Mutual Confidentiality and Non-Disclosure Agreement
Company may be interested in entering into a certain business transaction with PayBev, whether directly or indirectly (the “Transaction”), regarding a system of documentation of Company’s beverage line, and in its evaluation of such a potential transaction, Company may disclose certain sales, purchase and inventory information to PayBev and PayBev may disclose certain proprietary systems information to Company. Each party may be a disclosing party (a “Disclosing Party”) to the other party (the “Recipient”) in connection with providing such information (collectively, the “Evaluation Materials”). This Agreement is executed and delivered in consideration of each party’s furnishing such Evaluation Materials. Parties thereby acknowledge and agree that:
The Evaluation Materials furnished by Disclosing Party to Recipient will only be used by Recipient as set forth above and for no other purpose. Nothing in this Agreement shall divest the Disclosing Party of any of its right, title or interest in and to any Evaluation Material. Recipient will not use or disclose all or any part of the Evaluation Materials in any manner that would violate any applicable trademark, copyright, law, regulation or order. Upon the Disclosing Party’s request, Recipient shall destroy or return to the Disclosing Party all Evaluation Materials that are in the custody or possession of Recipient and were obtained by Recipient from the Disclosing Party related to the Transaction, and shall certify to such destruction or return in writing.
Without the prior written consent of the Disclosing Party, Recipient will not disclose all or any part of the Evaluation Materials, except that Recipient shall have the right to disclose the Evaluation Materials if Recipient’s disclosure thereof is (a) to attorneys, accountants or employees of Recipient that are directly involved in the Transaction (each, a “Representative”, and collectively, the “Representatives”), each of which has been advised that by receiving the Evaluation Materials those Representatives are agreeing to treat such confidential materials confidentially; or (b) required by any applicable law, rule, regulation or order, or Recipient is legally compelled to disclose; provided that (i) Recipient agrees to promptly notify the Disclosing Party of the existence, terms and circumstances surrounding such a request so that Disclosing Party may seek an appropriate protective order or waive compliance with the provisions of this Agreement, and (ii) if, failing the entry of a protective order or the receipt of a waiver hereunder, if in the opinion of Recipient’s counsel, Recipient is compelled to disclose all or a portion of the Evaluation Materials or else stand liable for contempt or suffer other censure or significant penalty, Recipient may disclose the Evaluation Materials that its counsel advises that it is compelled to disclose and will exercise reasonable efforts to obtain assurance that confidential treatment will be accorded to that Evaluation Material that is so being disclosed. In all instances, Recipient shall take all reasonable steps necessary to enforce the provisions of this Agreement and shall be responsible for any breach of this Agreement including any breach by any of its Representatives.
The term “Evaluation Materials” shall not include any information which:
Recipient possessed prior to the date on which it was furnished to Recipient by the Disclosing Party;
has entered the public domain other than by breach of this Agreement; or
becomes available to Recipient from a source other than the Disclosing Party provided that such source is not known or suspected by Recipient to be bound by any obligation of confidentiality to the Disclosing Party with respect to such information
Both parties agree that money damages may not be a sufficient remedy for any breach of the terms of this Agreement by Recipient or any of its Representatives, and that, in addition to all other remedies at law or in equity to which the Disclosing Party may be entitled, the Disclosing Party may be entitled to seek specific performance and injunctive or other equitable relief as a remedy for any such breach.
If it is found in a final judgment by a court of competent jurisdiction (not subject to further appeal) that any term or provision hereof is invalid or unenforceable, the remaining terms and provisions hereof shall be unimpaired and shall remain in full force and effect.
Neither party hereto shall assign in whole or in part its rights or obligations under this Agreement without the express written consent of the other party; except that without any such consent a party may assign its rights and/or obligations under this Agreement to an acquirer of all or substantially all of the assets of that party. This Agreement shall be binding upon and shall inure to the benefit of each party’s successors and permitted assigns.
For the convenience of the parties, any number of counterparts of this Agreement may be executed by the parties hereto and each counterpart shall be deemed to be an original instrument, and when taken together shall constitute one and the same agreement.
This Agreement constitutes the entire agreement between the parties hereto and supersedes all prior agreements relating to the subject matter hereof, and shall be governed by the laws of the Commonwealth of Pennsylvania, and the parties hereby (i) consent to the jurisdiction and venue of any court located within the City of Philadelphia, and (ii) waive a trial by jury.
In the event any suit in law or equity is instituted by any party to enforce or interpret any part of this Agreement, or to recover damages for breach of this Agreement, the prevailing party shall be entitled to recover costs of suit incurred therein, and to also recover reasonable attorneys’ fees incurred by such prevailing party in connection therewith.
The foregoing obligations of all parties shall continue for a period of three (3) years from the date of last disclosure of Evaluation Materials by either party, unless a specific piece of Evaluation Materials disclosed becomes generally known to the public before such three (3) year period with respect to such Evaluation Materials. However, with respect to trade secrets, such obligations will survive for so long as such Evaluation Materials constitutes a trade secret under the Uniform Trade Secrets Act.