This CONFIDENTIAL , NON-DISCLOSURE and NON-CIRCUMVENTION AGREEMENT is effective as of _______________, 2014 by and between the undersigned parties, individually or collectively, jointly, severally, mutually, and reciprocally, and on behalf of any/all/other affiliated companies, or approved agents and official representatives of the above referenced organizations for the terms and conditions expressly stated and agreed to herein (hereinafter, the "Companies" or “Company(s)”, or individually, the “Company”).
1. Purpose The parties to this Agreement desire to engage in discussions regarding present and/or potential future business relationships. This Agreement combines a non-disclosure, a non-competition, and a non-circumvention agreement. The parties intend to engage in substantive discussions and sharing of confidential information, including but not limited to, certain new and useful business opportunities, trade secrets, business information and structuring, financial and other data, and planning. In connection with these discussions, it may be necessary and/or desirable for the Companies to provide one or more of each other with, or allow access to, such proprietary, technical, or business data, and/or other confidential information (collectively the "Confidential Information"). Therefore, all agents and representatives of the Companies, individually and on behalf of those they represent, agree that they are under an obligation of confidentiality. The Companies believe, and the agents and representatives hereby agree, that the Confidential Information has significant commercial value that would be diminished by unauthorized disclosure and would cause measurable harm to the disclosing Company. Accordingly, the commitments of confidentiality in this Agreement are a condition to each of the Companies’ willingness to engage in the contemplated business discussions and planning. The Companies agree that it shall not use any advantages derivable from such information in its own business or affairs, unless the same is done pursuant to a new agreement with all other signatories to this document. Each Company, as well as each signing party, shall be held responsible and liable in case of a breach of this Agreement both in their professional and personal capacity.
2. Confidential Information Confidential Information shall include, and shall be deemed to include, all information conveyed by each Company to the Companies orally, in writing, by demonstration, or by other media. Confidential Information shall be considered as such at the time of transmittal. Confidential Information may include, by way of example but without limitation data, know-how, contacts, contracts, software, formulas, processes, designs, sketches, photographs, plans, drawings, specifications, samples, reports, information obtained from previous or current participants in programs of the Company, and information relating to transactional procedures. However, Confidential Information shall not include information, which can be clearly demonstrated to be:
a. Generally known or available to the public, through no act or omission on the part The parties to this Agreement desire to engage in discussions regarding present of the receiving Company; or
b. Provided to the receiving Company by a third party without any restriction on disclosure and without breach of any obligation of confidentiality to a party to this Agreement; or independently developed by the receiving Company without use of the Confidential Information.
3. Obligation of Confidentiality The Companies agree that when receipt of any Confidential Information has occurred:
a. Each Company shall not disclose or communicate Confidential Information to b. Each of the Companies shall permit access to its Confidential Information to any third party, except as herein provided. Each Company shall protect such information from disclosure by reasonable means, including but not limited to, at least the same minimal level of security that each respective Company uses for its most crucial proprietary and trade secret information.
b. Each of the Companies shall permit access to its Confidential Information to another Company’s agents or employees or third parties only if such disclosure is reasonably believed to be necessary to the purposes of the receiving Company evaluating, contemplating, recommending, or engaging in any program or service offered by the disclosing Company, or for the purpose of entering into a business relationship with the disclosing Company, and only if said agents, employees, or third parties:
(i) reasonably require access to the Confidential Information for purposes approved by this Agreement, and
(ii) have been apprised of this Agreement and the Company’s obligations to maintain the trade secret status of Confidential Information and to restrict its use as provided by this Agreement.
4. Non-Circumvention The Companies and signatories hereby agree for himself or herself, their officers, directors, agents, associates and any related parties, that they will not, directly or indirectly, contact, deal with or otherwise become involved with any entity or any other entities or parties introduced, directly or indirectly, by or through any other Company, its officers, directors, agents or associates, for the purpose of avoiding payment to any of the Companies of profits, fees or otherwise, without the specific written approval of the other Company. Any such action shall be considered a material breach under this Agreement.
5. No Representations The Companies understand that each of the Companies make no representation or warranty as to the accuracy or completeness of the information it provides to the other Companies. Each Company agrees that neither their Company, nor any of its advisers, representatives, agents, or employees shall be held liable for utilization of Confidential Information which results from any Company’s use of said information.
6. Term This Agreement shall, by mutual consent of the parties, remain in force and affect for a period of ten (10) years from the date signed and executed by all parties, with the effective date being the date first written herein above.
7. Jurisdiction The jurisdiction for this Agreement is global and worldwide. Should any individual Company or Companies assert that a violation has occurred, the parties agree that the plaintiff Company(s) shall be entitled to take action to remedy the violation in the United Kingdom locale and/or United Kingdom legal jurisdiction in which the violation occurred, and/or in any other United Kingdom locale or jurisdiction(s) which is appropriate, in the opinion of the plaintiff Company(s)and their respective counsel. The plaintiff Company may also expressly choose any form of arbitration in connection with any breach.
8. Import or Export of Information Each receiving party acknowledges that the Confidential Information may be controlled by the U.S. Department of Commerce Export Administration Regulations or other requirements of the U.S. Government regulating the export of the Confidential Information. Each such party agrees that it shall not attempt to nor knowingly export or re-export Confidential Information of the disclosing party to any country without first having obtained all necessary approvals therefore.
a. As used in this Agreement, the following terms shall have the following meanings:
a. "Agents or employees" means the directors, officers and employees of any of the Companies, any corporation, partnership, association, business trust,contractual organization, group, or other entity of which the signing party is a member, officer, director, agent, trustee, beneficiary, or has a position similar to the aforementioned.
b. Except for the limited right to use granted in section 3(b) herein, no right or "Agents or employees" means the directors, officers and employees of any of the Companies, any corporation, partnership, association, business trust, license, either express or implied, under any patent, copyright, trade secret or other intellectual property right is granted hereunder.
c. No agency or partnership relationship is created between the parties by this Agreement.
d. No party has an obligation under this Agreement to purchase any service or item from any of the other parties, or to offer any service or item for sale to any of the other parties and that any agreement to have a business relationship between the parties will exist only when such agreement is in writing and duly executed by all the parties hereto.
e. Any and all additions, modifications, and waivers of this Agreement must be made in writing and signed by all parties. However, the failure of a party to insist on full compliance with any provisions of this Agreement in a particular instance shall not preclude it from requiring full compliance thereafter.
f. This Agreement is made and shall be governed and construed in accordance with the laws of the United Kingdom. The proper venue for any action arising from or in connection to the interpretation decided by the Company.
g. If any portion of this Agreement shall be held invalid, such invalidity shall not affect the other provisions hereof, and to this extent, the provisions of this Agreement are to be and shall be deemed severable. If any party hereto incurs any legal fees, whether or not action is instituted, to enforce the terms of this Agreement or to recover damages or injunctive relief for breach of this Agreement, it is agreed that the successful or prevailing parties shall be entitled to recover reasonable attorney fees and other costs in addition to any other relief to which it or they may be entitled.
h. This Agreement constitutes the entire understanding between all the parties and supersedes all previous understandings, agreements, communications and representations, whether written or oral, concerning the discussions by and between the parties hereto and the Confidential Information.
10. Mutuality To the extent that confidential information is disseminated or exchanged between any number of the Companies, such information shall be confidential to all Companies involved in the exchange.
11. Notice To the extent required, Notice shall be deemed delivered on the date and time of sender transmittal, when sent to the Company(s) in care of the individual signatory(s) of this Agreement, once by overnight delivery service or in duplicate by electronic mail, to the addresses ascribed herein below.
IN WITNESS WHEREOF, the parties hereto have individually and by their duly authorized representatives executed and delivered this Agreement, to be effective as of the date first written herein above.
AGREED TO AND ACCEPTED BY:
Columbia Willamette Investments, LLC
By: Robert R. McAllister - President