Confidentiality and Nondisclosure Agreement
This Confidentiality and Nondisclosure Agreement (“Agreement”), effective on the date of execution below (the “Effective Date”), is entered in favor of Sheworks Inc., a company incorporated in the State of Delaware, with its principal office at 300 Delaware Ave. Suite 210, Wilmington, DE, 19801, United States («Sheworks») by Recipient (as defined in the signature section below).
In consideration of Sheworks considering Recipient’s request to be a client of Sheworks and/or entering into one or more transactions or arrangements with Recipient (the “Purpose”), Recipient hereby agrees as follows:
- Confidential Information
- As used herein, the term “Confidential Information” means all confidential and proprietary information and materials disclosed to Recipient by Sheworks and/or its Affiliates, including but not limited to: designs; drawings; ideas; concepts; products; sales data; plans, maps, results of research or testing; marketing; promotional or other strategic plans; pricing and cost information; trade secrets and know-how; manufacturing processes and capabilities; financial and related information; the content of the Agreement. Such information shall be considered Confidential Information notwithstanding: (i) is not marked as confidential, proprietary, or with a similar legend; (ii) it is from Sheworks, an Affiliate or a third party.
- Confidential Information shall not include information which: (a) was already rightfully known by Recipient at the time of its disclosure; (b) is or becomes generally available to the public other than through an authorized disclosure by Sheworks or its directors, officers, employees, subsidiaries, affiliates, legal and financial advisors, accountants, auditors and other agents and representatives (“Representatives”) in violation of this Agreement or other wrongful act; or (c) is lawfully received by Recipient from a third party without any obligation of confidentiality. Recipient will have the burden of proving the applicability of any of these exceptions by written documents or other competent evidence.
- Recipient will use the same care with Confidential Information that it uses to protect its own confidential information, but in no event less than reasonable care. Recipient will, at its expense, implement and maintain appropriate technical and organizational measures to protect Confidential Information, against accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Confidential Information.
- Recipient agrees that, without the prior written consent of Sheworks, it will not, directly, or indirectly, for its own benefit or the benefit of another, disclose or reveal to any other person, firm, venture, corporation, or other business entity, or make, directly or indirectly, any commercial or other use of any of the Confidential Information.
- Notwithstanding the precedent, Recipient may disclose Confidential Information to its Representatives which in the reasonable opinion of Recipient need to receive Confidential Information; provided, however, that those Representatives are advised of the confidential nature of the Confidential Information and bound by confidentiality obligations with respect to the Confidential Information which are at least as strict as Recipient’s obligations under this Agreement. Recipient will be responsible and liable to Sheworks for failure by its Representatives to protect the confidentiality of Confidential Information as if its Representatives were parties to this Agreement.
- It shall not be a breach of the confidentiality obligations hereof for Recipient to disclose Confidential Information when, but only to the extent that, such disclosure is required by any governmental or regulatory authority, by law, or by applicable legal process, provided in such case Recipient shall: (i) give the earliest written notice practicable to Sheworks that such disclosure is or may be required; and (ii) cooperate with Sheworks in protecting the Confidential Information which must so be disclosed.
- If Recipient becomes aware of any security incident and/or unlawful disclosure of the Confidential Information (“Security Incident”), Recipient will: (i) notify Sheworks without undue delay of the Security Incident; (ii) promptly investigate or perform required assistance in the investigation of the Security Incident and provide Sheworks with detailed information about the Security Incident; and (iii) promptly take all commercially reasonable steps to mitigate the effects of the Security Incident, or assist Sheworks in doing so. Recipient will comply with this Section at Recipient’s cost.
- Representations and warranties
- Nothing contained in the Agreement shall: (i) be construed as granting or conferring any rights by license or otherwise to the Confidential Information except for the use of such Confidential Information as expressly provided herein, or (ii) grant to Recipient or any other person any right or be construed as offering to Recipient or any other person any right. Sheworks shall retain all rights with respect to its Confidential Information.
- Recipient acknowledges that the execution of this Agreement and the provision of Confidential Information shall not be, and shall not be construed as, a commitment or obligation of Sheworks to enter any contractual or credit relationship; accordingly, this Agreement shall only grant Recipient the rights and obligations set forth herein.
- Recipient acknowledges and agrees that the provision by Sheworks of Confidential Information to Recipient and/or any discussions held, shall not prevent Sheworks from providing Confidential Information to third parties.
Recipient acknowledges that Sheworks and its Affiliates make and have made no representation or warranty
- as to the accuracy or completeness of any Confidential Information.
- Recipient represents that its performance of all the terms of this Agreement does not and will not breach any non-compete agreement or any agreement to keep in confidence information acquired by Recipient in confidence or in trust prior to the execution hereof. Recipient has not entered and will not enter into any agreement either written or oral in conflict with this Agreement.
Upon the earlier of (i) the written request of Sheworks, or (ii) the expiration of the Term of this Agreement, Recipient shall return all copies of such Confidential Information to Sheworks or, if so directed by Sheworks, shall destroy all copies of such Confidential Information, and inform Sheworks that such Confidential Information has been destroyed.
- Injunctive relief
Recipient acknowledges the competitive value of the Confidential Information and that Sheworks may be irreparably injured by Recipient´s failure to comply with its obligations under this section. Accordingly, Sheworks and its Affiliates may be entitled to injunctive relief and specific performance, in addition to any other remedy available at law or in equity. In any action brought by Sheworks to enforce the obligations of Recipient, Sheworks shall be entitled to collect from Recipient to such action such reasonable litigation costs and attorney’s fees and expenses (including court costs, reasonable fees of accountants and experts, and other expenses incidental to the litigation).
- Term and termination
- This Agreement starts on the Effective Date and shall remain in effect unless terminated as set forth below.
- Termination for Cause. Sheworks may immediately terminate this Agreement upon 5 days written notice to the Recipient if Recipient fails to observe or perform any material term of this Agreement. In such case, Sheworks may pursue any remedies it may have at law or, where applicable, in equity.
- Termination for Convenience. Sheworks may terminate this Agreement for convenience upon 10 days’ written notice to Recipient.
- Effect of Termination. The confidentiality obligations provided in this Agreement will survive its termination.
- Advice of Counsel. Recipient acknowledges that, in executing this Agreement, it has had the opportunity to seek the advice of independent legal counsel and has read and understood all the terms and provisions of this Agreement. This Agreement may not be construed against Sheworks by reason of the drafting or preparation hereof.
- “Affiliate” shall mean any entity which controls, which is controlled by, or which is under common control with a person or entity.
- This Agreement may only be modified or supplemented by an instrument executed in writing by an authorized representative of Recipient and Sheworks.
- Recipient may not assign or otherwise transfer its rights or delegate its obligations under the Agreement without the prior written consent of Sheworks. However, Sheworks may assign its rights under the Agreement to any of its Affiliates without the consent of the Recipient.
- The terms of this Agreement are solely for the benefit of Sheworks. The terms of the Agreement are not for the benefit of any other person, except for Sheworks’ successors and assignees.
- Any claim related to the Agreement must be filed in the chosen Dispute Resolution Authority within one year of the date the claim can first be filed unless local law requires a longer time to file claims. If not filed within that time, then it is permanently barred.
- Dispute Resolution. Recipient agrees that if any dispute arises out of or in connection to this Agreement, Recipient shall first seek settlement of that dispute by mediation in accordance with the rules of the International Centre for Dispute Resolution under its Mediation Rules, which procedure is deemed to be incorporated by reference in this clause. If the dispute is not settled by mediation within 30 days of the appointment of the mediator, or such further period as Recipient and Sheworks shall agree in writing, the dispute shall be referred to and finally settled through binding arbitration by the International Centre for Dispute Resolution (the «Dispute Resolution Authority») in accordance with its International Arbitration Rules. The number of appointed arbitrators shall be one in accordance with the said Rules of Arbitration. The seat, or legal place, of arbitration, shall be Reno, Nevada. The language to be used in the arbitral proceedings shall be in English.
- Entire Agreement. This Agreement constitutes the entire and final agreement of Recipient in favor of Sheworks and supersedes all prior negotiations, understandings, and agreements, whether oral or written, relating to the Purpose. Recipient acknowledges that Sheworks has made no written or oral representations or warranties, either expressed or implied, regarding the subject matter of this Agreement that was not included in it.
- Recipient shall be entitled to sign and transmit an electronic signature of this Agreement and such signature shall be binding on Recipient.
Force Majeure. Recipient shall not be liable, and Recipient shall not hold Sheworks liable, for failure to perform any of its obligations under this Agreement if such failure is caused by, or arises, because of an event that is beyond
- its reasonable control (“Force Majeure Event”). As soon as reasonably possible, the person or entity facing force majeure shall notify Sheworks or Recipient, as the case may be, in writing of any occurrence of a Force Majeure Event, the estimated extent, and duration of its inability to perform its obligations under this Agreement. Recipient agrees that if a Force Majeure Event affecting Sheworks subsists for more than 40 days, then Sheworks may terminate this Agreement with 5-day written notice to Recipient.
- Governing Law. This Agreement will be governed by and construed according to the laws of the State of Nevada, without regard for its conflicts of law principles that would require application of the laws of a different state.
- Section headings are for reference only and have no legal effect.
- Any written notice or other communication given under or in connection with the matters contemplated by the Agreement is to be in writing. Notices will be in writing and may be delivered personally, sent via facsimile, pre-paid overnight courier, or electronic mail. Such notice will be deemed received: (i) if delivered personally, at the time of delivery; (ii) if delivered by courier, at the time of obtaining the acknowledgment receipt; (iii) if sent by including email, on the date that electronic message is acknowledged by the recipient. However, if deemed receipt occurs after 5pm on a business day, or on a day which is not a business day, the notice is to be deemed to have been received at 9am on the next business Day. Notices will be sent to the postal addresses and/or e-mail indicated in the heading or the in the signature section below.
- Prevailing Language. The English language version of this Agreement shall be controlling in all respects and shall prevail in case of any inconsistencies with translated versions, if any.
- All parts of this Agreement apply to the maximum extent permitted by relevant law. Should any provision of this Agreement be held by a court or arbitrator of competent jurisdiction to be enforceable only if modified, or if any one or more of the provisions contained in this Agreement is, for any reason, held to be invalid, illegal, or unenforceable in any respect, such holding will not affect the other provisions of this Agreement. In such case, Sheworks may replace the invalid provision with similar terms to the extent enforceable under the relevant law.
- Recipient acknowledges that the delay or failure of Sheworks to exercise any right under this Agreement will not constitute a waiver of such right unless Sheworks has specifically waived such right in writing. Any such waiver of a right under this Agreement on one occasion will not constitute a waiver of any other right under this Agreement or of the same right on any other occasion.
IN WITNESS WHEREOF, the Recipient, intending to be legally bound, has executed or has caused its proper and duly authorized officer to execute and deliver this document as of the day and year it is executed below.
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