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MUTUAL NON-DISCLOSURE AGREEMENT
This Mutual Non-Disclosure Agreement (this "Agreement") is entered into as of the date of electronic signature below, by and between Akil-Abree Consulting LLC, an Illinois limited liability company ("Disclosing Party"), and the undersigned recipient ("Receiving Party", and together with Disclosing Party, the "Parties").
The Parties wish to explore a business opportunity of mutual interest (the "Proposed Transaction"). In connection with the Proposed Transaction and as a condition to discussions between the Parties relating to the Proposed Transaction, each Party recognizes the need for the other Party to disclose certain information and materials (the "Confidential Information") which are to be used only for the purpose of such discussions.
In consideration of the disclosure of such information and materials by the Parties, each Party agrees as follows:
1. "Confidential Information" means technical and non-technical information, data, records, computer programs, software, inventions, discoveries, designs, promotional ideas, customer information, financial information, practices, processes, methods, techniques, trade secrets, products, technical information, the terms of any agreement between the Parties and the discussions, and negotiations and proposals related to any such agreement and/or research and any other item that (a) is of a confidential nature, (b) would reasonably be considered as confidential, or (c) is marked or identified orally by the disclosing Party as confidential. Confidential Information shall be deemed to include all notes, analyses, compilations and other material prepared by a recipient of Confidential Information containing or based in whole or in part on any Confidential Information.
2. Each Party agrees not to use the Confidential Information in any fashion, form, or manner for any purpose other than the purpose of this Agreement, the Proposed Transaction or as any subsequent agreements between the Parties may allow. Each Party will not publish, copy, reverse engineer, disassemble, decompile or disclose any Confidential Information of the other party and it will use best efforts to prevent inadvertent disclosure of such Confidential Information to any third party. Except to the extent that disclosing party and receiving party enter into a written agreement that expressly provides otherwise, in the event receiving party (or any third party on behalf of receiving party) develops any product, technology, patents or other proprietary rights (collectively, "Product"), in whole or in part, in connection with or otherwise utilizing the Confidential Information, receiving party acknowledges and agrees that all right, title and interest in and to such Product shall inure to the sole and exclusive benefit of disclosing party and any proprietary rights therein shall be considered a "work made for hire" pursuant to the Copyright Act of 1976, as amended, and all right, title and interests in or to the Product, including all proprietary rights therein, are hereby assigned to disclosing party by receiving party. Receiving party agrees to cooperate with disclosing party, at disclosing party's expense, to vest full title in any such Product (including any proprietary rights therein) in disclosing party, and to enable disclosing party to seek, register, maintain or enforce any applicable proprietary rights thereon anywhere in the world. Disclosing party's rights under this paragraph are in addition to, and not in lieu of, any other rights or remedies available under this Agreement or otherwise in law or in equity.
3. Each Party may reveal the Confidential Information only to its employees, agents and consultants who have a need to know such information for the purpose of this Agreement and who have been duly informed of the confidential nature of the Confidential Information. Each Party agrees to take reasonable steps to prevent disclosure of the Confidential Information to any other person or entity.
4. Each Party will protect the confidentiality of the Confidential Information by using the same degree of care (but not less than a reasonable degree of care) it protects the confidentiality of its own proprietary and confidential information of like kind.
5. Confidential Information disclosed hereunder shall at all times remain the property of the disclosing Party. No license under any trade secrets, patents, copyrights, or other rights is implied or granted by this Agreement or any disclosure of Confidential Information hereunder, except to use the Confidential Information as provided in this Agreement.
6. Confidential Information of either Party may not be copied or reproduced by the other Party without the disclosing Party's prior written consent.
7. Upon receipt of written notice requesting return of any Confidential Information, the recipient Party will promptly (a) deliver to the disclosing Party all Confidential Information furnished by the disclosing Party to the recipient Party, together with copies thereof, and (b) destroy materials generated by the recipient Party that include or relate to any part of the Confidential Information (including notes, analyses, compilations and any electronic copies) without retaining a copy of any such material. At the request of the disclosing Party, any such destruction shall be confirmed in writing by recipient Party. Notwithstanding the foregoing, either Party may retain an electronic copy of Confidential Information in accordance with its FINRA-regulated record retention policies and procedures.
8. The confidentiality obligations of this Agreement shall not apply to information which (a) has entered the public domain except where such entry is the result of a Party's breach of this Agreement or any party's breach of another agreement(s), (b) prior to disclosure hereunder was already rightfully in the receiving Party's possession under no obligation of confidentiality, or (c) subsequent to disclosure hereunder is obtained by the receiving Party on a nonconfidential basis from a third party who has the right to disclose such information to the receiving Party. The obligations of this Agreement will not restrict disclosure by either Party pursuant to applicable law, or by order of any court or government agency; provided that, prior to such disclosure the applicable Party shall (i) give notice to the other Party as promptly as possible, (ii) cooperate with the other Party in resisting such disclosure, and (iii) only provide such information as is required by such governmental agency or by a ruling of a court of proper jurisdiction.
9. Neither party shall circumvent the other with respect to the customers, processes, products, projects, sources or other resources of the other party disclosed in this agreement. Specifically, the parties each agree that they shall not directly or indirectly circumvent, interfere with, unilaterally contract with, or otherwise change or attempt to change or alter the relationship between the other party and any of its clients or vendors.
10. The term of this Agreement shall continue during the Parties' business relationship and bind the Parties hereto for a period of one (1) year after the termination of all business relationships between the Parties; provided that the Parties shall have a continuing obligation to not disclose trade secrets of the other Party.
11. This Agreement shall be binding upon, and shall inure to the benefit of, the Parties and their respective representatives, successors and assigns.
12. The Parties acknowledge and agree that irreparable harm may occur if any of the Confidential Information were to be disclosed to third parties or if any use were to be made of the Confidential Information other than that specified in this Agreement, and the Parties further agree that each shall have the right to seek and obtain injunctive and other equitable relief upon any violation or threatened violation of the terms of this Agreement, in addition to all other rights and remedies available at law or in equity. In the event an injunction is sought under this Agreement, the recipient waives any requirement that the other party post a bond or other security.
13. Each Party warrants that it has the right to disclose all Confidential Information that it discloses to the other Party. Each Party will indemnify and defend the other from all third-party claims resulting from the disclosure by the indemnifying party of a third-party's confidential information. Otherwise, neither Party makes any representation or warranty about the Confidential Information. NEITHER PARTY WILL BE LIABLE FOR INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES FOR ANY CAUSE OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF A BREACH OF THIS AGREEMENT.
14. This Agreement may be executed in counterparts, each of which shall be deemed an original and both of which together shall constitute one document. Both Parties agree herein that signatures submitted by facsimile or electronic means shall have the same binding effect as if they were original signatures.
15. The validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of the State of Illinois, United States of America, as if performed wholly within Illinois and without giving effect to the principles of conflicts of laws. The Parties agree that except for injunctive relief which may be sought in any jurisdiction, all disputes concerning this Agreement shall lay within the exclusive jurisdiction of courts sitting in Cook County, Illinois, each of the Parties consents to the jurisdiction of such courts in any action or proceeding, and waives any objection to venue laid therein.
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