THIS NON-DISCLOSURE AGREEMENT (the “Agreement”) is made and entered as of__________, 2014, by and between Columbia Willamette Investments, LLC (the “Disclosing Party”) and ________________ _ (the “Receiving Party”), and each of their respective affiliates, subsidiaries, assigns, and employees.
A. The Disclosing Party desires to make certain proprietary and other confidential materials and information available to the Receiving Party. The Disclosing Party is providing the Receiving Party with such information and materials solely to allow the Receiving Party to evaluate a possible business arrangement with the Disclosing Party (the “Potential Business Arrangement”).
B. As a condition to the parties providing such information and materials to the other, the parties have agreed to enter into this Agreement and for the Receiving Party to provide the Disclosing Party with the covenants and agreements set forth below.
Accordingly, in consideration of the promises and the covenants contained herein, the parties hereby agree as follows:
1. NON-DISCLOSURE AND NON-CIRCUMVENTION.
1.1 Definition of Proprietary Information. “Proprietary Information” means all knowledge, information, documents and materials that the Disclosing Party or any of its agents or representatives (including its legal counsel) discloses or provides to the Receiving Party or any of Receiving Party’s employees, agents or representatives (including Receiving Party’s legal counsel) at any time prior to the time the Potential Business Arrangement is finally consummated (if it is consummated), in whatever form disclosed or provided, and whether or not marked as confidential or proprietary. Without limiting the generality of the foregoing, Proprietary Information includes the Disclosing Party’s (a) trade secrets (including “Oregon Uniform Trade Secrets Act” as defined in Section 646.461 through 646.475 of the Oregon Civil Code); (b) other proprietary rights, processes, and other intellectual property and intangible assets or property; (c) planned business operations and business plan for future operations; (d) confidential or secret development or research work (for example, information concerning any future or proposed services or products); (e) financial model; (f) documents, contracts, agreements, correspondence and other business records; and (g) designs, know-how, processes, formulae, plans and devices.
1.2 Prohibition. Receiving Party shall hold in strict confidence all of the Disclosing Party’s Proprietary Information, and shall not (a) transfer, disclose, disseminate, divulge, furnish or make accessible to anyone, or enable anyone to do the same, any of the Disclosing Party’s Proprietary Information; (b) use any of the Disclosing Party’s Proprietary Information in any manner whatsoever (including using any of the Disclosing Party’s Proprietary Information for any purpose that is contrary to the Disclosing Party’s interests or reasonably likely to be detrimental to the Disclosing Party or any of its affiliates or related parties), other than to evaluate the Potential Business Arrangement; (c) undertake any act or omission with respect to any of the Disclosing Party’s Proprietary Information inconsistent with the confidential and proprietary nature thereof; or (d) undertake any other acts or omissions that would reduce the value to the Disclosing Party of any of the Disclosing Party’s Proprietary Information. The Receiving Party shall protect all of the Disclosing Party’s Proprietary Information with not less than the same degree of care as the Receiving Party normally uses in protecting the Receiving Party’s own confidential or proprietary information, but at least with reasonable care.
1.3 Permitted Disclosure. The foregoing prohibitions against disclosure of Disclosing Party’s Proprietary Information shall not apply to Receiving Party’s disclosure of Disclosing Party’s Proprietary Information:
1.3.1 to Receiving Party’s technical, financial or legal professionals that Receiving Party retains in connection with the Potential Business Arrangement, so long as (a) that disclosure is necessary in order for Receiving Party to evaluate the Potential Business Arrangement, and (b) Receiving Party shall have taken reasonable precaution (including obtaining non-disclosure agreements similar to this Agreement) to assure that such persons are informed that Disclosing Party’s Proprietary Information is strictly confidential and that they respect the confidentiality of Disclosing Party’s Proprietary Information in the same manner required by this Agreement;
1.3.2 that was already known to Receiving Party at the time receiving party received the same from Disclosing Party, but only if Receiving Party’s receipt of such Proprietary Information is evidenced by documents in receiving party’s possession and receiving party can prove that it received such documents prior to the date of this Agreement;
1.3.3 that Receiving Party can prove had been available to the public at the time Receiving Party received same; or
1.3.4 that Receiving Party is required to disclose pursuant to judicial action or decree having jurisdiction over Receiving Party, but only so long as Receiving Party gives Disclosing Party written notice of the requirement that Receiving Party disclose such Proprietary Information and Receiving Party does not make such disclosure unless and until Disclosing Party has had no less than ninety (90) days to challenge such judicial action or decree.
2. NO LICENSE. Nothing in this Agreement grants or confers to Receiving Party any right by license or otherwise to any of Disclosing Party’s Proprietary Information or to any trademark, patent, copyright or any other of Disclosing Party’s intellectual property. All tangible information, including writings, drawings, specifications and other information, that disclosing party delivers to receiving party shall remain Disclosing Party’s property.
3. NO JOINT VENTURE, ETC. Nothing in this Agreement shall constitute either party as a joint venturer, partner or agent of the other. Neither party shall hold itself out contrary to the terms of the preceding sentence, and neither party shall become liable by reason of any representation, act or omission to the contrary.
4. NON-CIRCUMVENT. To the extent that the Proprietary Information disclosed to Receiving Party by the Disclosing Party includes the names or contact information of potential 1.3.1 to Receiving Party’s technical, financial or legal professionals that 1.3.2 that was already known to Receiving Party at the time receiving 1.3.3 that Receiving Party can prove had been available to the public at 1.3.4 that Receiving Party is required to disclose pursuant to judicial clients and or customers of the Disclosing Party (collectively, “Potential Customers”), the Receiving Party acknowledges that it shall not contact Potential Customers directly or indirectly by any means other than through the Disclosing Party. Further, Receiving Party agrees and acknowledges that should a Potential Customer contact Receiving Party after Disclosing Party has disclosed the Potential Customer to Receiving Party, Receiving Party shall (a) immediately notify Disclosing Party of such contact, (b) provide Disclosing Party with the specific contact information of the Potential Customer (name of person contacting), and (c) instruct the Potential Customer to contact Disclosing Party directly. This paragraph 4 is of value and a reason for each party entering into this Agreement.
5.1 Injunctive Relief. Receiving Party agrees that it would be extremely difficult to calculate the extent of damages caused by, and to compensate Disclosing Party fully for damages for, any violation by receiving party of the provisions of this Agreement. Accordingly, Receiving Party agrees that Disclosing Party shall be entitled to temporary, preliminary and permanent injunctive relief, without necessity of posting bond, to enforce the provisions of this Agreement, and that such relief may be granted without the necessity of proving actual damages. This right to injunctive relief shall not, however, diminish Disclosing Party’s right to claim and recover damages or to obtain any other remedy or relief, from receiving party in addition to injunctive relief.
5.2 Uniform Trade Secrets Act. If Receiving Party breaches any provision of this Agreement, Disclosing Party shall have the right to invoke any and all remedies provided under the Oregon Uniform Trade Secrets Act (Oregon Civil Code §§646.461 through 646.475, et seq.) or other statutes or common law remedies of similar effect (but without diminishing Disclosing Party’s right to claim and recover damages, or to seek and obtain any other remedy or relief, from Receiving Party).
5.3 Indemnification. Receiving Party shall indemnify, protect, defend (with counsel of Disclosing Party’s choosing) and hold harmless Disclosing Party and each of its members, managers, directors, shareholders, officers, partners, joint venturers, attorneys, agents, representatives, successors and assigns, from and against any and all claims, liabilities, demands, lawsuits, litigation, losses, damages (including consequential damages and penalties), costs and expenses (including settlement costs, and costs and expenses of counsel and other professional fees), obligations, fines, indebtedness, defenses and causes of action, of every and whatever type, whether or not presently or later known, and whether or not asserted by or attributable to a third party that are in any way caused by, connected to, or related to (a) Receiving Party’s breach or threatened breach of any of its covenants or agreements set forth in this Agreement, or (b) any use or disclosure of Disclosing Party’s Proprietary Information by any person or entity to whom Receiving Party provides any of Disclosing Party’s Proprietary Information or who obtains Disclosing Party’s Proprietary Information through Receiving Party, whether provided directly or indirectly (including through Receiving Party’s agents or representatives).
5.4 Non-Exclusive Remedies. The remedies provided to Disclosing Party in this Section 5 are cumulative, and not exclusive, of any other remedies that may be available to Disclosing Party.
6. RETURN OF INFORMATION. Should at any time the parties elect not to pursue the Potential Business Arrangement, then each party shall immediately discontinue all use of the other party’s Proprietary Information, and shall promptly return to the other party all tangible information, including documents, records, notebooks, computer tape or other stored information of any form or type (for example, written information that has been converted to electronic format), and any copies thereof, that constitutes or relates to any of the disclosing party’s Proprietary Information.
7.1 Entire Agreement. This Agreement contains the entire agreement among the parties hereto with respect to the subject matter of this Agreement and supersedes all prior agreements or understandings among the parties with respect thereto.
7.2 Governing Law; Consent to Jurisdiction. Oregon law, without regard to conflict or choice of law principles, shall govern the construction and interpretation of this Agreement. The parties to this Agreement agree that all actions or proceedings arising directly or indirectly from this Agreement shall be arbitrated or litigated before arbitrators or in courts having a situs within Portland, Oregon, and hereby consent to the jurisdiction of any local, state or federal court in which such an action is commenced that is located in Multnomah County, Oregon, agree not to disturb such choice of forum, waive the personal service of any and all process upon them, and consent that all such service of process may be made by certified or registered mail, return receipt requested, addressed to the respective parties at the address set forth above.
7.3 Attorneys’ Fees. If any part to this Agreement commences an action against another party to this Agreement to interpret or enforce any of the terms of this Agreement, or because of the other party’s breach of any provision set forth in this Agreement, the losing party shall pay the prevailing party’s reasonable attorneys’ fees, costs and expenses, court costs and other costs of action incurred in connection with the prosecution or defense of such action, whether or not the action is prosecuted to a final judgment. In addition to the foregoing award of attorneys’ fees, the prevailing party shall be entitled to its reasonable attorneys’ fees incurred in any post-judgment proceeding to enforce any judgment in connection with this Agreement. This paragraph is separate and several and shall survive the merger of this paragraph into any judgment.
7.4 Binding Effect. All the terms and provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Notwithstanding anything to the contrary in this Agreement, this Agreement shall not be assignable by either party without the other party’s written consent.
7.5 Amendment, Modification, and Waiver. This Agreement may not be amended, modified or supplemented except pursuant to an instrument in writing signed by each of the parties hereto, except that any party to this Agreement may waive any obligation owed to such party by another party under this Agreement, provided such waiver is in writing. The waiver by any party hereto of a breach of any provisions of this Agreement shall not operate or be construed as a waiver of any subsequent breach.
7.6 Severability. If any provision of this Agreement as applied to any party or to any circumstance shall be found by a court of competent jurisdiction to be void, invalid or unenforceable, the same shall in no way affect any other provision of this Agreement, the application of any such provision in any other circumstance, or the validity or enforceability of this Agreement, and any provision that is found to be void, invalid or unenforceable shall be curtailed and limited only to the extent necessary to bring such provision within the requirements of the law.
7.7 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall constitute an original and together shall constitute one and the same instrument.
7.8 Construction. In all instances when appearing in this Agreement, the terms “including,” “include” and “includes” shall be deemed to be followed by “without limitation."
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be duly executed as of the date first written above.
Columbia Willamette Investments, LLC