This Mutual Non-Disclosure Agreement (this “Agreement”) made and entered into as of the date set forth below between KanehGenix, LLC, a Minnesota corporation, on behalf of itself and all of its affiliated and related entities, and the other party signatory to this Agreement.
1. Purpose. The parties wish to continue to explore a business opportunity of mutual interest and in connection with this opportunity, each party may disclose or have already disclosed to the other certain confidential technical and business information which the disclosing party desires the receiving party to treat as confidential.
2. Confidential Information. “Confidential Information” means any information disclosed previously or in the future by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects (including without limitation documents, prototypes, samples, plant and equipment, business information, financial information, business plans and strategies, intellectual property rights (including trade secrets and know-how), techniques, formulae, compositions, models, processes, information pertaining to customers, vendors, suppliers, business operation information, and research information and materials), which is designated as “Confidential”, “Proprietary” or some similar designation or, based on the circumstances, a party would reasonably expect to be confidential or proprietary in nature. Information communicated orally shall be considered Confidential Information if such information is confirmed in writing as being Confidential Information within a reasonable time after the initial disclosure. Confidential Information may also include information disclosed to a disclosing party by third parties. Confidential Information shall not, however, include any information that (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party’s files and records immediately prior to the time of disclosure; (iv) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; (v) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession; or (vi) is required by law to be disclosed by the receiving party, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure.
3. Non-Use and Non-Disclosure. Each party agrees not to use or disclose any Confidential Information of the other party for any purpose except to evaluate and engage in discussions concerning a potential business relationship or transactionbetween the parties. Each party agrees not to disclose any Confidential Information of the other party to third parties or to such party’s directors, officers, managers, employees, or agents, except to those directors, officers, managers, employees and agents of the receiving party or its Affiliates who are required to have the information in order to evaluate or engage in discussions concerning the contemplated business relationship, who have been informed of the receiving party’s obligations under this Agreement, and who are bound to the receiving party by an obligation of confidentiality at least as broad in scope as the receiving party’s obligations under this Agreement (each such person, an “Authorized Recipient” and all such persons “Authorized Receipients”). Each party is responsible for any breach of this Agreement by Authorized Recipients of that party. Neither party shall reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the other party’s Confidential Information and which are provided to the party hereunder. “Affiliate” means any legal entity that directly or indirectly controls, is controlled by, or is under common control with a party to this Agreement. An entity is considered to control another entity if it owns, directly or indirectly, more than 50% of the total voting securities or other similar voting rights of such entity.
4. Maintenance of Confidentiality. Each party agrees that it shall take all steps or measures necessary, proper or advisable to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own most highly confidential information and shall ensure that its Authorized Recipients who have access to Confidential Information of the other party have signed a non-use and non-disclosure agreement in content at least as protective of Confidential Information of the other party as the provisions hereof or are otherwise bound to the receiving party by an obligation of confidentiality at least as broad in scope as the receiving party’s obligations under this Agreement, prior to any disclosure of Confidential Information to such employees. Neither party shall make any copies of the Confidential Information of the other party unless the same are previously approved in writing by the other party. Each party shall reproduce the other party’s proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original. Each party shall immediately notify the other party in the event of any unauthorized use or disclosure of the other party’s Confidential Information.
5. No Obligation. Nothing herein shall obligate either party to proceed with any transaction between them, and each party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement concerning the business opportunity.
6. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. EACH PARTY MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE.
7. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which have been disclosed by either party to the other party, and all copies thereof which are in the possession of the other party, shall be and remain the property of the disclosing party and shall be promptly returned to the disclosing party upon such party’s written request.
8. Ownership; No License. Each party acknowledges and agrees that the Confidential Information of the other party is proprietary to, and is the sole, exclusive and confidential property and trade secret of, the other party, and that the other party expressly maintains all rights to the Confidential Information, including, without limitation, all copyright, patent, trademark and trade secret protections as provided by law. Nothing in this Agreement is intended to grant any rights to either party under any patent, mask work right or copyright or trademark of the other party, nor shall this Agreement grant any party any rights in or to the Confidential Information of the other party except as set forth herein.
9. Term. The obligations of each receiving party hereunder shall survive until such time as all Confidential Information of the other party disclosed hereunder becomes publicly known and made generally available through no action or inaction of the receiving party. To the extent that any Confidential Information pertains to trade secrets, the non-disclosure obligations under this Agreement continue indefinitely.
10. Remedies. Each party agrees that any violation or threatened violation of this Agreement may cause irreparable injury to the other party, entitling the other party to seek injunctive relief in addition to all legal remedies.
11. Miscellaneous. This Agreement shall bind and inure to the benefit of the parties hereto and their successors and assigns. This Agreement shall be governed by the laws of the State of Minnesota, without reference to conflict of laws principles. Exclusive venue for any dispute under this Agreement is Minneapolis, Minnesota. This document contains the entire agreement between the parties with respect to the subject matter hereof, and neither party shall have any obligation, express or implied by law, with respect to trade secret or proprietary information of the other party except as set forth herein. If any provision of this Agreement is found to be illegal or unenforceable, the other provisions shall remain effective and enforceable to the greatest extent permitted by law. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties hereto. The parties may execute this Agreement in counterparts, each of which is deemed an original, but all of which together constitute one and the same agreement.
TERMS OF THE ABOVE DOCUMENT (THE “NONDISCLOSURE AGREEMENT”) ARE HEREBY UNDERSTOOD, ACCEPTED AND AGREED TO BY THE AUTHORIZED REPRESENTATIVE OF EACH PARTY, AS OF THE SIGNING DATE BELOW: