12.Notices and authorizations pursuant to this Agreement ...
NON-DISCLOSURE AGREEMENTThis Non-Disclosure Agreement (“Agreement”) is effective as of the _____ day of __________________, between Chuck Greif, (owner Greif’s Kitchen Store, Dba LeCookery) 1000 William Hilton Parkway, Hilton Head Island, SC , and and the parties hereby agree as follows: 1.The parties desire to disclose certain information to each other, some of which may be Proprietary Information (as defined in paragraph 2) for discussing the possibility of said business. The parties further desire to protect such Proprietary Information from unauthorized disclosure and use under the terms and conditions contained herein. 2.For purposes of this Agreement, Proprietary Information means all information and documentation, including but not limited to design concepts, statements of work, technical descriptions, specifications, financial data, inventions, and information and ideas embodied in processes, designs, equipment, facilities, drawings, software, hardware and technology, that relate to the Purpose described in paragraph 1 hereof and that is disclosed hereunder by one party to the other party in connection therewith. The term "Proprietary Information" also includes: (a) the fact that the Proprietary Information has been made available to or is being inspected or evaluated by the receiving party and (b) any information, work papers, analyses, compilations, studies, documents, terms, conditions, correspondence, or other materials derived or prepared on the basis of Proprietary Information by the receiving party. Any declared Proprietary Information supplied by one party to the other party prior to the execution of this Agreement for the Purpose shall be considered in the same manner and subject to the same treatment as the Proprietary Information made available after the execution of this Agreement. 3.All Proprietary Information disclosed pursuant to this Agreement: (a) in tangible form shall be clearly identified at the time of disclosure as being Proprietary Information by an appropriate and conspicuous marking; (b) in intangible form (e.g., oral or visual) shall be identified as being Proprietary Information at the time of disclosure, and shall be confirmed as such in writing to the receiving party within thirty (30) days after such disclosure; (c) by electronic transmission (including, but not limited to, facsimile, electronic mail and the like) in either human readable or machine readable form shall be clearly identified at the time of disclosure as being Proprietary Information by an appropriate and conspicuous electronic marking within the electronic transmission such marking to be displayed in human readable form along with any display of the Proprietary Information; and (d) by delivery of an electronic storage medium or memory device shall be clearly identified at the time of disclosure as being Proprietary Information by an appropriate and conspicuous marking on the storage medium or memory device itself and by an appropriate and conspicuous electronic marking of the stored Proprietary Information, such marking to be displayed in human readable form along with any display of the Proprietary Information. Copies or reproductions, in whole or in part, of Proprietary Information and documents that incorporate Proprietary Information shall be marked by the receiving party in accordance with this paragraph. Notwithstanding the foregoing, information shall be treated as Proprietary Information by a receiving party, even if not marked as described above, if the receiving party would reasonably expect such information to be confidential to the disclosing party.4.The disclosing party represents that it has the right to disclose all information transmitted to the receiving party under this Agreement. The disclosing party further agrees to indemnify and hold the receiving party harmless from any and all injury, loss, or damage that may arise out of or result from a breach of this representation.5.A receiving party shall not use or disclose Proprietary Information received other than in accordance with the terms of this Agreement and shall refrain from disclosing such Proprietary Information to any third party without prior written authorization from the disclosing party, except as authorized by this Agreement or as required by law pursuant to paragraph 10 hereof and only if those third parties also sign and agree to be bound by the terms of this Agreement. Proprietary Information shall be restricted by the receiving party to only to Chuck Greif. The receiving party will be responsible for any breach of this Agreement by any of its Representatives. 6.Each party acknowledges and agrees that, due to the unique nature of the other party’s Proprietary Information, remedies at law may be inadequate to protect the disclosing party against an actual or threatened breach of this Agreement by the receiving party and that any such breach may result in irreparable harm to the disclosing party, and that, therefore, upon any such breach or any threat thereof, the disclosing party shall be entitled to seek appropriate equitable relief, including injunctive relief and specific performance, in addition to any other rights and remedies the disclosing party might have at law. The receiving party shall notify the disclosing party in writing immediately upon the occurrence of any unauthorized release of Proprietary Information, whether inadvertent or otherwise, and shall use reasonable efforts to prevent or limit any further dissemination of such Proprietary Information. However, in no event shall either party be liable hereunder or otherwise for punitive or multiple damages. The disclosing party shall be entitled to reasonable attorneys’ fees and other costs incurred to remedy any such breach or enforce its rights hereunder.7.Each party shall use the Proprietary Information disclosed by the other party solely for the Purpose and for no other purposes whatsoever. 8.The receiving party shall use the same degree of care to protect Proprietary Information against disclosure or use in violation of the terms of this Agreement as it uses to preserve and safeguard its own technical and proprietary information of a similar nature and like importance, but in no event less than reasonable care. 9.Proprietary Information shall not mean, and the obligations of the parties with respect to nondisclosure assumed hereunder shall not apply to, any information or other data that:(a)is or becomes generally available to the public other than as a result of a disclosure by the receiving party under this Agreement;(b)becomes available to the receiving party from a source other than the disclosing party without breach of any obligation of confidentiality;(c)was independently developed by the receiving party without violation of the disclosing party’s rights and without reference to the Proprietary Information, as evidenced by written records, maintained in the ordinary course of business by the receiving party;(d)is used or disclosed with the prior written approval of the disclosing party; or(e)is information previously known to the receiving party as evidenced by written records maintained by the receiving party in the ordinary course of business.10.In the event that the receiving party becomes legally compelled (by oral questions, interrogatories, requests for information or documents, subpoenas, investigative demands or similar process) to disclose any of the Proprietary Information, the receiving party shall provide the disclosing party with prompt written notice so that the disclosing party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. In the event that such protective order or other remedy is not obtained, or that the disclosing party waives compliance with the provisions of this Agreement, the receiving party shall furnish only that portion of the Proprietary Information which the receiving party is legally required to disclose and shall exercise its best efforts to obtain reliable assurance that confidential treatment shall be accorded the Proprietary Information.11.Proprietary Information shall remain the property of the disclosing party. Neither this Agreement, nor the disclosure of Proprietary Information hereunder shall be construed as granting any right or license under any inventions or any intellectual property including, but not limited to, patents, trademarks, trade secrets and/or copyrights now or hereafter owned or controlled by either party. Neither party may assign or transfer any of its rights or obligations hereunder without the prior written consent of the other party hereto except to a successor in interest to all or substantially all of the assets of the portion of the business of such party relating to the subject matter of this Agreement. 12.Notices and authorizations pursuant to this Agreement shall be in writing and shall be delivered in person; by certified mail, postage prepaid, return receipt requested; by facsimile; or by recognized overnight courier to the parties at the addresses set forth above, or as otherwise designated by written notice from either party to the other.13.Unless earlier terminated, this Agreement shall expire five (5) years from the effective date set forth above; provided, however, that this Agreement may be terminated by either party upon thirty (30) days prior written notice. When the Purpose of this Agreement has been accomplished, or upon earlier termination by a party, the parties agree to destroy or return to the disclosing party all Proprietary Information, including all copies thereof and any documents that contain the Proprietary Information, within thirty (30) days. Upon request, the receiving party shall certify in writing to the disclosing party that all Proprietary Information has been returned or destroyed. However, if the parties hereafter enter into a contract having the same general purpose as the Purpose and that contract requires or permits the use or disclosure of Proprietary Information disclosed pursuant to this Agreement, then the terms of such contract requiring or permitting such use or disclosure shall, to that extent, supplement (but not supersede unless specific reference is made to this Agreement) the provisions of this Agreement. The obligations of the parties with respect to protection, use, disclosure and return or destruction of Proprietary Information shall survive the expiration or termination of this Agreement indefinitely. 14.A receiving party shall not assert, directly or indirectly, any right with respect to the Proprietary Information that may impair or be adverse to the disclosing party's ownership thereof. 15.Except as provided in paragraph 6 with respect to costs incurred by a disclosing party to remedy a breach of this Agreement, each party shall bear all costs and expenses incurred by it under or in connection with this Agreement. Nothing in this Agreement shall be construed as an obligation by either party to enter into a contract, joint venture, teaming agreement, partnership, subcontract, or other business relationship with the other party in connection with the Purpose or otherwise, nor does the exchange of Proprietary Information constitute an offer, acceptance, or promise for any future contract or amendment to any existing contract between the parties. Nothing contained in this Agreement is intended to or shall grant to either party the right to make commitments of any kind for or on behalf of the other party without the prior written consent of that other party. 16.The rights and obligations provided by this Agreement shall take precedence over specific legends or statements associated with Proprietary Information when received.17.IN PROVIDING ANY INFORMATION HEREUNDER, NEITHER PARTY MAKES ANY REPRESENTATION, EITHER EXPRESSED OR IMPLIED, AS TO ITS ADEQUACY, ACCURACY, SUFFICIENCY OR FREEDOM FROM DEFECT OF ANY KIND, INCLUDING FREEDOM FROM ANY PATENT INFRINGEMENT THAT MAY RESULT FROM THE USE OF THE INFORMATION, NOR SHALL EITHER PARTY INCUR ANY RESPONSIBILITY OR OBLIGATION WHATSOEVER BY REASON OF SUCH INFORMATION, EXCEPT AS PROVIDED HEREUNDER. WITHOUT RESTRICTING THE GENERALITY OF THE FOREGOING, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY AS TO THE MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF ANY PROPRIETARY INFORMATION DISCLOSED HEREUNDER.18.The parties shall not disclose any Proprietary Information or other information furnished hereunder in any manner contrary to the laws and regulations of the United States of America or any applicable non-U.S. export laws and regulations. The information that the Parties may wish to disclose pursuant to this Agreement may be subject to the provisions of the Export Administration Act of 1979 (50 USC 2401 et seq.), the Export Administration Regulations promulgated thereunder (15 CFR 768-799), the U.S. Arms Export Control Act (22 USC 2778 et seq.) and the International Traffic in Arms Regulations (22 CFR 120-128 and 130). The Parties acknowledge that these statutes and regulations impose restrictions on the import, export and transfer to third countries of certain categories of data and articles, and that licenses from the U.S. Department of State and/or the U.S. Department of Commerce may be required before such data and articles can be disclosed hereunder, and that such licenses may impose further restrictions on use and further disclosure of such data and articles. The party required to obtain any required export license or authorization shall indemnify and hold the other party harmless from all claims, demands, damages, costs, fines, penalties, attorneys’ fees and other expenses arising from the failure to obtain such license or other authorization.19.No failure or delay by the disclosing party in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provisions of this Agreement, which shall remain in full force and effect.20.This Agreement contains the entire understanding between the parties, superseding all prior or contemporaneous communications, agreements and understandings between the parties with respect to the subject matter hereof. This Agreement shall not be amended except by further written agreement executed by the duly authorized representative of the parties.21.This Agreement shall be construed in accordance with the law of the State of South Carolina without regard to the conflict of law rules of any jurisdiction.NO OTHER PROVISIONS FOLLOWIN WITNESS WHEREOF, the parties have caused this Agreement to be executed on this date by their duly authorized representatives.Name of BusinessBy: _________________ By: ___________________________________Name: _________________________Name: ________________________________548005889000Title: _________________Title: _________________________________-901706261100025273062928500Date: ________________Date: _________________________________ ................
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