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AGREEMENT, made on (... date of agreement ...) by and between (... name of Company ...) (... address of Company ...) (hereinafter referred to as the "Company"), (... name of Affiliate ...) (... address of Affiliate ...) (hereinafter referred to as the "Affiliate").
WHEREAS, the Affiliate wishes to obtain services or products provided by the Company, either as a customer or in any form of cooperation or joint-venture in combination with its own services or products, may it be for the Affiliate or for a third party customer; and
WHEREAS, the Company and the Affiliate agreed upon a business cooperation for a certain project, which terms are agreed upon in a separate agreement;
WHEREAS, the Company deals with highly confidential information which is of great value to the Company, and which must be protected from any non authorised disclosure; and
WHEREAS, in order to consummate their business arrangement the Company requires that the Affiliate execute this Agreement;
NOW, THEREFORE, in consideration of mutual covenants herein contained, and for other good and valuable consideration, receipt of which is hereby acknowledged, the Company and the Affiliate hereby agree as follows:
1. Confidential Information. The Affiliate acknowledges that it is the policy of the Company to maintain as secret and confidential all Confidential Information as hereinafter defined. "Confidential Information" shall mean any information, not generally known in the Company's industry which gives the Company a competitive advantage in the industry, heretofore or hereafter acquired, discovered, developed, conceived, originated, used or prepared by the Company or by an affiliate of the Company as the result of employment with the Company and which falls within the following general categories:
(a) information relating to trade secrets of the Company or any customer of the Company;
(b) information relating to existing or contemplated products, services, technology, designs, processes, manuals, formulas, computer systems and/or software, and any research or development of the Company or any customer of the Company;
(c) information relating to business plans, sales or marketing methods, methods of doing business, customer lists, customer usages and/or requirements, and supplier information of the Company or any customer of the Company;
(d) any other Confidential Information that either the Company or any customer of the Company may wish to protect by patent, copyright or by keeping it secret and confidential;
(e) any Confidential Information or part thereof, which has been changed or modified in hole or in part by the Affiliate or which has been developed in cooperation with the Company.
2. Non-Disclosure of Confidential Information. The Affiliate recognizes that the services performed by the Company are special and unique, and that by reason of the business relation, the Affiliate will acquire Confidential Information. The Affiliate recognizes that all such Confidential Information is the property of the Company. In consideration of the Company's entering into this Agreement, the Affiliate agrees that:
(a) the Affiliate shall never, during the term of this business relation of thereafter, directly or indirectly, use, publish, disseminate or otherwise disclose any Confidential Information obtained in connection with the project by the Company without the prior written consent of the Company's Board of Directors, acting independently, it being understood that this subparagraph shall survive the term of this Agreement;
(b) during the term of this business relation or thereafter, he shall exercise all due and diligent precautions to protect the integrity of the Confidential Information, including all technical data and know how, statistical data and compilations, agreements, contracts, manuals or other documents embodying any Confidential Information and, upon termination of this business relation, he shall return all such documents and any copies thereof, in his possession or control, if not specified otherwise in this or any other agreement;
(c) The Affiliate agrees that the provisions of this paragraph are reasonably necessary to protect the proprietary rights of the Company in Confidential Information and its trade secrets, goodwill and reputation.
3. Restrain from Commercial Use. The Affiliate shall not, during the business relation with the Company or thereafter, use any of the Confidential Information the Affiliate obtained throughout the business relation with the Company, except and only to the extend that such usage may be permitted by a separate agreement. In any event shall the Affiliate restrain from selling, passing on, disclosing or otherwise using, in connection with or without a financial compensation any of the Confidential Information or part thereof.
4. Remedies for Violation of Non-Disclosure or Commercial Usage. The Affiliate acknowledges that any breach or threatened breach or alleged breach or alleged threatened breach by him of the provisions contained in this agreement can cause irreparable harm to the Company for which the Company would have no adequate remedy at law. In the event of a breach or threatened breach or an alleged breach or alleged threatened breach by the Affiliate of any of such provisions, the Company, in addition to any and all other rights and remedies it may have under this Agreement or otherwise, and notwithstanding the arbitration provisions of Section 11 hereof, may immediately seek any judicial action that the Company may deem necessary including, without limitation, the obtaining of temporary and preliminary injunctive relief.
5. Special Representations and Warranties of the Affiliate. The Affiliate hereby represents and warrants the following to the Company:
(a) The Affiliate is able in all respects to execute and perform this Agreement, and the execution and performance hereof does not constitute a breach or default under any other agreement, contract or arrangement which is binding upon the Affiliate.
(b) The Affiliate is entering into this Agreement in good faith.
6. Assignment of Work Product. Affiliate agrees that, with respect to his work product resulting from any research or other developmental activities performed in connection with the business relation, any such developments made by the Company or under the Company's direction shall be the sole and complete property of the Company and that any and all patents and copyrights resulting therefrom shall belong to the Company except as determined by any specific provision herein.
7. Benefit. This Agreement shall be binding upon and shall inure to the benefit of the Company and the Affiliate and their respective heirs, legal representatives, successors and assigns.
8. Amendment and Entire Agreement. This Agreement cannot be modified, changed, discharged or terminated except by an instrument in writing, signed by the party against whom the enforcement of any waiver, change, discharge or termination is sought. This Agreement contains the entire understanding between the Company and Affiliate with respect to the matters referenced to herein.
9. Severability. In the event of the invalidity or unenforceability of any one or more provisions of this Agreement, such illegality or unenforceability shall not affect the validity or enforceability of the other provisions hereof and such other provisions shall be deemed to remain in full force and effect.
10. Governing Law. This Agreement shall be construed and governed in accordance with the laws of the (... governing law ...).
11. Disputes. (a) All claims, disputes, controversies, differences or misunderstandings between the parties arising out of, or by virtue of this Agreement or the interpretation of this Agreement, including the determination of Cause under Section 6(a) hereof, which cannot be settled or resolved by the parties hereto will be settled or determined by arbitration by a panel of (... numbers of arbitrators ...) (...) arbitrators as herein provided. When a party wishes to submit a question or an issue to arbitration it will serve a notice upon the other party, setting forth the matter or matters to be arbitrated and the name and address of its arbitrator and within ten (10) business days thereafter the other party will name its arbitrator and give written notice to the other party originally invoking arbitration of his name and address. Within ten (10) business days thereafter a third arbitrator will be appointed by the two arbitrators so selected.
(b) If the party upon whom notice is served should fail to appoint an arbitrator within the time provided, or if the two arbitrators named in accordance with subparagraph (a) of this Section should not agree upon a third arbitrator, such second or third arbitrator (or both) will be appointed by the American Arbitration Association in (... location ...).
(c) Unless all the arbitrators otherwise agree, an arbitration under this Agreement will be conducted at the location of the Company under the rules and regulations of the American Arbitration Association not in conflict with the provisions in this Section.
(d) The parties hereto will abide by and perform in accordance with the decisions, awards or orders of the arbitrators selected at any time, or from time to time, pursuant to the provisions of this Section, and the arbitrators may, and are empowered to, grant or direct injunctive relief as well as monetary damages. A judgment of any court having jurisdiction of the parties may be entered upon the decision, award or order of arbitrators under or pursuant to the provision of this Agreement. The Federal Arbitration Act shall apply to any arbitration procedure under this agreement or to the enforcement of any award resulting thereof.
12. Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.
13 Waiver Of Contractual Right. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every provision of this Agreement.
14. No Representation. Neither party has made any representations nor promises, other than those contained in this agreement or in some further writing signed by the party making the representation or promise.
15. Interpretation. This Agreement will in all events be construed as a whole, according to its fair meaning, and not strictly for or against a party merely because that party (or the party's legal counsel) drafted the Agreement. The headings, captions, and titles in this legal Agreement are merely for reference and do not define, limit, extend, or describe the scope of this Agreement or any provision herein. Unless the context requires otherwise, (a) the gender (or lack of gender) of all words used in this Agreement includes the masculine, feminine, and neuter, and (b) the word including means including without limitation.
16. Advice Of Legal Counsel. Each individual party to this Agreement represents and warrants to each other party that such party has read and fully understands the terms and provisions hereof, has had an opportunity to review this Agreement with legal counsel, and has executed this Agreement based upon such party's own judgment and advice of independent legal counsel.
17. Invalid Provisions. If any provision of this Agreement is held to be illegal, invalid, or unenforceable under any present or future law, then that provision will be fully severable. This Agreement will be construed and enforced as if the illegal, invalid, or unenforceable provision had never comprised a part of this Agreement, and the remaining provisions of this Agreement will remain in full force and effect and will not be affected by the illegal, invalid, or unenforceable provision or by its severance from this Agreement. Furthermore, in lieu of each such illegal, invalid, or unenforceable provision, there will be added automatically, as a part of this Agreement, a provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible and be legal, valid and enforceable.
18. Further Assurances. In connection with this Agreement and the transactions contemplated hereby, each party to this Agreement will execute and deliver any additional documents and perform any additional acts that may be necessary or appropriate to effectuate and perform its obligations under this Agreement and the transactions contemplated hereby.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first above written.
This Section for Notary:
State of _________
County of ________ [COUNTY]
On [DATE] before me, [NAME OF NOTARY], notary, personally appeared [NAME OF PERSON(S) INVOLVED], personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
Witness my hand and official seal.
My commission expires: _____