License Application & NDA
Please Read Full Document Below Before Signing
A. Each party hereto possesses certain confidential information (“CONFIDENTIAL INFORMATION”), relating to its respective products and/or business;
B. Both parties hereto recognize and acknowledge that said CONFIDENTIAL INFORMATION of each is of extreme importance and value, is of a proprietary nature, and is considered by each to constitute a valuable commercial asset; and
C. Each party hereto is willing, subject to the terms and conditions hereof, to disclose some
of its CONFIDENTIAL INFORMATION to the other party for the purpose of N2 and
investigating the possibility of entering into further agreement with regard to: (a) N2’s patented proprietary process (described in that certain patent issued: Patent No. US 8,863,947 B2 issued October 21, 2014), including, without limitation, any and all modifications, betterments, and advancements to said proprietary process, whether or not patentable; (b) the use of N2’s said patented proprietary process to seal hermetically product in a can for distribution and sale to consumers, as described in said Patent No. US 8,863,947 B2 issued October 21, 2014; and (c) research, development, manufacture, marketing, sale, use and/or distribution of packaging equipment utilizing, arising from or associated to N2’s said patented proprietary process to seal hermetically product in a can for distribution and sale to consumers, as described in said Patent No. US 8,863,947 B2 issued October 21, 2014 (hereinafter the “PURPOSE”);
NOW THEREFORE, in consideration of the provisions, covenants, and mutual undertakings of the parties as provided herein, and other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties do hereby agree as follows:
1. Each party agrees to disclose (the “DISCLOSING PARTY”) CONFIDENTIAL INFORMATION to the other (the “RECEIVING PARTY”) solely for the PURPOSE specified above, said disclosure to occur orally, visually, in writing, or through any other means.
2. Both parties agree that CONFIDENTIAL INFORMATION shall mean all trade secret or confidential information of a business, financial or technical nature, whether or not marked or identified as confidential, disclosed or provided through any means whatsoever and in any form whatsoever, whether orally or in writing, including without limitation: (a) information concerning the attributes, composition, formulation, and performance of either party’s products or any active or inactive ingredient thereof or any sample provided by either party; (b) financial information, data, costs, revenue, sales, proprietary products, concepts, designs, inventions, discoveries, improvements, know-how, or other technical data; (c) strategic information, studies, ideas, marketing, retailing, or other business plans, customer lists, supplier lists, vendor lists, projections, budgets, pricing information, or know-how related to the DISCLOSING PARTY’s business, including without limitation the DISCLOSING PARTY’s research data and information regarding services, development, operating procedures, processes, designs, drawings, manufacturing, marketing, or finances; and (d) other information that is marked or denoted by the DISCLOSING PARTY as confidential, is identified in writing to be confidential within thirty (30) days of communication, or is of a nature that RECEIVING PARTY knows or should know is and should remain confidential. Any notes, summaries, analyses, evaluations, studies or other material prepared by RECEIVING PARTY which embody or relate to any CONFIDENTIAL INFORMATION shall be included within the definition of CONFIDENTIAL INFORMATION.
3. The RECEIVING PARTY agrees:
a. Not to disclose any such CONFIDENTIAL INFORMATION to any person or entity, excepting the RECEIVING PARTY’s employees, attorneys and contractors (collectively, “Employees”) (provided, however, RECEIVING PARTY shall, prior to disclosure of any such confidential information to any such contractor, cause such contractor to be bound by and subject to this Agreement and shall be liable to DISCLOSING PARTY for its contractor’s breach of this Agreement), without the prior written consent of the DISCLOSING PARTY, and any disclosure to and among Employees shall be limited and restricted as specified below in paragraph 3(c)(ii);
b. Not to commercially exploit, nor use in any way for commercial purposes,
nor use for any other purpose whatsoever other than for the PURPOSE specified within this
AGREEMENT, such CONFIDENTIAL INFORMATION, either for itself or any other person, firm, corporation, or entity, without the prior written consent of the DISCLOSING PARTY;
c. To keep all such CONFIDENTIAL INFORMATION, whether in tangible or intangible form, strictly secret, confidential, and undisclosed, and to take any and all necessary measures in order to effectuate this obligation and in order to prevent the unauthorized use, disclosure, and/or reproduction thereof. To that end, and without limiting the foregoing, the RECEIVING PARTY shall:
i. properly safeguard such matter by storing it in a safe and secure place separate from other information, removing it therefrom only as needed to carry out the PURPOSE specified above, and
ii. restrict access to any and all such CONFIDENTIAL INFORMATION, whether in tangible or intangible form, disseminating it only to its employees, and even then only to those employees who need to receive such CONFIDENTIAL INFORMATION in order for the RECEIVING PARTY to carry out the PURPOSE specified above, limiting the types and amount of such CONFIDENTIAL INFORMATION given to said employee to only so much of it as is necessary for that particular employee to perform her or his particular function, and fully disclosing to said employee the confidential nature of such information;
d. Not to disclose or confirm to any third party the fact that discussions or negotiations are taking place concerning the specified PURPOSE, or any of the terms, conditions, or other facts with respect to such transaction including the status thereof without the prior written consent of the DISCLOSING PARTY;
e. To execute and maintain confidentiality agreements with and among its individual employees, imposing the obligations and duties of this AGREEMENT upon said individual employees, especially with regard to any particular employee who would need to have access to such CONFIDENTIAL INFORMATION under this AGREEMENT in order for the RECEIVING PARTY to carry out the PURPOSE specified above; and
4. The RECEIVING PARTY’s obligations under paragraph 3, above, shall not apply to:
a. Any CONFIDENTIAL INFORMATION which, at the time of disclosure hereunder, is generally available to or generally known by the public or the trade;
b. Any CONFIDENTIAL INFORMATION which, after disclosure hereunder, becomes generally available to or generally known by the public or the trade through no breach by the RECEIVING PARTY of its obligations and duties herein, provided that the RECEIVING PARTY’s obligations under paragraph 3, above, shall apply to such CONFIDENTIAL INFORMATION described in this subparagraph for the period prior to the time that such CONFIDENTIAL INFORMATION so enters the public domain;
c. Any CONFIDENTIAL INFORMATION which, at the time of disclosure hereunder, was already within the RECEIVING PARTY’s possession and/or knowledge, provided the RECEIVING PARTY so advises the DISCLOSING PARTY, and furnishes the DISCLOSING PARTY with written documentation evidencing such;
d. Any CONFIDENTIAL INFORMATION which corresponds in substance to any information received in good faith by the RECEIVING PARTY from a third party having the legal right to make such a disclosure, provided the RECEIVING PARTY so advises the DISCLOSING PARTY, and furnishes the DISCLOSING PARTY with written documentation evidencing such, provided that the RECEIVING PARTY’s obligations under paragraph 3, above, shall apply to such CONFIDENTIAL INFORMATION described in this subparagraph for the period prior to the time such correspondingly identical information was received; or
e. Any CONFIDENTIAL INFORMATION which is developed by one of the RECEIVING PARTY’s employees wholly independently of disclosure hereunder, provided the RECEIVING PARTY so advises the DISCLOSING PARTY, and furnishes the DISCLOSING PARTY with written documentation evidencing such, provided that the RECEIVING PARTY’s obligations under paragraph 3, above, shall apply to such CONFIDENTIAL INFORMATION described in this subparagraph for the period prior to the time that such CONFIDENTIAL INFORMATION was so developed.
5. Should the RECEIVING PARTY become compelled by applicable law or legal process to
disclose any of the CONFIDENTIAL INFORMATION, the RECEIVING PARTY agrees to provide the DISCLOSING PARTY with immediate notice prior to said compelled disclosure and to consult with the DISCLOSING PARTY on the advisability of seeking a protective order or other means to preserve the confidential and proprietary nature of such CONFIDENTIAL INFORMATION.
6. The term for exchanging CONFIDENTIAL INFORMATION under this AGREEMENT shall commence upon the EFFECTIVE DATE and terminate five (5) years thereafter, unless such term is extended by mutual written agreement of the parties. Notwithstanding the foregoing, due to the valuable, proprietary, and trade secret nature of the information disclosed by each party to the other hereunder, all obligations and duties assumed by the RECEIVING PARTY hereunder, regarding the confidentiality and nondisclosure of such CONFIDENTIAL INFORMATION of the other, shall survive termination or expiration of this AGREEMENT.
7. Nothing in this AGREEMENT shall be deemed by implication or otherwise to convey to the RECEIVING PARTY any rights, title, or interest under any patents, patent applications, inventions, processes, trademarks, or copyrights which are owned by or licensed to or supplied to or by the DISCLOSING PARTY. Nor shall anything in this AGREEMENT be deemed by implication or otherwise to convey to the RECEIVING PARTY any other rights, title, or interest, other than those specified within this AGREEMENT.
8. Nothing in this AGREEMENT shall be deemed by implication or otherwise to create a commitment or obligation of any kind by either party to enter into any further agreement with the other party.
9. This AGREEMENT shall not be assignable in whole or in part by either party without the written consent of the other party.
10. This AGREEMENT shall be binding upon and shall inure to the benefit of each of the parties hereto and their respective heirs, devisees, legatees, executors, administrators, successors, and permitted assigns.
11. Without limiting the applicability of any other available remedy, the RECEIVING PARTY acknowledges that a violation of any provision of this AGREEMENT will result in immediate irreparable harm to the DISCLOSING PARTY, and both parties agree that, in the event of such a violation, the DISCLOSING PARTY shall be entitled to injunctive and other equitable remedies and such other relief as is deemed just and proper.
12. Any failure or delay by either party to insist upon strict performance of any provision hereof or to exercise any right, power, privilege, or remedy consequent upon default hereunder shall not constitute a waiver of any provision, right, power, or privilege, or of any available remedy under this AGREEMENT, including any provision the performance of which was not insisted upon and/or any right, power, privilege, and/or remedy which was not exercised.
13. Both parties agree that this AGREEMENT shall be construed and enforced in accordance with and shall be governed by the laws of the State of Arizona, without regard to its choice of law provisions. Further, any and all claims, questions or disputes regarding the interpretation, performance and enforceability of this AGREEMENT, the rights and remedies of the parties hereunder, and all related actions or counterclaims shall be initiated and prosecuted in state or federal court located in Phoenix, Maricopa County, Arizona. The parties agree to submit to the jurisdiction and venue of said courts.
14. In the event that any one or more of the provisions set forth in this AGREEMENT shall be for any reason held invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this AGREEMENT, and this AGREEMENT shall be construed as if the invalid, illegal, or unenforceable provision(s) had never been set forth herein. If any one or more of the provisions contained in this AGREEMENT shall for any reason be held to be excessively broad as to time, duration, activity, subject, or geographical scope, it shall be construed by reducing it so as to be enforceable to the extent capable.
15. This AGREEMENT may be executed in any number of counterparts, each of which counterpart, when so executed and delivered, shall be deemed to be an original, and all of which counterparts, taken together, shall constitute one and the same instrument. N2 and Prospective Customer further agree that Prospective Customer’s electronic signature and submission of this AGREEMENT to N2, with N2’s acknowledgment of receipt and delivery to Prospective Customer by confirming email to Prospective Customer with this AGREEMENT bearing Prospective Customer’s electronic signature, shall be binding to the same extent as original signatures.
16. This AGREEMENT comprises the entire agreement between the parties and supersedes all prior understandings or agreements between the parties relative to the sharing of information for the PURPOSE specified above. Each party hereto has cooperated in the drafting and preparation of this AGREEMENT. No principles of construction will be applied against either party on the basis that such party drafted this AGREEMENT. This AGREEMENT may be executed in any number of counterparts, evidenced by facsimile and/or scanned copies thereof, each of which when executed and delivered shall be an original, but all counterparts together shall constitute one and the same instrument. This AGREEMENT may not be amended or modified except through a writing executed by both parties.
IN WITNESS WHEREOF, each of the parties hereto has caused this AGREEMENT to be executed by its duly authorized representative as of the EFFECTIVE DATE.