Customer NDA Form Signature
Effective as of (the “Effective Date”), this Mutual Non-Disclosure Agreement (“Agreement”) is entered into by and between TUNGCO INCORPORATED, a Kentucky corporation with a mailing address of 3955 Anton Rd., Madisonville, Kentucky 42431 (“Tungco”), and , with its principal place of business at (“Customer”). As a condition to the parties sharing confidential and proprietary information with each other, as well as other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1.1 Purpose. Tungco and Customer are interested in having discussions relating to (the “Purpose”, with each business arrangement arising therefrom being referred to as a “Tungco/Customer Transaction”).
1.2 No Conflict. Each party represents that there are no legal obligations of any kind that would prevent it from performing its obligations under a Tungco/CustomerTransaction. Further, each Disclosing Party agrees not to disclose to the Receiving Party any information of a third party or use the same for the benefit of the Receiving Party if such disclosure or use would violate any rights or obligations due and owing to such third party.
1.3 Disclosing Party and Receiving Party. The term “Disclosing Party” means a party (being Tungco on one hand or Customer on the other hand) that furnishes its Confidential Information (through one or more of its Representatives) to the other party or such other party’s Representatives. The term “Receiving Party” means a party to this Agreement that receives Confidential Information (through any of its Representatives) from the Disclosing Party (or through such Disclosing Party’s Representative(s)).
1.4 Authorized Representative. Until Customer is notified in writing otherwise, the “Authorized Representative” of Tungco shall be (with an email address of and, if different, the individual signing this Agreement on behalf of Tungco (with an email address as referenced in Tungco’s signature block). Until Tungco is notified in writing otherwise, the “Authorized Representative” of Customer shall be the individual signing this Agreement on behalf of Customer (with an email address as referenced in the Customer’s signature block).
2. Confidential Information
2.1 Definition of Confidential Information. “Confidential Information” of a Disclosing Party shall include all information (regardless of the format or media) of such Disclosing Party that is disclosed (verbally, electronically, visually, in writing or otherwise) to the Receiving Party by such Disclosing Party (through one or more of its Representatives) — or to which the Receiving Party develops or developed on behalf of such Disclosing Party or has or had access to either electronically, on the Disclosing Party’s premises or otherwise — before, or after the execution of this Agreement, including, without limitation, the following information of or relating to such Disclosing Party or its business or affiliates: (a) the following with respect to present and prospective customers and suppliers: lists, databases, names, contact persons, the existence of a relationship with such Disclosing Party, files, purchase/sale terms, buying patterns, histories, trends, past orders, items supplied, requirements, future needs and sales and profitability data, as well as details of vendors matched to specific items supplied; (b) sales, costs, profits and other financial information, pricing strategies and methods, marketing plans, methods and strategies, business and expansion plans and strategies, policy and procedure manuals and business relationships, (c) information with a commercial value or utility, improvements, research and development, discoveries, inventions, drawings, blueprints, molds, mold designs, samples, computer hardware and software programs (and all data contained therein), information systems, designs, plans, specifications, processes, methods, know-how, recipes, formula, patents, copyrights, trademarks and other trade secrets(whether or not licensed from a third party), (d) any third party information the Disclosing Party treats as confidential or proprietary information, (e) any information the Receiving Party knows or reasonably should know is confidential or proprietary information of such Disclosing Party or its licensors, (f) the contents, terms and existence of any discussions, negotiations or agreements (including, without limitation, this Agreement) relating in any way to the Purpose, any Tungco/Customer Transaction or any present or future business relationship between the parties, and/or (g) any and all data, electronic records, notes, analysis, compilations, studies, summaries and other material containing or based, in whole or in part, upon any information included in the foregoing.
2.2 Exclusions from Confidential Information. Notwithstanding anything to the contrary in Section 2.1, “Confidential Information” of a Disclosing Party shall not include any information, however designated, that: (i) is or subsequently becomes publicly available without a breach (by the Receiving Party or any of its Representatives) of any obligation owed to such Disclosing Party hereunder prior to the date the Receiving Party proposes to disclose or use such information; (ii) was known by the Receiving Party prior to the time of receiving such information from the Disclosing Party, (iii) is lawfully received by the Receiving Party or any of its Representatives from a third party (specifically excluding the Disclosing Party or any Representative of the Disclosing Party or the Receiving Party) provided that, and so long as, neither the Receiving Party nor any of its Representatives has any actual knowledge that any source of said information was breaching an obligation of confidentiality owed to such Disclosing Party with respect to such information; or (iv) is independently developed by the Receiving Party or any of its Representatives without use of or reference to the Disclosing Party’s Confidential Information and otherwise without violating any obligation of such Receiving Party or any of its Representatives under this Agreement. Any combination of information shall not be deemed to be within the foregoing exceptions solely because individual features of the information are included in the public domain.
3. Confidentiality and Restrictive Use Covenant.
3.1 Restricted Use. The Receiving Party agrees, and it shall cause itsRepresentatives, to not use the Confidential Information of the Disclosing Party for any purpose (including, without limitation, for the benefit of Receiving Party or any third party, for any commercial purpose, as the basis for research or reverse engineering, or for competing with such Disclosing Party or its products) except solely for evaluating a potential Tungco/Customer Transaction and fulfilling its obligations under a Tungco/Customer Transaction (each a “Permitted Purpose”) or expressly as consented to in writing by the Authorized Representative of the Disclosing Party. Confidential Information of the Disclosing Party received by the Receiving Party shall not be reproduced by the Receiving Party in any form except for Permitted Purposes.
3.2 Confidentiality. The Receiving Party agrees, and it shall cause its Representatives, (i) to keep the Confidential Information of the Disclosing Party secret and confidential, (ii) to not disclose or divulge it any manner whatsoever (in whole or in part), and (iii) to not otherwise permit it to fall into the public domain or the possession of others, without the prior written consent of the Authorized Representative of the Disclosing Party; provided, however, that such Receiving Party may furnish Confidential Information of such Disclosing Party (A) to the Receiving Party’s attorneys, employees, officers, directors, consultants, representatives and agents (each a “Representative”) who need to have access to assist such Receiving Party with a Permitted Purpose, (B) with respect to terms of this Agreement, in court pleadings necessary to enforce or defend rights under this Agreement, and (C) in accordance (but only to the extent necessary to comply) with a judicial or other governmental order, provided Receiving Party first gives Disclosing Party reasonable opportunity to seek a protective order or its equivalent (and the Receiving Party shall reasonably cooperate with Disclosing Party’s efforts to seek such protective order or its equivalent). In the event that such protective order or other remedy is not promptly obtained by the Disclosing Party or the Disclosing Party, in writing, waives compliance with the provisions of this Agreement, so far as it relates to the legally-compelled disclosure, the Receiving Party may furnish or cause to be furnished, to the compelling body and a copy thereof to the Disclosing Party, only that portion of the Confidential Information of the Disclosing Party which the Receiving Party is legally required to furnish (as advised in a written opinion of legal counsel) and shall exercise commercially reasonable efforts to obtain reliable assurances that confidential treatment is accorded the Confidential Information so furnished.
3.3 Acts of Representatives. The Receiving Party shall be responsible for any breach of this Agreement caused by any of its Representatives. For the avoidance of doubt, the Receiving Party shall be deemed to have breached such Receiving Party’s obligations under this Agreement if any of its Representatives takes any action that, if taken by such Receiving Party rather than such Representative, would have resulted in such Receiving Party breaching its obligations under this Agreement.
3.4 Independent Developments. Nothing in this Agreement shall prohibit or restrict either party’s right to develop, use or market products or services similar to or competitive with those of the other party disclosed in the Confidential Information as long as it does not breach the other provisions of this Agreement. Further, the terms of confidentiality under this Agreement shall not be construed to limit either party’s right to independently develop or acquire products without use of the other party’s Confidential Information. Each party acknowledges that the other party may already have products or services similar to or competitive with those of the other party disclosed in the Confidential Information.
4. Ownership and Return of Materials. All Confidential Information of the Disclosing Party shall be and remain the exclusive property of such Disclosing Party(or, if applicable, its licensors), and no right or license is herein granted to the Receiving Party with respect to any Confidential Information of such Disclosing Party. Nothing in this Agreement grants any express or implied right to or waiver by the Disclosing Party of its proprietary interests in the Confidential Information, including, without limitation, patents, copyrights, trademarks, or trade secrets. When requested by Disclosing Party, Receiving Party shall immediately destroy all Confidential Information of such Disclosing Party (including, without limitation, all tangible and electronic versions of same), and shall confirm such destruction, in writing, to Disclosing Party within ten business days of such Disclosing Party’s request.
5. No Obligation. No party shall be obligated to enter into any further agreement and nothing in this Agreement shall be construed to obligate any party to disclose any of its Confidential Information to the other party. No agreement to compensate is established or implied by this Agreement or disclosure of Confidential Information hereunder.
6. Relief; Remedies. The parties hereby agree and stipulate that (a) the Confidential Information of a Disclosing Party was developed or obtained by suchDisclosing Party by investment of significant time, effort and/or expense, (b) the Confidential Information of a Disclosing Party provides such Disclosing Party with a significant competitive advantage in its business, (c) the restrictions contained in this Agreement are reasonable (including, without limitation, with respect to subject matter, time periods and geographical scope) and necessary in order to protect the Disclosing Party’s legitimate business interests, and (d) in the event of any breach or violation of any provisions of this Agreement by Receiving Party, monetary damages would be inadequate to compensate the Disclosing Party for any breach of any covenant set forth in this Agreement, the Disclosing Party will have no adequate remedy at law and the Disclosing Party will suffer irreparable loss and damage thereby. The parties hereby further agree and stipulate that in the event of any such breach or violation, either threatened or actual, rights of the Disclosing Party shall include, in addition to any and all other rights available to them at law or in equity, the right, without posting any bond or other security, to seek and obtain any and all injunctive relief or restraining orders available to such Disclosing Party in courts of proper jurisdiction, so as to prohibit, bar, and restrain any and all such breaches or violations by Receiving Party. If a Receiving Party breaches this Agreement, such Receiving Party shall pay any and all court costs, reasonable attorneys’ fees, and related expenses incurred by Disclosing Party in enforcing any provision of this Agreement (including without limitation, obtaining the injunctive relief provided for in this Section) and collecting any awarded damages.
7. Severability. 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 request the court making such determination to reduce such extent, duration, scope or other provision to the extent necessary to make enforceable, and enforce them in their reduced form for all purposes contemplated by this Agreement. If, notwithstanding the preceding sentence, a court of competent jurisdiction determines for any reason that an invalid, illegal, or unenforceable provision cannot be so modified, the parties agree that such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Agreement shall then be construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.
8. Term. The obligations set forth in this Agreement shall remain in full force and effect (regardless of whether or not the Purpose was fulfilled or a Tungco/Customer Transaction was terminated or completed) for a period of three years after the latter to occur of (a) the conclusion of all Tungco/Customer Transactions or (b) one party delivering a written notice to the other party to cease sharing Confidential Information between the parties pursuant to this Agreement.
9.1 Successors and Assigns. This Agreement shall inure to the benefit of Tungco, Customer and their successors or assigns, including any entity that may acquire all or substantially all of the assets of Tungco or Customer, or with or into which Tungco or Customer may be merged or consolidated.
9.2 Affiliates. Each party hereto shall cause all of its subsidiaries and affiliates to abide by the terms and conditions of this Agreement; provided nothing in this Section 9.2 is intended to be an exception to any of the covenants in any other Section of this Agreement.
9.3 Notice of Breach. The Receiving Party shall promptly notify the Disclosing Party of any actual or suspected breach of this Agreement by such Receiving Party that comes to such Receiving Party’s attention.
9.4 Notices between Parties. All notices, consents, waivers and other communications required or permitted by this Agreement shall be in writing and shall be deemed given to a party when (a) delivered to the appropriate address by hand, (b) one (1) business day following delivery to a nationally recognized overnight courier service (costs prepaid), (c) received or rejected by the addressee, if sent by certified mail, return receipt requested, or (d) one (1) business day following transmission by electronic mail, in each case to the address of the respective party in the first paragraph of this Agreement or, with respect to email communications, in Section 1.4 (or to such other address or person as a party may designate by notice to the other party).
9.6 Amendments. No modification, amendment or waiver of any of the provisions of this Agreement shall be effective or binding unless set forth in a writing signed by the parties hereto and specifically referring to this Agreement.
9.7 Waivers. A waiver by a party with respect to any breach or violation of this Agreement or of any provision hereof by the other party, or of any similar agreement or provision by a party or any other person, shall not be deemed as or operate as a waiver of any subsequent breach or violation. A party to this Agreement will not be bound by a waiver of any right or remedy that inures to the party’s benefit under this Agreement unless the waiver is in writing signed by the party.
9.8 Construction. The various titles of the sections herein are used solely for convenience and shall not be used for interpreting or construing any word, clause, section, paragraph, subsection or subparagraph of this Agreement. The parties agree that no ambiguities contained herein shall be construed against any party as the drafter of this Agreement.
9.9 Governing Law and Venue. The terms and provisions of this Agreement shall be interpreted in accordance with and governed by the laws of the State of Kentucky. Any cause or action relating in any manner to this Agreement shall be brought and tried exclusively in the state or federal court whose jurisdiction includes the State of Kentucky. For purposes of any such action, each party expressly consents to personal jurisdiction in the State of Kentucky and to venue in the aforementioned federal and state courts.
9.10 Entire Agreement. This Agreement constitutes the entire agreement between the parties and it is expressly agreed that any and all prior understandings or agreements between the parties relating to the subject matter of this Agreement, whether oral or written, are automatically canceled by the execution of this Agreement.
9.11 Counterparts. This Agreement may be signed in counterparts, and delivered by facsimile or via email of a scanned pdf version, and such facsimile or pdf counterparts will be valid and binding on the parties hereto with the same effect as if original signatures had been exchanged.
IN WITNESS WHEREOF, the parties hereto have duly executed this Mutual Non-Disclosure Agreement as of the date first above written.
Customer – Mutual Non-Disclosure Agreement
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Document Name: Customer NDA Form Signature
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