By signing below you hereby agree to the terms of this agreement. The date and recipient name will be recorded electronically.
Provider: RE Nectar Inc.
Purpose for Information Disclosure: Discussion of a potential business relationship or transaction (the “Purpose”).
THIS NON-DISCLOSURE AGREEMENT (this “Agreement”) is entered into as of the date set forth above by and between the persons or entities identified above as “Provider” (“Provider”) and “Recipient” (“Recipient”).
Provider intends to provide or has provided the Recipient with certain technical and/or business information which the Provider considers to be confidential and proprietary. Recipient is willing to assure Provider that it will receive and hold such information in confidence and trust, and use and disclose such information only in support of the purposes for which it is provided. In consideration of the foregoing and other good and valuable consideration, the parties agree as follows:
1. Definitions.
1.1 “Affiliate” means (a) any person or entity directly or indirectly controlled by, controlling or under common control with a party, and (b) any officer, director, management employee, or trustee of any such entity or a party.
1.2 “Confidential Information” means all Trade Secrets (as hereinafter defined), financial, technical, business, sales, marketing, and other information, including all copies thereof (including, without limitation, all agreements, files, books, logs, charts, records, studies, reports, surveys, schedules, plans, maps, statistical information, computer code and programs, technical and functional specifications, business plans, strategic plans, ideas, projections, and documentation) which may be or already has been furnished or disclosed to Recipient by, or acquired by Recipient directly or indirectly from, Provider or Provider's Affiliates, including as a result of an inspection of any facility or technology of Provider, its Affiliates, or either of their licensors, licensees, or customers, whether or not marked, designated, or otherwise identified as “confidential.” Confidential Information also includes all memoranda, notes, reports, and documents relating to Confidential Information, all copies and extracts of Confidential Information, and all computer-generated studies and data containing Confidential Information prepared by or for the benefit of Recipient in connection with carrying out the Purpose.
1.3 “Trade Secrets” means any information, without regard to form, including, but not limited to, technical or nontechnical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans, or a list of actual or potential customers or suppliers which is not commonly known by or available to the public and which information: (a) 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 (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy, or such other meaning as shall be assigned to that term from time to time by applicable law.
2. Restrictions.
2.1 Confidential Information. Except as provided herein, during the period required to complete the Purpose and for a period of three (3) years thereafter:
(a) Recipient will protect and safeguard the confidentiality of all Confidential Information with at least the same degree of care as the Recipient would protect its own confidential information, but in no event with less than a commercially reasonable degree of care;
(b) Recipient and its Representatives may use the Confidential Information only for the Purpose and may not use the Confidential Information for any other reason without the express written consent of the Provider;
(c) Recipient hereby agrees not to circumvent the Provider to conduct business with any of Provider’s clients without written consent from the Provider.
(d) Recipient will immediately notify the Provider upon discovery of any loss or unauthorized disclosure of the Confidential Information of the Provider; and
(e) Recipient shall not disclose or provide the Confidential Information to any third party, and may only disclose the Confidential Information to Recipients’ Affiliates, officers, directors, partners, shareholders, agents, attorneys, accountants, consultants, potential debt and equity financing sources, lending institutions, representatives, employees, and advisors (collectively, such persons who receive Confidential Information from, or on behalf of, Recipient, “Representatives”) who have a “need to know” such Confidential Information and are subject to legally binding confidentiality obligations relating to the use and disclosure of such Confidential Information at least as restrictive as those contained herein.
2.2 Trade Secrets. The terms of Section 2.1 which apply to Confidential Information shall apply to Trade Secrets for as long as they remain within the definition of Trade Secrets set forth in this Agreement. The three (3) year term set forth in Section 2.1 shall not apply to Trade Secrets.
2.3 Exceptions. This Agreement does not apply to any Confidential Information which:
(a) at the time of disclosure, is, or thereafter becomes, publicly available and known other than as a result of the fault or breach of the Recipient;
(b) was rightfully in the possession of Recipient, as established by documentary evidence, prior to Recipient's receipt of such Confidential Information, directly or indirectly, from Provider and/or Provider's Affiliates; or
(c) is acquired by Recipient from a third party who does not thereby breach an obligation of confidence to Provider and/or Provider's Affiliates and who discloses it to Recipient in good faith.
2.4 Legally Required Disclosure. Notwithstanding the foregoing, Recipient may disclose Confidential Information to the extent legally required by a final order of any court or administrative agency having competent jurisdiction, provided that Recipient immediately notifies Provider, allows Provider an opportunity to object to or block such disclosure, and cooperates with Provider to protect the confidentiality thereof by all means reasonably available, at Provider’s expense.
3. Return of Materials.
Recipient shall destroy or return and deliver, or cause to be destroyed or returned and delivered, to Provider, all documentation, materials, media, objects, and other tangible items that contain Confidential Information immediately upon the completion of the Purpose if no definitive agreement for a business relationship has been reached, or otherwise immediately upon the written request of Provider. Upon Provider's request, Recipient agrees to certify it has completed such requested action. Notwithstanding the foregoing, Recipient and its Representatives: (a) shall not be required to return or destroy any Confidential Information to the extent that it is otherwise required by law, regulation, rule governing the Recipient’s or its Representatives’ professionals, or bona fide document retention policies; and (b) will not be obligated to erase any Confidential Information that is contained in any archived computer system backup in accordance with the Recipient’s or its Representatives’ security and/or disaster recovery procedures; provided that any retained Confidential Information shall remain subject to the terms hereof.
4. Intellectual Property Ownership.
Unless otherwise indicated, Provider is the owner of all right, title, and interest in and to the Confidential Information (including ownership of all copyrights, patent rights, and trade secrets pertaining thereto). Recipient agrees not to make any claim to or challenge any rights (including intellectual property rights) of or claimed by Provider or its Affiliates in or to the Confidential Information. No right or license in or to the Confidential Information are hereby granted to Recipient except as expressly stated herein.
5. Warranty Disclaimer.
No warranty is made to any person hereby regarding the accuracy, completeness, condition, suitability, or performance of the Confidential Information.
6. No Obligation.
Neither party shall be under any legal obligation of any kind whatsoever with respect to the proposed transaction except for the matters specifically agreed to in this Agreement. Recipient understands that nothing herein requires the disclosure of any Confidential Information of Provider and that such Confidential Information shall be disclosed, if at all, solely at the option of Provider.
7. Remedies.
All Confidential Information is, at all times and for all purposes, deemed to have been acquired and is to be held by Recipient in a fiduciary capacity and solely for the benefit of Provider. The unauthorized use or disclosure of any Confidential Information by Recipient will cause severe and irreparable damage to Provider and/or Provider's Affiliates. In the event of any violation of this Agreement, Recipient agrees that Provider will be authorized and entitled to obtain from any court of competent jurisdiction preliminary and/or permanent injunctive relief, as well as any other relief permitted by applicable law; and the parties hereby waive any requirement for the securing or posting of any bond or the showing of actual monetary damages in connection with such claim.
8. Choice of Law; Venue.
This Agreement is governed by and construed in accordance with the laws of the State of Delaware. Venue for any dispute will be in the state and federal courts located in the Fifth Judicial District of Georgia.
9. Entire Agreement.
This Agreement contains the entire agreement of the parties regarding the subject matter hereof and supersedes all other prior agreements, whether written or oral, regarding such subject matter. This Agreement may be changed only by an instrument in writing executed by both parties.
10. No Waivers.
No failure or delay by a party hereto in enforcing any right, power, or privilege created hereunder will operate as an implied waiver thereof, nor will any single or partial enforcement thereof preclude any other or further enforcement thereof or the enforcement of any other right, power, or privilege.
11. Assignment.
This Agreement inures to the benefit of each party and its successors and assigns. To the extent Provider discloses, or provides for the disclosure of, Confidential Information of the Provider’s Affiliate, such Affiliate will be a third-party beneficiary with respect to the confidentiality provisions of this Agreement and will be entitled to enforce such provisions as its interests may warrant.
By electronically signing, you, the recipient, are agreeing to all of the terms and conditions of this agreement.
