Restful Pump, Inc.
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RESTFUL PUMP, INC. NON-DISCLOSURE AGREEMENT
This Nondisclosure Agreement (this “Agreement”), effective (“Effective Date”), is entered into by and between Restful Pump, Inc., a Massachusetts corporation located at the address set forth on the signature page hereto or otherwise provided to the Recipient (“Discloser”) and located at the address set forth on the signature page hereto or otherwise provided to the Discloser (“Recipient”) (each herein referred to individually as a “Party,” or collectively as the “Parties”). In consideration of the covenants and conditions contained herein, the Parties hereby agree to the following:
The Parties may or wish to explore a business opportunity of mutual interest (the “Opportunity”), and in connection with the Opportunity, Discloser has disclosed, and may further disclose to Recipient certain confidential technical and business information that Discloser desires Recipient to treat as confidential. Without limiting the foregoing, the Opportunity shall include the matters, if any, set forth in the Appendix attached hereto.
2. CONFIDENTIAL INFORMATION
A. Definition. “Confidential Information” means any information disclosed by Discloser to Recipient, including any information disclosed prior to the Effective Date, either directly or indirectly in writing, orally, or by inspection of tangible objects (including, without limitation, research, product plans, products, services, equipment, customers, markets, software, inventions, processes, designs, drawings, hardware, formulations, specifications, product configuration information, marketing and finance documents, prototypes, samples, data sets, and equipment), whether or not designated as “confidential” at
the time of disclosure, and which would reasonably be considered as confidential in nature. Confidential Information may also include information of a third party that is in Discloser’s possession and is disclosed to Recipient under this Agreement.
Without limiting the foregoing, Confidential Information shall include the items, if any, set forth in the Appendix attached hereto. Unless the Discloser provides its consent to the contrary, Confidential Information also includes the existence of this Agreement and its terms and the fact that Recipient is evaluating Discloser’s Confidential Information.
B. Exceptions. Confidential Information shall not, however, include any information that Recipient can establish: (i) was publicly known or made generally available without a duty of confidentiality prior to the time of disclosure to Recipient by Discloser; (ii) becomes publicly known or made generally available without a duty of confidentiality after disclosure to Recipient by Discloser through no action or inaction of Recipient; or (iii) is in the rightful possession of Recipient without confidentiality obligations at the time of disclosure by Discloser to Recipient as shown by Recipient’s then contemporaneous written files and records kept in the ordinary course of business, as evidenced by written records of Recipient created contemporaneously with such development.
C. Compelled Disclosure. If Recipient becomes legally compelled to disclose any Confidential Information, other than pursuant to a confidentiality agreement, Recipient will, to the extent not prohibited by applicable law, provide Discloser prompt written notice of such disclosure and will assist Discloser in seeking a protective order or another appropriate remedy. If Discloser waives Recipient’s compliance with this Agreement or fails to obtain a protective order or other appropriate remedy, Recipient will furnish only that portion of the Confidential Information that is legally required to be disclosed; provided that any Confidential Information so disclosed shall maintain its confidentiality protection for all purposes other than such legally compelled disclosure.
3. NON-USE AND NON-DISCLOSURE
Recipient shall not use any Confidential Information for any purpose except to evaluate and engage in discussions concerning the Opportunity. Except as provided in Section 2, Recipient shall not disclose any Confidential Information or permit any Confidential Information to be disclosed, either directly or indirectly, to any third party without Discloser’s prior written consent. Recipient shall not disclose Confidential Information or permit the disclosure of Confidential Information to its employees, except that Recipient may disclose Confidential Information to those employees of Recipient who are required to have
the information in order for Recipient to evaluate or engage in discussions concerning the Opportunity; provided that such employee has signed a non-use and non-disclosure agreement in content at least as protective as the provisions hereof, prior to any disclosure of Confidential Information to such employee. Recipient shall not reverse engineer, disassemble, or decompile any prototypes, software, samples, or other tangible objects that embody the Confidential Information.
4. MAINTENANCE OF CONFIDENTIALITY
Recipient shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the foregoing, Recipient shall take at least those measures it employs to protect its own most highly confidential information. Recipient shall not make any copies of the Confidential Information unless the same are previously approved in writing by Discloser. Recipient shall reproduce Discloser’s proprietary rights notices on any such authorized copies, in the same manner in which such notices were set forth in or on the original. Recipient shall immediately notify Discloser of any unauthorized use or disclosure, or suspected unauthorized use or disclosure, of Confidential Information promptly after Recipient becomes aware of such use or disclosure or suspected use or disclosure.
5. NO OBLIGATION
Nothing in this Agreement 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 Opportunity. Nothing in this Agreement shall be construed to restrict Discloser’s use or disclosure of its own Confidential Information.
6. NO WARRANTY
ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS.” DISCLOSER MAKES NO WARRANTIES, EXPRESS, IMPLIED, OR OTHERWISE, REGARDING THE ACCURACY, COMPLETENESS OR PERFORMANCE OF ANY CONFIDENTIAL INFORMATION, OR WITH RESPECT TO NON-INFRINGEMENT OR OTHER VIOLATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY OR OF RECIPIENT.
7. RETURN OF MATERIALS
All documents and other tangible objects containing or representing Confidential Information and all copies or extracts thereof or notes derived therefrom that are in the possession or control of Recipient shall be and remain the property of Discloser and shall be promptly returned to Discloser upon the termination or expiration of this Agreement or, if requested by Discloser, destroyed (with written proof of such destruction), each upon Discloser’s request.
8. NO LICENSE
Nothing in this Agreement is intended to grant any rights to Recipient under any intellectual property right of Discloser, nor shall this Agreement grant Recipient any rights in or to the Confidential Information except as expressly set forth in this Agreement.
The obligations of Recipient under this Agreement shall survive for a period of (5) years from the later to occur of (i) the termination or expiration of this Agreement and (ii) the date upon which the Recipient shall have complied with its obligations to return or destroy the Confidential Information pursuant to Section 7 or, with respect to trade secrets, until such time as all Confidential Information disclosed hereunder becomes publicly known or made generally available through no action or inaction of Recipient.
Recipient agrees that any violation or threatened violation of this Agreement will cause irreparable injury to Discloser, entitling Discloser to seek injunctive relief in addition to all legal remedies without showing or proving any actual damage and without any bond being required to be posted.
11. RECIPIENT INFORMATION
Discloser does not wish to receive any confidential information from Recipient, and Discloser assumes no obligation, either expressed or implied, with respect to any information disclosed by Recipient to Discloser.
This Agreement shall bind and inure to the benefit of the Parties and their respective successors and permitted assigns; except that Recipient may not assign or otherwise transfer this Agreement, by operation of law or otherwise, (including by merger, reorganization, consolidation, change of control, or sale of all or substantially all of Recipient’s assets to which this Agreement pertains), without written consent of Discloser. Any assignment or transfer of this Agreement in violation of the foregoing shall be null and void. This Agreement will be interpreted and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to conflict of law principles. Recipient hereby represents and warrants that the persons executing this Agreement on its behalf have express authority to do so, and, in so doing, to bind Recipient thereto. This Agreement contains the entire agreement between the Parties with respect to the Opportunity and supersedes all prior written and oral agreements between the Parties regarding the Opportunity, except for the prior agreements, if any, between the Parties regarding the Opportunity specifically identified on the Appendix hereto. If a court or other body of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be invalid or unenforceable, such provision will be enforced to the maximum extent permissible so as to effect the intent of the Parties, and the remainder of this Agreement will continue in full force and effect. No provision of this Agreement may be waived except by a writing executed by the Party against whom the waiver is to be effective. A Party’s failure to enforce any provision of this Agreement shall neither be construed as a waiver of the provision nor prevent the Party from enforcing any other provision of this Agreement. No provision of this Agreement may be amended or otherwise modified except by a writing signed by the Parties to this Agreement. The Parties may execute this Agreement in counterparts, each of which shall be deemed an original, but all of which together constitute one and the same agreement. This Agreement may be delivered by electronic or facsimile transmission, and electronic or facsimile copies of executed signature pages shall be binding as originals.
IN WITNESS WHEREOF, the Parties by their duly authorized representatives have executed this Nondisclosure Agreement as of the Effective Date.
RESTFUL PUMP, INC.
Name: Micolene Boddie
125 Church Street, Unit 90-171
Pembroke, MA 02359
Entity Name (if applicable)
1. Pursuant to Section 1 of this Agreement, “Opportunity” has the meaning set forth therein and shall
also include the following matters (if any):
2. Pursuant to Section 2A of this Agreement, “Confidential Information” has the meaning set forth
therein and shall also include the following information (if any):
3. Pursuant to Section 12 of this Agreement, this Agreement contains the entire agreement between
the Parties with respect to the Opportunity and supersedes all prior written and oral agreements
between the Parties regarding the Opportunity, except for the following prior agreements between
the Parties regarding the Opportunity (if any):
Each party agrees that the electronic signatures, whether digital or encrypted, of the parties included in this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures.