CONFIDENTIAL NON- DISCLOSURE AGREEMENT (NDA)
For good and valuable consideration, the receipt of which is hereby acknowledged, this Confidentiality Agreement (this “Agreement”) is made and entered into as of this September 3, 2020, by and between (James McNally, McNally Construction, LLC, hereinafter referred to as the Disclosing Party and (Print name here: _______________________________ and any of their employees, agents and any crew of workers), hereinafter referred to as the “Receiving Party”) in connection with the discussions between the Disclosing Party and the Receiving Party concerning business transactions.
- CONFIDENTIALITY CLAUSE
Disclosing Party has agreed to exchange certain financial, operational and other information concerning its business, including, but not limited to, discoveries, developments, designs, improvements, inventions, formulas, software programs, processes, techniques, know-how, data, research techniques, scripts, customer and supplier lists, marketing, sales or other financial or business information or trade secrets or other confidential information related to the business, products, methods, systems, practices, processes, formulae, or customs of the other, which he, she, or it has become possessed during the duration of the Agreement, and all derivatives, improvements and enhancements to any of the above and has also agreed that its discussions concerning the business will proceed in strict confidence and will not divulge or reveal to any person, firm or corporation directly or indirectly and furthermore will not disclose any financial information, including, but not limited to, loans, earnings, finances and assets, which hereafter may be acquired. The parties will proceed with the Discussions with the understanding, and subject to the requirement, that each party will abide by the terms of this Agreement and that any Evaluation Materials which Disclosing Party discloses to the Receiving Party will be held in accordance with the provisions hereof.
In addition to the above, from and at all times after the date of its receipt of any Confidential Information. Also, the parties agree not to disclose any such information obtained from the other party, including without limitation any such proprietary information that may have been provided prior to the date hereof in the course of the parties’ discussions regarding the potential transactions:
- each party shall restrict (and affirms that it has restricted) its use of the other’s Confidential Information strictly to the support of its evaluation of the potential transactions under discussion, and shall use (and affirms that it has used) reasonable care to prevent the disclosure thereof, which shall involve at least the same level of effort to avoid disclosure as it employs to prevent disclosure of comparable proprietary information or materials of its own.
- Receiving party shall not disclose any information ranging from documentation to finances or any subject matter which he is privy to in the course of the subsisting contractual relationship to any third party without the prior written consent from the disclosing party in each instance
Each party will be entitled to make restricted disclosures of some or all the other’s Confidential Information to such party’s affiliated and subsidiary companies, employees, attorneys, accountants and advisors, provided that such disclosures shall be limited in scope on a need-to-know basis in connection with the business , and that the recipients shall be
informed of the confidentiality of such information and bound to protect it as provided herein.
Unless extended by mutual written agreement, the term for the provision of Confidential Information between the parties hereunder shall expire seven years following the first date signed below or when the parties hereto cease to work together. At that time, or upon the earlier conclusion of the discussions regarding such potential business transactions, or at any time upon demand by the disclosing party, all
tangible items bearing or disclosing any of the Confidential Information, including without limitation, copies in any form (whether stored electronically, magnetically, on paper, or otherwise), photographs, memoranda, duplicates or notes taken by or provided to the receiving party, shall be returned or otherwise delivered to the disclosing party.
The parties covenant and warrant that they have not executed and are not now a party to any agreement or assignment in conflict herewith and that they will not enter into or execute any agreement or assignment in conflict herewith.
- NON CONFIDENTIAL INFORMATION
The term Confidential information shall not include, however, any information which is or becomes (a) generally available to the public other than as a result of a disclosure in violation of this Agreement, or (b) available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party, provided that such source is not known by the Receiving Party to be prohibited from disclosing the information to the Receiving Party by a contractual, legal or fiduciary obligation to the Disclosing Party.
Confidential Information that is required to be disclosed by order, subpoena, statute or regulation in a situation affording the receiving party no meaningful alternative may be disclosed to the extent so required provided that the receiving party shall use its best efforts to give the disclosing party prior notice of any such disclosure so as to afford the disclosing party a reasonable opportunity to seek, at the expense of the disclosing party, such protective orders or other relief as may be available in the circumstances.
Any notices hereunder shall be in writing and delivered in person, by facsimile that produces a confirmation of receipt, or by certified mail, to the parties at the respective addresses stated on the signature page hereof, or such substituted address as a party may by notice have given to the other.
Each party agrees not to settle, dispose, or give away any information to any person, or persons, or firms or corporations, any information acquired by virtue of his relationship with the other party any information acquired by the relationship and he will not in any way divert or attempt to divert or take away any of the customers of the other party. Each party agrees that, except with the prior written consent of the other, they will not directly or indirectly solicit, divert, attempt to take away or interfere with any client of the other party. nor own, manage, operate, control, owner representatives, be employed by, participate in, or otherwise engage in, or permit their name to be used by or in connection with any business relating to the disclosing parties area of service lead, procurement & specializing for a period of _________ years from the date of the termination of the business relationship between the parties.
- BINDING AGREEMENT
This Agreement shall bind the receiving party and their successors, personal representatives, and assigns. Neither party shall hereby be deemed to have waived any other rights or remedies it may have in law or equity, nor to have waived any of its rights under this Agreement unless, nor only to the extent, it does so by specific written waiver signed by an officer. The receiving party acknowledges that any breach of this Agreement may cause irreparable harm to the disclosing party, and agrees that the remedies for breach may include injunctive relief against such breach, in addition to damages and other available remedies. The prevailing party shall be entitled to the award of its reasonable attorneys’ fees in any action to enforce this Agreement.
- LEGAL JURISDICTION
This Agreement shall be governed by and construed in accordance with the laws of the States of Kentucky and Indiana, without regard to any conflicts of law principles to the contrary. If any provision of this Agreement is held to be invalid or unenforceable to any extent in any context, it shall nevertheless be enforced to the fullest extent allowed by law in that and other contexts, and the validity and force of the remainder of this Agreement shall not be affected thereby. In the event legal action is taken, the losing party shall pay the attorney fees and court costs (pre and post judgment) of the prevailing party.
Therefore, the parties have signed this Agreement or caused it to be signed by their duly authorized officers:
McNally Construction, LLC (SMD and other DBA’s)
Name: James McNally
Title: Disclosing Party
Date Signed: 02/24/2021
Address: 736 Thompson Ln. N.
Vine Grove, KY 40175 – and 40217
Title: Receiving Party
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