This Nondisclosure Agreement (the “Agreement”) is entered into as of this _________ day of __________________, 2017 (the “Effective Date”), between The Collective Concept LLC., a Colorado corporation (hereinafter referred to as
“The Collective” or “The Company”), and __________________, principal offices located at ____________________________________________________________ (hereinafter referred to as the “Receiving Party”).
Whereas, The Collective is by its nature a worldwide business and has developed certain valuable information, concepts, ideas, strategies, and designs in which The Collective desires to protect as confidential, as work product, as trade secrets or by patent, copyright, trademark or by other means;
Whereas, the Receiving Party intends on using such information for its professional use and wishes to review and/or invest in a possible business relationship and agreement with The Collective including, but not limited to, subsequent distribution agreements, service agreements, manufacturing agreements and all other business relations. (the “Arrangement”),
Whereas, The Collective is prepared to disclose certain Confidential Information (as defined below) to the Receiving Party subject to the terms and conditions of this Agreement; and
Whereas, as a condition to, and in consideration of, the furnishing of such information by or on behalf of The Collective to the Receiving Party, the Receiving Party agrees to treat, and to cause its Representatives (as defined below) to treat, such information in accordance with the provisions of this Agreement and to take or abstain from taking certain other actions as set forth herein.
Now, therefore, in consideration of the foregoing premises and the mutual covenants hereinafter set forth and other valuable considerations, the parties hereby agree as follows:
Definition of Confidential Information. In connection with the Arrangement, The Collective may provide to the Receiving Party, or the Receiving party might otherwise obtain through The Collective, information that is confidential and competitively sensitive to The Collective, including: capital, marketing or business plans; budgets and strategies; customer/client lists and records; marketing studies; financial information; projections; cost estimates; cost and pricing practices; personnel records; trade secrets; minutes; data; designs; drawings; specifications; techniques; test results; engineering reports; research; documents; electronic transmissions; analyses; compilations and studies, or copies or extracts thereof, whether recorded or unrecorded (in whatever medium) possessed by The Collective or used in The Collective’s business (collectively, the “Confidential Information”)
Disclosure. The Collective shall disclose to the Receiving Party certain Confidential Information that concerns the Arrangement. The Receiving Party, agrees to treat confidentially any and all Confidential Information that it may be provided in accordance with this Agreement.
Purpose. The Receiving Party agrees that the disclosure of Confidential Information hereunder is only for the purpose of the Receiving Party’s evaluation to determine its interest in the commercial exploration of the Arrangement, and the Receiving Party agrees that it will not, directly or indirectly, use the Confidential Information for any purpose other than evaluating the Arrangement.
Limitation of Use. The Receiving Party agrees not to manufacture, sell, deal in, or otherwise use or appropriate the Confidential Information in any way whatsoever, including but not limited to adaptation, imitation, redesign, or modification. Nothing contained in this Agreement shall be deemed to give the Receiving Party any rights whatsoever in and to the Confidential Information or the Arrangement. All Confidential Information will remain the sole and exclusive property of The Collective.
Confidentiality. The Receiving Party understands and agrees that the unauthorized disclosure of the Confidential Information by the Receiving Party would irreparably damage The Collective. As consideration and in return for the disclosure of this Confidential Information, the Receiving Party shall keep secret and hold in confidence all Confidential Information and treat the Confidential Information as if it were the Receiving Party’s own proprietary property by not disclosing it to any person or entity, and the Receiving Party shall not disclose, copy, reproduce, reveal, publish or disseminate in any manner whatsoever any Confidential Information, or give access thereto. The Receiving Party agrees that it will not disclose that discussions or negotiations are taking place concerning the Arrangement or any of the terms, conditions or other facts with respect to the Arrangement, that the Receiving Party has received Confidential Information or that the Receiving Party is evaluating a potential Arrangement with The Collective.
Exclusions from Confidential Information. The Receiving Party's obligations under this Agreement do not extend to information that is: (a) publicly known at the time of disclosure or subsequently becomes publicly known through no fault of or breach of this Agreement by the Receiving Party; (b) discovered or created by the Receiving Party before disclosure by The Collective; (c) learned by the Receiving Party through legitimate means on a non-confidential basis from a source other than The Collective or The Collective's representatives who has a bona fide right to make such information available without restriction; or (d) is disclosed by Receiving Party with The Collective's prior written approval.
Obligations of the Receiving Party. The Receiving Party shall hold and maintain the Confidential Information in strictest confidence for the sole and exclusive benefit of The Collective. The Receiving Party shall carefully restrict access to Confidential Information to its employees, contractors, and advisors (the “Representatives”) who are actively participating in the Receiving Party's evaluation of the Arrangement or who otherwise need to review the Confidential Information for the purpose of the Receiving Party's evaluation of the Arrangement, and the Receiving Party shall (i) inform the Representatives of the confidential nature of the Confidential Information and (ii) require the Representatives to sign nondisclosure restrictions at least as protective as those in this Agreement. The Receiving Party will be responsible for any breach of this Agreement by the Receiving Party or any of its Representatives, or by all those who gain access to Confidential Information via the Receiving Party or any of its Representatives. The Receiving Party shall not, without prior written approval of The Collective, use for the Receiving Party's own benefit, publish, copy, or otherwise disclose to others, or permit the use by others for their benefit or to the detriment of The Collective, any Confidential Information. The Receiving Party shall immediately return to The Collective any and all Confidential Information and any and all records, notes, and other written, printed, or tangible materials in its possession pertaining to Confidential Information if The Collective so requests in writing. If the Receiving Party decides that it does not wish to proceed with the evaluation of the Arrangement, the Receiving Party will promptly notify The Collective of that decision in writing. The Receiving Party shall not disclose the identity of The Collective and shall not disclose information regarding the Arrangement between the Receiving Party and The Collective.
Term. This Agreement shall being upon signing and remains in effect for the duration of The Arrangement. Notwithstanding the foregoing, the obligations hereunder to hold in confidence Confidential Information shall remain in effect indefinitely.
Relationships. Nothing contained in this Agreement shall be deemed to cause either party to be a partner, joint venturer or employee of the other party for any purpose.
Severability. If a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, the remainder of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by applicable law, and this Agreement shall be reformed, construed and enforced in such jurisdiction so as to best give effect to the intent of the parties under this Agreement.
Integration. This Agreement expresses the complete understanding of the parties with respect to the subject matter and supersedes all prior proposals, agreements, representations, and understandings. This Agreement may not be amended except in a writing signed by both parties.
Choice of Law. This Agreement shall be governed in accordance with the laws of the State of Illinois without regard to conflict of laws principles. The Federal and State courts located within the Northern District of Illinois shall have sole and exclusive jurisdiction over any disputes arising under or relating to this Agreement. The Receiving Party hereby irrevocably and unconditionally waives any objection to the placing of venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.
Waiver. It is understood and agreed that no failure or delay by The Collective in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.
Transferability. This Agreement is personal in its nature and neither party may transfer or assign it by operation or by law or otherwise without the express written consent of the other party. All provisions in this Agreement shall extend to and bind to any party’s respective successors, assigns, and designees.
The Receiving Party understands and agrees that neither The Collective nor any of its representatives have made or make any representation or warranty, expressed or implied, as to the accuracy or completeness of the Confidential Information or shall have any liability whatsoever to the Receiving Party or any of its Representatives relating to or resulting from the use of the Confidential Information.
The Receiving Party acknowledges and agrees that nothing contained in this Agreement will be construed as granting it or its Representatives any rights, by license or otherwise, to any Confidential Information or The Collective’s copyrights, patent rights, trade secrets or other proprietary rights.
If the Receiving Party or any of its Representatives are required to disclose any Confidential Information in a legal proceeding, the Receiving Party will give The Collective prompt written notice of such requirement and cooperate with The Collective for it to seek a protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained, the Receiving Party or its Representatives will disclose only that portion of the Confidential Information which, upon the advice of the Receiving Party’s counsel and after notifying The Collective, is legally required to be disclosed.
The Receiving Party agrees that unless and until a definitive agreement between The Collective and the Receiving Party with respect to the Arrangement has been executed and delivered, The Collective will not be under any legal obligation or have any liability of any kind whatsoever with respect to the Arrangement by virtue of this Agreement or otherwise, except for the matters specifically agreed to herein.
The Receiving Party agrees that money damages would not be a sufficient remedy for any breach of this Agreement by the Receiving Party or its Representatives and that in addition to all other remedies, The Collective shall be entitled to specific performance and injunctive or other equitable relief (without the necessity of posting any bond or other security or proving special damages) as a remedy for any actual or threatened breach. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that the Receiving Party or any of its Representatives have breached this Agreement, then the Receiving Party shall be liable and pay to The Collective the reasonable legal fees incurred by The Collective in connection with such litigation, including any appeal therefrom.
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but both of which shall constitute one and the same Agreement.
This Agreement and each party's obligations shall be binding on the representatives, assigns, and successors of such party. Each party has signed this Agreement through its authorized representative.
IN WITNESS WHEREOF, the parties hereto have executed the Confidentiality Agreement as of the day and year first set forth above.