This Mutual Nondisclosure and Confidentiality Agreement (the “Agreement”) is made and entered into by and with Safe Rack, LLC (D/B/A: ErectaStep, RollaStep, YellowGate, Liquid Transfer Group “LTG”) ) an entity existing under the laws of South Carolina, and having a place of business at 219 Safety Avenue, Andrews, South Carolina 29510 and its related affiliates, subsidiaries or companies (“SafeRack”).
WHEREAS, the parties have a mutual interest in conducting confidential discussions concerning a potential business venture or transaction related to developing crossover solutions and designing structural systems (the “Transaction”).
WHEREAS, each party, on behalf of itself and its direct and indirect subsidiaries and affiliates (the “Disclosing Party”), is willing to disclose to the other party (the “Receiving Party”) information which the Disclosing Party considers confidential and proprietary.
NOW, THEREFORE, in consideration of the foregoing, the covenants and undertakings contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
Confidential Information: For purposes of this Agreement, “Confidential Information” shall include, but not be limited to, all trade secrets, ideas, concepts, plans, drawings, designs, models, samples, prototypes, specifications, calculations, methods, processes, research, applications, technology, know-how, techniques, names of resources, sources of supply, business records, business plans, projections, new product information, costs, prices, customer names and information, financial information, budgets, forecasts, marketing plans and information, software programs, and other information whether disclosed orally, by demonstration, in written or machine readable form or otherwise. All Confidential Information disclosed by the Disclosing Party is subject to this Agreement, whether identified or labeled as confidential or not, unless an exception set forth in Section 3 hereof is applicable. The terms and conditions of this Agreement and the relationship between the parties will be considered Confidential Information.
Use and Obligation of Confidence: With respect to each item of Confidential Information disclosed hereunder, the Receiving Party will, for a period of five (5) years from the date of receipt of such item (a) use the item of Confidential Information only (a) for the purpose of evaluating and engaging in the Transaction; and (b) keep each item of Confidential Information secret and confidential using at least the same degree of care it uses with respect to its own similar confidential and proprietary information (provided that such is at least a reasonable degree of care), and not permit disclosure to, or use or copying by, any person except officers, directors, employees, legal counsel, auditors and other representatives of the Receiving Party, its subsidiaries and affiliates (collectively, “Representatives”) who have (a) a need to know such information for the purpose of evaluating and engaging in the Transaction, (b) have been informed of this Agreement by the Receiving Party and (c) have agreed in writing to be bound by a corporate non-disclosure policy that encompasses protection of Confidential Information. The Receiving Party shall be liable for the acts of its Representatives and for third parties who obtain the Disclosing Party’s Confidential Information from the Receiving Party. Upon the expiration or termination of this Agreement, any Confidential Information that is also a trade secret under applicable law shall continue to be subject to the obligations imposed upon the Receiving Party until such time as it is no longer a trade secret. Additionally, Confidential Information that is subject to other protection under applicable law (including, without limitation, copyright law) will continue to be subject to the protection under such laws notwithstanding the expiration or termination of this Agreement
Exceptions: Section 2 hereof is not intended to limit, and shall not be construed as limiting, the Receiving Party’s right to use or disclose any information which: (a) is publicly known at the time of disclosure to the Receiving Party by the Disclosing Party; (b) becomes public knowledge without breach of this Agreement by the Receiving Party; (c) is known to the Receiving Party at the time of disclosure to the Receiving Party by the Disclosing Party and not subject to a prior nondisclosure agreement; (d) becomes known to the Receiving Party, without restriction and without breach of this Agreement, from a source other than the Disclosing Party which has no obligation to the Disclosing Party with respect to the information; (e) is independently developed by employees of the Receiving Party who have not had access to the Disclosing Party’s Confidential Information; or (f) is disclosed consistent with Section 4 below. If only a portion of any Confidential Information falls under one or more of the preceding exceptions, the remaining Confidential Information shall continue to be subject to the prohibitions set forth in this Agreement. The Receiving Party will have the burden of proving the applicability of any of the foregoing exceptions to any Confidential Information disclosed or used contrary to the requirements of Section 2 hereof.
Compelled Disclosure: If, in the opinion of its legal counsel, the Receiving Party is compelled by law, legal process, regulation or stock exchange rule to disclose any of the Disclosing Party’s Confidential Information, the Receiving Party shall provide the Disclosing Party with prompt written notice and provide its reasonable cooperation (at the Disclosing Party’s expense) so that the Disclosing Party may seek a protective order or other appropriate remedy or waive compliance with the provisions of this Agreement. If, in the absence of a protective order, other remedy or waiver hereunder, the Receiving Party is nonetheless, in the opinion of counsel, compelled to disclose the Confidential Information, then the Receiving Party may disclose that portion of the Confidential Information that is compelled to be disclosed without liability hereunder.
Return of Confidential Information: All Confidential Information submitted to the Receiving Party under this Agreement will remain the property of the Disclosing Party and may be recalled by the Disclosing Party at any time. Within five (5) business days after receipt of a written request from the Disclosing Party or within five (5) business days after expiration or termination of this Agreement, the Receiving Party shall return all Confidential Information and shall destroy all materials created by the Receiving Party based on any Confidential Information (including all copies, reproductions, facsimiles, notes, and all information maintained in any computer memory, storage media or other electronic form).Upon request, the Receiving Party shall certify to the Disclosing Party that it has discharged its obligations under this Section.
Future Transactions. The parties expressly agree that this Agreement shall serve only to preserve the confidentiality of their respective Confidential Information exchanged by and between the parties in furtherance of evaluation of the Transaction. The parties anticipate that any future relationship by or between them shall be documented by further contract(s), such as a joint development, joint venture, supply, or other similar business agreement. This Agreement shall remain effective until:
(a) a business agreement is negotiated and executed by the parties, as contemplated by the exchange of Confidential Information; or
(b) the parties determine that a business relationship shall not be consummated with respect to any project. Consistent with Section 5 of this Agreement, any party hereto may request the return of any or all of its Confidential Information at any time.
No License or Rights: Neither the execution of this Agreement nor the furnishing of any information under this Agreement will be construed as granting the Receiving Party, either expressly or by implication, estoppel or otherwise, any license under or title to or right in any Confidential Information, or any invention, design, patent, copyright, or other form of intellectual property now or hereafter owned, created, developed or controlled by the Disclosing Party.
No Representation or Warranty: The Disclosing Party does not warrant or guarantee any of its Confidential Information in any way or for any purpose. The Disclosing Party makes no representations or warranties that the Confidential Information disclosed to the Receiving Party (a) is complete, exact, accurate, fit or sufficient for any particular purpose or for any use, or (b) will not infringe on proprietary rights of third parties.
Assignment: Neither party may assign or transfer this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party hereto, except that a party may assign or transfer this Agreement and all of its rights and obligations hereunder to an entity controlling, controlled by or under common control with such party or to a successor in ownership of all or substantially all of its assets or securities, which entity will expressly assume in writing the performance of the terms and conditions of this Agreement. No permitted assignment or transfer will relieve the transferring party of its obligations with respect to Confidential Information received by it prior to the assignment. Any attempted assignment or transfer in violation of this Section is void. Subject to the limitations set forth herein, this Agreement will inure to the benefit of and be binding upon the parties and their respective successors and assigns.
Relationship of the Parties: The relationship of the parties will be that of independent contractors, and nothing contained herein will be deemed to create any relationship of agency, joint venture or partnership. Neither party hereto will have any power to commit, contract for or otherwise obligate the other to any third person.
Entire Agreement; Choice of Law: This Agreement is the entire agreement between the parties and supersedes all other agreements and understandings relating to its subject matter. This Agreement (a) may be amended only by a written amendment duly executed by the parties and (b) will be governed by and construed in accordance with the laws of the State of South Carolina, USA, without giving effect to the choice of laws provisions thereof. Each of the parties submits to the jurisdiction of the courts located in Georgetown County, South Carolina in connection with any action brought under this Agreement, and waives all objections to jurisdiction and venue of such courts.
Injunctive Relief: The parties agree and acknowledge that the disclosure or improper use of any of the Confidential Information in violation of this Agreement will cause the Disclosing Party irreparable harm, the amount of which will be difficult to ascertain, and for which no adequate remedy exists at law; and, therefore, agree that, in addition to all other rights and remedies available at law or in equity, the Disclosing Party shall be entitled to preliminary and final injunctive relief enjoining and restraining any disclosure or improper use of the Confidential Information in violation of this Agreement. In the event of any legal proceeding between the parties arising from this Agreement, the prevailing party may recover from the other party all of its reasonable costs and expenses, including but not limited to attorneys’ fees and court costs.
Severability: If any provision of this Agreement is determined to be invalid or unenforceable in a final, non-appealable order issued by a court of competent jurisdiction, the provision shall be deleted from this Agreement and replaced by the court with a valid, enforceable provision which to the maximum extent permissible achieves the parties’ intent in agreeing to the original provision. The remaining provisions of this Agreement shall remain in full force and effect.
No Waiver: No failure or delay by either party in exercising any right under this Agreement is a waiver of its rights, and, to be effective, any waiver must be made in a writing signed by the party waiving its rights. No whole or partial waiver of either party’s rights under this Agreement is a waiver of any future exercise of those or any other rights under this Agreement, at law or in equity.
Working With Others: This Agreement is not intended and will not be construed to preclude the Receiving Party’s engagement in business or any other activity not dependent upon the use of the Disclosing Party’s Confidential Information (including, without limitation, competitive activities of the nature in which the other party is currently engaged or may become engaged and competitive activities in new product or other areas in which the other party may become engaged in the future) provided that the obligations of Section 2 are satisfied.
Priority Over Preprinted Terms: These terms are in lieu of and override any contrary terms or conditions, preprinted or otherwise, that may appear on any form used by either party (a) to purchase or offer to purchase samples, models, or prototypes from the other party, or (b) to acknowledge such a purchase or accept such an offer.
No Contract or Claim: This Agreement will not be construed in any manner to be an obligation to enter into a contract or to result in any claim whatsoever by either party against the other party for reimbursement of cost for any effort expended.
Language: This Agreement is written in the English language and the English language version shall prevail over any translation thereof, whether such translation is executed by the parties or not. All correspondence, notices or other communications between the parties pursuant to this Agreement shall be in the English language.
Authority. Each signatory to this Agreement represents hereby that he or she has the authority to execute and deliver the same on behalf of the party hereto for which such signatory is acting.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives effective as of the date first set forth below.