CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
This Confidentiality and Non-Disclosure Agreement (“Agreement”) is entered into the “Effective Date” as the registration date or sign-up date here (“Effective Date”) between iLumi Solutions, Inc. /dba MeshTek Labs, a Delaware Corporation, whose address is 17330 Preston Rd., Suite #120A, Dallas, Texas 75252 (hereinafter “MeshTek”), and the company or individual with the name and the address in the signature page (“Interested Party”) (Interested Party is a “Party”).
1. Definitions
A. Representatives. Representatives shall include trustees, executors, partners, members, managers, directors, officers, principals, employees, attorneys or agents of each Party.
B. Transaction. MESHTEK hereto desire to share technology and business information (the “Transaction”).
C. Providing and Receiving Party. In the context of Confidential Information, MeshTek is the Providing Party that owns, develops, or discloses the Confidential Information, and the Receiving Party shall be the other Party. Under this agreement, MeshTek is a Providing Party, and Party is a Receiving Party of the Confidential Information.
D. Confidential Information. For purposes of this Agreement, “Confidential Information” means any data or information that is proprietary to the Providing Party and not generally known to the public, whether in tangible or intangible form, whenever and however disclosed, including, but not limited to: (i) any marketing strategies, plans, financial information, or projections, operations, sales estimates, business plans, pricing, MOQs, and performance results relating to the past, present or future business activities of such party, its affiliates, subsidiaries and affiliated companies; (ii) plans for products or services, and customer or supplier lists; (iii) any scientific or technical information, invention, design, process, procedure, formula, improvement, technology or method; (iv) any concepts, reports, data, know-how, works-in-progress, designs, development tools, specifications, computer software, source code, object code, flow charts, databases, inventions, information and trade secrets; and (v) any other information that should reasonably be recognized as confidential information of the MeshTek. Confidential Information need not be novel, unique, patentable, copyrightable or constitute a trade secret in order to be designated Confidential Information. The Receiving Party acknowledges that the Confidential Information is proprietary to the MeshTek, has been developed and obtained through great efforts by the MeshTek and that MeshTek regards all of its Confidential Information as trade secrets
2. Disclosure of Confidential Information.
From time to time, MeshTek may disclose Confidential Information to the Receiving Party. The Receiving Party will: (a) limit disclosure of any Confidential Information to Representatives who have a need to know such Confidential Information in connection with the current or contemplated business relationship with MeshTek to which this Agreement relates, and only for that purpose; (b) advise its Representatives of the proprietary nature of the Confidential Information and of the obligations set forth in this Agreement and require such Representatives to keep the Confidential Information confidential; (c) shall keep all Confidential Information strictly confidential by using a reasonable degree of care, but not less than the degree of care used by it in safeguarding its own confidential information; and (d) not disclose any Confidential Information received by it to any third parties (except as otherwise provided for herein).
Each Party shall be responsible for any breach of this Agreement by any of their respective Representatives.
3. Use of Confidential Information.
The Receiving Party agrees to use the Confidential Information solely in connection with the current or contemplated business relationship with MeshTek and not for any purpose other than as authorized by this Agreement without the prior written consent of an authorized representative of MeshTek. No other right or license, whether expressed or implied, in the Confidential Information is granted to the Receiving Party hereunder. Title to the Confidential Information will remain solely in the MeshTek. All use of Confidential Information by the Receiving Party shall be for the benefit of the MeshTek and any modifications and improvements thereof by the Receiving Party shall be the sole property of the MeshTek. Nothing contained herein is intended to modify the Party’s existing agreement that their discussions in furtherance of a potential business relationship are governed by Federal Rule of Evidence 408. Recipient shall not copy, reverse engineer, disassemble, decompile, or analyze any samples or other tangible items of confidential information for the purpose of determining composition, method of manufacture, software, algorithms, circuit diagrams, other design aspects.
4. Compelled Disclosure of Confidential Information.
Notwithstanding anything in the foregoing to the contrary, the Receiving Party may disclose Confidential Information pursuant to any governmental, judicial, or administrative order, subpoena, discovery request, regulatory request or similar method, provided that the Receiving Party promptly notifies, to the extent practicable, the MeshTek in writing of such demand for disclosure so that the MeshTek, at its sole expense, may seek to make such disclosure subject to a protective order or other appropriate remedy to preserve the confidentiality of the Confidential Information; provided in the case of a broad regulatory request with respect to the Receiving Party’s business (not targeted at MeshTek), the Receiving Party may promptly comply with such request provided the Receiving Party give (if permitted by such regulator) the MeshTek prompt notice of such disclosure. The Receiving Party agrees that it shall not oppose and shall cooperate with efforts by, to the extent practicable, the MeshTek with respect to any such request for a protective order or other relief. Notwithstanding the foregoing, if the MeshTek is unable to obtain or does not seek a protective order and the Receiving Party is legally requested or required to disclose such Confidential Information, disclosure of such Confidential Information may be made without liability.
5. Term
This Agreement shall remain in effect for a five-year term (subject to a one year extension if the Party and MeshTek are engaged in any business relationship, or still discussing and considering the Transaction at the end of the second year). Notwithstanding the foregoing, the party’s duty to hold in confidence Confidential Information that was disclosed during term shall remain in effect indefinitely.
6. Remedies.
Party acknowledge that the Confidential Information to be disclosed hereunder is of a unique and valuable character, and that the unauthorized dissemination of the Confidential Information would destroy or diminish the value of such information. The damages to MeshTek that would result from the unauthorized dissemination of the Confidential Information would be impossible to calculate. Therefore, the Party hereby agree that the MeshTek shall be entitled to injunctive relief preventing the dissemination of any Confidential Information in violation of the terms hereof. Such injunctive relief shall be in addition to any other remedies available hereunder, whether at law or in equity. MeshTek shall be entitled to recover its costs and fees, including reasonable attorneys’ fees, incurred in obtaining any such relief. Further, in the event of litigation relating to this Agreement, the prevailing party shall be entitled to recover its reasonable attorney’s fees and expenses.
7. Return of Confidential Information.
Receiving Party shall immediately return and redeliver to the other all tangible material embodying the Confidential Information provided hereunder and all notes, summaries, memoranda, drawings, manuals, records, excerpts or derivative information deriving there from and all other documents or materials (“Notes”) (and all copies of any of the foregoing, including “copies” that have been converted to computerized media in the form of image, data or word processing files either manually or by image capture) based on or including any Confidential Information, in whatever form of storage or retrieval, upon the earlier of (i) the completion or termination of the dealings between the Party and MeshTek contemplated hereunder; (ii) the termination of this Agreement; or (iii) at such time as the MeshTek may so request; provided however that the Receiving Party may retain such of its documents as is necessary to enable it to comply with its document retention policies. Alternatively, the Receiving Party, with the written consent of the MeshTek may (or in the case of Notes, at the Receiving Party’s option) immediately destroy any of the foregoing embodying Confidential Information (or the reasonably nonrecoverable data erasure of computerized data) and, upon request, certify in writing such destruction by an authorized officer of the Receiving Party supervising the destruction).
8. Notice of Breach.
Receiving Party shall notify the MeshTek immediately upon discovery of any unauthorized use or disclosure of Confidential Information by Receiving Party or its Representatives, or any other breach of this Agreement by Receiving Party or its Representatives, and will cooperate with efforts by the MeshTek to help the MeshTek regain possession of Confidential Information and prevent its further unauthorized use.
9. No Binding Agreement for Transaction.
The Party agrees that MeshTek will not be under any legal obligation of any kind whatsoever with respect to a Transaction by virtue of this Agreement, except for the matters specifically agreed to herein. The Party further acknowledge and agree that they each reserve the right, in their sole and absolute discretion, to reject any and all proposals and to terminate discussions and negotiations with respect to a Transaction at any time. This Agreement does not create a joint venture or partnership between the Party and MeshTek. If a Transaction goes forward, the non-disclosure provisions of any applicable transaction documents entered into between the Party and MeshTek (or their respective affiliates) for the Transaction shall supersede this Agreement. In the event such provision is not provided for in said transaction documents, this Agreement shall control.
10. Warranty.
MeshTek warrants that it has the right to make the disclosures under this Agreement. NO WARRANTIES ARE MADE BY MeshTek or PARTY UNDER THIS AGREEMENT WHATSOEVER. MeshTek acknowledge that although it shall endeavor to include in the Confidential Information all information that it believes relevant for the purpose of the evaluation of a Transaction, the Party understand that no representation or warranty as to the accuracy or completeness of the Confidential Information is being made by MeshTek. Further, MeshTek is not under any obligation under this Agreement to disclose any Confidential Information it chooses not to disclose. MeshTek hereto shall not have any liability to the Party or to the other party’s Representatives resulting from any use of the Confidential Information.
11. Miscellaneous.
A. This Agreement constitutes the entire understanding between the Party and MeshTek supersedes any and all prior or contemporaneous understandings and agreements, whether oral or written, between the Party and MeshTek, with respect to the subject matter hereof. This Agreement can only be modified by a written amendment signed by the party against whom enforcement of such modification is sought.
B. The validity, construction and performance of this Agreement shall be governed and construed in accordance with the laws of the State of Texas applicable to contracts made and to be wholly performed within such state, without giving effect to any conflict of laws provisions thereof. The Federal and state courts located in Texas shall have sole and exclusive jurisdiction over any disputes arising under the terms of this Agreement.
C. Any failure by Party to enforce the MeshTek’s strict performance of any provision of this Agreement will not constitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement.
D. Although the restrictions contained in this Agreement are considered by the Party to be reasonable for the purpose of protecting the Confidential Information, if any such restriction is found by a court of competent jurisdiction to be unenforceable, such provision will be modified, rewritten or interpreted to include as much of its nature and scope as will render it enforceable. If it cannot be so modified, rewritten or interpreted to be enforceable in any respect, it will not be given effect, and the remainder of the Agreement will be enforced as if such provision was not included.
E. Any notices or communications required or permitted to be given hereunder may be delivered by hand, deposited with a nationally recognized overnight carrier, electronic-mail, or mailed by certified mail, return receipt requested, postage prepaid, in each case, to the address of the other party first indicated above (or such other addressee as may be furnished by a party in accordance with this paragraph). All such notices or communications shall be deemed to have been given and received (a) in the case of personal delivery or electronic-mail, on the date of such delivery, (b) in the case of delivery by a nationally recognized overnight carrier, on the third business day following dispatch and (c) in the case of mailing, on the seventh business day following such mailing.
F. This Agreement is personal in nature, and Party may directly or indirectly assign or transfer it by operation of law or otherwise without the prior written consent of MeshTek, which consent will not be unreasonably withheld. All obligations contained in this Agreement shall extend to and be binding upon the Party to this Agreement and their respective successors, assigns and designees.
G. Paragraph headings used in this Agreement are for reference only and shall not be used or relied upon in the interpretation of this Agreement.
H. The Party acknowledge that: (i) it has read this Agreement; (ii) it understands the terms and conditions of this Agreement; (iii) it has had the opportunity to seek legal counsel and advice; (iv) is of equal bargaining power; and (v) it has relied on its own judgment in entering into this Agreement.
I. The Party and MeshTek may have executed this Agreement in multiple counterparts, each of which shall be deemed an original, but all of which together shall be deemed one and the same instrument.
IN WITNESS WHEREOF, the Party hereto has executed this Agreement as of the Effective Date.
AGREED BY PARTY WITH THE INFORMATION IN THE REGISTRATION OR SIGN-UP FORM.
Effective Date: Date of registration or Sign-Up
