This Agreement (the "Agreement"), effective this
()
day of
(the "Effective Date"), is entered into by and between Artberry Group Corp. (hereinafter "Disclosing Party") and the Recipient named below (the "Recipient", and together with the Disclosing Party, the "Parties", and each, a "Party").
Recipient Information
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In connection with the consideration of a possible investment, including disclosure to Recipient pertaining to the Disclosing Party's business listings, (the "Listing"), and the owners thereof (the "Seller(s)"), the Recipient desires to receive certain information from the Disclosing Party that is non-public, confidential, or proprietary in nature; and in consideration of the mutual covenants, terms and conditions set forth herein, the Parties agree as follows:
1. Confidential Information.
Except as set forth in Section 2 below, "Confidential Information" means all non-public, confidential, or proprietary information disclosed on or after the Effective Date, by the Disclosing Party to the Recipient or its affiliates, or to any of such Recipient's or its affiliates' employees, officers, directors, partners, shareholders, agents, attorneys, accountants, financing sources or advisors (collectively, "Representatives"), including, without limitation:
(a) all information concerning the Disclosing Party's and its affiliates', and their customers' and suppliers', past, present, and future finances, customer information, supplier information, products, services, know-how, forecasts, business, marketing, development, sales, and other commercial strategies.
(b) all notes, analyses, compilations, reports, studies, samples, data, statistics, summaries, interpretations, and other materials prepared by or for the Recipient or its Representatives that contain or derive from the foregoing, and any other information that would reasonably be considered non-public, confidential, or proprietary given the nature of the information and the Parties' businesses.
2. Exclusions from Confidential Information.
Except as required by applicable federal, state or local law or regulation, the term "Confidential Information" as used in this Agreement shall not include information that at the time of disclosure is, or thereafter becomes, generally available to and known by the public other than as a result of, directly or indirectly, any act or omission by the Recipient or any of its Representatives; or was known by or in the possession of the Recipient, as established by documentary evidence, prior to being disclosed by or on behalf of the Disclosing Party pursuant to this Agreement.
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3. Recipient Obligations.
The Recipient shall protect and safeguard the confidentiality of all Confidential Information with at least the same degree of care as the Recipient would protect its own confidential information, but in no event with less than a commercially reasonable degree of care; not use the Confidential Information, or permit it to be accessed or used, for any purpose other than the Purpose, including without limitation, to reverse engineer, disassemble, decompile or design around confidential intellectual property; not disclose any such Confidential Information to any person or entity, except to the Recipient's Representatives who need to know the Confidential Information in relation to the Purpose and are informed of the obligations hereunder and agree to abide by the same. Recipient will promptly notify the Disclosing Party of any unauthorized disclosure of Confidential Information or other breaches of this Agreement.
4. Required Disclosure.
Any Disclosure by the Recipient or its Representatives of any of the Disclosing Party's Confidential Information pursuant to applicable federal, state, or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction (a "Legal Order") shall be subject to the terms of this Section. Prior to making any such disclosure, the Recipient shall make commercially reasonable efforts to provide the Disclosing Party with prompt written notice of such requirement so that the Disclosing Party may seek a protective order or other remedy; and reasonable assistance in opposing such disclosure or seeking a protective order or other limitations on disclosure.
5. Return or Destruction of Confidential Information.
Upon the expiration or termination of this Agreement, or at the Disclosing Party's request at any time during the term of this Agreement, the Recipient and its Representatives shall promptly return to the Disclosing Party all copies, whether in written, electronic, or other form or media, of the Disclosing Party's Confidential Information, or destroy all such copies and confirm the same in writing to the Disclosing Party; provided, that the Recipient and its Representatives may retain such Confidential Information as is necessary to enable it to comply with its reasonable document retention policies.
6. Accuracy of Information.
Recipient acknowledges and understands that all information, including information pertaining to business listings, was supplied to the Disclosing Party by the Sellers and the Disclosing Party does not warrant the accuracy of such information. Furthermore, Recipient holds the Disclosing Party harmless for any loss due to inaccuracy of the information disclosed.
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7. Term and Termination.
The term of this Agreement shall commence on the Effective Date and shall expire 12 months from the Effective Date, provided that either Party may terminate this Agreement at any time by providing written notice to the other Party. Notwithstanding anything to the contrary herein, each Party's rights and obligations under this Agreement, irrespective of termination of this Agreement, shall survive until the 36 month anniversary of this Agreement, even after the return or destruction of Confidential Information by the Recipient (the "Confidential Period"), provided that for any and all trade secrets of the Disclosing Party, the Confidential Period shall last for as long as such Confidential Information qualifies as a trade secret under applicable federal, state and/or local law.
8. No Transfer of Rights, Title, or Interest.
The Disclosing Party hereby retains its entire right, title, and interest, including all intellectual property rights, in and to all Confidential Information.
9. No Other Obligation.
The Parties agree that this Agreement does not require or compel the Disclosing Party to disclose any Confidential Information to the Recipient or obligate any party to enter a business or contractual relationship. Either party may terminate discussions at any time.
10. Remedies.
The Recipient acknowledges and agrees that money damages might not be a sufficient remedy for any breach or threatened breach of this Agreement by the Recipient or its Representatives. Therefore, in addition to all other remedies available at law, the Disclosing Party shall be entitled to seek specific performance and injunctive and other equitable relief as a remedy for any such breach or threatened breach, and the Recipient hereby waives any requirement for the securing or posting of any bond or the showing of actual monetary damages in connection with such claim.
11. Non-Solicitation and Non-Circumvention.
During the term of this Agreement and for a period of twelve (12) months after the expiration or termination of this Agreement, without the Disclosing Party's prior written consent, the Recipient and its Representatives shall not contact or solicit an employee of the Disclosing Party for the purpose of hiring them, solicit the business of any client, customer or licensee of the Disclosing Party or outside of the ordinary course of business, directly or indirectly contact or participate in communications with any disclosed companies, entities or persons (including each of their affiliates, parents or subsidiaries).
12. Governing Law, Jurisdiction and Venue.
This Agreement shall be governed by and construed in accordance with the laws of Suffolk County, New York. Any legal suit, action or proceeding arising out of or related to this Agreement or the matters contemplated hereunder shall be instituted exclusively in the courts of Suffolk County.
13. Notices.
All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing by email and shall be deemed to have been given on the date sent by e-mail if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient to the email address provided by the parties at the time hereof.
14. Miscellaneous.
This Agreement constitutes the sole and entire agreement of the Parties with respect to the subject matter hereof and supersedes all other understandings and agreements with respect to such subject matter. If any term hereof is invalid or unenforceable, it shall not affect any other term or provision of this Agreement. Neither party may assign this Agreement without written consent of the other party. No waiver shall be deemed or implied hereunder.