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1)Purpose. Company A and Company B wish to explore a business opportunity under which each may disclose its Confidential Information to the other.
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2)Definition. "Confidential Information" means any information, technical data, or know how, including, but not limited to, that which relates to research, product plans, products, services, customers, markets, software, developments, inventions, processes, designs, drawings, engineering, hardware configuration information, marketing or finances. In addition, the parties agree that the existence of this agreement, as well as the fact that Company B is pursuing a potential relationship with the Company, shall be considered Confidential Information. Confidential Information does not include information, technical data or know-how which (i) is in the possession of the receiving party at the time of disclosure as shown by the receiving party’s files and records immediately prior to the time of disclosure; (ii) prior or after the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action of the receiving party; (iii) is approved for release by the disclosing party in writing; (iv) received from a third party not known to the Receiving Party to be under any obligation of confidentiality to the Disclosing Party, or (v) is independently developed by the receiving party.
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3)Non-Disclosure of Confidential Information. Company A and Company B agree not to use the Confidential Information disclosed to it by the other party for its own use or for any purpose except to carryout discussions concerning, and the undertaking of, any business relationship between the two parties. Neither party will disclose any Confidential Information of the other party to third parties except, those directors, officers, employees, consultants and agents who are required to have the information in order to carry out the discussions of the contemplated business; and who are obligated to maintain the confidentiality of the Confidential Information. Each party agrees that it will take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of the other party in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized here under to have any such information, which measures shall include the highest degree of care that either party utilizes to protect its own Confidential Information of a similar nature. Each party agrees to notify the other party in writing of any misuse or misappropriation of such Confidential Information of the other party,which may come to its attention.
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4)Mandatory Disclosure. In the event that either party or their respective directors, officers, employees,consultants or agents are requested or required by legal process to disclose any of the Confidential Information of the other party, the party required to make such disclosure shall give prompt notice so that the other party may seek a protective order or other appropriate relief. In the event that such protective order is not obtained, the party required to make such disclosure shall disclose only that portion of the Confidential Information which its counsel advises that it is legally required to disclose.
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5)Return or Destruction of Materials. Any materials or documents which have been furnished by one party to the other will be promptly returned (accompanied by all copies of such documentation), or at the option of the Receiving Party, destroyed, after the business possibility has been rejected or concluded.
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6)No License Granted. Nothing in this Agreement is intended to grant any rights to either party under any patent, copyright, trade secret or other intellectual property right nor shall this Agreement grant either party any rights in or to the other party’s Confidential Information, except the limited right to review such Confidential Information solely for the purposes of determining whether to enter into the proposed business relationship between the parties.
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7)Term. The foregoing commitments of either party in this Agreement shall survive any termination of discussions between the parties, and shall continue for a period of one (1) year following the date this Agreement.
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8)Miscellaneous. This Agreement shall be binding upon and shall be for the benefit of the undersigned parties, their successors and assigns, provided that Confidential Information of either party may not be assigned without the prior written consent of the disclosing party. Failure to enforce any provision of this Agreement shall not constitute a waiver of any term hereof.
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9)Governing Law and Jurisdiction. This Agreement shall be governed by and construed and enforced in accordance with the internal laws of the States of Montana and Illinois, and shall be binding upon the parties hereto in the United States and worldwide.
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10)Remedies. Each party agrees that its obligations hereunder are necessary and reasonable in order to protect the other party and the other party’s business, and expressly agrees that monetary damages would be inadequate to compensate the other party for any breach by either party of any covenants and agreements set forth herein. Accordingly, each party agrees and acknowledges that any such violation or threatened violation may cause irreparable injury to the other party and that in addition to any other remedies that may be available, in law, in equity or otherwise, the other party shall be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach without the necessity of proving actual damages.
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11)Other. Company A acknowledges that Company B is in the business of investing in companies and nothing in this agreement will restrict Company B from investing in companies, including companies that may compete with Company A.
