This Confidentiality and Non-Disclosure Agreement (this “Agreement”) sets forth the terms and conditions that will apply to the treatment of certain confidential or proprietary information relating to API International (the “Company”) in connection with discussions between the Company and, (the “Recipient” and, together with the Company, the “Parties” and each individually a “Party”).
1. Purpose. The Company intends to furnish the Recipient with certain information which is confidential or proprietary in nature for the purpose of evaluating and/or implementing a potential contracting, subcontracting or other business relationship involving the Parties or one or more of their respective affiliates (the opportunity, discussions, evaluations and negotiations are hereafter referred to as the “Purpose”), and, in connection with the Purpose, the Company desires the Recipient to treat as confidential and to use only in accordance with the terms of this Agreement.
2. Confidential Information. “Confidential Information” means any information about or concerning the Company disclosed by or on behalf of the Company to the Recipient or any of Recipient’s Representatives (as defined below) whether before, on or after the date hereof, in any form, whether in writing, orally, electronically or by inspection of physical premises, equipment or tangible objects, including, without limitation, the nature and existence of this Agreement, the Purpose and facts related thereto, documents, prototypes, samples, research, formulas, technical know-how, routines, algorithms and structures, processes, development, patents, trademarks, copyrights, inventions, designs, discoveries, sketches, products, methods, computer software code, industrial property rights, intellectual property and other proprietary rights, equipment sets, apparatus, layouts, marketing plans and strategies, product information, customer lists, prospective customers and suppliers, business plans, forecasts, profits, costs, pricing, financial data and information, procedures, research and development information, experimental work designs, details, specifications, engineering, procurement requirements, manufacturing, forecasts, and all other information relating to the Company or the Purpose, together with any and all analyses, notes, data, studies, compilations, memoranda or other documents prepared by the Recipient or any of its affiliates or any of its or its affiliates’ respective directors, officers, managers, employees, agents, representatives or advisors (including, without limitation, financial advisors, attorneys and accountants) (collectively, “Representatives”) that contain or are based upon such information. All of the foregoing information constitutes Confidential Information without regard to any labeling of such materials as confidential or other statement that such materials are confidential. Confidential Information shall not include information that (a) becomes generally known to the public after the time of disclosure to the Recipient or any of its Representatives by or on behalf of the Company, except if such public disclosure occurs as a result of a breach of this Agreement by the Recipient or any of its Representatives, (b) was in the possession of the Recipient on a non-confidential basis at or prior to the time of the disclosure of such Confidential Information from a source other than the Company, provided that such information is not known by the Recipient (after reasonable inquiry) to be subject to a confidentiality agreement with, or other direct or indirect obligation of confidentiality to, the Company or (c) was or is independently developed by the Recipient or any of its Representatives without use of, or reference to, the Company’s Confidential Information in breach of this Agreement.
3. Non-Use of Confidential Information. The Recipient and its Representatives agree not to use any Confidential Information of the Company for any purpose other than the Purpose, and the Recipient may disclose Confidential Information only to its Representatives who (a) need to have such information in connection with the Purpose, (b) have agreed to comply with the terms of this Agreement and (c) have been informed of the confidential nature of the Confidential Information and have agreed keep such information confidential.
4. Maintenance of Confidentiality. The Recipient shall take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the foregoing, the Recipient and its Representatives shall take at least those measures that it takes to protect its own confidential information. If contained in the original, the Recipient shall reproduce the Company’s proprietary rights notices on any copies of the Confidential Information made by the Recipient. Except as required by applicable law or regulation (subject to compliance with the terms of Section 5 of this letter agreement), the Recipient hereby agrees that neither it nor any of its Representatives will, directly or indirectly, discuss with or disclose to any person the fact that (a) the Parties have entered into this Agreement or the terms and conditions hereof, (b) Confidential Information has been made available to the Recipient or its Representatives, (c) such Party may be considering a Page 1 of 4 contracting, subcontracting or other business relationship, including, without limitation, any potential terms, conditions or facts with respect to a relationship and the status thereof, (d) the Parties have had, are having, or propose to have any discussions or negotiations with respect to a contracting, subcontracting or other business relationship or that such Party has conducted due diligence or attended management meetings with the other Party, or (e) if applicable, that the Parties have terminated or are otherwise no longer holding discussions or negotiations with respect to a contracting, subcontracting or other business relationship.
5. Required Disclosure. In the event that the Recipient or any of its Representatives is required by law, regulation or legal or judicial process (including by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Confidential Information, the Recipient shall provide the Company with prompt notice of any such request or requirement so that the Company may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. In the event that the Recipient or any of its Representatives are required to disclose any portion of the Confidential Information, the Recipient or such Representative may only disclose that portion of the Confidential Information that it is required to disclose by such law, regulation or legal or judicial process and exercise reasonable efforts to obtain assurance that confidential treatment will be accorded to that portion. The Recipient agrees that it will cooperate with the Company to obtain an appropriate protective order (at the Company’s sole expense) or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
6. No Obligation. The Recipient acknowledges nothing herein obligates the Company to proceed with any transaction or business relationship between them, and the Company reserves the right, in its sole discretion, to terminate the discussions and evaluations contemplated by this Agreement at any time.
7. No Warranty. All Confidential Information is provided “as is,” and the Company makes no warranty, express, implied or otherwise, regarding the accuracy, completeness or reliability of such information. Only those particular representations and warranties, if any, that are made in a definitive agreement in customary form with respect to the Purpose (the “Definitive Agreement”) when, as, and if it is executed, and subject to such limitations and restrictions as may be specified in such Definitive Agreement, will have any legal effect. No contract or agreement relating to the Purpose shall be deemed to exist, and neither the Company nor the Recipient shall have any legal obligation of any kind whatsoever with respect to the Purpose (including by virtue of this agreement), unless and until a definitive agreement has been executed and delivered. For purposes of this paragraph, the term “Definitive Agreement” does not include an executed letter of intent or any other preliminary written agreement, nor does it include any written or oral acceptance of an offer or bid on the part of the Recipient.
8. Return of Materials. All documents and other tangible objects containing or representing Confidential Information, including any notes or analyses, and all copies thereof that are in the possession of the Recipient or any of its Representatives shall be and remain the property of the Company and shall be immediately returned to Company or destroyed upon the Company’s request. Destruction of the Confidential Information in compliance with this paragraph shall be certified in writing by an authorized representative of the Recipient. Notwithstanding the foregoing, the Recipient and its Representatives shall be permitted to retain a single copy of the Confidential Information in accordance with internal document retention policies implemented by the Recipient or such Representatives, as the case may be, in order to comply with applicable law, regulation or internal compliance policies, or for actual litigation; provided that any Confidential Information so retained shall remain subject to the terms of this Agreement.
9. Non-Solicit. For a period of two (2) years from the date of this Agreement, the Recipient and its Representatives shall not, directly or indirectly, employ, engage as an independent contractor or solicit for employment or engagement or otherwise entice away or attempt to entice away from the Company any current or former employee of the Company; provided that nothing herein shall restrict or prohibit (i) the solicitation of any such person resulting from generalized searches for employees through the use of bona fide public advertisements in the media or any recruitment efforts conducted by any recruitment Page 2 of 4 agency, in each case that are not targeted specifically at such employees of the Company or (ii) the solicitation or employment of any such person following the six (6) month anniversary of the cessation of such person’s employment with the Company.
10. Rights to Confidential Information. Nothing in this Agreement is intended to grant any rights to the Recipient to any intellectual property of the Company, including, without limitation, to any patent, trademark or copyright of the Company, nor shall this Agreement grant the Recipient any license or other rights in or to Confidential Information, except as expressly set forth herein. Nothing in this Agreement shall be deemed to create an obligation to disclose Confidential Information.
11. Term. This Agreement shall terminate and be of no further force or effect three (3) years from the date hereof.
12. Assignment. This Agreement and the rights and obligations granted to and undertaken by the Parties shall not be assignable or transferable, in whole or in part, by either Party without the prior written approval of the other Party, which approval shall not be unreasonably withheld.
13. Remedies. The Recipient shall be responsible for any breaches or violations of the terms of this Agreement by itself or any of its Representatives. The Recipient agrees that any violation of this Agreement by itself or any of its Representatives would cause immediate and irreparable injury to the Company, and the Company shall be entitled to injunctive relief, specific performance or other equitable relief in addition to all legal remedies in connection with any such breach.
14. Governmental Authority. If any provision of this Agreement is found to violate any statute, regulation, rule, order or decree of any governmental authority, court, agency or exchange, such invalidity shall not be deemed to affect any other provision hereof or the validity of the remainder of this letter agreement, and such invalid provision shall be deemed deleted herefrom to the minimum extent necessary to cure such violation.
15. Governing Law; Submission to Jurisdiction. This Agreement shall be governed by the laws of the State of Oregon, without regard to conflict of laws principles. The Parties hereto irrevocably submit to the exclusive jurisdiction and venue of the state and federal courts located in the city of Portland, Oregon in any action or proceeding arising out of or relating to this Agreement, and irrevocably agree that all claims in respect of any such action or proceeding may exclusively be heard and determined in any such court.
16. Miscellaneous. This Agreement shall bind and inure to the benefit of the Parties hereto and their respective successors and assigns. This document contains the entire agreement between the Parties with respect to the subject matter hereof and supersedes any and all prior discussions, agreements, or contracts, whether written or oral. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision hereof. No modification of, or amendment to, this Agreement, nor any waiver of any rights under this Agreement, will be effective, except by a writing signed by both Parties hereto. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument. Execution and delivery of this Agreement by exchange of facsimile or electronic copies shall constitute a valid and binding execution and delivery of this Agreement.
