Mutual Confidentiality and Nondisclosure Agreement Dealers and Prospective Dealers
This Mutual Confidentiality and Nondisclosure Agreement (the “Agreement”) is entered into and is effective as of the last date written below (the “Effective Date”) by and between the undersigned parties (the “Party” or the “Parties”).
WHEREAS, the Parties plan to discuss certain business opportunities and transactions of mutual interest.
WHEREAS, in connection with these discussions, the Parties may exchange certain confidentiality, proprietary, private, or otherwise sensitive trade or business information, and wish to agree on the terms under which such information will be exchanged.
WHEREAS, the Parties have agreed to enter into this Agreement in order to share valuable information for their mutual benefit, which shall be updated from time to time by mutual consent of the Parties and incorporated now by reference; and
WHEREAS, the Parties wish that there should be no circumvention of a disclosing Party using the information provided by that Party nor disclosure of the information received to any third party except as provided for herein; and
THEREFORE, for and in consideration of the mutual promises and covenants included in this Agreement and with the intent to be legally bound hereby, the Parties agree as follows:
1. Definition. The term "Confidential Information" shall include any trade or business information, including without limitation, information about existing or potential products or services, costs or prices, customers or suppliers, research, developmental, engineering, manufacturing, business relationships or contacts, informational sheets, sales history or forecasts, financial, operating, formulas, performance, costs, business and process information and data, intellectual property, trade secrets, know-how, computer programming and other software and software techniques, marketing plans, financial projections or historical information, business methods or processes, technical data or know-how, trainings, analytical processes or data or any other information disclosed or otherwise made available in written form, electronically or orally at any time by either of the Parties (each a “Disclosing Party”) to the other party (the “Recipient”), irrespective of whether the information has been specifically identified in writing or orally as confidential or as Confidential Information. Confidential Information shall specifically include any such information disclosed to either of the Parties by the other, or otherwise made available, either purposely or inadvertently, in connection with any transaction, proposal or other business activity or during any discussions between employees, agents or other representatives of the Parties. Further, the Confidential Information will include the fact that the Parties are having or have had discussions concerning the subject business opportunities and transactions. Confidential Information will not include information which, on the Effective Date of this Agreement or subsequently becomes generally available to the public through no wrongful act or omission of the Recipient; was known to either of the Parties about the other prior to the commencement of discussions or the effective date of this Agreement; was disclosed in good faith under no obligation of confidence by a third party who had the right to make such disclosure, or was approved for release by written authorization of the Disclosing Party.
2. Non-Use; Nondisclosure of Confidential Information. The Recipient shall not use the Confidential Information of the Disclosing Party for any purpose except to evaluate whether to become engaged in a mutual business opportunity or opportunities. The Recipient shall not reproduce, distribute, disclose or otherwise disseminate any Confidential Information of the Disclosing Party to any third party, other than Authorized Parties, without the written consent of the Disclosing Party and shall not take any action causing, or fail to take any reasonable action necessary to prevent any Confidential Information from such dissemination.
3. Authorized Parties. The Recipient shall limit the disclosure of the Confidential Information of the Disclosing Party to those of its officers, employees, agents, Affiliates or other representatives (the "Authorized Parties") who need access to the Confidential Information to enable the Recipient to evaluate the particular business opportunity. The Recipient further agrees that all such Authorized Parties will be informed of the confidential nature of the Confidential Information, will be bound by the obligations of the Recipient under this Agreement, and will be provided a copy of this Agreement by the Recipient. Notwithstanding the foregoing, Recipient shall not disclose any of the Confidential Information to any Affiliate of Recipient unless the Affiliate also executes an agreement to be bound by the terms of this Agreement in the same manner as the Recipient. The Recipient will be strictly liable for any breach of this Agreement by any Authorized Party. An “Affiliate” of a Recipient means an entity owned or controlled by the Recipient, an entity or person who owns or controls the Recipient, or an entity that is under the control of the same person or entity as controls the Recipient.
4. Notice of Disclosures. The Recipient may disclose Confidential Information if required by a judicial or government court or agency, provided that the Recipient shall give the Disclosing Party prompt and sufficient notice of such request or requirement so that the Disclosing Party may contest or seek confidential treatment of such Confidential Information. The Parties each agree to advise the other party in writing of any unauthorized disclosure of Confidential Information by any person of which either of the Parties may become aware.
5. Ownership: Return of Confidential Information. Recipient shall keep a record of the written Confidential Information furnished by Disclosing Party and of the location of such Confidential Information. All Confidential Information shall remain the property of the Disclosing Party. Upon the termination of this Agreement or upon the earlier request of the Disclosing Party, the Recipient shall return to the Disclosing Party (or at the request of the Disclosing Party, shall destroy) any and all tangible items of Confidential Information, including any copies thereof, and shall promptly send to the Disclosing Party, written certification by a duly authorized representative that the Recipient has done so. That portion of the Confidential Information which consists of analyses, compilations, forecasts, studies, IP, software, programming, designs, financial information, or other documents prepared by you will be destroyed or caused to be destroyed by you promptly upon our request and any oral Confidential Information will continue to be subject to the terms of this Agreement. Such destruction shall be certified in writing to the Company by an authorized officer supervising such destruction.
6. Non-Circumvention. The Company and all Authorized Parties agree that for a period of five (5) years from the date of this Agreement, they will not seek to arrange any business relationship or transactions relating to the business opportunities and transactions discussed other than in connection with the Parties’ relationship. You agree not to directly or indirectly contact, deal with, contract with, transact, or otherwise be involved with any corporation, partnership, proprietorships, trust, individuals, or other entities introduced by the Company without the prior specific written consent of the Company. The Parties hereby represent, warrant and covenant that they will not directly or indirectly interfere with, seek to terminate, limit, circumvent or otherwise damage or alter in any respect the relationship, rights, duties and obligations of the Parties hereby created.
7. No Representations or Warranties. Disclosing Party makes no representations or warranties, express or implied, with respect to the Confidential Information, including but not limited to the accuracy or completeness of the Confidential Information disclosed hereunder.
8. Patent or Copyright or Infringement. Nothing in this Agreement is intended to grant any rights under any trademark, patent, copyright or any other proprietary right of the Disclosing Party to the Recipient.
9. No Grant of Ownership. Nothing herein contained shall be construed as a grant by implication, estoppel, or otherwise, of a license to Recipient to make, have made, use or sell any product or service that would directly or indirectly compete with the Disclosing Party, using Confidential Information or as a license under any patent, patent application, utility model, trademark, copyright, mask work right, or any other industrial or intellectual property right covering the same.
10. No Partnership. The Parties hereto shall not be deemed to be Partners or Joint Ventures and no Party shall be liable for any other Party's commitments or liabilities resulting from execution of this Agreement.
11. Equitable Relief. The Parties acknowledge and agree that monetary damages may be inadequate to remedy any breach of the obligations set forth in this Agreement, and that, in the event of any unauthorized disclosure or use of the Confidential Information of either party, the Disclosing Party may have the right to seek injunctive relief, without posting a bond, in addition to any other rights and remedies it may have at law or in equity.
12. Waiver. The waiver by either party of any breach or violation of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach or violation hereof.
13. Survival. All covenants and agreements made by either of the Parties to the other party hereunder, and the remedies of either of the Parties with respect thereto, shall survive the cessation of business opportunities (potential or actual) between the Parties.
14. Governing Law. This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of Texas, without regard to its conflicts of law principles. The exclusive venue for any legal action arising under or related to this Agreement shall be the United States District Court for the Eastern District of Texas, or, if such court lacks jurisdiction, the state courts located in Collin County, Texas. The Parties irrevocably submit to the exclusive jurisdiction of these courts and waive any objection to venue or jurisdiction, including claims of forum non conveniens.
15. Successor and Assigns. This Agreement shall inure to the benefit of the Parties and their permitted successors and assigns, provided that neither of the Parties may assign this Agreement or any right or obligation pursuant hereto, without the prior written consent of the other party. The restrictions in this Agreement shall be binding on Parties and Parties’ employees, agents, representatives, successors, advisors, and assigns. If any portion of this Agreement is held to be invalid or unenforceable for any reason, you agree that the invalidity or unenforceability shall not affect the other portions of this Agreement and remaining terms and conditions, or portions thereof, shall remain in full force and effect and any court of competent jurisdiction shall modify the objectionable provision so as to make it valid, reasonable, and enforceable. Any change or amendment to this Agreement, including oral modification, must be reduced to writing and signed by all Parties before it will be effective.
16. Severability. The invalidity or unenforceability of any provision of this Agreement shall in no way affect the validity or enforceability of any other provision.
17. Entire Agreement. This Agreement is the entire agreement between the Parties with respect to the subject matter hereof. This Agreement supersedes any and all prior or contemporaneous understandings, negotiations, communications or agreements between the Parties, oral or written, relating to the subject matter hereof. This Agreement cannot be changed, waived, discharged, terminated, modified or amended except by written agreement, executed by each of the Parties.
18. Termination. In all events this Agreement shall terminate (if it has not been terminated previously) when the Confidential Information discussed herein becomes non-confidential.
19. No Obligation. Nothing contained in this Agreement shall obligate either party to proceed with any further transaction or contractual arrangement.
20. Drafting. No presumption shall operate in favor of or against any Party as a result of any responsibility that any Party may have had for drafting this Agreement.
21. Headings. The paragraph headings in this Agreement are for the convenience of reference only and shall not in any way affect the interpretation or construction of this Agreement.
22. Counterparts. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. The Parties here to agree that a signed telefax or other facsimile copy of this Agreement shall have the same force and effect and as the original of this document.
IN WITNESS WHEREOF, the authorized representatives of the undersigned parties, with the intent to be legally bound, have duly executed and delivered this Agreement as of the last date written below.