Mutual Non-Disclosure and Confidentiality Agreement
This Mutual Non- Disclosure and Confidentiality Agreement (the
“Agreement”) is made on [insert date] by and between Cote’ Art &
Engineering, Inc. a company established in accordance with the laws of
the State of Florida, USA having its principal place of located at 3216
Nab St., Mims, Florida, 32754, USA (hereinafter referred to as “Cote’
Art & Engineering, Inc.” and wherever the context so requires,
means and includes its affiliates, associates, successors and permitted
assigns)
AND
XYZ Corporation, a company incorporated and validly existing under the
laws of the State of [Insert State] having its principal place of
business situated at [insert address] (hereinafter referred to as “XYZ”
and wherever the context so requires, means and includes its
affiliates, associates, successors and permitted assigns)
Recitals:
Whereas, the parties wish to disclose to each other on a confidential
basis certain information related to projects and processes
(hereinafter "Subject Matter"), which information the parties deem to
be proprietary and confidential; and
Whereas, each party is willing to receive such information in
confidence from the other subject to the terms and conditions of this
Agreement for the sole purpose of evaluating a potential business
transaction between the parties (hereinafter the "Project").
Now therefore, in consideration of the foregoing premises and the
mutual covenants and promises herein contained, the parties hereto
agree as follows:
1. Confidential Information, as used herein, shall mean oral,
written or documentary information that relates to the above-identified
Subject Matter and is received by the receiving party from the
disclosing party or a party acting on behalf of the disclosing party.
Information meeting these requirements shall be deemed Confidential
Information notwithstanding the fact that the receiving party has
received it from a third party pursuant to a confidentiality
agreement. Information orally disclosed by the disclosing party
shall be considered confidential if such is identified as confidential
at the time of disclosure or is identified as confidential within
twenty (20) days after the first oral disclosure thereof.
2. The term "Trade Secrets" as used in this Agreement shall mean
Confidential Information that:
derives economic value, actual or potential, from not being generally
known to, and not being readily ascertainable by proper means by other
persons who can obtain economic value from its disclosure or use; and
- is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
- Names and contact info of COTE’ ART & ENGINEERING,
INC.’s past, current and potential suppliers
- Names and contact info of XYZ’s past, current and potential
customers
"Confidential Information" and "Trade Secrets" do not include, and the
receiving party shall have no obligation with respect to information
that:
- is already known to the receiving party prior to receipt
from the disclosing party as evidenced by prior documentation thereof;
or
- is or becomes publicly known through no wrongful act of the
receiving party; or
- is rightfully received by the receiving party from a third
party without restriction and without breach of this or any other
Agreement; or
- is approved for release by written authorization of the
disclosing party; or
- if Receiving Party receives a subpoena or other validly
issued administrative or judicial process demanding Receiving Party to
disclose all or any part of the Confidential Information, Receiving
Party will promptly notify Disclosing Party of such request or
requirement so that Disclosing Party may seek an appropriate protective
order or waive Receiving Party’s compliance with the provisions of this
Agreement. If Disclosing Party decides to seek a protective
order, Receiving Party agrees to use its best efforts to assist
Disclosing Party in obtaining such an order. If, in the absence
of a protective order or the receipt of a waiver under this Agreement,
Receiving Party, in the opinion of Receiving Party’s counsel, is
compelled to disclose such information to any tribunal or else stand
liable for contempt, Receiving Party may disclose such Confidential
Information to the tribunal without liability under this Agreement.
The parties acknowledge and agree that under this Agreement each will
obtain and have access to Confidential Information and Trade Secrets
and that the misappropriation, unauthorized use, or unauthorized
disclosure of such Confidential Information or Trade Secrets of the
other would cause irreparable harm to the disclosing party.
When or if COTE’ ART & ENGINEERING, INC. discloses the names and
contact information of COTE’ ART & ENGINEERING, INC.’s past,
present and potential suppliers, the receiving party acknowledges this
information as a trade secret and promises not to bypass COTE’ ART
& ENGINEERING, INC. with the objective of establishing direct
business relationship(s) with COTE’ ART & ENGINEERING, INC.’s
supplier(s) at the detriment of COTE’ ART & ENGINEERING, INC.’s
business and financial interests.
When or if XYZ discloses the names and contact information of XYZ’s
past, present and potential customers, the receiving party acknowledges
this information as a trade secret and promises not to bypass XYZ with
the objective of establishing direct business relationship with XYZ’s
US customers at the detriment of XYZ’s business and financial interests.
With respect to any Trade Secrets, each party agrees not to use for any
purpose whatsoever or disclose the Trade Secrets of the other at any
time hereafter, except as necessary for the performance of its duties
under this Agreement or until such Trade Secrets become generally
available to the public by independent discovery or development or
publication. The rights to protection of Trade Secrets in this
Agreement are in addition to the rights under common or statutory law
for the protection of Trade secrets.
In carrying out its duties under paragraphs 4, 5, 6 and 7, each party
agrees to use a standard of care with respect to each other’s
confidential information, which is at least as high as it uses to
protect its own confidential information, and no less than a reasonable
standard of care.
All Confidential Information and Trade Secrets and all tangible forms
of such information, including, but not limited to, business
information, data, documents, drawings, specifications, prototypes,
proposals and software received hereunder by a party from the other
shall remain the property of the disclosing party, or, if received by a
party from a third party, the property of such third party. Upon
completion by a party of its use of the other's Confidential
Information and Trade Secrets in connection with the above-stated
purpose of this Agreement, or upon written request by the disclosing
party, whichever is earlier, the receiving party shall return to the
disclosing party all tangible forms of Confidential Information and
Trade Secrets, including any and all whole or partial copies thereof.
Nothing contained in this Agreement or in any discussions undertaken or
disclosures made pursuant hereto shall (a) be deemed a commitment by a
party to engage in any business relationship, contract, or future
dealing with the other, or (b) limit a party's right to conduct similar
discussions or engage in similar work to be undertaken pursuant hereto,
so long as said discussions or work do not violate this Agreement.
Nothing contained in this Agreement shall be construed as (i) requiring
a party to disclose, or a party to accept, any particular information,
or (ii) granting to other party a license, either express or implied,
under any patent, copyright, trade secret, or other intellectual
property rights now or hereafter owned, obtained, or licensable by
COTE’ ART & ENGINEERING, INC., or XYZ or any third party.
This Agreement shall be deemed to have been completed in the State of
Florida and shall be interpreted and the rights of the parties
determined under the laws of the State of Florida, without regard to
the conflict of laws provisions thereof, and only the courts Cote’ Art
& Engineering, Inc.ng in that State shall have exclusive
jurisdiction of the parties for the purposes of adjudicating any
disputes under this Agreement. The parties hereby consent to
personal jurisdiction and venue in the courts of the State of Florida
and hereby waive any claim or defense that the party lacks minimum
contacts with the forum, that the Courts of the State of Florida lack
personal jurisdiction of the parties, or that the Courts of the State
of Florida are an improper or inconvenient venue. The parties
further agree that service of process may be accomplished by certified
mail, return receipt requested, pursuant to the United States Federal
Rules of Civil Procedure, as follows:
If to COTE’ ART & ENGINEERING, INC.:
COTE’ ART & ENGINEERING, INC.
3216 Nab St.
Mims, FL 32754 (USA)
If to XYZ:
XYZ Corporation
[Insert Address]
This Agreement expresses the entire agreement and understanding between
the parties respecting the subject matter hereof and shall not be
modified except by a writing signed by authorized representatives of
the parties on or after the date hereof.
This agreement may be terminated by either party with a two-week
written notice. However, provisions of this agreement shall remain in
effect for three years after the date of termination.
Both parties to this Agreement represent and warrant that it has all
requisite corporate power and authority to execute and deliver this
Agreement and to consummate the various provisions contemplated hereby
and that the execution and delivery of this Agreement and such
execution and consummation thereby do not (a) violate any laws or
regulations applicable to it or require the consent of any entity or
person which has not been obtained.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date(s) of signatures below.
For COTE’ ART & ENGINEERING, INC.
Signature:
Name: Gregory Pettengill
Title: President & CEO
Date:
Witness:
For XYZ Corporation
Signature:
Name:
Title:
Date:
Witness:
