MUTUAL CONFIDENTIALITY AGREEMENT
This agreement (the “Agreement”) dated , 2021 (the “Effective Date”), is between
CHRISTIAN THOMSEN (“Thomsen”) of 25245 S DOOLITTLE DR MONEE , IL 60449, and
LEIGH HUBNER (“Hubner”) of 145 MALLARD LANE LOCUST GROVE, GA 30248.
1. Background. Thomsen and Hubner (the “parties”) intend to engage in discussions and negotiations concerning the possible sale/purchase of the business Plane Perfect. In the course of such discussions and negotiations and in the
course of any such business relationship, it is anticipated that each party will disclose or deliver to the other party and to the other party’s subsidiaries, affiliates, employees, agents, and advisors (collectively, “Representatives”) certain of its Proprietary Information (as defined below) for the purposes of enabling the other party to evaluate the feasibility and desirability of such business relationship (the “Purposes”). The parties have entered into this Agreement in order to assure the confidentiality of such Proprietary Information in accordance with the terms of this Agreement. As used in this Agreement, the party disclosing Proprietary Information is referred to as the “Disclosing Party”; the party receiving such Proprietary Information is referred to as the “Recipient.”
2. Proprietary Information. The term “Proprietary Information” shall mean all trade secrets or confidential or proprietary information identified as such at the time of oral disclosure or conspicuously designated as such in writing by the Disclosing Party, whether by letter or by the use of an appropriate proprietary stamp or legend, prior to or at the time
any such trade secret or confidential or proprietary information is disclosed by the Disclosing Party to the Recipient, including, without limitation, information about customers, clients, partners, vendors, independent contractors, projects, project-related materials, development materials, budgets, schedules, pricing, sales and marketing plans, and financial data. “Proprietary Information” shall also be deemed to include: (a) any notes, analyses, compilations, studies, interpretations, memoranda or other documents prepared by the Recipient or its Representatives which contain, reflect or are based upon, in whole or in part, any Proprietary Information furnished to the Recipient or its Representatives pursuant to this Agreement; and (b) the existence or status of, and any information concerning, the discussions between the parties concerning the possible establishment of a business relationship.3. Scope of Agreement. This Agreement shall apply to all Proprietary Information disclosed between the parties from the Effective Date until one (1) year thereafter. The obligations imposed by this Agreement shall continue with respect to a particular item of Proprietary Information until the first anniversary of the disclosure of such Proprietary Information to Recipient pursuant to this Agreement; provided that any personally identifiable information, project-related materials, development materials, budgets, schedules, or financial information that may be shared hereunder shall remain subject to the obligations hereunder until such time as such information is generally known to the public other than due to the actions of the Recipient.
4. Use and Disclosure of Proprietary Information. The Recipient and its Representatives shall use the Proprietary Information of the Disclosing Party only for the Purposes and such Proprietary Information shall not be used for any other purpose without the prior written consent of the Disclosing Party. The Recipient and its Representatives shall hold in confidence the Proprietary Information with at least the same degree of care as it uses to keep its own proprietary information confidential, which shall in no event be less than reasonable care, and shall not disclose any Proprietary Information of the Disclosing Party; provided, however, that the Recipient may make any disclosure of such information to which the Disclosing Party gives its prior written consent. Notwithstanding anything contained in this Agreement to the contrary,
this Agreement shall not prohibit the Recipient from
disclosing Proprietary Information of the Disclosing Party to the extent required in order for the Recipient to comply with applicable laws and regulations, provided that the Recipient provides prior written notice of such required disclosure to the Disclosing Party and takes reasonable and lawful actions to avoid and/or minimize the extent of such disclosure.
5. Limitation on Obligations. The obligations of the Recipient specified in Section 4 shall not apply, and the Recipient shall have no further obligations, with respect to any Proprietary Information to the extent that such Proprietary Information: (a) is generally known to the public at the time of disclosure or becomes generally known without the Recipient or its Representatives violating this Agreement; (b) is in the Recipient’s possession at the time of disclosure, as evidenced by contemporaneous records; (c) becomes known to the Recipient through disclosure by sources other than the Disclosing Party without such sources violating any confidentiality obligations to the Disclosing Party; (d) is independently developed by the Recipient without reference to or reliance upon the Disclosing Party’s Proprietary Information; or (e) is disclosed by the Disclosing Party to a third party without any obligation of confidentiality.
6. Ownership of Proprietary Information. The Recipient agrees that it shall not receive any right, title or interest in, or any license or right to use (other than for the Purposes), the Disclosing Party’s Proprietary Information or any patent, copyright,
trade secret, trademark or other intellectual property rights therein, by implication or otherwise. Each of
the parties represents, warrants and covenants that the
trade secrets which it discloses to the other party pursuant to this Agreement have not been stolen, appropriated, obtained or converted without authorization. Except for the foregoing, the Proprietary Information is provided “as is” and without warranty, express or implied, as to accuracy, completeness, or performance.
7. Other Business. Disclosing Party understands that Recipient may currently or in the future be developing information internally, or receiving information from other parties, that may be similar to or competitive with Disclosing Party’s information. Accordingly, nothing in this Agreement will be construed as a representation or suggestion that Recipient will not develop, or have developed for it, or acquire any product, service, or business that, without violation of this Agreement, competes with the products, services, or business activities contemplated by Disclosing Party’s Proprietary Information.
8. Return of Proprietary Information. The
Recipient shall, upon the written request of the
Disclosing Party, return to the Disclosing Party or destroy (to the extent authorized by law) all Proprietary Information received by the Recipient or its Representatives from the Disclosing Party (and all copies and reproductions thereof). In addition, the Recipient shall, to the extent authorized by law, destroy: (i) any notes, reports or other documents prepared by the Recipient which contain Proprietary Information of the Disclosing Party; and (ii) any Proprietary Information of the Disclosing Party (and all copies and reproductions thereof) which is in electronic form or cannot otherwise be returned to the Disclosing Party. The Recipient’s legal counsel may retain one copy of the Disclosing Party’s Proprietary Information for archival purposes only.
9. Miscellaneous.
(a) This Agreement supersedes all prior agreements, written or oral, between the parties relating to the subject matter of this Agreement. This Agreement may not be modified, changed or discharged, in whole or in part, except by an agreement in writing signed by the parties.
(b) This Agreement will be binding upon and inure to the benefit of the parties and their respective heirs, successors and assigns.
(c) This Agreement shall be construed and interpreted in accordance with the internal laws of the State of Georgia, without giving effect to its choice of law principles.
(d) The provisions of this Agreement are necessary for the protection of the business and goodwill of the parties and are considered by the parties to be reasonable for such purpose. In the event of any breach or threatened breach, which the Parties are unable to resolve by themselves, the Parties agree to refer the matter to an independent arbitrator appointed by mutual agreement for final determination. In the event of such arbitration each party shall pay their own costs with the cost of the arbitration to be shared equally between the parties.
(e) For the convenience of the parties, this Agreement may be executed in counterparts, which may be exchanged via facsimile or other electronic means, each of which shall be deemed to be an original, and both of which taken together, shall constitute one agreement binding on both parties.
[Signature Page Follows]
This Mutual Confidentiality Agreement is agreed to by the Parties as of the day and year first set forth above.
CHRISTIAN THOMSEN LEIGH HUBNER
By: By:
Title: Title:
Date: Date:
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