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This Agreement is made and entered into by and between BOINK SYSTEMS INCOPORATED Software (USA), Inc. (“BOINK SYSTEMS INCOPORATED”) and GRUPO O&G LTDA. BOINK SYSTEMS INCOPORATED and GRUPO O&G LTDA desire to enter into negotiations and discussions with respect to a potential business relationship. In conjunction with these negotiations and discussions, BOINK SYSTEMS INCOPORATED will reveal confidential information regarding its operations to COMPANY and COMPANY will reveal drawings and schematics to BOINK SYSTEMS INCOPORATED.
Either party may reveal to the other party certain confidential, proprietary and/or trade secret information concerning products, features and services. For purposes of this Agreement, documents or other media or tangible items that contain or embody proprietary information concerning the business, blueprints, drawings, photographs, charts, graphs, notebooks, certain specifications, designs, plans hardware, data, tapes or printouts, videos, sound recordings as well as prototypes, models, products and the like, which relate in whole or in part to such party's business are “Confidential Information” and in whatever form provided shall remain the property of such party. The term “Confidential Information” does not include information which (i) becomes generally available to the public other than as a result of a disclosure by the party or party’s representatives, (ii) was or becomes available to either party on a non-confidential basis from a source other than the other party or its representatives, provided that, to the best of that party’s knowledge and belief such source is not prohibited from disclosing such information to such by a contractual, legal or fiduciary obligation to the other party or its representatives or (iii) was developed by the party without the use of the Confidential Information.
In order to facilitate the mutually desired negotiations and discussions, the parties hereto desire that each company hold all information exchanged by the other company to it and disclosed by the other company to it in strictest confidence.
In consideration of the mutual covenants and agreements hereafter set forth, the parties agree as follows:
Each company will make use of that information or data disclosed to it by the other or discovered by it, only for the purpose of effectuating a future contractual relationship between the parties and shall reveal such information only to its employees and business advisors. Such information will at all times be kept within each party’s organization and will not be disclosed or utilized in any way by that company, its employees, agents, attorneys, accountants or advisors, without the express written permission of the other company. All Confidential Information remains the property of the disclosing party and no license or other rights to Confidential Information are granted or implied hereby. Each company will inform its agents, employees, attorneys, accountants and advisors of the confidential nature of all information disclosed by the other company to it and shall require that such persons or entities be bound by the provisions of the Agreement with respect to the disclosure of that information. Each party represents that it has not provided or communicated any of the other party’s Confidential Information to any third party, and will not do so in the future without prior written consent of the disclosing party.
Unless a Transaction is consummated for a period commencing on the date hereof and ending two years following the redelivery of Information, the parties agree not to directly or indirectly (i) solicit, or cause to be solicited, the employment of any current employee of the party with whom the party had contact, or who was specifically identified by the other party, during the period of investigation, so long as such employee is employed by the party or (ii) initiate or maintain contact (except for those contacts made in the ordinary course of business) with any officer, director or employee of the other party regarding the business, operations, prospects or finances of the party, except with that party’s express written consent.
In the event of a failure to conclude negotiations or to proceed further, or in the event of termination of any agreement between the parties hereto once entered into, the parties, their respective attorneys, accountants or other advisors will utilize their best efforts to keep confidential all information and data obtained by each of them with respect to the other’s operations, business, creations, ideas, processes, and the subject matter of these negotiations, and shall return to the other (without retaining copies) any schedules, documents or other written information each might have obtained from the other in connection therewith. Each of the parties agree that it will not modify, reverse engineer, decompile, create other works from, or dissemble any software programs or other processes contained in the Confidential Information of the other party unless specified in writing by the disclosing party.
In the event that either party or any of either party’s representatives receive a request from any governmental, regulatory or self-regulatory agency or are required (by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose all or any part of the information contained in the Confidential Information, the party or party’s representatives, as the case may be, agree to (i) immediately notify the other party of the existence, terms and circumstances surrounding such a request, (ii) consult with the other party on the advisability of taking legally available steps, at the other party’s sole cost and expense, to resist or narrow such request, and (iii) assist the other party in seeking a protective order or other appropriate remedy at the other party’s sole cost and expense. In the event that such protective order or other remedy is not obtained or that the other party waives compliance with the provisions hereof, (a) the party or party’s representatives, as the case may be, may disclose to any requesting person or tribunal only that portion of the Confidential Information which the party believes in good faith is legally required to be disclosed, and shall exercise their best efforts to obtain assurance that confidential treatment will be accorded such, and (b) the party shall not be liable for any such disclosure.
The parties acknowledge that there is no adequate monetary relief in the event of a breach, threatened or attempted breach of any of the terms of this Agreement. Therefore, in the event of a breach, threatened or attempted breach of any of the terms of this Agreement, each company shall, in addition to all other remedies, be entitled to a temporary and/or permanent injunction without the necessity of showing any actual damage and/or shall be entitled to a degree of specific performance of the terms of this Agreement, together with damages, costs and attorney's fees.
This Agreement shall be constructed in accordance with the laws of the State of California, excluding any laws regarding the conflict or choice of laws, and jurisdiction and venue for any disputes arising hereunder shall be in any court empowered to enforce this Agreement in the State of California. This Agreement constitutes the entire agreement with respect to the Confidential Information disclosed herein and supersedes all prior or contemporaneous oral or written agreements concerning such Confidential Information. This Agreement shall not be amended except by the written agreement signed by authorized representatives of both parties. This Agreement may be executed by facsimile signature and in counterparts, which taken together shall constitute one and the same instrument.
AGREED AND ACCEPTED: AGREED AND ACCEPTED:
PRINT NAME & TITLE:PRINT NAME & TITLE:
DATE: DATE: