MUTUAL CONFIDENTIALITY and NON DISCLOSURE AGREEMENT
This CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT (“Agreement”) is made and entered into as of ___________________________ (“Effective Date”) by and between The Bio Cranial Institute International, LLC, and , (collectively the “parties” and each a “party”
WHEREAS, the parties desire to disclose certain information in connection with consideration of a possible business transaction or relationship between the parties.
THEREFORE, the parties agree to enter into a confidential relationship with respect to the disclosure of certain information. In consideration of the mutual covenants set out in this Agreement, the disclosure of certain information, and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the parties agree as follows:
(a) “Confidential Information” includes all information, technical data, or know how, including, but not limited to, that which relates to a disclosing party’s research, products, hardware, software, designs, inventions, ideas, processes, drawings, business plans, product implementations, financial information, marketing techniques, business operation and systems, pricing policies, information concerning employees, customers, and/or vendors disclosed by one party to another in writing, orally, by inspection, or otherwise. Confidential Information does not include information that the receiving party can demonstrate: (i) was in the receiving party’s possession prior to its being furnished to the receiving party under the terms of this Agreement, provided the source of that information was not known by the receiving party to be bound by a confidentiality agreement with, or other continual, legal or fiduciary obligation of confidentiality, to the disclosing party; (ii) is now, or hereafter becomes, through no act or failure to act on the part of either party, generally known to the public; (iii) is rightfully obtained by the receiving party from a third party, without breach of any obligation to the disclosing party; or (iv) is independently developed by the receiving party without use of or reference to the Confidential Information.
Confidential Information shall include all information of which unauthorized disclosure could be detrimental to the interests of the disclosing party whether or not such information is identified as Confidential Information by the disclosing party. (b) “Representative” includes the receiving party’s directors, officers, employees, agents, and financial, legal, and other advisors.
(a) The receiving party and its Representatives shall not disclose any Confidential Information to third parties, in any manner whatsoever, directly or indirectly and verbally or nonverbally, wholly or in part, except as provided in paragraphs 3 and 4 of this Agreement.
(b) The receiving party shall take all measures reasonably necessary to protect the Confidential Information received from the disclosing party, directly or indirectly and verbally or nonverbally, wholly or in part, at least as great as the measures it takes to protect its own confidential information. The receiving party shall segregate all Confidential Information from the confidential information of others in order to prevent commingling.
3. Permitted Disclosures.
The parties may disclose Confidential Information to their responsible
Representatives, such as secretaries, with a bona fide need to know such Confidential Information, but only to the extent necessary to evaluate or carry out a proposed transaction or relationship and only if such Representatives are advised of the confidential nature of such Confidential Information, and the terms of this Agreement, and are bound by a written agreement or by a legally enforceable code of professional responsibility to protect the confidentiality of such Confidential Information.
The receiving party may disclose Confidential Information in accordance with
a judicial or other governmental order, provided that the receiving party shall give the disclosing party reasonable notice prior to such disclosure and reasonable opportunity to obtain a protective order or theequivalent.
5.Use and Disclaimers.
(a) The receiving party and its Representatives shall use t
he Confidential Information solely for the purpose of evaluating a possible transaction or relationship with the disclosing party and shall not in anyway use the Confidential Information to the detriment of the disclosing party. The receiving party shall comply with all applicable United States laws and regulations.
(b) Nothing in this Agreement is intended to grant or imply any rights, by license or otherwise, to either party under any patent, copyright, trade secret, or other intellectual property right, nor shall this
Agreement grant or imply to either party any rights in or to the other party’s Confidential Information, except the limited right to review such Confidential Information solely for the purposes of consideration of a possible transaction or relationship between the parties.
(c) THE DISCLOSING PARTY PROVIDES INFORMATION SOLELY ON AN “AS IS” BASIS. The
receiving party hereby agrees to indemnify the disclosing party against any and all losses, damages, claims, expenses, and attorneys’ fees incurred or suffered by the disclosing party as a result of a breach of this Agreement by the receiving party or its Representatives.
6. Return of Documents.
(a) The receiving party shall return to the disclosing party any and all records, notes, and other written, printed or other tangible materials in its possession pertaining to the Confidential Information immediately on the written request of the disclosing party or upon termination of this Agreement. The returning of materials shall not relieve the re ceiving party from compliance with other terms and conditions of this Agreement.
(b) The receiving party shall make no copies of any of the disclosing party’s Confidential Information without the prior written consent of the disclosing party and shall return to the disclosing party, upon request or upon termination of the relationship between the parties, all copies made thereof.
7.No Additional Agreements.
(a) Neither the holding of discussions nor the exchange of material or information shall be construed as an obligation of the either party to perform any work, enter into any license, business engagement or other agreement with the other party. The parties hereby acknowledge that they are not agents of each other. Nothing in this Agreement shall prohibit a party from providing its own Confidential Information to third parties and entering into agreements with third parties.
(b) Each party reserve the right, in its sole discretion, to reject any and all proposals made by the other party or its Representatives with regard to a transaction between the parties and to terminate discussions and negotiations at any time. Additional agreements of the parties, if any, shall be in signed writing.
The receiving party understands and acknowledges that any disclosure or
misappropriation of any of the Confidential Information in violation of this Agreement may cause the disclosing party irreparable harm, the amount of which may be difficult to ascertain, and therefore
agrees that the disclosing party shall have the right to apply to a court of competent jurisdiction for specific performance and/or an order restraining and enjoining any such further disclosure or breach and for such other relief as the disclosing party shall deem appropriate. Such right of the disclosing party is to be in addition to the remedies otherwise available to the disclosing party at law or in equity. The receiving party expressly waives the defense that a remedy in damages will be adequate and any requirement in an ac
tion for specific performance or injunction for the posting of a bond by the disclosing party.
This Agreement, or any right or interest under this Agreement, shall not be assigned, nor shall any work or obligation to be performed under this Agreement (an “assignment”) be delegated, voluntarily, by operation of law or otherwise, without the parties’ prior written consent. Any attempted
assignment in contravention of this Section 9 shall be void and ineffective. The terms of this Agreement shall be binding upon and inure to the benefit of and be enforceable by the permitted respective
successors and assigns of the parties hereto.
10. Governing Law.
This Agreement shall be governed by and construed in accordance with the laws
of the State of Missouri, without regards to conflicts of laws principles. The parties hereby irrevocably consent to the jurisdiction of the state and federal courts located in St Louis County, State of Missouri, in any action arising out of or relating to this Agreement, and waive any other venue to which either party may be entitled by domicile or otherwise.
11. Attorney’s Fees.
If any action at law or in equity is brought to enforce or interpret the provisions of this Agreement, the prevailing party in such action shall be awarded its attorneys’ fees and costs incurred.
12.Counterparts and Right.
The person signing on behalf of each party represents that he or she has
the right and power to execute this Agreement.
This Agreement expresses the full and complete understanding of the parties
with respect to the subject matter hereof and supersedes all prior or contemporaneous proposals, agreements, representations and understandings, whether written or oral, with respect to the subject matter. This Agreement shall not limit any rights that either party may have under trade secret,
copyright, patent or other laws that may be available. This Agreement may not be modified or amended except by a writing that explicitly refers to the amendment of this Agreement and that is signed by
authorized representatives of both parties.
(a) None of the provisions of this Agreement shall be deemed to have been waived by any act, omission, or acquiescence on the part of the disclosing party without a written instrument signed by the disclosing party. No waiver by a party of any breach shall be effective unless in writing, and no waiver
shall be construed as a waiver of any succeeding breach, whether or not of the same or a different term or condition;
(b) This Agreement shall be construed as to its fair meaning and not strictly for or against either party.
(c) The headings hereof are descriptive only and not to be construed in interpreting the provisions hereof. IN WITNESS WHEREOF, the parties have caused their authorized representatives to execute this Agreement as of the date first set forth above.
Company:The Bio Cranial Institute International, LLC