non-disclosure agreement
THIS NON-DISCLOSURE AGREEMENT (“Agreement”) is made and entered into as of the DATE ENTERED BELOW (“Effective Date”), by and between COMPANY NAME ENTERED BELOW (“Company”), with offices located at COMPANY ADDRESS ENTERED BELOW, and Gina Helms Graphics, LLC (“GHG”), with offices located in Fort Mill, South Carolina.
WHEREAS, each Party, defined hereunder, hereto will disclose or deliver to the other Party direct access to certain Confidential Information (as defined below) for the Permitted Purpose defined below. Each Party desires to assure the continued confidentiality of its Confidential Information made available to the other Party.
NOW THEREFORE, in consideration of disclosure or delivery by the Delivering Party (defined below) of Confidential Information to or for a Receiving Party (defined below) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby covenant and agree as follows:
“Delivering Party” and “Receiving Party”. For all purposes of this Agreement, the following terms shall have the following meanings: (a) “Delivering Party” shall mean a party which delivers to a Receiving Party physical possession of Confidential Information of such party or any embodiment thereof, or on whose behalf such possession is so delivered; (b) “Receiving Party” shall mean a Party which receives physical possession of any Confidential Information of a Delivering Party or which receives benefit from the receipt of any entity affiliated with it of physical possession of any Confidential Information of a Delivering Party; and (c) “Party” means either (i) Company; or (ii) GHG.
Confidential Information. “Confidential Information” means the following: discussions between GHG and Company, the underlining events related to this Agreement, all documents, sales and marketing data, store and market lists, financial models, analyses, data of any kind, drawings, sketches, plans, specifications, customer lists or data, designs, techniques, processes, inventions, components, parts, computer programs, systems, maps, and other information of a Delivering Party which is of a secret, confidential or proprietary nature, concerning or relating to such Delivering Party’s business, operations, projects, finances, technology and/or future technical, business or promotional plans. Confidential Information as used herein shall exclude information that (a) is now generally available to the public; (b) is hereafter, through no act on the part of the Receiving Party, becomes information generally available to the public; (c) is furnished to the Receiving Party by any third party having a lawful and unrestricted right to do so; (d) is already possessed by the Receiving Party prior to receipt from the Delivering Party; (e) is independently developed by the Receiving Party without reference to the Delivering Party’s Confidential Information or (f) is required to be disclosed by law. If Confidential Information is required to be disclosed by law, Receiving Party: (1) shall furnish prompt notice to Delivering Party, (2) give Delivering Party the opportunity to try and obtain a protective order, and (3) limit any such disclosure to the extent required.
Permitted Purpose of Disclosure.
The Permitted Purpose for Confidential Information disclosed to Company is: The evaluation of a possible business arrangement between Company and GHG.
The Permitted Purpose for Confidential Information disclosed to GHG is: The evaluation of a possible business arrangement between GHG and Company.
Disclosure. Confidential Information will be disclosed hereunder either (a) in writing; (b) by delivery of items; (c) by initiation of access to information, such as may be contained in a database; or (d) by oral and/or visual presentation. All Confidential Information shall be treated as such regardless if labeled as “Confidential Information”.
Use. All Confidential Information provided by or on behalf of a Delivering Party remains the sole property of such Delivering Party. The Receiving Party shall protect such Confidential Information using the same degree of care, but no less than a reasonable degree of care, as the Receiving Party uses to protect its own information of a like nature and shall use such Confidential Information only for the specific purpose for which it was disclosed or delivered to the Receiving Party. The Receiving Party shall not directly or indirectly publish or otherwise disclose such Confidential Information to any person or entity (except as permitted under Section 6 hereof) for any purpose whatsoever without (i) the prior written approval from, or written agreement with the Delivering Party and (ii) the agreement on the part of such third person or entity to be bound by the terms of this Agreement. The Receiving Party shall, at the Receiving Party’s sole cost and expense, take all necessary actions and precautions to protect the confidentiality of such Confidential Information and any documents or other materials containing any information, and shall immediately notify the Delivering Party in writing upon its discovery of any such unauthorized use or disclosure of such Confidential Information.
Disclosure to Employees. The Receiving Party shall restrict access to Confidential Information received by it to its employees or its affiliates’ employees who clearly need such access in order to participate in the Receiving Party’s business relationship with the Delivering Party.
Delivery upon Request. Immediately upon the Delivering Party’s request, and in any event upon termination of this Agreement, the Receiving Party shall deliver and return to the Delivering Party all records, notes, analyses, memoranda, drawings and other written or tangible materials, documents or media containing any Confidential Information of the Delivering Party, including all copies and reproductions thereof.
Miscellaneous.
8.1 The Receiving Party agrees that no remedy at law for damages may be adequate to compensate the Delivering Party for a specific breach of the provisions set forth in this Agreement and that the Delivering Party may be entitled to temporary or permanent injunctive relief against any such breach. The award of permanent or temporary injunctive relief shall in no way limit any other remedies to which the Delivering Party shall be entitled as a result of any such breach.
8.2 This Agreement shall not be construed to grant to the Receiving Party a license or any other right to use Confidential Information of the Delivering Party except in the manner and to the extent provided in this Agreement.
8.3 Neither this Agreement nor the disclosure or receipt of Confidential Information constitutes or implies any intention by either party or its subsidiaries or affiliates to (i) enter into a contract or business relationship; (ii) purchase any products or services; or (iii) market any future products or services.
8.4 The term of this Agreement shall be one (1) year from the date written on the first page hereof, provided, however, that, either party may terminate this Agreement upon ten (10) days notice to the other party; and, provided further that, the Receiving Party’s obligation to preserve the confidence of any Confidential Information received under this Agreement shall continue thereafter unless the Confidential Information becomes public knowledge.
8.5 Any notice or other communication required or permitted under this Agreement shall be delivered by fax or by express mail (e.g. Federal Express) to each party’s address set forth herein and shall be effective five business days after mailing, if mailed, or otherwise upon receipt.
8.6 No waiver or amendment of any provision of this Agreement shall be effective unless contained in a writing signed by the party to be charged with such waiver or amendment.
8.7 The invalidity or unenforceability of any provisions of this Agreement shall not affect the validity or enforceability of any other provision.
8.8 This Agreement shall be governed by and construed in accordance with the laws of the State of South Carolina without reference to conflict of law principles.
8.9 This Agreement constitutes the sole understanding of the parties concerning its subject matter and may not be amended or modified except in a writing signed by both parties.
8.10 This Agreement shall be binding on and inure to the benefit of the parties’ respective affiliates, successors and permitted assigns.
8.11 Delivering Party makes no representation or warranty as to the accuracy or completeness of the Confidential Information. Neither Delivering Party nor any of the officers, directors, employees, agents, advisors, legal counsel or other representatives or affiliates thereof, shall be subject to any liability resulting from the use of the Confidential Information by Receiving Party and its Representatives.
8.12 This Agreement may be executed in any number of counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument.
8.13 Neither this Agreement nor receipt of Confidential Information hereunder shall limit either party’s independent development and marketing of products or systems involving technology or ideas similar to those disclosed nor will this Agreement or receipt Confidential Information hereunder prevent either party from undertaking similar efforts or discussions with third parties, including competitors of either party, provided that in each instance, Confidential Information of the other party hereto is neither used in any fashion, nor disclosed.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives as of the Effective Date.
ACCEPTED AND AGREED:
COMPANY: