The Outlines of Non-Disclosure Agreement (NDA)
This Agreement is made and entered into as of this 30th day of September 2021, (referred to as the "Effective Date") by and between Welding & Joining Management Group, a Colorado corporation, acting by and through Jesse A. Grantham, Enterprises, Inc., having a place of business at 3756 Monarch Street, Frederick CO 80516, U..S.A. (referred to as "WJMG"), and "Company" having a place of business (referred to as "Company"); both of whom are also referred to individually as the "Party" or collectively as the "Parties".
WHEREAS, the Parties desire to exchange business and technical information of a proprietary nature relating to welding standards and vibratory stress relief (referred to as "the Program") such proprietary information relating to the Program being referred to as "Proprietary Information".
WHEREAS, the Parties desire to enter into an Agreement to establish terms and conditions applicable to the exchange of such Proprietary Information.
NOW, THEREFORE, in consideration of the above premises and the mutual covenants herein contained, the Parties hereto agree as follows:
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For purposes of this Agreement, Proprietary Information shall mean all information or know-how of any kind that the disclosing party treats as proprietary or confidential including, but not limited to, all ideas, designs, or inventions; research and development; software and source codes; specifications, manufacturing and engineering processes; business plans; customer information and customer lists; operational data; implementation schedules; financial statements and forecasts; prices and pricing information; and product development plans and information belonging to suppliers and/or customers.
2. Each Party shall mark the Proprietary Information to which this Agreement applies at the time of disclosure to the other. No obligation shall arise with respect to Proprietary Information unless fixed in writing or other tangible form, except for any orally transmitted Proprietary Information identified as proprietary at the time of transmittal and confirmed in writing by the disclosing Party within twenty (20) working days of the original oral transmittal. All Proprietary Information supplied hereunder by either Party shall be in the English language and in the dimensions and weight systems in use by WJMG or Company. The recipients of Proprietary Information disclosed under this Agreement shall safeguard such information with the degree of care normally used to protect its own Proprietary Information. For a period of ten (10) years from receipt of Proprietary Information, the recipient agrees to maintain such Proprietary Information in strict confidence, to refrain from disclosure to third parties, and to use such Proprietary Information only for evaluation and for no other use without the prior written consent of the disclosing Party.
4. There shall be no liability for breach of the above restrictions on use and disclosure of Proprietary Information:
a) If the recipient can show that such information was generally available to the public;
b) If such information is in a written record in the recipient's files prior to its receipt from disclosing Party;
c) If the recipient at any time lawfully obtains said information from a third party under circumstances permitting its disclosure by the recipient to others;
d) If the information falls into the public domain through no fault of the recipient;
e) If such information is disclosed with the prior written consent of the disclosing Party;
f) If such information is developed by the recipient independent of any Proprietary Information received from the disclosing Party;
g) If disclosure of such information is required by law or under any order issued by a court of competent jurisdiction.
5. This Agreement shall continue for a term of three (3) years from the Effective Date unless terminated by the disclosing Party at its sole discretion upon thirty days' written notice to the other Party (or by both Parties mutually if both Parties have submitted Proprietary Information under this Agreement) which termination shall be accompanied by instructions for return of all Proprietary Information or destruction of all copies thereof. The rights and obligations regarding confidentiality and restrictive use under this Agreement shall survive any termination for the period set forth in Article 3 herein unless shortened by an act of Article 4 herein.
6. It is agreed by both Parties that this Agreement is the only existing Agreement between the Parties concerning Proprietary Information to be exchanged between the Parties with regard to the Program and that it supersedes and replaces any and all existing Agreements, written, oral and otherwise, concerning the exchange of Proprietary Information within the Program.
7. It is further agreed that no modification to this Agreement shall be binding on either Party unless such modification is in writing and signed by the individuals executing this Agreement or their respective successors.
8. Each Party represents and warrants to the other Party that the disclosure of Proprietary Information hereunder does not and will not violate any proprietary rights of any third parties or any contractual obligations the disclosing Party rnay have to any third party.
9. All Proprietary Information disclosed hereunder shall remain the property of the disclosing Party. Nothing in this Agreement shall be construed as granting any right or license to the Party receiving Proprietary Information under any patent or future patent owned or controlled by the disclosing Party.
10. Nothing in this Agreement shall grant to either Party the right to make commitments of any kind on behalf of the other Party. This Agreement is not intended to be a joint venture, partnership, or other formal business organization, and neither Party to this Agreement shall have the right or obligation to share any of the profits or bear any of the losses of the other Party under any contract or subcontract performed in conjunction herewith.
11. This Agreement shall not be construed in any manner to be an obligation to enter into any additional agreement or to result in any claim whatsoever by one Party against the other for reimbursement of costs for any effort expended.
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No liability is assumed by either Party for any claim, including patent or copyright infringement, based upon or arising out of the other Party's use of the Proprietary Information. NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PURPOSE, ARE PROVIDED BY EITHER PARTY IN DISCLOSING ANY PROPRIETARY INFORMATION UNDER THIS AGREEMENT, AND ALL SUCH WARRANTIES ARE EXPRESSLY DISCLAIMED BY BOTH PARTIES. It is understood that neither Party makes any representation as to the current condition or completeness of the Proprietary Information or as to the future availability of any product which incorporates the Proprietary Information; that the Proprietary Information is furnished by the Parties on an as-is basis; and that each Party disclaims any responsibility for supplying support, updates, changes or corrections relative to the Proprietary Information.
13. Neither of the Parties to this Agreement shall assign or transfer any of its rights or obligations hereunder without the prior written consent of the other Party hereto, except to a successor in ownership of substantially all of the assets of the entire business of the assigning Party relating to the Program. When assigned in accordance with this Article, this Agreement, and all rights, obligations and duties hereunder, will inure to the benefit of and will be binding on the assignees or successors in interest of the parties.
14. This Agreement shall be governed and construed according to the laws of the State of New York, United States of America, without reference to its conflicts or choice of law rules; and is subject to all laws, regulations and administrative acts now or hereafter in effect of the United States Government and its departments and agencies including, but not limited to, all United States laws and regulations relating to exports and re-exports and to all administrative acts of the U.S. Government pursuant to such laws and regulations.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives as of the date and year first above written.