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Chemical Conversion Coatings
Information for our Business Partners
Chemical Conversion Coatings
Information for our Business Partners
Mutual Non-Disclosure Agreement
THIS AGREEMENT is entered into and effective as of by and between SAPPHIRE METAL FINISHING, INC., an Idaho corporation with principal office at 4115 challenger Way, Caldwell, Idaho 83660, USA, to which all correspondence should be directed, and _______ a/ an ___________ corporation with principal offices at________________ to which all correspondence should be directed. Individually the above shall be referred to as “Party” and collectively as “Parties”.
The Parties agree that the following terms apply when one Party (the “Discloser”) provides information to the other (the “Recipient”) for discussing present or future matters under existing or future business arrangements (the “Purpose”).
1. PROPRIETARY INFORMATION. "Proprietary Information" is any information or data disclosed before, on, or after the effective date of this Agreement, by a Discloser (whether in written, electronic, oral or other form) that is not generally available to others and that is declared by the Discloser to be considered proprietary information, or described using a similar expression of confidentiality. It includes information relating to Discloser's ongoing or proposed business, products or services such as concepts, plans, inventions, proposals, marketing, financial and technical information, pricing and goals, together with the tangible media containing such information.
2. MARKING AND DISCLOSURE. Proprietary Information will be marked with Discloser’s restrictive legend, such as "proprietary", "confidential," or the like and may be disclosed: (a) in writing; (b) by delivery of items; (c) by providing access to the Proprietary Information (e.g., a database); or (d) by oral, visual or other non-written disclosure in which case the Discloser must identify during the discussion or presentation which information is Proprietary Information and confirm the same in writing within thirty (30) days of disclosure. All the protections and restrictions in this Agreement as to the use and disclosure of Proprietary Information shall apply to a Discloser's oral, visual, or other non-written information during said thirty (30) day period.
3. OBLIGATIONS. (a)Each Party as a Recipient agrees: (i) to use the Discloser's Proprietary Information solely for the Purpose; (ii) not to disclose or reveal to any third party, without the Discloser's prior written consent, any portion of the Discloser’s Proprietary Information or any notes, summaries or other information derived from the Proprietary Information; (iii) not to use any portion of the Discloser’s Proprietary Information for personal gain or to advance or support Recipient's or others' businessventures other than for the Purpose, including without limitation, to reverse engineer, disassemble, decompile or design around the Discloser’s products and Proprietary Information; (iv) to use at least the same degree of care in safeguarding the Discloser's Proprietary Information as it uses to safeguard its own confidential information, provided such degree of care is sufficient to prevent inadvertent disclosure and unauthorized use thereof; (v) to notify Discloser immediately in writing upon discovery of any inadvertent disclosure or unauthorized use of Proprietary Information and to promptly use all reasonable efforts to prevent any further inadvertent disclosure or unauthorized use.
(b) The Recipient may disclose Proprietary Information to the following persons or entities if it has or obtains a written agreement with such persons or entities sufficient to require them to treat Proprietary Information in accordance with this Agreement: (i) Recipient's employees who have a need to know for the purpose of carrying out the Project and (ii) any other person or entity with Discloser's prior, express written consent. If approved in advance in writing by Discloser, Recipient may utilize and submit Discloser's Proprietary Information in a proposal to a government agency; if prior to any such disclosure, Recipient inserts appropriate restrictive markings on Discloser's Proprietary Information in accordance with law and regulation.
(c) Each Party shall bear its own costs and expenses to comply with this Agreement and shall abide by all applicable international import and export control laws and regulations governing the Proprietary Information. Any Proprietary Information whose export is subject to an export and/or import license, or other controls, such as the U.S. International Traffic in Arms Regulations (ITAR), Export Administration Regulation, and regulations enforced by the U.S. Office of Foreign Assets Control shall be identified and marked in writing as such by the Discloser at the time of disclosure and the disclosure, protection, use and handling thereof, shall remain subject to restrictions imposed by the Discloser’s government. The Parties will not permit, directly or indirectly, export of, re-export of, or release any Proprietary Information identified and marked by the Discloser as being restricted by its government’s export control laws.
4. EXCEPTIONS. (a) No information shall be deemed Proprietary Information, and the Recipient shall have no obligation with respect to information, which: (i) is or becomes publicly known through no wrongful act of the Recipient; (ii) is already known to or in the possession of the Recipient prior to the disclosure thereof by the Discloser, as evidenced by Recipient’s prior existing records; (iii) is approved for public release by the prior express written approval of the Discloser; (iv) is rightfully received by the Recipient from a third party without restriction and without breach of this Agreement, as evidenced by Recipient’s records; (v) is disclosed by the Discloser to a third party without a restriction on the rights of such third party to use or disclose such information; or (vi) is independently developed by the Recipient without the use of any of the Discloser’s Proprietary Information as evidenced by Recipient’s prior existing records.
(b) The Recipient may disclose Proprietary Information to the extent required by law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction provided the Recipient first gives Discloser prompt written notice to enable Discloser a reasonable opportunity to obtain a protective order to govern such disclosure and, if requested by Discloser, reasonably cooperates with Discloser to obtain such a protective order. Each Party shall involve the other in all consultations in which it is a party with a government agency where the government agency is considering a disclosure under public disclosure laws. If, after providing such notice and assistance as required herein, the Recipient is nonetheless required by law, regulation, or a valid order to disclose the Proprietary Information, the Recipient will disclose no more than that portion of Proprietary Information that such law specifically requires the Recipient to disclose.
5. TERM OF AGREEMENT. This Agreement shall commence on the effective date above and shall continue in effect untilfive (5) years duration or until one Party, on thirty (30) days written notice, informs the other that this Agreement is terminated. Upon termination or expiration of this Agreement, the obligations of each Recipient under this Agreement with respect to Proprietary Information disclosed to it prior to termination or expiration shall continue and survive termination/expiration, until the Discloser's Proprietary Information becomes publicly known through no wrongful act of the Recipient. If this Agreement is incorporated by reference in a separate agreement for the purpose of identifying non-disclosure rights and obligations under a separate agreement, then the term of this Agreement will run concurrent with the term of that separate agreement.
6. REPRODUCTION AND RETURN OF PROPRIETARY INFORMATION. Discloser’s Proprietary Information received hereunder by the Recipient shall remain the Discloser's property. Upon termination of this Agreement or at any other time at the request of the Discloser, the Recipient shall cease use of Discloser’s Proprietary Information and will upon request certify in writing the return or destruction of all copies, whether in written, electronic or other form or media, of the Discloser’s Proprietary Information and other such information in its possession or in the possession of any of its representatives, and will cause any other such other person to whom it has disclosed such Proprietary Information to do the same. In addition, the Recipient shall also destroy all copies of any notes created by the Recipient, its employees, or third party receiving Proprietary Information from the Recipient as authorized in this Agreement and certify in writing to the Discloser that such copies have been destroyed.
7. NO LICENSE. This Agreement does not require either Party to disclose or receive information nor does it grant a Recipient any right or license, express or implied, under any patent, copyright, trade secret, or other intellectual property right now or subsequently controlled by the Discloser.
8.1 DISCLAIMERS. Proprietary Information is provided "as is" and neither Party has made or makes any representation or warranty as to the accuracy, usefulness or completeness of the Proprietary Information. Discloser shall have no liability, except for any liability arising out of a breach of the representation and warranty in the next succeeding sentence, resulting from use of its Proprietary Information by Recipient. Each Party represents and warrants that its execution of this Agreement has been duly authorized by all necessary corporate or other action, that the person signing this Agreement on its behalf is duly authorized to do so, and that it has the right to transmit, deliver or otherwise disclose to the Recipient the Proprietary Information.
8.2 EXCEPT AS SET OUT IN SECTION 8.1 ABOVE, NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, NEITHER PARTY MAKES AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES , EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, ARISING UNDER OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OR TRADE. THIS SECTION SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT FOR ANY REASON.
9. ASSIGNMENT/BINDING EFFECT. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and assigns. Neither Party may assign or transfer its rights or obligations as provided in this Agreement without the prior written consent of the other.
10.GOVERNING LAW/VENUE. All questions concerning the construction, validity, and interpretation of this Agreement or the rights and obligations of the Parties arising under or relating in any way to this Agreement or the subject matter hereof will be governed by the laws of Washington State, USA without regard to the conflict of laws provisions thereof. Except to the extent a Party solely seeks to enjoin disclosure as provided in Section 11, venue for any legal claim or lawsuit will be in King County, Washington, USA and each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts in King County, Washington, USA.
11. REMEDIES. The Recipient recognizes and agrees that the Proprietary Information is of a character that gives it a special value the loss of which cannot be adequately compensated in damages, and that a breach of this Agreement will cause irreparable harm to the Discloser. The Recipient, therefore, expressly acknowledges and agrees that the Discloser shall be entitled to injunctive relief from a court of competent jurisdiction anywhere in the world to prevent a breach of any provision of this Agreement. The Parties further agree that in the event such equitable relief is granted, they will not object to courts in other jurisdictions granting provisional remedies enforcing such judgment. The Parties also agree no bond will be required for injunctive relief.
12. INDEPENDENT CONTRACTORS. The relationship between the Parties is that of independent contractors and neither Party is obligated by this Agreement to enter into a contract, sub-contract, teaming agreement, joint venture or other business relationship with the other Party.
13. WAIVER. The failure or delay of either Party to insist upon the performance of any provision herein or to exercise any right or privilege granted to it hereunder, shall not be construed as a waiver of such provision or any provisions herein, and the same shall continue in full force. The various rights and remedies given to or reserved by either Party herein or allowed by law, shall be cumulative, and no delay or omission to exercise any of its rights shall be construed as a waiver of any default or acquiescence. The exercise by the Discloser of any one remedy shall not be deemed to be an election of only such remedy or to preclude the exercise of any other remedy.
14. ENTIRE AGREEMENT. This Agreement sets forth the entire understanding between the Parties and supersedes any previous or contemporaneous understandings, commitments, or agreements, written or oral, regarding the subject matter hereof. The Parties do not intend by this Agreement to modify the terms of any separate agreement not mentioned herein. Any amendment, supplement, modification or change to this Agreement shall be in writing and signed by each Party.
15. ELECTRONIC SIGNATURES. Each Party agrees that the electronic signatures to this Agreement if any, whether digital or encrypted, of a Party included in this Agreement is intended to authenticate this writing and to have the same force and effect as manual signatures. Electronic signature means any electronic sound, symbol, or process attached to or logically associated with a record and executed and adopted by a Party with the intent to sign such record.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives. SAPPHIRE METAL FINISHING, INC.
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