WHEREAS, the parties may have access to certain “Confidential Information” as defined below, in consequence of certain discussions and negotiations between them, and
WHEREAS, the parties wish to exchange Confidential Information in connection with the potential formulation, development, marketing, branding, packaging, production and sales of food and beverage products and other areas of potential mutual commercial interest (the “Opportunity”).
WHEREAS, Confidential Information includes information provided at any time, including prior to the date of this Agreement, and consists of, but is not limited to:
Clients, suppliers, specifications, data, formulations, concepts, designs, process, strategy, operations, technology, and brand names pertaining to food and beverage products, as well as financial information, and
WHEREAS, it is the mutual desire of both parties to preserve the secrecy and confidentiality of each party’s Confidential Information, which has been disclosed pursuant to the terms hereof.
NOW, THEREFORE, in consideration of the disclosure described herein and for other good and valuable consideration, the receipt, adequacy, and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1)As used herein, the following terms shall have the meanings indicated:
a.“DISCLOSING PARTY” the party disclosing its Confidential Information to the other party pursuant to the termshereof.
b.“RECEIVING PARTY” the party receiving the Confidential Information of the other party pursuant to the termshereof.
2)RECEIVING PARTY hereby acknowledges that DISCLOSING PARTY has made a clear representation that the Confidential Information has been developed by DISCLOSING PARTY through expenditure of substantial time, effort, andcost and agrees to retain the Confidential Information in confidence and to withhold the same from publication and fromavailability to others in accordance with Paragraph 3 hereof.
3)Except as authorized by the Agreement or as specifically authorized in writing by DISCLOSING PARTY, RECEIVINGPARTY agrees that:
a.It will hold the Confidential Information in confidence and it will be divulged only to those employees, agents orrepresentatives of RECEIVING PARTY who have a demonstrable need to know said information and who havebeen informed of and have agreed to be bound by the nondisclosure obligations;
b.It will not use such Confidential Information for any reason other than in contemplation or pursuit of the Opportunity. It will not use such Confidential Information for its own account or purposes or the purposes of any third party;
c.It will require of all persons under its control who may come into contact with such Confidential Information as anecessary part of achieving the purposes set forth above, to agree to be bound by the same obligations of confidenceimposed upon RECEIVING PARTY by the Agreement.
d.It will immediately return all Confidential Information obtained from DISCLOSING PARTY to said party uponrequest and will not thereafter retain copies of any such Confidential Information whatsoever.
4)Excluded from the above restrictions upon disclosure, however, is a part of such Confidential Information
a.That can be demonstrated to have been in the public domain prior to the date hereof and prior to any disclosure ofsuch information to RECEIVING PARTY by DISCLOSING PARTY, whether directly or indirectly;
b.That can be demonstrated to have been in the RECEIVING PARTY’s possession prior to any disclosure of suchinformation to RECEIVING PARTY by DISCLOSING PARTY, whether directly or indirectly;
c.That becomes part of the public domain by publication or otherwise through no fault or negligence on the part of the RECEIVING PARTY;
d.That is disclosed pursuant to a requirement of a governmental agency or as is required by operation of law, providedthat RECEIVING PARTY has provided notice to DISCLOSING PARTY within ten (10) days prior to any requireddisclosure (or shorter period consistent with any required disclosure), so as to provide DISCLOSING PARTY anopportunity to object to any such required disclosure;
e.That can be demonstrated to have been independently developed by the RECEIVING PARTY without use orreliance on the Confidential Information of DISCLOSING PARTY.
5) RECEIVING PARTY agrees that it will be responsible for maintaining the secret and confidentiality of such Confidential Information as required by this Agreement and will be responsible in such regard for the actions and activities of all its agents, employees and designees while working with said Confidential Information and RECEIVING PARTY agrees to indemnify and hold harmless DISCLOSING PARTY from all damages and expenses which DISCLOSING PARTY may sustain as a result of any unauthorized disclosure of such Confidential Information by RECEIVING PARTY hereunder.
6) DISCLOSING PARTY agrees to indemnify and hold RECEIVING PARTY harmless against any loss, cost, damage, or expense incurred by RECEIVING PARTY in the event any third party asserts a proprietary interest in any Confidential Information and makes a claim against RECEIVING PARTY in consequence of its receipt or use of such Confidential Information.
7) RECEIVING PARTY acknowledges that RECEIVING PARTY’s breach of this Agreement will cause DISCLOSING PARTY irreparable harm and that monetary relief will not adequately compensate DISCLOSING PARTY for its losses caused by RECEIVING PARTY’s breach of this Agreement. Therefore, DISCLOSING PARTY shall be entitled to equitable relief, including injunctions and specific performance, without being required to show any actual damage, for any breach of this Agreement by RECEIVING PARTY, in addition to all other available remedies at law or in equity.
8) The rights and obligations of the parties hereto and the validity, construction and interpretation of this Agreement in any action, suit, or proceeding arising out of this Agreement shall be governed by Connecticut law and any such action, suit or proceeding shall be brought in the Connecticut courts or federal courts located in Connecticut.
9) The failure of DISCLOSING PARTY to insist upon strict performance of any provision of this Agreement shall not constitute a waiver of its rights under that provision or under any other provision. DISCLOSING PARTY may at any time insist upon strict performance of the breached provision or elect to pursue any other remedy available to it. No failure of DISCLOSING PARTY to pursue a remedy hereunder shall be construed as a continuing waiver of the breached provision, or of any other rights of DISCLOSING PARTY, unless so specified in writing, signed by DISCLOSING PARTY.
10) If DISCLOSING PARTY brings any legal action under this Agreement, DISCLOSING PARTY shall have the right to recover reasonable costs and attorney’s fees from RECEIVING PARTY in addition to any and all other rights that it may have or acquire pursuant to the terms and conditions of this Agreement.
11) The invalidity or unenforceability of any provision of this Agreement shall not affect any other provision hereof, and if any particular provision is determined to be invalid or unenforceable, the remainder of this Agreement shall be interpreted and construed as if such provision were omitted.
12) The provisions of this Agreement shall continue to remain in full force and effect for so long as any Confidential Information provided by one party to the other continues to meet the definition of Confidential Information set forth above.
13) This Agreement constitutes the entire Agreement of the parties regarding the subject matter and supersedes all previous agreements whether written or oral. It shall not be modified except by a writing signed by RECEIVING PARTY and a duly authorized officer of DISCLOSING PARTY.