WHEREAS Disclosing Party and Receiving Party is in preliminary dialogue concerning a potential transaction by the Receiving Party (“the Transaction”), the Disclosing Party would wish to disclose certain information relating to the Transaction which information is to be considered and treated by each party as confidential and/or proprietary;
WHEREAS, the parties agree to the exchange of such information subject to the terms and conditions outlined in this Agreement; NOW, THEREFORE, in consideration of the foregoing premises, which are incorporated in this Agreement, and the mutual promises
contained herein, and intending to be legally bound hereby, Receiving Party and Disclosing Party agree as follows:
1. Confidential Information
(a) Confidential Information is any information relating to the intellectual property and business practices of the Transaction, whether or not reduced to writing or other tangible expressions, which the Disclosing Party considers to be proprietary and confidential. Such Confidential Information includes, but is not limited to: (i) information relating to research and development, discoveries, improvements, processes, know-how, specifications, samples, notes, patents, copyrights, trademarks, trade names, trade secrets, and patent, trademark and copyright applications; and (ii) business plans, financial information, computer hardware or software, information systems, source code, products, services, costs, sources of supply, strategic plans, advertising and marketing plans, customer lists, sales, profits, pricing methods, project proposals, personnel, and business relationships.
(b) Confidential Information shall not include any information which: (i) was already known to the Receiving Party before the time of disclosure by the Disclosing Party; (ii) is available or becomes generally available to the public other than through a breach of this Agreement by the Receiving Party; (iii) is acquired or received rightfully and without confidential limitation by the Receiving Party from a third party; (iv) is independently developed by the Receiving Party without breach of this Agreement; or (v) is required to be disclosed by applicable law or court order. If the Receiving Party becomes legally required to disclose Confidential Information, the Receiving Party will give the Disclosing Party prompt advance notice of such requirement and a reasonable opportunity to seek a protective order or other appropriate remedies. If the Disclosing Party is unable to obtain a protective order or other appropriate remedies concerning such disclosure of Confidential Information, then the Receiving Party will disclose only that portion of the Confidential Information necessary to ensure compliance with such legal requirement.
2. The Receiving Party agrees to take all necessary and appropriate steps to keep confidential and protect the Confidential Information including (i) restricting access to all Confidential Information received from the Disclosing Party to those employees who have a "need to know" and such of its advisors who are, or maybe, involved in the Transaction such parties to be made aware of and agree to be bound by the obligations of confidentiality contained herein; and (ii) not using, disclosing, or allowing access to such Confidential Information by any third party, except as authorized by the Disclosing Party in writing. The Receiving Party further agrees to use the same degree of care in safeguarding the Confidential Information as its uses for its information but in no event less than a reasonable degree of care. Except as required by law, each party agrees to keep confidential the existence of this Agreement and that it is meeting with or receiving information from the other party.
3. The parties agree that the Confidential Information is and will remain the property of the Disclosing Party. No use of such Confidential Information is permitted except as provided in this Agreement. The Receiving Party shall not duplicate or incorporating the Confidential Information into its records or database except as necessary to perform its obligations hereunder.
4. Upon the written request of the Disclosing Party, the Receiving Party shall at the Disclosing Party’s option either: (i) return the Confidential Information, in whatever form held by the Receiving Party, or (ii) certify in writing signed by a duly authorized officer or representative of the Receiving Party that such Confidential Information, in whatever form held, has been destroyed. The confidentiality obligations herein shall survive any expiration or termination of this Agreement.
5. Both parties acknowledge and agree that the unauthorized disclosure or other violation, or threatened violation of this Agreement by a party will cause irreparable damage to the other and that money damages would not be a sufficient remedy for any breach of this Agreement. Both parties agree that the non-breaching party will be entitled to specific performance and injunctive or other equitable relief prohibiting the breaching party from any such disclosure, attempted disclosure, violation or threatened violation without the necessity of proving damages or furnishing a bond or other security, in addition to any other rights and remedies available in law. The non-breaching party shall be entitled to recover its reasonable legal fees and expenses incurred in conjunction with such proceedings.
6. Nothing in this Agreement is intended to grant any rights to the Receiving Party under any patent, copyright, trademark, trade name or other proprietary rights of the Disclosing Party, nor shall this Agreement grant the Receiving Party any rights in or to the Confidential Information. Nothing in this Agreement shall limit or restrict the rights of the Disclosing Party to assert infringement or other intellectual property claims against the Receiving Party.
7. Neither this Agreement nor anything disclosed or provided according to this Agreement creates or should be construed to create, in any manner, any obligation to enter into any contract or business arrangement nor does it obligate either party to enter into any subsequent agreement in respect of the acquisition of the Target.
8. Each party represents and warrants that it has the right to make the disclosures contemplated by this Agreement and that such disclosures will not violate or infringe upon the rights of any third party.
9. This Agreement shall be governed by and construed in all respects under the Laws of Jamaica.
11. This Agreement may not be assigned by either party without the prior written consent of the other party. If any provision of this Agreement is declared void or unenforceable, such provision will be severed from this Agreement, which will otherwise remain in full force and effect. If a court or other decision-maker should determine that any provision of this Agreement is overbroad or unreasonable, such provision shall be given effect to the maximum extent possible by narrowing or enforcing in part that aspect of the provision found overbroad or unreasonable. Any failure by either party to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision hereof. A waiver given by either party on any one occasion will not be construed as a waiver of any right on any other occasion. This Agreement constitutes the entire agreement between the parties concerning the subject matter addressed herein and may not be amended or modified except by a writing signed by both parties.