Non-Disclosure Agreement

NON-DISCLOSURE AGREEMENT

This Non-Disclosure Agreement (“Agreement”) is entered into and effective as of 09 January 2024 (the “Effective Date”), between  [COMPANY NAME], having a place of business at  [STREET, CITY, STATE, ZIP CODE, COUNTRY](“Company 1”), and Biarri USA, Inc, having a place of business at 11400 Parkside Drive, Suite 300 Knoxville, Tennessee 37934 , (“Company 2”) (the Company 1 and Company 2 individually referred to herein as “Party”, and collectively referred to herein as “Parties”).

WHEREAS Company 1 and Company 2 desire to work together toward the Purpose.

WHEREAS the Parties expect the Purpose to require an exchange of certain information that a Party may deem confidential and wish to provide for the protection of such information by the Party which receives it (the “Receiving Party”) from the Party which discloses it (the “Disclosing Party”) on the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the foregoing premises and the terms set forth below, the Parties agree as follows:

1. Definitions:
a. “Disclosing Party” shall mean Company 1 or Company 2 as indicated by the context.
b. “Receiving Party” shall mean Company 1 or Company 2 as indicated by the context.
c. “Confidential Information” shall mean any nonpublic business, technical or other information and know-how, in whatever form and whether or not owned by or relating to the Disclosing Party, disclosed by Disclosing Party or its Representatives to Receiving Party or its Representatives in connection with the Purpose. Confidential Information shall include but not be limited to drawings, designs, data, processes, specifications, procedures, formulas, business know-how, evaluation and testing standards, selling and pricing procedures, marketing plans, strategies, samples, customer lists which are not generally known to the public, and any information derived from Confidential Information. Confidential Information may be disclosed verbally (by telephone, video conference, or in person), by observation, as well as in writing. Confidential Information also includes the existence of and all terms of this Agreement and the fact that the Parties are working together toward the Purpose.
d. “Purpose” means the evaluations and negotiations of a contractual relationship between the Parties.
e. “Representative” shall mean a Party’s Affiliates, and such Party’s and such Affiliates’ respective directors, officers, employees, agents, consultants, advisors, and representatives (including without limitation legal counsel and accountants).
f. “Affiliate” shall mean any persons or entity (i) which is controlled, directly or indirectly, by one Party, or (ii) which controls, directly or indirectly, a Party, or (iii) which is controlled by a person or entity described in (i) or (ii). For purposes of this definition, control shall mean the ownership of more than fifty (50) percent of the voting stock.

 

2. Limitations on Confidential Information: The Receiving Party will not have any obligation or assume any liability under Sections 3 or 4 with respect to any portion of the Confidential Information which:
a. Was previously known to the Receiving Party, and the Receiving Party can demonstrate their knowledge through written documentation;
b. Is, or becomes available to the public through no fault of the Receiving Party;
c. Is lawfully obtained by the Receiving Party from a third party, without breach of any obligation to the Disclosing Party; or
d. Is independently developed by or for the Receiving Party independent of any disclosure contemplated by this Agreement.

Additionally, Receiving Party may, notwithstanding Sections 3 and 4, disclose Confidential Information if and to the extent required to be disclosed pursuant to proper governmental or judicial process, provided that written notice of such process is promptly provided to the Disclosing Party in order that the Disclosing Party may have every reasonable opportunity to intervene in such process to contest such disclosure.

If any portion of Confidential Information falls within any of the above exceptions, the remainder shall continue to be subject to the terms of this Agreement.

3. Restrictions on Use and Disclosure; No Reverse Engineering:
a. Any Confidential Information disclosed hereunder shall be used by the Receiving Party and its Representatives exclusively for the Purpose stated above. The Receiving Party shall not disclose the Disclosing Party’s Confidential Information to any third party, other than the Receiving Party’s Representatives who have a need to know related to the Purpose, without prior written consent of the Disclosing Party. Furthermore, the Receiving Party and its Representatives shall not use the Disclosing Party’s Confidential Information for its own benefit or the benefit of any third party.
b. Any Representative who is granted access to such Confidential Information by Receiving Party shall be advised by Receiving Party of the Receiving Party’s obligations of confidentiality and restricted use under this Agreement and shall agree to abide by at least the same obligations.
c. In no event shall the Receiving Party, without prior written consent of the Disclosing Party, (i) reverse engineer, duplicate or copy any Confidential Information of the Disclosing Party, including without limitation samples, prototypes, components or other products; (ii) design, manufacture or produce any product based in whole or in part on any such Confidential Information related to the Disclosing Party’s products of like type; or (iii) otherwise assist or solicit any other person to engage in any such activity.

 

4. Degree of Care: The Receiving Party agrees to maintain (and require its Representatives to maintain) the Confidential Information in confidence; giving it the same degree of care as the Receiving Party exercises with its own Confidential Information, but at no time will the Receiving Party (or its Representatives) give less than a reasonable degree of care in order to protect the Disclosing Party’s Confidential Information.

 

5. Term of Agreement; Survival: This Agreement will remain in effect, and govern Confidential Information disclosed within the period, from the Effective Date until 1 year year(s) thereafter, unless earlier terminated by either Party upon written notice to the other. As to Confidential Information received before the termination or expiration date, the Receiving Party’s obligations under this Agreement will survive until five (5) years after the Effective Date of this Agreement, except that Receiving Party’s obligations under this Agreement with respect to any trade secrets shall survive for so long as such Confidential Information constitutes a trade secret under applicable law.

 

6. Intellectual Property Rights: Nothing in this Agreement shall be deemed to grant any direct or indirect license or interest in or right or title to any Confidential Information disclosed pursuant to this Agreement. For the avoidance of doubt, any and all proprietary rights, including but not limited to patent rights, trademarks and other intellectual property or proprietary rights, in and to Confidential Information disclosed by the Disclosing Party to the Receiving Party hereunder shall (as between the Parties) at all times be and remain the exclusive property of the Disclosing Party.

 

7. Warranty: None of the information which may be disclosed or exchanged between the Parties, and nothing in this Agreement, shall constitute any representation, warranty, assurance, guarantee or inducement by the Disclosing Party to the Receiving Party with respect to the infringement, violation or misappropriation of patents or copyrights or other rights of third parties, except as expressly set forth in Section 9. Nothing in this Agreement shall be construed as arepresentation, warranty, assurance guarantee or inducement by the Disclosing Party to the Receiving Party with respect to the content or accuracy of documents and information transmitted or exchanged by the Parties under this Agreement. Any samples provided are “as is” without any representation or warranty, and the Receiving Party assumes all liability and agrees to indemnify the Disclosing Party for any use of such samples by the Receiving Party or its Representatives, except as may be expressly agreed in a separate agreement.

 

8. Ownership of Confidential Information: All Confidential Information, in whatever form, disclosed hereunder, including without limitation copies or material embodying same made by the Receiving Party, shall (as between the Parties) remain the property of the Disclosing Party and may be recalled by the Disclosing Party or requested by the Disclosing Party to be destroyed, at any time, and the Receiving Party shall return or destroy all Confidential Information when requested by the Disclosing Party (with the exception of retention of a single archival copy for customary internal business purposes, subject to continuing confidentiality and use obligations).

 

9. Authority to Disclose: The Disclosing Party represents and warrants that it has the authority to disclose any Confidential Information disclosed hereunder by the Disclosing Party or its Representatives, and that such disclosure shall not be in violation of any written agreement or policy to which the Disclosing Party or its Representatives are subject.

 

10. Equitable Relief: The Receiving Party hereby admits that improper use or disclosure of the Disclosing Party’s Confidential Information may cause irreparable harm to the Disclosing Party. The Parties hereto acknowledge that a remedy at law for any breach of this Agreement may be inadequate and therefore agree that the Disclosing Party shall be entitled to seek injunctive relief in any court of competent jurisdiction against the Receiving Party in case of any such breach. Such temporary or permanent injunctive relief shall in no way limit any other remedies the Disclosing Party may have as a result of a breach by the Receiving Party of any of the covenants contained herein.

 

11. Modification: Any modification of this Agreement must be in writing and signed by a duly authorized representative of each Party.

 

12. Assignment: No Party may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the other Party, except to a successor in ownership of substantially all of the assets used in the business of any Party to which this Agreement relates. Such an assignment or transfer to a successor in ownership can only be made if the successor agrees in writing to be bound by the terms of this Agreement.

 

13. Non-Exclusivity: This Agreement is non-exclusive, and nothing contained herein shall prevent any Party from entering into similar agreements for similar purposes with (and/or disclosing its own Confidential Information to) third parties. This Agreement shall not be construed as creating any joint venture, partnership or agency relationship, nor as an obligation to supply Confidential Information nor as obligating any Party to enter into any further agreement or transaction with the other Party.

 

14. Jurisdiction and Venue: This Agreement, the relationship of the Parties hereunder, and any and all claims or disputes (whether contractual, in tort, or otherwise) arising out of or related to any of the foregoing (whether in whole or in part),   shall be governed by and construed in accordance with the laws of New York, USA exclusive of its choice or conflict of law rules or principles. Except as otherwise expressly set out in this Agreement, any and all such claims or disputes arising under this Agreement shall be heard in New York, USA, and the Parties to this Agreement agree and submit to the personal and exclusive jurisdiction of these courts.

 

15. Entire Agreement: This Agreement sets forth the entire agreement and understanding between the Parties hereto as to the exchange of Confidential Information and supersedes all prior or contemporaneous discussions, commitments, agreements and understandings of any nature between the Parties hereto relating to the exchange of Confidential Information.

 

16. Counterparts and Delivery: This Agreement may be executed and delivered in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Copies of this Agreement and signatures hereto in any electronic format preserving the original appearance thereof shall be deemed the equivalent of an original for all purposes.
 

THE PARTIES HAVE READ AND UNDERSTAND THIS AGREEMENT, AND BY THEIR EXECUTION BELOW INTEND TO BE BOUND AS STATED.

Biarri USA, Inc

 

[COMPANY NAME]

 

 

Signature:  

 

 

 

Signature:  

 

 

 

Name:

 

Name:

 

 

 

 

 

Title:

 

Title:

 

 

 

 

 

Date:

 

Date:

  

 

 

 

 

Confidential​​                 December 2023 DL GLOBAL