MUTUAL CONFIDENTIALITY AGREEMENT
City of Fairfield - Waterman Water Treatment Plant Ozone System Improvements
THIS MUTUAL CONFIDENTIALITY AGREEMENT (the “Agreement”) between CHART ENTITY, a STATE corporation, having a place of business at 2200 Airport Industrial Drive Suite # 100, Ball Ground, GA 30107 (“Chart”), and you, the “Company”, is effective as of the date that the Company has acknowledged they have reviewed the Agreement are agree to its terms.
Chart and Company are hereinafter each individually referred to as a “Party” and collectively referred to as the “Parties” or forms thereof. The term “affiliate” means, with respect to a Party, any legal entity that directly or indirectly controls, is controlled by, or is under common control with such Party.
WHEREAS, the Parties are prepared to furnish to each other certain valuable, confidential and proprietary information to assist each other in discussing the possibility of pursuing a business transaction together involving the design, fabrication, delivery, and installation of liquid oxygen storage and vaporization equipment (hereinafter referred to as the “Transaction”); and
WHEREAS, as a condition precedent to each Party furnishing the other with such information, the Parties agree to execute this Agreement.
NOW, THEREFORE, in consideration of the above, and in exchange for the mutual promises and obligations contained herein, and for other good and valuable consideration, the Parties agree as provided in this Agreement.
1. Each Party agrees to treat the other Party’s Confidential Information as confidential and proprietary. “Confidential Information” includes any and all information conveyed in connection with the Transaction by one Party or its affiliates (the “Disclosing Party”) to the other Party (the “Receiving Party”), or to the Receiving Party’s affiliates or any of their or Receiving Party’s respective employees, accountants, attorneys, agents or representatives (collectively, “Representatives”), and the fact that such information has been made available to the Receiving Party, that discussions or negotiations between the Parties are taking place, or any of the terms, conditions, or other facts with respect to the Transaction. Confidential Information includes all such information whether disclosed orally, in writing, by demonstration, by magnetic tape or by other media.
2. The Confidential Information received by the Receiving Party shall not be used by the Receiving Party for any purpose other than for the evaluation of the Transaction. All Confidential Information received by the Receiving Party shall be kept confidential by the Receiving Party and shall not be disclosed to any third party; provided, however, that Confidential Information may be disclosed to the Representatives of the Receiving Party who (i) reasonably need to know such information for the Receiving Party’s evaluation of the Transaction, (ii) are informed of the confidential nature of such information, and (iii) are bound by confidentiality duties and obligations to Receiving Party that are no less restrictive than the terms and conditions of this Agreement. The Receiving Party shall be responsible for any breach of this Agreement by any of its Representatives. The Receiving Party agrees to protect the Disclosing Party’s Confidential Information with not less than the same degree of care that the Receiving Party uses to prevent the unauthorized use or dissemination of its own most valuable confidential and proprietary information.
3. In the event that the Receiving Party receives a demand by legal process or is otherwise required by law to disclose any of the Confidential Information, the Receiving Party will, to the extent legally permissible, provide the Disclosing Party with prompt written notice of such demand or requirement so that the Disclosing Party may seek a protective order or other appropriate remedy. In the event that such a protective order or other appropriate remedy is not obtained, the Receiving Party agrees that it will furnish only that portion of the Confidential Information which, in the opinion of the Receiving Party’s legal counsel, the Receiving Party legally is compelled to disclose and the Receiving Party agrees to take commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded to the information which is being disclosed.
4. The term “Confidential Information” does not include information which (a) becomes generally available to the public other than as a result of a wrongful disclosure by the Receiving Party or its Representatives, (b) was available to the Receiving Party on a nonconfidential basis prior to its disclosure by the Disclosing Party under this Agreement, (c) becomes known to the Receiving Party on a nonconfidential basis from a third party who does not have any direct or indirect obligation of confidentiality to the Disclosing Party therefor, or (d) is developed independently by the Receiving Party, as evidenced by the written records of the Receiving Party. The fact that information included in the Confidential Information is or otherwise becomes available to the Receiving Party hereto pursuant to clauses (a), (b), (c) or (d) above shall not relieve the Receiving Party from its obligations under this Agreement with respect to the balance of the Confidential Information.
5. All Confidential Information shall remain the property of the Disclosing Party and nothing contained herein shall be construed as giving the Receiving Party or its Representatives any license or right with respect to such Confidential Information or any patent, trademark, trade secret or copyright. Receiving Party is not allowed to, directly or indirectly, decompose, disassemble or reverse engineer any products, samples, objects or software which embody the Disclosing Party’s Confidential Information. Upon the Disclosing Party’s request, the Receiving Party shall cease using and immediately return to the Disclosing Party, or destroy (with destruction certified in writing by the Receiving Party), such Confidential Information along with all copies, extracts or other reproductions (in whole or in part) made thereof and all documents or things containing any portion of any Confidential Information, except for one copy that may be retained by legal department of the Receiving Party solely for compliance purposes. The foregoing obligation to return or destroy Confidential Information shall not apply solely to the extent retention of material is required by the Receiving Party’s written document retention or computer back-up policy. The return, destruction or retention of such Confidential Information shall not relieve the Receiving Party of its obligations under this Agreement.
6. Each Party acknowledges that information, including without limitation, Confidential Information, disclosed hereunder may be technical data subject to export control, and that compliance with appropriate Government regulations (e.g., International Traffic in Arms Regulations (ITAR), etc.) may be necessary to obtain required approvals before disclosing such information to foreign persons, businesses or governments. The Receiving Party agrees to comply with all applicable U.S. export control laws and regulations, specifically the requirements of ITAR, 22 CFR 120 et seq.; and the Export Administration Act, 50 U.S.C. Appx. 2401 et seq.; including the requirement for obtaining any export license, if applicable. Without limiting the foregoing, the Receiving Party agrees that it will not transfer any Confidential Information, export controlled item, data, information or services, to include transfer to foreign persons employed by or associated with, or under contract to the Receiving Party, without the authority of an applicable export license or applicable license exemption. The Receiving Party shall obtain the written consent of the Disclosing Party prior to submitting any request for authority to export any such information. The Receiving Party shall indemnify and hold the Disclosing Party harmless from all claims, demands, damages, costs, fines, penalties, attorneys’ fees, and all other expenses arising from failure of the Receiving Party to comply with this clause or applicable U.S. export control laws and regulations.
7. Addresses for the purpose of serving written notices are those at the beginning of this Agreement and shall remain in effect until the other Party hereto receives written notification of a change in address to which notices are to be sent.
8. The Parties agree that this Agreement does not constitute an agreement to enter into the Transaction, nor does this Agreement obligate either Party to enter into any further discussions or agreements with the other with respect to the contemplated Transaction. No agency or partnership relationship is created between the Parties by this Agreement. Any agreement to move forward with the Transaction shall only be binding when set forth in a definitive writing that is signed by each Party’s duly authorized representative. Each Party shall be solely responsible for its costs and expenses that it incurs in any manner with respect to the Transaction. In any legal action instituted by either of the Parties to enforce the terms of this Agreement, the prevailing Party shall be entitled to recover its costs, reasonable attorneys’ fees and expenses in connection with such action from the other Party. The Disclosing Party shall not be liable to the Receiving Party for any damage to property or personal injury resulting from any unauthorized use of the Confidential Information of the Disclosing Party.
9. This Agreement may not be amended or waived except in a writing signed by an authorized representative of each Party. No failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof.
10. This Agreement shall terminate upon written notice from one Party to the other, or ten (10) years following the Effective Date, whichever occurs first; provided, however: (i) the obligations under this Agreement for each disclosure of Confidential Information shall survive termination or expiration for ten (10) years following the date of each such disclosure of Confidential Information made within the term of this Agreement; (ii) the obligations under this Agreement shall survive for Confidential Information constituting a trade secret for as long as such information remains a trade secret, but in no event shall such obligation be less than ten (10) years following the Effective Date; and (iii) the provisions of Section 6 shall survive any termination or expiration of this Agreement.
11. This Agreement shall be binding upon and inure to the benefit of the Parties hereto, their successors and permitted assigns. This Agreement may not be assigned by a Party hereto without the prior written consent of the other Party’s duly authorized representative. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original, but all of which shall constitute one and the same instrument. A signed copy of this Agreement delivered by facsimile, by electronic mail in portable document format (“PDF”) form or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement. This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia, without giving effect to the conflict of laws principles thereof. The Parties hereby submit to and agree to be subject to the jurisdiction of the courts located in Atlanta, Georgia in case of any dispute related to this Agreement.
12. The Parties acknowledge that a breach of this Agreement may result in irreparable harm to the other Party, the extent of which would be difficult to ascertain and, in any event, money damages would be inadequate in the event of a breach. Accordingly, the Parties agree that in the event of a breach of this Agreement by a Party, the other Party shall be entitled to specific performance and injunctive or other equitable relief as the court may deem appropriate, and such remedies shall not be deemed to be the exclusive remedy for a breach of this Agreement, but shall be in addition to all other remedies available at law or equity to the aggrieved Party.
13. This Agreement contains the entire agreement and understanding of the Parties with respect to the subject matter hereof and supersedes all prior understandings, arrangements, representations, warranties and agreements between the Parties, whether oral or written, with respect to the same.