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. - NON-DISCLOSURE
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)
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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
- NEED TO KNOW DISCLOSURE
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. - TERM
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. - CONFLICT OF INTEREST
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.
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- COURT ORDERED DISCLOSURE
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. - WRITTEN NOTIFICATIONS
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. - NON-COMPETITION
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
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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)
(Individual)
Name: James McNally
Title: Disclosing Party
Date Signed: 02/24/2021
Address: 736 Thompson Ln. N.
Vine Grove, KY 40175 – and 40217
(Individual)
Name:
Company:
Title: Receiving Party
Date Signed:
Address:
(Firm)
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