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CONFIDENTIALITY AGREEMENT THIS CONFIDENTIALITY AGREEMENT (the "Agreement") dated this ___ day of ___, 2009 BETWEEN:
OF THE FIRST PART - AND -
OF THE SECOND PART
BACKGROUND:
IN CONSIDERATION OF and as a condition of the Inventor providing the Confidential Information to the Engineering Consultant in addition to other valuable consideration, the receipt and sufficiency of which consideration is hereby acknowledged, the parties to this Agreement agree as follows:
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1. Confidential Information 1. All written and oral information and materials disclosed or provided by the Inventor to the Engineering Consultant under this Agreement is Confidential Information regardless of whether it was provided before or after the date of this Agreement or how it was provided to the Engineering Consultant. Confidential Information will not include information that: a. is generally known in the industry of the Inventor; b. is now or subsequently becomes generally available to the public through no wrongful act of the Engineering Consultant; c. the Engineering Consultant rightfully had in its possession prior to receiving the Confidential Information from the Inventor; d. is independently created by the Engineering Consultant without direct or indirect use of the Confidential Information; e. the Engineering Consultant rightfully obtains from a third party who has the right to transfer or disclose it. 2. Confidential Obligations 3. Except as otherwise provided in this Agreement, the Engineering Consultant must keep the Confidential Information confidential. 4. Except as otherwise provided in this Agreement, the Confidential Information will remain the exclusive property of the Inventor and will only be used by the Engineering Consultant for the Permitted Purpose. The Engineering Consultant will not use the Confidential Information for any purpose which might be directly or indirectly detrimental to the Inventor or any of his affiliates or subsidiaries. 5. The obligations to ensure and protect the confidentiality of the Confidential Information imposed on the Engineering Consultant in this Agreement and any obligations to provide notice under this Agreement will survive the expiration or termination, as the case may be, of this Agreement and those obligations will last indefinitely. 6. The Engineering Consultant may not disclose any of the Confidential Information: Page 2
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the Engineering Consultant agrees to take all necessary steps to ensure that the terms of this Agreement are not violated and ii. the Engineering Consultant agrees to be responsible for and indemnify the Inventor for any breach of this Agreement by its sub contractors. 2. The Engineering Consultant may disclose any of the Confidential Information: a. to a third party where the Inventor has consented in writing to such disclosure; and b. to the extent required by law or by the request or requirement of any judicial, legislative, administrative or other governmental body. 3. The Engineering Consultant agrees to retain all Confidential Information at its usual place of business and to store all Confidential Information separate from other information and documents held in the same location. Further, the Confidential Information is not to be used, reproduced, transformed, or stored on a computer or device that is accessible to persons to whom disclosure may not be made, as set out in this Agreement. 4. Ownership and Title 5. Nothing contained in this Agreement will grant to or create in the Engineering Consultant , either expressly or impliedly, any right, title, interest or license in or to the intellectual property of the Inventor. 6. Remedies 7. The Engineering Consultant agrees and acknowledges that the Confidential Information is of a proprietary and confidential nature and that any failure to maintain the confidentiality of the Confidential Information in breach of this Agreement cannot be reasonably or adequately compensated for in money damages and would cause irreparable injury to the Inventor. Accordingly, the Engineering Consultant agrees that the Inventor is entitled to, in addition to all other rights and remedies available to him at law or in equity, an Page 3
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injunction restraining the Engineering Consultant, any of its personnel, and any agents of the Engineering Consultant, from directly or indirectly committing or engaging in any act restricted by this Agreement in relation to the Confidential Information. 1. Return of Confidential Information 2. The Engineering Consultant will keep track of all Confidential Information provided to it and the location of such information. The Inventor may at any time request the return of all Confidential Information from the Engineering Consultant. Upon the request of the Inventor, or in the event that the Engineering Consultant ceases to require use of the Confidential Information, or upon the expiration or termination of this Agreement, the Engineering Consultant will: a. return all Confidential Information to the Inventor and will not retain any copies of this information; b. destroy all memoranda, notes, reports and other works based on or derived from the Evaluator 's review of the confidential information; and c. will provide a certificate to the Inventor that such materials have been destroyed or returned, as the case may be. 3. Notices 4. In the event that the Engineering Consultant is required in a civil, criminal or regulatory proceeding to disclose any part of the Confidential Information, the Engineering Consultant will give to the Inventor prompt written notice of such request so the Inventor may seek an appropriate remedy or alternatively to waive the Engineering Consultant 's compliance with the provisions of this Agreement in regards to the request. 5. If the Engineering Consultant loses or fails to maintain the confidentiality of any of the Confidential Information in breach of this Agreement, the Engineering Consultant will immediately notify the Inventor and take all reasonable steps necessary to retrieve the lost or improperly disclosed Confidential Information.
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1. Any notices or delivery required in this Agreement will be deemed completed when hand-delivered, delivered by agent, or seven (7) days after being placed in the post, postage prepaid, to the parties at the addresses contained in this Agreement or as the parties may later designate in writing. 2. The address for any notice to be delivered to any of the parties to this Agreement is as follows:
a.
____________
b.
Wolf-Dieter Keppel
(DKconsulting DBA) 3. Representations 4. In providing the Confidential Information, the Inventor makes no representations, either expressly or impliedly as to its adequacy, sufficiency, completeness, correctness or its lack of defect of any kind, including any patent or trademark infringement that may result from the use of such information. 5. Further Agreements In the event that the Engineering Consultant finds that the Invention is worthy of being a patent resulting in engineering and development the Inventor and the Engineering Consultant may negotiate an additional agreement to define all their respective rights regarding such patenting, engineering and product development. 6. Termination The inventor may terminate this Agreement by providing written notice to the other party. Except as otherwise provided in this Agreement, all rights and obligations under this Agreement will terminate at that time. The Engineering Consultant can not terminate this Agreement until the inventor has filed his invention with the US Patent Office and received a Patent Pending status document supplied in writing to the Engineering Consultant by the inventor. Page 5
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24. Assignment 25. Except where a party has changed its corporate name or merged with another corporation, this Agreement may not be assigned or otherwise transferred by either party in whole or part without the prior written consent of the other party to this Agreement. 26. Amendments 27. This Agreement may only be amended or modified by a written instrument executed by both the Inventor and the Engineering Consultant. 28. Governing Law 29. This Agreement will be construed in accordance with and governed by the laws of the State of Illinois and the State of_____. 30. Additional Provisions 31. Intentional violation by the Engineering Consultant of this contract will be subject to criminal charges, punitive damages and replacement of financial losses for the inventor ordered by a court. 32. General Provisions 33. Time is of the essence in this Agreement.
34. This Agreement may be executed in counterparts.
35. Headings are inserted for the convenience of the parties only and are not to be considered when interpreting this Agreement. Words in the singular mean and include the plural and vice versa. Words in the masculine mean and include the feminine and vice versa. 36. The clauses, paragraphs, and subparagraphs contained in this Agreement are intended to be read and construed independently of each other. If any part of this Agreement is held to be invalid, this invalidity will not affect the operation of any other part of this Agreement.
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37. The Engineering Consultant is liable for all costs, expenses and expenditures including, and without limitation, the complete legal costs incurred by the Inventor in enforcing this Agreement as a result of any default of this Agreement by the Engineering Consultant. 38. The Inventor and the Engineering Consultant acknowledge that this Agreement is reasonable, valid and enforceable. However, if a court of competent jurisdiction finds any of the provisions of this Agreement to be too broad to be enforceable, it is the intention of the Inventor and the Engineering Consultant that such provision be reduced in scope by the court only to the extent deemed necessary by that court to render the provision reasonable and enforceable, bearing in mind that it is the intention of the Engineering Consultant to give the Inventor the broadest possible protection to maintain the confidentiality of the Confidential Information. 39. No failure or delay by the Inventor in exercising any power, right or privilege provided in this Agreement will operate as a waiver, nor will any single or partial exercise of such rights, powers or privileges preclude any further exercise of them or the exercise of any other right, power or privilege provided in this Agreement. 40. This Agreement will inure to the benefit of and be binding upon the respective heirs, executors, administrators, successors and assigns, as the case may be, of the Inventor and the Engineering Consultant. 41. This Agreement constitutes the entire agreement between the parties and there are no further items or provisions, either oral or otherwise. IN WITNESS WHEREOF Wolf D Keppel and _______ have duly affixed their signatures under hand and seal on this __ day of __, 2009.
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