The above-named parties desire to begin discussions regarding a business opportunity of mutual interest (the “Business Purpose”). In connection with such discussions, the parties recognize that there is a need to disclose to each other certain confidential information to be used only for the Business Purpose and to protect such confidential information from unauthorized use and disclosure.
In consideration of the other party’s disclosure of such confidential information, each party agrees as follows:
1. For purposes of this Agreement, “Confidential Information” shall include: (a) the existence, terms and conditions of this Agreement; and (b) any technical, managerial, financial or business information, whether in written, graphic, electromagnetic, verbal or other form (including but not limited to specifications, prototypes, software, models, drawings, product plans, pre-release products, marketing plans, business opportunities, customer lists, pricing, personnel data, research and development activities, know-how and third party information), that (i) the disclosing party marks or otherwise designates as "Confidential" or "Proprietary" or the like, or (ii) would be considered a trade secret of the disclosing party under normal trade practice, or (iii) should reasonably be (or have been) understood by the receiving party (because of legends, markings, the circumstances of disclosure or the nature of the information itself) to be proprietary and/or confidential to the disclosing party, an affiliate of the disclosing party or a third party.
2. Each party agrees:
(i) to maintain 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 such Confidential Information of the other party to its employees and consultants who have a bonafide need to know such Confidential Information for the Business Purpose, but solely to the extent necessary to pursue the Business Purpose and for no other purpose; provided that each such employee and consultant first executes a written agreement (or is otherwise already bound by a written agreement) that contains use and nondisclosure restrictions at least as protective of the other party’s Confidential Information as those set forth in this Agreement. The provisions of this Section 2 will not restrict a party from disclosing the other party’s Confidential Information to the extent required by any law or regulation; provided that the party required to make such a disclosure uses reasonable efforts to give the other party reasonable advance notice of such required disclosure in order to enable the other party to prevent or limit such disclosure. The receiving party shall hold the Confidential Information in confidence and shall use the same degree of care that it uses to protect its own confidential information (but in no event less than a reasonable degree of care) to prevent unauthorized use or disclosure of the Confidential Information. The receiving party will be liable for all acts and omissions of its employees, agents and subcontractors regarding this Agreement.
3. The receiving party’s obligations in Section 2 will not apply to the extent any Confidential Information:
(i) is now or hereafter becomes generally known or available to the public, through no act or omission on the part of the receiving party;
(ii) was known, without restriction as to use or disclosure, by the receiving party prior to receiving such information from the disclosing party;
(iii) is rightfully acquired by the receiving party from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; or
(iv) is independently developed by the receiving party without access to any Confidential Information of the disclosing party.
4. Upon the disclosing party’s request, the receiving party will promptly return to the disclosing party all tangible items and embodiments containing or consisting of the disclosing party’s Confidential Information and all copies thereof (including electronic copies) and provide the disclosing party with a written officer’s certificate certifying the receiving party’s compliance with the foregoing obligation.
5. All Confidential Information remains the sole and exclusive property of the disclosing party. Each party acknowledges and agrees that nothing in the Agreement will be construed as granting any rights to the receiving party, by license or otherwise, in or to any Confidential Information of the disclosing party, or any patent, copyright or other intellectual property or proprietary rights or the disclosing party, except as specified in this Agreement.
6. The disclosing party warrants that it has the right to make all disclosures made under this Agreement. NO OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE MADE BY EITHER PARTY UNDER THIS AGREEMENT. ALL INFORMATION DISCLOSED UNDER THIS AGREEMENT IS PROVIDED "AS IS."
7. This Agreement shall neither impose nor be deemed to impose any obligation on either of the parties to: (a) purchase, sell, license, transfer, exchange or otherwise use any information, technology, products or services; (b) commence or continue any discussions or negotiations; (c) reach or execute any other agreement; (d) refrain from engaging in any business whatsoever; or (e) refrain from commencing or continuing any discussions, negotiations or agreements with any third party. Each party will be solely responsible for its own cost and expenses that are incurred in connection with this Agreement and the preparation of any written agreement relating to the subject matter hereof.
8. Each party acknowledges that the unauthorized use or disclosure of the disclosing party’s Confidential Information would cause the disclosing party to incur irreparable harm and significant damages, the degree of which may be difficult to ascertain. Accordingly, each party agrees that the disclosing party will have the right to obtain immediate equitable relief to enjoin any unauthorized use or disclosure of its Confidential Information, in addition to any other rights and remedies that it may have at law or otherwise, without the necessity of proving actual damages or posting bond.
9. This Agreement will be construed, interpreted, and applied in accordance with the internal laws of the State of Arizona (excluding its body of law controlling conflicts of law). This Agreement is the complete and exclusive statement regarding the subject matter of this Agreement and supersedes all prior agreements, understandings and communications, oral or written, between the parties regarding the subject matter of this Agreement. Neither party may assign this Agreement, in whole or in part, without the other party’s prior written consent, and any attempted assignment without such consent will be void. Venue shall lie exclusively in the state and federal courts located in Phoenix, Maricopa County, Arizona and each party consents to personal jurisdiction in such venue.
10. This Agreement shall cover all Confidential Information disclosed on, or within two (2) years after, the Effective Date (the “Disclosure Period”). The obligations of confidentiality under this Agreement shall continue until such time as the information ceases to be Confidential Information as defined under this Agreement and shall further survive (a) expiration of the Disclosure Period, (b) termination of this Agreement, or (c) notwithstanding either party’s decision at any time not to pursue the Business Purpose or enter into any transactions or further agreements.
11. No failure or delay in exercising any right under this Agreement shall operate as a waiver of that right unless such waiver is set forth in writing and signed by the party against whom enforcement is sought.
12. If any term or condition of this Agreement is held to be illegal or unenforceable (in whole or in part) by a court of competent jurisdiction, then the legal and enforceable portion of such term or condition (and all remaining terms and conditions of this Agreement) will remain in full force and effect. Any additions, amendments, attachments or modifications to this Agreement shall be made in writing and signed by both parties. An originally executed version of this Agreement that is delivered via facsimile or via electronic mail after having been scanned as an image file (including, Adobe PDF, TIF, etc.) shall be deemed an original signature, and neither party shall have the right to object to the manner in which the Agreement was executed as a defense to the enforcement of the Agreement
IN WITNESS WHEREOF, the parties hereto have executed this Mutual Non-Disclosure Agreement by their duly authorized officers or representatives as of the date first set forth above.
BY: Tony Cline