This Mutual Non-Disclosure Agreement (this Agreement) is entered into this day 28th April 2024, (the Effective Date) by and between Bacchus Product Development LLC, an Arizona limited liability company, and
WHEREAS, In connection with the evaluation and/or pursuit of a mutually beneficial business opportunity or relationship, each party hereto (the Disclosing Party) may disclose certain non-public and proprietary information to the other party (the Recipient) relating to such party's intellectual property, operations and/or business; and
WHEREAS, the parties hereto wish to preserve the confidentiality and prevent the unauthorized disclosure and use of any such non-public and proprietary information disclosed to the other hereunder
NOW, THEREFORE, the parties hereto agree as follows:
1. Confidential Information. This Agreement shall apply to any and all confidential and proprietary information disclosed by the parties to each other, whether disclosed verbally, in writing, or by inspection of tangible objects and may include, but is not limited to, patent, copyright, trade secret, and proprietary information, ideas, contemplated products and services, research and development, productions, testing procedures, product requirements and specifications, features, techniques, drawings, models, inventions, know-how, processes, equipment, and includes, without limitation, each party's respective information concerning development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, supplier lists, manufacturing terms, business forecasts, sales and merchandising, and marketing plans and information (Confidential Information). The execution of this Agreement and the existence of any business negotiations, discussions, consultations or agreements in progress between the parties shall be considered Confidential Information, unless otherwise agreed by the parties hereto. Disclosing Party shall use reasonable efforts to designate Confidential Information as Confidential, Proprietary or a similar designation denoting confidentiality: (i) by stamp or legend if communicated in writing or other tangible form; or (ii) orally at the time of disclosure. Notwithstanding the foregoing, any failure by the Disclosing Party to indicate in writing or orally that a communication includes Confidential Information shall not give the Recipient the right to treat any information disclosed to the Recipient in such communication as not being Confidential Information that is subject to the confidentiality restrictions set forth in this Agreement unless the totality of the circumstances under which such communication was made would compel a reasonable person to conclude that the communication could not have been made by the Disclosing Party with the intention that it would be treated as Confidential Information that is subject to the confidentiality restrictions set forth in this Agreement.
2. Non-Disclosure. Recipient agrees to use the same degree of care to prevent the unauthorized use or disclosure of the Confidential Information as Recipient uses to protect its own confidential information, but in any event with no less than a reasonable degree of care. The Recipient agrees that at all times it will hold in strict confidence and not disclose Confidential Information to any third party, and will use the Confidential Information for no purpose other than to further the business relationship between the parties. The Recipient shall only permit access to Confidential Information to its members, employers or contractors having a need to know and who have agreed to be bound by confidentiality obligations at least as restrictive as those contained herein prior to their use thereof. The Recipient shall immediately notify the Disclosing Party in the event of any loss or unauthorized disclosure of any Confidential Information or any other breach of this Agreement by Recipient and will cooperate with Disclosing Party in every way to help the Disclosing Party regain possession of the Confidential Information and to prevent its further disclosure.
3. Exceptions to Confidential Information. The Recipient shall have no obligation with respect to information which Recipient can demonstrate: (i) was rightfully in possession of or known to Recipient without any obligation of confidentiality prior to receiving it from the Disclosing Party; (ii) is, or subsequently becomes, legally and publicly available without breach of this Agreement; (iii) is rightfully obtained by the Recipient from a source other than the Disclosing Party without any obligation of confidentiality; (iv) is developed by or for the Recipient without reference to or use of the Confidential Information; or (v) is disclosed pursuant to the prior written consent of the Disclosing Party. Further, the Recipient may disclose Confidential Information pursuant to a valid order issued by a court or government agency, provided that the Recipient provides the Disclosing Party prior written notice of such obligation and a reasonable opportunity to oppose such disclosure or obtain a protective order.
4. Copies. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any reproduction of any Confidential Information shall remain the property of the Disclosing Party and shall contain any and all confidential or proprietary notices or legends that appear on the original, unless otherwise authorized in writing by the Disclosing Party. Recipient shall not remove, overprint or deface any notice of copyright, trademark, logo, legend or other notices of ownership from any originals or copies of Confidential Information it obtains from the Disclosing Party.
5. Return of Confidential Information. Upon termination of this Agreement, or at any time during the term of this Agreement, a Disclosing Party may by written notice request the return of such party’s Confidential Information. Upon such a request, Recipient will return, or give written certification of the destruction of all Confidential Information in any tangible or digital form, including all copies thereof whether on paper or in digital form, which are in Recipient’s possession or control.
6. No Licenses; No Further Agreement. No provision of this Agreement shall be deemed to grant any rights to Recipient under any intellectual property, including but not limited to patents, trademarks or copyrights of Disclosing Party or any third party, nor shall this Agreement grant Recipient any rights in or to Confidential Information except as expressly set forth herein. Nothing in this Agreement shall be construed or implied to obligate either party to furnish any specific type of information to the other party, or to create any obligation for either party to enter into any specific transaction with the other party.
7. No Service Contract. Both parties acknowledge and agree that the exchange of information under this Agreement shall not commit or bind either party to any present or future contractual relationship (except as specifically stated herein), nor shall the exchange of information be construed as an inducement to act or not to act in any given manner.
8. Term and Termination. This Agreement shall automatically terminate three (3) years after the Effective Date. Notwithstanding any such termination, Recipient’s obligations with respect to Confidential Information shall survive the termination of this Agreement as provided herein and shall be binding upon the Recipient’s heirs, successors and assigns.
9. Assignment. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party. Any attempted assignment or transfer in violation of the foregoing shall be null and void.
10. Governing Law. This Agreement shall be governed by, construed and enforced solely and exclusively in accordance with the laws of the State of Arizona, without reference to conflict of law principles. Any and all disputes under this Agreement must be brought solely and exclusively in the state courts and the Federal courts located in Maricopa County, Arizona, and the parties hereby irrevocably consent to the personal jurisdiction and venue of these courts. This Agreement may not be amended except by a writing signed by both parties.
11. Irreparable Harm. The Recipient hereby agrees that breach of this Agreement may cause irreparable damage for which recovery of damages would be inadequate, and that the Disclosing Party shall therefore be entitled to obtain timely injunctive relief under this Agreement wherever it deems appropriate, as well as such further relief as may be afforded to it by law.
12. No Warranty. THE CONFIDENTIAL INFORMATION IS PROVIDED AS IS WITHOUT WARRANTY OF ANY KIND. IN NO EVENT SHALL THE DISCLOSING PARTY BE LIABLE FOR THE ACCURACY OR COMPLETENESS OF THE CONFIDENTIAL INFORMATION.
13. Severability. If one or more provisions in this Agreement are ruled entirely or partly invalid or unenforceable by any court of competent jurisdiction in any jurisdiction, then (a) the validity and enforceability of all provisions not ruled to be invalid or unenforceable shall remain unaffected; (b) the effect of such ruling shall be limited to the jurisdiction of the court making the ruling; (c) the provision(s) held wholly or partly invalid or unenforceable shall be deemed amended, and the parties shall reform the provision(s) to the minimum extent necessary to render them valid and enforceable in conformity with the parties’ intent as manifested herein; and (d) if the ruling, or the controlling principle of law or equity leading to the ruling, is subsequently overruled, modified, or amended, then the provision(s) in question, as originally set forth in this Agreement, shall be deemed valid and enforceable to the maximum extent permitted by the new controlling principle of law or equity.
14. Entire Agreement. This Agreement represents the sole, final and entire agreement between the parties with respect to the subject matter hereof and shall supersede and terminate all prior or contemporaneous agreements and communications of the parties, oral or written.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective duly authorized representatives below.
BACCHUS PRODUCT DEVELOPMENT LLC
Signature:
Name: Patrick Sidener
Title: President
