(hereinafter "Recipient")
On the Other Hand
MARTAC and Recipient shall hereinafter be referred to as "Party" or
collectively as the "Parties", as the text may require.
1. Definitions
1.1. "Agreement" means this Non-Disclosure / Proprietary
Information Agreement.
1.2. "Proprietary Information" as used in this Agreement
shall mean all trade secrets and information which is disclosed by the
Disclosing Party whether written, oral or recoded on any other media
provided by one party to the other party, including, but not limited to,
technical data, know how, type design, concepts, descriptions,
specifications, schematics, research, product plans, products, services,
lists of customers, markets, developments, inventions, processes,
manufacturing processes designs, drawings, films, documentation,
engineering hardware configuration information, engineering data,
marketing, notes, models, compositions, algorithms, software programs,
software source documents, program schedule, visual demonstrations,
photographs, manuscripts, texts, video recordings, formulations, equipment
or apparatus, oral discussions, sales, customer lists, marketing and/or
business plans and/or financial information, cost estimates, pricing
policy, which is identified as Proprietary and/or proprietary by the
Disclosing Party in accordance with the guidelines in Article 3.
1.3. "Disclosing Party" means that Party which directly or
indirectly provides or makes available Proprietary Information to the other
in connection with this Agreement.
1.4. "Receiving Party" means that Party which receives or
obtains Proprietary Information directly or indirectly from the Disclosing
Party in connection with this Agreement.
2. Purpose
The purpose of this Agreement is to set forth the rights and obligations of
the Parties with respect to the use, handling, protection, and safeguarding
of Proprietary Information which is disclosed by MARTAC to Recipient,
certain proprietary information related to surface, subsurface multi-mode,
and hybrid vehicles, communication systems, command and control systems,
sensors (e.g. RF, EO, IR, SONAR, others) (hereinafter "MARTAC Proprietary
Information") for the purpose of furthering the MARTAC technologies for
both U.S. and International opportunities as they relate to the areas
mentioned above and the use, handling, protection, and safeguarding of
Proprietary Information which is disclosed by the Recipient to MARTAC,
consisting of certain proprietary information (hereinafter "Recipient
Proprietary Information"), (the "Purpose").
3. Guidelines
3.1. When disclosed in writing, on magnetic, optical or any other type of
media, Proprietary
Information will be clearly and conspicuously marked by the Disclosing
Party as
Proprietary and/or Proprietary Information.
3.2. When disclosed orally, Proprietary Information will be identified as
Proprietary Information at the time of the oral disclosure and summarized
in writing or other tangible form which will be delivered no later than 30
calendar days after the oral communication. The summary will be
appropriately marked Proprietary in accordance with Article 3.1. During the
thirty (30) days period, such information shall be protected as Proprietary
Information.
3.3. In the event that the Disclosing Party inadvertently or accidentally
fails to identify information or data disclosed to the Receiving Party as
being Proprietary Information in accordance with the above provisions, the
Disclosing Party may correct such inadvertence or accident by notifying the
Receiving Party in writing within thirty (30) days after the discovery
thereof, provided that the Receiving Party shall have no liability with
respect to any disclosure or uses of the unidentified or unmarked
Proprietary Information which occurred prior to receipt of such
notification.
4.
Limitations on Use and Disclosure of Proprietary Information
4.1. Proprietary Information shall be used by the Receiving Party for no
purpose other than carrying out the Purpose detailed in Article 2 above.
4.2. Proprietary Information or any portion thereof shall not be disclosed
and/or revealed and/or released and/or transferred by the Receiving Party,
directly or indirectly, to any third party, including without limitation
any of the Receiving Party's subcontractors, agents and consultants,
without the prior written consent of the Disclosing Party. Disclosure of
Proprietary Information by the Receiving Party pursuant this Article, if
authorized, shall be made via written agreement containing terms and
conditions no less restrictive than those of this Agreement.
4.3. The Receiving Party will allow access to Proprietary Information
belonging to the Disclosing Party only to its employees who have a “need to
know” and to the extent necessary to perform their work within the Purpose
detailed in Article 2 above. In this regard, the Receiving Party will be
responsible for ensuring that the obligations of Proprietarily and non-use
contained herein are observed by its employees and it represents that it
has instituted policies and procedures which provide such adequate
protection.
4.4. The Receiving Party shall not, directly or indirectly analyze,
decompile or otherwise reverse engineer any tangible samples or materials
comprising the Proprietary information without express written permission
of the Disclosing Party.
4.5. If Proprietary Information is required to be disclosed by the
Receiving Party to its government, or under the order of a court of
competent jurisdiction, the Receiving Party shall promptly, and to the
extent possible before making such disclosure, notify the Disclosing Party
of such order and provide reasonable assistance to prevent such disclosure.
Nevertheless, Proprietary Information disclosed pursuant this disclosure
shall otherwise continue to be Proprietary Information protected in
accordance with all the provisions of this Agreement.
5. Standard of Care
5.1. The Parties agree to hold all such Proprietary Information in
confidence for the Disclosing Party and to store and protect the
Proprietary Information by the use of, at least, the same degree of care
that each Party uses to protect its own Proprietary Information, and in any
event not less than a reasonable standard of care and to retain and not to
remove any Proprietary Information stamps or marking appearing on such
Proprietary Information.
5.2. Any Information disclosed by the Parties under this Agreement which is
Classified
Information shall be protected used and handled, in accordance with
security procedures
prescribed by the appropriate Government.
6. Contact
Each Party shall designate in writing one or more individuals within its
organization as the
only point of contact for receiving Proprietary Information. Designated
authorized recipients may be changed at any time upon prior written notice.
7. Exceptions to the Limitations of Use
The obligations with respect to handling of Proprietary Information set
forth in this Agreement are not applicable to any information which:
7.1. prior to its disclosure by the Disclosing Party to the Receiving
Party, was lawfully already known to the Receiving Party (not as a result
of a breach of any duty or obligation towards the Disclosing Party)
provided that immediately upon the disclosure by the Disclosing Party, the
Receiving Party will bring such fact to the attention of the Disclosing
Party; or is at the time of disclosure in the public domain or which
becomes public domain in each case, where the publication making such
information public domain is not the result of a breach of this Agreement;
or
7.2. is legally received from a third party where the Receiving Party has
no reasonable cause to believe that the receipt or the disclosure of such
information by such third party was the result of or constitutes a breach
of any duty or obligation towards the Disclosing Party; or
7.3. is independently developed by the Receiving Party without any
reference to the Proprietary Information and by employees who did not have
any access to it; or
7.4. is approved for release or use, by written authorization of the
Disclosing Party.
7.5. If any portion of the Proprietary Information falls within any one of
the above exceptions, the remainder shall continue to be subject to the
restrictions of this Agreement.
8. Burden of Proof
8.1. The burden of proof that Proprietary Information which is disclosed
resides within one of the exceptions set forth in Article 7 above, shall be
on the Receiving Party.
8.2. The Receiving Party shall maintain the Proprietary Information until
the Receiving Party has by clear and convincing evidence demonstrated to
the Disclosing Party the validity of the aforesaid exceptions.
8.3. In the event of a dispute between the Parties regarding the
applicability of one of the exceptions set forth in Article 7 above, the
Receiving Party shall maintain the Proprietary Information until a final
and non-appealable arbitration award and/or a final non-appealable court
judgment is granted.
9. Term and Termination
9.1. The term of this Agreement, during which time information and data may
be exchanged, shall be for a period of 5 years from the Effective Date.
9.2. This Agreement may be terminated earlier by either party giving at
least 30 day’s notice in writing to the other party of its intention to do
so.
9.3.After the termination or expiry of this Agreement the Receiving Party
will not make any further use, directly or indirectly, of the Proprietary
Information for any purpose without
the prior written permission of the Disclosing Party. Termination or expiry
of this Agreement in accordance with the provisions of Article 9.1 and 9.2
shall not relieve the Receiving Party of its Proprietary obligations under
this Agreement. Those obligations shall continue until the Proprietary
Information falls within one of the exceptions set forth in Article 7
above.
10. Return or Destruction of Proprietary Information
10.1. Within thirty (30) days of the completion of the activities
contemplated in Article 2 above or of termination or expiry of this
Agreement or of Disclosing Party’s request, whichever shall first occur,
the Receiving Party shall return or destroy all Proprietary Information
disclosed hereunder and all copies thereof, at the choice of the Disclosing
Party to be delivered in writing, and certify in writing that all copies
thereof in its possession have been returned and/or destroyed.
10.2. Upon written request by one Party, the other Party shall provide a
signed, dated receipt which itemizes the Proprietary Information
transmitted or received hereunder.
11. Ownership of Proprietary Information
11.1. All Proprietary Information disclosed under this Agreement shall
remain the property of the Disclosing Party.
11.2. No license or conveyance of any rights to either Party under any
discoveries, inventions, patents, trade secrets, copyrights, or other form
of intellectual property is expressly granted or implied by the disclosure
or exchange of Proprietary Information between the Parties.
12. Disclaimer
12.1. The Disclosing Party warrants that it has the right to disclose the
Proprietary Information to the Receiving Party. No other warranties or
representations are made by the Disclosing Party under this Agreement. In
furnishing any information or data hereunder, the Disclosing Party makes no
warranty, guarantee, or representation, either expressed or implied, as to
its adequacy, accuracy, sufficiency, or freedom from defect of any kind,
including freedom from any patent infringement that may result from use
thereof. Neither Party shall be liable in damages, of whatever kind, as a
result of the other Party's receipt or use of, or reliance on, any
information or data furnished hereunder, nor shall either Party be liable
for incidental, special or consequential damages regarding the matters
which are mentioned in this clause above.
12.2. Nothing herein may be construed as creating any obligation on the
part of either Party to disclose information or to enter into a business
relationship whatsoever with the other.
13. Successors
13.1. This Agreement shall be binding upon and inure to the benefit of the
respective successors and assigns of both Parties.
14. Article Headings
The headings of articles contained herein are used for convenience and ease
of reference and
do not limit or expand the scope or intent of the article.
15. Applicable Law and Jurisdiction
15.1. This Agreement shall be construed by the laws of laws of the State of
Florida, United States of America without regard to its choice of law
rules.
15.2. Any dispute arising out of or in connection with this Agreement,
including a dispute as to the validity or existence of this Agreement
and/or this Article 15.2, unless settled amicably, shall be governed by and
construed in accordance with the laws of the State of Florida, without
regard to its choice of law provisions. Jurisdiction and venue will lie in
the State of Florida, Brevard County, for all causes of action arising
under this Agreement and arbitration will be conducted in the English
Language by a single arbitrator. The arbitrator shall set forth his opinion
in writing, with reasons for the decision. The arbitrator's award may
include compensatory damages against either Party, but under no
circumstances will the arbitrator be authorized to nor shall he award
punitive, exemplary or multiple damages against either Party. The
arbitration award shall be final and binding and shall not be subject to
appeal to any court in any jurisdiction. The prevailing party may enter
such decision in any court having competent jurisdiction. The arbitration
proceedings shall be kept in Proprietary from any entity/person not taking
part in them.
15.3. The Receiving Party acknowledges that monetary damages may be an
insufficient remedy for damages resulting from the unauthorized disclosure
of Proprietary Information and that the Disclosing Party shall be entitled,
without waiving any other rights or remedies, to seek such injunctive or
other equitable relief as may be deemed appropriate by a competent
jurisdiction. Nothing herein shall be construed as prohibiting the
Disclosing Party from pursuing any other available remedy for unauthorized
disclosure or for breach of this Agreement.
15.4. If any provision of this Agreement is held by a court of competent
jurisdiction to be illegal, invalid or unenforceable, the remaining
provisions shall remain in full force and effect. Should any of the
obligations of this Agreement be found illegal or unenforceable as being
too broad with respect to the duration, scope or subject matter thereof,
such obligations shall be deemed and construed to be reduced to the maximum
duration, scope or subject matter allowable by law in order to accommodate
for the Parties' intentions on the Effective Date.
16. Effective Date
This Agreement shall be effective as of the date of the last signature
appearing herein.
17. Waiver
The failure of the either Party, at any time, to require performance and/or
enforcement of any
provision of this Agreement shall not be construed as a waiver of the
requiring Party of its rights under this Agreement, nor shall the failure
of the requiring Party to take action affect its rights, at some later
date, to enforce these rights under this Agreement for breach of any of the
provisions of this Agreement.
18. Commitment
Nothing in this Agreement shall grant to either Party the right to make
commitments of any
kind on behalf of the other Party. This Agreement shall not constitute,
create, give effect to or otherwise imply a joint venture or partnership or
representation or formal business organization of any kind. The exchange of
Proprietary Information hereunder does not constitute or otherwise imply an
offer, acceptance of promise for any future contract or amendment to any
existing contract between the Parties.
19. Anticorruption
Each Party declares and agrees that in connection with activities under
this Agreement it has
not knowingly performed and/or will not perform any act which would
constitute a violation of the any other applicable anticorruption laws
and/or regulations (the "Relevant Anticorruption Laws") or which would
cause either Party hereto to be in violation of the Relevant Anticorruption
Laws.
20. Assignment
Neither Party shall assign or otherwise transfer any of its rights nor
shall obligations under
this Agreement to any third party inure without the prior written consent
of the other Party and any attempted assignment or transfer without such
prior written consent shall be null and void.
21. Entire Agreement
21.1. This Agreement contains the entire understanding between the Parties,
superseding all prior communications, Agreements, and understandings
between the Parties with respect to the purpose of this Agreement.
21.2. This Agreement shall remain in full force and effect, whether or not
the Disclosing Party shall at any time own or control the rights to the
Information.
21.3. No amendment of this Agreement shall be effective unless reduced to a
form executed by duly authorized representatives of both Parties. This
Agreement shall apply in lieu of and notwithstanding any specific legends
or statements associated with any particular information.
IN WITNESS WHEREOF,
the Parties have caused this Non-Disclosure / Proprietary Information
Agreement to be executed by their duly authorized representatives as of the
day and year last written below.
