(Hereinafter 'Receiving Party'). Receiving Party first acknowledges the sensitive and confidential nature of the information to be received and further hereby acknowledges that disclosure of this material could do irreparable harm to the Discolsing Party..
1. Confidential and Proprietary Nature of the Information. The Receiving party acknowledges the confidential and proprietary nature of the Confidential Information (as defined below), agrees to hold and keep the same as provided in this Agreement, and otherwise agrees to each and every restriction and obligation in this Agreement.
2. Confidential Information. As used in this agreement, the term “Confidential Information” means and includes any and all of the following information, whether provided prior to or after the date of this Agreement: (a) trade secrets concerning the business and affairs of the disclosing party which includes product /service specifications, data, know-how, processes, designs, sketches, photographs, graphs, drawings, samples, inventions and ideas, past current and planned research and development, current and planned manufacturing, sales or distribution methods and processes, customer lists, current and anticipated customer requirements, price lists, market studies, business plans, and any other information, however documented, that is a trade secret within the meaning of applicable state trade secret law.
3. Restricted Use of Confidential Information. The Receiving party agrees that the Confidential Information (a) will be kept confidential by the Receiving party and
(a) will be kept confidential by the Receiving party and its Representatives and
(b) without limiting the foregoing, will not be disclosed by the Receiving party or its Representatives to any person whomsoever except with the specific prior written consent of the Disclosing party or except as expressly otherwise permitted by the terms of this Agreement. The Receiving party further agrees that the Receiving party and its Representatives will not use any of the Confidential Information for any reason or purpose other than to evaluate a possible Transaction and that the Confidential Information will not be used by the Receiving party or its Representatives in any way detrimental to the Disclosing party (it being acknowledged that any use other than evaluation of
and negotiating the possible Transaction shall be deemed detrimental). The Receiving party also agrees to be responsible for enforcing the terms of this Agreement as to the Receiving party's Representatives and the confidentiality of the Confidential Information and to take such action, legal or otherwise, to the extent necessary to cause them to comply with the terms and conditions of this Agreement and thereby prevent any disclosure of the Confidential Information by any of the Receiving party's Representatives (including to take all actions that the Receiving party would take to protect its own trade secrets and confidential information).
4. Nondisclosure of Possible Transaction. Except as permitted by the foregoing paragraph and except as expressly permitted by a definitive agreement (including any agent, representative or independent contractor agreement), if any, entered into by the Receiving party for a Transaction, neither the Receiving party nor its Representatives will disclose to any person (including one who has been provided Confidential Information) the fact that the Confidential Information has been made available to the Receiving party or its Representatives or that the Receiving party or its Representatives have inspected any portion of the Confidential Information. Except with the prior written consent of the other party and except as expressly permitted by a definitive agreement, if any, entered into by the Receiving party for a Transaction, neither the Receiving party nor its Representatives will disclose the fact that any discussions or negotiations are taking place concerning a possible Transaction, including the status of them.
5. No Representations or Warranties. Disclosing Party retains the right to determine, in its sole discretion, what information, properties and personnel it wishes to make available to the Receiving Party, and neither Party nor its Representatives make any representation or warranty (express or implied) as to the completeness or accuracy of the Confidential Information, except pursuant to representations and warranties that may be made to the Receiving party in a definitive agreement for a Transaction when, as and if executed and subject to such limitations and restrictions as may be specified therein. The Receiving party also agrees that if it determines to engage in a Transaction, the Receiving party's determination will be based solely on the terms of such definitive agreement and on the Receiving party's own investigation, analysis and assessment of the business to be acquired. Moreover, unless and until such a definitive written agreement is entered into, neither Party will be under any legal obligation of any kind whatsoever with respect to such a Transaction except for the matters specifically agreed to in this Agreement or in another written agreement executed by the Parties.
6. Remedies. Either Party hereby agrees to indemnify and hold the other and its officers, directors, owners and agents harmless from any damages, 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 or other violation of this Agreement. In addition, because an award of money damages (whether pursuant to the foregoing sentence or otherwise) would be inadequate for any breach of this Agreement by the Receiving Party or its Representatives and any such breach would cause the Disclosing Party irreparable harm, the Receiving Party also agrees that in the event of any breach or threatened breach of this Agreement, the Disclosing Party, shall also be entitled, without the requirement of posting a bond or other security, to equitable relief, including injunctive relief and specific performance. Such remedies shall not be the exclusive remedies for any breach of this Agreement, but shall be in addition to all other remedies available at law or equity to the Disclosing party.
7. Receiving Party hereby agrees that they will not pursue the creation, development, engineering, design or otherwise attempt to replicate or reproduce any product(s) revealed to Receiving Party by Disclosing Party for a period of four (4) years. In the event of any breach of this non-compete clause, Disclosing Party shall pursue all applicable remedies available by law.
(a) Modification and Waiver. The agreements set forth in this Agreement may be modified or waived only by a separate writing signed by the Parties expressly modifying or waiving such agreements. 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.
(b) Person. The term 'person' includes any corporation, company, partnership, Limited Liability Company, individual or other entity.
(c) Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provisions of this Agreement, which shall remain in full force and effect. If any of the covenants or provisions of this Agreement are determined to be unenforceable by reason of its extent, duration, scope or otherwise, then the parties contemplate that the court making such determination shall reduce such extent, duration, scope or other provision and enforce them in their reduced form for all purposes contemplated by this Agreement.
(d) Costs. The Receiving party agrees that if it is held by any court of competent
jurisdiction to be in violation, breach or non-performance of any of the terms
of this Agreement, then it shall pay all costs of such action or suit, including
reasonable attorneys' fees.
(e) Assignment. Both Parties reserve the right to assign all rights under thisAgreement, including the right to enforce all of its terms, to any successor person. In the event of a Transaction that involves a sale of assets, the selling Party shall assign to the other Party rights to enforce the restrictions and other obligations of this Agreement including the right to enforce all of its terms.
(f) Headings. Headings in this Agreement are inserted only as a matter of convenience and for reference and in no way define, limit, extend or describe the scope of this Agreement for the intent of any of its provisions.
(g) Jurisdiction and Governing Law. Both Parties hereby agree and consent to personal jurisdiction and service and venue in any federal or state court within the state of Georgia having subject matter jurisdiction, for the purposes of any action, suit or proceeding arising out of or relating to this Agreement. The
venue of the court shall be within or, as close as possible to Atlanta, GA. This Agreement is governed by, and shall be construed in accordance with, the laws of the state of Georgia (except the laws of that jurisdiction that would render such choice of laws ineffective).
IN WITNESS WHEREOF the Parties have executed this Agreement in the manner appearing below, the day and year first above written.
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