLE III\nAGREEMENT NOT TO COMPETE\n3.1 Seller's Agreement. (a) Seller agrees that during the Non-Competition Period Seller will not, and will not permit any of its Subsidiaries to:\n(i) engage in the Product Business;\n(ii) encourage any Service Account to specify a party other than CompuCom to provide Products and image load/configurations to such Service Account; or\n(iii) solicit, entice or induce any employee of CompuCom or any Subsidiary of CompuCom to terminate his or her employment with CompuCom or any Subsidiary of CompuCom or hire any person who was or is at any time from the date of execution of the Asset Purchase Agreement to the end of the Non-Competition Period an employee of CompuCom or any Subsidiary of CompuCom.\n(b) Seller agrees that during the Non-Competition Period Seller will, and will cause its Subsidiaries to use commercially reasonable efforts to cause future Service customers to whom Seller provides Outsourcing and Professional Services and existing Service customers of Seller to whom Seller is able to expand its Services, to procure Products and image load/configuration from CompuCom in accordance with the provisions of Article IV, provided that CompuCom is not competing with Seller to provide future or expanded Services to such customers.\nNotwithstanding the foregoing, Seller shall be permitted to preserve its ability to resell Products to the extent required by existing customer agreements if (i) the customer refuses to approve of CompuCom providing such Products after Seller uses commercially reasonable efforts to obtain such approval, (ii) CompuCom rejects the customer order for such Products pursuant to Article IV (provided that CompuCom shall comply with the requirements of the Asset Purchase Agreement with respect to such agreements), or (iii) CompuCom fails to meet the requirements of the customer agreement, including but not limited to price, payment terms, return privileges and service level agreements (\"SLA's) (subject to applicable cure periods). In addition, Seller shall be permitted (A) to arrange for the procurement of computers or related hardware and software products as agent for customers in connection with future Outsourcing and Professional Services engagements, subject to Seller's obligations under Section 3.1(b) and the conditions provided for in the immediately preceeding sentence (B) to refer orders for Products for delivery outside the United States to comply with Seller's obligations under Seller's international alliance agreements and (C) to perform initial on-site image load/configuration and augmentation in a manner consistent with Seller's current business practices, provided that Seller agrees that during the Non-Competition Period, it will not actively encourage any Services customer to move its initial image load/configuration business from CompuCom's configuration facilities to the customer`s site.\n3.2 CompuCom's Agreement. (a) CompuCom agrees that during the Non-Competition Period CompuCom will not, and will not permit any of its Subsidiaries to:\n(i) provide any Services to any account listed on Exhibit B hereto;\n(ii) provide any Services to any account listed on Exhibit C hereto except to the extent provided for in such Exhibit; or\n(iii) except as contemplated by the Asset Purchase Agreement, solicit, entice or induce any employee of Seller or any Subsidiary of Seller to terminate his or her employment with Seller or any Subsidiary of Seller or hire any person who was or is at any time from the date of execution of the Asset Purchase Agreement to the end of the Non-Competition Period an employee of Seller or any Subsidiary of Seller.\nNotwithstanding the foregoing, CompuCom shall be permitted to provide Services under any \"request for proposal\", bid, contract or statement of work submitted by CompuCom to the applicable potential customer prior to May 12, 1999 . In the event of a dispute between CompuCom and Seller as to the matters covered by the immediately preceeding sentence, CompuCom shall furnish, in response to the reasonable request of Seller, evidence and shall have the burden of proving, that the applicable \"request for proposal\", bid, contract or statement of work was submitted by CompuCom to the customer prior to May 12, 1999.\n(b) CompuCom agrees that it will refer to Seller the performance of extended warranty service (other than manufacturers' warranties) or warranty upgrades sold by CompuCom to any Service Accounts, provided that Seller has the ability to perform such extended warranty service or warranty upgrades except that CompuCom may continue to perform extended warranty services and warranty upgrades in accordance with the provisions of Exhibit C. The parties agree to negotiate in good faith the terms, conditions and amount of payment Seller will receive for performing such warranty service or warranty upgrades.\nARTICLE IV\nAcceptance of Product Orders\nCompuCom agrees that during the Non-Competition Period, it will accept orders for Products submitted to CompuCom by Seller pursuant to Section 3.1(b) under the following conditions: (i) CompuCom has the ability to offer such Product for sale; (ii) the purchase price required by the customer order for the Product is reasonably acceptable to CompuCom; (iii) such Product offered by CompuCom meets the customer's specifications, including, but not limited to, configuration specifications; and (iv) the requirements of the customer with respect to such Product, including but not limited to delivery, payment terms and return privileges are reasonably acceptable to CompuCom. CompuCom agrees to notify Seller of CompuCom's rejection of such orders for Product within a mutually agreed upon time that is reasonable under the time constraints required by the customer order or contract.\nARTICLE V\nNON-DISCLOSURE\n5.1 Seller's Non-Disclosure Obligations. Seller covenants and agrees that, unless otherwise required by law, from and after the Closing:\n(a) Seller shall cooperate with CompuCom at CompuCom's expense to protect and safeguard all of CompuCom's Confidential Information; and\n(b) Seller shall not, directly or indirectly, use, sell, license, publish, disclose, or otherwise transfer or make available to others any of CompuCom's Confidential Information.\nAs used in this Agreement, the terms \"CompuCom's Confidential Information\" means proprietary or confidential information concerning the Business including, without limitation, information regarding prices charged for Products, the assets, liabilities, and financial condition of the Business, names and identities of customers and analyses of the amount and types of Products purchased by each such customer.\nNotwithstanding the foregoing, Seller shall be permitted to disclose historical financial information, including financial information relating to the Business, as may be required by customers, vendors, lenders or other third parties, provided that such third parties shall agree to preserve the confidentiality of such information.\n5.2 CompuCom's Non-Disclosure Obligations. CompuCom covenants and agrees that unless otherwise required by law, from and after the Closing:\n(a) CompuCom shall cooperate with Seller at Seller's expense to protect and safeguard all of Seller's Confidential Information;\n(b) CompuCom shall not, directly or indirectly, use, sell, license, publish, disclose or otherwise transfer or make available to others any of Seller's Confidential Information; and\n(c) CompuCom shall not solicit or knowingly utilize any of Seller's Confidential Information regarding Seller's Services business from any former employee of Seller.\nAs used in this Agreement, the terms \"Seller's Confidential Information\" means proprietary or confidential information and business secrets of Seller pertaining to its Services Business including, without limitation, information regarding prices charged for Services, copies of existing Services contracts to which Seller is a party (other than any such contracts provided to CompuCom pursuant to the provisions of the Asset Purchase Agreement) and analyses of the amount and types of Services purchased by customers.\nARTICLE VI\nMISCELLANEOUS\n6.1 Notices, Etc. All notices, requests, demands or other communications required by or otherwise with respect to this Agreement shall be in writing and shall be deemed to have been duly given to any party when delivered personally (by courier service or otherwise), when delivered by facsimile and confirmed by return facsimile, or five business days after being mailed by first-class mail, postage prepaid in each case to the applicable addresses set forth below:\nIf to Seller, to:\nENTEX Information Services, Inc.\nSix International Drive\nRye Brook, N.Y. 10573\nFacsimile No.: (914) 935-3720\nAttention: Lynne A. Burgess, Esq.,\nSenior Vice President and General Counsel\nwith a copy (which shall not constitute notice to Seller) to:\nCahill Gordon & Reindel\n80 Pine Street\nNew York, NY 10005\nFacsimile No.: (212) 269-5420\nAttention: Gerald S. Tanenbaum, Esq.\nIf to CompuCom, to:\nCompuCom Systems, Inc.\n7171 Forest Lane\nDallas, Texas 75230\nFacsimile No.: (972) 856-5395\nAttention: Ms. Lazane Smith, Senior Vice President\nand Chief Financial Officer\nwith a copy (which shall not constitute notice to CompuCom) to:\nStrasburger & Price, L.L.P.\n901 Main Street, Suite 4300\nDallas, Texas 75202\nFacsimile No.: (214) 651-4330\nAttention: Frederick J. Fowler, Esq.\nor to such other address as such party shall have designated by notice so given to each other party.\n6.2 Amendments, Waivers, Termination Etc. This Agreement may not be amended, changed, supplemented, waived or otherwise modified or terminated except by an instrument in writing signed by each of the parties hereto.\n6.3 Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of and be enforceable by the parties and their respective successors and assigns, including without limitation by merger or otherwise. This Agreement shall not be assignable.\n6.4 Entire Agreement. This Agreement and the Asset Purchase Agreement embody the entire agreement and understanding among the parties relating to the subject matter hereof and supersede all prior agreements and understandings relating to such subject matter. There are no covenants by the parties hereto relating to such subject matter other than those expressly set forth in this Agreement and the Asset Purchase Agreement.\n6.5 Specific Performance. The parties acknowledge that money damages are not an adequate remedy for violations of this Agreement and that any party may, in its sole discretion, apply to a court of competent jurisdiction for specific performance or injunctive or such other relief as such court may deem just and proper in order to enforce this Agreement or prevent any violation hereof and, to the extent permitted by applicable law, each party waives any objection to the imposition of such relief.\n6.6 Remedies Cumulative. All rights, powers and remedies provided for under this Agreement or otherwise available in respect hereof at law or in equity shall be cumulative and not alternative, and the exercise or beginning of the exercise of any thereof by any party shall not preclude the simultaneous or later exercise of any other such right, power or remedy by such party.\n6.7 No Waiver. The failure of any party hereto to exercise any right, power or remedy provided under this Agreement or otherwise available in respect hereof at law or inequity, or to insist upon compliance by any other party hereto with its obligations hereunder, and any custom or practice of the parties at variance with the terms hereof, shall not constitute a waiver by such party of its right to exercise any such or other right, power or remedy or to demand such compliance.\n6.8 Severability. Each party agrees that, should any court or other competent authority hold any provision of this Agreement or part hereof to be null, void or unenforceable, or order any party to take any action inconsistent herewith or not to take an action consistent herewith or required hereby, the validity, legality and enforceability of the remaining provisions and obligations contained or set forth herein shall not in any way be affected or impaired thereby. Upon any such holding that any provision of this Agreement is null, void or unenforceable, the parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated by this Agreement are consummated to the extent possible.\n6.9 GOVERNING LAW. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT AND THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WHOLLY THEREIN, WITHOUT GIVING EFFECT TO ANY PROVISIONS THEREOF RELATING TO CONFLICTS OF LAW. 6.10 Name, Captions. The name assigned to this Agreement and the section captions used herein are for convenience of reference only and shall not affect the interpretation or construction hereof.\n6.11 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one instrument. Each counterpart may consist of a number of copies each signed by less than all, but together signed by all, the parties hereto.\n6.12 Referral Fees. To the extent that the parties agree that the payment of referral fees will further their mutual business interests or is required in order to compensate either party for material services rendered for the benefit of the other, the parties agree to negotiate the terms and conditions of the payment of such referral fees in good faith.\nIN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date first above written.\nCOMPUCOM SYSTEMS, INC.\nBy:\n------------------------------------\nName: Lazane M. Smith\nTitle: Senior Vice President and\nChief Financial Officer\nENTEX INFORMATION SERVICES, INC.\nBy:\n------------------------------------\nName: Kenneth A. Ghazey\nTitle: President\n-10-\n",
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"text": "August 7, 1997\nPERSONAL and CONFIDENTIAL\nMs. Donna M. Hitscherich\nVice President\nJ.P. Morgan Securities Inc.\n60 Wall Street\nNew York, New York 10260\nDear Ms. Hitscherich:\nCarpenter Technology Corporation (\"we\", \"our\" or \"us\") has requested information regarding Talley Industries, Inc. (the \"Company\", \"your\" or \"you\") in connection with our consideration of the possible acquisition of the Company (a \"Possible Transaction\"). In consideration of your furnishing us with the Evaluation Materials (as defined below) we agree as follows:\nConfidentiality of Evaluation Materials\nWe will treat confidentially any information (whether written or oral) that either the Company or its financial advisor, J.P. Morgan & Co. Incorporated (\"JPM\"), or the Company's other representatives furnish to us in connection with a Possible Transaction involving the Company, together with analyses, compilations, studies or other documents prepared by us, or by our representatives (as defined below) which contain or otherwise reflect such information or our review of, or interest in, the Company (collectively, the \"Evaluation Materials\"). We recognize and acknowledge the competitive value of the Evaluation Materials and the damage that could result to the Company if the Evaluation Materials were used or disclosed except as authorized by this Agreement.\nThe term \"Evaluation Materials\" includes information furnished to us orally or in writing (whatever the form or storage medium) or gathered by inspection, and regardless of whether such information is specifically identified as \"confidential\". The term \"Evaluation Materials\" does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by us or our representatives, (ii) was or becomes available to us on a non-confidential basis from a source other than the Company or its representatives, provided that such source is not prohibited from disclosing such information to us by a contractual, legal or fiduciary obligation to the Company or its representatives, or (iii) is independently developed by us. Use of Evaluation Materials\nWe will not use any to the Evaluation Materials for any purpose other than the exclusive purpose of evaluating a Possible Transaction. We and our representatives will keep the Evaluation Materials completely confidential; provided, however, that (i) any of such information may be disclosed to those of our directors, officers, employees, agents, representatives (including attorneys, accountants and financial advisors), lenders and other sources of financing (collectively, \"our representatives\") who we reasonably determine need to know such information for the purpose of evaluating a Possible Transaction between us and the Company (it being understood that our representatives shall be informed by us of the confidential nature of such information and shall be directed by us, and shall each agree to treat such information confidentially) and (ii) any other disclosure of such information may only be made if the Company consents in writing prior to any such disclosure. Without limiting the generality of the foregoing, in the event that a Possible Transaction is not consummated neither we nor our representatives shall use any of the Evaluation Materials for any purpose. We will be responsible for any breach of this Agreement by our representatives.\nIn the event that we or any of our representatives receive a request or are required (by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose all or any part of the Evaluation Materials, we or our representatives, as the case may be, agree to (i) immediately notify the Company of the existence, terms and circumstances surrounding such a request, (ii) consult with the Company on the advisability of taking legally available steps to resist or narrow such request and (iii) assist the Company in seeking a protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained or that the Company waives compliance with the provisions hereof, (i) we or our representatives, as the case may be, may disclose to any tribunal only that portion of the Evaluation Materials which we are advised by counsel is legally required to be disclosed, and shall exercise our best efforts to obtain assurance that confidential treatment will be accorded such Evaluation Materials and (ii) we shall not be liable for such disclosure unless disclosure to any such tribunal was caused by or resulted from a previous disclosure by us or our representatives not permitted by this Agreement.\nNon-Disclosure\nThe disclosure of our possible interest in purchasing the Company could have a material adverse effect on the Company's business if for any reason an agreement of purchase and sale is not consummated. Accordingly, unless required by applicable law, we agree that prior to the execution of a Sale Agreement with respect to the closing of a Possible Transaction, without the prior written consent of the Company, we will not, and we will direct our representatives not to, disclose to any person either the fact that discussions or negotiations are taking place concerning a possible transaction between us and the Company or any to the terms, conditions or other facts with respect to any such Possible Transaction, including the status thereof unless we are advised by counsel that we are required to make such disclosure. The term \"person\" as used in this letter shall be broadly interpreted to include, without limitation, any corporation, the Company, governmental agency or body, stock exchange, partnership, association or individual.\nReturn of Documents\nUpon the Company's request, we shall promptly deliver to the Company or destroy all written Evaluation Materials and any other written materials without retaining, in whole or in part, any copies, extracts or other reproductions (whatever the form or storage medium) of such materials.\nNo Unauthorized Contact\nDuring the course of our evaluation, all inquiries and other communications are to be made directly to JPM or employees or representatives of the Company specified by JPM. Accordingly, we agree not to directly or indirectly contact or communicate with any executive or other employee of the Company concerning a Possible Transaction, or to seek any information in connection therewith from such person, without the express consent of JPM, with the exception of direct communication between our chairman and the Company's chairman. We also agree not to discuss with or offer to any third party an equity participation in a Possible Transaction or any other form of joint acquisition by us and such third party without JPM's prior written consent provided that the foregoing undertaking shall not prevent us from soliciting, on a confidential basis, indications of intent form selected third parties for the purchase of portions of the Company.\nFor a period of two years following the date hereof, you will not, directly or indirectly, solicit for employment or hire any officer, director, or employee of the Company or any of its subsidiaries or divisions with whom you have had contact or who became known to you in connection with your consideration of the Possible Transaction, except that you shall not be precluded from hiring any such employee who (i) initiates discussions regarding such employment without any direct or indirect solicitation by you, (ii) responds to any public advertisement placed by you, or (iii) has been terminated by the Company or its subsidiaries prior to commencement of employment discussions between you and such officer, director, or employee.\nStandstill\nWe agree that until two years from the date of this Agreement, we will not without the prior approval of the Board of Directors of the Company (i) acquire or make any proposal to acquire any securities or property of the Company, (ii) propose to enter into any merger or business combination involving the Company or purchase a material portion of the assets of the Company, (iii) make or participate in any solicitation of proxies to vote, or seek to advise or influence any person with respect to the voting of any securities of the Company, (iv) form, join or participate in a \"group\" (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934) with respect to any voting securities of the Company, (v) otherwise act or seek to control or influence the management, Board of Directors or policies of the Company, (vi) disclose any intention, plan or arrangement inconsistent with the foregoing or (vii) take any action which might require the Company to make a public announcement regarding the possibility of a business combination or merger. No Representation or Warranty\nAlthough the Company and JPM have endeavored to include in the Evaluation Materials information known to them which they believe to be relevant for the purpose of our investigation, we acknowledge and agree that none of the Company, JPM or any of the Company's other representatives or agents is making any representation or warranty, expressed or implied hereunder, as to the accuracy or completeness of the Evaluation Materials, and none of the Company, JPM or any of the Company's other representatives or agents, nor any of their respective officers, directors, employees, representatives, stockholders, owners, affiliates, advisors or agents, will have any liability to us or any other person hereunder resulting from the use of Evaluation Materials by us or any of our representatives. Only those representations or warranties that are made to a purchaser in a definitive sale agreement for the Company (\"Sale Agreement\") when, as and if it is executed, and subject to such limitations and restrictions as may be specified in such Sale Agreement, will have any legal effect.\nWe also acknowledge and agree that no contract or agreement providing for the sale of the Company shall be deemed to exist between us and the Company unless and until a Sale Agreement has been executed and delivered by us and each of the other parties thereto, and we hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with the sale of the Company unless and until a Sale Agreement has been executed and delivered by us and each of the other parties thereto. We also agree that unless and until a Sale Agreement between the Company and us with respect to the acquisition of the Company has been executed and delivered by us and each of the other parties thereto, there shall not be any legal obligation of any kind whatsoever with respect to any such transaction by virtue of this agreement or any other written or oral expression with respect to such transaction except, in the case of this Agreement for the matters specifically agreed to herein. For purposes of this Agreement, the term \"Sale Agreement\" does not include an executed letter of intent or any other preliminary written agreement, nor does it include any oral acceptance of an offer or bid by us.\nNo Solicitation\nDuring the period from acceptance of this agreement until the earlier of (a) the execution of a definitive agreement or (b) the date that is 45 days after the date of such acceptance, the Company and the officers, directors, employees and other representatives of the Company including JPM shall not directly or indirectly, solicit, initiate, or encourage any offers or proposals for the acquisition of the Company, or of any of the capital stock or all, or substantially all, of the assets of the Company, from third parties (an \"Acquisition Proposal\"). The Company, may, however, participate in discussions or negotiations with, and provide confidential information to, a third party, if the Chairman of the Board of the Company determines in good faith, after receiving advice from the Company's financial advisor, that such third party has submitted a bona fide proposal or indication of interest that is, or could reasonably be expected to lead to, an Acquisition Proposal that is financially superior to the non-binding indication of interest contained in the letter of August 7, 1997 from Robert W. Cardy to Paul L. Foster, provided, however, that the Company agrees to inform us of the receipt of any such proposal.\nLegal Remedy\nWe understand and agree that money damages would not be a sufficient remedy for any breach of this Agreement by us or our representatives and that the Company will be entitled to specific performance and injunctive relief as remedies for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement by us or our representatives but shall be in addition to all other remedies available at law or equity.\nOther\nThis Agreement constitutes the entire agreement between the parties hereto regarding the subject matter hereof. This Agreement may be changed only by a written agreement signed by the parties hereto or their authorized representatives.\nThis Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to the conflicts of law principles thereof.\nIf you are in agreement with the foregoing, please sign and return one copy of this letter, it being understood that all counterpart copies will constitute but one agreement with respect to the subject matter of this letter.\nVery truly yours,\nCARPENTER TECHNOLOGY CORPORATION\nBy: /s/ G. Walton Cottrell\nName: G. Walton Cottrell\nTitle: Senior Vice President - Finance\nand Chief Financial Officer\n/s/ John r. Welty\nVice President, General Counsel and Secretary\nAgreed and accepted this 11th day of August, 1997\nJ.P. MORGAN SECURITIES INC., solely as Company's representative\nBy: /s/ Donna M. Hitscherich\nName: Donna M. Hitscherich\nTitle: Vice President\n",
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"text": "MUTUAL NON-DISCLOSURE AGREEMENT\nEach undersigned party (the \"Receiving Party\") understands that the other party (the \"Disclosing Party\") has disclosed or may disclose information relating to the Disclosing Party's business particularly relating to uniform informer libraries, chemi-informatic tools and the nature of chemical libraries (including, with limitation, names and expertise of employees and consultants, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics, computer programs, software code, algorithms, development tools, manufacturing capability or processes, chemical routes, chemical structures, relationships with other businesses, business plans, and other technical, business, financial, customer and product development plans, forecasts, strategies and information), which to the extent previously, presently, or subsequently disclosed to the Receiving Party is hereinafter referred to as \"Proprietary Information\" of the Disclosing Party. Proprietary Information also includes any information which the Disclosing Party has received from a third party which the Disclosing Party is obligated to treat as confidential or proprietary.\nNotwithstanding the foregoing, nothing will be considered \"Proprietary Information\" of the Disclosing Party unless either (1) it is first disclosed in tangible form and is conspicuously marked \"Confidential\", \"Proprietary\" or the like or (2) it is first disclosed in non-tangible form and orally identified as confidential at the time of disclosure and is summarized in tangible form conspicuously marked \"Confidential\" within thirty (30) days of the original disclosure.\nIn consideration of and solely for the purpose of the parties' discussion regarding a possible business transaction and any access the Receiving Party may have to Proprietary Information of the Disclosing Party, each party (as the Receiving Party) hereby agrees as follows:\n1. Non-Disclosure and Non-Use Obligations. The Receiving Party agrees (i) to hold the Disclosing Party's Proprietary Information in strict confidence and to take all reasonable precautions to protect such Proprietary Information (including, without limitation, all precautions the Receiving Party employs with respect to its most confidential materials), (ii) not to divulge any such Proprietary Information or any information derived therefrom to any third person (except consultants or agents, subject to the conditions stated below), (iii) not to make any use whatsoever at any time of such Proprietary Information except to evaluate internally whether to enter into a proposed business transaction with the Disclosing Party without the prior written permission of the disclosing party, (iv) not to remove or export from the United States or re-export any such Proprietary Information or any direct product thereof except in compliance with all licenses and approvals required under applicable export laws and regulations, including without limitation, those of the U.S. Department of Commerce, and (v) not to copy or reverse engineer any such Proprietary Information. Any employee, consultant or agent given access to any such Proprietary Information must have a legitimate \"need to know\" and shall be similarly bound in writing. The parties shall be entitled to exchange Proprietary Information under the terms of this Agreement for a period not to exceed two (2) years from the date hereof, unless otherwise extended by mutual written agreement of the parties or incorporated into a separate agreement. Without granting any right or license, the Disclosing Party agrees that the foregoing clauses (i), (ii), (iii) and (v) shall not apply with respect to all obligations after five (5) years following the disclosure thereof or any information that the Receiving Party can document (i) is or (through no improper action or inaction by the Receiving Party or any agent, consultant or employee) becomes generally known to the public, (i) was in its possession or the possession of an affiliate or consultant or known by it prior to receipt from the Disclosing Party, (iii) was rightfully disclosed to it, an affiliate or a consultant by a third party without restriction, or (iv) was independently developed without use of any Proprietary Information of the Disclosing Party by employees of the Receiving Party who can be demonstrated to have had no access to such information. The Receiving Party may make disclosures required by court order provided the Receiving Party uses diligent efforts to limit disclosure and to obtain confidential treatment or a protective order and has allowed the Disclosing Party to participate in the proceeding.\n2. Patent or Copyright Infringement. Nothing in this Agreement is intended to grant any rights under any patent or copyright of the Disclosing Party, nor shall this Agreement grant the Receiving Party any rights in or to the Disclosing Party's Proprietary Information, except the limited right to review such Proprietary Information solely for the purpose of evaluating a possible business transaction.\n3. Return of Materials. Immediately upon (i) the decision by either party not to enter into a relationship as a result of the exchange of information hereunder, or (ii) a request by the Disclosing Party at any time, the Receiving Party will turn over to the Disclosing Party all Proprietary Information of the Disclosing Party and all documents or media containing any such Proprietary Information and any and all copies or extracts or derivatives thereof to the extent it is requested by either party in writing, except that a single copy may be retained for legal archival purposes, subject to protection and non-disclosure in accordance with the term of this agreement. The Receiving Party understands that nothing herein (i) requires the disclosure of any Proprietary Information of the Disclosing Party, which shall be disclosed if at all solely at the option of the Disclosing Party, or (ii) requires the Disclosing Party to proceed with any proposed transaction or relationship in connection with which Proprietary Information may be disclosed.\n4. No Publicity. Except to the extent required by law, neither party shall disclose the existence or subject matter of the negotiations or business relationship contemplated by this Agreement.\n5. Securities Law Considerations. Each party is aware, and will advise its employees, consultants and agents who are informed of the matters that are the subject of this agreement, of the restrictions imposed by the United States securities laws on the purchase and sale of securities by any person who has received material, non-public information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\n6. Miscellaneous. The Receiving Party acknowledges and agrees that due to the unique nature of the Disclosing Party's Proprietary Information, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow the Receiving Party or third parties to unfairly compete with the Disclosing Party resulting in irreparable harm to the Disclosing Party, and therefore, that upon any such breach or any threat thereof, the Disclosing Party may seek appropriate equitable relief (without the need to post bond or other security) in addition to whatever remedies it might have at law. The Receiving Party will notify the Disclosing Party in writing immediately upon the occurrence of any such unauthorized release or other breach of which it is aware. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be to any extent illegal, invalid or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to principles of conflicts of law. The parties agree that any dispute regarding the interpretation or validity of this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts in and for the County of San Diego, California, and each party hereby agrees to submit to the personal and exclusive jurisdiction and venue of such courts. This Agreement supersedes all prior discussions and writings and constitutes the entire agreement between the parties with respect to the subject matter hereof. This Agreement may not be amended except in an express writing signed by officers of both parties. No waiver or modification of this Agreement will be binding upon either party unless made in writing and signed by a duly authorized representative of such party and no failure or delay in enforcing any right will be deemed a waiver.\nEach party warrants to the other that it is duly authorized to enter into this Agreement and that the terms of this Agreement are not inconsistent with any of its respective outstanding contractual obligations. The execution and performance of this Agreement does not obligate the parties to enter into any other agreement or to perform any obligations other than as specified herein.\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year set forth below.\nDate: 3-10-99\nCOMBICHEM, INC., DUPONT PHARMACEUTICALS COMPANY,\na Delaware corporation a Delaware general partnership\nBy: /s/ Vicente Anido, Jr. By: /s/ David S. Block\nVicente Anido, Jr., Ph.D. David S. Block, M.D.\nIts: President and Its: Vice President, Product Planning\nChief Executive Officer and Acquisition\n",
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"text": "CONFIDENTIALITY, NON-DISCLOSURE AND RESTRICTIVE COVENANT AGREEMENT\nThis Confidentiality, Non-Disclosure and Restrictive Covenant Agreement, dated as of this 30th day of August, 2005 (this \"Agreement\"), by and among (i) Hittite Microwave Corporation, a Delaware corporation (\"Hittite\"), (ii) HMC Acquisition Corporation, a Delaware corporation and a wholly-owned subsidiary of Hittite, (\"Buyer\" and, together with Hittite, the \"Buyer Parties\"), (iii) Simtek Corporation, a Colorado corporation (\"Simtek\") and (iv) Q-Dot, Inc., an Illinois corporation and a wholly-owned subsidiary of Simtek, (the \"Company\" and, together with Simtek, the \"Seller Parties\").\nWHEREAS, pursuant to an Asset Purchase Agreement dated as of the date hereof by and among the Buyer Parties and the Seller Parties, the Buyer Parties have agreed, subject to the terms and conditions set forth therein, to acquire substantially all the assets of the Company (the \"Acquisition\");\nWHEREAS, in partial consideration of the payment of the Purchase Price (as defined at Section 1.7 of the Asset Purchase Agreement) of the Acquisition and in accordance with Sections 4.4 and 6.9 of the Asset Purchase Agreement, Seller Parties agree to enter into this Agreement;\nWHEREAS, the Seller Parties acknowledge that the covenants of the Seller Parties set forth in this Agreement are an essential element of the Acquisition and that, but for this Agreement, Buyer Parties would not have entered into the Asset Purchase Agreement; and\nWHEREAS, the Seller Parties possess substantial and intimate knowledge of the business and affairs of the Company and its policies, methods, personnel and operations;\nNOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements herein contained, the parties hereto agree as follows:\n1. Non-Competition. For a period of four years from the date of this Agreement (the \"Restricted Period\"), Seller Parties shall not, directly or indirectly, engage in The Company's Business (as hereinafter defined) or, without the prior written consent of Buyer Parties, directly or indirectly, own an interest in, manage, operate, join, control, lend money or render financial or other assistance to or participate in, as a partner, stockholder, consultant or otherwise, any Person that competes with The Company's Business as it is conducted as of the Closing Date. For purposes of this Agreement, the term the \"The Company's Business\" shall mean any business anywhere in the world that provides products or services of the kind provided by the Business (as defined in the Recitals of the Asset Purchase Agreement) as of the Closing Date. Notwithstanding the foregoing, for the purposes of this Section 1, ownership of securities having no more than one percent (1%) of the outstanding voting power of any competitor which are listed on any national securities exchange, automated securities exchange (including Nasdaq) or traded actively in the national over-the-counter market (in each case including any foreign equivalent) shall not be deemed to be in violation of this Agreement.\n2. Confidentiality. During the Restricted Period and at all times thereafter, Seller Parties will keep and hold all Confidential Information (as hereinafter defined) in strict confidence, and will not use or disclose in any way any of such Confidential Information without the prior express written consent of the Buyer Parties. For the purposes of this Agreement, the term \"Confidential Information\" shall mean all trade secrets and confidential or proprietary information (and any tangible representation thereof) owned, possessed or used in connection with The Company Business or by the Buyer Parties and its Affiliates; provided, however, that \"Confidential Information\" does not include information which is or becomes generally available to the public other than as a result of a disclosure by a Seller Party..\n3. Non-Solicitation. During the Restricted Period, Seller Parties agree that they will not in any way, directly or indirectly, for the purpose of conducting or engaging in any business that competes with The Company Business, call upon, solicit, advise or otherwise do, or attempt to do, business with any customers of the Company engaged prior to the Closing Date (provided that Simtek shall have the right to do business with any of its current or former customers), or interfere with or attempt to interfere with any officers, employees or consultants of the Buyer Parties, induce or attempt to induce any of them to leave the employ of the Buyer Parties or violate the terms of their Contracts, or any employment arrangements, with Buyer Parties, or, without the prior written consent of Buyer Parties, directly or indirectly, solicit to hire, hire or employ, whether as an employee, director, contractor, consultant or otherwise any officers, employees or consultants of the Buyer Parties, unless such Person's employment is terminated by the Seller Parties or its Affiliate; provided, however, that this Section 3 shall not prohibit general solicitations of or advertisements for employment by the Seller Parties that are not generally directed at any officers, employees, representatives or agents of the Buyer Parties, so long as the Seller Parties do not hire any such Person who responds to any such general solicitation or advertisement.\n4. Certain Definitions. For purposes of this Agreement, (a) the term \"Person\" shall mean an individual, a corporation, an association, a partnership, an estate, a trust and any other entity or organization, (b) the term \"Affiliate\" shall mean with respect to any Person, any Person which, directly or indirectly, controls, is controlled by, or is under common control with, such Person, and (c) the term \"control\" (including, with correlative meaning, the terms \"controlled by\" and \"under common control with\"), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.\n5. Extension of Restricted Period. The Restricted Period shall be extended by the length of any period during which the Seller Parties are in breach of the terms of this Agreement.\n6. Amendments and Supplements. This Agreement may not be amended, modified or supplemented by the parties hereto in any manner, except by an instrument in writing signed by the Seller Parties and the Buyer Parties.\n7. No Waiver. The terms and conditions of this Agreement may be waived only by a written instrument signed by the party waiving compliance. The failure of any party hereto to enforce at any time any of the provisions of this Agreement shall in no way be construed to be a waiver of any such provision, nor in any way to affect the validity of this Agreement or any part hereof or the right of such party thereafter to enforce each and every such provision. No waiver of any breach of or non-compliance with this Agreement shall be held to be a waiver of any other or subsequent breach or non-compliance. The rights and remedies herein provided are cumulative and are not exclusive of any rights or remedies that any party may otherwise have at law or in equity.\n8. Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the substantive laws of the State of Delaware, without regard to its principles of conflicts of laws.\n9. Notice. All notices and other communications hereunder shall be in writing and shall be deemed given if delivered by hand, sent by facsimile transmission with confirmation of receipt, sent via a reputable overnight courier service with confirmation of receipt requested, or mailed by registered or certified mail (postage prepaid and return receipt requested) to the parties at the following addresses (or at such other address for a party as shall be specified by like notice), and shall be deemed given on the date on which delivered by hand or otherwise on the date of receipt as confirmed:\nIf to Buyer or Hittite:\nHittite Microwave Corporation\n20 Alpha Road\nChelmsford, MA 01824\nAttention: William W. Boecke, Chief Financial Officer\nFacsimile: (978) 250-3373\nwith a copy to:\nFoley Hoag LLP\nWorld Trade Center West\n155 Seaport Boulevard\nBoston, MA 02210\nAttn: Robert W. Sweet, Jr., Esq.\nFacsimile: (617) 832-7000\nIf to the Company or Simtek:\nSimtek Corporation\n4250 Buckingham Drive Suite 100 Colorado Springs, CO 80907\nAttention: Harold Blomquist, President & CEO\nFacsimile: (719) 531-9481\nwith a copy to:\nHolme Roberts & Owen LLP\n1700 Lincoln Street, Suite 4100\nDenver, Colorado 80203\nFacsimile: (303) 866-0200\n10. Construction of Agreement. A reference to a Section shall mean a Section in this Agreement unless otherwise expressly stated. The titles and headings herein are for reference purposes only and shall not in any manner limit the construction of this Agreement which shall be considered as a whole. The words \"include,\" \"includes\" and \"including\" when used herein shall be deemed in each case to be followed by the words \"without limitation.\"\n11. Entire Agreement, Assignability, etc. This Agreement and the Asset Purchase Agreement and the documents and other agreements among the parties hereto and thereto as contemplated by or referred to herein or therein constitute the entire agreement among the parties with respect to the subject matter hereof and supersede all other prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. This Agreement is not intended to confer upon any person other than the parties hereto any rights or remedies hereunder, except as otherwise expressly provided herein and shall not be assignable by operation of law or otherwise.\n12. Validity. The Seller Parties have independently consulted with their counsel and after such consultation agree that the covenants set forth in this Agreement are reasonable and proper. In the event that any provision of this Agreement shall be determined to be unenforceable by reason of its extension for too great a period of time or over too large a geographic area or over too great a range of activities, it shall be interpreted to extend only over the maximum period of time, geographic area or range of activities as to which it may be enforceable. If, after application of the preceding sentence, any provision of this Agreement shall be determined to be invalid, illegal or otherwise unenforceable by a court of competent jurisdiction, the validity, legality and enforceability of the other provisions of this Agreement shall not be affected thereby. Except as otherwise provided in this Section 12, any invalid, illegal or unenforceable provision of this Agreement shall be severable, and after any such severance, all other provisions hereof shall remain in full force and effect.\n13. Remedies. Seller Parties recognize that money damages alone would not adequately compensate Buyer Parties and its Affiliates in the event of breach by Seller Parties of this Agreement, and Seller Parties therefore agree that, in addition to all other remedies available to Buyer Parties and its Affiliates, at law, in equity or otherwise, Buyer Parties and its Affiliates shall be entitled to injunctive relief for the enforcement hereof. All rights and remedies hereunder are cumulative and are in addition to and not exclusive of any other rights and remedies available, at law, in equity, by agreement or otherwise.\n14. Counterparts. This Agreement may be executed in one or more counterparts, all of which together shall constitute one and the same Agreement.\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed as an agreement under seal as of the date first written above.\nSimtek Corporation\nBy: /s/Harold A. Blomquist\n------------------------------------\nName: Harold A. Blomquist\nTitle: President & CEO\nQ-Dot, Inc.\nBy: /s/Thomas E. Linnenbrink\n------------------------------\nName: Thomas E. Linnenbrink\nTitle: President\nHittite Microwave Corporation\nBy: /s/Stephen G. Daly\n------------------------------------\nName: Stephen G. Daly\nTitle: President & CEO\nHMC Acquisition Corporation\nBy: /s/Stephen G. Daly\n------------------------------------\nName: Stephen G. Daly\nTitle: President & CEO\n",
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"text": "NON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nThis Non-Competition and Non-Disclosure Agreement (the \"Agreement\") is made and entered into this 30th day of May, 2001 by and between Hai-Perng, aka Alex Kuo (\"Covenantor\"), and Vertel Corporation, a California corporation (\"Buyer\"), and is made with reference to the following:\nRECITALS\nA. The Company is engaged in the business of development and sales of network management software tools that utilize CORBA as the development platform and provides consulting and related services. The Company has offices in California, New Jersey and Texas.\nB. Pursuant to that certain Agreement and Plan of Reorganization and Liquidation, dated May 30, 2001, by and between Trigon Technology Group, Inc., a Texas corporation (the \"Company\"), and Buyer (the \"Purchase Agreement\"), the Company will sell to Buyer and Buyer will purchase from the Company, substantially all of the assets of the Company together with the goodwill of the Company (the \"Assets\").\nB. Covenantor is a shareholder of the Company and has been employed as the Chief Executive Officer and the President of the Company.\nC. Covenantor acknowledges that the Company and its employees and shareholders have over several years devoted substantial time, effort and resources to developing the Assets which consist of the Company's trade secrets and its other confidential and proprietary information as well as the Company's relationships with customers, suppliers, employees and others doing business with the Company; that such relationships, trade secrets and other information are vital to the successful conduct of the Company's business by Buyer in the future; that because of Covenantor's access to such confidential information and trade secrets, Covenantor would be in a unique position to divert business from Buyer and to commit irreparable damage to Buyer were Covenantor to be allowed to compete with Buyer or to commit any of the other acts prohibited below; that the enforcement of said restrictive covenants against Covenantor would not impose any undue burden upon Covenantor; that none of said restrictive covenants is unreasonable as to period or geographic area; and that the ability to enforce said restrictive covenants against Covenantor is a material inducement to the decision of Buyer to consummate the transactions contemplated in the Purchase Agreement.\nNOW, THEREFORE in consideration of the foregoing recitals, the mutual agreements hereinafter set forth and the mutual benefits to be derived therefrom, Covenantor covenants and agrees as follows:\nARTICLE 1\nDEFINITIONS\n1.1 The term \"Buyer,\" as used herein, means not only Vertel Corporation, but also any company, partnership or entity which (a) directly or indirectly, controls, is controlled by or is under common control with Vertel Corporation or (b) is a successor-in-interest to Vertel Corporation.\n1.2 The term \"Confidential Information\", as used herein, means all information or material not generally known by non-Company personnel constituting Assets and acquired by Buyer under the Purchase Agreement which (i) gives the Company some competitive business advantage or the opportunity of obtaining such advantage or the disclosure of which could be detrimental to the interests of the Company; (ii) which is owned by the Company or in which the Company has an interest and (iii) which is either (A) marked \"Confidential Information,\" \"Proprietary Information\" or other similar marking, (B) known by Covenantor to be considered confidential and proprietary by the Company as of the date hereof or (C) from all the relevant circumstances should reasonably be assumed by Covenantor to be confidential and proprietary to the Company. Confidential Information includes, but is not limited to, the following types of information and other information of a similar nature (whether or not reduced to writing): trade secrets, inventions, drawings, file data, documentation, diagrams, specifications, know how, processes, formulas, models, flow charts, software in various stages of development, source code, object code, research and development procedures, research or development and test results, marketing techniques and materials, marketing and development plans, price lists, pricing policies, business plans, information relating to customers and/or suppliers' identities, characteristics and agreements, financial information and projections, and employee files. Confidential Information also includes any information described above which the Company obtains from another party and which the Company treats as proprietary or is required to treat as Confidential Information, whether or not owned or developed by the Company. NOTWITHSTANDING THE ABOVE, HOWEVER, NO INFORMATION CONSTITUTES CONFIDENTIAL INFORMATION IF IT IS GENERIC INFORMATION OR GENERAL KNOWLEDGE WHICH COVENANTOR WOULD HAVE LEARNED IN\nTHE COURSE OF SIMILAR EMPLOYMENT ELSEWHERE IN THE TRADE, IF SUCH INFORMATION IS\nLAWFULLY AVAILABLE TO COVENANTOR FROM A SOURCE OTHER THAN THE COMPANY, OR IF IT\nIS OTHERWISE PUBLICLY KNOWN AND IN THE PUBLIC DOMAIN.\n1.3 The term \"Closing\" shall have the meaning ascribed to it in the Purchase Agreement.\nARTICLE 2\nCOVENANT NOT TO COMPETE\nCovenantor shall not at any time within the period commencing on the date hereof and ending on the fourth (4/th/) anniversary of the date hereof (the \"Restricted Period\"), have any\nownership interest (of record or beneficial) in or have any interest as an employee, salesman, consultant, officer or director in, or otherwise aid or assist in any manner, any firm, corporation, limited liability company, partnership, proprietorship or other business that engages in any California county, or in any other state, country or geographic area, listed in Exhibit \"A\" hereof in a business that is similar to and directly or indirectly offers products or services in competition with the business in which the Company was engaged in such California county, state, country or other geographic area as of the Closing, so long as Buyer, or any successor in interest of Buyer to the business and goodwill of the Company, remains engaged in such business in any such California county, state, country or other geographic area or continues to solicit customers or potential customers therein; provided, however, that Covenantor may own, directly or indirectly, solely as an investment, the securities of any person which are traded on any national securities exchange if Covenantor (i) is not a controlling person of, or a member of a group which controls, such person or (ii) does not, directly or indirectly own two percent (2%) or more of any class of securities of such person. For purposes of this ARTICLE 2, the business activities which may not be engaged in during the Restricted Period by Covenantor or by any firm, corporation, limited liability company, partnership, proprietorship or other business in which Covenantor has any interest are more particularly described in Exhibit \"B\" hereof.\nARTICLE 3\nSOLICITATION OF BUSINESS\nDuring the Restricted Period, Covenantor shall not solicit or assist any other person to solicit any business (other than for Buyer) from any present or past customer of the Company; or request or advise any present or future customer of the Company to withdraw, curtail or cancel its business dealings with Buyer; or commit any other act or assist others to commit any other act which might injure the business of Buyer.\nARTICLE 4\nEMPLOYEES\nDuring the Restricted Period, Covenantor shall not directly or indirectly (i) solicit or encourage any employee of Buyer to leave the employ of Buyer or (ii) hire any employee who has left the employ of Buyer if such hiring is proposed to occur within one year after the termination of such employee's employment with Buyer.\nARTICLE 5\nCONSULTANTS\nDuring the Restricted Period, Covenantor shall not directly or indirectly solicit or encourage any consultant then under contract with Buyer to cease work for Buyer.\nARTICLE 6\nNONDISCLOSURE\nFrom and after the Closing, Covenantor shall not (nor will Covenantor assist any other person to do so) directly or indirectly reveal, report, publish or disclose the Confidential Information to any person, firm or corporation not expressly authorized by Buyer to receive such Confidential Information, or use (or assist any person to use) such Confidential Information except for the benefit of Buyer.\nARTICLE 7\nOWNERSHIP AND RETURN OF MATERIALS\nUpon the termination of Covenantor's employment with Buyer, Covenantor shall immediately surrender to Buyer all notes, data, sketches, drawings, manuals, documents, records, data bases, programs, blueprints, memoranda, specifications, customer lists, financial reports, equipment and all other physical forms of expression incorporating or containing any Confidential Information, it being distinctly understood that all such writings, physical forms of expression and other things are the exclusive property of Buyer. Covenantor acknowledges that the unauthorized taking of any of Buyer's trade secrets is a crime under California Penal Code section 499(c) and is punishable by imprisonment in a state prison or in a county jail for a time not exceeding one year, or by a fine not exceeding five thousand dollars ($5,000), or by both such fine and such imprisonment. Covenantor further acknowledges that such unauthorized taking of Buyer's trade secrets could also result in civil liability under California Civil Code Section 3426, and that willful misappropriation may result in an award against Covenantor for triple the amount of Buyer's damages and Buyer's attorneys fees in collecting such damages.\nARTICLE 8\nRIGHTS AND REMEDIES UPON BREACH\nIf Covenantor breaches, or threatens to commit a breach of, any of the provisions of this Agreement (the \"Restrictive Covenants\"), Buyer shall have the following rights and remedies, each of which shall be in addition to, and not in lieu of, any other rights and remedies available to Buyer under law or in equity:\n8.1 Specific Performance. The right and remedy to have the Restrictive Covenants specifically enforced or to have any actual or threatened breach thereof enjoined by any court having equity jurisdiction, all without the need to post a bond or any other security or to prove any amount of actual damage or that money damages would not provide an adequate remedy, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to Buyer and that monetary damages will not provide an adequate remedy to Buyer; and\n8.2 Accounting and Indemnification. The right and remedy to require Covenantor (i) to account for and pay over to Buyer all compensation, profits, monies, accruals, increments or other benefits derived or received by Covenantor or any associated party deriving such benefits as a result of any such breach of the Restrictive Covenants; and (ii) to indemnify Buyer against any other losses, damages (including special and consequential damages), costs and expenses, including reasonable attorneys' fees and court costs, which may be incurred by them and which result from or arise out of any such breach or threatened breach of the Restrictive Covenants.\nARTICLE 9\nSEVERABILITY OF COVENANTS/BLUE PENCILLING\nThe Restrictive Covenants shall be subject to Section 12.7 hereof and Covenantor hereby waives any and all right to attack the validity of the Restrictive Covenants on the grounds of the breadth of their geographic scope or the length of their term.\nARTICLE 10\nENFORCEABILITY IN JURISDICTIONS\nBuyer and Covenantor intend to and do hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts of any jurisdiction within the geographical scope of such covenants. If the courts of any one or more of such jurisdictions hold the Restrictive Covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of Buyer and Covenantor that such determination not bar or in any way affect the right of Buyer to the relief provided above in the courts of any other jurisdiction within the geographical scope of such covenants, as to breaches of such covenants in such other respective jurisdictions, such covenants as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.\nARTICLE 11\nATTORNEYS' FEES\nIn the event of any action, suit, or other proceeding concerning the negotiation, interpretation, validity, performance, or breach of this Agreement, the prevailing party shall recover all of such party's reasonable attorneys' fees, expenses, and costs, not limited to costs of suit, incurred in each and every such action, suit, or other proceeding, including any and all appeals or petitions relating thereto.\nARTICLE 12\nMISCELLANEOUS\n12.1 Modification. This Agreement sets forth the entire understanding of the parties with respect to the subject matter hereof, supersedes all existing agreements between them concerning such subject matter, and may be modified only by a written instrument duly executed by each party.\n12.2 Successors and Assigns. The terms and provisions of this Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto, their personal representatives, administrators, executors, heirs, successors and assigns.\n12.3 Waiver. The failure of either party hereto at any time to enforce performance by the other party of any provision of this Agreement shall in no way affect such party's rights thereafter to enforce the same, nor shall the waiver by either party of any breach of any provision hereof be deemed to be a waiver by such party of any other breach of the same or any other provision hereof.\n12.4 Notices. All notices, requests and other communications hereunder shall be in writing and shall be delivered by courier or other means of personal service (including by means of a nationally recognized courier service or professional messenger service), or sent by facsimile or mailed first class, postage prepaid, by certified mail, return receipt requested, in all cases, addressed to:\nBuyer:\nVertel Corporation\n21300 Victory Boulevard Suite 700 Woodland Hills, California 91367\nAttention: Chief Executive Officer\nFax No.: (818) 598-0104\nWith a copy to:\nDavid J. Katz, Esq.\nPerkins Coie LLP\n1620 26/th/ Street\n6/th/ Floor\nSanta Monica, California 90404\nFax No.: (310) 788-3399\nCovenantor: ---------------------------------------------------------------------------------------------------------------------------------------\nAttention: -----------------------------------\nFax No.: With a copy to: ---------------------------------------------------------------------------------------------------------------------------------------\nAttention: -----------------------------------\nFax No.: All notices, requests and other communications shall be deemed given on the date of actual receipt or delivery as evidenced by written receipt, acknowledgement or other evidence of actual receipt or delivery to the address. In case of service by facsimile, a copy of such notice shall be personally delivered or sent by registered or certified mail, in the manner set forth above, within three business days thereafter. Any party hereto may from time to time by notice in writing served as set forth above designate a different address or a different or additional person to which all such notices or communications thereafter are to be given.\n12.5 Time of Essence. Time is hereby declared to be of the essence of this Agreement and of every part hereof.\n12.6 Severance and Enforcement. All Sections, clauses and covenants contained in this Agreement are severable, and in the event any of them shall be held to be invalid by any court, this Agreement shall be interpreted as if such invalid Sections, clauses or covenants were not contained herein. Without limitation, the parties intend that the covenants contained in this Agreement shall be severable insofar as the geographic and time restrictions set forth herein are concerned. If, in any judicial proceedings, a court shall refuse to enforce the geographic and/or time restrictions imposed herein to their fullest extent, then the geographic and/or time restrictions set forth herein shall be reduced to the extent necessary to permit enforcement of the foregoing covenant to the fullest extent possible.\n12.7 Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California applicable to contracts made and to be performed wholly within such State, and without regard to the conflicts of laws principles thereof. Subject to ARTICLE 10 hereof, any suit brought hereon shall be brought in the state or federal courts sitting in Los Angeles, California, the parties hereto hereby waiving any claim or defense that such forum is not convenient or proper. Subject to ARTICLE 10 hereof, each party hereby agrees that any such court shall have in personam jurisdiction over it and consents to service of process in any manner authorized by California law.\n12.8 Gender. Where the context so requires, the use of the masculine gender shall include the feminine and/or neuter genders and the singular shall include the plural, and vice versa, and the word \"person\" shall include any corporation, firm, partnership or other form of association.\n12.9 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement.\n12.10 Construction. The language in all parts of this Agreement shall in all cases be construed simply, according to its fair meaning, and not strictly for or against any of the parties hereto. Without limitation, there shall be no presumption against any party on the ground that such party was responsible for drafting this Agreement or any part thereof.\nIN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date and year first above written.\nCOVENANTOR:\n/s/ Hai-Perng Kuo\n------------------------------\nName: Hai-Perng, aka Alex Kuo\nBUYER\nVertel Corporation,\na California corporation\nBy: /s/ Craig Scott\n---------------------------\nName: Craig Scott\nTitle: CFO\n",
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"text": "CORPORATE NON-DISCLOSURE AGREEMENT\nThis Agreement is entered into and made effective as of the date set forth above by and between Intel Corporation (hereinafter \"Intel\"), and the participant identified below (hereinafter \"Participant\"). Unless the Participant indicates that this Agreement shall apply only to a specific division or location, this Agreement shall apply to the Participant's entire company.\nTHE PARTIES AGREE AS FOLLOWS:\nCONFIDENTIAL INFORMATION TRANSMITTAL FORM. The confidential, proprietary and trade secret information of the disclosing party (hereinafter \"Confidential Information\") provided hereunder, is that information described in the Confidential Information Transmittal Record (CITR) form executed from time to time hereafter. CITR's are subject to the terms of this Agreement and shall be executed by the parties prior to the disclosure of Confidential Information. All information described in a CITR and marked with a \"confidential,\" \"proprietary,\" or similar legend shall be deemed Confidential Information. All Confidential Information received from the disclosing party shall be in tangible form. The CITR shall set forth the disclosing party, a description of the Confidential Information disclosed, the names of the representatives of the parties and the date when the disclosure covered by the CITR commenced.\nOBLIGATIONS OF RECEIVING PARTY. The receiving party shall not disclose Confidential Information to any third party without the prior written approval of the disclosing party. The receiving party shall maintain the Confidential Information with at least the same degree of care that the receiving party uses to protect its own similar categories of confidential and proprietary information, but no less than a reasonable degree of care under the circumstances. The receiving party shall not make any copies of Confidential Information received from the disclosing party except as necessary for its employees with a need to know. Any copies which are made shall be identified as belonging to the disclosing party and marked \"confidential,\" \"proprietary,\" or with a similar legend.\nPERIOD OF CONFIDENTIALITY. Unless a shorter period is stated in the applicable CITR, the disclosing party will not assert any claims against the receiving party for disclosures of Confidential Information made more than five (5) years from the date of the CITR.\nTERMINATION OF OBLIGATION OF CONFIDENTIALITY. The receiving party shall not be liable for the disclosure of any Confidential Information which is:\n(a) in the public domain other than by a breach of this Agreement on the part of the receiving party; or\n(b) rightfully received from a third party without any obligation of confidentiality; or\n(c) rightfully known to the receiving party without any limitation on use or disclosure prior to its receipt from the disclosing party; or\n(d) independently developed by employees of the receiving party; or (e) generally made available to third parties by the disclosing party\nwithout restriction on disclosure.\nTITLE. Title or the right to possess Confidential Information as between the parties shall remain in the disclosing party.\nNO OBLIGATION OF DISCLOSURE. Neither party has any obligation to disclose Confidential Information to the other. Either party may, at any time, cease giving Confidential Information to the other party without any liability or request in writing the return of Confidential Information previously disclosed.\nTERMINATION AND DUTY TO RETURN. Either party may terminate this Agreement at any time without cause upon notice to the other party. However, all obligations of confidentiality shall survive the termination of this Agreement. In the event this Agreement is terminated, and the disclosing party so requests, the receiving party shall promptly return or destroy (and certify destruction of) all Confidential Information which it received from the disclosing party along with all copies which it made. GENERAL.\n(a) This Agreement is neither intended to nor shall it be construed as creating a joint venture, partnership or other form of business association between the parties, nor an obligation to buy or sell products using or incorporating the Confidential Information, nor as creating an implied or express license grant from either party to the other.\n(b) The failure of either party to enforce any right resulting from breach of any provision of this Agreement by the other party shall not be deemed a waiver of any right relating to a subsequent breach of such provision or of any other right hereunder.\n(c) This Agreement shall be governed by the laws of the State of California.\n(d) This Agreement, any accompanying CITR and CITRs executed from time to time hereafter which incorporate the terms of this Agreement constitute the entire agreement, written or verbal, between the parties with respect to the disclosure(s) of Confidential Information described in each CITR. This Agreement may not be amended except in writing signed by a duly authorized representative of the respective parties. Any other agreements between the parties, including non-disclosure agreements, shall not be affected by this Agreement.\n\n \nAGREED: PARTICIPANT: XIRCOM\n-------------------------------------------\nINTEL CORPORATION (Company Name, Division/Sub, if applicable)\n3065 Bowers Avenue\nSanta Clara, CA 95052 26025 Mureau Road\n--------------------------------------------------------\n(Address)\nCalabasas CA 91302\n--------------------------------------------------------\n(City) (State) (Zip)\n/s/ CARL EVERETT /s/ JEROME P. CHERWINSKI\n-------------------------------- --------------------------------------------------------\nSignature Signature\nCARL EVERETT JEROME P. CHERWINSKI\n-------------------------------- --------------------------------------------------------\nPrinted Name Printed Name\nVICE PRESIDENT-DIRECTOR OF SALES V.P. ENG. 230-0000-30 (7/90)\n-------------------------------- --------------------------------------------------------\nTitle Title\n
\nSEND TO: CORPORATE CONTRACT\nMANAGEMENT, FM 1-03\n",
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"text": "AGREEMENT DATE: JUNE 2, 1999 EXHIBIT 1\nCorporate Non-Disclosure Agreement\nThis Corporate Non-Disclosure Agreement (\"Agreement\") is entered into and made effective as of the date set forth above, by and between Intel Corporation and its majority owned subsidiaries (\"Intel\"), and the Participant identified below (\"Participant\"). Unless the Participant indicates that this Agreement will apply only to the specific division or location, this Agreement will apply to the Participant's entire Company.\nTHE PARTIES AGREE AS FOLLOWS:\n1. Confidential Information Transmittal Form. The confidential, proprietary and made secret information of the disclosing party (\"Confidential Information\") to be disclosed hereunder is that information which (i) is described in the Confidential Information Transmittal Record (\"CITR\") executed from time to time hereafter and (ii) is marked with a \"confidential\", \"proprietary\", or similar legend.\nCITRs are subject to the terms of this Agreement. CITRs will be executed, in writing or in electronic form, by the parties prior to the disclosure of Confidential Information. All Confidential Information received from the disclosing party will be in tangible form. To be considered Confidential Information, non-tangible disclosures must be identified as confidential prior to disclosure and produced in writing, marked as provided above and delivered to the receiving party within thirty (30) days of the original date of disclosure. The CITR will indicate the disclosing party, a description of the Confidential Information disclosed, the names of the representatives of the parties and the dates when the disclosure covered by the CITR commenced.\n2. Obligations of Receiving Party. The receiving party will maintain the confidentiality of the Confidential Information of the disclosing party with at least the same degree of care that it uses to protect its own confidential and proprietary information, but no less than a reasonable degree of care under the circumstances. The receiving party will not disclose any of the disclosing party's Confidential Information to any employees or to any third parties except to the receiving party's employees, parent company and majority-owned subsidiaries who have a need to know and who agree to abide by nondisclosure terms at least as comprehensive as those set forth herein: provided that the receiving party will be liable for breach by any such entity. The receiving party will not make any copies of the Confidential Information received from the disclosing party except as necessary for its employees, parent company and majority-owned subsidiaries with a need to know. Any copies which are made will be identified as belonging to the disclosing party and marked \"confidential\", \"proprietary\", or with a similar legend.\n3. Period of Non-Assertion. Unless a shorter period is indicated in the applicable CITR, the disclosing party will not insert any claims of breach of this Agreement or misappropriation of trade secrets against the receiving party arising from the receiving party's disclosure of the disclosing party's Confidential Information made more than five (5) years from the date of the CITR under which such information was disclosed. However, unless at least one of the exceptions set for in Section 4 below has occurred, the receiving party will continue to treat such confidential Information as the confidential information of the disclosing party and only disclose any such Confidential Information to third parties under the terms of a non-disclosure agreement.\n4. Termination of Obligation of Confidentiality. The receiving party will not be liable for the disclosure of any Confidential Information which is:\n(a) rightfully in public domain other than by a breach of duty to the disclosing party\n(b) rightfully received from a third party without any obligation of confidentiality\n(c) rightfully known to the receiving party without any limitation on use or disclosure prior to its receipt from the disclosing party\n(d) independently developed by employees of the receiving party; or\n(e) generally made available to third parties by the disclosing party without restriction on disclosure.\n5. Title. Title or the right to possess Confidential Information as between the parties will remain in the disclosing party.\n6. No Obligation of Disclosure: Termination. Neither party has any obligation to disclose Confidential Information to the other. Either party may terminate this Agreement at any time without cause upon written notice to the other party: provided that each party's\nobligations with respect to Confidential Information disclosed during the term of this Agreement will survive any such termination. Either party may, at any time: (a) cease giving Confidential Information to the other party without any liability and/or (b) request in writing the return or destruction of all or part of its Confidential Information previously disclosed, and all copies thereof, and the receiving party will promptly comply with such request, and certify in writing its compliance.\n7. Residuals. Notwithstanding anything herein to the contrary, either party may use Residuals for any purpose, including without limitation use in development manufacture, promotion, sale and maintenance of its products or services: provided that this right to Residuals does not represent a licence under any patents, copyrights or other intellectual property rights of the disclosing party. The term \"Residuals\" means any information retained in the unaided memories of the receiving party's employees who have had access to the disclosing party's Confidential Information pursuant to the terms of this Agreement. An employee's memory is unaided if the employee has not intentionally memorized the Confidential Information for the purpose of retaining and subsequently using or disclosing it.\n8. General.\n(a) This Agreement is neither intended to nor will it be considered as creating a joint venture, partnership or other form of business association between the parties, nor an obligation to buy or sell products using or incorporating the Confidential Information.\n(b) Both parties understand and acknowledge that no license under any patent, copyright, trade secret, or other intellectual property right is granted to or conferred upon, either party in this Agreement or by the disclosure of any Confidential Information by one party to the other party as contemplated hereunder, either expressly, by implication, inducement, estoppel or otherwise, and that any license under such intellectual property rights must be express and in writing.\n(c) The failure of either party to enforce any right resulting from breach of any provision of this Agreement by the other party will not be deemed a waiver of any right relating to a subsequent breach of such provision or of any other right hereunder.\n(d) This Agreement will be governed by laws of the State of Delaware without reference to conflict of laws principles.\n(e) This Agreement, any accompanying CITR and CITRs executed from time to time hereafter which incorporate the terms of this Agreement, constitutes the entire agreement between the parties with respect to the disclosure(s) of Confidential Information described in each CITR, and may not be amended except in a writing signed by a duly authorized representative of the respective parties. Any other agreements between the parties, including non-disclosure agreements, will not be affected by this Agreement.\nINTEL CONTACT: Mohammad Aboobaker M/S: FMS-92 TEL NO: 356-6084\nAGREED:\nINTEL CORPORATION\n2200 Mission College Blvd.\nSanta Clara, CA 95052-8119 PARTICIPANT: DSP Communications\n20300 Stevens Creek Blvd.\nCupertino, CA 95014\n/s/ DAVIDI GILO\n-----------------------------------------\nSignature of Authorized Representative (e.g. President or V.P.) David Gilo\n-----------------------------------------\nPrinted Name\nChairman\n-----------------------------------------\nTitle\n",
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"text": "NON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nTHIS NON-COMPETITION AND NON-DISCLOSURE AGREEMENT (this \"Agreement\") is made and entered into as of the 31st day of July, 1997, by and between Roland W. Samples (\"Samples\"), Wyndham Hotel Corporation, a Delaware corporation (the \"Acquiror\"), and ClubHouse Hotels, Inc., a Kansas corporation (the \"Target Company\").\nRECITALS\nA. Pursuant to the Agreement and Plan of Merger dated as of July, 21 1997 among the Target Company, the Acquiror, WHC Acquisition Corporation, a Delaware corporation (\"MergerSub\"), Samples and David H. Aull (the \"Merger Agreement\"), the parties have agreed to the merger of MergerSub with and into the Target Company (the \"Merger\") and certain related transactions (the Merger and such related transactions are collectively referred to herein as the \"Merger Transactions\"), all on the terms and subject to the conditions set forth in the Merger Agreement and such other ancillary agreements as are referenced therein.\nB. Samples is a principal stockholder of the Target Company and, as such, will derive substantial benefit from the Merger Transactions.\nC. Each of the Acquiror and the Target Company has been and presently is engaged (itself and through its subsidiaries and the Related Entities) in the business of owning, franchising, licensing and operating hotels (the \"Business\"). Samples is a director and the President and Chief Financial Officer of the Target Company (and is also an officer and/or director of certain of the Target Company's subsidiaries and affiliates and the Related Entities).\nD. The Merger Agreement provides, as a condition to the Closing thereunder, that Samples shall execute and deliver this Agreement.\nE. The agreements of Samples hereunder are an important aspect of the Merger Transactions, and the Acquiror and MergerSub would not consummate the Merger Transactions absent the execution and delivery by Samples of this Agreement.\nNOW, THEREFORE, in consideration of the premises and of the mutual promises contained herein, and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties do hereby agree as follows:\n1. Certain Definitions. Terms with initial capital letters used herein that are not defined herein shall have the meanings provided for such terms in the Merger Agreement. As used herein, the term \"Target Company\" shall mean ClubHouse Hotels, Inc. prior to the consummation of the Merger and as the surviving corporation in the Merger.\n2. Restrictive Covenants.\n(a) Samples hereby acknowledges and agrees that (i) the know-how, trade secrets, intellectual property rights, marketing and operating techniques, contacts, customers, suppliers, technology and other aspects of the business of the Target Company and the Related Entities have been, and hereafter will be, of value to the Acquiror, the Target Company and the Related Entities and have provided, and hereafter will provide, the Acquiror, the Target Company and the Related Entities with substantial competitive advantage in the operation of their businesses; (ii) by virtue of his previous relationship with the Target Company and the Related Entities as an officer, director, shareholder and employee, he has detailed and substantial knowledge and possesses confidential information concerning the business, operations, pricing structure, customers, suppliers, personnel and competitive methods of the Target Company and the Related Entities; and (iii) he has substantial financial resources and experience in the business of owning, franchising, licensing and operating hotels and the ability to operate a business or businesses that could compete with the Acquiror, the Target Company, their respective subsidiaries and affiliates and the other Related Entities.\n(b) Samples agrees that, except for such disclosure as may be required by applicable law, he shall not, directly or indirectly, for himself or through or on behalf of any other person or entity, at any time after the date hereof, without the prior written consent of the Acquiror, reveal, divulge, disclose or communicate to any person, firm, association, corporation or other entity, or use, in any manner whatsoever any know-how, trade secrets, intellectual property rights, marketing and operating techniques, business contacts, client or customer lists, suppliers, technology, contracts or other confidential or proprietary information of the Target Company, any Related Entity or any of their respective affiliates (except Innco Hospitality, Inc. and any entity controlled by Innco Hospitality, Inc. and Transamerican Properties, Inc. and T.I.P. Realty Partners, and any entity controlled by either of them and the Broadway Plaza Suites in Kansas City, Missouri); provided, however, that for purposes hereof, information shall not be considered to be confidential or proprietary if (i) it is a matter of common knowledge or public record or (ii) the Undersigned can demonstrate that such information was already known to the recipient thereof other than by reason of any breach of any obligation under this Agreement or any other confidentiality or non-disclosure agreement.\n(c) Samples agrees that, for a period of five (5) years (or such lesser period hereinafter provided for) following the date hereof (the \"Restricted Period\"), he shall not, without the prior express written consent of the Acquiror:\n(i) except with respect to the Permitted Hotels (as defined below), call upon, solicit, divert, take away or attempt to call upon, solicit, divert or take away any existing or potential customers, suppliers or accounts of the Acquiror Companies, the Target Company or the Related Entities or their respective businesses in connection with any business substantially similar to the Business;\n(ii) hire or attempt to hire, for himself or on behalf of any other person, any present or future employee of the Acquiror Companies, the Target Company or any Related Entity; or\n(iii) own, lease, maintain, operate, franchise, license, manage, invest in or provide financing for, or give any advice to any person, firm, partnership, association, venture, corporation or other entity owning an interest in or engaging, directly or indirectly, in the management or operation of, (A) any Hilton Garden, Courtyard by Marriott or Doubletree Club hotel wherever located or (B) any other Upscale Hotel (as defined below) or Extended Stay Hotel (as defined below) located in the United States, Canada, Mexico or the Caribbean within a ten (10)-mile radius of any hotel now or hereafter operated under the \"Wyndham,\" \"ClubHouse,\" or \"Homegate\" brand, except for any such activity conducted for or on behalf of, or in conjunction with, any of the Acquiror Companies or, in the case of clause (B), Permitted Hotels (as defined below); provided, that if a hotel operated under the \"Wyndham,\" \"ClubHouse,\" or \"Homegate\" brand is announced for a location that is within a ten (10)-mile radius of any hotel that prior to the date of such announcement was in operation and is owned, managed or operated by any such entity in which Samples has also prior to such date commenced involvement of a type that would otherwise be restricted by clause (B), then this clause (iii) shall not require Samples to cease such involvement; or\n(iv) enter into any contract or make any commitment to take any action that is restricted by clauses (i), (ii) or (iii) above.\n(d) As used in the foregoing provisions, (i) the term \"Upscale Hotel\" shall mean any hotel or other lodging facility that is a full service hotel or facility of a type that is treated or classified as an \"upscale hotel\" or as part of the \"upscale segment\" of the lodging industry by Smith Travel Research or, if such a classification is not available from Smith Travel Research, by a similar reputable hotel industry service; (ii) the term \"Extended Stay Hotel\" shall mean any hotel or other lodging facility that derives the majority of its business from guests who stay three consecutive nights or longer or that is of a type that is treated or classified as an \"extended stay hotel\" or as part of the \"extended stay segment\" of the lodging industry by Smith Travel Research or, if such a classification is not available from Smith Travel Research, by a similar reputable hotel industry service and (iii) \"Permitted Hotels\" shall mean, collectively, (A) the hotel in Wichita, Kansas operated as of the date hereof as the Wichita Airport Hilton and (B) the hotel in Peoria, Illinois operated as of the date hereof as the Pere Marquette, (C) any upscale all-suites hotel located or to be located adjacent to the Sprint campus in Overland Park, Kansas, (D) the Holiday Inn in Topeka, Kansas, so long as managed under a management contract by Samples or any entity controlled by Samples; (E) if so provided by Section 2(e) below, any three (3) other hotels that, at the time that Samples owns, leases, operates, franchises, licenses, manages, invests in or gives advice in respect of such hotels, have been open and in operation for at least one (1) years, provided that this clause (E) and the similar provision of the Non-Competition and Non-Disclosure Agreement of David H. Aull of even date herewith shall collectively not authorize more than a total of three hotels; (F) the Broadway Plaza Suites in Kansas City, Missouri and (G) any Extended Stay Hotel at a specified site if (x) Samples has offered in writing to Acquiror or its designee to develop for Acquiror or such designee an Extended Stay Hotel at such site as a Homegate brand (or other extended stay brand maintained by Acquiror, Target Company or their respective affiliates) Extended Stay Hotel in accordance with the procedure set forth below and (y) Acquiror or its designee has either advised Samples that it does not wish to have an Extended Stay Hotel developed at such site as a Homegate (or other extended stay brand maintained by Acquiror, Target Company or their respective affiliates) or failed to respond within the time period set forth below. In the case of clause (G) above, Samples' offer shall include a reasonably detailed proposal for the development of the site as an Extended Stay Hotel. Acquiror or its designee shall be given at least thirty (30) days to evaluate such offer and respond to Samples. If Acquiror or its designee fails to respond within such thirty (30) day period or advises Samples that it does not wish to have an Extended Stay Hotel developed at such site as a Homegate (or other extended stay brand maintained by Acquiror, Target Company or their respective affiliates), Samples may develop an Extended Stay Hotel on such site with another party if construction of such Extended Stay Hotel is commenced within 180 days thereafter and is pursued with reasonable diligence thereafter.\n(e) If, by July 1, 1998, Samples has not entered into an agreement with the Acquiror (or any successor to or affiliate of the Acquiror or any such successor) concerning the development, franchise or operation of a hotel, then upon such date the definition of Permitted Hotels in Section 2(d) above shall include clause (E) thereof from and after such date. As used in the preceding sentence and in Section 2(f) below, an \"affiliate\" of any person means any other person controlling, controlled by, or under common control with, such first person.\n(f) If, by July 1, 1998 (if the merger of Acquiror into Patriot Hospitality, Inc. provided for in the Patriot-Acquiror Merger Agreement (as defined in the Merger Agreement) (the\"Patriot-Acquiror Merger\") has not occurred by that date) or one (1) year after the closing of the Patriot-Acquiror Merger (if such merger has occurred prior to July 1, 1998), Samples has not entered into an agreement with the Acquiror (or any successor to or affiliate of the Acquiror or any such successor) concerning the development, franchise or operation of a hotel, then upon such date the term of the Restricted Period automatically shall be reduced from five (5) to three (3) years.\n(g) Except as otherwise expressly permitted hereby, the covenants in this Section 2 are intended to restrict Samples from competing in any manner with the Acquiror Companies, the Target Company and the Related Entities or the Business in the activities that have heretofore been carried on by the Acquiror Companies, the Target Company and the Related Entities. The obligations set forth in this Section above shall apply to actions by Samples, whether taken directly or indirectly, through any form of ownership, and whether as principal, officer, director, agent, employee, employer, consultant, stockholder or holder of any equity security (beneficially or as trustee of any trust), lender, partner, joint venturer or in any other individual or representative capacity whatsoever. However, none of the foregoing shall prevent Samples from (i) being the holder of up to 5% in the aggregate of any class of securities of any corporation engaged in the activities described above, provided that such securities are listed on a national securities exchange or reported on NASDAQ or (ii) being the holder of non-convertible debt securities of any entity.\n3. Enforcement of Covenants. Samples acknowledges that a violation or attempted violation of any of the covenants and agreements in Section 2 above will cause such damage to the Acquiror Companies, the Target Company and the Related Entities as will be irreparable, the exact amount of which would be difficult to ascertain and for which there will be no adequate remedy at law, and accordingly, Samples agrees that each of the Acquiror Companies and the Target Company and any Related Entity shall be entitled as a matter of right to an injunction issued by any court of competent jurisdiction, restraining such violation or attempted violation of such covenants and agreements by Samples, or the employees, partners or agents of Samples, as well as recover from Samples any and all costs and expenses sustained or incurred by the Acquiror Companies and the Target Company and the Related Entities in obtaining such an injunction, including, without limitation, reasonable attorneys' fees. Samples agrees that no bond or other security shall be required in connection with such injunction. Samples further agrees that the Restricted Period shall be tolled during any period of violation thereof by Samples. Any exercise by any one or more of the Acquiror Companies and the Target Company and the Related Entities of their respective rights pursuant to this Section 3 shall be cumulative and in addition to any other remedies to each of them may be entitled.\n4. Intellectual Property. Samples recognizes and agrees that, on and after the date hereof, he will not have the right to use for his own account any of the service marks, trademarks, trade names, licenses, labels, trade secrets or customers' lists owned by or licensed to the Acquiror Companies, the Target Company or any of the Related Entities.\n5. Consideration. As consideration for Samples' agreements provided herein, the Acquiror agrees to pay to Samples the total sum of $500,000, which amount shall be payable by wire transfer of immediately available funds on the date hereof. Samples also acknowledges and agrees that, in addition thereto, he has received substantial consideration and benefit, direct and indirect, pursuant to the Merger and the other transactions contemplated by the Merger Agreement.\n6. Validity. Samples acknowledges and agrees that each of the covenants contained herein is a reasonable limitation as to time, geographical area and scope of activity to be restrained and does not impose a greater restraint than is necessary to protect the goodwill or other interests of the Acquiror Companies and the Target Company and the Related Entities. To the extent permitted by applicable law, if it should ever be held that any provision contained herein does not contain reasonable limitations as to time, geographical area or scope of activity to be restrained, then the court so holding shall at the request of any of the Acquiror Companies or the Target Company or any Related Entity reform such provisions to the extent necessary to cause them to contain reasonable limitations as to time, geographical area and scope of activity to be restrained and to give the maximum permissible effect to the intentions of the parties as set forth herein; and the court shall enforce such provisions as so reformed. If, notwithstanding the foregoing, any provision hereof is held to be illegal, invalid or unenforceable under present or future laws effective during the term hereof, such provision shall be fully severable; this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof; and the remaining provisions hereof shall remain in full force and effect and shall not be affected by the illegal, invalid or enforceable provision or by its severance here from. Furthermore, in lieu of such illegal, invalid or unenforceable provision there shall be added automatically by the Acquiror and the Target Company as a part hereof a provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable, and the parties hereby agree to such provision.\n7. Waiver of Breach. The waiver by any party to this Agreement of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by any party.\n8. Tax Reporting. The parties hereby expressly agree that the consideration given and received pursuant to this Agreement shall, for income tax purposes, be reported as amounts paid for a covenant not to compete. The parties acknowledge that Samples shall be solely responsible for the payment of any federal, state or local taxes arising from his receipt of the consideration under this Agreement.\n9. Notice. Any notice, request, instruction, document or other communication to be given hereunder by any party hereto to any other party hereto shall be in writing and validly given if (i) delivered personally, (ii) sent by telecopy, (iii) delivered by overnight express, or (iv) sent by registered or certified mail, postage prepaid, as follows:\nIf to Acquiror or the Target Company:\nWyndham Hotel Corporation/ClubHouse Hotels, Inc.\n2001 Bryan Street\nSuite 2300\nDallas, TX 75201\nAttention: Legal Department\nFacsimile No. (214) 863-1262\nIf to Samples:\nMr. Roland W. Samples\n11230 College Boulevard, Suite 130\nOverland Park, Kansas 66210-2700\nFacsimile No. (913) 451-6072\nor at such other address for a party as shall be specified by like notice. Any notice which is delivered personally, or sent by telecopy or overnight express in the manner provided herein shall be deemed to have been duly given to the party to whom it is directed upon actual receipt by such party. Any notice which is addressed and mailed in the manner herein provided shall be conclusively presumed to have been given to the party to whom it is addressed at the close of business, local time of the recipient, on the third day after the day it is so placed in the mail.\n10. Entire Agreement. This Agreement contains the entire agreement of the parties hereto with respect to the matters covered hereby, and supersedes all prior negotiations and written, oral or implied representations, warranties, commitments, offers, contracts and understandings between the parties with respect to such matters. No modification or amendment of any of the terms, conditions or provisions in this Agreement may be made otherwise than by written agreement signed by the parties hereto, except as provided in Section 6 hereof.\n11. Successors and Assigns. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns; provided, however, that the obligations herein of Samples may not be delegated or assigned, and any purported delegation or assignment by Samples in violation of this Section 11 shall be null and void. Samples hereby acknowledges and agrees that the Acquiror Companies and Related Entities, and any other entity now or hereafter owning or operating any hotel operated under the \"Wyndham,\" \"ClubHouse\" or \"Homegate\" brand, are intended beneficiaries of the provisions hereof, notwithstanding the fact that such entities may not be parties hereto, and shall be entitled to enforce the provisions hereof as if they were parties hereto.\n12. Headings. The headings of the sections of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction hereof.\n13. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED, ENFORCED, AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF DELAWARE (WITHOUT REGARD TO\nITS CHOICE OF LAW PRINCIPLES).\n14. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, and such counterparts together shall constitute one and the same instrument.\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.\n/s/ ROLAND W. SAMPLES\nRoland W. Samples\nWYNDHAM HOTEL CORPORATION, a Delaware corporation\nBy: /s/ MICHAEL SILVERMAN\nName: Michael Silverman\nTitle: Authorized Agent\nCLUBHOUSE HOTELS, INC.\na Kansas corporation\nBy: /s/ ROLAND W. SAMPLES\nName: Roland W. Samples\nTitle: President\n",
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"text": "MUTUAL NON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT governs the disclosure of information by and between Oacis Healthcare Systems Corp. (\"OACIS\") and Science Applications International Corporation (\"SAIC\") as of November 4th, 1998 (the \"EFFECTIVE DATE\").\n1. As used herein, \"CONFIDENTIAL INFORMATION\" shall mean any and all technical and non-technical information provided by either party to the other, including but not limited to (a) patent and patent applications, (b) trade secret, and (c) proprietary information, ideas, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, algorithms, software programs, software source documents, and formulae related to the current, future, and proposed products and services of each of the parties, and including, without limitation, their respective information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, sales and merchandising, marketing plans and information the disclosing party provides regarding third parties.\n2. Each party agrees that at all times until termination or expiration of this Agreement it will hold in strict confidence and not disclose to any third party Confidential Information of the other, except as approved in writing by the other party to this Agreement, and will use the Confidential Information for no purpose other than evaluating or pursuing a business relationship with the other party to this Agreement. Notwithstanding the above, the party to whom Confidential Information was disclosed (the \"RECIPIENT\") shall not be in violation of this Section 3 with regard to a disclosure that was in response to a valid order by a court or other governmental body, provided that the Recipient provides the other party with prior written notice of such disclosure in order to permit the other party to seek confidential treatment of such information. Each party shall only permit access to Confidential Information of the other party to those of its employees or authorized representatives having a need to know and who have signed confidentiality agreements or are otherwise bound by confidentiality obligations at least as restrictive as those contained herein.\n3. Each party shall immediately notify the other upon discovery of any loss or unauthorized disclosure of the Confidential Information of the other party.\n4. Each party's obligations under this Agreement with respect to any portion of the other party's Confidential Information shall terminate when the Recipient can document that: (a) it was in the public domain at the time it was communicated to the Recipient by the other party; (b) it entered the public domain subsequent to the time it was communicated to the Recipient by the other party through no fault of the Recipient; (c) it was in the Recipient's possession free of any obligation of confidence at the time it was communicated to the Recipient by the other party; (d) it was rightfully communicated to the Recipient free of any obligation of confidence subsequent to the time it was communicated to the Recipient by the other party or (e) it was communicated by the other party to an unaffiliated third party free of any obligation of confidence.\n5. Upon termination or expiration of the Agreement, or upon written request of the other party, each party shall promptly destroy or return to the other all documents and other tangible materials representing the other's Confidential Information and all copies thereof. The Recipient agrees to destroy all documents, memoranda, notes and other writings whatsoever prepared by the Recipient or its employees or representatives based on the information contained in the Confidential Information (except for references or summaries appearing in minutes or corporate records).\n6. In addition, each party agrees that it will not (and direct its employees and representatives not to) disclose (i) to any person either the fact that discussions or negotiations are taking place concerning one or more possible transactions between the parties or (ii) any of the terms, conditions or other facts with respect to any such possible transactions, including the status thereof.\n7. Although the disclosing party has endeavored to include in the Confidential Information, information known to it which it believes to be relevant for the purpose of the Recipient's investigation of a potential transaction, the Recipient acknowledges and agrees that neither the disclosing party nor any of its employees or representatives have made or make any representations or warranty as to the accuracy or completeness of all or any portion of the Confidential Information. The Recipient agrees that neither the disclosing party nor any of its employees or representatives shall have any liability to the Recipient or any of the Recipient's employees or representatives resulting from the use of, or conclusions arising from, the Confidential Information.\n8. The parties recognize and agree that nothing contained in this Agreement shall be construed as granting any property rights, by license or otherwise, to any Confidential Information of the other party disclosed pursuant to this Agreement, or to any invention or any patent, copyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information. Neither party shall make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any Confidential Information to the other party.\n9. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any reproduction of any Confidential Information of the other party by either party shall remain the property of the disclosing party and shall contain any and all confidential or proprietary notices or legends which appear on the original, unless otherwise authorized in writing by the other party.\n10. Nothing contained herein shall imply any obligations of either party to proceed with a transaction between the parties, and each party reserves the right to terminate the discussions contemplated hereunder, with or without cause, without any liability for such termination.\n11. This Agreement shall terminate three (3) years after the Effective Date and shall be binding upon the Recipient's heirs, successors and assigns.\n12. This Agreement shall be governed by and construed in accordance with the laws of California without reference to conflict of laws principles. This Agreement may not be amended except by a writing signed by both parties hereto.\n13. Each party acknowledges that its breach of the Agreement will cause irreparable damage and hereby agrees that the other party shall be entitled to seek injunctive relief under this Agreement, as well as such further relief as may be granted by a court of competent jurisdiction. Additionally, in the event of a breach by the Recipient, the disclosing party shall be entitled to recover the costs of enforcing this Agreement including, without limitation reasonable attorneys' fees.\n14. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole and in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.\n15. Neither party shall communicate any information to the other in violation of the proprietary rights of any third party.\n16. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party.\n17. Neither party shall export, directly or indirectly, any technical data acquired from the other pursuant to this Agreement or any product utilizing any\nsuch data to any country for which the U.S. Government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining such license or approval.\n18. All notices or reports permitted or required under this Agreement shall be in writing and shall be delivered by personal delivery, electronic mail, facsimile transmission or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, five (5) days after deposit in the mail, or upon acknowledgment of receipt of electronic transmission. Notices shall be sent to the addresses set forth at the end of this Agreement or such other address as either party may specify in writing.\n19. Each of the parties agrees that the software programs of the other party contain valuable confidential information and each party agrees it will not modify, reverse engineer, decompile, create other works from, or disassemble any software programs contained in the Confidential Information of the other party without the prior written consent of the other party.\n20. This Agreement may be executed in two or more counterparts, each of which when so executed and delivered shall be deemed an original, and such counterparts together shall constitute only one instrument.\nIN WITNESS WHEREOF, the parties hereto have caused this Mutual Non-Disclosure Agreement to be executed as of the Effective Date.\nOACIS HEALTHCARE SYSTEMS CORP. SCIENCE APPLICATIONS INTERNATIONAL\nCORPORATION\nBy: /s/ Stephen Ghiglieri By: /s/ K. J. Houston\n------------------------ ----------------------------\nName: /s/ Stephen Ghiglieri Name: /s/ K. J. Houston\n---------------------- --------------------------\nDate: November 4, 1998 Date: November 4, 1998\n---------------------- --------------------------\nAddress: The Oacis Building Address: 10260 Campus Point Drive\n1101 Fifth Avenue San Diego, CA 92121\nSan Rafael, CA 94901\n",
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"text": "NON-COMPETITION, REFERRAL AND NON-DISCLOSURE AGREEMENT\nNON-COMPETITION, REFERRAL AND NON-DISCLOSURE AGREEMENT (the \"Agreement\"), dated as of May 10 , 1999, by and between CompuCom Systems, Inc., a Delaware corporation (\"CompuCom\"), and ENTEX Information Services, Inc., a Delaware corporation (\"Seller\").\nRECITALS\nWHEREAS, CompuCom and Seller have entered into an Asset Purchase Agreement dated as of May 10 , 1999 (the \"Asset Purchase Agreement\");\nWHEREAS, the execution of this Agreement is a condition to CompuCom acquiring, and Seller disposing of, the Purchased Assets (as defined in the Asset Purchase Agreement) in connection with the Asset Purchase Agreement;\nNOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, CompuCom and Seller hereby agree as follows:\nARTICLE I\nDEFINITIONS\n1.1 For purposes of this Agreement, the following terms have the following meanings:\n(1) \"Configuration\" means the preparation of a computer and related hardware and integration of components into a computer system; provided that the term \"Configuration\" shall not include installation of a computer or related hardware at a customer site.\n(2) \"Non-Competition Period\" means the period commencing on May 12, 1999 and ending on May 11, 2000.\n(3) \"Product\" means any computer or related hardware and peripherals (including hubs, switches and routers or networking hardware) or software products (including networking software products) which CompuCom has the ability to sell.\n(4) \"Product Business\" means the acceptance and fulfillment of customer orders for Products, including the manufacturing, channel assembly, co-location or centralized image loading and Configuration of Products; provided that the term \"Product Business\" shall not include on-site Configuration of computer or related hardware or software products made subsequent to the initial image load/configuration.\n(5) \"Outsourcing and Professional Services\" means (a) consulting, system migrations, project management, other services typically referred to as \"high-end\" services, and (b) outsourcing contracts having a term of more than one year which require pricing be done on a per seat basis. Agreements that consist primarily of lower-end services, including, but not limited to, break/fix, IMAC, warranty and low-end staff augmentation, other than agreements priced on a per-seat basis, are not Outsourcing and Professional Services agreements.\n(6) \"Service Accounts\" means the customer accounts of Seller listed on Exhibits B and C hereto.\n(7) \"Services\" means all IT services offered by Seller, including, but not limited to, all outsourcing, professional services, break/fix, staff augmentation and consulting services; provided that the term \"Services\" shall not include (i) on-site Configuration of Products by CompuCom or (ii) the sale (but not the performance) by CompuCom of extended warranty contracts at time of initial sale of Products to customers.\n(8) \"Subsidiary,\" with respect to any person, means (i) any corporation of which the outstanding capital stock having at least a majority of the votes entitled to be cast in the election of directors under ordinary circumstances shall at the time be owned, directly or indirectly, by such person or (ii) any other person of which at least a majority of the voting interest under ordinary circumstances is at the time, directly or indirectly, owned by such person.\nCapitalized terms used in this Agreement and not otherwise defined shall have the meanings ascribed thereto in the Asset Purchase Agreement.\nARTICLE II\nAGREEMENT TO COOPERATE\nSubject to the limitations set forth in Article III, Seller and CompuCom agree that with respect to each account listed on Exhibit A hereto, that until the earlier of (a) May 11, 2000 or (b) the termination of the existing contract between Seller and such account (i) each party will cooperate with the other in delivering Services and Products to such account in substantially the same manner in which such Services and Products were delivered to such account prior to Closing and (ii) each party's representative will be permitted to call on such account.\nARTICLE III\nAGREEMENT NOT TO COMPETE\n3.1 Seller's Agreement. (a) Seller agrees that during the Non-Competition Period Seller will not, and will not permit any of its Subsidiaries to:\n(i) engage in the Product Business;\n(ii) encourage any Service Account to specify a party other than CompuCom to provide Products and image load/configurations to such Service Account; or\n(iii) solicit, entice or induce any employee of CompuCom or any Subsidiary of CompuCom to terminate his or her employment with CompuCom or any Subsidiary of CompuCom or hire any person who was or is at any time from the date of execution of the Asset Purchase Agreement to the end of the Non-Competition Period an employee of CompuCom or any Subsidiary of CompuCom.\n(b) Seller agrees that during the Non-Competition Period Seller will, and will cause its Subsidiaries to use commercially reasonable efforts to cause future Service customers to whom Seller provides Outsourcing and Professional Services and existing Service customers of Seller to whom Seller is able to expand its Services, to procure Products and image load/configuration from CompuCom in accordance with the provisions of Article IV, provided that CompuCom is not competing with Seller to provide future or expanded Services to such customers.\nNotwithstanding the foregoing, Seller shall be permitted to preserve its ability to resell Products to the extent required by existing customer agreements if (i) the customer refuses to approve of CompuCom providing such Products after Seller uses commercially reasonable efforts to obtain such approval, (ii) CompuCom rejects the customer order for such Products pursuant to Article IV (provided that CompuCom shall comply with the requirements of the Asset Purchase Agreement with respect to such agreements), or (iii) CompuCom fails to meet the requirements of the customer agreement, including but not limited to price, payment terms, return privileges and service level agreements (\"SLA's) (subject to applicable cure periods). In addition, Seller shall be permitted (A) to arrange for the procurement of computers or related hardware and software products as agent for customers in connection with future Outsourcing and Professional Services engagements, subject to Seller's obligations under Section 3.1(b) and the conditions provided for in the immediately preceeding sentence (B) to refer orders for Products for delivery outside the United States to comply with Seller's obligations under Seller's international alliance agreements and (C) to perform initial on-site image load/configuration and augmentation in a manner consistent with Seller's current business practices, provided that Seller agrees that during the Non-Competition Period, it will not actively encourage any Services customer to move its initial image load/configuration business from CompuCom's configuration facilities to the customer`s site.\n3.2 CompuCom's Agreement. (a) CompuCom agrees that during the Non-Competition Period CompuCom will not, and will not permit any of its Subsidiaries to:\n(i) provide any Services to any account listed on Exhibit B hereto;\n(ii) provide any Services to any account listed on Exhibit C hereto except to the extent provided for in such Exhibit; or\n(iii) except as contemplated by the Asset Purchase Agreement, solicit, entice or induce any employee of Seller or any Subsidiary of Seller to terminate his or her employment with Seller or any Subsidiary of Seller or hire any person who was or is at any time from the date of execution of the Asset Purchase Agreement to the end of the Non-Competition Period an employee of Seller or any Subsidiary of Seller.\nNotwithstanding the foregoing, CompuCom shall be permitted to provide Services under any \"request for proposal\", bid, contract or statement of work submitted by CompuCom to the applicable potential customer prior to May 12, 1999 . In the event of a dispute between CompuCom and Seller as to the matters covered by the immediately preceeding sentence, CompuCom shall furnish, in response to the reasonable request of Seller, evidence and shall have the burden of proving, that the applicable \"request for proposal\", bid, contract or statement of work was submitted by CompuCom to the customer prior to May 12, 1999.\n(b) CompuCom agrees that it will refer to Seller the performance of extended warranty service (other than manufacturers' warranties) or warranty upgrades sold by CompuCom to any Service Accounts, provided that Seller has the ability to perform such extended warranty service or warranty upgrades except that CompuCom may continue to perform extended warranty services and warranty upgrades in accordance with the provisions of Exhibit C. The parties agree to negotiate in good faith the terms, conditions and amount of payment Seller will receive for performing such warranty service or warranty upgrades.\nARTICLE IV\nAcceptance of Product Orders\nCompuCom agrees that during the Non-Competition Period, it will accept orders for Products submitted to CompuCom by Seller pursuant to Section 3.1(b) under the following conditions: (i) CompuCom has the ability to offer such Product for sale; (ii) the purchase price required by the customer order for the Product is reasonably acceptable to CompuCom; (iii) such Product offered by CompuCom meets the customer's specifications, including, but not limited to, configuration specifications; and (iv) the requirements of the customer with respect to such Product, including but not limited to delivery, payment terms and return privileges are reasonably acceptable to CompuCom. CompuCom agrees to notify Seller of CompuCom's rejection of such orders for Product within a mutually agreed upon time that is reasonable under the time constraints required by the customer order or contract.\nARTICLE V\nNON-DISCLOSURE\n5.1 Seller's Non-Disclosure Obligations. Seller covenants and agrees that, unless otherwise required by law, from and after the Closing:\n(a) Seller shall cooperate with CompuCom at CompuCom's expense to protect and safeguard all of CompuCom's Confidential Information; and\n(b) Seller shall not, directly or indirectly, use, sell, license, publish, disclose, or otherwise transfer or make available to others any of CompuCom's Confidential Information.\nAs used in this Agreement, the terms \"CompuCom's Confidential Information\" means proprietary or confidential information concerning the Business including, without limitation, information regarding prices charged for Products, the assets, liabilities, and financial condition of the Business, names and identities of customers and analyses of the amount and types of Products purchased by each such customer.\nNotwithstanding the foregoing, Seller shall be permitted to disclose historical financial information, including financial information relating to the Business, as may be required by customers, vendors, lenders or other third parties, provided that such third parties shall agree to preserve the confidentiality of such information.\n5.2 CompuCom's Non-Disclosure Obligations. CompuCom covenants and agrees that unless otherwise required by law, from and after the Closing:\n(a) CompuCom shall cooperate with Seller at Seller's expense to protect and safeguard all of Seller's Confidential Information;\n(b) CompuCom shall not, directly or indirectly, use, sell, license, publish, disclose or otherwise transfer or make available to others any of Seller's Confidential Information; and\n(c) CompuCom shall not solicit or knowingly utilize any of Seller's Confidential Information regarding Seller's Services business from any former employee of Seller.\nAs used in this Agreement, the terms \"Seller's Confidential Information\" means proprietary or confidential information and business secrets of Seller pertaining to its Services Business in-cluding, without limitation, information regarding prices charged for Services, copies of existing Services contracts to which Seller is a party (other than any such contracts provided to CompuCom pursuant to the provisions of the Asset Purchase Agreement) and analyses of the amount and types of Services purchased by customers.\nARTICLE VI\nMISCELLANEOUS\n6.1 Notices, Etc. All notices, requests, demands or other communications required by or otherwise with respect to this Agreement shall be in writing and shall be deemed to have been duly given to any party when delivered personally (by courier service or otherwise), when delivered by facsimile and confirmed by return facsimile, or five business days after being mailed by first-class mail, postage prepaid in each case to the applicable addresses set forth below:\nIf to Seller, to:\nENTEX Information Services, Inc.\nSix International Drive\nRye Brook, N.Y. 10573\nFacsimile No.: (914) 935-3720\nAttention: Lynne A. Burgess, Esq.,\nSenior Vice President and General Counsel\nwith a copy (which shall not constitute notice to Seller) to:\nCahill Gordon & Reindel\n80 Pine Street\nNew York, NY 10005\nFacsimile No.: (212) 269-5420\nAttention: Gerald S. Tanenbaum, Esq.\nIf to CompuCom, to:\nCompuCom Systems, Inc.\n7171 Forest Lane\nDallas, Texas 75230\nFacsimile No.: (972) 856-5395\nAttention: Ms. Lazane Smith,\nSenior Vice President\nand Chief Financial Officer\nwith a copy (which shall not constitute notice to CompuCom) to:\nStrasburger & Price, L.L.P.\n901 Main Street, Suite 4300\nDallas, Texas 75202\nFacsimile No.: (214) 651-4330\nAttention: Frederick J. Fowler, Esq.\nor to such other address as such party shall have designated by notice so given to each other party.\n6.2 Amendments, Waivers, Termination Etc. This Agreement may not be amended, changed, supplemented, waived or otherwise modified or terminated except by an instrument in writing signed by each of the parties hereto.\n6.3 Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of and be enforceable by the parties and their respective successors and assigns, including without limitation by merger or otherwise. This Agreement shall not be assignable.\n6.4 Entire Agreement. This Agreement and the Asset Purchase Agreement embody the entire agreement and understanding among the parties relating to the subject matter hereof and supersede all prior agreements and understandings relating to such subject matter. There are no covenants by the parties hereto relating to such subject matter other than those expressly set forth in this Agreement and the Asset Purchase Agreement.\n6.5 Specific Performance. The parties acknowledge that money damages are not an adequate remedy for violations of this Agreement and that any party may, in its sole discretion, apply to a court of competent jurisdiction for specific performance or injunctive or such other relief as such court may deem just and proper in order to enforce this Agreement or prevent any violation hereof and, to the extent permitted by applicable law, each party waives any objection to the imposition of such relief.\n6.6 Remedies Cumulative. All rights, powers and remedies provided for under this Agreement or otherwise available in respect hereof at law or in equity shall be cumulative and not alternative, and the exercise or beginning of the exercise of any thereof by any party shall not preclude the simultaneous or later exercise of any other such right, power or remedy by such party.\n6.7 No Waiver. The failure of any party hereto to exercise any right, power or remedy provided under this Agreement or otherwise available in respect hereof at law or inequity, or to insist upon compliance by any other party hereto with its obligations hereunder, and any custom or practice of the parties at variance with the terms hereof, shall not constitute a waiver by such party of its right to exercise any such or other right, power or remedy or to demand such compliance.\n6.8 Severability. Each party agrees that, should any court or other competent authority hold any provision of this Agreement or part hereof to be null, void or unenforceable, or order any party to take any action inconsistent herewith or not to take an action consistent herewith or required hereby, the validity, legality and enforceability of the remaining provisions and obligations contained or set forth herein shall not in any way be affected or impaired thereby. Upon any such holding that any provision of this Agreement is null, void or unenforceable, the parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated by this Agreement are consummated to the extent possible.\n6.9 GOVERNING LAW. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT AND THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WHOLLY THEREIN, WITHOUT GIVING EFFECT TO ANY PROVISIONS THEREOF RELATING TO CONFLICTS OF LAW.\n6.10 Name, Captions. The name assigned to this Agreement and the section captions used herein are for convenience of reference only and shall not affect the interpretation or construction hereof.\n6.11 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one instrument. Each counterpart may consist of a number of copies each signed by less than all, but together signed by all, the parties hereto.\n6.12 Referral Fees. To the extent that the parties agree that the payment of referral fees will further their mutual business interests or is required in order to compensate either party for material services rendered for the benefit of the other, the parties agree to negotiate the terms and conditions of the payment of such referral fees in good faith.\nIN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date first above written.\nCOMPUCOM SYSTEMS, INC.\nBy: /s/ M. Lazane Smith\n----------------------------------------\nName: Lazane M. Smith\nTitle: Senior Vice President and\nChief Financial Officer\nENTEX INFORMATION SERVICES, INC.\nBy: /s/ Kenneth A. Ghazey\n---------------------------------------\nName: Kenneth A. Ghazey\nTitle: President\n",
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"text": "NAVIDEC, INCORPORATED\nTRADE SECRET/NON-DISCLOSURE AGREEMENT\nIn consideration of the mutual promises made herein, as well as the agreement between Navidec, Incorporated and _______________ , the parties hereby agree as follows:\n____________________ , agrees that, in consideration for being shown or told about certain trade secrets or property belonging to Navidec, Incorporated, ____________________, shall not disclose or cause to be disclosed, disseminated or distributed any information concerning said trade secret or property to any person, entity, business or other individual or company without the prior written permission of Navidec, Incorporated.\nFurther, ___________________ , agrees not to use, either directly or indirectly any of the material, ideas, objects or portions thereof of said trade secret or property disclosed by Navidec, Incorporated in any manner whatsoever without the prior written consent of Navidec, Incorporated.\nAny dispute that arises hereunder shall be resolved by arbitration pursuant to the rules of the American Arbitration Association or the rules of the State of Colorado.\nIn the event that any litigation or arbitration is commenced to enforce any of the provisions of this agreement, the prevailing party of said litigation shall be entitled to all costs thereof including reasonable attorney's fees.\nThis agreement shall be governed by and interpreted in accordance without the laws of the State of Colorado.\nEXECUTED this _____________ day of __________________ 1996, in Englewood, in the State of Colorado.\nNavidec, Incorporated\n(Signature of Agreeing Party)\n",
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"text": "NOVELL MUTUAL NON-DISCLOSURE AGREEMENT\nEffective Date: January 30, 2002\nCompany: Silver Stream Software\nAddress: 2 Federal Street\nCity: Billerica,\nState/Zip: MA 01821\nNovel Contact Person:\nName: Bill Smith\nPhone: (617) 914-8312 Fax: (801) 365-6265\nCompany Contact Person:\nName: CRAIG DYNES\nPhone: (978) 262-3441\nIn order to protect certain Confidential Information which the parties desire to disclose hereunder, Novell, Inc. (\"Novell\") and the \"Company\" identified above agree to the following terms and conditions. The terms Discloser and Recipient as used herein apply to both parties to this Agreement in their respective roles as discloser of Confidential Information and recipient of Confidential Information.\n1. Confidential Information. The \"Confidential Information\" of the respective pathos disclosed under this Agreement is described as follows:\nNovell: Any information and materials disclosed in relation to a potential business transaction between the parties.\nCompany: Any information and materials disclosed in relation to a potential business transaction between the parties.\nConfidential Information may be disclosed in oral/verbal or tangible form. Discloser shall mark all Confidential Information disclosed in tangible form with a restrictive legend. Designated below is each party's representative for coordinating the exchange of Confidential Information.\n2. Obligation of Confidentiality. For a period of three (3) years from the date of disclosure, Recipient agrees to use the same care and discretion to avoid disclosure, publication, or dissemination of Discloser's Confidential Information as it uses with its own similar information that it does not wish to disclose publish, or disseminate, but in no event shall Recipient use less than reasonable care to protect Discloser's Confidential Information. Recipient may disclose Confidential Information to its employees and information which may be retained in non-tangible form by persons who have had access to the Confidential Information, including without limitation general ideas, concepts, know-how provided that prior agreement with such parties sufficient to require that party to treat the Confidential Information in accordance with this Agreement.\n3. Exception. No obligation of confidentiality applies to a Confidential Information that Recipient can show: (i) is or becomes, publicly available without breach of this Agreement but only from such date as it becomes so available; (ii) was rightfully in the possession of Recipient without obligation confidentiality prior to receipt thereof from Discloser (iii) was rightfully disclosed to Recipient by a third party with obligation of confidentiality; (iv) is independently developed Recipient without use of the Confidential Information; or (v) disclosed by Recipient with Discloser's prior written consent.\n4. Recipient may use the Confidential Information solely for evaluation purposes in connection with Recipient business discussions with Discloser. If software is provided Recipient under this Agreement, Recipient agrees not to reverse compile or disassemble the software to discover the human perceivable portions of the code.\n5. Ownership: All Confidential Information remains the property of Disclosure and/or its licensors.\n6. Freedom of Use. Notwithstanding anything to the contrary, Recipient shall be free to use for any purposes the Residuals resulting from access to or work with Discloser's Confidential Information. However, the foregoing does not give Recipient the right to disclose (except as set forth in Section 3) the financial, statistical, or personnel information or the business plans of Discloser, and the foregoing shall not be deemed to grant to either party a license under the other party's copyright or patents. The term \"Residuals\" means information which may be retained in non-tangible form by person who have had access to the Confidential Information, including without limitation general ideas, concepts, know-how or techniques contained therein. Neither party shall have any obligation to limit or restrict the assignment or reassignment of personnel.\nExcept as otherwise provided in this Agreement, the parties acknowledge that the communications hereunder will not serve to impair the right of either party to independently develop, make, use, procure or market products or services now or in the future that may be similar to or competitive with those offered by Discloser, nor require Recipient to disclose any planning or other information to Discloser. This Section shall survive termination of this Agreement.\n7. Termination. This Agreement shall begin on the Effective Date above. Either party may terminate this Agreement upon written notice to the other. Upon termination of this Agreement, or earlier upon Discloser's request, Recipient shall promptly return or destroy all documents and tangible items in its possession which contain any part of the Confidential Information of Discloser. In the event of termination of this Agreement, all obligations of confidentiality shall survive and continue to bind Recipient in accordance with their terms.\n8. Disclaimer. All Confidential Information is provided \"AS IS\", WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED. Discloser does not represent or warrant the accuracy or completeness of the Confidential Information, that it will release any product related to the Confidential Information, or that target dates will be met. The entire risk arising out of the use of the Confidential Information remains with Recipient. Discloser may change or cancel its plans at any time.\n9. Limitation of Liability. IN NO EVENT SHALL DISCLOSER BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, OR OTHER PECUNIARY LOSS) ARISING OUT OF RECIPIENTS USE OF OR INABILITY TO USE THE CONFIDENTIAL INFORMATION.\n10. General.\na. This Agreement shall be governed and construed in accordance with the laws of Utah (without regard to conflicts of laws provisions). In any legal proceeding arising out of this Agreement, the prevailing party shall be entitled to an award of its costs and reasonable attorneys' fees. The parties agree that Utah state and federal courts shall have jurisdiction and venue in any such proceeding.\nb. Export Constraints. Recipient certifies that the Confidential Information will only be used for the purposes expressly stated herein and will not be rented, leased, sold, sublicensed, assigned, or otherwise transferred. Recipient shall adhere to the U.S. Export Administration laws and regulations and shall not export or re-export any technical data or products received from Discloser or the direct product of such technical data to any proscribed country listed in the U.S. Export Administration regulations unless properly authorized by the U.S. government.\nc. Neither party may assign its rights or delegate its duties or obligations under this Agreement without prior written consent, which shall not be unreasonably withheld. The parties acknowledge that they have read this Agreement, understand it, and agree to be bound by the terms and conditions.\nFurther, they agree that the complete and exclusive statement of the agreement between the parties relating to this subject shall consist of this Agreement. Any reproduction of this Agreement by reliable means will be considered an original of this document. This Agreement is executed in English.\nCOMPANY: SILVERSTRAM SOFTWARE, INC.\nSIGNATURE: /s/ Craig Dynes\nNAME: CRAIG DYNES\nTITLE: VP/CFO\nDATE: January 30, 2002\nNOVELL, INC.\nSIGNATURE: /s/ Bill Smith\nNAME: BILL SMITH\nTITLE: VP, MERGERS & ACQUISITIONS\nDATE: January 30, 2002\n",
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"text": "NON-DISCLOSURE REQUIREMENTS\nPursuant to the Agreement to which this Exhibit B is annexed, Company may be disclosing to Independent Contractor certain confidential business plans, development plans, reports, financial information, design documents, specifications, programmer notes, software (its own and/or third party), and/or other information, whether or not so identified (together with any notes, analyses, compilations, studies, or other documents that are based upon, contain, or otherwise reflect such information, the \"Confidential Information,\" which shall include this Agreement). The parties agree as follows with respect to treatment of the Confidential Information:\n1. Independent Contractor shall use the Confidential Information solely for the purpose of performing the Services specified in the applicable SOW and not for any other purpose. Except to the extent permitted by Section 3 below, Independent Contractor will not disclose the Confidential Information, in whole or in part, to any other party. In fulfilling its obligations under this Agreement, Independent Contractor shall use at least the same standard of care it uses to protect its own information of similar kind, but not less than a reasonable standard of care.\n2. The term \"Confidential Information\" shall be deemed not to include information which (i) is or becomes generally available to the public other than (a) as a result of a disclosure by Independent Contractor or any other person who directly or indirectly receives such information from the Independent Contractor or (b) in violation of a confidentiality obligation to the Company known to Independent Contractor or (ii) is or becomes available to Independent Contractor on a non-confidential basis from a source which is entitled to disclose it to Independent Contractor or (iii) is independently developed by Independent Contractor without benefit of the Confidential Information.\n3. In the event that Independent Contractor is required by law or by interrogatories, requests for information or documents, subpoena, Civil Investigative Demand, or similar process to disclose any information supplied to Independent Contractor pursuant to the Agreement, including without limitation the Confidential Information or any other information the disclosure of which is restricted by the terms of this Exhibit B, Independent Contractor will provide the Company with prompt prior written notice of such request or requirement so that the Company may seek an appropriate protective order. If, in the absence of a protective order, Independent Contractor is nonetheless, in the written opinion of its counsel (which shall be forwarded to the Company upon request), compelled to disclose Confidential Information or any other information the disclosure of which is restricted by the terms of this Exhibit B to any tribunal or else stand liable for contempt or suffer other material censure or penalty, Independent Contractor may disclose only that portion of the Confidential Information or other information which it is advised in writing by its counsel (which shall be forwarded to the Company upon request) is so legally compelled and Independent Contractor will exercise its best efforts to obtain assurance that confidential treatment will be accorded such Confidential Information.\n4. All Confidential Information disclosed by the Company to Independent Contractor shall be and shall remain the Company's property. Upon termination of the Agreement, Independent Contractor shall redeliver all tangible Confidential Information furnished by the Company. Except to the extent Independent Contractor is advised in writing by counsel that such action is prohibited by law, Independent Contractor will also destroy all written material, memoranda, notes, and other writings or recordings whatsoever prepared by it based upon, containing, or otherwise reflecting any Confidential Information. Any Confidential Information that is not returned or destroyed, including without limitation any oral Confidential Information, shall remain subject to the confidentiality obligations set forth in this Exhibit B.\n5. Independent Contractor acknowledges and agrees that money damages would not be a sufficient remedy for any breach of this Exhibit B by Independent Contractor and that the Company shall be entitled to specific performance, including without limitation injunctive relief, as a remedy for any such breach. Such remedy shall not be deemed to be the exclusive remedy for breach of this Exhibit B but shall be in addition to all other remedies available at law or equity. Independent Contractor agrees to reimburse the Company for costs and expenses (including without limitation attorneys' fees) incurred by the Company in connection with the enforcement of this Exhibit B.\n6. If any provision of this Exhibit B is not enforceable in whole or in part, the remaining provisions of this Exhibit B shall not be affected thereby. No failure or delay in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege hereunder.\n",
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"text": "NON-CIRCUMVENTION & NON-DISCLOSURE AGREEMENT\nThis is to confirm that each of the named signatories, separately and individually and their associates hereby agree that his/her corporation(s), division(s), employees, agents and/or consultants will not disclose, make contact with or otherwise be involved in any transaction involving that certain proprietary information and/or client(s), merchant(s), customer(s) has been disclosed by the following companies;\nConsumers On-Line Development Group, Inc., C.O.L.D.\nConsumer Net Partners C.N.P.\nConsumer Net Marketplace C.N.M.\nCNM Network C.N.M.N.\nSportCenter Partners S.C.P.\nSportCenter On-Line S.C.O.L.\nhereinafter referred to as the \"THE COMPANIES\", which is hereby made a part hereto this agreement, without the express approval of THE COMPANIES. I/we further agree that in consideration of that certain information of this agreement that I/we fully agree to hold all information confidential and that such information will remain the express property of THE COMPANIES.\nIt is understood that this agreement is a reciprocal one between the signatories concerning the exchange of privileged information and contacts and will be held as confidential unless otherwise released or agreed as to the release only in written documentation by THE COMPANIES.\nIt is also understood that a signatory cannot be considered or adjudged to be in violation of this agreement when the violation is involuntary, due to the situations beyond his/her control: examples being acts of GOD and/or civil disturbances. Essentially, the spirit behind this agreement is one of mutual trust and confidence, and one of reliance on each other to do what is fair and equitable.\nIt is agreed that any disputes that result between the parties whose signatures appear below shall be submitted to arbitration in accordance with The State of California Code of Procedure. The written determination of the arbitration shall be final, binding, and conclusive on the parties.\nIf either party sues the other party to enforce any of the terms of this agreement, the prevailing party shall, in addition to all other damages, be entitled to recover any and all legal fees incurred.\nIN REPRESENTATION OF:\n------------------------- -------------------------\nTHE COMPANIES FREDRICK J. RICE\nIN REPRESENTATION OF:\n------------------------- -------------------------\nDATE\n* All parties hereto of this agreement for any and all international rules and or laws governing Non-Circumvention as to this agreement.\n",
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"text": "MUTUAL NON-DISCLOSURE AGREEMENT & BUSINESS AGREEMENT\n(Contract #: 8C-AN050921-01)\nThis Agreement is made and entered into as of September 21, 2005 between S-CAM Co., LTD duly organized and existing under the law of the Republic of Korea with its place of business at #303, Gyenggi Venture building 1017, Ingae-dong, Paldal-gu, Suwon-si, Gyenggi-do, Korea (hereinafter referred to as \"SCAM\") and ANUBIS Electrinc GmbH, duly organized and existing under the law of the Germany with its principal place of business at Am Langfeld 38, D-66130 Saarbrucken, Germany (hereinafter referred to as \"ANUBIS\") with reference to the following facts:\nWhereas, SCAM (Manufacturer) wishes to appoint ANUBIS the exclusive distributor for the Products in the Territory (as hereinafter defined),\nNow, therefore, in consideration of the premises and mutual covenants contained herein, the parties agree as follows:\nARTICLE 1. DEFINITIONS\nIn this agreement except where the context otherwise requires, the following terms and expressions shall have the following meanings:\n1.1 \"Confidential Information\" means any information, whether written or oral, which ANUBIS learns about SCAM or the Products and which is not generally available to the public or which is labeled by SCAM as confidential.\n1.2 \"Products\" means the item listed in the Schedule and any additional products expressly brought within the scope of this agreement by mutual written consent of the parties.\n1.3 \"Performance Levels\" means the annual minimum sales of the Products for the Sales Territory as set forth in the Schedule or as may be amended by the parties in writing from time to time.\n1.4 \"Sales Price\" means, for Products delivered to the ANUBIS hereunder, an amount in US Dollars, determined from SCAM's current applicable price list for such Product as published by SCAM, in effect September 21, 2005 as mutually agreed by both parties, and which shall only be changed with 30 days prior written notice.\n1.5 \"Sales Territory\" means that geographic area commonly referred to as Whole Europe.\n1.6 \"Schedule\" means that listing attached to this Agreement and made a part hereof which contains certain pertinent provisions of this agreement.\nARTICLE 2. GRANT OF REPRESENTATION\n2.1 EXTENT OF REPRESENTATION RIGHTS. Under the terms and conditions set forth in this agreement, SCAM hereby appoints ANUBIS, and ANUBIS accepts such appointment as the representative to sell the Products to customers in the Sales territory. Unless specifically otherwise authorized in writing by SCAM, ANUBIS shall not directly or indirectly by any means whatsoever contact or solicit any customer or customers outside of Sales Territory or establish any branch or depot for the purpose of selling the Products outside of the Sales Territory.\n2.2 ALL SALES BY ANUBIS COVERED. All Products sold by ANUBIS during the term of this agreement shall be subject to the terms of this agreement.\n2.3 OTHER PRODUCTS. This agreement shall not included, and ANUBIS does not by this agreement obtain, the right to sell any item produced or sold by SCAM except the Product.\n2.4 ANUBIS NOT AGENT. ANUBIS is and shall act as an independent contractor. ANUBIS is not an agent, franchisee, or employee of SCAM and has no power to act for, bind, or otherwise create or assume any obligation on behalf of SCAM for any purpose whatsoever. All financial obligations associated with ANUBIS's business are the sole responsibility of ANUBIS.\nARTICLE 3. TITLE, RISK OF LOSS AND WWARRANTY LIMITATION\n3.1 LIMITED WARRANTY. Any products purchased from SCAM which become defective will be Warranted to ANUBIS for a period of 24 months from the date of shipment to ANUBIS. Such warranted units will be repaired or replaced by SCAM.\n3.2 NOTIFICATION. ANUBIS will notify SCAM in writing of any claim or proceeding involving Products no later than fourteen (14) days after ANUBIS learns of such claim or proceeding. SCAM will likewise notify ANUBIS. SCAM will also report all claimed or suspected product defects to ANUBIS promptly.\nARTICLE 4. TRADEMARKS, TRADE NAMES AND GOODWILL\n4.1 REPUTATION. Each of the parties will act and cooperate in all reasonable ways to protect the reputation and goodwill of the other.\nARTICLE 5. CONFIDENTIAL INFORMATION\n5.1 MAINTENANCE OF CONFIDENTIALITY. ANUBIS acknowledges that the processes used by SCAM to develop and produce the Products involve confidential information and data of substantial value to SCAM which value would be impaired if said information and data were disclosed. ANUBIS agrees (1) to safeguard the Confidential Information disclosed pursuant to this agreement (2) not to use the Confidential Information disclosed pursuant to this agreement for any purpose other than (to the extent necessary) to further the sale of and promotion of Products and (3) to cooperate in any lawsuit involving the Confidential Information. In implementation of the foregoing, ANUBIS shall not disclose any of the Confidential Information to any person except those for whom disclosure is necessary for the effective performance of their responsibilities as employees of agents of ANUBIS, and, in each case, only to the extent required for such effective performance of responsibilities.\n5.2 OBLIGATION AFTER DISCLOSURE OR TERMINATION. The obligations undertaken by ANUBIS pursuant to this Article 5 shall not apply to any Confidential Information which hereafter shall become published or otherwise generally available to the public, except in consequence of a willful or negligent act or omission by ANUBIS orits employees or agents in contravention of the obligations herein above set forth in this Article 5. Except as so limited all of the obligations of this Article 5 survive expiration or termination of this agreement.\n5.3 This Agreement will apply to all confidential and proprietary information disclosed by one party to the other party, including information listed in Exhibit A and other information which the disclosing party identifies in writing as confidential before or within thirty days after disclosure to the receiving party (\"CONFIDENTIAL INFORMATION\")\n5.4 Each party agrees (i) to hold the other party's Confidential Information in strict confidence, (ii) not to disclose such Confidential Information to any third parties, and (iii) not to use any Confidential Information for any purpose except for the Business Purpose. Each party may disclose the other party's Confidential Information to its responsible employees with a bona fide need to know, but only to the extent necessary to carry out the Business Purpose. Each party agrees to instruct all such employees not to disclose such Confidential Information to third parties, including consultants, without the prior written permission of the disclosing party.\n5.5 Confidential Information will not include information which:\n(i) Is now, or hereafter becomes, through no act or failure to act on the part of the receiving party, generally known or available to the public;\n(ii) was acquired by the receiving party before receiving such information from the disclosing party and without restriction as to use or disclosure;\n(iii) is hereafter rightfully furnished to the receiving party by a third party, without restriction as to use or disclosure;\n(iv) is information which the receiving party can document was independently developed by the receiving party;\n(v) is required to be disclosed pursuant to law, provided the receiving party uses reasonable efforts to give the disclosing party reasonable notice of such required disclosure; or\n(vi) is disclosed with the prior written consent of the disclosing party.\nARTICLE 6. REPRESENATIONS AND WARRANTIES; INDEMNIFICATION\n6.1 POWER AND AUTHORITY. SCAM represents and warrants that it has full power and authority to enter into and fulfill the terms of this agreement.\n6.2 PRODUCT QUALITY. SCAM represents and warrants to ANUBIS that the Products will be of good quality in all respects, that the materials comprising the Products shall not be defective, and that the Products sold to ANUBIS hereunder shall operate in conformance with SCAM's specifications with respect to such Products as set forth in any literature or packaging accompanying or related to such Products.\n6.3 NECESSARY RIGHTS. SCAM represents and warrants to ANUBIS that SCAM has, or has applied for all necessary rights to sell and all necessary copoyrights, trademarks, service makes and patents for the Products. SCAM represents and warrants, to the best of its knowledge and belief, that neither the Products nor the use thereof infringes upon or violates any right of privacy of, or constitutes a libel, slander or any unfair competition against, or infringes upon or violates any trademark, trade name, service mark, copyright, trade secret, invention, patent or any other right of any other person.\nARTICLE 7. OTHER COVENANTS OF DISTRIBUTOR\nIn addition to other duties set forth herein, during the term of this agreement ANUBIS also covenants and agree:\n7.1 PROMOTION. To diligently use it best efforts to introduce, promote the sale of, and obtain orders for, the Products in the Sales Territory.\n7.2 MAINTENANCE AND PROVISION OF INFORMATION. To maintain and to provide SCAM with forecasts in such form as is reasonably requested by SCAM, relating to expected orders for Products from the Sales Territory.\nARTICLE 8. TERM AND TERMINATION\n8.1 TERM. The term of this agreement shall initially be twelve months commencing as of the date and year first above written unless earlier terminated in accordance with this Article 8. After such twelve month period, the agreement shall continue on a year to year basis unless either party shall give written notice to the other within sixty (60) days from the end of such period or unless sooner terminated in accordance with the provisions of this paragraph 8.\n8.2 EVENTS OF DEFAULT. The following shall constitute and Event of Default:\n(a) The breach by either party of any of the terms of this agreement or of any other ancillary agreement between the parties hereto including, but not limited to, timely payment of any sums due hereunder or thereunder, and such breach continuing for a period of thirty (30) days after notice from the non-breaching party.\n(b) Any representation or warranty under this agreement or any other agreement being materially false.\n(c) The receipt by either party of an opinion of counsel that such termination is necessary to avoid exposure to civil or criminal liability under any federal, state or foreign laws.\n(d) The failure of ANUBIS to meet under 70% of the Performance Levels in the Sales Territory by mutual agreement; or\n(e) A substantial change in the ownership or control of ANUBIS.\n8.3 EFFECT OF TERMINATION. Should an Event of Default occur the non-defaulting party might, so long as the Event of Default continues in effect, terminate this agreement and pursue any right which may be available by law. In the event of any termination arising as a result of a breach by ANUBIS:\n(a) SCAM shall not be relieved of any obligation to make further shipments of the Product hereunder and may not (even in the event that the contract was terminated as a result of a breach by ANUBIS) cancel all ANUBIS's unshipped orders for the Product. SCAM shall have an obligation to ANUBIS in connection with of any unshipped orders pursuant to this paragraph.\n(b) ANUBIS shall immediately discontinue representation of the Product and the use of Confidential Information the Trademarks and any signs, stationary, advertising, or anything else that might make it appear that ANUBIS is still authorized to deal in the Product.\n(c) ANUBIS shall immediately return all Confidential Information to SCAM along with all literature, manual, price lists, and similar material related to the Product.\nARTICLE 9. GENERAL PROVISIONS\n9.1 COMPLETE AGREEMENT; MODIFICATIONS. This agreement and any documents referred to herein or executed contemporaneously herewith constitute the entire agreement among the parties with respect to the subject matter hereof and may not be amended, altered or modified except by a writing signed by the parties. This agreement supersedes all agreements, representations, warranties, statements, promises and understandings, whether oral or written, with respect to the subject matter hereof.\n9.2 ADDITIONAL DOCUMENTS. Each party hereto agrees to execute any and all further documents and writings and to perform such other actions which may be or become necessary or expedient to effectuate and carry out this agreement.\n9.3 NOTICES. Unless otherwise specifically permitted by this agreement, all notices under this agreement shall be in writing and shall be delivered by personal service, telegram, facsimile or certified or registered mail (if such service is available, or, if not, by first class mail), postage prepaid, to such address as may be designated from time to time by the relevant party, and which shall initially be as set forth in the Schedule. Any notice sent by mail shall be deemed to have been given fourteen (14) days after the date on which it is mailed.\n9.4 ASSIGNEMNT.\nThe parties may not assign or transfer this agreement or any of its rights, duties or obligations hereunder and this agreement may not be involuntarily assigned by operation of law without the prior written consent of each party.\n9.5 EXCUSED NONPERFORMANCE. Neither SCAM nor ANUBIS shall be deemed to be in default or for in breach of any provision of this agreement as a result of any delay, failure in performances, or interruption of service resulting directly or indirectly from acts of God, acts of civil or military authority, civil disobedience, war, strikes or other labor disputes, fires, transportation contingencies, laws, regulations, acts or orders of any government agency or any government official, or any other occurrence beyond the reasonable control of either party. It is expressly understood, however, that the obligations of either party to perform under the terms of this agreement shall continue after the passing of, or normalization of, any of the eventualities described above, provided that the occurrence of any such eventuality shall in no event extend the term of this agreement. In witness whereof, the parties hereof have caused this agreement to be executed in duplicate for each party retaining one.\n\\s\\ xxxxx\n",
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"text": "JOINT RESEARCH AGREEMENT ASSIGNMENT AND NON-DISCLOSURE AGREEMENT\nJOINT RESEARCH AGREEMENT\nThis Joint Research Agreement (\"JRA\") is effective as of May 25, 2005 by and between Nanolution, LLC (\"Nanolution\") and NaturalNano Inc. (\"NaturalNano\") (also referred to herein as \"the Parties\").\nThe parties have agreed to conduct and support joint research in the field of drug delivery utilizing naturally occurring halloysite nanotechnologies (\"the Project\"). This JRA covers the exchange of ideas and information as well as the performance of experimental, developmental, and/or research work (\"the Work\") performed under the Project, and the ownership of confidential or proprietary information, including any intellectual property.\nThe term of the Project shall be from May 25, 2005 and shall continue at least until the desired drug delivery technology has been proven commercially viable, or until mutually terminated by both parties.\nThe Work performed as a result of the Project shall be subject to this JRA regardless of where the Work is performed or by whom. In addition, all intellectual property, including but not limited to inventions, conceptions, ideas, know-how, discoveries, processes, machines, manufactures, compositions of matter, formulations, processes, biological material, biological methods, or any improvements thereof, whether or not patentable or suitable for other form of exclusive right or legal protection, conceived, made or derived during the course of Work within the Project under this JRA shall be owned by and assigned to the Parties as follows:\no All medical uses and inventions that arise out of this JRA shall be owned by Nanolution.\no All purification processes for raw halloysite and all non-medical applications that arise out of this JRA shall be owned by NaturalNano.\nFor: NANOLUTION, LLC For: NATURALNANO INC.\nBy: /s/ John Lanzafame By: /s/ Michael Riedlinger\n----------------------------- -----------------------\nName: John Lanzafame Name: Michael Riedlinger\nTitle: President Title: President\nNON-DISCLOSURE AGREEMENT\nThe Parties acknowledge that each owns certain CONFIDENTIAL INFORMATION, as defined herein, which might relate to the inventions, conceptions, ideas, know-how, discoveries, processes, machines, manufactures, compositions of matter, formulations, processes, biological material, biological methods, or any improvements thereof, whether or not patentable or suitable for other form of exclusive right or legal protection, conceived, made or derived during the course of Work within the Project under this JRA; and\nThe Parties are willing to disclose to each other such necessary CONFIDENTIAL INFORMATION provided each Party preserves the confidential nature of the other Party's INFORMATION and uses it solely for purposes of this Agreement.\nThe Parties agree as follows:\n1. \"CONFIDENTIAL INFORMATION\" as used in this Agreement means all technical or business information disclosed by one of the Parties to another pursuant to the JRA that is identified at the time of disclosure or within thirty (30) days thereafter as being confidential and proprietary. No information will be regarded as CONFIDENTIAL INFORMATION if the Party to which it is disclosed can show by competent proof that such information\n(a) was at the time of disclosure, or subsequently became, through no fault of the receiving Party, known to the general public through publication or otherwise; or\n(b) was, subsequent to disclosure to a Party, lawfully and independently received by that Party from a third party who had the right to disclose it without restriction.\nSpecific aspects or details of CONFIDENTIAL INFORMATION shall not be deemed to be within the public domain or in the possession of a Party merely because the CONFIDENTIAL INFORMATION is embraced by general disclosures in the public domain or in the possession of a Party. In addition, any combination of CONFIDENTIAL INFORMATION shall not be considered in the public domain or in the possession of a Party merely because individual elements thereof are in the public domain or in the possession of that Party unless the combination and its principles are in the public domain or in the possession of that Party.\n2. Any Party, at its discretion, may disclose to another Party any CONFIDENTIAL INFORMATION that the disclosing Party, in its reasonable judgment, believes is sufficient to enable the receiving Party to arrive at conceptions, ideas, innovations, discoveries, inventions, compositions, biological material, biological methods, whether or not patentable or susceptible to any other form of legal protection, during performance Under the IRA. Any Party may also cause such disclosures to be made to the other Party on behalf of the disclosing Party by third parties who are Under obligations of confidentiality to the disclosing Party; such disclosures from third parties shall be deemed to be disclosures by the disclosing Party.\n3. In consideration of each and every disclosure of CONFIDENTIAL INFORMATION, the Parties agree to:\n(a) treat as confidential and to preserve the confidentiality of all CONFIDENTIAL INFORMATION;\n(b) use any and all CONFIDENTIAL INFORMATION solely in connection with the performance of the IRA and for no other purpose; (c) make no disclosures of any CONFIDENTIAL INFORMATION to any party other than officers and employees of a Party to this IRA;\n(d) limit access to CONFIDENTIAL INFORMATION to those officers and employees having a reasonable need for such INFORMATION and being boUnd by a written obligation to maintain the confidentiality of such INFORMATION; and\n(e) maintain in confidence any information regarding the nature or scope of any transaction between the Parties, except to the extent such information must be disclosed pursuant to law, and then only after notifying the other Party of such requirement.\nAny obligation imposed by this paragraph 3 may be waived in writing by a Party as to particular CONFIDENTIAL INFORMATION and to a particular use or disclosure. Any such waiver will have a one-time effect and will not apply to any subsequent situation regardless of its similarity.\n4. All CONFIDENTIAL INFORMATION will remain the property of the disclosing Party and, upon request of the disclosing Party, the receiving Party shall promptly return to the disclosing Party all CONFIDENTIAL INFORMATION, or any part or reproduction thereof.\n5. The obligations of each and every Party, and each employee and officer of each Party Under this Agreement will expire five (5) years from the termination of the JRA.\n6. This Agreement is subject to the laws (excluding conflicts rules) of the State of New York.\n7. The terms and provisions of this Agreement will inure to the benefit of the Parties, their respective successors and assigns and will be binding on said successors and assigns. This paragraph notwithstanding, neither Party may disclose any CONFIDENTIAL INFORMATION to any successor or assign absent prior written consent of the disclosing Party.\n8. The Parties understand and agree that no right or license under any patent, patent application, or know-how is granted to any other Party or any other person by this Agreement or by any disclosure of any CONFIDENTIAL INFORMATION.\nIN WITNESS WHEREOF, the parties have executed this Agreement on the date first written above.\nFor: NANOLUTION, LLC For: NATURALNANO INC.\nBy: /s/ John Lanzafame By: /s/ Michael Riedlinger\n----------------------------- -----------------------\nName: John Lanzafame Name: Michael Riedlinger\nTitle: President Title: President\n",
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"text": "AMENDED AND RESTATED\nMUTUAL CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis Amended and Restated Mutual Confidentiality and Non-Disclosure Agreement (\"Agreement\") is entered into as of March 1, 1998 between TWENTIETH CENTRUTY FOX HOME ENTERTAINMENT, INC. (\"Company\") (collectively, \"Parties\"). This Agreement amends and restates in its entirety the Mutual Confidentiality and Non-Disclosure Agreement previously entered into by the Parties. The Parties will provide each other with Confidential Information as defined below in connection with one or more possible or actual transactions between the Parties (each a \"Transaction\"). As a condition of one of the Parties or its agents or its representatives furnishing Confidential Information (\"Furnishing Party\") to the other of the Parties or its agents or its representatives receiving Confidential Information (\"Receiving Party\"), the Receiving Party shall treat the Confidential Information confidentially as set forth below.\n1. \"Confidential Information\" shall mean all non-public proprietary information provided by the Furnishing Party to the Receiving Party, whether or not marked or otherwise specifically designated as confidential. The term \"Confidential Information\" does not include information which (i) becomes generally available to the public other than as a result of a disclosure by the Receiving Party, (ii) was available to the Receiving Party on a non-confidential basis prior the Furnishing Party's disclosure to the Receiving Party, or (iii) becomes available to the Receiving Party on a non-confidential basis from a source other than the Furnishing Party, provided that such source is, to the best of the Receiving Party's knowledge, not bound by a confidentiality agreement with the Furnishing Party or otherwise prohibited from transmitting the information to the Furnishing Party by a contractual, legal or fiduciary obligation.\n2. It is understood that the Receiving Party may disclose any of the Confidential Information to the Receiving Party's (and its subsidiaries' and affiliates') directors, officers, employees, agents, representatives (including attorneys and financial advisors), and prospective bank or institutional lenders, (collectively, \"Representatives\") who require such material in connection with a possible or actual Transaction (provided that such Representatives shall be informed by the Receiving Party of the confidential nature of the Confidential Information and shall agree to act in accordance with the terms hereof). The Receiving Party agrees that the Confidential Information of the Furnishing Party will be kept confidential by the Receiving Party and its Representatives and, except with the specific prior written consent of the Furnishing Party, or as expressly otherwise permitted by the terms hereof, will not be disclosed by the Receiving Party or its Representatives. The Parties further agree that the Receiving Party and its Representatives will not use any of the Confidential Information for any reason or purpose other than in connection with a possible or actual Transaction.\n3. Company acknowledges and agrees that certain Confidential Information is extremely competitively sensitive for Fox (\"Highly Confidential Information\") and shall therefore be subject to restrictions on disclosure additional to those applicable to other Confidential Information. Highly Confidential Information shall include the identity of Fox's actual and potential customers and vendors; Fox's release schedules and sales trends; the prices and pricing policies of Fox, its vendors and customers; all customer shipment, point-of-sale and returns information; Fox's strategic planning information regarding system implementation (including geographic implementation) and process improvement; all distribution software used by and software development performed for Fox; Fox's replenishment schedules and processes, inventory management schedules and processes; and any other competitively sensitive Confidential Information designated by Fox from time to time as \"Highly Confidential Information\". Company shall limit disclosure of Highly Confidential Information to Company employees. Company shall be responsible for any breach of this Agreement by any such employee. Company shall not disclose Highly Confidential Information to any of its consultants, or other vendors, or agents.\n4. In the event that the Receiving Party or any of its Representatives are requested or required by applicable Federal or State law of the United States to disclose any of the Confidential Information, it is agreed that the Receiving Party or its Representative, as the case may be, will provide the Furnishing Party with prompt notice of such request(s) so that it may seek an appropriate protective order or other appropriate remedy and/or waive compliance by the Receiving Party or its Representative with the provisions of the Agreement. In the event that such protective order or other remedy is not obtained, or that the Furnishing Party grants a waiver hereunder, the Receiving Party or such Representative of the Receiving Party may furnish that portion (and only that portion) of the Confidential Information which it is legally compelled to disclose and will exercise its best efforts to obtain reliable assurance that confidential treatment will be accorded any Confidential Information so furnished.\n5. Without the prior written consent of Company, (i) neither Fox nor those of its Representatives who are aware of the Confidential Information of Company will initiate or cause to be initiated any communications with any employee of Company concerning the Confidential Information, and (ii) none of Fox's directors, officers or employees who are aware of the Confidential Information will, for the two-year period from the date of the Agreement, solicit or cause to be solicited for employment any employee of Company who is aware of the Confidential Information of Company.\n6. Without the prior written consent of Fox, (i) neither Company nor those of its Representatives who are aware of the Confidential Information of Fox will initiate or cause to be initiated any communications with any employee of Fox concerning the Confidential Information, and (ii) none of Company's directors, officers or employees who are aware of the Confidential Information will, for the two-year period from the date of the Agreement, solicit or cause to be solicited for employment any employee of Fox who is aware of the Confidential Information of Fox.\n7. Upon providing the Receiving Party with a specific list of the Confidential Information to be returned to the Furnishing Party, the Receiving Party will promptly deliver to the Furnishing Party or its Representatives, the Confidential Information listed, together with all copies thereof, in the possession of the Receiving Party or its Representatives, which was actually furnished by the Furnishing Party to the Receiving Party.\n8. Although the Receiving Party understands that the Furnishing Party has endeavored to include in the Confidential Information information known to it which it believes to be relevant to a possible or actual Transaction, the Receiving Party further understands that neither the Furnishing Party nor its Representatives make any representation or warranty as to the accuracy or completeness of the Confidential Information. The Receiving Party agrees that neither the Furnishing Party nor its Representatives shall have any liability to Receiving Party or its Representatives resulting from the use of the Confidential Information by the Receiving Party or its Representatives.\n9. The provisions set forth in this Agreement may be modified or waived only by a separate writing signed by the Parties expressly so modifying or waiving such provisions.\n10. The Receiving Party hereby agrees to indemnify and hold harmless the Furnishing Party from any damage, loss, cost or liability (including legal fees and the cost of enforcing this indemnity) arising out of, or resulting from, any unauthorized use or disclosure by the Receiving Party or its Representatives of the Confidential Information. The Receiving Party also acknowledges that money damages would be both incalculable and an insufficient remedy for any breach of this Agreement by it or its Representatives and that any such breach would cause the Furnishing Party irreparable harm. Accordingly, the Receiving Party also\nagrees that in the event of any breach of this Agreement, the Furnishing Party, in addition to any other remedies at law or in equity it may have, shall be entitled to equitable relief, including injunctive relief and specific performance.\n11. It is understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\n12. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity of enforceability of any other provisions of this Agreement, which shall remain in full force and effect. The parties hereby acknowledge and agree that this Agreement and the rights and benefits thereof shall be assigned by the party to any purchaser of a controlling share of equity in that party.\n13. This Agreement shall be governed by and construed in accordance with the laws of the State of California.\n14. The Parties hereby represent and warrant that the undersigned officer is authorized to execute this Agreement on its behalf.\nBy signing in the spaces provided below, Fox and Company have agreed to all of the terms and conditions of this Agreement.\nTWENTIETH CENTURY FOX HOME ENTERTAINMENT, INC.\nBy: /s/ Laura Cook\nIts: Senior Vice President\nLegal and Business Affairs\nTwentieth Century Fox Home Entertainment, Inc.\nARTISAN HOME ENTERTAINMENT, INC.\nBy: /s/ Mark Curcio\nIts: CEO\n",
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"text": "MUTUAL NON-DISCLOSURE AGREEMENT\nThis Agreement made this 22 of March 2005, by and between Symmetrex Inc. (\"Symmetrex\") with an address of 850 Trafalgar Court, Suite 110, Maitland FL, 32751 and MORGAN BEAUMONT INC. with an address at 6015 31st Street East, Bradenton, FL 34203 (\"Other Party\").\nWHEREAS, SYMMETREX and Other Party (jointly the \"parties\") wish to disclose to each other certain information solely for the purpose of evaluating a proposed business arrangement between the parties (the \"Evaluation\"); and\nWHEREAS, in consideration of and as an inducement for and condition of such disclosure, each party hereby requires the other party to agree to the terms and conditions of this agreement.\nNOW, THEREFORE, for adequate consideration acknowledged to be received by each party, each party, intending to be legally bound, hereby agrees as follows:\n1. For all purposes of this agreement, the following definitions shall apply:\nA. \"Confidential Information\" of a party shall mean any trade secrets, know-how, inventions, products, designs, methods, techniques, systems, processes, software programs, works of authorship, business plans, customer lists, projects, plans, pricing, proposals and any other information which a party discloses to the Recipient Party that: (i) if disclosed in writing is clearly marked as confidential or carries a similar legend; or (ii) if disclosed verbally or in tangible form is identified as confidential at the time of disclosure, then summarized in a writing so marked by the Disclosing Party and delivered to the Recipient Party with fifteen (15) days. Confidential Information shall also include the terms of this agreement, the fact that the information is being made available to the parties hereunder and the fact that the parties are contemplating a possible business arrangement.\nB. \"Disclosing Party\" shall mean, with respect to any information disclosed by one party to the other, the party which, directly or through one of its agents, discloses such information.\nC. \"Recipient Party\" shall mean, with respect to any information disclosed by one party to the other, the party which receives such information.\n2. Each Recipient Party with respect to Confidential Information received by it hereunder shall:\nA. Hold such Confidential Information in strict confidence and protect it in accordance with a standard of care which shall be no less than the care it uses to protect its own information of like importance and in no event less than reasonable care.\nB. Not use such Confidential Information for any purpose except as is necessary for the Evaluation referenced above or as otherwise authorized in writing by the Disclosing Party of such information in advance.\nC. Not disclose Confidential Information to any person other than to one of the Recipient Party's directors, officers, employees, representatives, consultants or agents (collectively called \"Representatives\") who need to know such information for the purposes of the Evaluation, provided that each Representative shall be informed, directed and obligated by the Recipient Party to treat such information in accordance with the obligations of this agreement and the Recipient Party shall be liable for breach of any such obligation by any of its Representatives.\nD. Not copy or otherwise duplicate such Confidential Information, or knowingly allow anyone else to copy or otherwise duplicate any such Confidential Information without the Disclosing Party's prior written approval.\n3. Each Recipient Party shall notify the Disclosing Party in the event that any Confidential Information of the Disclosing Party is required to be disclosed by the Recipient Party by judicial, administrative or other govern mental order. Such notification shall be made reasonably promptly so that the Disclosing Party, at its expense, may seek a protective order or other appropriate remedy. Provided such notification is given, the Recipient Party is hereby authorized to comply with such judicial, administrative or governmental order. The Recipient Party shall provide the Disclosing Party reasonable cooperation (at the expense of the Disclosing Party) in connection with any protective order or other remedy sought by the Disclosing Party in connection with such order.\n4. The obligations imposed on a Recipient Party with respect to Confidential Information shall not apply to Confidential Information disclosed to it hereunder which (a) the Recipient Party can demonstrate is, at the time of disclosure, already known to the Recipient Party, (b) is or becomes generally known to the public or is otherwise deemed to be in the public domain through no wrongful act of the Recipient Party, (c) is received from a third party who has the legal right to so furnish such Confidential Information, or (d) the Recipient Party can demonstrate is independently developed by or for the Recipient Party without use of Confidential Information.\n5. Upon the written request of the Disclosing Party with respect to any Confidential Information disclosed by it hereunder, the Recipient Party shall return to the Disclosing Party any or all of such information and all copies, contracts or other reproductions in whole or in part thereof or, with the written permission of such Disclosing Party, effect the destruction of all of same and certify such destruction in writing to the Disclosing Party.\n6. Each party acknowledges that the other party has no legal obligation pursuant to this agreement to disclose information to it hereunder but is doing so as an accommodation to the Recipient Party in reliance upon the terms of this agreement and that all information received by the Recipient Party hereunder cannot be relied upon as a representation or warranty of the Disclosing Party and, accordingly, no Disclosing Party shall be liable for any reliance upon any information disclosed by it hereunder, unless otherwise agreed to in writing by the Disclosing Party.\n7. Nothing contained in this agreement shall be construed as granting to either party any right, title or interest in any information disclosed hereunder to it, except for the limited right to use and disclosure as expressly permitted hereunder.\n8. Each Recipient Party shall on any copies it may make of any information received hereunder maintain any and all copyright, patent or trademark notices which may appear on such information when so received.\n9. Each party represents that the disclosure by it of information hereunder does not violate the rights of any other entity.\n10. If either Party breaches its promises made in this Agreement, the non-breaching Party will have available to it all remedies available under law.\n11. This agreement shall become effective on the date it is fully executed and delivered by both parties and both this agreement and the duties of the parties hereunder shall continue for a period of two years after the last disclosure of information made hereunder.\n12. This agreement shall be binding upon and inure to the benefit of each party and its successors. No representations have been made to induce either party to enter this agreement other than those expressly stated herein. This agreement supersedes all prior or contemporaneous agreements or expressions of intent or understanding and is the entire agreement between the parties with respect to its subject matter. Neither party shall be charged with any waiver of any provision of this agreement unless such waiver is evidenced by a writing signed by an authorized officer of such party and any such waiver shall be limited to the terms of such writing. This agreement shall not be changed or terminated, except by a writing signed by an authorized officer of Symmetrex and an authorized officer of Other Party. This agreement shall be governed by the laws of the State of Florida, without regard to the conflicts of law principles of that state.\nIN WITNESS WHEREOF, the parties have executed this agreement as of the date stated above.\nMORGAN BEAUMONT, INC. SYMMETREX INC\nNAME: Erik Jensen NAME: Joseph W. Adams\nTITLE: President TITLE: President\nSIGNATURE: /s/ Erik Jensen SIGNATURE: /s/ Joseph W. Adams\nDATE: 3/22/2005 DATE: 3/22/05\n",
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"text": "NONDISCLOSURE AGREEMENT\nAnnex D\nMICROSOFT CORPORATION NON-DISCLOSURE AGREEMENT\n(STANDARD RECIPROCAL)\nThis Non-Disclosure Agreement (the \"Agreement\") is made and entered into as of the later of the two signature dates below by and between MICROSOFT CORPORATION, a Washington corporation (\"Microsoft\"), and STARBAND COMMUNICATIONS INC./DELAWARE corporation (\"Company\").\nIN CONSIDERATION OF THE MUTUAL PROMISES AND COVENANTS CONTAINED IN THIS AGREEMENT AND THE MUTUAL DISCLOSURE OF CONFIDENTIAL INFORMATION, THE PARTIES HERETO AGREE AS FOLLOWS:\n1. Definition of Confidential Information and Exclusions.\n(a) \"Confidential Information\" means nonpublic information that a party to this Agreement (\"Disclosing Party\") designates as being confidential to the party that receives such information (\"Receiving Party\") or which, under the circumstances surrounding disclosure ought to be treated as confidential by the Receiving Party. \"Confidential Information\" includes, without limitation, information in tangible or intangible form relating to and/or including released or unreleased Disclosing Party software or hardware products, the marketing or promotion of any Disclosing Party product, Disclosing Party's business policies or practices, and information received from others that Disclosing Party is obligated to treat as confidential. Except as otherwise indicated in this Agreement, the term \"Disclosing Party\" also includes all Affiliates of the Disclosing Party and, except as otherwise indicated, the term \"Receiving Party\" also includes all Affiliates of the Receiving Party. An \"Affiliate\" means any person, partnership, joint venture, corporation or other form of enterprise, domestic or foreign, including but not limited to subsidiaries, that directly or indirectly, control, are controlled by, or are under common control with a party.\n(b) Confidential Information shall not include any information, however designated, that: (i) is or subsequently becomes publicly available without Receiving Party's breach of any obligation owed Disclosing Party; (ii) became known to Receiving Party prior to Disclosing Party's disclosure of such information to Receiving Party pursuant to the terms of this Agreement; (iii) became known to Receiving Party from a source other than Disclosing Party other than by the breach of an obligation of confidentiality owed to Disclosing Party; (iv) is independently developed by Receiving Party; or (v) constitutes Feedback (as defined in Section 5 of this Agreement).\n2. Obligations Regarding Confidential Information\n(a) Receiving Party shall:\n(i) Refrain from disclosing any Confidential Information of the Disclosing Party to third parties for two (2) years following the date that Disclosing Party first discloses such Confidential Information to Receiving Party, except as expressly provided in Sections 2(b) and 2(c) of this Agreement;\n(ii) Take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information, but no less than reasonable care, to keep confidential the Confidential Information of the Disclosing Party;\n(iii) Refrain from disclosing, reproducing, summarizing and/or distributing Confidential Information of the Disclosing Party except in pursuance of Receiving Party's business relationship with Disclosing Party, and only as otherwise provided hereunder; and\n(iv) Refrain from reverse engineering, decompiling or disassembling any software code and/or pre-release hardware devices disclosed by Disclosing Party to Receiving Party under the terms of this Agreement, except as expressly permitted by applicable law.\n(b) Receiving Party may disclose Confidential Information of Disclosing Party in accordance with a judicial or other governmental order, provided that Receiving Party either (i) gives the undersigned Disclosing Party reasonable notice prior to such disclosure to allow Disclosing Party a reasonable opportunity to seek a protective order or equivalent, or (ii) obtains written assurance from the applicable judicial or governmental entity that it will afford the Confidential Information the highest level of protection afforded under applicable law or regulation. Notwithstanding the foregoing, the Receiving Party shall not disclose any computer source code that contains Confidential Information of the Disclosing Party in accordance with a judicial or other governmental order unless it complies with the requirement set forth in sub-section (i) of this Section 2(b).\n(c) The undersigned Receiving Party may disclose Confidential Information only to Receiving Party's employees and consultants on a need-to-know basis. The undersigned Receiving Party will have executed or shall execute appropriate written agreements with third parties sufficient to enable Receiving Party to enforce all the provisions of this Agreement.\n(d) Receiving Party shall notify the undersigned Disclosing Party immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this Agreement by Receiving Party and its employees and consultants, and will cooperate with Disclosing Party in every reasonable way to help Disclosing Party regain possession of the Confidential Information and prevent its further unauthorized use or disclosure.\n(e) Receiving Party shall, at Disclosing Party's request, return all originals, copies, reproductions and summaries of Confidential Information and all other tangible materials and devices provided to the Receiving Party as Confidential Information, or at Disclosing Party's option, certify destruction of the same.\n3. Remedies\nThe parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information and that Disclosing Party shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.\n4. Miscellaneous\n(a) All Confidential Information is and shall remain the property of Disclosing Party. By disclosing Confidential information to Receiving Party, Disclosing Party does not grant any express or implied right to Receiving Party to or under any patents, copyrights, trademarks, or trade secret information except as otherwise provided herein. Disclosing Party reserves without prejudice the ability to protect its rights under any such patents, copyrights, trademarks, or trade secrets except as otherwise provided herein.\n(b) In the event that the Disclosing Party provides any computer software and/or hardware to the Receiving Party as Confidential Information under the terms of this Agreement, such computer software and/or hardware may only be used by the Receiving Party for evaluation and providing Feedback (as defined in Section 5 of this Agreement) to the Disclosing Party. Unless otherwise agreed by the Disclosing Party and the Receiving Party, all such computer software and/or hardware is provided \"AS IS\" without warranty of any kind, and Receiving Party agrees that neither Disclosing Party nor its suppliers shall be liable for any damages whatsoever arising from or relating to Receiving Party's use or inability to use such software and/or hardware.\n(c) The parties agree to comply with all applicable international and national laws that apply to (i) any Confidential Information, or (ii) any product (or any part thereof), process or service that is the direct product of the Confidential Information, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. For additional information on exporting Microsoft products, see http://www.microsoft.com/exporting/.\n(d) The terms of confidentiality under this Agreement shall not be construed to limit either the Disclosing Party or the Receiving Party's right to independently develop or acquire products without use of the other party's Confidential Information. Further, the Receiving Party shall be free to use for any purpose the residuals resulting from access to or work with the Confidential Information of the Disclosing Party, provided that the Receiving Party shall not disclose the Confidential Information except as expressly permitted pursuant to the terms of this Agreement. The term \"residuals\" means information in intangible form, which is retained in memory by persons who have had access to the Confidential Information, including ideas, concepts, know-how or techniques contained therein. The Receiving Party shall not have any obligation to limit or restrict the assignment of such persons or to pay royalties for any work resulting from the use of residuals. However, this sub-paragraph shall not be deemed to grant to the Receiving Party a license under the Disclosing Party's copyrights or patents.\n(e) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. It shall not be modified except by a written agreement dated subsequent to the date of this Agreement and signed by both parties. None of the provisions of this Agreement shall be deemed to have been waived by any act or acquiescence on the part of Disclosing Party, the Receiving Party, their agents, or employees, but only by an instrument in writing signed by an authorized employee of Disclosing Party and the Receiving Party. No waiver of any provision of this Agreement shall constitute a waiver of any other provision(s) or of the same provision on another occasion.\n(f) If either Disclosing Party or the Receiving Party employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs. This Agreement shall be construed and controlled by the laws of the State of Washington, and the parties further consent to exclusive jurisdiction and venue in the federal courts sitting in King County, Washington, unless no federal subject matter jurisdiction exists, in which case the parties consent to the exclusive jurisdiction and venue in the Superior of King County, Washington. Company waives all defenses of lack of personal jurisdiction and forum non conveniens. Process may be served on either party in the manner authorized by applicable law or court rule.\n(g) This Agreement shall be binding upon and inure to the benefit of each party's respective successors and lawful assigns; provided, however, that neither party may assign this Agreement (whether by operation of law, sale of securities or assets, merger or otherwise), in whole or in part, without the prior written approval of the other party. Any attempted assignment in violation of this Section shall be void.\n(h) If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect.\n(i) Either party may terminate this Agreement with or without cause upon ninety (90) days prior written notice to the other party. All sections of this Agreement relating to the rights and obligations of the parties concerning Confidential Information disclosed during the term of the Agreement shall survive any such termination.\n5. Suggestions and Feedback\nThe Receiving Party may from time to time provide suggestions, comments or other feedback (\"Feedback\") to the Disclosing Party with respect to Confidential Information provided originally by the Disclosing Party. Both parties agree that all Feedback is and shall be given entirely voluntarily. Feedback, even if designated as confidential by the party offering the Feedback, shall not, absent a separate written agreement, create any confidentiality obligation for the receiver of the Feedback. Furthermore, except as otherwise provided herein or in a separate subsequent written agreement between the parties, the receiver of the Feedback shall be free to use, disclose, reproduce, license or otherwise distribute, and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement.\n\n \nCOMPANY: STARBAND COMMUNICATIONS INC. MICROSOFT CORPORATION\nAddress: 1760 Old Newton Rd. One Microsoft Way\nMcLean, VA 22102 Redmond, WA 98052-6399\nBy: /s/ DAVID C. TRACHTENBERG By: /s/ JAMES L. KRAMER Name: DAVID C. TRACHTENBERG Name: James L. Kramer\nTitle: PRESIDENT & CHIEF MARKETING OFFICER Title: Director\nDate: October 20, 2000 Date: November 11, 2000\n
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"text": "Cyberlux Corporation and International Consolidated Technologies\nMUTUAL NON DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement (the \"Agreement\") is made and entered into this 30th day of November, 2001 by and between Cyberlux Corporation (\"Cyberlux\") with it principal place of business located at 50 Orange Road, PO Box 2010, Pinehurst, NC 28370 and International Consolidated Technologies (\"ICT\"), with its principal place of business located at 400 West Delaware Casey, IL 62420.\nWHEREAS, Cyberlux and ICT intend to enter into discussions concerning a business relationship whereby ICT will provide Cyberlux with certain services;\nNOW, THEREFORE, the parties hereto agree as follows:\n1. PROPRIETARY INFORMATION. For purposes of this Agreement, \"Proprietary Information\" shall mean written, documentary or oral information of any kind disclosed by Cyberlux or ICT to the other and designated as proprietary information, including, but not limited to, (a) information of a business, planning, marketing or technical nature, (b) models, tools, hardware and software, and (c) any documents, reports, memoranda, notes, files or analyses prepared by or on behalf of the receiving party that contain, summarize or are based upon any Proprietary Information, provided that \"Proprietary Information\" shall not include information which:\n(i) is publicly available prior to the date of this Agreement;\n(ii) becomes publicly available after the date of this Agreement trough no wrongful act of the receiving party;\n(iii) is furnished to others by the disclosing party without similar restrictions on their right to use or disclose;\n(iv) is known by the receiving party without any proprietary restrictions at the time of receipt of such information from the disclosing party or becomes rightfully known to the receiving party without proprietary restrictions from a source other than the disclosing party;\n(v) is independently developed by the receiving party by persons who did not have access, directly or indirectly, to the proprietary Information; or\n(vi) is obligated to be produced under order of a court of competent jurisdiction or a valid administrative or congressional subpoena, provided that the receiving party promptly notifies the disclosing party of such event so that the disclosing party may seek an appropriate protective order or waive compliance by the receiving party with the terns of this Agreement.\n2. CONFIDENTIALITY\na. The receiving party shall protect all of the disclosing party's Proprietary Information as confidential information and, except with the prior written consent of the disclosing party or as otherwise specifically provided herein, shall. not disclose, copy or distribute such Proprietary Information to any other individual, corporation or entity for a period of three (3) years from the date of disclosure.\nb. Except in connection with any joint project between Cyberlux and ICT, the receiving party shall not make any use of the disclosing party's Proprietary Information for is own benefit or for the benefit of any other individual, corporation or entity.\nc. The receiving party shall not disclose all or any part of the disclosing party's Proprietary Information to any affiliates, agents, officers, directors, employees or representatives (collectively, \"Representatives\") of the receiving party except on a need-to-know basis. The receiving party agrees to inform any of its Representatives who receive the disclosing parts Proprietary Information of the confidential and proprietary nature thereof and of such Representative's obligations with respect to the maintenance of such Proprietary Information in conformance with the terms of this Agreement.\nd. Each party shall maintain the other party's Proprietary Information with at least the same degree of care each party uses to maintain its own proprietary information. Each party represents that such degree of care provides adequate protection for its own proprietary information.\ne. The receiving party shall immediately advise the disclosing party in writing of any misappropriation or misuse by any person of the disclosing party's Proprietary Information of which the receiving party is aware.\nf. Any documents or materials that are furnished by or on behalf of the disclosing party, and all other Proprietary Information in whatever form, including documents, reports, memoranda, notes, files or analyses prepared by or on behalf of the receiving party, including all copies of such materials, shall be promptly returned by the receiving party to the disclosing party upon written request by the disclosing party for any reason.\n3. NO LICENSES OR WARRANTIES. No license to the receiving party under any trade secrets or patents or otherwise with respect to any of the Proprietary Information is granted or implied by conveying proprietary Information or other information to such party, and none of the information transmitted or exchanged shall constitute any representation, warranty, assurance, guaranty or inducement with respect to the infringement of patents or other rights of others.\n4. REMEDY FOR BREACH. Each receiving party acknowledges that the Proprietary Information of the disclosing party is central to the disclosing party's business and was developed by or for the disclosing party at a significant cost. Each receiving party further acknowledges that damages would not be an adequate remedy for any breach of this Agreement by the receiving party or its Representatives and that the disclosing party may obtain injunctive or other equitable relief to remedy or prevent any breach or threatened breach of this Agreement by the receiving party or any of its Representatives. Such remedy shall not be deemed to be the exclusive remedy for .any such breach of this Agreement, but shall be in addition to all other remedies available at law or in equity to the disclosing party.\n5. MISCELLANEOUS.\na. This Agreement contains the entire understanding between Cyberlux and ICT and supersedes all prior written and oral understandings relating to the subject hereof. This Agreement may not be modified except by a writing signed by both parties.\nb. The construction, interpretation and performance of this Agreement, as well as the legal relations of the parties arising hereunder, will be governed by and construed in accordance with the laws of the State of North Carolina.\ne. It is understood and agreed that no failure or delay by either Cyberlux or ICT in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. No waiver of any terms or conditions of this Agreement shall be deemed to be a waiver of any subsequent breach of any term or condition. All waivers must be in writing and signed by the party sought to be bound\nd. If any part of this Agreement shall be held unenforceable, the remainder of this Agreement will nevertheless remain in full force and effect.\nIN WITNESS WHEREOF, each of the parties of this Agreement has caused this Agreement to be signed in its name and on its behalf by its representative thereunto duly authorized as of the day and year first above written.\nCyberlux Corporation\nBy: /s/ Donald F. Evans\nDonald F. Evans\nPresident\nInternational Consolidated Technologies\nBy: /s/ Jim Goble 12/12/01\nJim Goble\nEngineering and Tooling Manager\n",
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"text": "CONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this \"Agreement\"), is made this 6th day of March, 2000, by and between DUNC, LLC, a Delaware limited liability company (the \"COMPANY\") and NORTHWEST AIRLINES, INC., a Minnesota corporation (\"INVESTOR\"). Capitalized terms used and not defined herein shall have the meanings set forth in the LLC Agreement (as defined below).\nRECITALS\nWHEREAS, the Investor has entered into a Subscription Agreement of even date herewith pursuant to which it will its purchase membership interests in the Company and become a member of the Company; and\nWHEREAS, the Investor previously entered into that certain Limited Liability Company Agreement of the Company, dated as of February 9, 2000 (the LLC Agreement\"), pursuant to which the Company was formed with Investor as one of the Initial Members:\nWHEREAS, in connection with the conduct of the Company's operations, each of the Company and Investor (each a \"Party\" and, collectively, the \"Parties\") may disclose certain confidential and proprietary information regarding the conduct of each Party's respective business activities; and\nWHEREAS, the Parties desire to provide appropriate protection for the exchange of such confidential and proprietary information and to establish the terms under which such information shall be disclosed.\nNOW THEREFORE, in consideration of the premises, covenants and agreements herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound hereby agree, as follows:\n1. CONFIDENTIAL INFORMATION. Confidential Information shall mean:\n(a) any data or information that is supplied by either Party (which will be deemed to include, in the case of the Company, any data or information with respect to any Member of the Company supplied by the Company or such Member to the Investor in connection with the operation of the Company or the performance of any obligation, or the exercise of any rights, under the LLC Agreement or any Related Agreement), including by its Affiliates (the \"DISCLOSING PARTY\"), or the agents, employees, authorized representatives or nominees thereof (such persons being referred to collectively as the REPRESENTATIVES\") to the other Party including its Affiliates (the \"RECEIVING PARTY\") (or the Representatives of the Receiving Party) including, but not limited to, information regarding: products and services planning, marketing strategies, strategic and business plans, finance, operations, customer relationships, customer profiles, sales estimates and internal performance results relating to the past, present or future business activities of the Disclosing Party and its owners, customers, clients and suppliers;\n(b) any scientific or technical information, design, process, procedure, formula, or improvement that is supplied by the Disclosing Party or its Representatives to the Receiving Party or its Representatives;\n(c) all confidential or proprietary concepts, documentation. reports, data, specifications, computer software, source code, object code, flow charts, databases, inventions, information, know-how and trade secrets, whether or not patentable or subject to copyright, supplied by the Disclosing Party or its Representatives to the Receiving Party or its Representatives; and\n(d) without limitation, all documents, inventions, drawings, diagrams, specifications, bills of material, equipment, prototypes and models, and any other tangible manifestation of the foregoing supplied by the Disclosing Party or us Representatives to the Receiving Party or its Representatives.\n2. CONFIDENTIALITY OBLIGATIONS. Except as expressly authorized by prior written consent of the Disclosing Party, the Receiving Party shall:\n(a) limit access to any Confidential Information received by it solely to its Representatives who have a need to know such in connection with any current or future negotiations or arrangements between the Receiving Party and the Disclosing Party, including, without limitation in connection with the membership of the Investor in the Company and any commercial arrangements between the Investor and the Company and only for use in connection therewith. The Investor may provide access to and may disclose Confidential Information of the Company to any other Member of the Company in connection with such Member's participation as a Member of the Company. The Disclosing Party hereby consents to, and represents and warrants that it has obtained from its applicable Affiliates their consent to the use by the Receiving Party of any information received by the Receiving Party in connection with the above-referenced negotiations or arrangements;\n(b) advise its Representatives having access to the Confidential Information of the proprietary nature thereof and of the obligation set forth in this Agreement;\n(c) take appropriate action by instruction or agreement with its Representatives having access to the Confidential Information to fulfill its obligations under this Agreement;\n(d) safeguard all Confidential Information received by it using a reasonable degree of care and discretion to avoid disclosure, publication or dissemination of such Confidential Information, but not less than that degree of care and discretion used by the Receiving Party in safeguarding its own similar information or material that it does not wish to disclose, publish or disseminate; and\n(e) use all Confidential Information received by it for the purposes described in subsection (a) of this Section 2 and for no other purpose whatsoever.\n3. DESTRUCTION OF CONFIDENTIAL INFORMATION UPON REQUEST. Upon the request of the Disclosing Party, the Receiving Party shall (i) destroy all memoranda, notes, records, drawings, manuals, other documents or materials and any other manifestation (and all copies thereof) pertaining to or arising from the Confidential Information in any form or medium (whether written, typewritten, recorded, electronic or otherwise) and (ii) at the option of the Receiving Party, either return to the Disclosing Party or destroy the Confidential Information supplied by the Disclosing Party or its Representatives. Upon the return and/or destruction of such materials, the Receiving Party agrees to certify, in writing, that all of the foregoing materials have been destroyed or surrendered to the Disclosing Party.\n4. EXCEPTIONS TO CONFIDENTIALITY. The obligation of confidentiality and restriction on use in Section 2 hereof shall not apply to any Confidential Information that the Receiving Party proves:\n(a) was in the public domain prior to the date of this Agreement or subsequently came into the public domain other than as a result of disclosure by the Receiving Party;\n(b) was received by the Receiving Party from a third party free of any obligation of confidence of the Receiving Party to such third party; provided that such third party is not known by the Receiving Party, after reasonable diligence, to be bound by a confidentiality agreement with or other obligation of secrecy to the Disclosing Party;\n(c) was already in the possession of or known to the Receiving Party, without obligation of confidentiality, prior to receipt thereof, directly or indirectly, from the Disclosing Party;\n(d) is requested to be disclosed in a judicial or administrative law, regulation or proceeding after all reasonable legal remedies for maintaining such information in confidence have been exhausted, including, but not limited to, giving the Disclosing Party reasonable advance notice of the potential for such disclosure and allowing the Disclosing Party to seek a protective order concerning such disclosure; or\n(e) is subsequently and independently developed by employees, consultants or agents of the Receiving Party without reference to the Confidential Information of the Disclosing Party disclosed under this Agreement.\n5. RIGHTS IN CONFIDENTIAL INFORMATION. Except as specifically provided for herein, this Agreement does not confer any right, license, interest or title in, to or under the Disclosing Party's Confidential Information to the Receiving Party. No license is hereby granted to the Receiving Party, by estoppel or otherwise, under any patent, trademark, copyright, trade secret or other proprietary rights of the Disclosing Party. Title to the Disclosing Party's Confidential Information shall remain solely in the Disclosing Party.\n6. TERMINATION. This Agreement may not be terminated except following Withdrawal by the Investor pursuant to the terms of the LLC Agreement. The obligations of confidentiality and limitations on use under this Agreement shall survive termination of this Agreement for a period of five (5) years from the execution of this Agreement; PROVIDED,\nHOWEVER, notwithstanding the term of this Agreement, any provisions hereof that by their nature extend beyond such term or termination shall remain in effect beyond such term or termination under this Section 6 until fulfilled and shall apply to either Party's successors and assigns.\n7. EQUITABLE RELIEF. Each Party agrees that money damages would not be a sufficient remedy for breach of the confidentiality and other obligations of this Agreement. Accordingly, in addition to all other remedies that each Party may have, each Party shall be entitled to specific performance and injunctive relief or other equitable relief as determined by a court of competent jurisdiction as a remedy for any breach of this Agreement. Each Party agrees to waive any requirement for a bond in connection with any such injunctive or other equitable relief.\n8. GOVERNING LAW. This Agreement and performance thereunder shall be governed by the laws of the State of Delaware, excluding its conflicts of laws rules.\n9. THIRD PARTY BENEFICIARIES. This Agreement may be enforced by any Member of the Company with respect to any information or data regarding such Member disclosed by the Investor m violation of this Agreement. Except as set forth in the preceding sentence, nothing in this Agreement shall provide any benefit to any third party or entitle any third party to any claim, cause of action, remedy or right of any kind, it being the intent of the Parties that this Agreement shall not be construed as a third party beneficiary contract.\nIN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.\nCOMPANY:\nDUNC, LLC\nBy: /s/ Michael S. Praven\nName: Michael S. Praven\nTitle: Vice President\nINVESTOR:\nNORTHWEST AIRLINES, INC.\nBy: /s/ A.M. Lenza\nName: A.M. Lenza\nTitle: Vice-President\n",
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"text": "EXHIBIT (d)(5)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement (\u201cAgreement\u201d) is dated as of 31st January, 2014 (the \u201cEffective Date\u201d) and is entered into between InSite Vision Incorporation, a Delaware corporation (the \u201cCompany\u201d), and SUN PHARMACEUTICAL INDUSTRIES LTD., a company registered and existing in India under the Companies Act, 1956, with its registered office at SPARC, Tandalja, Baroda \u2212 390 020, Gujarat, India and its corporate office at Acme Plaza, Andheri \u2212 Kuria Road, Andheri \u2212 East, Mumbai \u2212 400 059, Maharashtra, India (the \u201cPotential Relationship Party\u201d). Each of the Company and the Potential Relationship Party are sometimes referred to herein as a \u201cParty\u201d and together as the \u201cParties.\u201d In consideration of the mutual covenants contained herein, the Potential Relationship Party and the Company, intending to be legally bound hereby, agree to the following:\nSection 1. Definitions. For purposes of this Agreement:\n(a) \u201cAffiliate\u201d of a specified person means a person who, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such specified person.\n(b) \u201cConfidential Information\u201d means all information relating, directly or indirectly, to the Disclosing Party or the business, products, markets, research and development, condition (financial or other), operations, assets, liabilities, results of operations, cash flows or prospects of the Disclosing Party, the business of any customer or partner of the Disclosing Party, any information about or concerning any third party (which information was provided to the Disclosing Party subject to an applicable confidentiality obligation to such third party) and any product offerings, content partners, product pricing, product availability, technical drawings, algorithms, processes, ideas, techniques, formulas, data, schematics, trade secrets, know-how, improvements, inventions (whether patentable or not), marketing plans, forecasts and strategies of the Disclosing Party (in each case, whether prepared by the Disclosing Party, its Representatives or otherwise) which is delivered, disclosed or furnished by or on behalf of the Disclosing Party to the Receiving Party or to its Representatives, before, on or after the date of this Agreement, regardless of the manner in which it is delivered, disclosed or furnished, and will also be deemed to include all notes, analyses, compilations, studies, forecasts, interpretations or other documents prepared by the Receiving Party or its Representatives that contain, reflect or are based upon, in whole or in part, the information delivered, disclosed or furnished to the Receiving Party or its Representatives pursuant to this Agreement. Notwithstanding any other provision of this Agreement, the term Confidential Information will not include information which:\n(i) is or becomes generally available to the public, through no fault of the Receiving Party or its Representatives; provided, however, that specific aspects or details of Confidential Information will not be deemed to be within the public domain, or in the possession of the Receiving Party in accordance with Section (b)(ii), merely because the Confidential Information is embraced by more general information in the public domain or in the possession of the Receiving Party. Further, any combination of Confidential Information will not be considered in the public domain or in the possession of the Receiving Party in accordance with Section (b)(ii) merely because individual elements of such Confidential Information are in the public domain or in the possession of the Receiving Party unless the combination and its principles are in the public domain or in the possession of the Receiving Party;\n(ii) can be demonstrated by documentation or competent proof to have been in the possession of the Receiving Party before its being furnished to the Receiving Party by or on behalf of the Disclosing Party, provided that the Receiving Party does not know, or have a reasonable basis for concluding, that the source of such information was bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Disclosing Party or any other party with respect to such information;\n(iii) becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party or any of its Representatives, provided that the Receiving Party does not know or have reason to believe that the source is bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Disclosing Party with respect to such information; or\n(iv) the Disclosing Party agrees in writing is not Confidential Information.\n(c) \u201cDiscussion Information\u201d has the meaning provided in Section 3(c).\n(d) \u201cDisclosing Party\u201d means the Party disclosing Confidential Information or on whose behalf Confidential Information is disclosed, in any particular circumstance.\n(e) \u201cExchange Act\u201d means the Securities Exchange Act of 1934 as amended.\n(f) \u201cReceiving Party\u201d means the Party receiving Confidential Information or on whose behalf Confidential Information is received, in any particular circumstance.\n(g) \u201cperson\u201d will be broadly interpreted to include individuals, any corporation, partnership, group, individual or other entity and the media.\n(h) \u201cPossible Transaction\u201d means a possible negotiated business combination between the Parties.\n(i) \u201cRepresentatives\u201d means (i) with respect to the Potential Relationship Party, the Potential Relationship Party\u2019s officers, managers, directors, general partners, employees, outside counsel, accountants, consultants, financial advisors, and potential sources of equity or debt financing (and their respective counsel), and (ii) with respect to the Company, will include its officers, directors, employees, agents, partners and advisors and those of its subsidiaries, Affiliates and/or divisions (including attorneys, accountants, consultants and financial advisors).\n(j) \u201cStandstill Period\u201d means the six months period commencing on the date of this Agreement.\nSection 2. Disclosure of Confidential Information. In connection with the consideration of a Possible Transaction, the Company and the Potential Relationship Party may deliver or make available (or prior to the date hereof may have delivered or made available) to the other and its Representatives certain information concerning its business, financial condition, operations, assets and liabilities. As a condition to such information being furnished to the Receiving Party and the Receiving Party\u2019s Representatives, the Receiving Party agrees that the Receiving Party will, and will cause the Receiving Party\u2019s Representatives to, treat the Confidential Information in accordance with the provisions of this Agreement and take or abstain from taking certain other actions as set forth herein. Notwithstanding any other provision of this Agreement, neither Party is required to disclose any particular information to the other and any disclosure is entirely voluntary and is not intended to be construed as: (a) granting rights by license or otherwise under any trademark, patent, copyright or other intellectual property right; (b) creating a commitment as to any product, including the development or functionality of any product; (c) soliciting any business or incurring any obligation not specified herein; or\n(d) prohibiting either Party from associating themselves with competitors of the other Party for purposes substantially similar to those involved herein.\nSection 3. Use and Non-Disclosure of Confidential Information and Discussion Information.\n(a) The Receiving Party hereby agrees that the Receiving Party and the Receiving Party\u2019s Representatives will use Confidential Information of the Disclosing Party solely for the purpose of evaluating and negotiating a Possible Transaction with the Disclosing Party and for no other purpose, and that such Confidential Information will not be used in any way detrimental to the Disclosing Party. The Receiving Party further agrees that it will and will cause its Representatives to take those steps the Receiving Party takes to protect its own similar proprietary and confidential information (which will not be less than a reasonable standard of care) to keep the Confidential Information of the Disclosing Party confidential; provided, however, that (i) the Receiving Party may make any disclosure of the Confidential Information to which the Disclosing Party gives its prior written consent and (ii) any of the Confidential Information may be disclosed to the Receiving Party\u2019s Representatives who need to know such information for the purpose of evaluating a Possible Transaction, who are provided with a copy of this Agreement and who agree to be bound by the terms this Agreement. The Parties will maintain a list of those Representatives to whom Confidential Information has been disclosed (which list will be presented to the Party upon the other Party\u2019s request). In any event, the Receiving Party agrees to undertake reasonable precautions to safeguard and protect the confidentiality of the Confidential Information, to accept responsibility for any breach of this Agreement by the Receiving Party or any of the Receiving Party\u2019s Representatives, and, at the Receiving Party\u2019s sole expense, to take all reasonable measures (including court proceedings) to restrain the Receiving Party and the Receiving Party\u2019s Representatives from prohibited or unauthorized disclosure or uses of the Confidential Information.\n(b) Notwithstanding any other provision of this Agreement:\n(i) the Receiving Party or its Representatives may disclose Confidential Information of the Disclosing Party if required in order to establish its rights under this Agreement, but only to the extent such disclosure is necessary and provided that the Receiving Party seeks confidential treatment of the Confidential Information to be disclosed;\n(ii) this Agreement will not prohibit or restrict either Party\u2019s right to develop, make, use, market, license or distribute products or services similar to or competitive with those of the other Party disclosed in the Confidential Information as long as such Party does not thereby breach this Agreement. Each Party acknowledges that the other may already possess or have developed products or services similar to or competitive with those of the other Party disclosed in the Confidential Information; and\n(iii) either Party will be free to use for any purpose the residuals resulting from access to or work with Confidential Information disclosed hereunder. The term \u201cresiduals\u201d means information in non-tangible form which may be retained in the unaided memory by persons who have had access to the Confidential Information so long as such persons have not studied the information for the purpose of replicating the same from memory. Neither Party shall have any obligation to limit or restrict the assignment of such persons or to pay royalties for any work resulting from the use of residuals.\n(c) Each Party agrees that, without the prior written consent of the other Party, neither it nor its Representatives will disclose to any other person the fact that the other Party or its Representative have received Confidential Information or that Confidential Information has been made available to the other Party or its Representatives, that investigations, discussions or negotiations are taking place concerning a Possible Transaction or any of the terms, conditions or other facts with respect to any Possible Transaction, including the status this Agreement and the identity of the parties hereto (collectively, the \u201cDiscussion Information\u201d), provided that the Receiving Party may make such disclosure if required by law or the applicable rules of any securities exchange or interdealer quotation system. The Potential Relationship Party further agrees that, without the prior written consent of the Company (which shall not be unreasonably withheld or denied), the Potential Relationship Party and the Potential Relationship Party\u2019s Representatives will not, directly or indirectly, consult or share Confidential Information or Discussion Information with, or enter into any agreement, arrangement or understanding, or any discussions which might lead to any such agreement, arrangement or understanding, with any co-investor, source of equity financing or other person (other than the Company) regarding a Possible Transaction, including discussions or other communications with any prospective bidder for the Company with respect to (i) whether or not the Receiving Party or such other prospective bidder will make a bid or offer for the Disclosing Party or (ii) the price that the Receiving Party or such other bidder may bid or offer for the Disclosing Party.\n(d) To the extent that any Confidential Information may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the Parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and will not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential Information provided by a Party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege will remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any Party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.\nSection 4. Required Actions if Disclosure is Legally Sought or Compelled. In the event that the Receiving Party or any of the Receiving Party\u2019s Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Confidential Information or Discussion Information, the Receiving Party will provide the Disclosing Party with prompt written notice of any such request or requirement so that the Disclosing Party may in its sole discretion seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Disclosing Party, the Receiving Party or any of the Receiving Party\u2019s Representatives are nonetheless, in the written opinion of outside legal counsel, legally compelled to disclose Confidential Information or Discussion Information to any tribunal, the Receiving Party or the Receiving Party\u2019s Representatives may, without liability hereunder, disclose to such tribunal only that portion of the Confidential Information or Discussion Information which such counsel advises the Receiving Party is legally required to be disclosed, provided that the Receiving Party will use the Receiving Party\u2019s reasonable best efforts to preserve the confidentiality of the Confidential Information and the Discussion Information, including by cooperating with the Disclosing Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information and the Discussion Information by such tribunal; and provided further that the Receiving Party will promptly notify the Disclosing Party of (i) the Receiving Party\u2019s determination to make such disclosure and (ii) the nature, scope and contents of such disclosure.\nSection 5. Return and Destruction of Confidential Information. In the event that the Receiving Party decides not to proceed with a Possible Transaction, the Receiving Party will promptly inform the Disclosing Party of that decision. In that case, or at any time upon the request of the Disclosing Party in its sole discretion and for any reason, the Receiving Party will as directed by the Disclosing Party promptly deliver, at the Receiving Party\u2019s expense, to the Disclosing Party or destroy all Confidential Information furnished to the Receiving Party or the Receiving Party\u2019s Representatives by or on behalf of the Disclosing Party pursuant hereto. In the event of such a decision or request, all other Confidential Information prepared by the Receiving Party or on the Receiving Party\u2019s behalf will be returned or destroyed and, upon the Disclosing Party\u2019s request, the Receiving Party will provide the Disclosing Party with prompt written confirmation of the Receiving Party\u2019s compliance with this paragraph; provided, however, that\n(a) if a legal proceeding has been instituted to seek disclosure of the Confidential Information, such material will not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered;\n(b) the Receiving Party will not, in connection with the foregoing obligations, be required to identify or delete Confidential Information held electronically in archive or back-up systems in accordance with general systems archiving or backup policies and further provided that the Receiving Party will not, and the Receiving Party will use reasonable measures to cause its employees not to, access such Confidential Information so archived or backed-up;\n(c) the Receiving Party will not be obligated to return or destroy Confidential Information of the Disclosing Party to the extent the Receiving Party is required to retain a copy pursuant to applicable law; and\n(d) one copy of all Confidential Information may be kept by the Receiving Party\u2019s outside counsel, if any, and such Confidential Information shall be fully protected by attorney-client privilege.\nNotwithstanding the return, destruction or continued possession pursuant to the terms of this Section 5 of the Confidential Information, the Receiving Party and the Receiving Party\u2019s Representatives will continue to be bound by the Receiving Party\u2019s obligations of confidentiality and other obligations and agreements hereunder.\nSection 6. No Agreement. Each Patty understands and agrees that no contract or agreement providing for any Possible Transaction will be deemed to exist between the Parties unless and until a final definitive agreement has been executed and delivered, and each Party hereby waives, in advance, any claims (including breach of contract) in connection with any Possible Transaction unless and until the Parties will have entered into a final definitive agreement. The Parties also agree that unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Party will be under any legal obligation of any kind whatsoever with respect to such a Possible Transaction by virtue of this Agreement, except for the matters specifically agreed to herein. The Company further reserves the right, in its sole discretion, with due notice to reject any and all proposals made by the Potential Relationship Party or any of its Representatives with regard to a Possible Transaction to determine not to engage in discussions or negotiations and to terminate discussions and negotiations with the Potential Relationship Party at any time, and to conduct, directly or through any of its Representatives, any process for any transaction involving the Company or any of its subsidiaries, if and as they in their sole discretion determine (including negotiating with any other interested parties and entering into a definitive agreement without prior notice to the Potential Relationship Party or any other person). Section 7. Representations and Warranties. Each Party represents and warrants to the other Party that it has the right to enter into this Agreement and that this Agreement is a valid and binding obligation of such Party relating to the matters herein. Each Party further represents and warrants that the terms of this Agreement are not inconsistent with other contractual obligations, express or implied, which such Party may have or any law applicable to such Party or its business. The Receiving Party understands, acknowledges and agrees that neither the Disclosing Party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information by virtue of this Agreement. The Receiving Party agrees that neither the Disclosing Party nor any of its Representatives will have any liability to the Receiving Party or to any of the Receiving Party\u2019s Representatives relating to or resulting from the use of the Confidential Information or any errors therein or omissions therefrom.\nSection 8. Material Non-Public Information. The Receiving Party acknowledges and agrees that the Receiving Party is aware (and that the Receiving Party\u2019s Representatives are aware or, upon receipt of any Confidential Information or Discussion Information, will be advised by the Receiving Party) that (a) the Confidential Information being furnished to the Receiving Party or the Receiving Party\u2019s Representatives contains material, non-public information regarding the Disclosing Party and (b) the United States and other non-U.S. securities laws prohibit any persons who have material, nonpublic information concerning the matters which are the subject of this Agreement, including the Discussion Information, from purchasing or selling securities of a company which may be a party to a transaction of the type contemplated by this Agreement or from communicating such information to any person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities in reliance upon such information.\nSection 9. No Solicitation. In consideration of the Confidential Information being furnished hereunder, each Party agrees that, for a period of six months from the date of this Agreement, such Party will not, directly or indirectly, solicit for employment with such Party or any of its Affiliates, any of the officers or employees of the other Party or its Affiliates (a) with whom such Party has had contact during the evaluation of a Possible Transaction or (b) who were identified by name and function to such Party by an officer or employee of the other Party with whom such Party or its Representatives had contact during the evaluation of a Possible Transaction. For the avoidance of doubt, employees whose names are provided by the other Party in response to a request made by such Party or its Representatives during the evaluation of a Possible Transaction are covered by this non-solicitation obligation. Notwithstanding the foregoing, nothing herein shall restrict or preclude either Party from (i) making generalized searches for employees (by use of advertisements in the media, the engagement of search firms or otherwise), (ii) continuing its ordinary course hiring practices that are not targeted specifically at employees of the other Party, (iii) hiring an employee of the other Party who first initiates an employment discussion with such Party, in each case, so long as such Party has not violated the restrictions on solicitation contained in this Agreement or (iv) if the employee is no more on the rolls of the Party.\nSection 10. Standstill.\n(a) As of the date of this Agreement, neither the Potential Relationship Party nor any of the Potential Relationship Party\u2019s Representatives acting on the Potential Relationship Party\u2019s behalf, or any person with whom any of the foregoing may be deemed to be acting in concert with respect to the Company or its securities, owns any securities of the Company to the best of their knowledge, information and belief and shall not own more than 5% during the tenure of this Agreement. The Potential Relationship Party agrees that during the Standstill Period, unless specifically invited in writing by the Company, neither the Potential Relationship Party nor any of the Potential Relationship Party\u2019s Affiliates, subsidiaries or Representatives acting on the Potential Relationship Party\u2019s behalf or on behalf of other persons acting in concert with the Potential Relationship Party will in any manner, directly or indirectly:\n(i) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in: (i) any acquisition of any securities (or beneficial ownership thereof), or rights or options to acquire any securities (or beneficial ownership thereof), or any assets, indebtedness or businesses of the Company or any of its subsidiaries or Affiliates; (ii) any tender or exchange offer, merger or other business combination involving the Company, any of the subsidiaries or Affiliates or assets of the Company or its subsidiaries or its Affiliates constituting a significant portion of the consolidated assets of the Company and its subsidiaries or Affiliates, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries or Affiliates,\n(ii) make, or in any way participate in, directly or indirectly, (i) any \u201csolicitation\u201d of \u201cproxies\u201d (as such terms are used in the rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person or entity with respect to the voting of any voting securities of the Company or (ii) any demand for a copy of the Company\u2019s stock ledger, list of stockholders or any other books and records of the Company;\n(iii) form, join or in any way participate in a \u201cgroup\u201d (as defined under the Exchange Act) with respect to the Company or otherwise act in concert with any person in respect of any such securities;\n(iv) otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board of Directors or policies of the Company or to obtain representation on the Board of Directors of the Company;\n(v) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in (i) above; or\n(vi) enter into any discussions or arrangements with any third party with respect to any of the foregoing.\n(b) Notwithstanding the foregoing, the provisions of ARTICLE I Section 10(a), the Potential Relationship Party or any of the Potential Relationship Party\u2019s Affiliates, subsidiaries or Representatives acting on the Potential Relationship Party\u2019s behalf may at any time and from time to time submit to the Board of Directors of the Company one or more offers, proposals or indications of interest related to a Possible Transaction that would otherwise be prohibited by ARTICLE I Section 10(a), provided that each such submission is made on a confidential basis, does not state an intention to make a public announcement related to the text or contents of such submission or discussion and is made in a manner that could not reasonably be expected to cause the Company to need to make public disclosure thereof.\n(c) The Potential Relationship Party also agrees during the Standstill Period not to request that the Company or any of its Representatives, directly or indirectly, amend or waive any provision of this ARTICLE I Section 10.\n(d) The Potential Relationship Party agrees that, if at any time during the Standstill Period, the Potential Relationship Party or any of the Potential Relationship Party\u2019s Affiliates or subsidiaries or Representatives acting on the Potential Relationship Party\u2019s behalf are approached by any third party concerning the Potential Relationship Party\u2019s or their participation in a transaction involving any assets, indebtedness or business of, or securities issued by, the Company or any of its subsidiaries, the Potential Relationship Party will promptly inform the Company of the nature of such transaction and the parties involved.\n(e) The banks approached by the Potential Relationship Party for the purpose of financing would be subject to confidentiality obligations as set forth in said Section 3, without, however, requiring such recipient bank, or its representatives, to make the Standstill undertakings stipulated in the current Section 10 of the Agreement.\n(f) The non-solicitation and stand-still obligations under Sections 9 and 10 will cease to apply on completion of the transaction.\nSection 11. Miscellaneous.\n(a) Notices. All notices, requests, claims, demands and other communications hereunder will be given in writing and will be deemed given and effective on the earliest of (i) the date of transmission, if such notice or communication is delivered via facsimile or e-mail of a .pdf, .tif, .gif, .jpeg or similar electronic attachment at the facsimile number or email address, respectively, specified for the relevant receiving Party before 5:30 p.m. (in the time zone of the receiving Party) on a business day (in the time zone of the receiving Party), (ii) the next business day after the date of transmission, if such notice or communication is delivered via facsimile or e-mail of a .pdf, .tif, .gif, .jpeg or similar electronic attachment at the facsimile number or email address, respectively, specified for the relevant receiving Party on a day that is not a business day or later than 5:30 p.m. on any business day (in each case, in the time zone of the receiving Party), (iii) one business day following the date of deposit with a nationally recognized overnight courier service for delivery on the following business day, or (iv) upon actual receipt by the party to whom such notice is required to be given, but if delivery is not accepted, then on the date delivery is refused. The addresses, facsimile numbers and email addresses for such notices and communications are those set forth below, or such other address, facsimile number or email address as may be designated in writing after the Effective Date, in the same manner, by any such person:\nif to the Potential Relationship Party:\nSUN PHARMACEUTICAL INDUSTRIES LTD\nAcme Plaza, Andheri \u2212 Kurla Road,\nAndheri \u2212 East, Mumbai \u2212 400 059,\nMaharashtra, India\nAttention: Mr. Ashok I. Bhuta\nFacsimile: +91 22 6184 8686\nEmail: Ashok.Bhuta@sunpharma.com\nwith a copy (which will not constitute notice) to:\nS. H. Bathiya & Associates\n2, Tardeo AC Market,\n4th Floor, Tardeo Road,\nMumbai \u2212 400 034\nAttention: Shailesh H. Bathiya\nFacsimile: +91 22 4355 8080\nEmail: shb@shbathiya.com\nif to the Company:\nInSite Vision Incorporation\n965 Atlantic Ave.\nAlameda, CA 94501\nAttention: Timothy Ruane\nFacsimile: (510) 865-5700\nEmail: TRuane@insite.com\nwith a copy (which will not constitute notice) to:\nJones Day\n1755 Embarcadero Road\nPalo Alto, CA 94303\nAttention: Timothy Curry & Jonn Beeson\nFacsimile: 1-650-739-3900\nEmail: tcurry@jonesday.com & jbeeson@jonesday.com\n(b) Severability. If any provision of this Agreement is found to violate any statute, regulation, rule, order or decree of any governmental authority, court, agency or exchange, such invalidity will not be deemed to affect any other provision of this Agreement or the validity of the remainder of this Agreement, and such invalid provision will be replaced with a valid provision that as closely as possible reflects the Parties\u2019 intent with respect to such invalid provision.\n(c) Entire Agreement. This Agreement contains the entire agreement between the Parties regarding its subject matter and supersedes all prior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter, provided that any confidentiality or non-disclosure existing between the parties prior to the date of this Agreement will continue to apply to disclosures made prior to the date of this Agreement.\n(d) Successors. This Agreement will inure to the benefit of, and be enforceable by, the Parties and each of their successors and assigns.\n(e) Remedies. It is understood and agreed that money damages would not be an adequate remedy for any breach of this Agreement by a Party or any of its Representatives and that a Party will be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach by the other Party. Such remedies will not be deemed to be the exclusive remedies for a breach of this Agreement but will be in addition to all other remedies available at law or in equity. Each Party further agrees not to raise as a defense or objection to the request or granting of such relief that any breach of this Agreement is or would be compensable by an award of money damages, and the Parties agree to waive any requirements for the securing or posting of any bond in connection with such remedy. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines (in a judgment not subject to further appeal or for which the time for appeal has expired), that a Party or any of its Representatives has breached this Agreement, then such Party will be liable and pay to the other Party the reasonable legal fees incurred by the other Party in connection with such litigation, including any appeal therefrom. If such court determines (in a judgment not subject to further appeal or for which the time for appeal has expired) that neither Party or its Representatives has breached this Agreement, then each Party will pay their own legal fees incurred in connection with such litigation and any appeal therefrom.\n(f) Third Party Beneficiaries. Each Party agrees that nothing herein expressed or implied is intended to confer upon or give any rights or remedies to any other person under or by reason of this Agreement.\n(g) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware applicable to agreements made and to be performed entirely within the State of Delaware, without regard to the conflict of law provisions that would result in the application of the laws of any other jurisdiction.\n(h) Forum. Each Party irrevocably and unconditionally submits to the exclusive personal jurisdiction of the chancery courts of the State of Delaware or, if the chancery courts of the State of Delaware lack jurisdiction, any federal court located in the State of Delaware (and, in each case, any appellate court from any thereof), for any actions, suits or proceedings arising out of or relating to this Agreement (and each Party agrees not to commence any action, suit or proceeding relating thereto except in such courts, and further agrees that service of any process, summons, notice or document by U.S. registered mail to such Party\u2019s address set forth above will be effective service of process for any action, suit or proceeding brought against such Party in any such court). Each Party irrevocably and unconditionally waives any objection that such Party may now or hereafter have to the laying of venue of any action, suit or proceeding arising out of this Agreement in the chancery courts of the State of Delaware or, if the chancery courts of the State of Delaware lack jurisdiction, any Federal court located in the State of Delaware (and, in each case, any appellate court from any thereof), and further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n(i) Waiver of Jury Trial. EACH OF THE PARTIES WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. Each of the Parties (A) certifies that no representative, agent or attorney of the other Party has represented, expressly or otherwise, that the other Party would not, in the event of litigation, seek to enforce the foregoing waiver and (B) acknowledges that it has been induced to enter into this Agreement by, among other things, the mutual waivers and certifications in this ARTICLE I Section 11(i).\n(j) Counterparts. This Agreement may be executed and delivered (including by facsimile transmission or by e-mail of a .pdf, .tif, .jpeg or similar attachment in two or more counterparts, and by the different Parties in separate counterparts, each of which when executed and delivered will be deemed to be an original but all of which taken together will constitute one and the same agreement. Any such counterpart, to the extent delivered using facsimile transmission or by e-mail of a .pdf, .tif, .jpeg or similar attachment will be treated in all manner and respects as an original executed counterpart and will be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person.\n(k) No Waiver of Rights. No failure or delay by either Party in exercising any right, power or privilege under this Agreement will operate as a waiver, nor will any single or partial exercise under this Agreement preclude any other or further exercise under this Agreement or the exercise of any other right, power or privilege hereunder.\n(l) No Modification. No provision in this Agreement can be waived, modified or amended except by written consent of the Party against whom enforcement is sought, which consent will specifically refer to the provision to be waived, modified or amended and will explicitly make such waiver, modification or amendment.\n(m) Inquiries. All inquiries for information about the Company and its subsidiaries and communications with the Company will be made through [ ] or through an employee or person who has contacted the Potential Relationship Party for and on behalf of the Company. Neither the Potential Relationship Party nor any of its Representatives will contact any third party with whom the Company or any of its subsidiaries has a business or other relationship (including any director, officer, employee, customer, supplier, stockholder or creditor of the Company or any of its subsidiaries) in connection with a Possible Transaction without the Company\u2019s prior written consent unless such person has contacted the Potential Relationship Party for and on behalf of the Company.\n(n) Term. This Agreement and all obligations will terminate three years from the date of this Agreement.\n(o) General Interpretation. Each of the Parties has been represented by independent counsel of its choice throughout all negotiations that have preceded the execution of this Agreement, and each has executed this Agreement with the advice of said independent counsel. Each Party and its counsel participated in the preparation of this Agreement, and any and all drafts of this Agreement exchanged among the Parties will be deemed the work product of all of the Parties and may not be construed against any Party by reason of its drafting or preparation. Each of the Parties waives the application of any law or rule of construction providing that ambiguities in an agreement or other document will be construed against the party drafting such agreement or document. In this Agreement, except to the extent otherwise provided or that the context otherwise requires:\n(i) the headings in this Agreement are for reference purposes only and do not affect in any way the meaning or interpretation of this Agreement;\n(ii) whenever the words \u201cinclude,\u201d \u201cincludes\u201d or \u201cincluding\u201d are used in this Agreement, they are deemed to be followed by the words \u201cwithout limitation;\u201d\n(iii) the use of \u201cor\u201d is not intended to be exclusive, unless expressly indicated otherwise; and\n(iv) words importing the singular include the plural and vice versa and words importing gender include all genders.\n[Remainder of Page Intentionally Left Blank \u30fc Signature Page Follows]\nINSITE VISION INCORPORATION\nBy: /s/ Lyle Bowman\nName: Lyle Bowman\nTitle: Vice President\nSUN PHARMACEUTICAL INDUSTRIES LTD\nBy: /s/ Uday Baldota\nName: Uday Baldota\nTitle: Senior Vice President\n",
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"text": "Exhibit (d)(6)\n(MESIROW FINANCIAL LOGO)\nApril 29, 2004\nPERSONAL AND CONFIDENTIAL\nSteven Yari\nTriyar Companies, Inc.\nc/o Todd Jadwin\nAlexander Dunham Securities, Inc.\n350 S. Grand\nSuite 3570\nLos Angeles, CA 90071\nDear Steven:\nYou have requested information regarding Home Products International, Inc. (the \u201cCompany\u201d, together with its subsidiaries and affiliates, is referred to herein as \u201cus\u201d or \u201cwe\u201d) in connection with your consideration of the possible acquisition of the Company (a \u201cPossible Transaction\u201d). In consideration of our furnishing you with the Evaluation Materials (as defined below) you agree as follows:\nConfidentiality of Evaluation Materials\nYou will treat confidentially any information (whether written or oral) that either we or our financial advisor, Mesirow Financial, Inc. (\u201cMesirow\u201d), or our other representatives furnish to you in connection with a Possible Transaction, together with analyses, compilations, studies or other documents prepared by you, or by your representatives (as defined hereinafter) which contain or otherwise reflect such information or your review of, or interest in, the Company (collectively, the \u201cEvaluation Materials\u201d). You recognize and acknowledge the competitive value of the Evaluation Materials and the damage that could result to the Company if the Evaluation Materials were used or disclosed except as authorized by this agreement\nThe term \u201cEvaluation Materials\u201d includes information furnished to you orally or in writing (whatever the form or storage medium) or gathered by inspection, and regardless of whether such information is specifically identified as \u201cconfidential\u201d. The term \u201cEvaluation Materials\u201d does not include information which, you establish through written documentation, (i) is or becomes generally available to the public other than as a result of a disclosure by you or your representatives, (ii) was or becomes available to you on a non-confidential basis from a source other than the Company or its representatives, provided that such source is not prohibited from disclosing such information to you by a contractual, legal or fiduciary obligation to the Company or its representatives, or (iii) is independently developed by you without violating your obligations hereunder. The terms of this section \u201cConfidentiality of Evaluation Materials\u201d shall remain in effect for 2 years from the effective date of this agreement.\nUse of Evaluation Materials\nYou will not use any of the Evaluation Materials for any purpose other than the exclusive purpose of evaluating a Possible Transaction. You and your representatives will keep the Evaluation Materials completely confidential; provided, however, that (i) such information may only be disclosed to those of your directors, officers, employees, affiliates, agents, representatives (including attorneys, accountants and financial advisors), and lenders (collectively, \u201cyour representatives\u201d) who need to know such information for the purpose of evaluating a Possible Transaction between you and the Company (it being understood that your representatives shall be informed by you of the confidential nature of such information and shall be directed by you, and shall each expressly agree (in writing, if requested by the Company or its advisors), to treat such information confidential in accordance with the agreement) and (ii) any other disclosure of such information may only be made if the Company consents in writing prior to any such disclosure. Without limiting the generality of the foregoing, in the event that a Possible Transaction is not consummated, neither you nor your representatives shall use any of the Evaluation Materials for any purpose. In any event, neither you nor any of your representatives will use the Evaluation Materials in any way which is or may be detrimental to the Company. You will be responsible for any breach of this agreement by you or your representatives. Notwithstanding any other provision hereof, the Company reserves the right not to make available hereunder any information, the provision of which is determined by us, in our sole discretion, to be inadvisable or inappropriate or competitively sensitive.\nIn the event that you or any of your representatives received a request or are required (by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose all or any part of the Evaluation Materials, you or your representatives, as the case may be, agree to (i) immediately notify the Company of the existence, terms and circumstances surrounding such request, (ii) consult with the Company on the advisability of taking legally available steps to resist or narrow such request and (iii) assist the Company in seeking a protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained or that the Company waives compliance with the provisions hereof, you or your representatives, as the case may be, may disclose to any tribunal only that portion of the Evaluation Materials which you are advised by counsel is legally required to be disclosed, and shall exercise your best efforts to obtain assurance that confidential treatment will be accorded such Evaluation Materials. The terms of this section \u201cUse of Evaluation Materials\u201d shall remain in effect for 2 years from the effective date of this agreement.\nNon-Disclosure\nThe disclosure of your possible interest in purchasing the Company could have a material adverse effect on the Company\u2019s business if for any reason an agreement of purchase and sale is not consummated or a disclosure is made prior to the closing of a Possible Transaction. Accordingly, unless required by applicable law or regulatory authority, you agree that prior to the closing of a Possible Transaction, without the prior written consent of the Company, you will not, and you will direct your representatives not to, disclose to any person (including, but not limited to, any customer, employee, supplier, creditor or competitor of the Company) the fact that discussions or negotiations are taking place concerning a possible transaction between you and the Company or any of the terms, conditions or other facts with respect to any such Possible Transaction, including the status thereof, nor will you or any of your representatives make inquiry about the Company\u2019s business to any customer, employee, supplier, creditor or competitor of the Company. Without limiting the generality of the foregoing, you further agree that, without the prior written consent of the Company, you will not, directly or indirectly, enter into any agreement, arrangement or understanding or any discussions that any lead to such agreement, arrangement or understanding with any person (other than the Company) regarding a Possible Transaction. The term \u201cperson\u201d as used in this agreement shall be broadly interpreted to include, without limitation, any corporation, the Company, governmental agency or body, stock exchange, partnership, limited liability company, association or individual. The terms of this section \u201cNon-Disclosure\u201d shall remain in effect for 2 years from the effective date of this agreement.\nSecurities Law Compliance\nYou acknowledge that the Evaluation Materials represent, in part, material, non-public information regarding the Company and its prospects. Accordingly, you acknowledge that you and your representatives understand that the securities laws of the United States prohibit any person who has material, non-public information concerning the Company or a Possible Transaction from purchasing or selling securities in reliance upon such information or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities in reliance upon such information.\nReturn of Documents\nUpon the Company\u2019s request, you shall promptly deliver to the Company or destroy all written Evaluation Materials and any other written materials without retaining, in whole or in part, any copies, extracts or other reproductions (whatever the form or storage medium) of such materials, and shall certify the destruction of such materials in writing to the Company.\nNo Unauthorized Contact or Solicitation\nDuring the course of your evaluation, all inquiries and other communications are to be made directly to Mesirow or employees or representatives of the Company specified by Mesirow. Accordingly, you and your representatives agree not to directly or indirectly contact or communicate with any executive or other employee of the Company concerning a Possible Transaction, or to seek any information in connection therewith from such person, without the express written consent of Mesirow. You also agree not to discuss with or offer to any third party an equity participation in a Possible Transaction or any other form of joint acquisition by you and such third parry without the prior written consent of the Company.\nWithout the Company\u2019s prior written consent, neither you nor any of your affiliates will for a period of two years from the date of this agreement directly or indirectly solicit for employment or employ any of the officers or employees of the Company (or any person whose activities are dedicated to the Company).\nStandstill\nYou agree that until two years from the date of this agreement, without the prior approval of the Board of Directors of the Company, neither you nor any of your representatives will (i) acquire or make any proposal to acquire any securities or property of the Company, (ii) propose to enter into any merger or business combination involving the Company or purchase a material portion of the assets of the Company, (iii) make or participate in any solicitation of proxies to vote, or seek to advise or influence any person with respect to the voting of any securities of the Company, (iv) form, join or participate in a \u201cgroup\u201d (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934) with respect to any voting securities of the Company, (v) otherwise act or seek to control or influence the management, Board of Directors or policies of the Company, (vi) disclose any intention, plan or arrangement inconsistent with the foregoing or (vii) take any action which might require the Company to make a public announcement regarding the possibility of a business combination or merger. Except as provided above, you also agree during such period not to request the Company (or its directors, officers, employees, agents or representatives) to amend or waive any provision of this paragraph.\nNo Representation or Warranty\nAlthough the Company and Mesirow have endeavored to include in the Evaluation Materials information known to them which they believe to be relevant for the purpose of your investigation, you acknowledge and agree that none of the Company, Mesirow or any of the Company\u2019s other representatives or agents is making any representation or warranty, expressed or implied, as to the accuracy or completeness of the Evaluation Materials, and none of the Company, Mesirow or any of the Company\u2019s other representatives or agents, nor any of their respective officers, directors, employees, representatives, stockholders, owners, affiliates, advisors or agents, will have any liability to you or any other person resulting from the use of Evaluation Materials by you or any of your representatives. Only those representations or warranties that are made to a purchaser in a definitive sale agreement for the Company (\u201cSale Agreement\u201d) when, as, and if it is executed, and subject to such limitations and restrictions as may be specified in such Sale Agreement, will have any legal effect. For purposes of this agreement, the term \u201cSale Agreement\u201d does not include an executed letter of intent or any other preliminary written agreement, nor does it include any oral acceptance of an offer or bid by you.\nYou also acknowledge and agree that no contract or agreement providing for the sale of the Company shall be deemed to exist between you and the Company unless and until a Sale Agreement has been executed and delivered by you and each of the other parties thereto, and you hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with the sale of the Company unless and until a Sale Agreement has been executed and delivered by you and each of the other parties thereto. You also agree that unless and until a Sale Agreement between the Company and you with respect to the acquisition of the Company has been executed and delivered by you and each of the other parties thereto, there shall not be any legal obligation of any kind whatsoever with respect to any such transaction by virtue of this agreement or any other written or oral expression with respect to such transaction except, in the case of this agreement, for the matters specifically agreed to herein.\nYou further understand and agree that (i) the Company and Mesirow shall be free to conduct the process for the Company\u2019s sale as they in their sole discretion shall determine (including, without limitation, negotiating with any of the prospective buyers and entering into a Sale Agreement without prior notice to you or to any other person), (ii) any procedures relating to such sale may be changed at any time without notice to you or any other person and (iii) you shall not have any claims whatsoever against the Company, Mesirow or any of their respective directors, officers, employees, stockholders, owners, affiliates, agents or representatives arising out of or relating to the sale of the Company.\nLegal Remedy\nYou understand and agree that money damages would not be a sufficient remedy for any breach of this agreement by you or your representatives and that the Company will be entitled to specific performance and injunctive relief as remedies for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this agreement by you or your representatives but shall be in addition to all other remedies available at law or equity. You further agree not to raise as a defense or objection to the request or granting of such relief that any breach of this agreement is or would be compensable by an award of money damages and to waive any requirements for the securing or posting of any bond in connection with such remedy.\nOther\nThis agreement constitutes the entire agreement between the parties hereto regarding the subject matter hereof This agreement may be changed only by a written agreement signed by the parties hereto or their authorized representatives.\nIf any term or provision of this agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms and provisions of this agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.\nThe parties understand and agree that no failure or delay by the other party in exercising any right, power or privilege under this agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or future exercise of any right, power or privilege hereunder.\nThis agreement shall be governed by and construed in accordance with the laws of the State of Illinois applicable to contracts made and to be performed therein. You irrevocably and unconditionally agree to submit to personal jurisdiction and service and venue exclusively in any federal or state court within the State of Illinois having subject matter jurisdiction over any action, suit or proceeding arising out of or relating to this agreement and the rights and obligations contained herein and waive any objection you may have to such jurisdiction, service and venue.\nIf you are in agreement with the foregoing, please sign and return one copy of this agreement, it being understood that all counterpart copies will constitute but one agreement with respect to the subject matter of this letter.\nVery truly yours,\nHOME PRODUCTS INTERNATIONAL, INC.\nBy MESIROW FINANCIAL, INC. Solely as Company\u2019s representative\nBy: /s/ Nicholas R. Pontikes\n Nicholas R. (Rocky) Pontikes Vice President\nAccepted and agreed to as of the date hereof:\nTriyar Companies, Inc.\nBy: /s/ Mark S. Weber\n",
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"text": "Exhibit (d)(2)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Agreement is entered into on September 28, 2006 (the \u201cEffective Date\u201d) between SafeNet, Inc. (\u201cSafeNet\u201d), a Delaware corporation with its principal place of business at 4690 Millennium Drive, Belcamp, MD) 21017 and Vector Capital Corporation (\u201cVector\u201d), a Delaware corporation with its principal place of business at 456 Montgomery Street, 19th Floor, San Francisco, CA 94104 (collectively the \u201cParties\u201d), The Parties both expect to disclose information (in such capacity, a \u201cDisclosing Party\u201d) and receive information (in such capacity, a \u201cReceiving Party\u201d),\n WHEREAS, the Parties desire to engage in discussions concerning a potential corporate transaction (the \u201cTransaction\u201d); and\n WHEREAS, the Parties may disclose certain information to each other on a confidential basis to further their discussions concerning such Transaction;\n NOW THEREFORE, in consideration of the disclosure of such confidential information by either Party, the Parties agree as follows:\n1. For purposes of this Agreement, \u201cInformation\u201d is defined as confidential or proprietary communications or data of a Party hereto, including business information, financial information, marketing plans. technical or financial information, customer lists or proposals, sketches, models, samples, computer programs and documentation, drawings, specifications, whether conveyed in oral, written, graphic, or electromagnetic form or otherwise, and all notes, analyses, compilations, forecasts, studies, interpretations or other documents prepared by either Party to the extent that they contain any such information. In addition, the existence of this Agreement and information and discussions regarding the Transaction shall be considered Information hereunder. The definition of Information shall not include information that:\n (a) is in or enters the public domain, through no fault of the Receiving Party; or\n (b) is or has been disclosed by the Disclosing Party to the Receiving Party or to a third Party without restriction; or\n (c) is already in the possession of the Receiving Party, without restriction and prior to disclosure of the information hereunder; or\n (d) is or has been lawfully disclosed by a third Party to the Receiving Party without an obligation of confidentiality; or\n (e) is developed by the Receiving Party independently of Information disclosed by the Disclosing Party and without breach of this Agreement.\n2. The Receiving Party agrees that;\n (a) it will use Information disclosed by the Disclosing Party solely for the purpose of discussing and evaluating the Transaction, and for no other purpose;\n (b) it will not distribute, disclose or disseminate Information to any third Party without the prior consent of the Disclosing Party, and will only distribute, disclose or disseminate Information to its directors, officers, employees consultants, advisors, potential sources of financing or other representatives with a need to know such information for purposes of discussing and evaluating the Transaction and who are informed by such Receiving Party of the confidential nature of the Information;\n (c) it will protect the Information of the Disclosing Part), against unauthorized disclosure and warrants that will use the same means to protect Information that it uses to protect its own confidential information, in any event no less than reasonable means.\n3. Information of the Disclosing Party shall remain the property of the Disclosing Party. No license or right is granted by the Disclosing Party to the Receiving Party under any patent, patent application, trademark, copyright, software or trade secret.\n4. Vector agrees that, for a period of three (3) months from the termination or expiration of this Agreement, unless such shall have been specifically invited in writing by SafeNet, neither Vector nor any of the investment funds it manages will in any manner, directly or indirectly:\n (a) effect to seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities (or beneficial ownership thereof) or assets of SafeNet; (ii) any tender or exchange offer, merger or other business combination involving SafeNet; (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to SafeNet; or (iv) any \u201csolicitation\u201d or \u201cproxies\u201d (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of SafeNet;\n (b) form, join or in any way participate in a \u201cgroup\u201d (as defined under the Securities Exchange Act) relating to SafeNet or its securities;\n (c) otherwise act, alone or in concert. with others, to seek to control or influence the management, Board of Directors or policies of SafeNet;\n (d) take any action which might force SafeNet to make a public announcement regarding any of the types of matters set forth in (a) above; or\n (e) enter into any discussions or arrangements with any third party with respect to any of the foregoing.\nYou also agree during such period not to request SafeNet (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of this Section (including this sentence). Notwithstanding the foregoing, nothing herein shall limit Vector\u2019s ability to acquire up to l% of the SafeNet\u2019s equity securities, subject only to full compliance with all applicable securities laws and regulations.\n5. The Disclosing Party warrants that it has the right to possession and disclosure of the Information according to the terms of this Agreement. Each Party understands and acknowledges that neither Party has made any representation or warranty, express or implied, as to the accuracy or completeness of the Information and that neither Party shall have any liability to the other or any other person resulting from reliance on the Information. Only those representations or warranties that are made in a definitive agreement, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\n6. Vector understands that SafeNet is a publicly-held company and that all or part of SafeNet\u2019s information may constitute material non-public information under the United States securities laws, and each Party acknowledges that it is aware that the United States securities laws prohibit any person who is in the possession of material non-public information about a company from purchasing or selling that company\u2019s securities in reliance upon such information or from communicating such information to any other person or entity under circumstances in which it is reasonably foreseeable that such person or entity is likely to purchase or sell such securities in reliance upon such information. Each Party represents that, as of the date of this agreement, neither Party nor its controlled affiliates, nor anyone acting on its or their behalf in connection with the Transaction, has acquired record or beneficial ownership of any voting securities of the other Party or of any securities convertible or exchangeable into or exercisable for voting securities of the other Party, and each Party agrees that neither it, nor any of its directors, officers or employees who have been provided with the Information will perform any purchase, sale or other transfer of any of the securities of the other Party in violation of United States securities laws.\n7. In the event that a Receiving Party is requested pursuant to, or required by, applicable law, regulation or legal process to disclose any of the Disclosing Party\u2019s Information, the Receiving Party will notify the Disclosing Party promptly before such Information is disclosed so that the Disclosing Party may seek a protective order or other appropriate remedy or, in the sole reasonable discretion of the Disclosing Party, waive compliance with the terms of this Agreement. In the event that no such protective order or other remedy is obtained, or that such Disclosing Party waives compliance with the terms of this Agreement, the Receiving Party will furnish only that portion of such Information which it is advised in writing by outside counsel is legally required and will exercise its best efforts to obtain reliable assurance that confidential treatment will be accorded such Information. Disclosure of information in accordance with this Section shall not be considered a breach of this Agreement.\n8. The Receiving Party shall have, or shall enter into, agreements with its parent, divisions and subsidiary companies as necessary to safeguard the Information disclosed hereunder consistent with the terms of this Agreement. With respect to its directors, officers and employees, the Receiving Party warrants that it has executed confidentiality agreements with all such directors, officers and employees who will have access to Information, and shall ensure that such directors, officers and employees protect Information according to the terms of this Agreement.\n9. Each Party acknowledges that remedies at law may be inadequate to protect it against any actual or threatened breach of this Agreement by the other Party, and, without prejudice to any other rights and remedies otherwise available to each Party, each Party agrees to any grant of injunctive relief in favor of the other Party without proof of actual damages. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that this Agreement has been breached by a Party, then the breaching Party will reimburse the non-breaching Party for its costs and expenses (including, without limitation, legal fees and expenses) incurred in connection with all such litigation.\n10. Either Party may terminate this Agreement at will by written notice to the other Party and, if not terminated earlier, shall terminate automatically one (1) year from the Effective Date, except the obligations of use and confidentiality pursuant to Sections 2 shall continue for a period of two (2) years from the Effective Date,\n11. Neither this Agreement nor the disclosure or receipt of Information shall constitute or imply a commitment by either Party with respect to the Transaction, present or future business agreements, or any other subject matter not expressly set forth herein,\n12. At the Disclosing Party\u2019s request, all Information of the Disclosing Party in tangible form, or any copies thereof, that is in the possession of the Receiving Party shall be returned to the Disclosing Party or destroyed,\n13. Nothing in this Agreement shall grant to either Party the right to make commitments of any kind for or on behalf of the other Party. Each Party to this Agreement is an independent organization and no agency relationship, joint venture or partnership shall be created hereby.\n14. Any amendment to this Agreement must be in writing and signed by authorized officials of each Party. No failure or delay in exercising any right under this Agreement shall operate as a waiver thereof.\n15. This Agreement shall be governed by the laws of the State of Maryland. Each Party agrees that any proceeding relating to this Agreement shall be brought in a state court of Maryland or a court of the United States of America located in the State of Maryland. Each Party hereby consents to personal jurisdiction in any such action, consent to service of process by mail and waive any objection to venue in any such court or to any claim that such court is an inconvenient forum.\n16. This Agreement contains the entire agreement between the parties concerning the confidentiality of the Information and shall be binding upon its respective affiliates, successors and assigns. No modification of this Agreement or waiver of the terms and conditions hereof will be binding upon the parties, unless approved in writing by each Party.\nAgreed by:\nSAFENET, INC. VECTOR CAPITAL CORPORATION\nBy: /s/ Kevin Hicks By: /s/ David Fishman\n Name: Kevin Hicks Name: David Fishman\n Title: General Counsel and Vice President Title: Principal and Authorized Signatory\n",
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"text": "STRICTLY CONFIDENTIAL\nJanuary 27, 2012\nSycamore Partners Management, L.L.C.\n9 West 57 Street, 31 Floorthst\nNew York, New York 10019\nAttention: Stefan Kaluzny\nManaging Director\nDear Mr. Kaluzny:\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this \u201cAgreement\u201d) is dated as of January 27, 2012 by and between Sycamore Partners Management, L.L.C., a Delaware limited liability company (the \u201cReceiving Party\u201d) and The Talbots, Inc., a Delaware corporation (together with its subsidiaries, the \u201cCompany\u201d).\n1. Confidential Information; Representatives. (a) The Receiving Party is considering a possible business combination transaction (whether negotiated directly with the Company\u2019s Board of Directors or otherwise) with respect to the Company (the \u201cTransaction\u201d), and, in order to assist the Receiving Party in evaluating the possible Transaction, the Company is prepared to make available to the Receiving Party certain information concerning the business, operations, strategy and prospects of the Company (all such information, the \u201cConfidential Information\u201d). As a condition to the Confidential Information being furnished to the Receiving Party and the directors, officers, principals, partners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates, potential sources of capital and financing, and financial advisors (collectively, \u201cRepresentatives\u201d) of the Receiving Party, the Receiving Party agrees to treat the Confidential Information strictly in accordance with the provisions of this Agreement and to otherwise comply, and to cause its Representatives to comply, with all obligations hereinafter set forth.\n(b) The term \u201cConfidential Information\u201d shall include, without limitation, any and all information concerning the Company and its business, operations, strategic initiatives, financing, employees, strategies or prospects that is furnished to the Receiving Party or its Representatives by or on behalf of the Company, whether furnished before or after the date of this Agreement, including, without limitation, any written or oral analyses, business or strategic plans, compilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained or conveyed, whether documentary, computerized, verbal form or otherwise), that contain or otherwise reflect Confidential Information concerning the Company or its business, operations, strategic initiatives, financing, employees, strategies or prospects prepared by or on behalf of the Receiving Party, any of the Receiving Party\u2019s Representatives, the Company or any Company Representatives (as defined below) or that otherwise reflect any conversations with Company Representatives involving or relating to the Confidential Information.\n2. Excluded Information. The Confidential Information shall not include information that the Receiving Party can demonstrate (a) is or becomes available to the public other than as a result of acts by the Receiving Party or its Representatives in breach of the terms of this Agreement, (b) was in the Receiving Party\u2019s possession prior to disclosure by the Company, provided that such information, to the Receiving Party\u2019s knowledge, was not subject to another confidentiality agreement with the Company or another party, (c) has been independently developed by the Receiving Party without reference to, or the use of, any Confidential Information or (d) is disclosed to the Receiving Party by a third party, to the Receiving Party\u2019s knowledge, not bound by any duty or obligation of confidentiality on a non-confidential basis.\n3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall, and shall cause its Representatives to, use the Confidential Information solely for the purpose of evaluating a possible Transaction. The Receiving Party shall, and shall cause its Representatives to, keep the Confidential Information in confidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that (i) the Receiving Party may make disclosure of information contained in the Confidential Information if required by applicable law, regulation or legal or regulatory process; provided, that the Receiving Party shall have first complied with the terms of Section 9 hereof, (ii) the Receiving Party may make disclosure of information contained in the Confidential Information to the extent that the Company gives its prior written consent, and (iii) any information contained in the Confidential Information may be disclosed to the Receiving Party\u2019s Representatives who reasonably require access to such information for the purpose of evaluating a possible Transaction and who agree to keep such information in confidence to the same extent as described herein; provided, further, that the Receiving Party shall not make any disclosure of any Confidential Information to any potential sources of equity financing without the Company\u2019s prior written consent. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the Receiving Party or by any of its Representatives.\n(b) The Receiving Party agrees that, for a period of eighteen months from the date of this Agreement, the Receiving Party shall not (and shall cause its affiliates, subject to Section 22 hereof, not to), directly or indirectly, (i) use the Confidential Information to divert or attempt to divert any business or customer of the Company or (ii) employ or solicit, or initiate contact for employment with, any (A) director, officer or other senior or key employee of the Company or (B) any other employee of the Company whom the Receiving Party meets during its evaluation of the possible Transaction or about whom the Receiving Party receives Confidential Information; provided, however, a general advertisement or other recruiting efforts not specifically targeting any such employees of the Company shall not be considered a solicitation or unauthorized hiring.\n(c) If the Receiving Party discovers any unauthorized disclosure or use of any Confidential Information by it or its Representatives, the Receiving Party hereby covenants to promptly notify the Company in writing of any such unauthorized disclosure or use.\n4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the Company or except as may be required by applicable law or regulation, the Receiving Party and its Representatives shall not disclose to any person that any discussions or negotiations are taking place between the parties concerning a possible Transaction, including the content, timing and status of such discussions or negotiations (the \u201cDiscussion Information\u201d).\n5. No Representations by the Company. The Company will have the exclusive authority to decide what Confidential Information (if any) is to be made available to the Receiving Party and its Representatives. Neither the Company nor any of its directors, officers, employees, agents, consultants, advisors, attorneys, accountants and affiliates (collectively, the \u201cCompany Representatives\u201d) will be under any obligation to make any particular Confidential Information available to the Receiving Party or any of the Receiving Party\u2019s Representatives or to supplement or update any Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the Company nor any of the Company Representatives will have any liability to the Receiving Party or to any of the Receiving Party\u2019s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated transaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal effect.\n6. Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period of one year from the date of this Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the \u201cStandstill Period\u201d), unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any proposal to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner, beneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities of the Company (including any derivative securities with economic equivalents of ownership of any of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of the Company, (b) make, or in any way participate in, directly or indirectly, any \u201csolicitation\u201d of \u201cproxies\u201d (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company, (c) form, join or in any way participate in a \u201cgroup\u201d (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates, (d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any action that could require the Company to make any public disclosure, with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party\u2019s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request the Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this Section 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill Period shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive agreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or more of the Company\u2019s outstanding equity securities, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company\u2019s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii)).\n7. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return all copies of the Confidential Information to the Company, and all notes, studies, reports, memoranda and other documents or materials prepared by the Receiving Party or its Representatives that contain or reflect any Confidential Information shall be destroyed. Notwithstanding the return to the Company or destruction of Confidential Information pursuant to this Section 7, the Receiving Party and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the foregoing, (a) the Receiving Party\u2019s legal department and/or outside counsel may keep one copy of the Confidential Information (in electronic or paper form) and, with respect to the Receiving Party\u2019s Representatives who are accounting firms, such firms may keep one copy of the Confidential Information, in each case, if required to comply with applicable law or regulation and (b) the Receiving Party and its Representatives may retain Confidential Information to the extent it is \u201cbacked-up\u201d on its or their (as the case may be) electronic information management and communications systems or servers, is not available to an end user and cannot be expunged without considerable effort; provided, that any such information so retained pursuant to clauses (a) and (b) of this Section 7 shall be held in compliance with the terms of this Agreement for a period of eighteen months from the date hereof.\n8. 2012 Annual Stockholders Meeting. The Company agrees (a) that the meeting date for its 2012 annual stockholders meeting (with respect to the Company\u2019s fiscal year ended January 28, 2012) will be held no earlier than thirty-one days after the first anniversary of the Company\u2019s 2011 annual stockholders meeting (with respect to the Company\u2019s fiscal year ended January 29, 2011) and (b) to provide the Receiving Party a copy of the press release announcing the date of its 2012 annual meeting on the date such press release is publicly issued.\n9. Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses the Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion Information under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency, the Receiving Party shall if permitted pursuant to applicable law (a) promptly notify the Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion Information is required, furnish only such portion of the Confidential Information or Discussion Information as the Receiving Party is advised by its legal counsel is legally required to be disclosed and\n(d) if requested by the Company, cooperate with the Company in its efforts to obtain a protective order or other relief to prevent the disclosure of the Confidential Information or Discussion Information or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be disclosed.\n10. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to a Transaction has been executed and delivered, neither the Receiving Party nor the Company will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this or any other written or oral expression by either of them or their Representatives except, in the case of this Agreement, for the matters specifically agreed to herein.\n11. Remedies. Each of the parties hereto acknowledges that in the event of any breach of the terms of this Agreement, the other party could not be made whole by monetary damages only. Accordingly, each of the parties hereto, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to an injunction (which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement.\n12. Communications. Without the Company\u2019s prior written consent, which may be withheld by the Company in its sole discretion, the Receiving Party shall not (and shall cause its Representatives not to) initiate, other than through the Company\u2019s financial and legal advisors or such other persons, as designated by the Company in writing, any (a) communication concerning the Confidential Information, (b) requests for meetings with management of the Company in connection with the possible Transaction or other transaction between the parties or (c) communication relating to the business of the Company or the possible Transaction, in each case, with any officer, director or employee of the Company.\n13. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been advised that the United States securities laws prohibit any person having non-public material information about a company from purchasing or selling securities of that company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\n14. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and assigns.\n15. No Waiver. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\n16. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to the laws of conflict of laws. Each of the parties hereto: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement shall be effective service of process for any action, suit or proceeding brought against such party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of New York has been brought in an inconvenient forum.\n17. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that a party has breached this Agreement, then such party shall be liable and pay to the non-breaching party the legal fees and expenses such non-breaching party has incurred in connection with such litigation, including any appeal therefrom.\n18. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any provisions of this Agreement.\n19. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same Agreement.\n20. Severability. In the event any term of this Agreement is found by any court to be void or otherwise unenforceable, the remainder of this Agreement shall remain valid and enforceable as though such term were absent upon the date of its execution.\n21. Notices. All notices and other communications required or permitted hereunder will be in writing and will be deemed to have been duly given when delivered in person or when dispatched by email or electronic facsimile transfer (with such facsimile confirmed in writing by mail simultaneously dispatched) to the Company at the address specified below:\nThe Talbots, Inc.\nAttention: Chief Operating Officer\nOne Talbots Drive\nHingham, MA 02043\nTelephone: 781-741-7600\nFacsimile: 781-741-4927\nwith copies to:\nThe Talbots, Inc.\nAttention: General Counsel\n211 South Ridge St.\nRye Brook, NY 10573\nTelephone: 914-934-8877\nFacsimile: 914-934-9136\nand\nDewey & LeBoeuf LLP\nAttention: Morton A. Pierce, Esq.\nChang-Do Gong, Esq.\n1301 Avenue of the Americas\nNew York, NY 10019\nTelephone: 212-259-8000\nFacsimile: 212-259-6333\n22. Non-Private Equity Affiliates. Notwithstanding anything to the contrary provided elsewhere herein, none of the provisions of this Agreement shall in any way limit the ordinary course business services and activities of the Receiving Party and its affiliates; provided, that (a) such services and activities are distinct from the private equity business and (b) the Confidential Information is not made available to Representatives of the Receiving Party and its affiliates who are not involved in the private equity business or who are engaged in investments that are not private equity investments and such ordinary course business services and activities are otherwise conducted without any reference to, or use of, the Confidential Information. The Receiving Party further represents to the Company that the Receiving Party has implemented appropriate internal restrictions on the sharing of confidential information (including, without limitation, the implementation of ethical walls around certain affiliates, to comply with federal securities laws of the United States).\n23. Termination. Except as otherwise specified herein, the obligations of the parties set forth in this Agreement shall terminate and be of no further force and effect eighteen months from the date hereof.\n[Remainder of Page Intentionally Left Blank]\nIN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above.\nTHE TALBOTS, INC.\nBy /s/ Richard T. O\u2019Connell, Jr.\nName: Richard T. O\u2019Connell, Jr.\nTitle: Executive Vice President\nSYCAMORE PARTNERS MANAGEMENT, L.L.C.\nBy /s/ Stefan Kaluzny\nName: /s/ Stefan Kaluzny\nTitle: Managing Director\n",
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"text": "STRICTLY CONFIDENTIAL\nJanuary 27, 2012\nSycamore Partners Management, L.L.C.\n9 West 57 Street, 31 Floorthst\nNew York, New York 10019\nAttention: Stefan Kaluzny\n Managing Director\nDear Mr. Kaluzny:\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this \u201cAgreement\u201d) is dated as of January 27, 2012 by and between Sycamore Partners Management, L.L.C., a Delaware limited liability company (the \u201cReceiving Party\u201d) and The Talbots, Inc., a Delaware corporation (together with its subsidiaries, the \u201cCompany\u201d).\n1. Confidential Information; Representatives. (a) The Receiving Party is considering a possible business combination transaction (whether negotiated directly with the Company\u2019s Board of Directors or otherwise) with respect to the Company (the \u201cTransaction\u201d), and, in order to assist the Receiving Party in evaluating the possible Transaction, the Company is prepared to make available to the Receiving Party certain information concerning the business, operations, strategy and prospects of the Company (all such information, the \u201cConfidential Information\u201d). As a condition to the Confidential Information being furnished to the Receiving Party and the directors, officers, principals, partners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates, potential sources of capital and financing, and financial advisors (collectively, \u201cRepresentatives\u201d) of the Receiving Party, the Receiving Party agrees to treat the Confidential Information strictly in accordance with the provisions of this Agreement and to otherwise comply, and to cause its Representatives to comply, with all obligations hereinafter set forth.\n(b) The term \u201cConfidential Information\u201d shall include, without limitation, any and all information concerning the Company and its business, operations, strategic initiatives, financing, employees, strategies or prospects that is furnished to the Receiving Party or its Representatives by or on behalf of the Company, whether furnished before or after the date of this Agreement, including, without limitation, any written or oral analyses, business or strategic plans, compilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained or conveyed, whether documentary, computerized, verbal form or otherwise), that contain or otherwise reflect Confidential Information concerning the Company or its business, operations, strategic initiatives, financing, employees, strategies or prospects prepared by or on behalf of the Receiving Party, any of the Receiving Party\u2019s Representatives, the Company or any Company Representatives (as defined below) or that otherwise reflect any conversations with Company Representatives involving or relating to the Confidential Information.\n2. Excluded Information. The Confidential Information shall not include information that the Receiving Party can demonstrate (a) is or becomes available to the public other than as a result of acts by the Receiving Party or its Representatives in breach of the terms of this Agreement, (b) was in the Receiving Party\u2019s possession prior to disclosure by the Company, provided that such information, to the Receiving Party\u2019s knowledge, was not subject to another confidentiality agreement with the Company or another party, (c) has been independently developed by the Receiving Party without reference to, or the use of, any Confidential Information or (d) is disclosed to the Receiving Party by a third party, to the Receiving Party\u2019s knowledge, not bound by any duty or obligation of confidentiality on a non-confidential basis.\n3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall, and shall cause its Representatives to, use the Confidential Information solely for the purpose of evaluating a possible Transaction. The Receiving Party shall, and shall cause its Representatives to, keep the Confidential Information in confidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that (i) the Receiving Party may make disclosure of information contained in the Confidential Information if required by applicable law, regulation or legal or regulatory process; provided, that the Receiving Party shall have first complied with the terms of Section 9 hereof, (ii) the Receiving Party may make disclosure of information contained in the Confidential Information to the extent that the Company gives its prior written consent, and (iii) any information contained in the Confidential Information may be disclosed to the Receiving Party\u2019s Representatives who reasonably require access to such information for the purpose of evaluating a possible Transaction and who agree to keep such information in confidence to the same extent as described herein; provided, further, that the Receiving Party shall not make any disclosure of any Confidential Information to any potential sources of equity financing without the Company\u2019s prior written consent. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the Receiving Party or by any of its Representatives.\n(b) The Receiving Party agrees that, for a period of eighteen months from the date of this Agreement, the Receiving Party shall not (and shall cause its affiliates, subject to Section 22 hereof, not to), directly or indirectly, (i) use the Confidential Information to divert or attempt to divert any business or customer of the Company or (ii) employ or solicit, or initiate contact for employment with, any (A) director, officer or other senior or key employee of the Company or (B) any other employee of the Company whom the Receiving Party meets during its evaluation of the possible Transaction or about whom the Receiving Party receives Confidential\nInformation; provided, however, a general advertisement or other recruiting efforts not specifically targeting any such employees of the Company shall not be considered a solicitation or unauthorized hiring.\n(c) If the Receiving Party discovers any unauthorized disclosure or use of any Confidential Information by it or its Representatives, the Receiving Party hereby covenants to promptly notify the Company in writing of any such unauthorized disclosure or use.\n4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the Company or except as may be required by applicable law or regulation, the Receiving Party and its Representatives shall not disclose to any person that any discussions or negotiations are taking place between the parties concerning a possible Transaction, including the content, timing and status of such discussions or negotiations (the \u201cDiscussion Information\u201d).\n5. No Representations by the Company. The Company will have the exclusive authority to decide what Confidential Information (if any) is to be made available to the Receiving Party and its Representatives. Neither the Company nor any of its directors, officers, employees, agents, consultants, advisors, attorneys, accountants and affiliates (collectively, the \u201cCompany Representatives\u201d) will be under any obligation to make any particular Confidential Information available to the Receiving Party or any of the Receiving Party\u2019s Representatives or to supplement or update any Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the Company nor any of the Company Representatives will have any liability to the Receiving Party or to any of the Receiving Party\u2019s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated transaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal effect.\n6. Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period of one year from the date of this Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the \u201cStandstill Period\u201d), unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any proposal to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner, beneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities of the Company (including any derivative securities with economic equivalents of ownership of\nany of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of the Company, (b) make, or in any way participate in, directly or indirectly, any \u201csolicitation\u201d of \u201cproxies\u201d (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company, (c) form, join or in any way participate in a \u201cgroup\u201d (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates, (d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any action that could require the Company to make any public disclosure, with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party\u2019s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request the Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this Section 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill Period shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive agreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or more of the Company\u2019s outstanding equity securities, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company\u2019s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii)).\n7. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return all copies of the Confidential Information to the Company, and all notes, studies, reports, memoranda and other documents or materials prepared by the Receiving Party or its Representatives that contain or reflect any Confidential Information shall be destroyed. Notwithstanding the return to the Company or destruction of Confidential Information pursuant to this Section 7, the Receiving Party and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the foregoing, (a) the Receiving Party\u2019s legal department and/or outside counsel may keep one copy of the Confidential Information (in electronic or paper form) and, with respect to the Receiving Party\u2019s Representatives who are accounting firms, such firms may keep one copy of the Confidential Information, in each case, if required to comply with applicable law or regulation and (b) the Receiving Party and its Representatives may retain Confidential Information to the extent it is \u201cbacked-up\u201d on its or their (as the case may be) electronic information management and communications systems or servers, is not available to an end user and cannot be expunged without considerable effort; provided, that any such information so retained pursuant to clauses (a) and (b) of this Section 7 shall be held in compliance with the terms of this Agreement for a period of eighteen months from the date hereof.\n8. 2012 Annual Stockholders Meeting. The Company agrees (a) that the meeting date for its 2012 annual stockholders meeting (with respect to the Company\u2019s fiscal year ended January 28, 2012) will be held no earlier than thirty-one days after the first anniversary of the Company\u2019s 2011 annual stockholders meeting (with respect to the Company\u2019s fiscal year ended January 29, 2011) and (b) to provide the Receiving Party a copy of the press release announcing the date of its 2012 annual meeting on the date such press release is publicly issued.\n9. Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses the Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion Information under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency, the Receiving Party shall if permitted pursuant to applicable law (a) promptly notify the Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion Information is required, furnish only such portion of the Confidential Information or Discussion Information as the Receiving Party is advised by its legal counsel is legally required to be disclosed and (d) if requested by the Company, cooperate with the Company in its efforts to obtain a protective order or other relief to prevent the disclosure of the Confidential Information or Discussion Information or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be disclosed.\n10. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to a Transaction has been executed and delivered, neither the Receiving Party nor the Company will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this or any other written or oral expression by either of them or their Representatives except, in the case of this Agreement, for the matters specifically agreed to herein.\n11. Remedies. Each of the parties hereto acknowledges that in the event of any breach of the terms of this Agreement, the other party could not be made whole by monetary damages only. Accordingly, each of the parties hereto, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to an injunction (which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement.\n12. Communications. Without the Company\u2019s prior written consent, which may be withheld by the Company in its sole discretion, the Receiving Party shall not (and shall cause its Representatives not to) initiate, other than through the Company\u2019s financial and legal advisors or such other persons, as designated by the Company in writing, any (a) communication concerning the Confidential Information, (b) requests for meetings with management of the Company in connection with the possible Transaction or other transaction between the parties or (c) communication relating to the business of the Company or the possible Transaction, in each case, with any officer, director or employee of the Company.\n13. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been advised that the United States securities laws prohibit any person having non-public material information about a company from purchasing or selling securities of that company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\n14. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and assigns.\n15. No Waiver. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\n16. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to the laws of conflict of laws. Each of the parties hereto: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement shall be effective service of process for any action, suit or proceeding brought against such party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of New York has been brought in an inconvenient forum.\n17. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that a party has breached this Agreement, then such party shall be liable and pay to the non-breaching party the legal fees and expenses such non-breaching party has incurred in connection with such litigation, including any appeal therefrom.\n18. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any provisions of this Agreement.\n19. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same Agreement.\n20. Severability. In the event any term of this Agreement is found by any court to be void or otherwise unenforceable, the remainder of this Agreement shall remain valid and enforceable as though such term were absent upon the date of its execution.\n21. Notices. All notices and other communications required or permitted hereunder will be in writing and will be deemed to have been duly given when delivered in person or when dispatched by email or electronic facsimile transfer (with such facsimile confirmed in writing by mail simultaneously dispatched) to the Company at the address specified below:\n The Talbots, Inc.\n Attention: Chief Operating Officer\n One Talbots Drive\n Hingham, MA 02043\n Telephone: 781-741-7600\n Facsimile: 781-741-4927\n with copies to:\n The Talbots, Inc.\n Attention: General Counsel\n 211 South Ridge St.\n Rye Brook, NY 10573\n Telephone: 914-934-8877\n Facsimile: 914-934-9136\n and\n Dewey & LeBoeuf LLP\n Attention: Morton A. Pierce, Esq.\n Chang-Do Gong, Esq.\n 1301 Avenue of the Americas\n New York, NY 10019\n Telephone: 212-259-8000\n Facsimile: 212-259-6333\n22. Non-Private Equity Affiliates. Notwithstanding anything to the contrary provided elsewhere herein, none of the provisions of this Agreement shall in any way limit the ordinary course business services and activities of the Receiving Party and its affiliates; provided, that (a) such services and activities are distinct from the private equity business and (b) the Confidential Information is not made available to Representatives of the Receiving Party and its affiliates who are not involved in the private equity business or who are engaged in investments that are not private equity investments and such ordinary course business services and activities are otherwise conducted without any reference to, or use of, the Confidential Information. The Receiving Party further represents to the Company that the Receiving Party has implemented appropriate internal restrictions on the sharing of confidential information (including, without limitation, the implementation of ethical walls around certain affiliates, to comply with federal securities laws of the United States).\n23. Termination. Except as otherwise specified herein, the obligations of the parties set forth in this Agreement shall terminate and be of no further force and effect eighteen months from the date hereof.\n[Remainder of Page Intentionally Left Blank]\nIN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above.\nTHE TALBOTS, INC.\nBy /s/ Richard T. O\u2019Connell, Jr.\nName: Richard T. O\u2019Connell, Jr.\nTitle: Executive Vice President\nSYCAMORE PARTNERS MANAGEMENT,\nL.L.C.\nBy /s/ Stefan Kaluzny\nName: Stefan Kaluzny\nTitle: Managing Director\n",
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"text": "(ORACLE LOGO)\nCONFIDENTIAL DISCLOSURE AGREEMENT FOR STRATEGIC MATTERS\nThis Confidential Disclosure Agreement (\u201cAgreement\u201d) is entered into as of the effective date listed below (\u201cEffective Date\u201d) by Oracle Corporation (\u201cOracle\u201d) located at 500 Oracle Parkway, Redwood City, California 94065 and the company designated below (\u201cCompany\u201d).\nOracle and the Company are entering into discussions concerning a possible strategic transaction (the \u201cTransaction\u201d). The parties expect to make available to one another certain non-public, confidential and/or proprietary information, both oral and written, which may include information concerning their respective business prospects and plans, financial condition, technology, customers, know-how, trade secrets, operations, assets and liabilities (collectively, the \u201cEvaluation Material\u201d). As a condition to each party furnishing the Evaluation Material to the other party and the directors, officers, employees, agents or advisors of such party or its subsidiaries (collectively, \u201cRepresentatives\u201d), each party agrees that the Evaluation Material furnished to it hereunder shall be treated as confidential subject to the terms of this Agreement.\n1. Evaluation Material. \u201cEvaluation Material\u201d also includes notes, analyses, compilations, studies, plans, interpretations or other documents prepared by the receiving party or its Representatives which contain or are based upon the Evaluation Material furnished to such party hereunder. The term \u201cEvaluation Material\u201d does not include information that (i) is or becomes a matter of public knowledge through no fault of the receiving party; (ii) is or becomes available to the receiving party from a source other than the disclosing party or any of its Representatives, provided that such source was not known or reasonably should be known by the receiving party to be bound by a duty of confidentiality with respect to such information; (iii) is disclosed by the disclosing party to a third party without a duty of confidentiality; (iv) is independently developed by the receiving party without use of the Evaluation Material; or (v) is disclosed under operation of law.\n2. Non-Disclosure/Security/Use. Each party agrees that, without the prior written consent of the other party, neither it nor its Representatives will disclose to any other person any of the other party\u2019s Evaluation Material, the fact that discussions between the parties are taking place concerning the Transaction, or any terms or other facts relating to the Transaction and will use such Evaluation Materials only for the purpose of evaluating a Transaction. Each party agrees to use reasonable measures to protect against the loss, theft or unauthorized use of the Evaluation Materials.\n3. Personally Identifiable Information. The Evaluation Materials may include human resources data and/or other information that serves to identify one or more individuals (\u201cPII\u201d). The receiving party agrees to notify the disclosing party of any request received by the receiving party for access, correction, amendment or redaction of any PII. The disclosing party shall be responsible for compliance with all such requests. The receiving party also agrees to notify the disclosing party of any actual or suspected improper acquisition of PII of which the receiving party becomes aware.\n4. Residuals. Nothing in this Agreement shall be construed to limit either party\u2019s ability to use \u201cresiduals\u201d relating to the Evaluation Material of the other party. The term \u201cresiduals\u201d shall mean information included in the Evaluation Material in nontangible form (i.e., not written or other documentary form, including tape or disk), which is incidentally retained in the memories of employees of either party who have had access to the Evaluation Material, including ideas, know-how, or techniques contained therein, and where the source of the Evaluation Material has become remote (e.g., as a result of the passage of time or the employee\u2019s subsequent exposure to information of a similar nature from other sources) that the employee in good faith believes that it is not Evaluation Material. Neither party shall have any obligation to limit or restrict the assignment of its employees or to pay royalties to the other party in connection with any use of residuals.\n5. Independent Development. Nothing in this Agreement shall be construed to limit or preclude either party from developing, using, marketing, licensing, and/or selling any independently developed software, technology or other materials similar or related to the Evaluation Material without otherwise violating this Agreement.\n6. Required Disclosure. In the event that a party or its Representatives is required by Law, rule or stock exchange regulation to disclose any of the other party\u2019s Evaluation Material or the fact that discussions between the parties are taking place concerning the Transaction, the party required to make such disclosure shall, to the extent practicable, provide the other party with prior written notice of any such requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. In the event that such protective order, other remedy or waiver is not obtained, the party required to make the disclosure shall furnish only that portion of the Evaluation Material that such party determines, alter consulting with counsel, is required to disclose and shall exercise all reasonable efforts to preserve the confidentiality of the other party\u2019s Evaluation Material.\n7. Termination of Discussions. This Agreement and all rights and obligations hereunder shall terminate on the second anniversary of the Effective Date. Promptly upon notice from either party that it does not wish to proceed with the Transaction, each party shall return to the other party or destroy all copies of the Evaluation Material (including all documents based thereon) in its possession or in the possession of its Representatives, except that outside counsel to the receiving party may retain one copy of the Evaluation Material for archival purposes and solely to comply with applicable law, rule or regulation. Notwithstanding the return or destruction of the Evaluation Material, each party and its Representatives will continue to be bound by its obligations of confidentiality and other obligations hereunder for a period ending on the second anniversary of the Effective Date.\n8. Definitive Agreements. Unless and until a final definitive agreement, regarding the Transaction has been executed, no contract or agreement with respect to the Transaction shall be deemed to exist between the parties and neither party will be under any legal obligation whatsoever with respect to the Transaction by virtue of this Agreement except for the matters specifically agreed to herein. The term \u201cdefinitive agreement\u201d does not include a term sheet or any other preliminary written agreement. Each party reserves the right, in its sole discretion, to provide or not provide Evaluation Material under this Agreement, to reject any and all proposals with regard to the Transaction and to terminate discussions and negotiations at any time.\n9. Entire Agreement. This Agreement sets forth the entire agreement with respect to the Evaluation Material disclosed hereunder and supersedes all prior or contemporaneous agreements concerning such Evaluation Material, whether written or oral. All additions or modifications to this Agreement must be made in writing and must be signed by both parties.\n10. Miscellaneous. Each party agrees to be responsible for any breach of this Agreement by any of its Representatives. In case any provision of this Agreement shall be. invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of the Agreement shall not in any way be affected or impaired thereby,\n11. Governing Law, Jurisdiction. This Agreement and all matters arising out of or relating to this Agreement shall be governed by the procedural and substantive laws of the state of California and shall be deemed executed in Redwood City, California. Any legal action or proceeding relating to this Agreement shall be instituted exclusively in any state or federal court In San Francisco or San Mateo County, California. Company and Oracle irrevocably and unconditionally agree to submit to the exclusive jurisdiction of, and agree that the venue is proper in, the aforesaid courts in any such legal action or proceeding.\n12. Relief. Each party agrees that money damages will not be a sufficient remedy for any breach of this Agreement by it or its Representatives, and that the other party is entitled specific performance and injunctive relief as remedies for any such breach. Such remedies shall not be deemed to be exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity.\nORACLE CORPORATION HYPERION SOLUTIONS CORPORATION\nBy: /s/ Douglas Kehring By: /s/ Mark Cochran\nName: Douglas Kehring Name: Mark Cochran\nTitle: Authorized Signatory Title: VP & General Counsel\nEffective Date: Jan. 2, 2007 Address: 5450 Great America Pkway\n",
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"text": "CONFIDENTIALITY AND STANDSTILL AGREEMENT\n This Confidentiality and Standstill Agreement (the \"Agreement\") is entered into as of this 7th day of March, 2001, by and between Polycom, Inc. (\"Polycom\"), and PictureTel Corporation (\"PictureTel\"), a Delaware corporation.\nWITNESSETH:\n WHEREAS, Polycom and PictureTel may consider engaging in discussions with respect to a possible negotiated business combination involving PictureTel and Polycom or their respective subsidiaries (the \"Transaction\") and, prior to or during the course of any such discussions, PictureTel and Polycom each may have disclosed or, in the future, may disclose and make available to the other certain information concerning its business prospects, financial condition, operations, assets and liabilities;\n WHEREAS, all such information furnished to a party or its Representatives (as defined below) by or on behalf of the other party (irrespective of the form of communication and whether such information is so furnished before, on or after the date hereof), and all analyses, compilations, data, studies, notes, interpretations, memoranda or other documents prepared by a party or its Representatives containing or based in whole or in part on any such furnished information are collectively referred to herein as the \"Confidential Information;\" and\n WHEREAS, each of Polycom and PictureTel hereby agrees to receive such Confidential Information of the other and to disclose such Confidential Information to the other subject to the following terms and conditions.\n NOW, THEREFORE, for and in consideration of the mutual promises and obligations contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, hereby agree as follows:\n 1. Non-Disclosure of Confidential Information. (a) Each of PictureTel and Polycom shall (i) use the Confidential Information obtained from the other solely for the purpose of evaluating a possible Transaction and for no competitive or other purpose; (ii) not disclose the Confidential Information to any third party, except for disclosures to its directors, executive officers and representatives of its advisors (such as independent accountants, investment bankers, consultants and attorneys) acting on its behalf (collectively, its \"Representatives\") who in each case, in such party's reasonable judgment, need to know such information for the purpose of evaluating a possible Transaction and who are set forth on Annex A hereto, as it may be amended by the parties from time to time; (iii) inform its Representatives of the confidential nature of the Confidential Information and direct its Representatives to treat the Confidential Information confidentially and in accordance with the terms of this Agreement; (iv) take all additional reasonable precautions necessary to prevent the disclosure of the Confidential Information by its Representatives to any third party; and (v) be responsible for any breach of this Agreement by its Representatives.\n (b) If either party is required (by interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process) to disclose any Confidential Information, it is agreed that such party will provide the other party with prompt notice of such request so that such other party may seek an appropriate protective order and/or waive the notifying party's compliance with the provisions of this Agreement. If, in the absence of a protective order, either party is nonetheless compelled to disclose Confidential Information, such party may disclose, without liability hereunder, only that portion of the Confidential Information that such party is advised in writing by outside legal counsel is legally required to be disclosed; provided that such party gives to the other party written notice of the portion of the Confidential Information to be disclosed as far in advance of its disclosure as is practicable and, upon such other party's request, uses reasonable efforts to obtain assurances that confidential treatment will be accorded to such information.\n 2. Non-Disclosure of Negotiations or Agreements. Except as required by law, neither PictureTel, Polycom nor their respective Representatives shall disclose to any person (including, without limitation, any director, officer or employee that is not set forth on Annex A) the existence, status or terms of any discussions, negotiations or agreements between them concerning a possible Transaction, including without limitation any offer, letter of intent, proposal, price, value or valuation, or any similar terms, agreements or understandings between PictureTel and Polycom with respect thereto, or that such party has provided to or received from the other Confidential Information, without obtaining the prior written consent of the other party. The term \"person\" as used in this Agreement will be interpreted broadly to include the media and any corporation, company, group, partnership or other entity or individual.\n 3. Ownership of Confidential Information. Each party shall keep a reasonable record of the Confidential Information received by it and the location of such Confidential Information. All written Confidential Information delivered by one party hereto to the other party pursuant to the Agreement shall be and remain the property of the delivering party, and upon the written request of the delivering party, the receiving party shall (i) promptly return such Confidential Information and shall not retain any copies or other reproductions or extracts thereof, (ii) destroy or have destroyed all memoranda, notes, reports, analyses, compilations, studies, interpretations, or other documents derived from or containing Confidential Information, and all copies and other reproductions and extracts thereof, and (iii) provide a certificate to the delivering party certifying that the foregoing materials have, in fact, been destroyed or returned, signed by an authorized officer supervising such destruction or return. Notwithstanding the return or destruction of the Confidential Information, each party and its Representatives will continue to be bound by the confidentiality and other obligations hereunder. Each party will keep a record of each person, other than its Representatives, that is afforded access to the other party and/or the Confidential Information of the other party, and before such access is afforded, each party agrees to inform such person of the requirements of this Agreement. Each party will furnish to the other party, upon request, a written copy of such record of such persons, other than its Representatives, that have been afforded access to the other party and/or the Confidential Information.\n 4. Information Not Deemed Confidential Information. The term \"Confidential Information\" does not include information that (i) is or becomes generally available to the public, other than, as a result of a disclosure by the receiving party or its Representatives in violation of this Agreement; (ii) is or becomes available to the receiving party from a source other than the delivering party or its Representatives, provided that such source is not known by the receiving party to be bound by an obligation of confidentiality to such delivering party or its Representatives; or (iii) was within the receiving party's possession prior to being furnished to the receiving party by or on behalf of the delivering party, provided that the person providing such information to the receiving party was not bound by a confidentiality agreement with the delivering party or otherwise prohibited from transferring such information to the receiving party by any contractual, legal or fiduciary obligation.\n 5. No Warranty. Neither PictureTel, Polycom nor any of their respective officers, directors, employees, representatives or agents makes any representation or warranty, express or implied, as to the accuracy and completeness of any Confidential Information provided by it, and no liability shall result to the delivering party from its use, except as set forth in a definitive agreement for a Transaction. Only the representations and warranties that are made in a definitive agreement for a Transaction, when, as, and if it is executed, and subject to such limitations and restrictions as may be specified therein, shall have any legal effect.\n 6. No Agreement. Unless a definitive agreement regarding a Transaction between PictureTel and Polycom has been executed and delivered, neither Polycom, PictureTel nor any of their stockholders or affiliates will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this letter agreement or any other written or oral expression with respect to such Transaction except, in the case of this Agreement, matters specifically agreed to herein. Each party further acknowledges and agrees that each party reserves the right, in its sole discretion, to reject any and all proposals made by the other party or any of its Representatives with regard to a Transaction, to deny any request for Confidential Information (regardless of the reasonableness of such request) and to terminate discussions or negotiations with the other party at any time. Neither this paragraph nor any other provision in this Agreement can be waived or amended except by written consent of PictureTel and Polycom, which consent shall refer specifically to this paragraph (or such other provision) and explicitly make such waiver or amendment.\n 7. Non Solicitation. Unless a Transaction is consummated, each party agrees that, for a period of eighteen (18) months from the date hereof, it will not hire or directly or indirectly solicit employment of (other than by means of a general advertisement) any of the\n(i) employees of the other party with whom it has had contact during the process contemplated by this Agreement or (ii) management level personnel or officers of the other party. It is expressly understood that this Agreement is not intended to preclude the ability of the parties to compete with one another in the ordinary course and that each party will arrange with the Principal, President or Chief Financial Officer of the other party (and no other individuals) for appropriate contacts for due diligence purposes. Unless otherwise agreed by either party, all (i) communications regarding a possible Transaction, (ii) requests for additional information, (iii) requests for facility tours or management meetings, or (iv) discussions or questions regarding procedures will be submitted or directed only to the President or Chief Financial Officer of the other party. Without the prior written consent of the President of the other party, neither party nor its Representatives will initiate, or cause to be initiated, any communication with any officer, director or employee of the other party concerning the Confidential Information or any possible Transaction.\n 8. Non-Public Information. PictureTel has outstanding publicly-held securities and the Confidential Information contains material non-public information. Each of the parties acknowledges that it is (i) aware, and has advised or will advise its Representatives, that the United States securities laws prohibit any person in possession of material non-public information about a company from purchasing or selling securities of such company, and from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person may purchase or sell such securities and (ii) familiar with the Securities and Exchange Act of 1934, as amended, and the rules and regulations thereunder, and each party agrees that it will neither use nor permit any of its Representatives to use any Confidential Information in violation of such Act or rules or regulations, including, without limitation, Rules 10b-5 and 14e-3.\n 9. Standstill. Each of the parties agrees that, until the expiration of eighteen months from the date of this Agreement, without the prior written consent of the Board of Directors or General Partners of the other party, it and its affiliates will not (i) in any manner acquire, agree to acquire or make any proposal or offer or otherwise seek to acquire, directly or indirectly any securities (or rights in respect thereof), assets or property of the other party or any of its subsidiaries, whether such agreements or proposals or offers are made with or to the other party (or any controlling person or successor thereof) or any of its subsidiaries; (ii) enter into or agree, offer, seek or propose to enter into or otherwise be involved in or part of, directly or indirectly, any merger, acquisition transaction or other business combination involving the other party or any of its subsidiaries or any of their respective assets; (iii) make, or in any way participate in, directly or indirectly, any \"solicitation\" of \"proxies\" (as such terms are used in the proxy rules of the Securities Exchange Act of 1934, as amended (the \"Exchange Act\")) to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the other party or any of its subsidiaries; (iv) form, join or in any way participate in a \"group\" (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any voting securities of the other party or any of its subsidiaries; (v) otherwise act, alone or in concert with others, to seek or propose to control or influence the management, Board of Directors or policies of the other party; (vi) directly or indirectly enter into any discussions, negotiations, arrangements or understandings with any other person with respect to any of the foregoing activities or propose any of such activities to any other person; or (vii) publicly disclose any intention, plan or arrangement inconsistent with the foregoing; (viii) directly or indirectly advise, encourage, provide assistance (including debt or equity financial assistance) to or hold discussions with or invest in any other person in connection with any of the foregoing. Each party also agrees that, during such eighteen month period, neither it nor any of its affiliates will: (i) request the other party or its advisors, directly or indirectly, to (1) amend or waive any provision of this paragraph (including this sentence) or (2) otherwise consent to any action inconsistent with any provision of this paragraph (including this sentence); or (ii) take any initiative with respect to the other party or any of its subsidiaries that could reasonably be expected to require the other party to make a public announcement regarding (1) such initiative, (2) any of the activities referred to in this paragraph, (3) the possibility of a Transaction or any similar transaction or (4) the possibility of such party or any other person acquiring control of the other party, whether by means of a business combination or otherwise. Notwithstanding any other provision hereof, this Section 9 shall not apply to a party in the event of a bona fide publicly announced proposal, offer or agreement by a third party not acting in concert with such party (i) to acquire more than 51% of any class of stock (or rights in respect thereof) of the other party or (ii) to acquire the other party, or all or substantially all of its assets, by means of a merger, consolidation, asset purchase or other similar transaction. Additionally, the Principal or President of a party may contact the Principal or President of the other party for the purpose of expressing continuing or renewed interest in a Transaction, provided that, unless invited to do so by the President of the other party, no offer or proposal shall be made that would require public disclosure or formal consideration by such other party or its Board of Directors.\n 10. No Waiver. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof, or the exercise of any right, power or privilege hereunder. Any waiver of a breach hereof shall be in writing and shall not operate or be construed as a waiver of any other or subsequent breach.\n 11. Remedies. Each party agrees to indemnify the other party from any damages, loss, cost or liability (including, without limitation, legal fees and the cost of enforcing this Agreement) arising out of or resulting from any unauthorized use or disclosures of any Confidential Information by the other party or its Representatives. It is understood and agreed that money damages would not be a sufficient remedy for any breach of this Agreement by either party and that the non-breaching party shall be entitled to seek equitable relief, including specific performance and injunction, as a remedy for any such breach. Each party agrees to waive, and to use its best efforts to cause its directors, officers, employees or agents to waive any requirement for the securing or posting of any bond in connection with such remedy. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement by either party, but shall be in addition to all other remedies available at law or in equity to the non-breaching party.\n 12. Governing Law. This Agreement is for the benefit of the parties and their respective directors, officers, employees, representatives and agents and their respective successors and assigns and shall be governed by and construed in accordance with the internal substantive laws and not the choice of law rules of the Commonwealth of Massachusetts.\n 13. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all such counterparts together shall constitute but one and the same Agreement.\n 14. Severability. 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"text": "Exhibit (d)(5)\nPACKETEER, INC.\nTWO WAY NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nTHIS Agreement is made and entered into by and between PACKETEER, INC. (\u201cPacketeer\u201d) and Blue Coat Systems, Inc., a Delaware corporation, having offices at 420 North Mary Avenue, Sunnyvale, CA 94085, to assure the protection and preservation of the confidential and/or proprietary nature of each party\u2019s confidential information. Each party will disclose such information solely for the purpose of evaluating the possibility of entering into a business relationship between the parties hereto (the \u201cPurpose\u201d). In reliance upon and in consideration of the following undertakings, the parties agree as follows:\n1. Definition. Subject to the limitations set forth in Section 2, all information (including but not limited to ideas, techniques, works of authorship, models, inventions, know-how, processes, equipment, algorithms, software source documents and formulae related to the current, future, and proposed products and services of each of the parties and information concerning research, development, financial information, procurement requirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising, and marketing plans), disclosed by one party (the \u201cDiscloser\u201d) to the other party (the \u201cRecipient\u201d) which is labeled or marked \u201cConfidential\u201d or with some other similar proprietary legend, or which, in the context of the disclosure, the Recipient has reason to believe is confidential, shall be deemed to be \u201cConfidential Information.\u201d If Confidential Information is disclosed in oral form, the Discloser shall identify it as confidential at the time of disclosure and thereafter summarize it in writing and transmit such summary to the Recipient within thirty (30) days of the oral disclosure.\n2. Exclusions. \u201cConfidential Information\u201d excludes information which: (a) is now or hereafter becomes generally known or available, through no act or failure to act on Recipient\u2019s part; (b) Recipient independently knows at the time of receiving such information; (c) a third party hereafter furnishes to Recipient without restriction on disclosure and without breach of any confidentiality obligations; (d) Recipient has independently developed without using any Confidential Information or breaching this Agreement; or (e) Discloser gives written permission to Recipient to disclose.\n3. Restrictions/Obligations. Recipient shall: (a) only disclose the Confidential Information to those employees and contractors with a need to know; provided that Recipient binds those employees and contractors to terms at least as restrictive as those stated in this Agreement (or, with respect to professional advisors, advises them of its obligations with respect to the Confidential Information); (b) not disclose any Confidential Information to any third party, without Discloser\u2019s prior written consent; (c) use such Confidential Information only to the extent required to accomplish the Purpose; (d) not reproduce Confidential Information in any form except as required to accomplish the Purpose; (e) not reverse engineer, decompile, or disassemble any software disclosed by the Discloser; (f) not directly or indirectly export or transmit any Confidential Information to any country to which such export or transmission is restricted by regulation or statute; and (g) promptly provide the Discloser with notice of any actual or threatened breach of the terms of this Agreement. However, Recipient may disclose Confidential Information in accordance with a judicial or other governmental order provided that Recipient shall give Discloser written notice prior to such disclosure. Subject to Recipient\u2019s obligations of non-disclosure, Recipient shall be free to use the residuals resulting from the use or access to the Confidential Information of Discloser. The term \u201cresiduals\u201d means information in intangible form which is retained in the unaided memory of persons who have had access to the Confidential Information, without reference to such information in tangible or fixed form. Solely with respect to non-technical Confidential Information, Recipient\u2019s obligations under this Section 3 shall expire one (1) year from the date of disclosure of such non-technical Confidential Information.\n4. Ownership and Return of Confidential Information. All Confidential Information (including all copies thereof) shall remain the property of Discloser. All copies shall bear all proprietary markings contained on or in the originals. Upon the request of Discloser, Recipient shall, at Recipient\u2019s option, either (a) return such materials to Discloser, or (b) certify the destruction thereof.\n5. Rights. No rights or licenses to trademarks, inventions, copyrights, patents or any other intellectual property rights are implied or granted under this Agreement. Subject to the obligations of this Agreement, neither party will be precluded from independently developing technology or pursuing business opportunities similar to those covered by the Confidential Information disclosed hereunder. Each party retains sole discretion to assign or reassign the job responsibilities of its employees. Each party acknowledges that the other party may currently or in the future be developing information internally, or receiving information from third parties, that is similar to the Confidential Information. Nothing in this Agreement will prohibit Recipient from developing or having developed for it products, concepts, systems or techniques that are similar to those contemplated by or embodied in the Confidential Information, provided the Recipient does not violate its obligations under this Agreement.\n6. Term and Termination. This Agreement shall remain in full force and effect for a period of three (3) years unless terminated sooner as set forth below. This Agreement may be terminated by either party upon thirty (30) days written notice, provided however, that Paragraphs 3, 4, 5, and 7 shall survive any termination of this Agreement.\n7. Miscellaneous. This Agreement shall be governed by the laws of the State of California. This Agreement contains the final, complete and exclusive agreement of the parties relative to the subject matter hereof and supersedes all prior and contemporaneous understandings and agreements relating to its subject matter and may not be changed, modified, amended or supplemented except by a written instrument signed by both parties. If any provision of this Agreement is found by a proper authority to be unenforceable, that provision shall be severed and the remainder of this Agreement will continue in full force and effect. Recipient hereby acknowledges and agrees that no remedy at law will afford Discloser adequate protection against, or appropriate compensation for, breach of Recipient\u2019s obligations under this Agreement. Accordingly, Recipient agrees that Discloser shall be entitled to specific performance of Recipient\u2019s obligations, as well as such further equitable relief as may be granted by a court of competent jurisdiction. PACKETEER, INC. OTHER PARTY:\nBy: /s/ Dave C\u00f4t\u00e9 /s/ Brian NeSmith\nBy: Dave C\u00f4t\u00e9 By: Brian NeSmith\nTitle: President & CEO Title: President & CEO\nDate: October 20, 2007 Date: October 28, 2007\n",
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"text": "Exhibit (d)(6)\nNON-DISCLOSURE AGREEMENT\nThis non-disclosure agreement (\u201cAgreement\u201d) is made on this the Twenty Second day of November, 2005 between\nXIUS, a Division of Megasoft Limited a company incorporated in India under the provisions of the Companies Act, 1956 and having its Principal Place of Business at Reliance Classic, 3rd Floor, Road # 1, Banjara Hills, Hyderabad, A.P. 500 034, India (hereinafter referred to as \u201cXIUS\u201d which expression shall mean and include unless repugnant to the context, its successors and permitted assigns) and Boston Communications Group, Inc. a company incorporated in Massachusetts and having its registered office at 55 Middlesex Turnpike, Bedford, MA 01730 (hereinafter referred to as \u201cBCGI\u201d which expression shall mean and include unless repugnant to the context, its successors and permitted assigns).\nWHEREAS:\nXIUS, a division of Megasoft \u2212 specializes in delivering cutting-edge Telecom Applications, Technology Platforms and services that enable Mobile Operators to Authenticate, Authorize and Charge subscribers in Real Time; BCGI is in the business of offering products and services in the field of wireless telecommunications\nBCGI and XIUS are in the process of working out and negotiating a possible business relationship.\nDuring the course of the above negotiations, XIUS and BCGI may disclose to each other certain information which may be proprietary and/or of confidential nature as more particularly described below.\nNOW THEREFORE in consideration of the mutual protection of information herein by the parties hereto and such additional promises and understandings as are hereinafter set forth, the parties agree as follows:\n1. For purposes of this Agreement, \u201cConfidential Information\u201d means, with respect to either party, any and all information in written, representational, electronic, verbal or other form relating directly or indirectly to the present or potential business, operation or financial condition of or relating to the disclosing party (including, but not limited to, information identified as being proprietary and/or confidential or pertaining to, pricing, marketing plans or strategy, volumes, services rendered, customers and suppliers lists, financial or technical or service matters or data, employee/agent/ consultant/officer/director related personal or sensitive data and any information which might reasonably be presumed to be proprietary or confidential in nature) excluding any such information which (i) is known to the public (through no act or omission of the receiving party in violation of this Agreement); (ii) is lawfully acquired by the receiving party from an independent source having no obligation to maintain the confidentiality of such information; (iii) was known to the receiving party prior to its disclosure under this Agreement; (iv) was or is independently developed by the receiving party without breach of this Agreement; or (v) is required to be disclosed by governmental or judicial order, in which case the party so required shall give the other party prompt written notice, where possible, and use reasonable efforts to ensure that such disclosure is accorded confidential treatment and also to enable such other party to seek a protective order or other appropriate remedy at such other party\u2019s sole costs.\n2. This Agreement does not obligate either party to disclose any particular proprietary information; to purchase, sell, license, transfer, or otherwise dispose of any technology, services, or products; or to enter into any other form of business, contract or arrangement. Furthermore, nothing contained hereunder shall be construed as creating, conveying, transferring, granting or conferring by one party on the other party any rights, license or authority in or to the information provided. The parties shall use the Confidential Information only for the limited purpose of the parties discussing the possibility of offering the services jointly to the carriers/operators in the American region and for no other purpose whatsoever.\n3. Each party agrees and undertakes that it shall not, without first obtaining the written consent of the other, disclose or make available to any person, reproduce or transmit in arty manner, or use (directly or indirectly) for its own benefit or the benefit of others, any Confidential Information save and except both parties may disclose any Confidential Information to their Affiliates, directors, officers, employees or advisors of their own or of Affiliates on a \u201cneed to know\u201d basis to enable them to evaluate such Confidential Information in connection with the negotiation of the possible business relationship; provided that such persons have been informed of, and agree to be bound by obligations which are at least as strict as the recipient\u2019s obligations hereunder. For the purpose of this Agreement, Affiliates shall mean, with respect to any party, any other person directly or indirectly Controlling, Controlled by, or under direct or indirect common Control with, such party. \u201cControl\u201d, \u201cControlled\u201d or \u201cControlling\u201d shall mean, with respect to any person, any circumstance in which such person is controlled by another person by virtue of the latter person controlling the composition of the Board of Directors or owning the largest or controlling percentage of the voting securities of such person or by way of contractual relationship or otherwise.\n4. The receiving party shall use the same degree of care and protection to protect the Confidential Information received by it from the disclosing party as it uses to protect its own Confidential Information of a like nature, and in no event such degree of care and protection shall be of less than a reasonable degree of care.\n5. Each party warrants that it has the right to make the disclosures under this Agreement. No other warranties are made by either party under this Agreement and all information exchanged under this Agreement is provided \u201cas is\u201d. The disclosing party shall not be in any way responsible for any decisions or commitments made by receiving party in relying on the disclosing party\u2019s Confidential Information.\n6. The parties agree to indemnify and keep indemnified each other against all loss and damage, which the disclosing party may suffer as a result of any breach of this Agreement by the receiving party; provided always that the disclosing party shall forthwith give written notice to the receiving party of the above loss and damage and satisfactory documentary evidence of such actual loss and damage.\n7. The parties agree that upon termination/expiry of this Agreement or at any time during its currency, at the request of the disclosing party, the receiving party shall promptly deliver to the disclosing party the Confidential Information and copies thereof in its possession or under its direct or indirect control, and shall destroy all memoranda, notes and other writings prepared by the receiving party or its Affiliates or directors, officers, employees or advisors based on the Confidential Information and promptly certify such destruction.\n8. Both parties acknowledge that the Confidential Information coming to the knowledge of the other may relate to and/or have implications regarding the future strategies, plans, business activities, methods, processes and or information of the parties, which afford them certain competitive and strategic advantage. Accordingly neither party shall use the Confidential Information in a manner that will jeopardise or adversely affect in any manner such future strategies, plans, business activities, methods, processes, information, and/or competitive and strategic advantage of the disclosing party.\n9. The parties hereto acknowledge and agree that in the event of a breach or threatened breach by the other of the provisions of this Agreement, the party not in breach will have no adequate remedy in money or damages and accordingly the party not in breach shall be entitled to injunctive relief against such breach or threatened breach by the party in breach.\n10. No failure or delay by either party in exercising or enforcing any right, remedy or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise or enforcement of any right, remedy or power preclude any further exercise or enforcement thereof or the exercise of enforcement of any other right, remedy or power.\n11. If any dispute arises between the parties hereto during the subsistence or thereafter, in connection with or arising out of this Agreement, the dispute shall be referred to arbitration under the Indian Arbitration and Conciliation Act, 1995 by a panel of three arbitrators. Each party will appoint one arbitrator and the two arbitrators so appointed will appoint the third or the presiding arbitrator. Arbitration shall be held in Hyderabad, India. The proceedings of arbitration shall be in the English language. The arbitrator\u2019s award shall be final and binding on the parties.\n12. This Agreement will be governed exclusively by the laws of India and subject to Clause 11, jurisdiction shall be vested exclusively in the courts at Hyderabad.\n13. This Agreement shall not be amended, assigned or transferred by either party without the written consent of the other party.\n14. This Agreement shall remain valid for a period of three (3) years from the date of execution of this Agreement which term may be extended by mutual consent in writing of both the parties. This Agreement may be terminated by either party by giving thirty\n(30) days notice in writing to the other party without assigning any reason whatsoever. The obligations of each party hereunder will continue and be binding irrespective of whether the discussion between the parties materialise into a specific understanding/business relationship or not and for a further period of three (3) years after termination/expiry of the Agreement. In any event, however, the obligations of each Party to maintain the confidentiality of the Confidential Information it has received under this agreement shall continue indefinitely as to Confidential Information constituting a trade secret under applicable law.\n15. Each party will bear its own costs in connection with the activities undertaken in connection with this Agreement.\n16. Nothing in this Agreement is intended to confer any rights/remedies under or by reason of this Agreement on any third party.\n17. This Agreement supersedes all prior discussions and writings with respect to the Confidential Information and constitutes the entire Agreement between the parties with respect to the subject matter hereof. If any term or provision of this Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, such illegal, unenforceable, or invalid provisions or part(s) thereof shall be stricken from this Agreement and such provision shall not affect the legality, enforceability, or validity of the remainder of this Agreement.\nIN WITNESS WHEREOF the parties hereto have duly executed this Agreement as of the date and year written above.\nXIUS, a Division of Megasoft Limited Boston Communications Group, Inc.\n/s/ Upendra Bhatt /s/ Erain Galiogla\nName: Upendra Bhatt Name: Erain Galiogla\nDesignation: Vice President Designation: Vice President and General Manager\n",
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"text": "Exhibit (d)(2)\nExecution Copy\nJune 20, 2016\nRandstad Holding NV\nDiemermere 25, NL-1112 TC Diemen\nP.O. Box 12600, NL-1100 AP Amsterdam\nAttention: Han Kolff\n Managing Director Group Control, Strategy and M&A\nConfidentiality Agreement\nLadies and Gentlemen:\nIn connection with your consideration of a possible transaction involving Monster Worldwide, Inc. (the \u201cCompany\u201d) (a \u201cTransaction\u201d), you have requested information. In consideration of, and as a condition to, your being furnished with such information and any other Evaluation Material (as defined below), the Company hereby requests your agreement as set forth herein.\nAs used in this letter agreement (this \u201cAgreement\u201d), the term \u201cEvaluation Material\u201d means all information regarding the Company, its affiliates and its and their respective businesses, technology, products, prospects and plans, a Transaction (including the fact that the Company or its affiliates may pursue a Transaction with you and the existence and terms of this Agreement) and other information furnished to you or your Representatives (as defined below) by the Company or any of its Representatives in connection with the Transaction, irrespective of form or medium of communication, whether prepared by the Company, its Representatives or otherwise and whether furnished on or after the date of this Agreement, together with all tangible and intangible embodiments and copies thereof and together with any and all analyses, compilations, summaries, forecasts, studies or other materials prepared by you or your Representatives that contain, are based on or otherwise incorporate, in whole or part, such information. The term \u201cRepresentatives\u201d means, as to any person, such person\u2019s affiliates (only to the extent that they receive Evaluation Material) and its and their respective directors, officers, employees, managing members, general partners, advisors, agents or representatives (including legal advisors) and, subject to paragraph 5 below, financing sources, but only to the extent that such advisors, agents, representatives or financing sources receive Evaluation Material.\nUse and Confidentiality of Evaluation Materials\n1. You and your Representatives will (i) use the Evaluation Material solely for the purpose of evaluating a possible Transaction with the Company involving you and (ii) keep the Evaluation Material strictly confidential and (except as required by applicable law, regulation or legal process, and only after compliance with paragraph 6 below under the heading \u201cCompelled Disclosure\u201d) will not, without the Company\u2019s prior written consent, disclose any Evaluation Material to any person, except that the Evaluation Material (or portions thereof) may be disclosed to those of your Representatives who need to know such information solely for the purpose of evaluating a possible Transaction (it being understood that prior to such disclosure your Representatives will be informed of the confidential nature of the Evaluation Material and directed that such information is to be kept confidential and not used for any purpose other than the evaluation of the possible Transaction). You will make reasonable and appropriate efforts to safeguard Evaluation Material from disclosure by you or your Representatives to anyone other than as permitted hereby by using, in all material respects, the same degree of care that you use to protect your own confidential, proprietary information. You agree to be responsible for any failure by your Representatives to comply with this Agreement (including, without limitation, any actions or inactions by your Representatives that would constitute a breach if such Representatives were original signatories hereto (other than with respect to paragraph 7 below under the heading \u201cNon-Solicitation and Non-Hire of Employees\u201d)).\n2. The term \u201cEvaluation Material\u201d does not include any information which (i) is, as of the applicable time, generally known by the public (other than as a result of its disclosure directly or indirectly by you or your Representatives), (ii) was or becomes available to you on a non-confidential basis from a person (other than the Company or its Representatives) who, to your knowledge, is not otherwise bound by a confidentiality agreement with the Company or its Representatives or prohibited from transmitting the information to you by law, contractual obligation, fiduciary duty or otherwise or (iii) was or is developed or discovered independently by you without reference to the Evaluation Material. As used in this Agreement, the term \u201cperson\u201d will be broadly interpreted to include, without limitation, any corporation, company, joint venture, partnership, association or individual. You agree that the Evaluation Material owned by the Company or its affiliates in the first instance is and will remain the property of the Company or its affiliates, as applicable, and that neither the Company nor any of its affiliates or Representatives has granted you any license, copyright, or similar right with respect to any of the Evaluation Material or any other information provided to you by or on behalf of the Company.\nNon-Disclosure of Transaction Discussions\n3. Unless otherwise required by applicable law or legal process or stock exchange rule or regulation, but only after compliance with paragraph 6 below under the heading \u201cCompelled Disclosure,\u201d neither the Company nor its Representatives will, without your prior written consent, disclose to any other person that investigations, discussions or negotiations have taken or may take place concerning a possible Transaction, or any of the terms, conditions or other facts with respect to any such possible Transaction, including, without limitation, the status thereof, the existence and terms of this Agreement and the fact that the Evaluation Material has been made available to you. Without limiting the foregoing, the Company hereby expressly confirms and agrees that, to its knowledge, no public disclosure with respect to any discussions or negotiations concerning a possible Transaction is required by the Company at the time of the execution of this Agreement by reason of securities laws or similar requirements related to general disclosure.\n4. Unless otherwise required by applicable law or legal process or stock exchange rule or regulation, but only after compliance with paragraph 6 below under the heading \u201cCompelled Disclosure,\u201d neither you nor your Representatives will, without the Company\u2019s prior written consent, disclose to any other person either the fact that the Company or its affiliates may pursue a Transaction with you or anyone else, that investigations, discussions or negotiations have taken or may take place concerning a possible Transaction, or any of the terms, conditions or other facts with respect to any such possible Transaction, including, without limitation, the status thereof, the existence and terms of this Agreement and the fact that the Evaluation Material has been made available to you. Without limiting the foregoing, you hereby expressly confirm and agree that, to your knowledge, no public disclosure with respect to any discussions or negotiations concerning a possible Transaction is required by you at the time of the execution of this Agreement by reason of securities laws or similar requirements related to general disclosure.\nFinancing Sources\n5. Without limiting anything in this Agreement, your \u201cRepresentatives\u201d will include your potential debt financing sources in connection with a possible Transaction; provided, however, that, prior to providing Evaluation Material to any potential debt financing source (subject to and in accordance with paragraph 1 above), you will notify the Company of the identity of such debt financing source. Without the prior written consent of the Company, you will not, directly or indirectly, engage in discussions regarding equity financing of a possible Transaction with any person, or otherwise engage in any discussions regarding a possible Transaction or enter into in any agreement, arrangement or understanding (or any discussions which might lead to an agreement, arrangement or understanding) with any person regarding participation in a possible Transaction as a principal, co-investor or source of equity financing. For the avoidance of doubt, except as agreed in writing by the Company, the term \u201cRepresentatives\u201d as applied to you will not include any such potential principal, co-investor or source of equity financing. You hereby represent and warrant that neither you nor any of your Representatives is party to any agreement, arrangement or understanding (whether written or oral) that would restrict the ability of any other person to provide financing (debt, equity or otherwise) to any other person for the Transaction or any similar transaction, and you hereby agree that neither you nor any of your Representatives will directly or indirectly restrict the ability of any other person to provide any such financing.\nCompelled Disclosure\n6. If you or your Representatives are requested or required to disclose any Evaluation Material or any of the information referred to in paragraph 4 above under the heading \u201cNon-Disclosure of Transaction Discussions\u201d (or if the Company or its Representatives is requested or required to disclose that you are in discussions or negotiations with the Company concerning a possible Transaction) pursuant to any law or regulation or stock exchange rule or regulation or the terms of a valid and effective subpoena or order issued by a court of competent jurisdiction or a federal, state or local governmental or regulatory body or pursuant to a civil investigative demand or similar judicial process or otherwise, the applicable party will, to the extent not prohibited by applicable law or regulation, (i) promptly notify the other party of the existence, terms and circumstances surrounding such request or requirement, (ii) consult with the other party on the advisability of taking legally available steps to resist or narrow such request or requirement, (iii) if disclosure of any such information is required, disclose only that portion of the information which it is legally required to disclose and give the other party notice of the information to be so disclosed as far in advance of disclosure as may be reasonably practicable and (iv) except in the case of public disclosure with respect to any discussions or negotiations concerning a possible Transaction which is required by reason of securities laws or similar requirements related to general disclosure, if so requested by the other party, exercise its commercially reasonable efforts to obtain a protective order or other reliable assurance that confidential treatment will be accorded to such information (and, in any event, if applicable, such party will reasonably cooperate with the other party to obtain such a protective order or other assurance), such efforts to obtain a protective order or confidential treatment to be at the other (requesting) party\u2019s expense.\nNon-Solicitation and Non-Hire of Employees\n7. Until the date that is eighteen (18) months from the date of this Agreement, you will not, without the Company\u2019s prior written consent, directly or indirectly solicit for purposes of employment, offer to hire or engage as a consultant, entice away or offer to enter into any contract with, or hire or engage as a consultant or enter into any contract with, during the period of employment or the 90-day period following such employment, any senior or key employee of the Company or its controlled affiliates who becomes known to you in connection with your evaluation of the Transaction; provided, however, that this paragraph will not prohibit you or any of your Representatives from engaging in any general advertising or general solicitation not targeted to any employees or former employees of the Company or its controlled affiliates, or from hiring any employees or former employees of the Company who respond to such solicitation. Finally, this paragraph 7 will not apply to any solicitation in the ordinary course of business initiated by one of your employees who has no knowledge of this Agreement or a potential Transaction, so long as such individual is acting without information or encouragement from any of your Representatives who does possess such knowledge.\nStandstill\n8. You represent and warrant to the Company that, as of the date hereof, you do not beneficially own any securities of the Company or any securities or contract rights the terms or value of which are dependent on securities of the Company. For a period of fifteen\n(15) months from the date of this Agreement (the \u201cAssessment Period\u201d), you and your Representatives (acting on behalf of you or your subsidiaries) will not, directly or indirectly, and you will cause any person or entity controlled by you or acting in concert with you not to, without the prior written consent of the Board of Directors of the Company, (i) in any manner acquire, agree to acquire or make any proposal to acquire, directly or indirectly, any securities or property of the Company or any of its subsidiaries, or any securities or contract rights the terms or value of which are dependent on securities of the Company, (ii) propose to enter into, directly or indirectly, any merger, consolidation, tender offer, exchange offer, recapitalization, restructuring, liquidation, business combination, partnership, joint venture or other similar transaction involving the Company or any of its subsidiaries or any of the assets of the Company constituting a material portion of the consolidated assets of the Company and its subsidiaries, (iii) make, or in any way participate in any \u201csolicitation\u201d of \u201cproxies\u201d (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence any person (including, for the avoidance of doubt, indirectly by means of communication with the press or media) with respect to the voting of any voting securities of the Company, (iv) form, join or in any way participate in a \u201cgroup\u201d (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company, (v) negotiate, have any discussions or enter into any arrangements, understandings or agreements (whether written or oral) with, or advise, finance, assist or encourage, any other persons in connection with any of the foregoing, or, make any investment in any other person that, to your knowledge at the time of your investment (after reasonable inquiry), intended to or is considering and actually does engage, or offers or proposes to engage, in any of the foregoing (it being understood that, without limiting the foregoing, you will not be permitted to act as a joint bidder or co-bidder with any other person with respect to the Company, except as provided in paragraph 17 below), (vi) otherwise act, alone or in concert with others, to seek to control or influence (including, for the avoidance of doubt, indirectly by means of communication with the press or media) the management, Board of Directors or policies of the Company or otherwise seek the removal of any director or the election or appointment of any director, (vii) disclose, or direct any third-party to disclose, any intention, plan or arrangement inconsistent with the foregoing or (viii) advise, assist or encourage any other persons in connection with any of the foregoing. Unless and until you have received the prior written invitation or approval of the Company to do so, you also agree during such period not to (i) request the Company (or Company Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence), (ii) take any action which might require the Company or any of its affiliates to make a public announcement regarding this Agreement or the possibility of a merger, consolidation, business combination or other similar transaction, including, without limitation, a Transaction or (iii) communicate with the Company\u2019s stockholders regarding the subject matter of this Agreement. Notwithstanding the foregoing provisions of this paragraph 8, you will be permitted to submit to the Company one or more offers, proposals or indications of interest related to a transaction between the parties that would otherwise violate the foregoing provisions of this paragraph 8, provided that each such submission is made to the Board of Directors of the Company or the chairperson of the Board of Directors of the Company, in each case, on a confidential basis and in a manner that would not reasonably be expected to require the Company to make public disclosure of such offer, proposal or indication of interest.\nProhibition on Trading\n9. In addition, each party hereby acknowledges that it is aware, and that it will advise its respective Representatives who receive any Evaluation Material or are aware of the discussions or negotiations regarding a possible Transaction, that the United States and Dutch securities laws prohibit any person who has received from an issuer material, non-public information from purchasing or selling securities of such issuer (and options, warrants and rights relating thereto) or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person (including, without limitation, any of either party\u2019s Representatives) is likely to purchase or sell such securities.\nReturn or Destruction of Documents\n10. If you determine that you do not wish to proceed with a Transaction or your evaluation hereof, you will promptly advise the Company of that decision. In that case, or if at any time the Company so requests in writing, you will promptly (and in any event within 10 days) either, at your option, (i) deliver to the Company all of the Evaluation Material (including all copies, reproductions, summaries, analyses or extracts thereof or based thereon) in your possession or in the possession of any of your Representatives or\n(ii) destroy or cause to be destroyed all such Evaluation Material in your possession or in the possession of any of your Representatives (such destruction to be acknowledged by you in writing to the Company). Notwithstanding such delivery or destruction of the Evaluation Material, you agree that you and your Representatives will continue to be bound by your obligations under this Agreement. Notwithstanding the foregoing, (i) you and your Representatives will not be required to delete, erase or destroy any Evaluation Material contained in an archived computer backup system stored as a result of automated back-up procedures (it being agreed that you and your Representatives will not access such archived computer files containing any such Evaluation Material after such delivery or destruction is otherwise required) and (ii) you and/or your Representatives may retain one copy of the Evaluation Material (and may only access any such Evaluation Material) to the extent and for so long as such retention and access by you or such Representative, as applicable, is required by law or regulation; provided, however, that in the case of each of clauses (i) and (ii) of this sentence, notwithstanding any other provision of this Agreement, you and your applicable Representatives will continue to be bound by the terms of this Agreement as if it were in full force and effect with respect to any such Evaluation Material for so long as you or your applicable Representatives retain any such Evaluation Material.\nNo Unauthorized Contact\n11. Unless otherwise agreed in writing by the Company, all (i) communications regarding any possible Transaction, (ii) requests for additional information or Evaluation Material, (iii) requests for facility tours or management meetings and (iv) discussions or questions regarding procedures relating to a possible Transaction, will be submitted or directed to only the Chief Executive Officer of the Company, the Board of Directors of the Company, the chairperson of the Board of Directors of the Company or those officers of the Company designated to you in writing by the Company. You further agree that, except as permitted by this Agreement, without the prior written consent of the Company, you and your Representatives will not contact any other officers, directors, employees, stockholders, customers or suppliers of the Company or its subsidiaries in connection with a possible Transaction, and, without limiting anything in this Agreement, will not otherwise disclose to any such parties the fact that the Company or its affiliates may pursue a Transaction with you or other parties or that discussions or negotiations have taken or may take place concerning a possible Transaction.\nMaintaining Privileges\n12. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, you understand and agree that you and the Company have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of each party to this Agreement that the sharing of such material is not intended to, and will not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided to you that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege will remain entitled to such protection under these privileges, this Agreement and the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.\nExport Restrictions\n13. You acknowledge that certain of the Evaluation Material may be subject to export restrictions under U.S. law. You will not, and will cause your Representatives not to, without the express written permission of the Company, transmit, directly or indirectly, any Evaluation Material that is subject to such export restrictions to any person or country outside the United States or otherwise in violation of applicable law; provided, however, that you will not be deemed to be in violation of this provision in connection with any Evaluation Material provided directly by the Company or its Representatives to your employees who have a Randstad email address other than one ending in \u201crandstadusa.com\u201d. The Company will advise you in writing as to the applicability of this Section 13 to any particular piece of Evaluation Material at or before the time such material is provided to you.\nNo Obligation, Representation or Warranty\n14. This Agreement defines the duties and obligations of you and your Representatives with respect to the Evaluation Material to the extent it may be disclosed or made available but does not constitute or create any obligation of the Company or its Representatives to provide any Evaluation Material or other information to you. Under no circumstances will the Company or any of its Representatives be obligated to disclose or make available any information, including, without limitation, any Evaluation Material, which the Company in its sole and absolute discretion determines not to disclose. Except for any express representations and warranties set forth in a definitive agreement providing for a Transaction and subject to the terms, conditions and limitations of any such agreement, you understand and acknowledge that none of the Company or any of their respective Representatives is making any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material or any other information provided to you or your Representatives by or on behalf of the Company, and none of the Company or any of their respective Representatives will have any liability to you or any other person (including, without limitation, any of your Representatives) resulting from your use of the Evaluation Material or any errors therein or omissions therefrom, except as may otherwise be set forth in any definitive agreement providing for a Transaction and subject to the terms, conditions and limitations of any such agreement.\n15. You acknowledge and agree that neither you nor the Company, nor any of either party\u2019s Representatives, will be under any legal obligation of any kind whatsoever with respect to any Transaction by virtue of (i) this Agreement or (ii) any written or oral expression or communication with respect to any Transaction by any of the Company\u2019s Representatives except, in the case of this Agreement, for the matters specifically agreed to herein. You further acknowledge and agree that (a) the Company will be free to conduct the process for a Transaction as the Company in its sole discretion will determine (including, without limitation, negotiating with any other person and entering into a definitive agreement without prior notice to you or any other person), (b) none of you, the Company, or any of your or their respective Representatives will have any legal, fiduciary or other duty to the other party or its Representatives with respect to any such process, and none of you, the Company, or each party\u2019s respective Representatives are relying on any express or implied representation concerning the manner in which such process will proceed, (c) any of the procedures relating to a Transaction may be changed at any time without notice to you or any other person, (d) each party will have the right to reject or accept any potential proposal, offer or participant therein, for any or no reason whatsoever, in its sole discretion and (e) neither party will have any claim whatsoever against the other or any of their respective Representatives arising out of or relating to a Transaction, except as may otherwise be set forth in any definitive agreement providing for a Transaction and subject to the terms, conditions and limitations of any such agreement.\nTerm\n16. Except as otherwise provided herein, the obligations of the parties under this Agreement will terminate eighteen (18) months from the date hereof, provided that such termination will not relieve any party from its responsibilities in respect of any breach of this Agreement prior to such termination.\nActing as Principal\n17. You represent and warrant that you (i) are acting as a principal in any possible Transaction, (ii) are not represented by any broker or similar party other than Wells Fargo Securities, LLC, which company is acting as your financial advisor in connection with a possible Transaction, (iii) are not acting as a broker for or Representative of any other person in connection with the Transaction, and (iv) are considering the Transaction only for your own account. Except with the prior written consent of the Company, you agree that (a) you will not act as a joint bidder or co-bidder with any other person with respect to the Transaction, and (b) neither you nor any of your Representatives (acting on behalf of you or your subsidiaries) will enter into any discussions,\nnegotiations, agreements, arrangements or understandings (whether written or oral) with any other person regarding the Transaction, other than the Company and its Representatives, and your Representatives (to the extent permitted hereunder).\nLegal Remedy\n18. You acknowledge that money damages and remedies at law may be inadequate to protect the Company against any actual or threatened breach of or failure to comply with this Agreement by you or by your Representatives and, without prejudice to any rights and remedies otherwise available to the Company, you may agree to the seeking of specific performance, injunctive relief and other equitable remedies in the Company\u2019s favor, and you further agree to waive, and to cause your Representatives to waive, any requirement for the securing or posting of any bond in connection with any such remedy.\nGoverning Law\n19. The validity and interpretation of this Agreement will be governed by, and construed and enforced in accordance with, the laws of the State of New York, without giving effect to conflicts of laws principles. You irrevocably (i) submit to the jurisdiction of any court of the State of New York located in New York, New York or the United States District Court for the Southern District of New York for the purpose of any suit, action, or other proceeding arising out of this Agreement, or any of the transactions contemplated hereby (each a \u201cProceeding\u201d) and agree that service of any process, summons, notice or document delivered by hand or sent by U.S. registered mail to your address set forth above will be effective service of process for any action, suit or proceeding brought against you in any such court, (ii) agree that all claims in respect of any Proceeding may be heard and determined in any such court, (iii) irrevocably waive, to the fullest extent permitted by law, any immunity you have acquired, or hereafter may acquire, from jurisdiction of any such court or from any legal process therein, (iv) irrevocably waive, to the fullest extent permitted by law, any right to trial by jury in any Proceeding and (v) agree not to commence any Proceeding other than in such court, and waive, to the fullest extent permitted by applicable law, any claim that any such Proceeding is brought in an inconvenient forum.\nNo Waiver\n20. No failure or delay by the Company in exercising any right, power or privilege under this Agreement will operate as a waiver thereof nor will any single or partial exercise thereof preclude any other or further exercise of any right, power or privilege.\nSuccessors and Assigns\n21. This Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. You may not assign this Agreement or any part hereof without the prior written consent of the Company, and any purported assignment without such consent will be null and void.\nSeverability\n22. If it is found in a final judgment by a court of competent jurisdiction (not subject to further appeal) that any term or provision hereof is invalid or unenforceable, (i) the remaining terms and provision hereof will be unimpaired and will remain in full force and effect to the fullest extent permitted by applicable law and (ii) the invalid or unenforceable term or provision will be replaced by a term or provision that is valid and enforceable and that comes closest to expressing the parties\u2019 intention with respect to such invalid or unenforceable term or provision.\nEntire Agreement\n23. This Agreement embodies the entire agreement and understanding of the parties hereto and supersedes any and all prior agreements, arrangements and understandings relating to the matters provided for herein. This Agreement may not be amended or modified in any manner nor may any of its provisions be waived except by written amendment executed by the parties. An amendment or modification or waiver will only be effective if (i) it is in writing and signed by the Company and you, (ii) it specifically refers to this Agreement and (iii) it specifically states that the Company and/or you, as the case may be, is amending, modifying or waiving its rights hereunder. Any such amendment, modification or waiver will be effective only in the specific instance and for the purpose for which it was given.\nData Site\n24. The terms of this Agreement shall supersede any additional purported confidentiality requirements imposed by any offering memorandum, web-based database or similar repository of Evaluation Material to which you or any of your Representatives may be granted access in connection with the evaluation, negotiation or consummation of the Transaction, notwithstanding acceptance of such an offering memorandum or submission of an electronic signature, \u201cclicking\u201d on an \u201cI Agree\u201d icon or other indication of assent to such additional confidentiality conditions, it being understood and agreed that your confidentiality obligations with respect to Evaluation Material are exclusively governed by this Agreement and may not be enlarged except by a written agreement that is hereafter executed by each of the parties hereto.\nCounterparts\n25. For the convenience of the parties hereto, any number of counterparts of this Agreement may be executed by the parties hereto, each of which will be an original instrument and all of which taken together will constitute one and the same Agreement. Delivery of a signed counterpart of this Agreement by e-mail or facsimile transmission will constitute valid and sufficient delivery thereof.\nThis Agreement is being delivered to you in duplicate. Please execute and return one copy of this Agreement, which will constitute your agreement with respect to the subject matter of this Agreement.\nVery truly yours,\nMONSTER WORLDWIDE, INC.\nBy: /s/ Timothy T. Yates\nName: Timothy T. Yates\nTitle: Chief Executive Officer and Chief Financial Officer\nACCEPTED AND AGREED TO\nas of the first date written above\nRANDSTAD HOLDING NV\nBy: /s/ Han Kolff\nName: Han Kolff\nTitle: Managing Director Group Control, Strategy\n",
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"text": "Exhibit 10.6\nNON-DISCLOSURE AND NON-SOLICITATION AGREEMENT\nTHIS NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT (\u201cAgreement\u201d) is made and entered into, effective as of the date first written below, by and among First Financial Corporation (\u201cFirst Financial\u201d), First Financial Bank, N.A. (\u201cBank\u201d), a wholly-owned subsidiary of First Financial, HopFed Bancorp, Inc. (\u201cHopFed\u201d), Heritage Bank USA, Inc., (\u201cHeritage\u201d), a wholly-owned subsidiary of HopFed, and John E. Peck (\u201cEmployee\u201d). \u201cBanking Organization\u201d shall mean First Financial, the Bank, HopFed, and/or Heritage. \u201cFinancial Institution\u201d shall mean the Bank and/or Heritage. First Financial, the Bank, HopFed, Heritage and Employee may be collectively referenced as the \u201cparties\u201d or individually as a \u201cparty.\u201d WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated January 7, 2019, by and between HopFed and First Financial (the \u201cMerger Agreement\u201d), HopFed shall be merged with and into First Financial (the \u201cMerger\u201d) effective as of the date and time provided in the Merger Agreement (the \u201cEffective Time\u201d); and\nWHEREAS, Heritage will be merged into the Bank at the Effective Time or shortly thereafter; and\nWHEREAS, Employee is currently an employee of Heritage and the Bank intends to offer employment to the Employee to provide services for and on behalf of the Bank immediately upon the Effective Time;\nWHEREAS, as a result of employment with Heritage up to the Effective Time and with the Bank thereafter, Employee had, has and will have access to Confidential Information (as defined below) and may have acquired or will acquire knowledge regarding Confidential Information, including, but not limited to, information regarding Customers or Potential Customers (as defined below), and a Banking Organization could be harmed if such Confidential Information were to be used, divulged or become known to any competitor of a Banking Organization or to any other Person (as defined below) or to any entity outside of a Banking Organization;\nWHEREAS, Employee has developed or may develop contacts and business relationships with Customers or Potential Customers which could be used to the detriment of a Banking Organization and/or to solicit employees away from a Banking Organization; and\nWHEREAS, each Banking Organization desires reasonable protection of its respective confidential business and customer information which such Banking Organization has developed and will develop over the years at substantial expense.\nNOW, THEREFORE, the parties incorporate the above recitals, and in consideration of the mutual promises, covenants and agreements made herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:\n1. Consideration/Employment.\na. This Agreement neither constitutes an employment contract or agreement to Employee for a stated period of time, nor does it alter Employee\u2019s existing employment status.\nb. In consideration of Employee\u2019s promises, covenants and agreements set forth in this Agreement, (i) as of the date of this Agreement and up to the Effective Time Heritage shall maintain Employee\u2019s employment with the compensation and benefits commensurate therewith, and (ii) effective as of the Effective Time, the Bank shall offer or maintain Employee\u2019s employment pursuant to that certain Employment Agreement dated January 7, 2019, and effective as of the Effective Time, with the compensation and benefits commensurate therewith.\n2. Duties. Employee shall devote his/her full working time and attention to the performance of those services for the Banking Organization which are assigned to him/her from time to time and to perform such services in a faithful, honest and diligent manner and in the best interest of such Banking Organization.\n3. Definitions of Key Terms.\na. \u201cBanking and Financial Services\u201d shall mean those banking and related financial services of a Banking Organization or subsidiary thereof, including but not limited to, checking and savings accounts, health savings accounts, money market accounts, loans, credit cards, cash management services, lines of credit, investment services (such as IRAs, college savings plans, estate planning, investment planning, business planning), and trust services, provided during any period in which Employee served or will serve in any capacity for a Financial Institution and all banking and related financial services substantially similar to such banking and related financial services.\nb. \u201cConfidential Information\u201d shall mean any and all materials, records, data, documents, lists, writings, and information (whether in writing, printed, electronically stored, computerized, on disk or otherwise, including, but not limited to, all copies, summaries, analyses, drafts, and extracts) relating or referring in any manner to trade secrets (as currently defined under applicable law, including, but not limited to, the Indiana Uniform Trade Secrets Act and any amendments or successor statutes) of a Banking Organization, as well as other non-public financial or proprietary information of a Banking Organization including, but not limited to, business reports, business plans, projections, income statements, profit and loss statements, business strategies and/or strategic plans, internal audits, sales information, sales techniques, business costs, product pricing, budgets, research and development, intellectual property, software and/or computer programs, marketing strategies or ideas, marketing plans or materials, business development plans or strategies, records or information relating to customers or account holders , customer lists, inventions, and processes, systems, methods, documentation or devices which are unique or proprietary to the business of or services or products of a Banking Organization. Confidential Information shall not include information that: (i) is or becomes readily or publicly available, not as a result of a violation of this Agreement or other obligation of confidence, directly or indirectly, of the disclosing party; (ii) is developed by other parties, including, but not limited to, subsequent employers of the Employee, independent of the knowledge or resources of the Employee based upon his or her prior access to a Banking Organization\u2019s Confidential Information; (iii) is independently developed after the Employee\u2019s termination of employment without reference to or use of the Confidential Information or materials based thereon; (iv) is based on the Employee\u2019s personal experience, knowledge, enterprise and expertise in the delivery of Banking and Financial Services and which is general knowledge concerning the industry, not specific to a Banking Organization; or (v) is disclosed pursuant to the requirements of a court, administrative agency or other governmental agency.\nc. \u201cCustomers\u201d or \u201cCustomer\u201d shall mean any Person to whom a Banking Organization rendered or provided Banking and Financial Services at any time during the one-year period prior to Employee\u2019s termination of employment with a Financial Institution: (i) with whom Employee had any material contact (either directly or indirectly); (ii) which Employee managed, had responsibility for or regularly serviced while employed by the Financial Institution, provided, however, this shall not be construed to include supervising those who have such a relationship to the Customer; or, (iii) about which Employee obtained Confidential Information.\nd. \u201cEmployees,\u201d \u201cAgents,\u201d and \u201cIndependent Contractors\u201d shall mean any and all persons employed or contracted by a Banking Organization or who were employed or contracted by a Banking Organization, as an employee, agent or independent contractor, within the six (6) month period prior to Employee\u2019s termination of employment with either Financial Institution.\ne. \u201cPerson\u201d shall mean any individual, partnership, corporation, organization, bank, credit union, firm, association, limited liability company, trust, joint venture, company or other entity, body, agency or department thereof.\nf. \u201cPotential Customer\u201d shall mean any Person that Employee directly solicited, targeted or specifically identified as a prospective or potential customer, or about which Employee obtained information on behalf of a Banking Organization for purposes of directly soliciting, targeting or specifically identifying as a prospective or potential customer, during the one (1) year period prior to Employee\u2019s termination of employment with either Financial Institution.\ng. \u201cSolicit\u201d, \u201cSolicited\u201d or \u201cSolicitation\u201d means any direct or indirect communication of any kind whatsoever, regardless of by whom initiated, inviting, advising, inducing, encouraging, enticing, or requesting either expressly or implicitly, any Person, in any manner, to take or refrain from taking action, provided, however, this definition does not include communications initiated by Customers or Potential Customers of their own initiative, without prompting or encouragement by Employee or anyone acting on Employee\u2019s behalf.\n4. Non-Disclosure of Confidential Information. During the course of Employee\u2019s employment with a Financial Institution, Employee agrees that Employee has or will continue to become knowledgeable about, or come to be in possession of, Confidential Information. If such Confidential Information were to be divulged or become known to any competitor of a Banking Organization, or to any other Person outside of a Banking Organization, or if Employee were to consent to be employed by any competitor of a Banking Organization, or to engage in competition with a Banking Organization, such Banking Organization will be harmed. In addition, Employee has or may develop relationships with Customers or Potential Customers so that the Confidential Information could be used to Solicit the business of such Customer or Potential Customer away from a Banking Organization.\nEmployee shall not, directly or indirectly, use any Confidential Information for any purpose other than the benefit of a Banking Organization, and shall not directly or indirectly, disclose, communicate, deliver, exhibit or provide any Confidential Information to any Person, except other Employees or Agents of a Banking Organization who have a need to know such Confidential Information for a proper corporate or business purpose, as required in the normal course of Employee\u2019s service as an employee. Nothing in this Section 4, or any other provision of this Agreement, shall be construed to prohibit Employee from reporting conduct to, providing truthful information to, or participating in any investigation or proceeding brought or conducted by any federal or state government agency or self-regulatory organization.\nEmployee specifically acknowledges that the Confidential Information, whether reduced to writing or maintained electronically or in the mind or memory of Employee and, whether compiled by a Banking Organization and/or the Employee, derives independent economic value from not being readily known to or ascertainable by proper means by others who can obtain economic value from its disclosure or use, that reasonable efforts have been put forth by each Banking Organization to maintain the secrecy of such information, that such information is the sole property of such Banking Organization and that any retention and/or use of such information during or after Employee\u2019s employment with either Financial Institution (except in the course of performing the Employee\u2019s duties of employment with a Financial Institution and except as otherwise set forth above) constitutes a misappropriation of a Banking Organization\u2019s Confidential Information.\nEmployee agrees that all Confidential Information and all records, documents and materials relating to all Confidential Information (including all copies thereof) shall be and remain the sole and exclusive property of a Banking Organization, and upon Employee\u2019s termination of employment, all such Confidential Information, whether in paper or electronic form, shall be returned to a Financial Institution in good condition, without Employee retaining a copy thereof, including, but not limited to, retaining an electronic copy on any electronic device regardless of whether such device is owned by Employee. At a Financial Institution\u2019s request, Employee shall provide written verification, under the penalties for perjury, of his/her compliance with this covenant.\n5. Non-Solicitation of Customers and Potential Customers. Employee acknowledges and agrees that by virtue of Employee\u2019s position with a Banking Organization, Employee has or will have advantageous familiarity and personal contacts with Customers and Potential Customers and will have advantageous familiarity with the business operations and affairs of a Banking Organization. Employee further acknowledges and agrees that Employee has been or will be placed in a position that, were Employee to leave a Financial Institution to compete with the business of a Banking Organization, such entity from which the Employee departed would, upon violation of this Agreement, suffer irreparable harm and financial loss, as well as lost goodwill and Confidential Information. Therefore, in consideration of the covenants of all Financial Institutions contained herein, Employee agrees that during Employee\u2019s employment with a Financial Institution, and for a period of one (1) year immediately following the termination of Employee\u2019s employment with a Financial Institution (\u201cRestriction Period\u201d), for whatever reason and regardless of how Employee\u2019s employment was terminated, Employee shall not, directly or indirectly (including, but not limited to, through other individuals, any partnership, corporation or business entity in which Employee has an ownership interest or serves as an officer, employee, independent contractor, representative, agent or consultant), either for Employee\u2019s own benefit or the benefit of any other Person:\na. Solicit, divert, or take away (or attempt to Solicit, divert or take away) any Banking and Financial Services to or from any Customer or Potential Customer; or\nb. advise, persuade or induce (or attempt to advise, persuade or induce) any Customer or Potential Customer to terminate, reduce, limit, or change the Customer\u2019s services or business relationship, or the Potential Customer\u2019s contemplated services or business relationship, with a Financial Institution; or\nc. directly provide Banking and Financial Services to, or directly accept Banking and Financial Services from, any Customer or Potential Customer.\nThis Agreement is not intended to prevent Employee from accepting employment with an organization that competes with the Banking Organizations by offering Banking and Financial Services to Customers or Potential Customers. The Parties acknowledge that Employee may be associated with such an Organization and that such association may place Employee in a senior or supervisory role to those in the organization that have contact with Customers or Potential Customers. Employee shall not be in violation of this Agreement merely by engaging in such a role, which may include:\na. supervising those who provide Banking and Financial Services to Customers or Potential Customers;\nb. engaging in credit review, underwriting, loan approval, or financial analysis of a Customer or Potential Customer\u2019s business as a part of a supervisory or management role, so long as such activity does not require the disclosure of Confidential Information, direct contact with the Customer or Potential Customer, or the disclosure of Employee\u2019s role to the Customer or Potential Customer;\nc. performing or supervising those that perform data processing, accounting, rate review, document review or similar \u201cback room\u201d services related to a Customer or Potential Customer so long as the services do not require the disclosure of Confidential Information or contact with the Customer or Potential Customer.\n6. Non-Solicitation of Employees and Others. In consideration of the covenants of all Financial Institutions contained herein, Employee agrees that during Employee\u2019s employment with a\nFinancial Institution, and for a period of two (2) years immediately following the termination of Employee\u2019s employment with a Financial Institution, for whatever reason and regardless of how Employee\u2019s employment was terminated, Employee shall not, directly or indirectly (including, but not limited to, through other individuals, any partnership, corporation or business entity in which Employee has an ownership interest or serves as an officer, employee, independent contractor, representative, agent or consultant), either for Employee\u2019s own benefit or the benefit of any other Person:\nc. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any Employee to terminate his or her employment with a Banking Organization, or offer or provide employment (whether such employment is with Employee or any other Person) either on a full-time or part-time, consulting or Independent Contractor basis; or\nd. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any Independent Contractors or Agents to terminate their contract or relationship with a Banking Organization or discontinue providing services to a Banking Organization and/or Customers; or\ne. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any suppliers, vendors or others who were supplying services or goods to a Banking Organization during the one year period prior to Employee\u2019s termination, to terminate, reduce, limit or change their business or relationship with a Banking Organization.\n7. Tolling of Covenants. Employee acknowledges that a Banking Organization is entitled to the full post-termination restrictions on the activities set forth in Sections 5 and 6, as applicable. Therefore, in the event any of the provisions of these Sections are breached by Employee, the commencement of the applicable post-termination restriction will not begin until Employee is in full compliance with Section 5 and/or 6.\n8. Severability/Blue Pencil. Each of the provisions of this Agreement, including, but not limited to, the restrictive covenants in Sections 5 and 6, are distinct and severable, notwithstanding that the covenants may be set forth in one section for convenience. If any provision of this Agreement shall be determined to be invalid, illegal or unenforceable in whole or in part, for any reason, neither the validity of the remaining part of such provision nor the validity of any other provision of this Agreement shall in any way be affected. Should any particular restrictive covenant, provision or clause of this Agreement be held unreasonable or unenforceable for any reason, including without limitation, the time period, geographic area and/or scope of activity covered by such covenant, provision or clause, the parties acknowledge and agree that such covenant, provision or clause shall be given effect and enforce to whatever extent would be reasonable and enforceable under applicable law. The parties expressly authorize a court of competent jurisdiction to modify or revise such provision to limit the covenants to cover the maximum period of time, range of activities or other restrictions as would be enforceable under Indiana law.\n9. Available Relief. Employee agrees that a Banking Organization, or its successor or assigns, will suffer irreparable damage and injury and will not have an adequate remedy at law in the event of any breach by Employee of any provision of Sections 4, 5 or 6, herein. Accordingly, in the event of a breach or of a threatened or attempted breach by Employee of Sections 4, 5, or 6, in addition to all other remedies to which a Banking Organization is entitled under law, in equity, or otherwise (including, but not limited to, monetary damages), a Banking Organization or its assigns and successors, shall be entitled to a temporary restraining order and/or preliminary or permanent injunction (without the necessity of showing any actual damage) or a decree of specific performance and no bond or other security shall be required in that connection.\n10. Enforcement/Attorneys\u2019 Fees. In any action that is brought to enforce or interpret this Agreement, the prevailing party or its assigns and successors, shall be entitled to recover their reasonable attorneys\u2019 and paralegal fees and expenses incurred in connection therewith. If a Banking Organization or its assigns and successors, institute any action or proceeding to enforce the provisions of this Agreement, Employee hereby waives all claims or defenses that a Banking Organization or its assigns and successors, have an adequate remedy at law, and Employee shall not urge in any such action or proceeding the claim or defense that such a remedy at law exists.\n11. Assignments; Successors and Assigns. The rights and obligations of Employee hereunder are not assignable or delegable by Employee, and any prohibited assignment or delegation will be null and void. The Banking Organization may, without the consent of the Employee, assign this Agreement to any successor or in connection with any merger, consolidation, share exchange, combination, sale of stock or assets or similar transaction. The provisions hereof shall inure to the benefit of and be binding upon the successors and assigns of a Banking Organization.\n12. Governing Law. This Agreement shall be interpreted under, subject to and governed by the laws of the State of Indiana, without consideration of the choice of law principles thereof, and all questions concerning its validity, construction and administration shall be determined in accordance with Indiana law.\n13. Entire Agreement/Modification/Waiver. This Agreement constitutes the entire agreement among the parties relating to the subject matter hereof and expressly supersedes any prior agreements between the parties relating to the subject matter hereof. This Agreement shall not be terminated, amended or modified without the prior written consent of the Bank\u2019s President and Chief Executive Officer and Employee. No failure or delay by a Banking Organization in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any waiver by a Banking Organization under this Agreement operate or be construed as a continuing waiver or a waiver of any subsequent breach or noncompliance hereunder. No single or partial exercise of any right or remedy by a Banking Organization shall preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver by a Banking Organization under this Agreement shall be in writing and signed by the Bank\u2019s President and Chief Executive Officer. A waiver shall operate only as to the specific term or condition waived and will not constitute a waiver for the future or act on anything other than that which is specifically waived.\n14. \u201cNo-Defense\u201d Provision. The covenants set forth in this Agreement are essential terms and conditions to a Banking Organization employing or continuing to employ Employee, and shall be construed as independent of any other obligations or agreements between Employee and a Banking Organization. The existence of any claim or cause of action Employee may have against a Banking Organization, including, but not limited to, the alleged material breach by a Banking Organization of any agreement with Employee, shall not constitute a defense to the enforcement by a Banking Organization of the covenants and obligations in this Agreement and shall not relieve Employee of his or her obligations under this Agreement.\n15. Jurisdiction and Venue. The parties agree that all suits, actions, proceedings, litigation, disputes, or claims relating to or arising out of this Agreement shall be filed and tried in the Superior or Circuit Court, as appropriate, of Vigo County, Indiana, or the United States District Court for the Southern District of Indiana, Terre Haute Division. In this regard, the parties hereby: (a) agree that venue shall be such stated courts; (b) irrevocably consent to service of process and to the jurisdiction and venue of such courts; and (c) irrevocably waive any claim of inconvenient forum if any such suit, claim, proceeding, litigation, dispute, or claim has been filed, brought, or made in any of such courts.\n16. Construction. This Agreement is the result of negotiations between the parties, and no party shall be deemed to be the drafter of this Agreement; accordingly, this Agreement shall be interpreted and construed without any presumption or inference based upon or against the party causing this Agreement to be prepared. The language of this Agreement shall in all cases be construed as a whole, according to its fair meaning and not strictly for or against any party.\n17. Review and Consultation. Employee acknowledges and agrees that he/she has read this Agreement in its entirety prior to executing it, understands the provisions and effects of this Agreement, and has consulted with or had the opportunity to consult with an attorney or other advisers as he/she deemed appropriate in connection with the execution of this Agreement.\n18. Section Headings. Section headings are inserted into this Agreement for convenience only and shall not affect any construction or interpretation of this Agreement.\n19. Reasonableness. Employee agrees and acknowledges that the covenants, restrictions and obligations set forth in this Agreement, including Sections 5 and 6, are reasonable and necessary to protect a Banking Organization. Employee agrees that the covenants, restrictions and obligations will not affect Employee\u2019s ability to make a living.\n20. Counterparts. This Agreement may be executed in any number of identical counterparts, each of which shall be deemed a duplicate original but all of which shall constitute one and the same agreement. The parties agree that signatures transmitted by facsimile or other electronic means are acceptable the same as original signatures for the execution of the Agreement.\n21. Miscellaneous. Any change in Employee\u2019s duties, responsibilities, title, position, compensation, or status, with a Financial Institution will not affect the validity or enforceability of this Agreement.\n22. Representations. Employee represents and warrants that he/she is not a party to an agreement with his or her prior employer(s) (other than Heritage or HopFed) or any other Person that prohibits Solicitation of business or competing with that employer or other Person. Employee affirms and represents that performance of his/her job duties and responsibilities for a Financial Institution does not, and will not, breach any agreement or covenant not to Solicit business, compete in business, or keep in confidence proprietary or confidential information acquired in confidence or in trust prior to Employee\u2019s employment with a Financial Institution. Employee further represents that he/she has not retained any documents or information relating to Employee\u2019s prior employers (other than Heritage or HopFed) that may be considered confidential or proprietary information and that Employee has not disclosed or used, and will not disclose or use, any information relating to his or her prior employer(s) in connection with Employee\u2019s employment with a Financial Institution.\n23. Return of Property. Upon termination of Employee\u2019s employment, Employee shall immediately return to the Bank (if subsequent to the Effective Time) or Heritage (if prior to the Effective Time), all Banking Organizations documents and property, including, but not limited to, Confidential Information, computer discs, manuals, reports, files, memoranda, records, door and file keys, passwords and access codes, and any other physical or tangible things that Employee received, prepared, or helped prepare in connection with the Employee\u2019s employment, and Employee shall not retain any copies, duplicates, reproductions or excerpts thereof. At the Bank\u2019s or Heritage\u2019s request, Employee shall provide written verification under the penalties for perjury of his/her compliance with this covenant.\n24. Survival. Except as set forth below, the covenants in Sections 4, 5, 6 and 23 shall survive the termination of Employee\u2019s employment with a Financial Institution regardless of the reason for termination. If the Merger is not consummated and the Merger Agreement is terminated, Sections 4, 5, 6 and 23 shall survive with respect to First Financial and the Bank, but shall not survive with respect to HopFed or Heritage.\n[Signature Page to Follow]\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date indicated below.\nFIRST FINANCIAL CORPORATION\nBy: /s/ Norman L. Lowery Date: January 7, 2019\nPrinted Name: Norman L. Lowery\nTitle: President & CEO\nFIRST FINANCIAL BANK, N.A.\nBy: /s/ Norman L. Lowery Date: January 7, 2019\nPrinted Name: Norman L. Lowery\nTitle: President & CEO\nHOPFED BANCORP, INC.\nBy: /s/ John E. Peck Date: January 7, 2019\nPrinted Name: John E. Peck\nTitle: President/CEO\nHERITAGE BANK USA, INC.\nBy: /s/ John E. 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"text": "Exhibit (d)(3)\nCONFIDENTIALITY, NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT\nThis Confidentiality & Non-Disclosure Agreement (\u201cAgreement\u201d) is made and entered into as of May 1, 2013 (\u201cEffective Date\u201d), by and between Verenium Corporation, a Delaware corporation located at 3550 John Hopkins Court, San Diego, CA 92121 (\u201cVerenium\u201d), and BASF Corporation, a Delaware corporation with a principal address at 100 Campus Drive, Florham Park, New Jersey 07932 (for notice purposes, Attention: General Counsel) (including its Affiliates, \u201cCompany\u201d), individually known as a \u201cParty\u201d and collectively known as the \u201cParties\u201d.\nVerenium intends to disclose to Company certain of its Confidential Information as Verenium deems necessary in order for the Company to evaluate a potential transaction of mutual interest (the \u201cPurpose\u201d). In consideration of the mutual promises and covenants contained herein, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:\n1. \u201cConfidential Information\u201d shall mean the Purpose (including the contemplated transaction), identity of, and any discussions or negotiations between, the Parties, existence of this Agreement, and any and all information whether in oral, written, graphic or electronic form, including but not limited to, data, know-how and any and all subject matter (whether patentable or not, including without limitation any derivatives thereof) pertaining to Verenium\u2019s research, financial data, sales information, inventions, development, materials, technology, trade secrets, work in process, marketing, business plans, regulatory information and strategies, scientific, engineering and/or manufacturing processes or equipment, protocols, assays, strains, compounds, genes, gene pathways, enzymes, peptides, the commercial applications of genes, gene pathways, enzymes, peptides, accessing microbial diversity, manipulating and modifying genes and gene pathways, identifying bioactive compounds through recombinant techniques and any other elements of Verenium\u2019s business which Verenium considers to be of value, including its present or future products, projections, sales, pricing, customers, employees, investors and contractual relationships.\n2. Subject to the provisions of paragraphs 3 and 4 of this Agreement, (i) Company, as recipient of Confidential Information from or on behalf of Verenium, shall use such Confidential Information solely for the Purpose and for no other purpose or use, and (ii) Company shall not disclose to any third party any Confidential Information received from or on behalf of Verenium hereunder. Upon discovery of any loss or unauthorized disclosure of Confidential Information, Company shall immediately notify Verenium.\n3. Company agrees to treat Confidential Information received from or on behalf of Verenium, with at least the same degree of care that Company uses to protect its own Confidential Information. Company shall only disseminate Confidential Information to such of its Representatives with a special need to know for carrying out the Purpose of this Agreement. In addition, Company hereby agrees that such Representatives shall be informed of the confidential and proprietary nature of the Confidential Information received and that such Representatives shall be bound by the terms hereof or subject to confidentiality and non-use obligations no less restrictive than those set forth herein. Company shall be liable for any disclosure or use of the Confidential Information by its Representatives in a manner not authorized by this Agreement. \u201cRepresentative\u201d means any employee, consultant, contractor, officer, agent, advisor, and/or director of a Party. \u201cAffiliate\u201d for purposes of this Agreement shall mean any one or more business entities which are: (a) owned or controlled by, (b) owning or controlling, or (c) under common control with a Party at the time in question. Ownership, direct or indirect, of more than fifty percent (50%) of the voting stock or other equity interests of an entity ordinarily entitled to vote in the election of directors or similar governing body of an entity shall, without limitation, constitute ownership or control thereof.\n4. The Company shall have no obligations to Verenium with respect to the use of such information, or disclosure to others not party to this Agreement, of such information which: (a) prior to disclosure was rightfully known to or in the possession of Company as evidenced by Company\u2019s competent written records and not subject to any confidentiality or non-disclosure obligations or restrictions; (b) is or becomes publicly known during the time period in which Company\u2019s duties and obligations hereunder extend, through no fault, unauthorized act or omission of Company or its Representatives; (c) was provided without restriction on disclosure by a third party who had the lawful right to make such disclosure and where such disclosure was not in violation of any obligation, contractual or otherwise, owed by such third party to Verenium; (d) is rightfully and in good faith developed by Company independently of any disclosures made under this Agreement, as evidenced by Company\u2019s competent written records; or (e) is required by applicable law, regulation or bona fide legal process to be disclosed by Company, provided, however, that Company takes all reasonable steps to restrict and maintain the confidentiality of such disclosure (including, without limitation, seeking a protective order or confidential treatment thereof, as the case may be), and provides reasonable prior written notice to Verenium of the requirement to disclose such information and the specific disclosure(s) proposed to satisfy such law(s), regulation(s) or legal process(es).\n5. Confidential Information shall not be reproduced by Company in any form except as required to accomplish the intent of this Agreement. Any reproduction of any Confidential Information by Company shall remain the property of Verenium unless otherwise authorized in writing by Verenium.\n6. Company agrees, upon request, to promptly return or destroy all items relating to Confidential Information, including but not limited to, all materials, written materials, drawings, data and records provided or otherwise made available by Verenium, and all copies (in any form) thereof, with a certificate of compliance with the foregoing, executed by an appropriate officer of Company within 30 days of such request, provided that the Company may maintain a single copy of such Confidential Information within its Legal Department for archival purposes. Notwithstanding the return or destruction of Confidential Information, Company and its Representatives shall continue to be bound by the obligations hereof.\n7. All right, title and interest in and to Confidential Information shall be retained by Verenium and nothing in this Agreement shall be construed as granting any license or right under any patent or other intellectual property rights, or other rights, or representing any commitment by either Party to enter into any additional agreement, by implication or otherwise, or creating any partnership, joint venture or agency relationship. All Confidential Information provided hereunder is provided \u201cAS IS\u201d and without any warranty, express, implied, or otherwise, regarding its accuracy or performance. Verenium shall have no liability to Company of any nature or kind whatsoever, directly or indirectly, resulting from or arising out of the reliance or use by Company of any Confidential Information.\n8. Company acknowledges that it is aware, and will advise its Representatives who are informed of the Purpose or who review Confidential Information, of the restrictions imposed by the United States securities laws on the purchase or sale of Verenium\u2019s securities by any person who has received material, non-public information about Verenium and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\n9. During the one-year period commencing on the date of this Agreement (the \u201cStandstill Period\u201d), neither the Company nor any of its Representatives will, in any manner, directly or indirectly (except to the extent agreed by Verenium): (a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Verenium or any securities of any subsidiary or other Affiliate of Verenium, in excess of five (5) percent of the outstanding securities of any such company (with any such acquisition, regardless of size, only being made at such time as neither the acquiring party nor any of its Affiliates is in possession of material, non-public information about Verenium), (ii) any acquisition of any assets of Verenium or any assets of any subsidiary or other Affiliate of Verenium, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Verenium or any subsidiary or other Affiliate of Verenium, or involving any securities or assets of Verenium or any securities or assets of any subsidiary or other Affiliate of Verenium, or (iv) any \u201csolicitation\u201d of \u201cproxies\u201d (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Verenium; (b) form, join or participate in a \u201cgroup\u201d (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the beneficial ownership of any securities of Verenium; (c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Verenium; (d) take any action that might require Verenium to make a public announcement regarding any of the types of matters set forth in clause \u201c(a)\u201d of this sentence; (e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause \u201c(a)\u201d, \u201c(b)\u201d, \u201c(c)\u201d or \u201c(d)\u201d of this sentence; (f) assist, induce or encourage any other person or entity to take any action of the type referred to in clause \u201c(a)\u201d, \u201c(b)\u201d, \u201c(c)\u201d, \u201c(d)\u201d or \u201c(e)\u201d of this sentence; or (g) enter into any discussions, negotiations, arrangement or agreement with any other person or entity relating to any of the foregoing. The expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement. Notwithstanding the foregoing, (i) the Company and its Representatives shall not be precluded from submitting a topping or other offer or otherwise participating in any process not initiated by the Company or its Affiliates or Representatives in which the securities or assets of Verenium or any subsidiary or other Affiliate of Verenium are for sale or are being or have been sold, and (ii) upon filing for protection under US Bankruptcy laws by Verenium or any subsidiary or Affiliate of Verenium the restrictions of this paragraph 9 shall be void and of no further force or effect with respect to the filing entity.\n10. This Agreement shall constitute the entire understanding between the Parties with respect to the subject matter hereof and may be modified only in writing and signed by both Parties; provided, however, that any restrictions set forth on the Company or its Affiliates in any previous confidentiality or non-disclosure agreements between the Parties or their Affiliates shall remain in place for the periods set forth in any such agreements. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. This Agreement, and rights and obligations hereunder, shall not be assigned. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors, assigns, personal representatives, executors and administrators.\n11. Company acknowledges that its breach of this Agreement will cause irreparable damage to Verenium and hereby agrees that Verenium shall be entitled to injunctive relief under this Agreement for such breach or threatened breach as well as such further relief as may be granted by a court of competent jurisdiction.\n12. This Agreement shall commence as of the Effective Date and shall terminate one (1) year thereafter, unless earlier terminated upon 30 days written notice to the other Party; provided, however, that the duties set forth in paragraphs 9 and 13 shall survive for the periods set forth in paragraphs 9 and 13 and the Company\u2019s duties and obligations to protect Confidential Information disclosed during the term (or any extension) of this Agreement shall survive the termination or expiration of this Agreement for a period of five (5) years. Notwithstanding the foregoing, Company\u2019s duties and obligations to protect a trade secret disclosed hereunder shall survive the termination or expiration of this Agreement indefinitely.\n13. During the one-year period commencing on the date of this Agreement (the \u201cNon-Solicitation Period\u201d), Company shall not, nor shall it permit its Affiliates or Representatives, to: (a) hire any employee of Verenium or enter into a contract with any employee of Verenium to provide services to Company (or any of its Affiliates), in each case involving an employee of Verenium with whom Company has contact as a result of this Agreement or discussions relating to a possible transaction between the Parties, without obtaining the prior written approval of Verenium, or (b) directly or indirectly, induce or attempt to induce or otherwise solicit, counsel, discuss, advise or encourage any such employee to leave or otherwise terminate such employee\u2019s relationship with Verenium; provided, however, that the foregoing provisions of this paragraph 13 shall not apply to any employee of Verenium who was previously terminated by Verenium or who responds to a general solicitation or advertisement regarding employment with Company or its Affiliates. The expiration of the Non-Solicitation Period will not terminate or otherwise affect any of the other provisions of this Agreement.\n14. All notices or reports permitted or required under this Agreement shall be in writing and shall be delivered by personal delivery, electronic mail, facsimile transmission or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, five (5) days after deposit in the mail, or upon acknowledgment of receipt of electronic or facsimile transmission. Notices shall be sent to the addresses set forth at the beginning of this Agreement or such other address as a Party may specify in writing to the other Party. Each Party represents and warrants that it has the authority to undertake the obligations set forth in this Agreement without breaching or violating any contractual or statutory obligation owed to another. This Agreement shall be construed in accordance with the laws of the State of California without regard to its conflict of laws principles.\nACCEPTED AND AGREED as of the date first written above.\nBASF CORPORATION Verenium Corporation\nBy: /s/ Fried-Walter M\u00fcnstermann By: /s/ Jeffrey G. Black\n(signature) (signature)\nName: Fried-Walter M\u00fcnstermann Name: Jeffrey G. Black\nTitle: Executive Vice President and Chief Financial\nOfficer Title: Chief Financial Officer\n",
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"text": "MUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement (the \u201cAgreement\u201d) is made by and between Actuate Corporation, a Delaware corporation with its principal place of business located at 951 Mariners Island Boulevard, San Mateo, CA 94404 (\u201cActuate\u201d), and Open Text Corporation, a corporation incorporated pursuant to the laws of Canada, with its principal place of business located at 275 Frank Tompa Drive, Waterloo, ON N2L OA1 (\u201cCompany\u201d). Actuate and Company intend to discuss a potential business relationship.\nEach undersigned party (the \u201cReceiving Party\u201d) and their respective directors, officers, employees, agents, or advisors (including, without limitation, legal advisors, accountants, consultants, bankers, and financial advisors) and potential sources of financing (collectively, \u201cRepresentatives\u201d) understands that during these discussions the other party (the \u201cDisclosing Party\u2019\u2019) may disclose Proprietary Information (as defined herein) relating to the Disclosing Party\u2019s business.\nIn consideration of the parties\u2019 discussions and any access the Receiving Party may have to Proprietary Information of the Disclosing Party, the Receiving Party hereby agrees as follows:\n1. As used herein, the term \u201cProprietary Information\u201d refers to any and all Information of a confidential, proprietary, or secret nature which is applicable to or related In any way to (i) the business, present or future, of the Disclosing Party, (ii) the research and development or investigations of the Disclosing Party or (iii) the business of any customer of the Disclosing Party; provided, in each case, that such information is delivered to the Receiving Party by the Disclosing Party and (a) is marked or identified in writing as \u201cConfidential\u201d, (b) if verbal or visual disclosure, is identified as \u201cConfidential\u201d in a writing within ten (10) business days of such disclosure, or (c) is information that the Receiving Party actually knew or reasonably should have known was confidential. Proprietary Information may include, for example and without limitation, the product offering, content partners, product pricing, product availability, computer programs, technical drawings, algorithms, processes, ideas, schematics, trade secrets, processes, formulas, data, know-how, improvements, inventions (whether patentable or not), techniques, marketing plans, forecasts and strategies, and information concerning customers or vendors. Proprietary Information shall also include all information of a like nature owned by any other person and furnished to the Disclosing Party by such other person pursuant to an undertaking by the Disclosing Party to maintain the same in confidence.\n2. The Receiving Party agrees (a) to hold the Disclosing Party\u2019s Proprietary Information In strict confidence and to take all reasonable precautions to protect such Proprietary Information (including, without limitation, all precautions that Receiving Party employs with respect to its confidential materials), (b) not to divulge any such Proprietary Information or any information derived therefrom to any third person without prior written permission of the Disclosing Party, excluding disclosure to Representatives, (c) not to make any use whatsoever at any time of such Proprietary Information except to evaluate internally whether to enter into the contemplated business relationship with the Disclosing Party, and (d) not to copy or reverse engineer any such Proprietary Information. Any employee given access to any such Proprietary Information must have a legitimate \u201cneed to know\u201d and be subject to restrictions on disclosure of Proprietary Information practically identical to the terms set forth herein. Without granting any right or license, the Disclosing Party agrees that the foregoing clauses (a), (b) and (c) shall not apply with respect to any information that (i) is or (through no improper action or inaction by the Receiving Party or any agent, consultant or employee) becomes generally available to the public, or (ii) was or is rightfully in Receiving Party\u2019s possession or the possession of any of its Representatives or was known by it or its Representatives without restriction prior to receipt from the Disclosing Party, or (iii) was or is rightfully disclosed to Receiving Party or any of its Representatives by a third party provided the Receiving Party complies with restrictions imposed by the third party, or (iv) was or is independently developed without use of any Proprietary Information of the Disclosing Party. The Receiving Party and its Representatives may make disclosures required by court order or any legal or judicial process, without any liability hereunder, provided the Receiving Party uses reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order and has allowed the Disclosing Party to participate In the proceeding to the extent legally permissible and reasonably practicable.\n3. Promptly upon receipt of a written request by the Disclosing Party at any time (which will be effective if actually received or three days after mailed first class postage prepaid to the Receiving Party\u2019s address herein), the Receiving Party will turn over to the Disclosing Party, or, at its sole discretion, destroy and certify to the Receiving party in writing the destruction of all Proprietary Information of the Disclosing Party and all documents or media containing any such Proprietary Information and any and all copies or extracts thereof; provided, however, the Company and its Representatives shall not be obligated to return or destroy Proprietary Information to the extent otherwise required by law, regulation, rule or practice governing professionals or any internal compliance policy or procedure required by law, regulation rule of practice governing professionals. The Receiving Party understands that nothing requires the Disclosing Party to proceed with any proposed transaction or relationship in connection with which Proprietary Information may be disclosed.\n4. Except to the extent required by law, neither party shall disclose the existence or subject matter of the negotiations or business relationship contemplated by this Agreement.\n5. The parties acknowledge and agree that due to the unique nature of the possible transaction between the parties, there can be no adequate remedy at law for any material breach of this Agreement, that any such breach may allow the breaching party or third parties to unfairly compete with the non-breaching party, resulting in irreparable harm to the non-breaching party, and therefore, that upon any such breach or any threat thereof, the non-breaching party shall be entitled to seek appropriate equitable relief in addition to whatever remedies it might have at law. The Receiving Party will notify the Disclosing Party In writing immediately upon the occurrence of any unauthorized release or other breach of which it is aware.\n6. The parties expressly agree that neither the terms or conditions of this Agreement, nor the discussions held by the parties to address the feasibility of a potential business relationship shall be construed as to prevent either party from pursuing similar discussions with third parties in similar markets or obligate either party to take, continue or forgo any action relating to the above-mentioned discussions. Further, nothing in this Agreement shall be construed as prohibiting or restricting either party from independently developing, acquiring, and marketing products, services, and other materials, which are similar to or competitive In any geographic area and in any form with the other party\u2019s product(s) or service(s). However, this paragraph shall not be deemed to grant to either party any license under the other party\u2019s copyrights or patents.\n7. During the one year period commencing on the date of this Agreement, the Company will not solicit or seek to employ any key employee or executive officer of Actuate or any subsidiary or other affiliate of Actuate with whom the Company had contact or became aware of in connection with the possible transaction; provided, however, that the foregoing provisions shall not prohibit the solicitation or employment of any such person (i) resulting from general advertisements for employment conducted by the Company (including any recruitment efforts conducted by any recruitment agency, provided that the Company has not directed such recruitment efforts at such person), (ii) if such person approaches the Company on an unsolicited basis or (iii) following the cessation of such person\u2019s employment with Actuate without any solicitation or encouragement by the Company.\n8. From the date of this Agreement until May 31 , 2015 (the \u201cStandstill Period\u201d) the Company will not, in any manner, directly or indirectly through any third party:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Actuate or any securities of any subsidiary or other affiliate of Actuate, (ii) any acquisition of any assets of Actuate or any assets of any subsidiary or other affiliate of Actuate, (iii) any tender offer, exchange offer, merger. business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Actuate or any subsidiary or other affiliate of Actuate, or involving any securities or assets of Actuate or any securities or assets of any subsidiary or other affiliate of Actuate, or (iv) any \u201csolicitation\u201d of \u201cproxies\u201d (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Actuate;\n(b) form, join or participate in a \u201cgroup\u201d (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the beneficial ownership of any securities of Actuate;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Actuate;\n(d) take any action that might require Actuate to make a public announcement regarding any of the types of matters set forth in clause \u201c(a)\u201d of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause \u201c(a) \u201c, \u201c(b)\u201d, \u201c(c)\u201d or \u201c(d)\u201d of this sentence; or\n(f) assist, induce or encourage any other individual and any corporation, partnership, entity, group, tribunal or governmental authority (\u201cPerson\u201d) to take any action of the type referred to In clause \u201c(a)\u201d, \u201c(b)\u201d, \u201c(c)\u201d, \u201c(d)\u201d or \u201c(e)\u201d of this sentence.\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\nNotwithstanding the foregoing, the Company is permitted to purchase any securities that does not in any event result in an aggregate ownership by the Company of more than 5% of the outstanding amount of any class of securities of Actuate or of any subsidiary or other affiliate of Actuate. Further, and notwithstanding the foregoing, the Company shall not be prohibited from (i) making any proposal to the board of directors of Actuate, which would not reasonably be expected to require a public announcement by Actuate or (ii) requesting that Actuate, directly or indirectly, waive or amend any of the provisions of this Section 8. Finally, and notwithstanding the foregoing, Actuate acknowledges and agrees that any non-disclosure agreement it or its affiliates have entered into or will enter into with a Person to explore a potential transaction for the sale of more than 50% of the outstanding voting equity securities of Actuate, or a sale of substantially all of the assets of Actuate, has or will have \u201cstandstill\u201d provisions similar or substantially similar to the provisions set forth above in this Section 8 applicable to the Company.\n9. This Agreement shall expire and cease to have any force or effect on the earlier of (i) eighteen months from the date hereof or (ii) the date of consummation of a transaction between the parties.\n10. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be illegal, invalid or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect. This Agreement shall be governed by the law of the State of California without regard to the conflicts of law provisions thereof. This Agreement supersedes all prior discussions and writings and constitutes the entire agreement between the parties with respect to the subject matter hereof. The prevailing party in any action to enforce this Agreement shall be entitled to reasonable costs and attorneys\u2019 fees. 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"text": "ORACLE\nCONFIDENTIAL DISCLOSURE AGREEMENT FOR STRATEGIC MATTERS\nThis Confidential Disclosure Agreement (\u201cAgreement\u201d) is entered into as of the effective date listed below (\u201cEffective Date\u201d) by Oracle Corporation (\u201cOracle\u201d) located at 500 Oracle Parkway, Redwood City, California 94065 and the company designated below (\u201cCompany\u201d).\nOracle and the Company are entering into discussions concerning a possible strategic transaction involving the Company and/or its shareholders (the \u201cTransaction\u201d). In connection with these discussions, the parties expect to make available to one another certain non-public, confidential and/or proprietary information, which may include information concerning their respective business prospects and plans, financial condition, technology, operations, assets and liabilities (collectively, the \u201cEvaluation Material\u201d). As a condition to each party furnishing the Evaluation Material to the other party and the directors, officers, employees, agents or advisors of such party or its subsidiaries or other affiliates (collectively, \u201cRepresentatives\u201d), each party agrees that the Evaluation Material furnished to it hereunder shall be treated in accordance with the terms of this Agreement.\n1. Evaluation Material. \u201cEvaluation Material\u201d also includes notes, studies analyses, compilations, plans, interpretations or other documents prepared by the receiving party or its Representatives to the extent that they contain or are based upon the Evaluation Material furnished to such party hereunder. The term \u201cEvaluation Material\u201d does not include information that (a) is or becomes a matter of public knowledge or is generally available to the public not through a breach of this Agreement; (b) is or becomes available to the receiving party from a source other than the disclosing party or any of its Representatives, provided that such source was not known by the receiving party to be bound by a duty of confidentiality with respect to such information; (c) is disclosed by the disclosing party to a third party without a duty of confidentiality; or (d) is independently developed by the receiving party without use of the Evaluation Material.\n2. Non-Disclosure; Use. Each party agrees that, without the prior written consent of the other party, neither it nor its Representatives will disclose to any other person (other than to such party\u2019s Representatives who agree, or are otherwise bound, not to disclose the following except as contemplated by this Agreement) any of the other party\u2019s Evaluation Material, the fact that discussions between the parties are taking place concerning the Transaction, or any terms or other facts relating to the Transaction. Except as otherwise provided in this Agreement, the Evaluation Material shall only be used by a party and its Representatives to evaluate, negotiate, facilitate or pursue a Transaction.\n3. Personally Identifiable Information. To the extent that its Evaluation Material includes human resources data and/or other information that serves to identify one or more individuals (\u201cPII\u201d), the disclosing party agrees to provide only such information as is required for evaluating or planning for a possible Transaction and to provide any notices and obtain any consents necessary for the receiving party to store and access such PII globally and to use PII in connection with the Transaction. The receiving party agrees to notify the disclosing party of any request received by the receiving party for access, correction, amendment or redaction of any PII. The disclosing party shall be responsible for compliance with all such requests. The receiving party also agrees to notify the disclosing party of any actual or suspected improper acquisition of PII of which the receiving party becomes aware.\n4. Residuals. Nothing in this Agreement shall be construed to limit the ability of either party or any of its Representatives to use \u201cresiduals\u201d relating to the Evaluation Material of the other party. The term \u201cresiduals\u201d shall mean information of any kind included in or relating to the Evaluation Material which is retained in the memories of Representatives of either party who have had access to the Evaluation Material, including ideas, know-how, or techniques contained therein, but not as a result of any deliberate effort to memorize the information. Without limitation of the foregoing, neither party shall have any obligation to limit or restrict the assignment of its employees or to pay royalties to the other party in connection with any use of residuals.\n5. Independent Development. Nothing in this Agreement shall be construed to limit or preclude either party from developing, using, marketing, licensing, and/or selling any independently developed software, hardware, technology or other materials similar or related to the Evaluation Material.\n6. Required Disclosure. Notwithstanding anything to the contrary contained in this Agreement, in the event that a party or its Representatives receives a request or is required (by law, rule, regulation, deposition, interrogatory, request for documents, subpoena, civil demand or other process) to disclose any of the other party\u2019s Evaluation Material or any of the other information referred to in section 2 hereof (irrespective of the reason for any such request or requirement), the party requested or required to make such disclosure shall, to the extent reasonable and practicable, provide the other party with prior written notice of any such request or requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. In the event that such order, remedy or waiver is not obtained, the party requested or required to make the disclosure may disclose only that portion of the Evaluation Material or other information that such party, in the opinion of counsel, is required to disclose.\n7. Return of Materials; Termination. Promptly upon written request from the other party, each party shall return or destroy (at the receiving party\u2019s option) all copies of the Evaluation Material (including all documents based thereon) in its or its Representatives\u2019 possession, provided, that the receiving party shall only be required to use commercially reasonable efforts to return or destroy any Evaluation Material created pursuant to its or its Representatives\u2019 standard electronic backup and archival procedures. Notwithstanding the foregoing, the receiving party and each of its Representatives may each retain one copy of the Evaluation Material to show compliance with this Agreement or to comply with applicable law, rule or regulation (or, in the case of a party\u2019s advisors, professional standards). Notwithstanding the return or destruction of the Evaluation Material, each party and its Representatives will continue to be bound by its obligations of confidentiality. This Agreement and all rights and obligations hereunder shall terminate on the second anniversary of the Effective Date; provided, however, that sections 4, 5 and 7 through 12 shall survive any termination of this Agreement.\n8. Definitive Agreements. Unless and until a final definitive agreement regarding the Transaction has been executed by the parties, no agreement with respect to the Transaction shall be deemed to exist between the parties and neither party will be under any obligation whatsoever with respect to the Transaction by virtue of this Agreement or any oral expression except for the matters specifically agreed to herein. The term \u201cdefinitive agreement\u201d does not include a term sheet or any other preliminary written agreement. Each party reserves the right, in its sole discretion, to provide or not provide Evaluation Material under this Agreement, to reject any and all proposals and to terminate discussions and negotiations at any time.\n9. Entire Agreement. This Agreement sets forth the entire agreement with respect to the Evaluation Material disclosed hereunder and supersedes all prior or contemporaneous agreements concerning such Evaluation Material, whether written or oral. 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"text": "NON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT, dated as of July 22, 2008, is by and between Financial Investments Corporation (\u201cInvestor\u201d) and Taylor Capital Group, Inc. (together with its wholly-owned subsidiary, Cole Taylor Bank, the \u201cCompany\u201d).\nWHEREAS, Investor has expressed an interest in discussing with the Company a possible financing transaction being considered by the Company (a \u201cTransaction\u201d);\nWHEREAS, in connection with such discussions, the Company may disclose Evaluation Material (as defined below) to Investor; and\nWHEREAS, the Company would not disclose the Evaluation Material to Investor, nor discuss with the Investor the possibility of a Transaction, unless Investor executed and delivered this Agreement to the Company, and the Company may be irreparably harmed if Investor or any of its Representatives (as defined below) were to take any of the actions prohibited under this Agreement.\nNOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, and other good and valuable consideration, the receipt, sufficiency and adequacy of which is hereby acknowledged, intending to be legally bound, Investor and the Company hereby agree as follows:\n1. Evaluation Material. For purposes of this Agreement, the term \u201cEvaluation Material\u201d shall mean any and all information provided to Investor by or on behalf of the Company in connection with the Transaction whether in writing, orally, visually, electronically or in machine readable form, through demonstration or in any other manner, and shall include, without limitation, any information regarding or relating to the Company\u2019s operations, business opportunities, costs, finances, personnel, marketing and promotion plans, financial statements, financial information and business practices or policies, and any other business information of the Company or the terms or existence of this Agreement, the Company\u2019s consideration of a possible Transaction or any discussions between the parties with respect thereto, transmitted by or on behalf of the Company to Investor in connection with the Transaction, whether prior to or after the execution and delivery of this Agreement and whether or not such information is marked \u201cconfidential\u201d. The term \u201cEvaluation Material\u201d does not include, and the obligations hereunder do not apply to, information, knowledge or data which (i) was in Investor\u2019s or its Representatives\u2019 (as defined below) possession prior to disclosure by the Company, or (ii) was or becomes available to Investor or its Representatives on a non-confidential basis from a party other than the Company provided that such party is not known to Investor, after reasonable inquiry, to be under an obligation of confidentiality to the Company with respect to such information, or (iii) at the time of disclosure or thereafter is generally available to the public (other than as a result of disclosure by Investor or its Representatives in violation of this Agreement), or (iv) Investor can demonstrate has been independently developed by it or on its behalf without reliance on the Evaluation Material. All Evaluation Material transmitted by or on behalf of the Company shall remain the sole property of the Company.\n2. Use of Evaluation Material. The Evaluation Material will be used by Investor solely in connection with its evaluation of a possible Transaction, and not for any other purpose whatsoever. The Evaluation Material will be kept confidential by Investor in accordance with the terms and conditions of this Agreement and will not be disclosed to any person, except that Investor may disclose the Evaluation Material or portions thereof to those of its employees, officers, directors, partners, members, affiliates, accountants, attorneys, agents, consultants and advisors (these persons being collectively called \u201cRepresentatives\u201d) who (a) need to know such information in order for Investor to be\nable to evaluate a possible Transaction and (b) have been directed by Investor to treat the Evaluation Material in accordance with the terms of this Agreement. For the avoidance of doubt, the term \u201cRepresentatives\u201d as applied to Investor shall not include any potential principal, co-investor or source of equity financing that is not a party to this Agreement. Investor shall be responsible for any breach of this Agreement by any of its Representatives. Neither Investor nor any of its Representatives shall, directly or indirectly, (x) market or use (other than as permitted by the Agreement) any Evaluation Material, (y) reproduce or otherwise copy any Evaluation Material except in connection with the Transaction, or (z) disclose, sell, license, offer to sell or license or otherwise transfer or make available any Evaluation Material to any person other than as otherwise permitted by this Agreement. Without limiting the generality of the foregoing, Investor will use all reasonable efforts to protect the confidentiality of Evaluation Material, including, without limitation, efforts commensurate with those it employs for the protection of its own confidential and proprietary information. The term \u201cperson\u201d as used in this Agreement will be interpreted broadly to include, without limitation, any agency, corporation, individual, partnership, limited liability company, joint venture or other entity.\n3. Exceptions. If Investor or its Representatives receive a subpoena or other validly issued administrative or judicial process requesting Evaluation Material, or if Investor or its Representatives are requested or required to disclose any Evaluation Material under law, governmental order, judicial order, regulatory or statutory requirement, discovery request, oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process, Investor shall notify the Company reasonably promptly following Investor or its Representatives first becoming aware of such requested disclosure, so that the Company may seek a protective order or other appropriate remedy or, in the Company\u2019s sole discretion, waive compliance with the terms of this Agreement. Furthermore, if the Company seeks such a protective order or other appropriate remedy in connection with a third-party request or requirement to disclose the Evaluation Material, Investor and its Representatives will not oppose such efforts. In the event that no such protective order or other remedy is obtained, or that the Company waives compliance with the terms of this Agreement, and Investor or its Representatives are advised by legal counsel that they are legally compelled to make such disclosures, Investor or its Representatives, as the case may be, (i) may without liability hereunder furnish only that portion of the Evaluation Material or other information regarding a possible Transaction that Investor or its Representatives are advised by legal counsel is legally required, (ii) will give the Company notice of the disclosures to be made to the extent legally permissible and (iii) will, if applicable, request that confidential treatment be accorded the Evaluation Material or other information regarding a possible Transaction so disclosed to the extent legally permissible; it being understood and agreed that there can be no such assurance that the tribunal or governmental or similar authority will grant any such request.\n4. No Warranty. ALL EVALUATION MATERIAL IS PROVIDED \u201cAS IS,\u201d AND THE COMPANY HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES REGARDING ITS ACCURACY, COMPLETENESS, PERFORMANCE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.\n5. No Legal Obligation, Representation, or Warranty. The parties agree that, unless and until a binding agreement is entered into between the Company and Investor with respect to the Transaction, neither the Company nor Investor will be under any legal obligation of any kind whatsoever with respect to the Transaction by virtue of this or any other written or oral expression, except with respect to the matters specifically agreed to herein. Nothing contained in any discussions between Investor and the Company or in any Evaluation Material shall be deemed to constitute a representation or warranty. Except for the matters set forth in this Agreement or in any such binding agreement, neither party shall be entitled to rely on any statement, promise, agreement, or understanding, whether oral or written, or any custom, usage of trade, course of dealing, or conduct.\n6. Return of Evaluation Material. At any time upon the written request of the Company, Investor will, at its own expense,\n(i) reasonably promptly redeliver to the Company or, at the at Investor\u2019s option, destroy all copies (including permanently erasing or deleting any electronic copies) of the Evaluation Material in the possession or control of Investor or any of its Representatives and\n(ii) reasonably promptly destroy all analyses, notes, data, compilations, summaries, forecasts, studies or other documents and materials prepared by Investor or any of its Representatives in connection with their evaluation and review of a possible Transaction that contain, reflect or are based upon or generated from, in whole or in part, any of the Evaluation Material. Upon the Company\u2019s written request, Investor will confirm any such destruction to the Company in writing. Notwithstanding the return or destruction of Evaluation Material, Investor will continue to be bound by its obligations of confidentiality hereunder respecting Evaluation Material, including without limitation, with respect to oral Evaluation Material and their obligation not to use any Evaluation Material for any purpose other than as specifically permitted in this Agreement.\n7. Non-Solicitation. For a period of eighteen months from the date of this Agreement, Investor will not, without the Company\u2019s prior written consent, directly or indirectly, solicit for purposes of employment, offer to hire or offer to enter into any contract with any executive officer of the Company with whom Investor has contact, or of whom Investor otherwise becomes aware, during its discussions with the Company or its evaluation of a possible Transaction; provided, however, that this paragraph shall not prohibit Investor from engagement in any general advertising or general solicitation not targeted to the Company\u2019s employees; and provided, further, that Investor shall not be prohibited from soliciting or hiring any such employee whose employment has been terminated by the Company or its affiliates.\n8. Standstill. For a period of eighteen months from the date of this Agreement, and except in connection with the Transaction, Investor will not, directly or indirectly, and Investor will cause any person controlled by Investor not to, without the prior written consent of the Board of Directors of the Company, (i) in any manner acquire, agree to acquire or make any proposal to acquire, directly or indirectly, any securities or property of the Company or any of its affiliates, (ii) propose to enter into, directly or indirectly, any merger, consolidation, recapitalization, business combination, partnership, joint venture or other similar transaction involving the Company or any of its affiliates, (iii) make, or in any way participate in any \u201csolicitation\u201d of \u201cproxies\u201d (as such terms are used in the proxy rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person with respect to the voting of any voting securities of the Company or any of its affiliates, (iv) form, join or in any way participate in a \u201cgroup\u201d (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company or any of its affiliates, (v) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company, (vi) disclose any intention, plan or arrangement inconsistent with the foregoing or (vii) advise, assist or encourage any other person in connection with any of the foregoing. Investor also agrees during such period not to (x) request the Company, directly or indirectly, to amend or waive any provision of this paragraph (including this sentence), (y) take any action that would reasonably be expected to require the Company or any of its affiliates to make a public announcement regarding this Agreement or the possibility of a Transaction, or (z) communicate with the Company\u2019s stockholders (other than communications with any of the officers of the Company, and any other employees of the Company designated by such officers, in the manner contemplated by this Agreement) regarding the subject matter of this Agreement.\n9. Acknowledgement. Investor acknowledges that it is aware, and that it will advise its Representatives who receive the Evaluation Material, that the United States securities laws prohibit any person who has received from an issuer material, non-public information from purchasing or selling securities of such issuer (and options, warrants and rights relating thereto) or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\n10. Public Disclosure. Each of the Company and Investor acknowledge and agree that it will not, and it will cause its respective employees, representatives, affiliates and agents not to, publicly disclose, confirm or acknowledge the existence, or terms and conditions, of this Agreement, or the fact that the Company may be considering a possible Transaction with Investor, other than in a press release approved by each party hereto or as otherwise specifically agreed in writing by the parties hereto, except to the extent the Company believes in good faith, after consultation with counsel, it is required by any law, rule or listing requirement to make such disclosure, provided that the Company shall not identify the Investor or any of its affiliates by name without the Investor\u2019s consent.\n11. No License. Investor acknowledges and agrees that nothing contained in this Agreement will be construed as granting any rights, by license or otherwise, to Investor or any of its Representatives to any Evaluation Material, or to any copyrights, trademarks, service marks, patent rights, trade secrets, or other proprietary rights of the Company.\n12. Third-Party Contacts. Neither Investor nor any of its Representatives shall knowingly contact any employee (other than the officers of the Company and other employees designated by such officers in the manner contemplated by this Agreement), supplier or customer of the Company regarding the Transaction or the Company\u2019s prospects, without the Company\u2019s prior written consent.\n13. No Commitment. Each of the Company and Investor understands and agrees that no contract or agreement or binding obligation providing for or with respect to any Transaction shall be created or deemed to exist unless and until a definitive agreement has been executed and delivered with respect thereto, and that, unless and until a definitive agreement between the parties has been executed and delivered, no party has any legal obligation of any kind whatsoever to enter into or pursue a Transaction by virtue of this Agreement or any other written or oral expression, whether before or after the execution of this Agreement.\n14. Equitable Remedies. Investor hereby agrees that a failure to comply with any provision of this Agreement would cause the Company irreparable harm and that monetary damages would be an inadequate remedy for an actual or threatened breach of this Agreement by Investor or any of its Representatives because of the difficulty of ascertaining the amount of damage that will be suffered by the Company in the event that this Agreement is breached. Accordingly, the Company will be entitled to specific performance of this Agreement and injunctive or other equitable relief as a remedy for any such breach without proof of actual damages. Investor further agrees to waive, and to use its reasonable efforts to cause its Representatives to waive, any requirement for the securing or posting of any bond in connection with any such remedy. Any such equitable remedy shall not be deemed to be the exclusive remedy for a breach of this Agreement, but shall be in addition to all other remedies available at law or equity to the Company.\n15. Authority. By signing below, each of the undersigned representatives of the parties hereto represents and warrants that he or she has full authority to execute this Agreement on his or her respective party\u2019s behalf and to bind his or her respective party to the terms of the Agreement.\n16. No Waiver. No course of action or failure to act by either party will constitute a waiver by a party of any right or remedy under this Agreement, and no waiver by either party of any right or remedy under this Agreement will be effective unless made in writing.\n17. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law. However, if any provision of this Agreement is prohibited or invalid under any applicable law, such provision will be ineffective only to the extent of such prohibition or invalidity without invalidating the remainder thereof or any of the remaining provisions of this Agreement.\n18. Governing Law; Venue; Waiver of Jury Trial. This Agreement shall be governed by, and construed in accordance with the laws of the State of Illinois, without reference to its conflicts of law principles. Each party consents to the jurisdiction of the state or federal courts in Cook County, Illinois, which will be the sole venue for resolution of all disputes related to this Agreement. THE PARTIES HERETO WAIVE THE RIGHT TO TRIAL BY JURY IN CONNECTION WITH ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.\n19. Entire Agreement; Successors and Assigns. This Agreement constitutes the entire agreement and understanding between Investor and the Company regarding the matters set forth herein, and no representations or promises have been made that are not fully set forth herein. This Agreement shall be binding solely on and inure to the benefit of the parties hereto and their respective successors and assigns.\n20. Counterparts; Facsimile Transmission. This Agreement may be executed in multiple counterparts, each of which shall serve as an original, but all of which shall constitute but one agreement. For purposes of executing this Agreement, any signed documents transmitted by facsimile machine with automatic confirmation of receipt shall be treated in all manner and respects as an original document. The signature of any party transmitted by facsimile machine shall be considered to be an original signature and any such document shall be considered to have the same binding legal effect as an original document executed, delivered and exchanged between the parties. At the request of any party, any executed document delivered by facsimile machine shall be re-executed by all parties in a \u201chard-copy\u201d form. The parties hereto hereby agree that none of them shall raise the use of a facsimile machine for the transmission of signatures as a defense to this Agreement and each such party hereby waives such defense.\nIN WITNESS WHEREOF, each of the undersigned has caused this Non-Disclosure Agreement to be executed by its duly authorized representative.\nFinancial Investments Corporation\nBy: /s/ HARRISON I. STEANS\nName: Harrison I. Steans\nTitle: Chairman of the Executive Committee\nTAYLOR CAPITAL GROUP, INC.\nBy: /s/ BRUCE W. TAYLOR\nBruce W. Taylor\nChief Executive Officer\n",
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"text": "MUTUAL NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT\n This Mutual Non-Disclosure and Non-Solicitation Agreement (this \"Agreement\"), is made as of September 17, 2001 between EarthLink, Inc. a Delaware corporation (\"EarthLink\"), and PeoplePC, Inc., a Delaware corporation (\"PeoplePC\"). EarthLink and PeoplePC are sometimes referred to herein individually as a \"Party\" and collectively as the \"Parties.\"\n 1. Purpose. EarthLink and PeoplePC wish to have discussions relating to a potential transaction (the \"Transaction\") between EarthLink (and/or its subsidiaries and stockholders) and PeoplePC (and/or its subsidiaries and stockholders). In the course of such discussions, each Party expects to make available to the other Party and its Representatives (as defined herein) Evaluation Material (as defined herein) concerning the businesses, financial condition, operations, assets, properties, liabilities, and prospects of such Party. As a condition to making such information available, each Party is entering this Agreement and agrees that all Evaluation Material received by it or its Representatives from the other Party or any of its Representatives shall be treated in accordance with this Agreement.\n 2. Certain Definitions. As used in this Agreement: (i) the term \"Receiving Party\" means the Party receiving Evaluation Material; (ii) the term \"Furnishing Party\" means the Party providing Evaluation Material or causing Evaluation Material to be provided; (iii) the term \"Representatives\" means the directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, investment bankers, financial advisors and other consultants and advisors engaged in connection with the review and evaluation of the Transaction) of the specified Party; and (iv) the term \"Evaluation Material\" means all proprietary and confidential information concerning the Furnishing Party or any of its subsidiaries or affiliates, whether in verbal, visual, written, electronic or other form, which is made available by the Furnishing Party or any of its Representatives to the Receiving Party or any of its Representatives (\"Primary Evaluation Material\"), together, in each case, with all notes, memoranda, summaries, analyses, studies, compilations and other writings relating thereto or based in whole or in part thereon prepared by the Receiving Party or any of its Representatives (\"Derivative Evaluation Material\"). Notwithstanding the foregoing, the term \"Evaluation Material\" shall not include, and the Parties' obligations herein (other than their obligations under paragraph 6 of this Agreement) shall not extend to information which (a) was rightfully in the possession of the Receiving Party prior to disclosure by the Furnishing Party; (b) was or is independently developed by the Receiving Party without use of the Evaluation Material; (c) is now or hereafter becomes available to the public other than as a result of disclosure by the Receiving Party or any of the Receiving Party's Representatives in violation of this Agreement; (d) becomes available to the Receiving Party or any of its Representatives on a non-confidential basis from a source other than the Furnishing Party or any of its Representatives and such source is not, to the knowledge of the Receiving Party following reasonable inquiry, under any obligation to the Furnishing Party or any of its Representatives (whether contractual, legal or fiduciary) to keep such information confidential; or (e) is transmitted by or on behalf of the Furnishing Party after receiving written notification from the Receiving Party of the termination of discussions relating to the Transaction or written instructions from the Receiving Party not to furnish any further Evaluation Material.\n 3. Confidentiality and Use of Evaluation Material.\n (a) Confidentiality of Evaluation Material. All Evaluation Material (i) shall be used solely for the purpose of evaluating and considering the Transaction; (ii) shall be kept strictly confidential by the Receiving Party; and (iii) shall be provided by the Receiving Party solely to those of its Representatives to whom disclosure is reasonably required to facilitate the Receiving Party's evaluation or consideration of the Transaction, it being the intention of the Parties to restrict the dissemination of Evaluation Material to as small a working group as practicable. The Parties agree that all Evaluation Material is and shall remain the property of the Furnishing Party. Before providing access to Evaluation Material to any Representative, the Receiving Party shall inform such Representative of the confidentiality of the Evaluation Material, and shall advise such Representative that, by accepting possession of or access to such information, such Representative is agreeing to be bound by this Agreement. Each Party shall be responsible for any breach of this Agreement by any of its Representatives.\n (b) Compulsory Disclosure of Evaluation Material. If the Receiving Party or its Representatives are requested or required in any judicial, arbitral or administrative proceeding or by any governmental or regulatory authority to disclose any Evaluation Material (whether by deposition, interrogatory, request for documents, subpoena, civil investigative demand, or otherwise), or the Receiving Party is so requested or required to disclose any of the facts disclosure of which is prohibited under paragraph (3)(e) of this Agreement, the Receiving Party shall give the Furnishing Party prompt notice of such request so that the Furnishing Party may seek an appropriate protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement, and, upon the Furnishing Party's request and at the Furnishing Party's expense, shall reasonably cooperate with the Furnishing Party in seeking such an order. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Furnishing Party, the Receiving Party is nontheless, in the opinion of the Receiving Party's or (in the case of disclosure requested or required of a Representative, such Representative's) outside counsel or General Counsel, legally compelled to disclose Evaluation Material, the Receiving Party shall disclose only that portion of the Evaluation Material which the Receiving Party is legally required to disclose and upon the Furnishing Party's request and at the Furnishing Party's expense, shall use all requisite reasonable efforts to obtain assurances that confidential treatment will be accorded to such Evaluation Material to the extent such assurances are available. Subject to the foregoing conditions and limitations, the Receiving Party may disclose Evaluation Material under the circumstances set forth in this paragraph (b) without liability hereunder.\n (c) Other Public Disclosure. Except (i) for such public disclosure as may be necessary, in the good faith judgment of the disclosing Party consistent with advice of counsel, for the disclosing Party not to be in violation of any applicable law, regulation or order, or (ii) with the prior written consent of the order Party, neither Part shall:\n (x) make any disclosure (and each Party shall direct its Representatives not to make any disclosure) to any person of (A) the fact that discussions, negotiations or investigations are taking or have taken place concerning a Transaction, (B) the existence or contents of this Agreement, or the fact that either Party has requested or received Evaluation Material from the other Party, or (C) any of the terms, conditions or other facts with respect to any proposed Transaction, including the status of the discussions or negotiations related thereto, or\n (y) make any public statement concerning a proposed Transaction.\n (d) Notice If either Party proposes to make any disclosure in reliance on clause (i) above, the disclosing Party shall, to the extent practicable, provide the other Party with the text of the proposed disclosure as far in advance of its disclosure as is practicable and shall in good faith consult with and consider the suggestions of the other Party concerning the nature and scope of the information it proposes to disclose. Notwithstanding the foregoing, a Party may make such public announcement or public statement if in the opinion of such Party's outside counsel or General Counsel, such public announcement or public statement is necessary to avoid committing a violation of law or of any rule or regulation of any securities association, stock exchange or national securities quotation system on which such Party's securities are listed or trade. In such event, the disclosing Party shall use its reasonable best efforts to give advance notice to the other Party and to consult with the other Party on the timing and content of any such public announcement or public statement.\n (e) Certain Securities Law Restrictions. Each Party acknowledges that the Evaluation Material may contain material nonpublic information concerning the Furnishing Party. Each Party further acknowledges its awareness of the restrictions imposed by federal and state securities laws on persons in possession of material nonpublic information. Nothing herein shall constitute an admission by either Party that any Evaluation Material in fact contains material nonpublic information concerning the Furnishing Party.\n (f) Contact with Employees and Representatives. Neither Party shall communicate with any employee of the other Party regarding the Transaction or disclose any Evaluation Material to any employee or Representative of the other Party, other than the employees and Representatives named on the working group lists provided by the Parties from time to time.\n (g) General. Notwithstanding any other provision of this Agreement, neither Party will be restricted from using the information contained in the Evaluation Material that is retained in the minds of Representatives who have had access to the other Party's Evaluation Material, unless such use shall infringe on any of such Party's patent rights, trademark rights or copyright rights.\n 4. Accuracy of Evaluation Material: No Representations or Warranties. Each Party acknowledges and agrees (a) that no representation or warranty, express or implied, is made by either Party or any of its respective Representatives as to the accuracy or completeness of the Evaluation Material, and (b) that the Parties shall be entitled to rely only on those representations and warranties (if any) that may be made in a definitive written agreement for the Transaction, signed and delivered by both Parties, and then only to the extent, and subject to the limitations, provided therein.\n 5. No Solicitation.\n (a) For a period of one year subsequent to the termination of discussions regarding a Transaction, neither Party shall, without the prior written consent of the other Party, directly or indirectly solicit for hire any person currently employed by the other Party (or any of its subsidiaries) with whom the hiring Party first has contact, or who first becomes known to the hiring Party. In the course of the Parties' discussions and due diligence with respect to the proposed Transaction; provided, however, that the foregoing provision shall not prevent either Party, without such consent, from employing any employee who (i) contacts the hiring Party directly at his or her own initiative without any direct or indirect solicitation by or encouragement from the hiring Party, (ii) responds to a mass media solicitation or advertisement consistent with the hiring Party's past practices that is not directed at employees of the other Party or (iii) is identified by a third party executive search firm or employment agency without any assistance from such Party.\n (b) For a period one year from the date of this Agreement, neither Party shall, without the prior written consent of the other Party or the other Party's board of directors, either directly or indirectly through any affiliate or Representative or otherwise: (i) acquire, offer to acquire, or agree to acquire, by purchase, tender offer, merger, consolidation, share exchange or otherwise, ownership or control of any voting securities, or any direct or indirect right to acquire any voting securities, of the other Party, any subsidiary thereof, or any successor corporation thereto; (ii) make, or in any way participate in any \"solicitation\" of \"proxies\" (as such terms are used in the rules and regulations of the Securities and Exchange Commission) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of the other Party; (iii) seek or propose to influence or control the management or policies of the other Party; (iv) make any public announcement with respect to, or submit a proposal for, or offer of any merger, acquisition or other business combination or extraordinary transaction involving the other Party or any of its subsidiaries or any securities or assets of the other Party or any of its subsidiaries; (v) form, join or in any way participate in a \"group\"( as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing, or (vi) request the other Party or any of the other party's Representatives to amend or waive any provision of this paragraph 5(b) in any manner which may reasonably be expected to compel or result in public disclosure; provided that such limitations shall expire upon the public announcement of a third party tender offer for more than fifty percent of the outstanding voting 3\nsecurities of the other Party or a business combination between the other Party and a third party. Each Party (the \"Representing Party\") represents and warrants to the other Party that as of the date of this Agreement the Representing Party does not directly or indirectly own or possess voting or dispositive control over any voting securities of the other Party.\n 6. Return and Destruction of Evaluation Material. At any time after termination of discussions by either Party with respect to the Transaction, upon the request of the Furnishing Party, the Receiving Party shall promptly (and in no event later than five business days after such request) (a) redeliver or cause to be redelivered to the Furnishing Party all copies of all Primary Evaluation Material in the possession or control of the Receiving Party or its Representatives which is in a visual or written format and erase or destroy all copies of all such Primary Evaluation Material which is stored in electronic format, and (b) destroy or cause to be destroyed all Derivative Evaluation Material in the possession or control of the Receiving Party or any of its Representatives. Nothing herein shall obligate the Receiving Party to provide any Derivative Evaluation Material to the Furnishing Party. Notwithstanding the return, destruction or erasure of Evaluation Material hereunder, the Receiving Party and its Representatives shall continue to be bound by their confidentiality and other obligations hereunder.\n 7. Remedies. Each Party agrees that money damages would not be a sufficient remedy for any breach of any provision of this Agreement by it or any of its Representatives, and that in addition to all other remedies which either Party may have, each Party shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or in equity. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. In the event that either Party should institute proceedings to enforce any provision of this Agreement, the prevailing Party in such proceedings shall be entitled to recover all expenses relating to the enforcement of this Agreement, including reasonable attorneys' fees and costs, in addition to any other remedies.\n 8. Miscellaneous.\n (a) No License. Neither Party grants a license, by implication or otherwise, under any of its trade secrets or other intellectual property rights to the Receiving Party. The terms of this Agreement shall not be construed to limit either Party's right to independently develop or acquire products without use of the other Party's Evaluation Material. The Furnishing Party acknowledges that the Receiving Party may currently or in the future develop information internally, or receive information from other parties, that is similar to the Evaluation Material. Accordingly, nothing in this Agreement will be construed as a representation or agreement that the Receiving Party will not develop or have developed for its products, concepts, systems, or techniques that are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the Evaluation Material, provided that the Receiving Party does not violate any of its obligations under this Agreement in connection with such development.\n (b) Entire Agreement. This Agreement contains the sole and entire agreement between the Parties with respect to the confidentiality of the Evaluation Material and the confidentiality of their discussions, negotiations and investigations concerning a Transaction.\n (c) Amendment and Waiver. This Agreement may be amended, modified or waived only by a separate written instrument duly signed and delivered by or on behalf of both Parties.\n (d) Severability. The invalidity or unenforceability of any provision of this Agreement shall not impair or affect the validity or enforceability of any other provision of this Agreement unless the enforcement of such provision in such circumstances would be inequitable.\n (e) No Obligation to Complete a Transaction. It is expressly understood that this Agreement is not intended to, and does not, constitute an agreement to consummate a Transaction, to conduct or continue negotiations with respect to a Transaction, or to enter into a definitive agreement with respect to a Transaction, and neither Party shall have any rights or obligations of any kind whatsoever with respect to such a Transaction by virtue of this Agreement or by virtue of any other written or oral expression by the Parties' respective Representatives unless and until a definitive agreement with respect to a Transaction is executed and delivered by both Parties, other than for the matters specifically agreed to herein. Both Parties further acknowledge and agree that each Party reserves the right, in its sole discretion, to provide or not to provide Evaluation Material to the Receiving Party under this Agreement, to reject any and all proposals made by the other Party or any of its Representatives with regard to a Transaction, and to terminate discussions and negotiations at any time. If either Party determines not to proceed with negotiations with respect to a Transaction, it will promptly inform the other Party of such determination.\n (f) Governing Law; Forum. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Georgia, without regard to the principles of the conflict of laws thereof. Each Party consents and submits to the exclusive jurisdiction of the federal and state courts in the State of Georgia, and the city of Atlanta, for the adjudication of any action, suit, or proceeding arising out of or otherwise relating to this Agreement.\n[Signatures on following page]\n The Parties have executed this Agreement as of the date first written above.\nEarthLink, Inc. PeoplePC, Inc.\nBy: /s/ BRINTON O.C. YOUNG By: /s/ CHARLES ORTMEYER\nName: Brinton O.C. Young Name: Charles Ortmeyer\nTitle: EVP of Strategic Planning Title: SVP and General Counsel\n",
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"text": "Exhibit 99.8\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this \u201cAgreement\u201d) is made and entered into as of October 17, 2016 by and between Fairfax Financial Holdings Limited, a Canadian corporation (\u201cFairfax\u201d), and Allied World Assurance Company Holdings, AG, a Swiss company (\u201cAllied World\u201d).\nWHEREAS, in order to evaluate a possible business combination or similar transaction (the \u201cPossible Transaction\u201d) between Fairfax (or one of its affiliates) and Allied World, each of Fairfax and Allied World may disclose and deliver to the other party (such first party, when disclosing such information, being the \u201cDisclosing Party\u201d and such other party, when receiving such information, being the \u201cReceiving Party\u201d) certain information about the Disclosing Party and/or its subsidiaries for the sole purpose of enabling the Receiving Party to evaluate, negotiate and consummate the Possible Transaction; and\nWHEREAS, as a condition to pursuing these discussions and exchanging information, the parties wish to enter into this Agreement to restrict the use and disclosure of such discussions and information and to provide for certain other matters;\nNOW THEREFORE, in consideration of the mutual covenants and agreements contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Fairfax and Allied World mutually agree as follows:\n1. Non-Disclosure Agreement.\n(a) All information that is furnished directly or indirectly by the Disclosing Party or any of its Representatives (as defined below), whether or not marked as confidential and whether furnished before or after the date hereof, whether in oral, written or electronic form, together with any notes, reports, summaries, analyses, compilations, forecasts, studies, interpretations, memoranda or other materials prepared by the Receiving Party or any of its Representatives that contain, references to or are based upon, in whole or in part, any information so furnished to the Receiving Party or any of its Representatives pursuant hereto (such notes, reports, summaries, analyses, compilations, forecasts, studies, interpretations, memoranda or other materials are referred to herein as \u201cDerivative Materials\u201d), is referred to herein as \u201cProprietary Information\u201d. Proprietary Information does not include, however, information that (i) was or becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party or any of its Representatives, which source the Receiving Party does not know, after reasonable inquiry, to be in violation of any legal duty or obligation owed to the Disclosing Party or any of its Representatives with respect to such information, (ii) was or becomes generally available to the public (other than as a result of a breach by the Receiving Party or its Representatives of this Agreement or a violation by the Receiving Party or its Representatives of any other non-use or confidentiality obligation), (iii) was previously in the possession of the Receiving Party, or (iv) was independently developed by the Receiving Party or any of its Representatives without reference to the\nProprietary Information. The term \u201cRepresentative\u201d means, as to any person, such person\u2019s affiliates, officers, directors, general partners, members, employees, consultants, investment bankers, financial advisors, accountants, legal counsel, consultants and potential lenders. The term \u201caffiliate\u201d has the meaning set forth in Rule 12b-2 of the regulations promulgated under Securities Exchange Act of 1934, as amended (the \u201cExchange Act\u201d).\n(b) Except as otherwise permitted under this Agreement or as required by applicable law, regulation, stock exchange rule or by legal, judicial, regulatory or administrative process (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) (\u201cLegally Required\u201d), (a) the Receiving Party shall, and shall cause its Representatives to, keep all Proprietary Information confidential and not disclose or reveal any Proprietary Information to any person other than its Representatives who are participating in evaluating, negotiating, advising or financing with respect to the Possible Transaction or who otherwise need to know the Proprietary Information for the purpose of evaluating, negotiating, advising or financing with respect to the Possible Transaction (all of whom shall be informed of the confidential nature of such Proprietary Information) and shall cause its Representatives to treat such Proprietary Information in a confidential manner and in accordance with the terms hereof, provided that each party shall be responsible for any breach of this Agreement by any of its respective Representatives, (b) the Receiving Party shall not, and shall cause its Representatives not to, use any Proprietary Information for any purpose other than in connection with evaluating, negotiating, advising or financing with respect to the Possible Transaction or the consummation of the Possible Transaction, and (c) neither party shall, nor cause or permit their respective Representatives to, disclose to any person the existence or terms of this Agreement or that discussions or negotiations are taking or have taken place concerning the Possible Transaction, or any term, condition or other matter relating to the Possible Transaction (the information referred to in this clause (c), the \u201cTransaction Information\u201d). For the avoidance of doubt, each of those affiliates and Representatives of a Receiving Party that do not receive or have access to the Proprietary Information of the other party and the Transaction Information shall not be bound by or subject to the terms of this Agreement.\n2. Legally Required Disclosure; Return or Destruction of Proprietary Information. In the event the Receiving Party (or any of its Representatives) shall be Legally Required to disclose any Proprietary Information or Transaction Information, the Receiving Party shall, in advance of such disclosure, to the extent legally permissible, provide the Disclosing Party with notice of such requirement and a description of the Proprietary Information and Transaction Information that the Receiving Party or its Representative intends to disclose and to reasonably cooperate with the Disclosing Party to the extent it may seek to limit such disclosure, including, if requested, taking all reasonable steps, at the Disclosing Party\u2019s expense, to resist or avoid any such legal, judicial, regulatory or administrative process or to obtain a protective order in respect thereof. Upon either party\u2019s request, each party hereto shall (and shall cause its Representatives, and any other person, to whom it has disclosed any Proprietary Information or Transaction Information) promptly either (at the Receiving Party\u2019s option) return to the other party hereto or destroy (and certify in writing to the other party by an authorized officer supervising such destruction) all copies or other reproductions of Proprietary Information of the other party, other than any Derivative Materials, in its possession or the possession of any of its Representatives, and shall not retain any copies or other reproductions, in whole or in part, of such materials. The Receiving Party shall destroy all Derivative Materials, and such destruction will be certified in writing to the Disclosing Party by an authorized officer supervising such destruction. Notwithstanding the foregoing, the Receiving Party may retain data or electronic records containing Proprietary Information or Derivative Materials for the purposes of complying with its record retention policies or as required by applicable law so long as such data or records are not accessible in the ordinary course of business. Notwithstanding the return or destruction of Proprietary Information required by this Paragraph 2, for the duration of the term of this Agreement, the Receiving Party and its Representatives shall continue to be bound by all duties and obligations hereunder in accordance with the terms hereof.\n3. Standstill. Each party hereby represents to the other party that, as of the date hereof, neither it nor any of its affiliates has beneficial ownership (as defined in Rule 13d-3 under the Exchange Act) of any securities of the other party or any of its subsidiaries (other than securities owned by any benefit plan of such party). Each party further covenants and agrees, in consideration of it being furnished with Proprietary Information, that neither it nor any of its affiliates who have received or had access to the Proprietary Information of the other party (a \u201cRestricted Affiliate\u201d) will, at any time commencing on the date hereof and ending on the earliest of (a) the twelve (12) month anniversary of this Agreement, (b) the execution and delivery by Fairfax (or its affiliate(s)) and Allied World of a definitive agreement to effect the Possible Transaction and (c) a Fundamental Change Event (as defined below) with respect to the other party, directly or indirectly, unless requested in writing (or by email) by the other party\u2019s chief executive officer, chairman or board of directors: (i) acquire (or agree, offer, seek or propose to acquire, in each case, publicly or privately), by purchase, tender offer, exchange offer, agreement or business amalgamation or combination or in any other manner, any ownership, including beneficial ownership, as defined in Rule 13d-3 under the Exchange Act, of any material assets or businesses or any securities of the other party or any of its subsidiaries, or any rights or options to acquire such ownership (including from any third party); (ii) publicly or privately offer to enter into, or publicly or privately propose, any merger, business combination, amalgamation, recapitalization, restructuring or other extraordinary transaction with the other party or any of its subsidiaries; (iii) initiate any stockholder proposal or the convening of a stockholders\u2019 meeting of or involving the other party or any of its subsidiaries; (iv) solicit proxies (as such terms are defined in Rule 14a-1 under the Exchange Act) or consents to vote with respect to any matter from, or otherwise seek to influence, advise or direct the vote of, holders of any shares of capital stock of the other party or any securities convertible into or exchangeable or exercisable for such capital stock; (v) otherwise seek or propose to influence, advise, change or control the management, board of directors, governing instruments, affairs or policies of the other party or any of its subsidiaries; (vi) make any public disclosure, or take any action that could reasonably be expected to require the other party to make a public disclosure, with respect to any of the matters set forth in this Agreement or (vii) assist, advise, act in concert or participate with or encourage others to, including as part of a \u201cgroup\u201d within the meaning of Section 13(d)(3) of the Exchange Act, any of the foregoing; provided, however, that nothing in this Agreement shall prohibit a party from making a non-public proposal to the other party with respect to any transaction of the type described in clause (ii) of this Paragraph 3, so long as such proposal is not knowingly made by such party in a manner that would require the public disclosure thereof by either party. A \u201cFundamental Change Event\u201d means a party has after the date of this Agreement entered into a definitive written agreement with a third party providing for (i) any acquisition of a majority of the voting securities of such party by any person or group, (ii) any acquisition of a majority of the consolidated assets of such party and its subsidiaries by any person or group, or (iii) any tender or exchange offer, merger or other business combination, amalgamation or any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction (provided that, in the case of any transaction covered by the foregoing clause (iii), immediately following such transaction, any person (or the direct or indirect shareholders of such person) will beneficially own a majority of the outstanding voting power of such party or the surviving parent entity in such transaction).\n4. Non-Solicit. In consideration of being furnished the Proprietary Information by the other party, each party agrees that, for a period of twelve (12) months from the date of this Agreement, such party and its Restricted Affiliates shall not employ or solicit to employ any of the current officers or employees of the other party or its subsidiaries with whom such party or its Representatives has had contact in connection with the evaluation of the Possible Transaction or who were specifically identified to such party during the period of investigation of the other party pursuant to this Agreement, without obtaining the prior written consent of the other party. The use of an independent employment agency or employee search firm (so long as it is not directed by such party to solicit employees of the other party or its subsidiaries) or newspaper, trade publication or online job advertising and the hiring as a result thereof of any employee shall not be construed as a breach of this Agreement.\n5. Term. This Agreement shall terminate and be of no further force and effect on the earlier of (a) one (1) year from the date hereof and (b) the execution and delivery by Fairfax and Allied World of a definitive agreement to effect the Possible Transaction.\n6. Miscellaneous. This Agreement will be governed by the laws of the State of New York and will be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. This Agreement may be amended or modified only in a written instrument executed by the parties hereto. It is understood and agreed that money damages would not be a sufficient remedy for any breach of this Agreement and that each party shall be entitled to specific performance as a remedy for any such breach or threatened breach of this Agreement. This remedy shall not be deemed to be the exclusive remedy for any breach or threatened breach of this Agreement but shall be in addition to all other remedies available at law or equity. The parties hereto agree that unless and until a definitive agreement is executed and delivered with respect to the Possible Transaction, neither party intends to be, nor shall either be, under any legal obligation with respect to the Possible Transaction or otherwise, by virtue of any written or oral expressions by themselves or their respective Representatives with respect to the Possible Transaction, including any obligation to commence or continue discussions or negotiations, except for the matters specifically agreed to in this Agreement. Neither party hereto makes any representation or warranty, express or implied, on which the other party may rely as to the accuracy or completeness of the Proprietary Information and only those representations and warranties made in writing in a definitive agreement for a Possible Transaction, if any, shall have any legal effect. The parties hereto also agree that, other than as may be set forth in a definitive agreement for a Possible Transaction, neither party hereto shall have any liability whatsoever to the other party, including in contract, tort or under federal or state securities laws, arising out of, relating to, or resulting from, any errors or omissions in the Proprietary Information. This Agreement may be executed in one or more counterparts which may be delivered by way of PDF or similar electronic facsimile, each of which shall be deemed an original, and all of which shall constitute one and the same Agreement.\nIN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first above written.\nFAIRFAX FINANCIAL HOLDINGS LIMITED\nBy: /s/ Paul Rivett\nName: Paul Rivett\nTitle: President\nALLIED WORLD ASSURANCE COMPANY HOLDINGS, AG\nBy: /s/ Wesley D. Dupont\nName: Wesley D. Dupont\nTitle: EVP, General Counsel\n",
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"text": "EXHIBIT 10.4\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis Confidentiality and Non-Disclosure Agreement (\u201cAgreement\u201d) is entered into as of February 19, 2014, by and between Calpine Corporation, a Delaware corporation with its principal executive offices at 717 Texas Avenue, Suite 1000, Houston, Texas 77002 (\"Calpine\"); and LS Power Equity Advisors, LLC, a Delaware limited liability company, with its principal executive offices at 1700 Broadway, 35th Floor, NY, NY 10019 (\u201cLS Power\u201d), referred to collectively as \"Parties\" and individually as \"Party.\"\nRECITALS\nA. The Parties desire to exchange certain proprietary or confidential information for the purpose of evaluating the potential acquisition of certain of Calpine\u2019s power generating facilities and other assets (the \u201cProposed Transaction\u201d); and\nB. The Parties are willing to provide such information for such purpose in accordance with the terms hereof; NOW, THEREFORE, Calpine and LS Power do hereby mutually agree as follows:\n1. Definitions.\na. \"Confidential Information\" shall mean all confidential or proprietary written, recorded, electronic or oral information or data (including without limitation research, developmental, engineering, manufacturing, technical, marketing, sales, financial, operating, performance, cost, business and process information or data, trade secrets, discoveries, ideas, designs, data, source code, object code, processes, computer programs, developments, flow diagrams, know-how, and computer programming and other software and software techniques) provided (whether such confidentiality or proprietary status is indicated orally or in writing, whether or not the specific words \"confidential\" or \"proprietary\" are used) to a Party (the \u201cReceiving Party\u201d) by the other Party (the \u201cDisclosing Party\u201d) in the course of the exchange of such information or data between the Parties. Without limiting the aforesaid, the existence of discussions between the Parties regarding the Proposed Transaction shall constitute Confidential Information hereunder.\nb. \u201cPerson\u201d shall be broadly interpreted to include, without limitation, any corporation, company, partnership, other entity or individual.\nc. \u201cRepresentatives\u201d shall mean as to any Person, its directors, officers, employees, agents and advisors (including, without limitation, financial advisors, attorneys and accountants).\n2. Confidentiality and Non-Use. In consideration of each Party's providing Confidential Information, the Parties agree as follows:\na. The Receiving Party shall hold confidential and not disclose to any Person, without the prior written consent of the Disclosing Party, all Confidential Information and any information about the Proposed Transaction, or the terms or conditions or any other facts relating thereto, including, without limitation, the fact that discussions are taking place with respect thereto or the status thereof, or the fact that Confidential Information has been made available to the Receiving Party or its Representatives; provided, however, that the Receiving Party may disclose such Confidential Information to its Representatives who are actively and directly participating in its evaluation of the Proposed Transaction or who otherwise need to know the Confidential Information for the purpose of evaluating the Proposed Transaction;\nb. The Receiving Party shall cause all its Representatives to observe the terms of this Agreement and shall be responsible for any breach of the terms of this Agreement by it or its Representatives; and\nc. The Receiving Party shall return or destroy all Confidential Information (including all copies thereof) within thirty (30) days of receipt of a written request.\nIn addition to the foregoing, the Receiving Party will not use the Confidential Information (a) in any way detrimental to the Disclosing Party\u2019s shareholders or (b) for any purpose other than in connection with the Proposed Transaction between the Parties.\n3. Exceptions to the Confidentiality and Non-Use Obligations. The obligations imposed by Section 2 hereof shall not apply, or shall cease to apply, to any Confidential Information if or when, but only to the extent that, such Confidential Information:\na. was known to the Receiving Party prior to the receipt of the Confidential Information; or\nb. was, or becomes through no breach of the Receiving Party's obligations hereunder, known to the public; or\nc. becomes known to the Receiving Party from sources other than the Disclosing Party under circumstances not involving any breach of any confidentiality obligation; or\nd. is independently developed by the Receiving Party, as evidenced by the written records thereof.\nIt shall not be a breach of the confidentiality obligations hereof for a Receiving Party to disclose Confidential Information where, but only to the extent that, such disclosure is required by law or applicable legal process, provided in such case the Receiving Party shall (i) give the earliest notice possible to the Disclosing Party that such disclosure is or may be required and (ii) reasonably cooperate in protecting such confidential or proprietary nature of the Confidential Information which must so be disclosed.\n4. No Further Agreements Hereunder. Neither Calpine nor LS Power or any parent, subsidiary or affiliate thereof, shall be under any obligation to enter into any further agreements with the other signatory hereto or its parents, subsidiaries or affiliates of any nature whatsoever as a result of this Agreement. The Parties shall be free at all times to hold negotiations or enter into agreements with any other persons whatsoever (including with respect to projects under discussion by the Parties hereto) in addition to or in lieu of the discussions hereunder and any such activities shall not be a breach of this agreement or any obligations owed to the other Party hereunder. Each Party hereto reserves the right, in its sole discretion, to decline, to retract or to reject at any time any proposal which has not yet become legally binding by execution of a written agreement between the Parties with respect thereto, or with respect to any further agreements or business arrangements with the other Party hereto, its parents, subsidiaries or affiliates and to terminate all further discussions and negotiations.\n5. No Representations and Warranties. Each of the Parties make no representation or warranties, express or implied, of any kind to the other Party with respect to the Confidential Information, including without limitation with respect to the accuracy or completeness thereof. Any representations or warranties shall be made thereby, if at all, only in definitive written agreements that may be entered into hereafter.\n6. Termination; Duration of Obligations. Unless sooner terminated by mutual written Agreement of the Parties hereto, this Agreement and the obligations hereunder shall terminate one (1) year from the date hereof.\n7. Entire Agreement. This Agreement represents the entire understanding and agreement of the Parties and supersedes all prior communications, agreements and understandings between the Parties relating to the subject matter hereof.\n8. Waivers; Amendments; Assignment; Counterparts. This Agreement may not be modified, amended or waived except by a written instrument duly executed by both Parties. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. This Agreement may not be assigned by either Party without the prior written consent of the other and shall be binding on, and inure to the benefit of, the respective successors of the Parties thereto. This Agreement may be signed in two or more counterpart originals, each of which shall constitute an original document. The Parties agree that this Agreement can be executed via facsimile signatures and be binding.\n9. Governing Law; Disputes. This Agreement is made subject to and shall be construed under the laws of the State of New York, without giving effect to its principles or rules regarding conflicts of laws, and that the state and federal courts situated in the State of New York shall have exclusive jurisdiction to resolve any disputes with respect to this Agreement or the Confidential Information with each Party irrevocably consenting to the jurisdiction thereof for any actions, suits or proceedings arising out of or relating to this Agreement or the Confidential Information, and each Party irrevocably waives its rights to jury trials with respect thereto.\n10. Remedies. Without prejudice to the rights and remedies otherwise available to either Party, each Party shall be entitled to equitable relief by way of injunction or otherwise if the Receiving Party or any of its Representatives breach or threaten to breach any of the provisions of this Agreement and the Receiving Party shall not plead in defense thereto that there would be an adequate remedy at law.\n11. Non-Publicity: All media releases, public announcements and other disclosures by either Party relating to this Agreement or the subject matter hereof, including promotional or marketing material, but excluding announcements intended solely for internal distribution or to meet legal or regulatory requirements, shall be coordinated with and approved by the other Party prior to release. In addition, the Receiving Party shall refrain from removing, overprinting or defacing any notices of copyright, trademark, logo or other proprietary identifications or notices of confidentiality, from any originals or copies of the Disclosing Party\u2019s Confidential Information.\nIN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed by their respective, fully authorized representatives as of the date first written above.\nCalpine Corporation LS Power Equity Advisors, LLC\nBy: /s/ W. THADDEUS MILLER By: /s/ JAMES BARTLETT\nName: W. Thaddeus Miller Name: James Bartlett\nExecutive Vice President, Chief\nTitle: Legal Officer & Secretary Title: President\nDate: 02/19/14 Date: 02/19/14\n",
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"document_type": "sec-html",
"url": "https://www.sec.gov/Archives/edgar/data/0000916457/000091645714000028/exhibit104-confidentiality.htm"
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{
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"file_name": "1316898_0001047469-18-005618_a2236490zex-99_d2.htm",
"text": "Exhibit (d)(2)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Mutual Nondisclosure Agreement (this \u201cAgreement\u201d) by and between Jamba, Inc., a Delaware corporation, including on behalf of its affiliates (the \u201cCompany\u201d), and FOCUS Brands Inc., a Delaware corporation, including on behalf of its subsidiaries (the \u201cParticipant\u201d and together with the Company, each a \u201cParty\u201d and collectively, the \u201cParties\u201d), is dated as of the latest date set forth on the signature page hereto (the \u201cEffective Date\u201d).\n1. General. In connection with the consideration of a possible negotiated transaction (a \u201cPossible Transaction\u201d) between the Parties, each Party (in its capacity as a provider of information hereunder, a \u201cProvider\u201d) is prepared to make available to the other Party (in its capacity as a recipient of information hereunder, a \u201cRecipient\u201d) certain Evaluation Material (as defined in Section 2 below) in accordance with the provisions of this Agreement, and hereby agrees to take or abstain from taking certain other actions as hereinafter set forth.\n2. Definitions.\n(a) The term \u201caffiliates\u201d shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with such Person.\n(b) The term \u201cBeneficial Ownership\u201d when used with reference to a security shall have the meaning ascribed to it under the Securities Exchange Act of 1934, as amended (the \u201c1934 Act\u201d), except that for purposes of this definition, the term security shall include any option, warrant, or convertible security regardless of exercise or conversion date, and also include any stock appreciation right, or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to the security or with a value derived in whole or in part from the value of the security, whether or not such instrument or right shall be subject to settlement in securities or otherwise and any other direct or indirect opportunity to profit or share in any profit derived from any increase or decrease in the value of the security.\n(c) The term \u201cEvaluation Material\u201d means information (whether oral, written, electronic or otherwise) concerning Provider which has been or is furnished to Recipient or its Representatives (as defined below) by or on behalf of Provider in connection with Recipient\u2019s evaluation of a Possible Transaction, including Provider\u2019s business, financial condition, operations, assets, liabilities, personnel and contracts, and includes all notes, analyses, compilations, studies, interpretations or other documents prepared by Recipient or its Representatives which contain or are based upon, in whole or in part, the information furnished by the Provider hereunder. The term Evaluation Material does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by Recipient or any of its Representatives in breach of this Agreement, (ii) was within a Recipient\u2019s or its Representatives\u2019 (on behalf of Recipient) possession, prior to its being furnished to Recipient or its Representatives by or on behalf of Provider or (iii) is or becomes available to Recipient or its Representatives (on behalf of Recipient) from a source other than the Provider or its Representatives, provided that the source of such information was not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, Provider with respect to such information or (iv) Recipient can reasonably show was independently developed by Recipient or Recipient\u2019s Representatives without the use of or reference to any Evaluation Material provided by or on behalf of Provider or its Representatives.\n(d) The term \u201cRepresentatives\u201d shall include the directors, officers, employees, potential financing sources, partners, agents and advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) of a Party who have a need to know the Evaluation Material for purposes of evaluating a Possible Transaction, but only those of the foregoing who actually receive Evaluation Material directly from or at the direction of such Party. For the avoidance of doubt, Roark Capital Acquisition LLC shall be a Representative of FOCUS Brands Inc. under this Agreement.\n(e) The term \u201cPerson\u201d includes the media and any corporation, partnership, group, individual or other entity.\n3. Use of Evaluation Material. Each Recipient shall, and shall cause its Representatives to, (i) use the Evaluation Material solely for the purpose of evaluating a Possible Transaction and (ii) keep the Evaluation Material confidential, and, subject to Section 5, will not, and will cause its Representatives not to, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such information may be disclosed to Recipient\u2019s Representatives who need to know such information for the sole purpose of helping Recipient evaluate a Possible Transaction. Each Recipient agrees to be responsible for any breach of this Agreement by any of such Recipient\u2019s Representatives.\nThis Agreement does not grant Recipient or any of its Representatives any license to use Provider\u2019s Evaluation Material except as provided herein. In addition, all proprietary and intellectual property rights in and to the Evaluation Material shall remain the sole property of Provider, and nothing in this Agreement shall be construed in any way to grant to Recipient or its Representatives or any other Person any express or implied option, license or other right, title or interest in or to any Evaluation Material, or to any intellectual property rights embodied in such Evaluation Material.\n4. Non-Disclosure of Discussions. Subject to Section 5, each Party agrees that, without the prior written consent of the other Party, such Party will not, and will cause its Representative not to, disclose to any other Person (i) that Evaluation Material has been exchanged between the Parties, (ii) that discussions or negotiations are taking place between the Parties concerning a Possible Transaction or any other transaction between the Parties or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof) ; provided, however, that nothing contained herein shall be deemed to inhibit, impair or restrict the ability of Recipient or its Representatives from having discussions or negotiations with other persons relating to potential financing in connection with the Possible Transaction so long as each of such Persons agrees in writing to be bound by the terms of this Agreement applicable to Representatives.\n5. Legally Required Disclosure. If a Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall provide Provider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed so that Provider may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by Provider, a Recipient or any of its Representatives is nonetheless legally compelled or required to disclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or would be liable for contempt or suffer other censure or penalty, such Recipient or its respective Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such Evaluation Material or any such facts which Recipient or its Representatives is legally compelled or required to disclose, provided that Recipient and/or its Representatives cooperate with Provider to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the Person receiving the material. Notwithstanding anything in this Agreement to the contrary, neither Recipient nor Recipient\u2019s Representatives shall be required to provide notice or seek consent to disclose any information in connection with a routine audit by, or blanket request from, a regulatory or governmental entity with jurisdiction over Recipient or Recipient\u2019s Representatives, and not directed at the Company or the Possible Transaction; provided that the Recipient or its Representatives, as applicable, inform any such authority of the confidential nature of the information disclosed to them and to keep such information confidential in accordance with such authority\u2019s policies or procedures.\n6. \u201cClick Through\u201d Agreements. The terms of this Agreement shall control over any additional purported confidentiality requirements imposed by an offering memorandum or electronic database, dataroom, or similar repository of Evaluation Material to which Recipient or its Representatives are granted access in connection with this Agreement or a Possible Transaction, notwithstanding acceptance of such an offering memorandum or submission of an electronic signature, \u201cclicking\u201d on an \u201cI Agree\u201d icon or other indication of assent to such additional confidentiality conditions, it being understood and agreed that Recipient\u2019s and its Representatives\u2019 confidentiality obligations with respect to the Evaluation Material are exclusively governed by this Agreement and may not be reduced or enlarged except by an agreement executed by the Parties hereto in traditional written format.\n7. Return or Destruction of Evaluation Material. At any time upon the request of a Provider for any reason, a Recipient will, and will direct its Representatives to, promptly, but not later than 10 business days, after receipt of such notice or request, destroy or return (at Recipient\u2019s option) all Evaluation Material and all documents that incorporate Evaluation Material, and no copy or extract thereof (including electronic copies) shall be retained, except that Recipient and its Representatives may retain one copy to be kept confidential and used solely for archival, legal, and compliance purposes. Recipient shall provide to the Provider written confirmation of destruction signed by an authorized representative of Recipient. Notwithstanding the return or destruction of the Evaluation Material, Recipient and its Representatives will continue to be bound by such Recipient\u2019s obligations hereunder with respect to such Evaluation Material.\n8. No Solicitation. Recipient will not, within eighteen months from the date of this Agreement, directly or indirectly solicit the employment or consulting services of or employ or engage as a consultant any of the senior or key employees of the Provider or any of its subsidiaries nor any other employee of the Provider or any if its subsidiaries with whom Recipient has had direct contact in connection with its evaluation of a Possible Transaction or of whom it has become aware as a result of its receipt of any Evaluation Material, so long as they are employed by the Provider or any of its subsidiaries and for two months thereafter. For the purposes of clarification, the mere receipt of Provider\u2019s employee list by Recipient shall not be considered a solicitation of or a direct contact with such employees pursuant to this section. A Recipient is not prohibited from: (i) soliciting by means of a general advertisement not directed at any particular individual or the employees of the Provider or its subsidiaries generally or (ii) engaging any recruiting firm or similar organization to identify or solicit individuals for employment on behalf of such Recipient (and soliciting any person identified by any such recruiting firm or organization) so long as such Recipient does not identify either Provider or any of the individuals employed by Provider to be solicited by such recruiting firm or organization. The provisions of this Section 8 shall terminate and be of no further effect upon the acquisition of such Provider by a third party.\n9. Standstill. Participant does not own any of the capital stock of the Company as of the Effective Date. Participant agrees that, for a period of one year after the date of this Agreement (the \u201cStandstill Period\u201d), unless specifically invited in writing by the Company, neither it nor (1) any of its majority-owned subsidiaries, (2) its Representatives (acting on its behalf), or (3) Roark Capital Acquisition LLC or its affiliates who receive Evaluation Material directly from Roark Capital Acquisition LLC or Participant or at their direction, will in any manner, directly or indirectly:\n(a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in:\n(i) any acquisition of any securities (or any acquisition of Beneficial Ownership thereof) or assets of the Company or any of its subsidiaries,\n(ii) any tender or exchange offer, merger or other business combination involving the Company or any of its subsidiaries,\n(iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries, or\n(iv) any \u201csolicitation\u201d of \u201cproxies\u201d (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the Company;\n(b) form, join or in any way participate in a \u201cgroup\u201d (as defined under the Act) with respect to the securities of the Company;\n(c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any extraordinary transaction involving the Company or its securities or assets;\n(d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company;\n(e) take any action which may reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in (a) above; or\n(f) enter into any discussions or arrangements with any third party with respect to any of the foregoing.\nParticipant also agrees, and will cause its Representatives to agree, during the Standstill Period, not to request the Company (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of this Section 9 (including this sentence).\nNotwithstanding anything in this Section 9 to the contrary, if, at any time during the Standstill Period, a public announcement is made by the Company or any other Person (other than Participant or its Representatives) that a third party (other than Participant or its Representatives) intends to acquire at least twenty percent (20%) of the outstanding capital stock of the Company, voting control or a material part of the Company\u2019s assets (by way of a tender offer, exchange offer, proxy contest, acquisition or other similar transaction), or if a definitive agreement is executed by the Company with a third party relating to such an acquisition of capital stock or assets, the restrictions set forth in this Section 9 shall immediately terminate and cease to be of any further effect on Participant.\nParticipant further agrees, and will cause its Representatives to agree, that unless otherwise directed by the Company in writing (i) all communications with the Company regarding a Possible Transaction, (ii) requests for additional information, facility tours, or management meetings, and (iii) discussions or questions regarding procedures with respect to a Possible Transaction, will be submitted or directed by Participant or its Representatives only to David Pace, the Company\u2019s Chief Executive Officer, or a person or persons designated in writing by David Pace. Further, except upon the Company\u2019s prior written consent, neither Participant nor its Representatives acting on behalf of Participant involved with a Possible Transaction or who have received Evaluation Material will, directly or indirectly, contact any stockholder, director, officer, employee or agent of the Company, or any customer or supplier of the Company, regarding the Evaluation Material or a Possible Transaction. Nothing contained herein shall prevent Participant or its Representatives from maintaining any contacts in the ordinary course of business unrelated to a Possible Transaction or from conducting consumer surveys or other due diligence, in each case, without disclosing or relying on any Evaluation Material.\n10. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Party understands and agrees that the Parties have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of the Parties that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine.\n11. Compliance with Securities Laws. Each Recipient acknowledges that the Evaluation Material may include material nonpublic information (within the meaning of the securities laws of the United States) with respect to Provider. Each Recipient agrees not to use and will cause its Representatives to agree not to use any Evaluation Material of Provider in violation of applicable securities laws.\n12. Not a Transaction Agreement. Each Party understands and agrees that no contract or agreement providing for a Possible Transaction exists between the Parties unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and each Party hereby waives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until both Parties shall have entered into a final definitive agreement for a Possible Transaction. Each Party also agrees that, unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Party will be under any legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Neither Party is under any obligation to accept any proposal regarding a Possible Transaction and either Party may terminate discussions and negotiations with the other Party at any time.\n13. No Representations or Warranties; No Obligation to Disclose. Each Recipient understands and acknowledges that neither Provider nor its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished by or on behalf of Provider and shall have no liability to Recipient, its Representatives or any other Person relating to or resulting from the use of the Evaluation Material furnished to a Recipient or its respective Representatives or any errors therein or omissions therefrom. As to the information delivered to Recipient, Provider will only be liable for those representations or warranties which are made in a final definitive agreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein. Nothing in this Agreement shall be construed as obligating Provider to provide, or to continue to provide, any information to any Person.\n14. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n15. Remedies. Each Party understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by either Party or any of its Representatives and that the Party against which such breach is committed shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for a breach by either Party of this Agreement, but shall be in addition to all other remedies available at law or equity to the Party against which such breach is committed.\n16. Legal Fees. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either Party or its Representatives has breached this Agreement, then the Party which is, or the Party whose Representatives are, determined to have so breached shall be liable and pay to the other Party the reasonable legal fees and costs incurred by the other Party in connection with such litigation, including any appeal therefrom.\n17. Governing Law. This Agreement is for the benefit of each Party and shall be governed by and construed in accordance with the laws of the State of Delaware applicable to agreements made and to be performed entirely within such state.\n18. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its extent, duration, scope or otherwise, then the Parties intend and hereby request that the court or other authority making that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all purposes of this Agreement.\n19. Construction. The Parties have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring either Party by virtue of the authorship at any of the provisions of this Agreement.\n20. Term. This Agreement, and all obligations and other provisions hereunder, shall terminate two years after the date of this Agreement.\n21. Entire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof and supersedes all prior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter.\n22. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together shall be deemed to constitute a single instrument.\n23. Consent to Representation. This agreement also constitutes notice to Participant that the Company has engaged DLA Piper LLP (US) and its affiliated firms as its legal counsel in connection with the Possible Transaction, and Participant hereby (i) consents to the continued representation of the Company by DLA Piper LLP (US) and its affiliated firms in relation to the Possible Transaction notwithstanding the fact that DLA Piper LLP (US) may have represented, and may currently or in the future represent, Participant and/or any of its respective affiliates with respect to unrelated matters and (ii) waive any actual or alleged conflict and actual or alleged violation of ethical or comparable rules applicable to DLA Piper LLP (US) and its affiliated firms that may arise from its representation of the Company in connection with the Possible Transaction, including but not limited to representing the Company against Participant and/or its affiliates in litigation, arbitration, or mediation in connection therewith. Notwithstanding the foregoing, in the event of any dispute (including litigation, arbitration, or mediation) between the Parties related to this Agreement, DLA Piper LLP (US) and its affiliated firms will not represent either Party. In addition, Participant hereby acknowledges that the consent and waiver under this paragraph is voluntary and informed, and that Participant has obtained independent legal advice with respect to this consent and waiver. Participant further agrees that they are each aware of the extent of their respective relationships, if any, with DLA Piper LLP (US) and its affiliate firms, and do not require additional information from DLA Piper LLP (US) in order to understand the nature of this consent. Each of DLA Piper LLP (US) and its affiliated firms are an express third party beneficiary of this paragraph.\nIN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative as of the date written below.\nJAMBA, INC. FOCUS BRANDS INC.\nBy: /s/ David Pace By: /s/ Sarah Powell\nName: Dave Pace Name: Sarah Powell\nTitle: CEO Title: EVP, General Counsel & Secretary\nDate: March 30, 2018 Date: March 29, 2018\n",
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"text": "Exhibit 10.34\nNON-DISCLOSURE/NON-COMPETE AGREEMENT\nTHIS NON-DISCLOSURE/NON-COMPETE AGREEMENT (this \u201cAgreement\u201d) is made this 28th day of February, 2014 by and between TROY HOLDINGS INTERNATIONAL, INC., an Ontario Canada corporation (the \u201cSeller\u201d), EPAZZ, INC., an Illinois corporation (the \u201cPurchaser\u201d), TELECORP PRODUCTS, INC., a Michigan corporation (the \u201cCompany\u201d), Troy Inc. (\u201cShareholder\u201d), ANA MISRA, an individual (\u201cMisra\u201d) and SCOTT MacCANNELL, an individual (\u201cMacCannell\u201d) (Misra and MacCannell are also hereinafter referred to as \u201cKey Personnel\u201d).\nRECITALS:\nA. The Purchaser is purchasing the stock of the Company, pursuant to that certain Stock Purchase Agreement dated February 21, 2014 (the \u201cSPA\u201d).\nB. The Seller and Shareholder each acknowledges that the Seller and the Shareholder have received and/or will receive substantial and adequate monetary consideration and benefits in return for entry into the SPA and this Agreement and that the Seller and the Shareholder have freely chosen to enter into the terms of this Agreement.\nC. The Key Personnel each acknowledge that each is an officer of Seller and has received and/or will receive substantial and adequate monetary consideration and benefits in return for entry into this Agreement and that each has freely chosen to enter into the terms of this Agreement.\nNOW, THEREFORE, in consideration of the Recitals and covenants and agreements, hereinafter contained, the parties agree as follows:\n1. Incorporation by Reference. The Recitals are incorporated and made a part of this Agreement by reference thereto.\n2. Non-Disclosure.\nAs a material part of the consideration given and received by the parties in connection with the SPA:\na. Seller, Key Personnel and Shareholder, jointly and severally, acknowledge and agree that in the course of ownership and/or employment with the Company that Seller, Key Personnel and Shareholder have acquired and/or the Company has and will continue to provide Seller, Key Personnel and Shareholder with, or access to information regarding the business, procedures, activities and services of the Company, including but not limited to, memorandum, files, forms, techniques, methods and procedures, programs, customer accounts and customer lists, supplier lists, costs and prices of the Company, and customer needs, requirements and business affairs (hereinafter referred to collectively as the \u201cProprietary Property\u201d) as is necessary or desirable to assist him in his activities on behalf of the Company.\nb. Seller, Key Personnel and Shareholder hereby acknowledge that the Proprietary Property is the sole and exclusive property of the Company that the Proprietary Property is a valuable, special and unique asset of the business of the Company, developed at considerable expense to the Company, and is not available to the public at large or other persons engaging in businesses which are the same as or similar to the business of the Company.\nc. Seller, Key Personnel and Shareholder covenant and agree that each shall not for a period of one (1) year, communicate or divulge to, or use for the benefit of itself or any other person, firm, association or corporation, any information in any way relating to the Proprietary Property, in competition with the business of the Company.\n3. Covenant Not To Compete.\nAs a material part of the consideration given and received by the parties:\na. Seller, Key Personnel and Shareholder, jointly and severally, expressly covenant and agree that for a period of one (1) year, Seller will not engage in any business or perform any service, directly or indirectly, in competition with the business of the Company, or have any interest, whether as proprietor, partner, employee, stockholder, principal, agent, consultant, director, officer, or in any other capacity or manner whatsoever, in any enterprise that shall engage in the business of the Company, except through publicly-traded shares of a corporation or mutual fund listed on a major stock exchange.\nb. In furtherance of the foregoing and not in limitation thereof, Key Personnel and Shareholder agree that for a period of one (1) year, Key Personnel and Shareholder shall not (aa) directly or indirectly, solicit or service in any way, on behalf of itself or on behalf of or in conjunction with others, any customers, or prospective customers who have been solicited or serviced by the Company; (bb) directly or indirectly take any action which may induce any customer or divert any business from the Company; or (cc) directly or indirectly, for himself or any enterprise engaged in competition with the Company, solicit for employment or employ any employee who is then employed by the Company or who has been employed by the Company within one (1) year prior to the termination of his employment.\nc. The covenants on the part of Key Personnel and Shareholder contained in this Agreement shall be construed as an agreement independent of any other provision in this Agreement or the SPA. The existence of any claim or cause of action of Seller and/or Shareholder against the Company or Purchaser, whether predicated on this Agreement, the SPA or otherwise shall not constitute a defense to the enforcement of this Agreement.\nd.\n(i) Seller, Key Personnel and Shareholder understand that the provisions of this Agreement contain restrictive covenants and prohibit the disclosure of the Proprietary Property of the Company, agree to the reasonability of said provisions, and do herewith expressly agree and acknowledge that their breach of this Agreement will not be adequately compensated by money damages. Seller, Key Personnel and Shareholder acknowledge that the restrictions contained in this Agreement are a reasonable and necessary protection of the legitimate interests of the Company and that any violation of these restrictions would cause substantial irreparable injury to the Company. Seller, Key Personnel and Shareholder acknowledge that Purchaser would not have entered into this Agreement without receiving the consideration offered by Seller and Shareholder in binding itself to these restrictions.\n(ii) Seller, Key Personnel and Shareholder expressly agree that in the event of any suit which may be brought by the Company for any violation of the provisions of this Agreement, any such breach or threatened breach of this Agreement shall entitle the Company to any and/or of the following remedies:\n(aa) an order in any such suit enjoining Seller, Key Personnel and Shareholder from violating said provisions. An order to that effect may be entered at any stage of such litigation, without the requirement to post bond, and any application for such injunction shall be without prejudice to any other right of action which may accrue to the parties by reason of the breach or threatened breach of this Agreement; and\n(bb) an order in any such suit providing for monetary damages.\n(iii) The remedies contained in this Agreement are cumulative and not exclusive. Nothing contained in this Agreement shall constitute a waiver by the parties, nor shall the parties be precluded from availing themselves of any of the rights and remedies available to them in law or in equity.\n(iv) If any portion or portions of the covenants contained herein shall be, for any reason, held invalid or unenforceable or deemed to be too excessive and, therefore unenforceable, such portion or portions of the covenant shall be reinterpreted by the court who shall have made such determination to requalify the limitations provided therein so as to make the covenant enforceable, so long as to make the covenant enforceable, so long as the modifications to be made therein will not substantially defeat the original purposes of the parties hereto and the parties hereto agree to be bound by such reinterpretation.\n4. Notices.\nAll notices, consents, waivers, requests and other communications under this Agreement must be in writing to:\n(i) SELLER/ Troy Holdings International, Inc.\nSHAREHOLDER/ Attn: Scott MacCannell, President\nKEY PERSONNEL: Ana Misra, Vice President\n204-11 Cidermill Avenue\nVaughan, Ontario, L4K 4B6, Canada\nE-mail: smaccannell@troyinc.ca amisra@troyinc.ca\n(ii) WITH A COPY TO: Mark G. Baker, LL.M.\nBaker & Company, Barristers and Solicitors,\n3300-130 Adelaide St. West\nToronto, ON Canada, M5H3P5\nFax Number: (416) 366-3992\nEmail: mbaker@bakerlawyers.com\n(iii) COMPANY/ PURCHASER: Epazz, Inc.\nAttn: Shaun Passley\n309 W. Washington Street, Suite 1225\nChicago, Illinois 60606\nFax Number: (312) 873-4283\nE-mail: shaun@epazz.net\n(iv) WITH A COPY TO: Daniel M. Loewenstein Evans, Loewenstein, Shimanovsky & Moscardini, Ltd.\n130 South Jefferson Street, Suite 350\nChicago, Illinois 60661\nFax Number: (312) 466-0819\nE-mail: dloewenstein@elsm.com\nor at such other address or number as shall be designated by either of the parties in a notice to the other party given in accordance with this Section. Except as otherwise provided in this Agreement, all such communications shall be deemed to have been duly given:\na. in the case of a notice sent by regular or registered or certified mail, three business days after it is duly deposited in the mails;\nb. in the case of a notice delivered by hand, when personally delivered;\nc. in the case of a notice sent by facsimile, upon transmission subject to telephone confirmation of receipt; and\nd. in the case of a notice sent by overnight mail or overnight courier service, the next business day after such notice is mailed or delivered to such courier, in each case given or addressed as aforesaid.\n5. Benefit and Burden.\nThis Agreement shall inure to the benefit of, and shall be binding upon, the parties hereto and their successors and permitted assigns.\n6. Amendments and Waiver.\nNo amendment, modification, restatement or supplement of this Agreement shall be valid unless the same is in writing and signed by the parties hereto. No waiver of any provision of this Agreement shall be valid unless in writing and signed by the party against whom that waiver is sought to be enforced.\n7. Counterparts.\nThis Agreement may be executed in counterparts and by the different parties in separate counterparts, each of which when so executed shall be deemed an original and all of which taken together shall constitute one and the same agreement.\n8. Captions and Headings.\nThe captions and headings contained in this Agreement are inserted and included solely for convenience and shall not be considered or given any effect in construing the provisions hereof if any question of intent should arise.\n9. Construction.\nThe parties acknowledge that each of them has had the benefit of legal counsel of its own choice and has been afforded an opportunity to review this Agreement with its legal counsel and that this Agreement shall be construed as if jointly drafted by the parties hereto.\n10. Severability.\nShould any clause, sentence, paragraph, subsection, Section or Article of this Agreement be judicially declared to be invalid, unenforceable or void, such decision will not have the effect of invalidating or voiding the remainder of this Agreement, and the parties agree that the part or parts of this Agreement so held to be invalid, unenforceable or void will be deemed to have been stricken by the parties, and the remainder will have the same force and effectiveness as if such stricken part or parts had never been included herein.\n11. Effect of Facsimile and Photocopied Signatures.\nThis Agreement may be executed in several counterparts, each of which is an original. It shall not be necessary in making proof of this Agreement or any counterpart hereof to produce or account for any of the other counterparts. A copy of this Agreement signed by one party and faxed to another party shall be deemed to have been executed and delivered by the signing party as though an original. A photocopy of this Agreement shall be effective as an original for all purposes.\n12. Governing Law.\nThis agreement and the rights and obligations of the parties hereunder shall be governed by and construed in accordance with the laws of the State of Illinois, without giving effect to the conflict of law principles thereof.\n13. Jurisdiction/Venue.\nEach of the parties hereby:\na. irrevocably submits to the personal jurisdiction of any Illinois court, over any claim arising out of or relating to this Agreement and irrevocably agrees that any and all such claims may be heard and determined in such Illinois court, in and for Cook County, and\nb. irrevocably waives, to the fullest extent permitted by applicable law, any objection it may now or hereafter have to the venue in any proceeding being brought in a court in the Circuit Court of Cook County, Illinois.\n14. Prevailing Party Costs.\nIf any party commences an action against another party to enforce any of the terms, covenants, conditions or provisions of this Agreement, or because of a breach by a party of its obligations under this Agreement, the prevailing party in any such action shall be entitled to recover its losses, including reasonable attorneys\u2019 fees, costs and interest incurred in connection with the enforcement of this agreement.\n[Remainder of page left intentionally blank. Signature page follows.]\nIN WITNESS WHEREOF, the parties have duly executed this Agreement as of the day and year first above written.\n \u201cS E L LE R\u201d \u201cCOMPANY\u201d\nTROY HOLDINGS INTERNATIONAL, INC. TELECORP PRODUCTS, INC.\nBy:_____________________________ By:_____________________________\nIts:_____________________________ Its:_____________________________\n\u201cPU RCHASE R\u201d\nEPAZZ, INC.\nBy: /s/ Shaun Passley\nShaun Passley\nIts: Chief Executive Officer\nSHAREHOLDER:\nTROY INC.\nBy: ________________________\nIts:_________________________\nKEY PERSONNEL:\n_________________________\nSCOTT MacCANNELL\n_________________________\nANAMISRA\n",
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"text": "Non-Disclosure & Business Relationship Agreement\n1. After execution of this agreement and upon receipt of List, Raphael Industries Ltd. (\"Raphael\") will grand ListFusion limited rights (as stated below) to use the furnished names, addresses, telephone numbers and associated information (collectively known as the \"List\"). List Fusion understands and agrees that the List is a very valuable asset of Raphael and at all times the exclusive property of Raphael.\n2. ListFusion agrees that this Agreement grants only limited rights to use the List for the sole purpose of loading the List into ListFusion's proprietary database system. The List will not be reproduced, transferred, or conveyed to any 3rd party without prior written authorization by Raphael.\n3. ListFusion agrees that the List may not be used to overlay or enhance any 3rd party data without prior written authorization by Raphael.\n4. The List will be stored exclusively on ListFusion's secure servers. ListFusion will not use any 3rd party agents, vendors, or other providers to process the List without the written authorization by Raphael.\n5. ListFusion will provide Raphael with an Administrative username and password. Access to the List by Raphael will be controlled by this username and password. Raphael may at their discretion create additional usernames and passwords. ListFusion will not create, generate, distribute, or convey to any 3rd party a username or password without prior written authorization by Raphael.\n6. Other than the information set out in the data card and agreed to by the parties, ListFusion, its employees, officers and trustees agree not to divulge or disseminate to any person or entity any confidential information about Raphael, including but not limited to personal and financial information, that may arise out of the discharge of their responsibilities as set out herein. Additionally, ListFusion. agrees not to copy, reprint or disseminate the publications, or any information concerning the publication including the articles, graphics or contents without express written authorization from Raphael. Any and all such information shall be kept confidential and shall not in any manner be revealed to anyone except as expressly provided herein.\n7. Raphael my at any time request the List be completely destroyed, scratched, and purged from all media, including electronic storage, disk, tape, and printed documents.\n8. ListFusion reserves the right to discontinue services immediately if payment for services is not received when due or with 30 days prior written notice. In the event ListFusion discontinues services, the List will be returned to Raphael and then completely destroyed, scratched, and purged from all media, including electronic storage, disk, tape, and printed documents in possession of ListFusion.\n9. This Agreement contains the entire agreement relative to the protection of the List to be exchanged hereunder, and supersedes all prior to contemporaneous oral or written understandings or agreements regarding the issue. This Agreement shall not be modified or amended, except in a written instrument executed by the parties.\n10.Nothing contained in this Agreement shall, by express grant, implication, estoppel or otherwise, create in either party any right, title, interest or license in or to the inventions, patents, technical data, computer software or software documentation of the other party.\n11.In the event of a breach of this Agreement by either Party hereto resulting in damages to the other Party, that other Party may recover from the Party so breaching said contract such damages as may be sustained.\n12.Nothing contained in this Agreement shall grant to either party the right to make commitments of any kind or on behalf of any other party without the prior written consent of the other party.\n13.The effective date of this Agreement shall be the date upon which the last signatory below executes this Agreement.\n14.This Agreement shall be governed and construed in accordance with the laws of The Sate of Utah.\n15.This Agreement shall benefit and be binding upon the successors and assignees of the parties hereto.\n16.The invalidity or unenforceability of any particular provision of this Agreement, or portion thereof shall not affect the other provisions or portions thereof; and, this Agreement shall be construed in all respects as if any such invalid or unenforceable provision or portions thereof were omitted and this Agreement shall remain in full force and effect.\n17.This Agreement may be signed in counterparts and by facsimile, each of such counterparts so executed will be deemed to be an original and such counterparts together will constitute one and the same instrument.\nCOMPANY: RAPHAEL INDUSTRIES, LTD COMPANY: LISTFUSION\nADDRESS: 5190 NEIL ROAD, SUITE 430 ADDRESS: 763 NORTH 530 EAST\nCITY/ST/ZIP: RENO, NV 89502 CITY/ST/ZIP: OREM, UTAH 84097-4105\nNAME: ARNE RAABE NAME: ERIC SMITH\nTITLE: DIRECTOR TITLE: PRESIDENT\nSIGNATURE: ARNE RAABE SIGNATURE: ERIC SMITH\nDATE: 11-28-05 DATE: 11-28-05\n",
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"text": "Exhibit (d)(2)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (\u201cAgreement\u201d) is effective as of October 20, 2011 (\u201cEffective Date\u201d) and is entered into between SuccessFactors, Inc., a Delaware corporation, having a place of business at 1500 Fashion Island Boulevard, San Mateo, California, 94404, USA (\u201cCompany\u201d), and SAP AG, a German company with its place of business at Dietmar Hopp Allee 16, 69190 Walldorf, Germany on behalf of itself and its wholly owned subsidiaries, (\u201cSAP\u201d). In consideration of the mutual covenants contained herein, SAP and Company, intending to be legally bound hereby, agree to the following:\n1. In connection with an evaluation relating to a potential relationship, cooperation or transaction (the \u201cEvaluation\u201d), SAP and Company may deliver to each other, upon the execution of this Agreement, Confidential Information as defined below (the party disclosing such Confidential Information being the \u201cDisclosing Party\u201d and the party receiving such Confidential Information being the \u201cReceiving Party\u201d).\n2. As used herein, \u201cConfidential Information\u201d shall mean all information furnished by the Disclosing Party or its Representatives (defined below) to the Receiving Party or its Representatives, whether orally, in writing, electronically or in other tangible form, and identified as confidential or proprietary at the time of disclosure by the Disclosing Party or otherwise disclosed in a manner such that a reasonable person would understand its confidential nature, including but not limited to, information that is related to: (a) the business plans or operations of the Disclosing Party; (b) the research and development or investigations of the Disclosing Party; (c) the business of any customer or partner of the Disclosing Party; (d) Disclosing Party\u2019s properties, employees, finances, operations; (e) any information about or concerning any third party (which information was provided to the Disclosing Party subject to an applicable confidentiality obligation to such third party); (f) software and related documentation (\u201cDisclosing Party\u2019s Software\u201d) including the following information regarding Disclosing Party\u2019s Software: (i) computer software (object and source codes), programming techniques and programming concepts, methods of processing, system designs embodied in Disclosing Party\u2019s Software; and (ii) discoveries, inventions, concepts, designs, flow charts, documentation, product specifications, application program interface specifications, techniques and processes relating to Disclosing Party\u2019s Software; and (g) product offerings, content partners, product pricing, product availability, technical drawings, algorithms, processes, ideas, techniques, formulas, data, schematics, trade secrets, know-how, improvements, inventions (whether patentable or not), marketing plans, forecasts and strategies. Where the Confidential Information has not been reduced to written or other tangible form at the time of disclosure, and such disclosure is made orally or visually, the Disclosing Party agrees to identify it as confidential or proprietary at the time of disclosure. \u201cConfidential Information\u201d shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents prepared by the Receiving Party or its Representatives which contain or are based upon, in whole or in part, the information furnished to the receiving party or its Representatives pursuant hereto.\n3. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any reproduction of any Confidential Information of a Disclosing Party shall remain the property of the Disclosing Party and shall contain any and all confidential or proprietary notices or legends which appear on the original. The Receiving Party:\n(a) shall take all reasonable steps (defined below) to keep all Confidential Information strictly confidential; (b) shall not disclose or reveal any Confidential Information to any person other than its Representatives who are actively and directly participating in the Evaluation or who otherwise need to know the Confidential Information for the purpose of the Evaluation; (c) shall not use Confidential Information for any purpose other than in connection with the Evaluation. and (d) shall not disclose to any person (other than those of its Representatives who are actively and directly participating in the Evaluation or who otherwise need to know for the purpose of the Evaluation) any information about the Evaluation, or the terms or conditions or any other facts relating thereto, including, without limitation, the fact that discussions are taking place with respect thereto or the status thereof, or the fact that Confidential Information has been made available to the Receiving Party or its Representatives. As used herein \u201creasonable steps\u201d means those steps the Receiving Party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care. As used herein. \u201cRepresentatives\u201d shall mean (i) employees of Receiving Party; (ii) attorneys, accountants, or other professional business advisors and, additionally,\n(iii) employees of the Receiving Party and those entities directly or indirectly owned by the Receiving Party, in each case, who shall be informed of the confidential nature of the Confidential Information and shall agree to act in accordance with the terms of this Agreement. The Receiving Party shall be responsible for any breach of the terms of this Agreement by it or its Representatives.\n4. The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that: (a) is independently developed by Receiving Party without reference to the Confidential Information, or is lawfully received free of restriction from a third party having the right to furnish such Confidential Information; (b) has become generally available to the public without breach of this Agreement by Receiving Party; (c) at the time of disclosure to Receiving Party was known to such party free of restriction; or (d) Disclosing Party agrees in writing is free of such restrictions.\n5. Neither party is required to disclose any particular information to the other and any disclosure is entirely voluntary and is not intended to be construed as: (a) granting rights by license or otherwise under any trademark, patent, copyright or other intellectual property right; (b) creating a commitment as to any product, including the development or functionality of any product; (c) soliciting any business or incurring any obligation not specified herein; or (d) prohibiting either party from associating themselves with competitors of the other party for purposes substantially similar to those involved herein.\n6. Nothing in this Agreement shall prohibit or restrict either party\u2019s right to develop, make, use, market, license or distribute products or services similar to or competitive with those of the other party disclosed in the Confidential Information as long as it shall not thereby breach this Agreement. Each party acknowledges that the other may already possess or have developed products or services similar to or competitive with those of the other party disclosed in the Confidential Information. Further, either party shall be free to use for any purpose the residuals (defined below) resulting from access to or work with Confidential Information disclosed hereunder. The term \u201cresiduals\u201d means information in non-tangible form which may be retained in the unaided memory by persons who have had access to the Confidential Information so long as such persons have not studied the information for the purpose of replicating the same from memory. Neither party shall have any obligation to limit or restrict the assignment of such persons or to pay royalties for any work resulting from the use of residuals. The party using any information that it claims to be residuals will have the burden of proving that the information constitutes residuals.\n7. In the event that the Receiving Party or any of its Representatives are requested pursuant to, or required by, applicable law or regulation or by legal process to disclose any Confidential Information or any other information concerning the Disclosing Party or the Evaluation, unless prohibited by law, the Receiving Party shall provide the Disclosing Party with prompt notice of such request or requirement in order to enable the Disclosing Party (i) to seek an appropriate protective order or other remedy; (ii) to consult with the Receiving Party with respect to the Disclosing Party\u2019s taking steps to resist or narrow the scope of such request or legal process; or (iii) to waive compliance, in whole or in part, with the terms of this Agreement. In the event that such protective order or other remedy is not obtained in a timely manner, or the Disclosing Party waives compliance, in whole or in part, with the terms of this Agreement, the Receiving Party or its Representative shall disclose only that portion of the Confidential Information which is legally required to be disclosed and to require that all Confidential Information that is so disclosed will be accorded confidential treatment.\n8. To the extent that any Confidential Information may Include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential Information provided by a party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.\n9. Upon the Disclosing Party\u2019s written request, the Receiving Party shall (at the Receiving Party\u2019s election) promptly return or destroy (provided that any such destruction shall be certified by a duly authorized Representative of the Receiving Party) all Confidential Information of the Disclosing Party and all copies, reproductions, summaries, analyses or extracts thereof or based thereon (whether in hard-copy form or an intangible media, such as electronic mail or computer files) in the Receiving Party\u2019s possession or in the possession of any Representative of the Receiving Party; provided, however: (i) that if a legal proceeding has been instituted to seek disclosure of the Confidential Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered; (ii) that the Receiving Party shall not, in connection with the foregoing obligations, be required to identify or delete Confidential Information held electronically in archive or back-up systems in accordance with general systems archiving or backup policies; and (iii) that the Receiving Party shall not be obligated to return or destroy Confidential Information of the Disclosing Party to the extent the Receiving Party is required to retain a copy pursuant to applicable law, and further provided that the Receiving Party will not, and the Receiving Party will use reasonable measures to cause its employees not to, access such Confidential Information so archived or backed-up.\n10. Each Party hereto acknowledges that neither it nor its Representatives nor any of the officers, directors, employees, agents or controlling persons of such Representatives makes any express or implied representation or warranty as to the completeness of the Confidential Information.\n11. Until a separate definitive agreement regarding a potential relationship or transaction has been executed by the parties, neither party shall be under any legal obligation or have any liability to the other party of any nature whatsoever with respect to any proposal, term sheet, letter of intent, or draft agreement relating to any such potential relationship or transaction (other than with respect to the confidentiality and other matters set forth herein). Each party hereto and its Representatives (a) may conduct the process that may or may not result in definitive agreement in such manner as such party, in its sole discretion, may determine (including, without limitation, negotiating and entering into a definitive agreement with any third party without notice to the other party); and (b) reserves the right to change (in its sole discretion, at any time and without notice to the other party) the procedures relating to the parties\u2019 consideration of the potential relationship or transaction (including, without limitation, terminating all further discussions with the other party and requesting that the other party return or destroy the Confidential Information as described above). Either party can end the discussions at any time, for any reason, and without liability to the other. Any business decision either party makes in anticipation of definitive agreements is at the sore risk of the party making the decision, even if the other party is aware of or has indicated approval of, such decision.\n12. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\n13. In consideration of the Information being furnished to SAP and the Company, each of SAP and the Company hereby agree that, until twelve (12) months after the date of termination of this Agreement, such party will not solicit for employment with such party or any of its subsidiaries, or employ, any of the current officers or employees of the other party with whom such party has had contact during the term of this Agreement and who became known by such party or who was identified to such party as part of the Evaluation under this Agreement. Notwithstanding the foregoing, nothing herein shall restrict or preclude either party from (A) making generalized searches for employees (by use of advertisements in the media, the engagement of search firms or otherwise), (B) continuing its ordinary course hiring practices that are not targeted specifically at employees of the other party or (C) hiring an employee of the other party who first initiates an employment discussion with such party, so long as such party has not violated the restrictions on solicitation contained in this Agreement.\n14. In consideration of the Confidential Information being provided to a Receiving Party for purposes of the Evaluation, the parties agree that until one (1) year after the date of termination of this Agreement, neither party nor any of each party\u2019s affiliates or its Representatives acting on the party\u2019s behalf will, unless specifically invited in writing by the other party\u2019s Board of Directors or its duly authorized representative: (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities, or indebtedness of the other party or any subsidiary thereof, or any successor entity; (ii) make, directly or indirectly, any \u201csolicitation\u201d of \u201cproxies\u201d (as such terms are used in Rule 14a-1 under the Securities Exchange Act of 1934 (the \u201c34 Act\u201d)) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of the other party; (iii) make any public announcement with respect to, or submit a proposal for, or offer of any merger, consolidation, stock purchase tender or exchange offer, restructuring or business combination, involving the other party or to purchase, directly or indirectly, a material portion of the assets of the other party or its subsidiaries; (iv) form, join or in any way participate in a \u201cgroup\u201d (as defined in Section 13(d)(3) of the 34 Act) in connection with any of the foregoing; (v) request the other party or any of the other party\u2019s Representatives to amend or waive any provisions of this paragraph in a manner that would require public disclosure of such request; or (vi) take any action that could reasonably be expected to require the other party to make a public announcement regarding the possibility of any of the events described in sub-clauses (i) through (v). Notwithstanding anything to the contrary in this paragraph, (1) each party shall be permitted at any time and from time to time to submit to the Chief Executive Officer of the other party one or more offers, proposals or indications of interest related to a transaction between the parties, provided that each such submission is made on a confidential basis and states that the provider does not intend to make a public announcement related to such submission or its text or contents and that the provider of such submission believes, after discussion with its counsel, that the receipt thereof by the other party does not require public disclosure of such submission and (2) no party shall be bound by the foregoing restrictions in the event that any person or \u201cgroup\u201d (as defined in Section 13(d)(3) of the 34 Act) other than such party or its affiliates shall (x) acquire or publicly propose to acquire, by purchase, merger, tender offer, reorganization, consolidation or otherwise, beneficial ownership of more than 50% of the outstanding voting securities of the other party or assets of the other party or its subsidiaries representing more than 50% of the consolidated earning power of the other party and its subsidiaries and the other party\u2019s Board of Directors has recommended to such other party\u2019s shareholders that such acquisition be approved or (y) enter into an agreement or publicly propose to enter into an agreement providing for the merger or consolidation, or any similar transaction, involving the other party in which, following consummation of such transaction, substantially all of the persons or entities who, immediately prior to such transaction, had beneficial ownership of 50% or more of the voting power of the other party would not continue to beneficially own by virtue of their exchange or retention of securities of such other party representing at least 50% of the voting power of the combined entity and would not have the ability to elect a majority of the directors of the combined entity and the other party\u2019s Board of Directors has recommended to such other party\u2019s shareholders that such merger, consolidation or similar transaction be approved.\n15. Without prejudice to the rights and remedies otherwise available to either party hereto, each party hereto shall be entitled to equitable relief by way of injunction or otherwise if the other party or any of its Representatives breach or threaten to breach any of the provisions of this Agreement.\n16. The Receiving Party acknowledges that neither the Disclosing Party nor its Representatives nor any of the officers, directors, employees, agents or controlling persons of such Representatives makes any express or implied representation or warranty regarding the Confidential Information, including, without limitation, any representation or warranty as to the completeness or accuracy of the Confidential Information.\n17. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, United States of America, without giving effect to its principles or rules regarding conflicts of laws, other than such principles directing application of New York law. The parties agree the courts of the State of California shall be the exclusive venue for disputes arising under this Agreement. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the remaining portions hereof shall remain in full force and effect.\n18. This Agreement constitutes the entire understanding between the parties hereto as to Confidential Information disclosed hereunder in connection with the Evaluation and merges all prior discussions between them relating thereto. Notwithstanding the foregoing, in the event the parties have entered into, or enter into in the future, other agreements which contain terms concerning ownership or use of work product of either party or software license provisions and rights, then this Agreement shall not supersede either party\u2019s rights and obligations as provided in such other agreements, unless such other agreement specifically provides otherwise. Neither Party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other Party. No amendment or modification of this Agreement shall be valid or binding on the parties unless made in writing and signed on behalf of each of the parties by their respective duly authorized officers or representatives. Any waiver of a provision of this Agreement shall not be deemed a subsequent waiver of the same or any other provision of this Agreement. It is further understood and agreed that no failure or delay by either party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\n19. The term of this Agreement shall be one (1) year beginning with the Effective Date, unless terminated earlier by either party at such party\u2019s sole discretion upon thirty (30) days written notice to the other party. The provisions herein concerning the disclosure, protection and use of Confidential Information, including Sections 3, 4, 7 and 9, shall survive the termination or expiration of this Agreement. The non-solicit and standstill obligations shall remain in effect as provided in Sections 13 or 14, as applicable.\nThis Agreement may be executed in counterparts or by facsimile, each of which shall be deemed an original, and all of which together shall constitute one and the same agreement.\n",
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"text": "EXECUTION VERSION\nNON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nTHIS NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT (this \u201cAgreement\u201d) is made effective as of February 18, 2013, by and between Central European Distribution Corporation, a Delaware corporation (\u201cCEDC\u201d) and W&L Enterprises Ltd. (the \u201cRecipient\u201d).\n WHEREAS, CEDC has issued (i) 3.00% Convertible Notes due 2013 (the \u201cConvertible Notes\u201d) and (ii) $380 million 9.125% Senior Secured Notes due 2016 and \u20ac430 ($556.6 million) 8.875% Senior Secured Notes due 2016 (collectively, the \u201c2016 Notes\u201d and together with the Convertible Notes, the \u201cNotes\u201d).\n WHEREAS, the Recipient holds 7,517,549 shares of CEDC\u2019s outstanding common stock (the \u201cCommon Stock\u201d).\n WHEREAS the Recipient and CEDC wish to enter into discussions with respect to a potential restructuring of the Notes and Common Stock (a \u201cRestructuring\u201d).\nWHEREAS, CEDC, in such discussions, may disclose certain confidential information to the Recipient in order to initiate, facilitate, and/or progress such restructuring discussions (the \u201cPurpose\u201d).\nNOW THEREFORE, in consideration for receiving certain confidential information and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:\n1. Scope of Confidential Information.\n1.1 Subject to Section 1.2 below, \u201cConfidential Information\u201d means confidential, secret, proprietary or other non-public information pertaining to the business, operations, brands, marketing plans, financial matters, legal matters, products, projects, business plans or practices, research and development, product development, intellectual property, financial models, trademarks, trade secrets, accounting and financing data, and methods of production, distribution or procurement, suppliers, distributors, consultants, advisors or employees, directors or officers of CEDC or any of its Subsidiaries (defined below) (together, the \u201cCEDC Group\u201d) that is disclosed or otherwise made available, either orally or in writing, by any member of the CEDC Group to the Recipient or its affiliates, agents, or advisors (including, without limitation, financial advisors, attorneys, banks and other sources of equity and debt financing and accountants) (collectively, \u201cRepresentatives\u201d).\n1.2 Notwithstanding anything herein to the contrary, Confidential Information shall not include any information that (a) is or becomes publicly available (other than through a breach of this Agreement by the Recipient), (b) is in the possession of or known to the Recipient or its Representatives prior to such information having been furnished to Recipient hereunder, (c) is independently conceived, developed or discovered by the Recipient or on its behalf, (d) is made available to the Recipient or its Representatives by any person other than a member of the CEDC Group without any known breach of any obligation of confidentiality of such other person, or (e) is the subject of a written confirmation from CEDC or any of its Subsidiaries or any member of the CEDC Group stating that any such information is not Confidential Information. In clarification of the foregoing, a general disclosure in the public domain will not cause more specific (but related) information to be excluded as Confidential Information under one of the above exceptions.\n1.3 \u201cSubsidiary\u201d of any entity means any other entity in which such first entity owns or Controls, directly or indirectly, an amount of the voting securities, other voting interests or voting partnership interests sufficient to elect at least a majority of such other entity\u2019s board of directors or other governing body (or, if there are no such voting interests, 50% or more of the equity interests of such other entity). For purposes of this Section 1.3, \u201cControl\u201d means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an individual, corporation, partnership, limited partnership or limited liability company, whether through the ownership of voting securities, by contract or otherwise.\n2. Use and Disclosure of Confidential Information.\n2.1 The Recipient agrees that all Confidential Information will be held and maintained by it in the strictest confidence, will be used by it solely and exclusively for the purpose of evaluating, negotiating and implementing a Restructuring, and will not, directly or indirectly, be used or disclosed by it for any other purpose whatsoever. CEDC acknowledges that Recipient is engaged in businesses similar to those conducted by CEDC and the CEDC Group or other industries in the ordinary course of Recipient\u2019s business. The Recipient will use reasonable care to maintain the confidentiality of Confidential Information, provided that such care shall be at least as great as the precautions taken by the Recipient to protect its own confidential information of similar nature.\n2.2 The Recipient agrees that it will not, without the prior written consent of CEDC, directly or indirectly, disclose all or any portion of the Confidential Information, or the substance thereof, to any third party other than its Representatives in connection with the Purpose, except, subject to Section 2.3 below, to the extent required by applicable law or legal process.\n2.3 The Recipient agrees that if the Recipient is required by any law, court or governmental order to disclose any Confidential Information, the Recipient will provide CEDC, to the extent practicable and legally permissible, with prompt written notice of such requirement so that CEDC or the applicable member of the CEDC Group may seek an appropriate protective order with respect thereto. If such an order is not obtained, only that portion of the Confidential Information shall be furnished that is legally required to be furnished, at the sole expense of CEDC or one of its Subsidiaries, and the Recipient shall exercise commercial efforts to obtain reliable assurances that confidential treatment will be accorded such Confidential Information. Notwithstanding the foregoing, notice to CEDC shall not be required where disclosure is made (i) in response to a request by a regulatory or self-regulatory authority, or (ii) in connection with a routine audit or examination by a bank examiner or auditor, and such request, audit or examination does not reference CEDC or this Agreement.\n2.4 The Recipient shall ensure that each of its Representatives who are either provided with Confidential Information, or otherwise have access to such Confidential Information, are informed of its confidential nature and are directed to abide by the terms of this Agreement applicable to Representatives or appropriate duties or obligations of confidentiality imposing confidentiality obligations on such Representatives (except that there shall be no requirement to so inform where the Representative to whom the information is to be disclosed is subject to professional obligations to maintain the confidentiality of the Confidential Information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information). The Recipient agrees to be liable for any breach of this Agreement by the Recipient or its affiliates or Representatives. The Recipient shall use reasonable efforts to provide written notice to CEDC of any use or disclosure of Confidential Information in breach of this Agreement of which Recipient is aware, including without limitation written details regarding the circumstances and the identity of the individuals or entities who as a result received or may have received access to such Confidential Information.\n3. Certain Rights and Limitations.\n3.1 The parties hereto are independent of one another and this Agreement does not create any agency, partnership or similar relationship between the parties hereto. CEDC acknowledges that neither the Recipient nor any of its affiliates, nor its or their Representatives, will be deemed to have made any representation or warranty or commitment with respect to the Purpose except as may be set forth in one or more final, legally binding definitive agreements. Except as otherwise provided by CEDC, the Recipient (i) acknowledges that neither CEDC nor any of its Representatives make any representation or warranty hereunder, either express or implied, as to the truth, accuracy or completeness of any Confidential Information, provided, however, that CEDC, the CEDC Group and any of their Representatives shall use good faith efforts to ensure that all Confidential Information furnished to Recipient hereunder is true, accurate and complete to the best of their knowledge, and (ii) agrees, to the fullest extent permitted by law that in the absence of fraud or willful misconduct on their part neither CEDC nor any of its Subsidiaries or Representatives shall have any liability to the Recipient or its Representatives on any basis (including, without limitation, in contract, tort, under federal or state securities laws or otherwise) as a result of the review by the Recipient or its Representatives or the use of the Confidential Information by the Recipient or its Representatives in accordance with the provisions of this Agreement.\n3.2 The Recipient agrees that, upon written request by CEDC, all Confidential Information (and all copies, summaries and notes of the contents or parts thereof) and all Company property received by the Recipient shall, as soon as reasonably practicable, be either returned to CEDC or, to the extent technically practicable, destroyed (at the Recipient\u2019s or its Representatives\u2019 option), except that Recipient and its Representatives may retain copies of Confidential Information as is required to comply with applicable law or regulation or professional standards or internal compliance requirements. The Recipient\u2019s obligations under Section 2 hereof shall survive the return of such tangible embodiments of Confidential Information until termination of this Agreement. Notwithstanding anything to the contrary in this Agreement, neither Recipient nor any of its Representatives shall be required to delete electronically stored Confidential Information to the extent such deletion would be technologically impracticable or inconsistent with the archival records retention policy of the Recipient or its Representatives.\n3.3 The Recipient shall not remove, obscure, overprint, deface or destroy any notice of confidentiality, copyright, trademark, logo, legend or other notices of ownership or confidentiality from any originals or copies of Confidential Information the Recipient obtains from the CEDC Group.\n3.4 CEDC understands and acknowledges that the Recipient and an affiliate of the Recipient are currently reporting persons with respect to CEDC\u2019s common stock on a Schedule 13D under the provisions of \u00a7\u00a7 240.13d-1(a) and 13d-2(a) of the United States Securities Exchange Act of 1934, among others, and that accordingly the Recipient and its affiliate will have ongoing disclosure obligations thereunder, which shall not be restricted or limited by this Agreement, including that this Agreement shall be disclosed and publicly filed as an amendment to such Schedule 13D.\n4. Remedies. The Recipient acknowledges that a breach of any of the terms of this Agreement may cause irreparable harm to CEDC for which CEDC may not be adequately compensated by money damages. Accordingly, the Recipient agrees that, in addition to all other remedies available to CEDC, including any member of the CEDC Group, in an action at law, in the event of any breach or threatened breach by the Recipient of the terms of this Agreement, CEDC shall, without the necessity of proving actual damages or posting any bond or other security, be entitled to seek temporary and permanent injunctive relief, including, but not limited to, specific performance of the terms of this Agreement. Each party's rights and obligations under this Agreement are cumulative and are in addition to and not in limitation of such party's rights and obligations under law, equity or any other written agreement.\n5. Miscellaneous.\n5.1 This Agreement shall be governed by and construed and take effect as an enforceable contract in accordance with the laws of the State of New York governing such agreements, without regard to conflicts-of-law principles thereof that would require applicability of any other law. The parties hereto agree that any dispute between them relating to this Agreement will be resolved solely in the manner set forth in clause (i) below:\n(i) Each of the parties hereto irrevocably submits to the jurisdiction of the United States District Court located in the State of New York and in the Borough of Manhattan, and all appellate courts relating thereto, for the purpose of any suit, action, proceeding or judgment relating to or arising out of this Agreement. Service of process in connection with any such suit, action or proceeding may be served on each party hereto anywhere in the world by the same methods as are specified for the giving of notices under this Agreement. Each party hereto irrevocably waives any objection to the laying of venue of any such suit, action or proceeding brought in such courts and irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT AND REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.\n5.2 Any notices or other correspondence (hereinafter collectively referred to as \u201ccorrespondence\u201d) required or permitted to be given hereunder shall be in writing and shall be sent by postage prepaid first class mail, courier or facsimile or delivered by hand to the party to whom such correspondence is required or permitted to be given hereunder, and shall be deemed sufficient upon receipt when delivered personally or by courier, overnight delivery service or confirmed facsimile, or three (3) Business Days after being deposited in the regular mail as certified or registered mail (airmail if sent internationally) with postage prepaid, if such notice is addressed to the party to be notified at such party\u2019s address or facsimile number as set forth below:\n(a) All correspondence to the CEDC Group shall be addressed as follows:\nCentral European Distribution Corporation\nBobrowiecka 6\n00-728 Warsaw\nPoland\nAttention: Grant Winterton\nFacsimile: +48 22 456 60 01\nwith a copy to\nSkadden, Arps, Slate, Meagher & Flom (UK) LLP\n40 Bank St., Canary Wharf\nLondon E14 5DS UK\nAttention: Scott Simpson, Esq.\nFacsimile: +44 20 7519 7070\n(b) All correspondence to the Recipient shall be addressed as follows:\nW&L Enterprises Ltd.\nCraigmuir Chambers,\nP.O. Box 71,\nRoad Town,\nTortola,\nBritish Virgin Islands\nAttention: Mark Kaufman\nFacsimile: +7-495-232-6138\nwith copies to\nDarrois Villey Maillot Brochier A.A.R.P.I.\n69, avenue Victor Hugo\nParis 75783\nFrance\nAttention: Ben Burman, Esq.\nFacsimile: + 33 1 45 02 49 59\nand\nWachtell, Lipton Rosen & Katz\n51 West 52nd Street\nNew York, New York 10019\nAttention: Adam Emmerich, Esq.\nFacsimile: (212) 403-2234\n(c) Either party may change the address to which correspondence to it is to be addressed by written notification as provided for herein.\n5.3 This Agreement contains the complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings whether written or oral, express or implied. This Agreement shall be binding upon and inure to the benefit of the parties, and their respective successors and permitted assigns, including without limitation the heirs, executors and legal representatives of each such party. The Recipient acknowledges and agrees that all members of the CEDC Group are third party beneficiaries of this Agreement. Except where expressly indicated otherwise, the words \u201cwritten\u201d or \u201cin writing\u201d shall include, but not be limited to, written or printed documents, electronic and facsimile transmissions and computer disks or tapes (whether machine or user readable). If any provision of this Agreement is held invalid, illegal or unenforceable by a court of competent jurisdiction, such shall not affect any other provision of this Agreement, which shall remain in full force and effect to the fullest extent permitted by applicable law. Upon such determination of invalidity or unenforceability, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a reasonably acceptable manner in order that the transactions contemplated hereby may be consummated as originally contemplated to the fullest extent possible. No amendment, modification or alteration of the terms of this Agreement shall be effective unless made in writing and executed by both parties hereto. A failure or delay in exercising any right in respect to this Agreement will not be presumed to operate as a waiver, and a single or partial exercise of any right will not be presumed to preclude any subsequent or further exercise of that right or the exercise of any other right. Any such waiver shall be effective only in the specific instance and for the purpose given. This Agreement may be signed in one or more counterparts, each of which shall be deemed to be an original for all purposes.\n6. Securities Laws. The Recipient acknowledges that it is aware (and, if applicable, that its Representatives who are apprised of this matter have been advised) that the United States securities laws prohibit any person who has material non-public information about a company from purchasing or selling securities of such company, or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. The Recipient agrees that, to the extent that it has actually received Confidential Information pursuant to this Agreement that constitutes material non-public information, it will not trade any securities of CEDC or any of its Subsidiaries prior to the termination of this Agreement and that it will not use any Confidential Information in contravention of the United States securities laws.\n7. Termination.\n7.1 The provisions of this Agreement shall continue in full force and effect at all times until the earliest to occur of (i) the filing of an exchange offer, offering memorandum or disclosure statement with respect to the 2016 Notes or Convertible Notes, provided that, to the extent CEDC and the Recipient continue discussions on the terms of a Restructuring following such filing, this period shall extend until the filing of an amended exchange offer, offering memorandum or disclosure statement reflecting such discussions or (ii) 9:00 a.m. (GMT) on March 5, 2013, whereupon this Agreement shall terminate and be of no further force or effect (the \u201cTermination Date\u201d), other than with respect to the rights and obligations of CEDC and Recipient per Section 7.2 hereof.\n7.2 On the Termination Date, CEDC shall publicly file a document (the \u201cCleansing Document\u201d) containing all of the written and oral Confidential Information that constitutes material non-public information and that was provided by CEDC or its advisors to any of (a) the Recipient or its Representatives or (b) any holder of securities who is subject to a confidentiality agreement substantially similar to this Agreement (or to such holder\u2019s Representatives) that was subsequently shared with the Recipient or its Representatives; provided that such Confidential Information shall not include any information only disclosed to the Recipients' advisors and specifically designated as \u2018Non-Cleansing Information\u2019 by CEDC at the time of such disclosure (such Confidential Information other than the \u2018Non-Cleansing Information\u2019 being the \u201cDisclosure Information\u201d). As promptly as practicable, CEDC will provide the Recipient with a draft of the Cleansing Document. The Cleansing Document shall be the offering memorandum and/or disclosure statement and/or Form 8-K or any periodic report required or permitted to be filed under the Exchange Act with the Securities Exchange Commission (the \u201cSEC\u201d) or, if the SEC\u2019s EDGAR filing system is not available, in such other manner that CEDC reasonably determines results in public dissemination of such information. If CEDC does not file the Cleansing Document on the Termination Date as required in accordance with this Section 7.2, then Recipient and/or its Representatives shall be entitled to disclose the Confidential Information that was provided by CEDC or any of its Subsidiaries hereunder without liability to the extent that Recipient or its Representatives reasonably believes that the information constitutes material non-public information that is required to allow it to freely trade, through the issuance of a press release or similar form of public communication, without any liability or breach under this Agreement (such an announcement, the \u201cRecipient\u2019s Cleansing Announcement\u201d). For the avoidance of doubt, if the Cleansing Document filed by CEDC pursuant hereto is not in sufficient detail to ensure that, in the reasonable opinion of each of the Recipients or their Representatives, the Recipients and their Representatives will be cleansed of any Confidential Information hereunder such that, following the filing of the Cleansing Document by CEDC, no Recipient shall be restricted, prevented or prohibited from trading any securities under applicable insider dealing or market abuse laws or regulations in any jurisdiction or pursuant to any other applicable laws or regulations, then the Recipients may make a Recipient\u2019s Cleansing Announcement in the manner set forth above in this Section 7.2.\n[Signatures on the Following Page ]\nIN WITNESS WHEREOF, this Agreement is executed by the undersigned parties. The parties hereto further certify that the persons signing this Agreement are duly authorized to do so.\nCENTRAL EUROPEAN DISTRIBUTION W&L ENTERPRISES LTD.\nCORPORATION\nBy: /s/ Grant Winterton By: /s/ Mark Kaufman\nPrint Name: Grant Winterton Print Name: Mark Kaufman\nTitle: Chief Executive Officer Title: Director\n",
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