The captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any provisions of this Agreement.
The Signatories hereto agree to interpret this agreement in its broadest legal sense, and to enter into such in their private and personal capacities with full responsibility, and agree and undertake voluntarily to waive and renounce any and all rights of immunity whether Diplomatic, Sovereign or otherwise, so as to enable the Signatories hereto to give full force and legal effect to the true purpose and intent of this agreement.
The Signatories hereto acknowledge that the true spirit of this Agreement is one of mutual trust and confidence, reliance on each other to do what is fair and equitable, and to honour what has been agreed between the Signatories hereto.
3. NO OBLIGATION TO PURSUE TRANSACTION
The Principal wishes to explore and evaluate listing a Project with The Stone Expert, with the intention to Sell the Project. This agreement, or any written or oral expression with respect to this agreement, the Project, or the Transaction, by any of the parties' Affiliates or Representatives, does not impose any obligation on either party to authorize or pursue the Transaction, except for the matters specifically agreed to in this agreement.
Unless and until a definitive agreement between the parties with respect to the Transaction has been executed and delivered, neither party will be under any legal obligation with respect to the Transaction or to any other transactions or agreements and each party reserves the right to reject any and all proposals and to terminate discussions and negotiations with the other party.
4. CONFIDENTIAL INFORMATION
4.1. CONFIDENTIAL INFORMATION, REPRESENTATIVES
The Principal is considering entering into a sales/investment process related to the Project, requiring confidential details of the Project and in order to assist The Stone Expert in evaluating the Potential Transaction, the Disclosing Party is prepared to make available certain Confidential Information.
As a condition to the Confidential Information being furnished to the Receiving Party and its Connected Persons, representatives, advisors, lenders, shareholders, directors, officers, and employees (collectively, the "Representatives”), the Receiving Party agrees to treat the Confidential Information in accordance with the provisions of this Agreement and to take or abstain from taking certain other actions hereinafter set forth.
Any information, documentation or other intellectual property of any kind, or any portion or version thereof, owned by either of the Parties and made available to the other Party will remain in the ownership of said former Party and, if used in any way by the other Party for financial gain of whatsoever nature, then the owning Party shall be entitled to reward in the manner agreed by the Parties or, if not agreed, in a fair and reasonable manner taking into account the benefits from such use derived by the non-owning Party. Should this agreement be terminated for any reason whatsoever, then such intellectual property, in whatever form, shall be returned to the owning Party and the other Party shall have no rights thereto, other than as negotiated and agreed between the Parties both in terms of nature and reward.
The Receiving Party covenants not to use the Confidential Information to the detriment of the Disclosing Party and to use it only in connection with its evaluation of the Potential Transaction.
4.2. EXCLUDED INFORMATION
The Confidential Information shall not include information that (i) is or becomes generally available to the public other than as a result of acts by the Receiving Party in breach of the terms of this Agreement, (ii) is independently derived by the Receiving Party without the aid, application, or use of the Confidential Information, (iii) is disclosed to the Receiving Party by a third party on a nonconfidential basis, or (iv) is required to be disclosed by applicable law or regulation.
4.3. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION
The Receiving Party shall use the Confidential Information solely for the purpose of evaluating the Potential Transaction. The Receiving Party shall use its best efforts to keep the Confidential Information in confidence and shall not disclose any of the Confidential Information to any other person, provided, however, that the Receiving Party may make any disclosure of Confidential Information to the Receiving Party’s Representatives who need to know such information for the purpose of evaluating the Potential Transaction and who agree to keep such information in confidence. The Receiving Party will not disclose or permit inevitable disclosure of such Confidential Information, and the Receiving Party shall be solely and directly responsible for all persons who obtain Confidential Information by or through the Receiving Party or the Receiving Party’s Representatives. The Receiving Party shall not otherwise permit such Confidential Information to be available or accessible, stored electronically or otherwise, published, distributed, transmitted, or delivered in any form whatsoever to anyone else. Without limitation to these obligations, all Confidential Information will be safeguarded with the highest degree of care to avoid disclosure, and shall, to the extent reasonably possible, be preserved bug- and virus-free. The Receiving Party shall not allow or permit any such Confidential Information to be knowingly or negligently misappropriated or used (directly or indirectly, by independent research, reverse engineering, decompiling, or otherwise) by the Receiving Party or the Receiving Party’s Representatives for their own benefit or for the benefit of others, except in conjunction with discussions and meetings between the Disclosing Party and the Receiving Party and agreements or actions arising therefrom or related thereto.
4.4. NON-DISCLOSURE OF EXISTENCE OF NEGOTIATIONS
Without the prior written consent of the Disclosing Party, or except as may be required by applicable law or regulation, the Receiving Party nor any person acting on behalf of the Receiving Party shall disclose to any third party that discussions or negotiations are taking place between the Parties concerning the Potential Transaction, including the status of such discussions or negotiations. This is a material provision to this Agreement and the Disclosing Party would not have disclosed any Confidential Information but for this provision.
4.5. NON-DISCLOSURE OF IDENTITY
Without the prior written consent of the Disclosing Party, or except as may be required by applicable law or regulation, the Receiving Party nor any person acting on behalf of the Receiving Party shall disclose to any third party the identities of the persons directly involved with the business of the Disclosing Party. This is a material provision to this Agreement and the Disclosing Party would not have disclosed any Confidential Information but for this provision.
4.6. INTELLECTUAL PROPERTY
Nothing contained in this Agreement will be construed as granting or conferring any intellectual property, patent, copyright, trademark, trade secret, or any other proprietary rights by license or otherwise, whether expressly written or implied herein or otherwise, for any trademark, trade name, logo, logotype, invention, discovery, or improvement made, conceived, or acquired prior to or after the date of this Agreement. All such rights shall be, become, and remain the sole property of the Disclosing Party.
4.7. 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 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 (i) if practicable, promptly notify the Disclosing Party of the existence, terms, and circumstances surrounding such a request and consult with the Disclosing Party on the advisability of taking steps to resist or narrow such a request, (ii) if disclosure of such Confidential Information is required, furnish only such portion of the Confidential Information as the Receiving Party is required to disclose, and (iii) cooperate with the Disclosing Party, at the Disclosing Party’s expense, in its efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information that is required to be disclosed.
Neither Party shall issue or permit any media release or public comment regarding the discussions, the Potential Transaction, this Agreement, or the Confidential Information without the prior written consent of the other Party.
4.9. RETURN OF CONFIDENTIAL INFORMATION
This Agreement shall not oblige either party to continue discussions with the other relating to the Transaction. Either party may at any time decide to end the discussions and, if so, it shall inform the other party reasonably promptly.
At the request of the Disclosing Party, the Receiving Party shall:
i. destroy or return to the Disclosing Party all hard copy documents and materials containing, reflecting, incorporating or based on the Disclosing Party's Confidential Information; and
ii. certify to the Disclosing Party that it has complied with the requirements of this clause.
The Receiving Party may retain electronic copies of all documents and materials containing, reflecting, incorporating or based on the Disclosing Party's Confidential Information on the strict condition that the Receiving Party does not make any use of any such copies (other than for archive/liability management purposes) once either party has notified the other that it no longer wishes to pursue discussions relating to the Transaction in accordance with the Termination.
The provisions of this Agreement shall continue to apply to any copies containing, reflecting, incorporating or based on the Disclosing Party's Confidential Information retained by the Receiving Party.
The Signatories acknowledge that in the event of any breach of the terms of this Agreement, the breached Party may not be made whole by monetary damages. Accordingly, the breached Party, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to seek an injunction to prevent breaches of the terms of this Agreement. No bond or other security will be required in connection with the pursuit of an injunction.
The jurisdiction for this Contract is global and worldwide. Should a Signatory assert that a violation has occurred, the Signatories agree that the Signatory alleging the violation shall be entitled to take action to remedy the violation in the locale and/or legal jurisdiction in which the violation occurred, and/or in any other locale or jurisdiction(s) which is appropriate, in the opinion of the Signatory and their counsel.
7. NO RELATIONSHIP, PARTNERSHIP
Nothing in this Agreement shall create a fiduciary relationship between the Signatories nor shall anything in this establish any partnership or joint venture between the parties.
The Signatories establish that there shall not be any relationship of employment between the Principal and The Stone Expert at any point.
8. ENTIRE AGREEMENT, AMENDMENT
This Agreement (i) represents the entire understanding and agreement of the parties hereto with respect to the matters contained herein, and (ii) may be amended, modified, or waived only by a separate writing executed by the Signatories expressly so amending, modifying, or waiving this Agreement.
9. NO WAIVER
No failure or delay by the Signatories 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.
The confidentiality requirements, covenants, agreements, and indemnity obligations of this Agreement will survive any termination of this Agreement.
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 shall not be deemed to affect any other provision hereof or the validity of the remainder of this Agreement, and such invalid provision shall be deemed deleted from this Agreement to the minimum extent necessary to cure such violation.
All provisions hereof are binding upon and shall inure to the benefit of the respective parties and their successors and assigns. In addition, The Principal expressly acknowledges and agrees that this Agreement shall be binding upon each of their subsidiaries or other related and/or affiliated entities, which The Principal may now or hereafter own or have any interest in.
The Signatories may not assign or otherwise transfer any of its rights or obligations under this Agreement to any third party without the prior written consent of the other Party. No permitted assignment shall relieve the Signatories of the obligations hereunder. Assignment includes assignment, encumbrance, or transfer of any kind of all or any rights or obligations arising hereunder or pursuant hereto. Any assignment in violation of this Agreement shall be deemed null and void.
14. TERM AND TERMINATION
This Agreement shall be in effect for 2 (two) years from the effective date whilst discussions between the Signatories relating to the Transaction continue and neither Signatory has notified the other Signatory that it wishes to cease discussions. If either Signatory wishes to cease the discussions between the Signatories relating to the Transaction or decides not to become or continue to be involved in the Transaction, it shall notify the other Signatory reasonably promptly.
The obligations of The Signatories shall, notwithstanding any termination of negotiations or discussions between The Signatories in relation to the Transaction, continue for a period of 3 (three) years from the termination of discussions.
Termination of discussions shall not affect any accrued rights or remedies to which either party is entitled.
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.