NDA Service Provider
MUTUAL NON-DISCLOSURE AGREEMENT
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 (“Service Provider”). 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:
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 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.
3.1 Restricted Use. The Receiving Party agrees, and it shall cause its Representatives, 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 Transaction and fulfilling its obligations under a 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 IP Development and Assignment.
(a) Service Provider shall promptly disclose in writing to Tungco all inventions, discoveries, improvements, works of authorship, innovations and the like conceived or made by Service Provider, either solely or with others, while performing work for Tungco at any time which: (a) relate in any manner to a Transaction, (b) are suggested by or result from the work with Tungco in connection with a Transaction, or (c) result from the use of Tungco’s time, materials or facilities (collectively “Invention” and/or “Work“).
(b) Works include but are not limited to computer programs, pictorial/graphic works, textual works, audiovisual works and sound recordings, may embody an invention, and such works are specially ordered and/or commissioned for Tungco to use as a contribution to a collective work, part of an audiovisual work, translation and/or compilation.
(c) Service Provider hereby expressly waives, on behalf of itself and all of its employees, any right of attribution and integrity as provided for by 17 U.S.C. §106(a) in connection with all works and deliverables provided to Tungco for all uses thereof, including without limitation such uses as the intentional distortion, mutilation, modification, or destruction of any such works or deliverables.
(d) Service Provider hereby assigns, and shall secure an assignment from any of its employees and contractors, to Tungco or Tungco’s assigns the entire right, title and interest to all such Inventions and/or Works (which shall be the exclusive property of such assignee) and all related patent applications and patents on which Service Provider or any employee of Service Provider is a named inventor. Service Provider shall, at Tungco’s request and expense, execute specific assignments to any such Invention and/or Work, patent applications and patents and execute such other documents and take such further action as may be considered advisable by Tungco at any time during or after the term of work with Tungco to vest all right, title and interest in such Invention and/or Work, copyrights, patent applications and patents in Tungco or Tungco’s assigns and/or to permit Tungco or Tungco’s assigns to obtain and defend letters patent in any and all countries. Therefore, if for any reason, any such Invention and/or Work cannot be considered a work made for hire, Service Provider hereby assigns to Tungco (or, if requested by Tungco, Tungco’s assigns) the entire right, title and interest in such work, including all exclusive rights. Further, to the extent it may ever be necessary, Service Provider hereby exclusively grants to Tungco and Tungco’s assigns all exclusive rights in any such Invention and/or Work. Within ten (10) business days of any request by Tungco, Service Provider will provide the names and addresses of any employee(s) or agent(s) who are deemed by Tungco to be inventors of any Invention assigned to Tungco hereunder.
(e) If, within six (6) months following the period of the term of work with Tungco, Service Provider discloses to a third person any Invention and/or Work conceived or made by Service Provider or a patent application is filed by Service Provider or on behalf of Service Provider and if the invention in question relates to the business of Tungco, then the Invention and/or Work shall be rebuttably presumed to have been conceived or made by Service Provider during the term of work with Tungco and shall be the intellectual property of Tungco or its assigns.
(f) Service Provider shall require any and all of its employees and the employees of any contractor working with Tungco to execute a suitable Invention and/or Works and confidentiality and assignment agreement bearing terms and imposing obligations on such individuals that are at least commensurate in scope with the terms of this Agreement.
9.1 Successors and Assigns. This Agreement shall inure to the benefit of Tungco, Service Provider and their successors or assigns, including any entity that may acquire all or substantially all of the assets of Tungco or Service Provider, or with or into which Tungco or Service Provider 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 Commonwealth 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 Commonwealth of Kentucky. For purposes of any such action, each party expressly consents to personal jurisdiction in the Commonwealth 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 with respect to its subject matter 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. In the event of any conflict or inconsistency between any term of this Agreement (including, without limitation, Section 3.4) and any future written agreement executed by the parties (a “Future Agreement”), the terms and conditions of this Agreement shall control and prevail, unless and to the extent there is a specific reference in such Future Agreement to this Agreement (rather than a general reference to any prior agreements) stating that the subject terms in the Future Agreement shall supersede, modify, cancel or terminate this Agreement, as applicable.
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.
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