NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT
This Non-Disclosure and Confidentiality Agreement (this “Agreement”) is entered into effective as of the date set forth on the signature page hereto (the “Effective Date”) by and between KPS Global LLC, a Delaware limited liability company, whose principal place of business is 4201 North Beach Street, Fort Worth, Texas 76137 (“KPSG”), and the undersigned Receiving Party set forth on the signature page hereto (the “Receiving Party”). Each of KPSG and the Receiving Party may be referred to individually as a “Party”, and collectively, as the “Parties”.
WHEREAS, KPSG desires to engage in general discussions and to share certain Confidential Information with Receiving Party for the purpose of evaluating, and potentially commencing, research and development activities and/or a business relationship between the Parties and/or one or more Affiliate (as defined herein) of the Parties (the “Purpose”);
WHEREAS, KPSG owns certain Confidential Information (as defined herein) that Receiving Party agrees is the highly valued Confidential Information of KPSG; and
WHEREAS, KPSG is willing to disclose the Confidential Information to Receiving Party only on the terms and conditions set forth herein, and Receiving Party desires to receive such Confidential Information and is willing to agree to the terms and conditions in this Agreement prior to receiving such Confidential Information.
NOW THEREFORE, this Agreement, in consideration of the mutual promises, obligations, terms, and conditions herein contained, once signed by the Parties, constitutes the entire agreement of the named parties who intend to be and are hereby bound by this Agreement.
1.01 “Affiliate” shall mean any business entity that directly or indirectly through one or more intermediaries, controls, is controlled by or is under common control with, a Party, with “control” meaning direct or indirect ownership of 50% or more of the voting interest in such other entity, and in the case of a partnership, control of the general partner, or the voting power to direct the management of any such entity.
1.02 “Confidential Information” shall mean any proprietary and/or secret information owned or controlled by KPSG that is discussed or disclosed during any discussions or otherwise in connection with the Purpose or ascertained by Receiving Party through its due diligence investigations or discussions with representatives of KPSG. Confidential Information shall include, but is not limited to, all communications by KPSG with the Receiving Party in any form whatsoever, including without limitation all oral, written and machine-readable form, video, audio, phonorecord, recorded media, drawings, schematics, samples, devices, software, formulas, chemical materials, applications for intellectual property protection, services, processes, procedures, trade secrets, intellectual property, pricing, costs, business or strategic plans, and marketing or advertising strategies. Confidential Information shall include without limitation all information relating to the business, equipment, or operations of KPSG, including trade secret or confidential information in any designs, drawings, specifications, techniques, models, data, documentation, software, diagrams, flow charts, research, development, software, processes, procedures, know-how, manufacturing, development or marketing techniques and materials, development or marketing timetables, strategies and development plans, customer, supplier, or personnel names, and other information related to customers, suppliers, or personnel, pricing policies, financial information, and other information of a similar nature, whether or not reduced to writing or other tangible form, and any other trade secrets. No information is Confidential Information that Receiving Party can demonstrate by written documentation: (a) was in the public domain as of the Effective Date, or comes into the public domain other than as a result of a disclosure in breach of this Agreement by Receiving Party; (b) was in the possession of the Receiving Party prior to disclosure by KPSG under this Agreement; (c) is lawfully obtained by Receiving Party from a third party under no obligation of confidentiality, and who did not acquire it, directly or indirectly, from KPSG under a continuing obligation of confidentiality; (d) was developed by or for Receiving Party independently by persons(s) having no access to, or use or knowledge of, the Confidential Information; or (e) is disclosed as required by law.
2. Confidential Information.
2.01 The Receiving Party shall only use Confidential Information for the Purpose. Specifically, but without limitation, the Receiving Party shall not use, in whole or in part, any of the Confidential Information for any commercial purpose or development of any products or technology and shall not use or attempt to derive, reduce to practice, make, develop, or practice any invention arising from or disclosed in the Confidential Information, or any part thereof, without first entering into a written agreement with KPSG permitting such use or practice at KPSG’s sole discretion.
2.02 The Confidential Information is and shall remain the sole property of KPSG. KPSG reserves its ownership rights in and to its Confidential Information disclosed hereunder, including all intellectual property rights therein, and only allows Receiving Party the limited right to use such Confidential Information for the Purpose. Receiving Party agrees and acknowledges that (a) it does not acquire any ownership interest in the Confidential Information by virtue of the combination of such Confidential Information with other Confidential Information, including without limitation any confidential information of Receiving Party; and (b) nothing in this Agreement shall give Receiving Party any right, title, or interest in the Confidential Information other than the rights expressly granted in this Agreement.
2.03 Receiving Party agrees to keep all Confidential Information strictly confidential and shall not disclose any of the Confidential Information to any individual or person, other than Receiving Party’s employees (the “Representatives”) who have a specific need to know such information for the limited purpose of evaluating the Purpose, are apprised of the confidential nature of the Confidential Information, and have agreed in writing to be bound by written provisions at least as restrictive on disclosure and use of Confidential Information as set forth in this Agreement. Receiving Party shall be responsible for any breach of these confidentiality restrictions hereunder by any of its employees or independent contractors or subcontractors, if any, who gain access to the Confidential Information and shall indemnify KPSG for all damages, expenses, and losses (including reasonable attorneys’ fees) arising from or related to the same.
2.04 Since the disclosure of Confidential Information by KPSG is in strictest confidence, Receiving Party covenants and agrees to:
i. not disclose to any other person the Confidential Information, and use at least the same degree of care and discretion to maintain the Confidential Information secret as the Receiving Party uses in maintaining as secret its own Confidential Information, but always with at least a reasonable degree of care and discretion;
ii. not disclose such Confidential Information to any third parties or use, duplicate, reproduce, copy, distribute, or otherwise disseminate such Confidential Information, except as permitted pursuant to this Agreement;
iii. restrict disclosure of the Confidential Information solely to those employees of Receiving Party having a need to know such Confidential Information in order to accomplish the Purpose, provided that such employees shall have agreed in writing to be bound by the terms of this Agreement or are automatically bound thereby as employees of the Receiving Party;
iv. within thirty (30) days following request of KPSG, return to KPSG all documentation, copies, notes, diagrams, computer memory media and other materials containing any portion of the Confidential Information, or confirm to KPSG, in writing, the destruction of such materials; and
v. immediately upon sale or merger of Receiving Party, return to KPSG all documentation, copies, notes, diagrams, computer memory media, and other materials containing any portion of the Confidential Information, and confirm to KPSG, in writing, that all such materials have been returned to KPSG within ten (10) business days of such sale or merger.
2.05 In the event any Confidential Information is required to be disclosed pursuant to governmental law, regulation, or judicial or administrative proceeding, Receiving Party shall provide prompt notice of such request to KPSG, and before any such disclosure is required, to allow KPSG to protect the Confidential Information. Receiving Party will consult with KPSG on the advisability of taking legally available steps to resist or narrow such request. Receiving Party shall cooperate fully in seeking a protective order or other assurance that confidentiality will be accorded the Confidential Information required to be disclosed, should KPSG seek such order or assurance. In the event that such protective order or other remedy is not obtained, or that KPSG waives compliance with the provisions hereof, Receiving Party and its employees and agents agree to furnish only that portion of the Confidential Information which is legally required to be furnished. Furthermore, such Confidential Information shall continue to be treated by the Receiving Party as Confidential Information for all other purposes. Confidential Information required to be so disclosed shall not be deemed part of the public domain by virtue of such disclosure.
2.06 In the event of a breach or threatened breach or intended breach of this Agreement by Receiving Party, KPSG, in addition to any other rights and remedies available to it at law or in equity, shall be entitled to seek preliminary, temporary, and final injunctions, enjoining and restraining such breach or threatened breach or intended breach, or requiring specific performance of the Receiving Party’s obligations hereunder, even if monetary damages are available and readily quantifiable and without proof of actual damage. Such remedy shall not be deemed to be the exclusive remedy for Receiving Party’s breach of this Agreement, but shall be in addition to all other remedies available at law or equity to KPSG. Receiving Party also agrees to reimburse KPSG for all attorneys’ fees and court costs and expenses, including attorneys’ fees incurred by KPSG in attempting to enforce the obligations of Receiving Party or of its Representatives hereunder.
3. Warranties; Limitation of Liability.
3.01 Neither KPSG nor any of its Representatives has made or makes any representation or warranty as to the accuracy or completeness of the Confidential Information and Receiving Party acknowledges that Receiving Party is not relying on any KPSG representations or warranties or any of its Representatives regarding the Confidential Information. Receiving Party agrees that neither KPSG nor its Representatives shall have any liability to Receiving Party or its Representatives relating to or resulting from the provision or use of the Confidential Information or any errors therein or omissions therefrom. Receiving Party acknowledges and agrees that the Confidential Information has been obtained or developed by KPSG for its own use and is provided hereunder in good faith, on an AS IS basis, and that KPSG is under any obligation to disclose all information related to the Confidential Information. KPSG MAKES NO WARRANTIES, WHETHER WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, WITH RESPECT TO THE CONFIDENTIAL INFORMATION AND HEREBY EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. KPSG SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER RESULTING FROM RECEIPT OR USE OF THE CONFIDENTIAL INFORMATION BY RECEIVING PARTY.
4. Term; Relationship of Parties; Non-Competition; Non-Solicitation.
4.01 This Agreement shall commence on the Effective Date. Either Party may terminate this Agreement for any reason by giving sixty (60) calendar days written notice to the other Party.
4.02 This Agreement is binding upon KPSG and Receiving Party, and upon the directors, officers, employees, and agents of each Party. This Agreement is effective as of the Effective Date and will continue until terminated by the Parties in writing.
4.03 Receiving Party agrees that within ten (10) business days after the end of the term of this Agreement or upon receipt of KPSG’s written request, Receiving Party shall deliver all tangible copies of the KPSG Confidential Information in possession or under control of Receiving Party. If the Confidential Information is provided or has been converted into an electronic or magnetic format, then within ten (10) business days after the end of the term of this Agreement or upon receipt of KPSG’s written request, Receiving Party shall also permanently and irretrievably delete from computer hard drives and other electronic storage media of Receiving Party all such copies of the KPSG Confidential Information. Receiving Party shall confirm to KPSG in writing that Receiving Party has fully complied with this Section 4.03 within ten (10) business days after the end of the term of this Agreement or receipt of KPSG’s written request.
4.04 Nothing in this Agreement shall be construed to constitute any agent, partner, or joint venturer relationship with any other Party or among the Parties, and no Party shall have any authority to bind any other Party in any respect, it being expressly intended that each Party shall remain an independent entity.
4.05 Receiving Party shall not, whether directly or indirectly, solicit, communicate with, or otherwise contact any of the Receiving Party’s customers with whom Receiving Party had material contact during the term of this Agreement, for the purpose of conducting any business with them which is substantially similar to the business conducted or anticipated to be conducted by KPSG during the term of this Agreement. “Material contact” means (a) actual contact with customers—such as through the provision of services or sales visits or calls—(b) coming to know confidential information about a KPSG customer—such as by obtaining pricing and sales information—or (c) directing or coordinating other employees in calling, servicing, or soliciting customers.
4.06 Receiving Party agrees that during the term of this Agreement and for one year thereafter, it will not, directly or indirectly, solicit, or induce any KPSG employee that has interacted with Receiving Party or has been involved, directly or indirectly, in the performance, review, and/or any transaction under this Agreement, to consider or accept employment with Receiving Party.
5. Assignment; Amendment.
5.01 The rights and obligations of each Party under this Agreement may not be sold, assigned, or otherwise transferred without the prior written consent of the Party affected.
5.02 This Agreement shall not be amended or modified without the prior written consent of the Parties to such amendment or modification.
6.01 The rights and obligations of Sections 2.01 – 2.06, 3.01, 4.02 – 4.06, 5.01, 5.02, and 6.01 – 6.13 shall survive any termination or expiration of this Agreement.
6.02 This Agreement constitutes the entire and only agreement between the Parties for the confidentiality of Confidential Information related to the Purpose. Nothing herein requires either Party to proceed with any proposed transaction or relationship in connection with which the Confidential Information may be disclosed.
6.03 No presumption will apply in favor of either Party in the interpretation of this Agreement or in the resolution of any ambiguity of any provisions thereof.
6.04 A Party’s waiver, express or implied, of any right arising under, failure to perform, or breach of this Agreement by the other Party shall not constitute or be deemed a waiver of any other right arising under, failure to perform, or breach of this Agreement, whether similar or dissimilar.
6.05 Receiving Party hereby agrees that Receiving Party shall not, directly or indirectly, circumvent, avoid, or bypass KPSG in order to avoid payments of fees, or otherwise benefit, either financially or otherwise, from information supplied to it by KPSG, or through any form of relationship with KPSG, including without limitation, KPSG’s customers, suppliers, employees, contractors, sub-contractors, or representatives.
6.06 The invalidity, illegality, or unenforceability of any provision of this Agreement, or the occurrence of any event rendering any portion or provision of this Agreement void shall in no way affect the validity or enforceability of any other portion or provision of this Agreement. Any invalid, illegal, unenforceable, or void provision shall be deemed severed from this Agreement and the balance of this Agreement shall be construed and enforced as if this Agreement did not contain the particular portion or provision held to be invalid, illegal, unenforceable, or void.
6.07 The validity, construction, and performance of this Agreement shall be governed by and construed in accordance with the laws of the state of Texas, without regard to conflicts of laws principles. With respect to any claim or dispute related to or arising under this Agreement, the parties hereby consent to the exclusive, mandatory jurisdiction, forum, and venue of the state courts located in Tarrant County, Texas and the federal courts located in Fort Worth, Texas, subject to the Alternative Dispute Resolution provision in this Agreement.
6.08 Except as otherwise provided in this Agreement, all notices required or permitted to be given hereunder shall be in writing and shall be valid and sufficient if dispatched by registered mail or airmail (where appropriate), postage prepaid, to a post office in the city of the principal place of business of the Party, or by e-mail, as follows:
If to KPSG:
KPS Global LLC
4201 North Beach Street
Fort Worth, TX 76137
E-mail: [email protected]
If to Receiving Party:
At the Receiving Party’s post office address or e-mail address set forth on the signature page of this Agreement.
Each Party shall communicate contact information updates by written notice to the other Party in the manner set forth above. Notices shall be considered to have been given 10 (ten) calendar days after the posted date when mailing by post, or if by e-mail on each other Party’s next business day. Notices of termination may not be sent by e-mail.
6.09 If any mediation, arbitration, litigation, or other legal proceeding relating to this Agreement occurs, the prevailing party shall be entitled to recover from the other party (in addition to any other relief awarded or granted) its reasonable costs and expenses, including attorneys’ fees, incurred in the proceeding.
6.10 This Agreement is intended to be a binding contract upon all Parties. The Parties agree and acknowledge they have had adequate opportunity and time to review this Agreement with their legal counsel.
6.11 Alternative Dispute Resolution. Any controversy or claim arising out of or relating to this Agreement, and document to which this Agreement applies, or the breach thereof, including the validity, scope, enforceability, and arbitrability of this arbitration agreement, shall be settled by arbitration administered by the American Arbitration Association (“AAA”) in accordance with the then effective AAA Commercial Arbitration Rules. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Any provisional remedy which would be available from a court of law shall be available from the arbitrator pending arbitration. The Federal Arbitration Act shall govern all arbitration proceedings. The arbitration shall be conducted in Fort Worth, Texas, by one neutral arbitrator chosen by AAA according to its then effective Commercial Arbitration Rules. Neither party nor the arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties. All fees and expenses of the arbitration shall be borne by the parties equally who shall make deposits as requested by AAA. Failure or refusal by a party to pay its share of the requested deposits shall constitute a waiver by the non-paying party of its rights to be heard, present evidence, cross-examine witnesses, and assert counterclaims in the arbitration. Informing the arbitrator of a party’s failure to pay its share of the requested deposits for the purpose of implementing this waiver provision shall not be deemed to affect the arbitrator’s impartiality, neutrality, independence, or ability to proceed with the arbitration. Each party shall bear the expense of its own counsel, experts, witnesses, and preparation and presentation of proofs. The prevailing party, according to the arbitrator, however, shall be entitled to an award of reasonable attorney’s fees, for the arbitration and for all appeals of the award, as well as arbitration fees and AAA administrative expenses. This agreement to arbitrate shall survive the termination or repudiation of any agreement or contract to which this Agreement applies.
6.12 This Agreement may be executed with handwritten or electronic signatures, delivered between the Parties in one or more counterparts, on paper or via e-mail attachment or an agreed upon internet-based electronic platform, each one or more counterparts of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument, such Agreement becoming effective when all Parties have signed one or more counterparts and delivered to the other Party, it being understood that each Party need not sign the same counterpart.
6.13 In connection with this Agreement and the transactions contemplated hereby, Receiving Party shall execute and deliver any additional documents and instruments and perform any additional acts that may be necessary or appropriate to effectuate and perform the provisions of this Agreement and such transactions.