This CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT (this “Agreement”) is entered into as of insert date by and between Howden Group Ltd, a UK based limited company having an address at Old Govan Road, Renfrew, PA4 8XJ, Scotland, United Kingdom, and insert supplier name having an address at insert supplier address. Each of the parties hereto may be referred to herein as a “Party” or collectively as the “Parties”.
WHEREAS, the Parties are discussing insert topic.
WHEREAS, each Party desires to review certain information of the other Party in connection with insert topic(the “Purpose”); and
WHEREAS, each Party is willing to provide such information to the other Party (each Party as such recipient of the other Party’s information, a “Receiving Party”, and as a Party disclosing such information, a “Disclosing Party”) only on the condition that the Receiving Party's use of such information shall be subject to the confidentiality and nondisclosure restrictions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements hereinafter set forth, the parties hereby agree as follows:
CONFIDENTIAL INFORMATION
The term “Confidential Information” shall include all information relating to the Disclosing Party’s business, technology and/or affairs, including, but not limited to, written and verbal information provided to the Receiving Party relating to the Purpose and any business arrangements thereafter. Each Party shall have no obligation to specifically identify any information asConfidential Information for which the protection of this Agreement extends by any notice or other action, and the other Party agrees that all such information relating to the business, technology and/or affairs of the other Party shall be deemed Confidential Information, except to the extent that any such information (a) is known or becomes known to the general public other than as a result of unauthorized disclosure by the Receiving Party or by persons to whom the Receiving Party has made such information available, or as a result of conduct by others which the Receiving Party knows to have been wrongful or (b)is received by the Receiving Party on a non-confidential basis from a third party lawfully possessing and entitled to disclose such information or (c) is independently developed by the Receiving Party without use of the Confidential Information.
ACTIONS SEEKING DISCLOSURE
In the event of any legal action, proceeding or asserted requirement under applicable law or government regulations requesting or demanding disclosure of the other Party’s Confidential Information furnished hereunder, the Receiving Party shall forthwith notify the Disclosing Party in writing of such request or demand and the documents requested or demanded so that the Disclosing Party may seek an appropriate protective order or take other appropriate measures and/or waive the Recipient Party's compliance with the provisions of this Agreement. The Receiving Party shall, upon the request of the Disclosing Party, cooperate reasonably with the Disclosing Party in contesting such request or demand at the expense of the Disclosing Party including, without limitation, consulting with the Disclosing Party as to the advisability of taking legally available steps to resist or narrow such request or demand. If in the absence of a protective order or a waiver hereunder from the Disclosing Party, and the Receiving Party, in its reasonable opinion, is compelled to disclose any Confidential Information to any tribunal or otherwise stand liable for contempt or suffer other penalty, the Receiving Party may disclose such Confidential Information to such tribunal without liability hereunder; provided, however, that the ReceivingParty (a) shall give the Disclosing Party written notice of the Confidential Information to be so disclosed as far in advance of its disclosure as is practicable, (b) shall furnish only that portion of the Confidential Information which is legally required, and (c) shall use best efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to such portions of the Confidential Information to be disclosed.
USE AND DISCLOSURE
3.1 Each Party shall not, without the prior written consent of the other Party, use any of the other Party’s Confidential Information for any purpose other than the Purpose and any business arrangements thereafter and with respect thereto. Further, the Receiving Partyshall:
(a)hold and maintain the Confidential Information of the Disclosing Party in the strictest confidence, will abide by and respect the Disclosing Party’s proprietary rights therein (including, but not limited to, patents, copyrights and trade secrets) and will exercise at least the same care with respect thereto as it exercises with respect to its own proprietary and Confidential Information;
(b)restrict disclosure of the Disclosing Party’s Confidential Information to only those directors, officers, employees, advisors and agents (collectively, “Representatives”) of the Receiving Party (i) who reasonably need to have access to the Disclosing Party’s Confidential Information for the Purpose and any business arrangements associated therewith and (ii) in the case of parties other than directors, officers and employees, who have either previously agreed in writing to be bound by the terms of this Agreement by executing the undertaking attached hereto as ExhibitA or are otherwise bound by an ethical or professional duty to preserve the confidentiality or such information;
(c)upon termination of the Purpose or any business arrangements thereafter or at any time upon the Disclosing Party’s written request, immediately return to the Disclosing Party or destroy all tangible material within its possession, custody or control containing or reflecting any portion of the Disclosing Party’s Confidential Information and shall make no further use of the Disclosing Party’s Confidential Information for any reason or purpose;(d) take all reasonable measures necessary to compel compliance by it and its Representatives with the provisions of this Agreement and
(e) not reverse engineer any Confidential Information of the Disclosing Party.
3.2 The terms of this Agreement shall not be constructed to limit either Party’s right to independently develop products or conduct research without use of the Disclosing Party’s Confidential Information.
3.3 The Receiving Party shall be responsible for any breach of this Agreement by Representatives of the Receiving Party.
TERM
Except for trade secrets, Receiving Party shall be bound by the terms of Section 3 hereof with respect to the Disclosing Party’s Confidential Information for a period of five (5) years from the date of this Agreement or five (5) years from the termination of its business relationship with the Disclosing Party, whichever is longer. Nothing herein is intended to limit or abridge the protection of trade secrets under applicable trade secret law and to the extent that trade secretsare contained in the Confidential Information of the Disclosing Party in whole or in part, the Receiving Party shall not disclose such information for the maximum period permitted by law.
ABSENCE OF LICENSE OR WARRANTY: NO OBLIGATION TO PROVIDE
5.1 This Agreement shall not be construed as granting or conferring any rights to either Party by license or otherwise, expressly or implicitly, to the Disclosing Party’s Confidential Information, or any invention, discovery or improvement whether or not related to the Disclosing Party’s Confidential Information including, but not limited to, “derivative works” (as such term is defined in Section 101 of the United States Copyright Act of 1976, as amended, and as construed under applicable case law) thereof and each Party shall retain all of its proprietary rights in any patents, copyrights, trade secrets and its respective Confidential Information.
5.2 Each Party makes no representation, warranty, or assurance as to the accuracy or completeness of its respective Confidential Information furnished or to be furnishedunder this Agreement, its sufficiency or fitness for any purpose, or the absence of any conflict or infringement of the intellectual property or other rights of other parties and disclaims any and all liability that may be based on its respective Confidential Information, errors therein, or omissions therefrom.
5.3 Nothing in this Agreement shall prevent either party from developing any product or service, including those competitive with the other party, or engaging in any similar relationship or transaction with any third party, so long as the party engaging in such development or transaction does not violate the terms of this Agreement.
5.4 Nothing contained in this Agreement shall constitute a commitment by either Party to the development or release of any future products or designs. This Agreement does not constitute or imply a commitment by either Party to favor or recommend any product or service of the other Party or any third party.
EXPORT LAWS
Each Party agrees to adhere to all applicable export laws with respect to the Confidential Information and shall not export, transfer, or re-export any of the other Party’s Confidential Information without full compliance with all applicable export laws, including obtaining any required government authorizations. The obligations of this Section 6 survive the termination of this Agreement and any business relationship between the Parties.
ENFORCEMENT
In consideration of the disclosure of the Confidential Information, each Party covenants and agrees as follows:
(a)Each Party acknowledges and agrees that, in the event of a threatened or actual disclosure of Confidential Information by a Receiving Party in breach of this Agreement, such disclosure will cause immediate and irreparable harm to the Party whose Confidential Information is disclosed and the damages incurred by the non-disclosing Party may be difficult or impossible to ascertain and inadequate to compensate the non-disclosing Party. Therefore, the non-disclosing Party shall be entitled to seek temporary, preliminary and injunctive relief, without the requirement of posting a bond or other security, in addition to monetary damages against the breaching Party.
(b)Due to the unique subject matter of this Agreement and the difficulty of measuring damages which would result to a Party from violations by the other Party of the various agreements and covenants set forth herein, each Party hereby agrees that, in addition to any other remedies which the other Party may have at law or in equity, including those referred to above, the other Party shall have the right to have all obligations, undertakings, agreements, covenants and other provisions of this Agreement specifically performed by the other Party, and the other Party shall have the right to obtain preliminary and permanent injunctive relief to secure specific performance, and to prevent a breach or contemplated breach, of this Agreement.
(c)Each Party shall indemnify and hold harmless the other Party from and against all costs and expenses (including reasonable attorneys' fees and other charges) incurred by the non-breaching Party in enforcing and preserving its rights under this Agreement.
MISCELLANEOUS
(a)No amendment, modification or discharge of this Agreement, and no waiver hereunder, shall be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of the amendment, modification, discharge, or waiver is sought. No delay or failure at any time on the part of either Party in exercising any right, power or privilege under this Agreement, or in enforcing any provision of this Agreement, shall impair any such right, power or privilege, or be construed as a waiver of such provision, or be construed as a waiver of any default or as any acquiescence therein, or shall affect the right of a Party thereafter to enforce each and every provision of this Agreement in accordance with its terms.
(b)Nothing contained in this Agreement shall be construed to create a principal-agent, employer-employee, partnership or co-venture relationship between the Parties.
(c)This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof, and it supersedes all prior oral or written agreements, commitments, or understandings with respect to such matters.
(d)This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and assigns.
(g)The provisions of this Agreement including its appendices are applicable to and govern each contract. The application of the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 shall be excluded.
(h)This Agreement may be signed in counterparts, none of which need contain the signature of all the parties hereto and each of which shall be deemed to be an original.
[signature page follows]
IN WITNESS WHEREOF, the undersigned have executed this Confidentiality and Nondisclosure Agreement as of the date set forth above
Howden Group Ltd
By:
Title:
Insert Supplier name
By:
Title:
EXHIBITA
AGREEMENT TO BE BOUND BY TERMS OF
CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT
The undersigned, insert supplier name, has been provided with a copy of the Confidentiality And Nondisclosure Agreement dated insert date by and between Howden Group Ltd and insert supplier name (the “Confidentiality and Nondisclosure Agreement”) to which this Exhibit A is attached. The undersigned has read and understands the Confidentiality and Nondisclosure Agreement and agrees to be bound by its terms as if the undersigned were a party thereto.
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