This Confidentiality and Non-Disclosure Agreement (the "Agreement"), dated as of {date} , is by and between DRIVELINE SOLUTIONS, (Agency) with its principal place of Business at 5415 Sugarloaf Pkwy Suite 1108 #3092, Lawrenceville, GA 30042 (together with all its affiliates, and {name} (Contractor) located at {cityOf}, {stateOf} (Together with all its affiliates) DriveLine Solutions and Company referred to herein collectively as the "Parties" or singularly as a "Party" or a "Recipient Party" or a "Disclosing Party", as the case may be WHEREAS the Parties desire to engage in discussions regarding a possible business transaction which will necessitate their sharing Confidential Information, as defined herein; and WHEREAS, the Parties desire to protect and prevent unauthorized disclosure of Confidential Information and desire to establish and set forth their individual obligations as set forth herein.
NOW, THEREFORE, in consideration of the above premises and the mutual promises set forth herein, the Parties hereby agree as follows:
1. The Parties acknowledge and agree that all information provided by the Disclosing Party to the Recipient Party, including, without limitation, all information relating to sales, financial data, customers, employees, agents, and representatives, production, data gathering, business, operations, products, methods of operation, plans, pricing, marketing, or other disclosures, whether oral, written, graphic or in electronic form, all of which is hereinafter referred to as "Confidential Information" shall be considered the proprietary and confidential property of the Disclosing Party, except as otherwise expressly set forth below.
2. During the term of this Agreement and for a period of three (3) years thereafter, each Recipient Party shall restrict the disclosure of the Confidential Information solely to those of its employees with a need to know and shall not disclose it to third parties, except for such third parties retained by either Party for the purpose of assessing whether to pursue or consider any transaction with the other Party, provided that any such third party shall agree to not disclose the Confidential Information pursuant to the terms herein.
3. Each Recipient Party shall inform its employees, that it authorizes to receive the Confidential Information, that the Confidential Information is confidential and proprietary and of the obligation to keep the Confidential Information confidential under the terms of this Agreement. At the request of Disclosing Party, Recipient Party shall obtain and provide copies to Disclosing Party of written agreements from its employees and agents confirming the foregoing.
4. Each Recipient Party shall review and use the Confidential Information solely for the purpose of evaluating whether to enter a business transaction with the Disclosing Party. The Recipient Party shall not use the Confidential Information in any way to compete or to provide anyone else with assistance in competing with the Disclosing Party. In no other respect, however, shall this Agreement be interpreted to prevent or restrict the Parties from competing.
5. Each Recipient Party shall use and require its employees to use the same degree of care to protect the Confidential Information and to prevent unauthorized disclosure or use of the Confidential Information as is used with the Recipient Party's own confidential information, which shall be at least the same degree of care which a reasonably prudent person would take to prevent disclosure of its own confidential information.
6. Except as otherwise provided herein, each Party shall keep information about the existence and terms of a potential transaction, the existence, and contents of this Agreement, its consideration of a potential transaction, and each Party's participation in negotiations completely confidential, unless a Party receives written permissionto disclose such information from the other Party.
7. Notwithstanding anything to the contrary herein, Recipient Party shall have no obligation to preserve the confidentiality of any Confidential Information that it can prove, based upon contemporaneous written documentation, was previously known by Recipient Party free of any obligation to keep it confidential, is or becomes publicly available (other than by unauthorized disclosure), is independently developed by Recipient Party or is received by the Recipient Party from a third party under no obligation of confidence to Disclosing Party. In addition, notwithstanding anything to the contrary herein, if the Recipient Party is requested in any judicial or administrative proceeding or by any governmental or regulatory authority to disclose any Confidential Information of the Disclosing Party, to the extent legally permissible, such Recipient Party will give to the Disclosing Party prompt written notice of such request so that the Disclosing Party may seek an appropriate protective order. If in the absence of a protective order the Recipient Party is nonetheless compelled to disclose Confidential Information of the Disclosing Party, such disclosure may be made hereunder by the Recipient Party so compelled without any liability hereunder or otherwise provided that such compelled Recipient Party (a) gives the Disclosing Party prompt written notice of the Confidential Information to be disclosed as far in advance as is reasonably practicable and (b) discloses only such Confidential Information as its legal counsel had advised Recipient Party must be disclosed pursuant to such process.
8. Upon request by the Disclosing Party, Recipient Party shall promptly return or destroy all documents and records, including those in machine-readable media, that contain the Confidential Information, without in any manner retaining any copies, duplicates, extracts or other reproductions of such documents or records that contain the Confidential Information. Upon request by Disclosing Party, Recipient Party shall provide a certificate that shall confirm that the foregoing has taken place. The Recipient Party agrees to reproduce on any copy (in whatever form) all copyright and proprietary notices in the same form as they appear on the Confidential Information provided to the Recipient Party by the Disclosing Party.
9. Each Party agrees and covenants that it will not during the term of this Agreement and for a period of twelve months thereafter (a) solicit, hire, induce or attempt to influence any customer, supplier, employee, agent, or representative of the other Party to terminate or adversely modify its relationship with the other Party or (b) disparage the other Party, its products, services, customers, suppliers, agents, or representatives.
10. Nothing contained in this Agreement shall be construed as granting to or conferring upon Recipient Party any rights by license or otherwise in any Confidential Information disclosed, except for the limited right to use the Confidential Information for the limited purposes set forth above.
11. It is understood and agreed by the Parties that this Agreement shall only govern the Parties' possession and use of any Confidential Information provided by the Parties' and shall not be construed to require either Party to provide the Confidential Information to the other Party or to otherwise pursue or consider any transaction with either Party. Any such transaction, shall it occur at all, shall be the subject of a separate formal agreement.
12. Each Party recognizes that any actual or threatened disclosure of Confidential Information in violation of this Agreement may cause the Disclosing Party irreparable harm and be exceptionally difficult to quantify such that the Disclosing Party shall be entitled to injunctive relief or a decree of specific performance upon a proper showing of such a violation, without the necessity of demonstrating actual monetary damage.
13. This Agreement shall become effective on the date set forth above and shall continue in effect until terminated in writing by either Party. The obligation to protect and not disclose the Confidential Information received prior to such termination shall survive the termination of this Agreement for the periods specified herein.
14. This Agreement embodies the entire agreement of the parties relating to the subject matter hereof and supersedes any prior such agreements. This Agreement may not be amended except by a written agreement signed by both Parties.
15. No waiver of any provision or condition of this Agreement shall be valid unless executed in writing and signed by the party to be bound thereby, and then only to the extent specified in such waiver. No waiver of any provision or condition of this Agreement shall be construed as a waiver of any other provision or condition of this Agreement, and no present waiver of any provision or condition of this Agreement shall be construed as a future waiver of such provision or condition.
16. This Agreement shall be governed and construed in accordance with the laws of the State of Wisconsin and shall bind and inure to the benefit of the Parties hereto and their respective successors and assigns. IN WITNESS WHEREOF, the Parties here have caused this Agreement to be executed by their duly authorized representatives as of the day and year set forth above.