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UNILATERAL CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
This Unilateral Confidentiality and Non-Disclosure Agreement (the "Agreement") is dated on the email generated by your signature below (the "Effective Date"), and is between Mike Magnant, an Individual, whose business address is 119 River Chase, Hendersonville, TN 37075 (UPLINE) and the party whose name and phone number and business address are listed on the NDA eSignature block below ("DOWNLINE APPLICANT").
WHEREAS, the UPLINE and DOWNLINE APPLICANT (each a "Party" and collectively the "Parties") have entered into negotiations or discussions concerning a potential business relationship between them and/or professional services to be rendered by The UPLINE to DOWNLINE APPLICANT (the "Business Relationship") that have required and may continue to require the UPLINE to disclose certain confidential and proprietary information to DOWNLINE APPLICANT; and
WHEREAS, the Parties wish to protect such confidential and proprietary information, pursuant to this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, agreements and promises contained in this Agreement, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged the Parties hereby, agree as follows:
1. Scope of Agreement. This Agreement will apply to all Confidential Information disclosed by or on behalf of the UPLINE to DOWNLINE APPLICANT, including, without limitation, to DOWNLINE APPLICANT's officers, directors, shareholders, attorneys, accountants, employees, consultants, independent contractors, agents, and other representatives.
2. Definition of Confidential Information. The Parties acknowledge and agree that "Confidential Information", in whatever form disclosed hereunder, including, without limitation, written, visual, audible or oral, means all non-public or proprietary information, matters and materials of the UPLINE (including any parent, subsidiary of affiliated entity of the UPLINE, including, without limitation, to the extent non-public or proprietary, business plans, designs, software, business methods, know-how, recipes, formulations, trade secrets, techniques, pricing policies, marketing plans, strategies, forecasts, financial and cost information, customer lists, improvements, proposals, inventions, products, supplier lists, employee lists, projects, and other business and financial affairs of the UPLINE and its predecessors to which DOWNLINE APPLICANT has had or may have access. The Parties further acknowledge and agree that Confidential Information also includes any reports, notes, summaries, abstracts, or drafts of Confidential Information or of oral presentations, reports, or discussions referring to, describing, elaborating upon, or otherwise relating to Confidential Information. Information of the UPLINE will not be deemed Confidential Information if (i) it is already, or otherwise becomes, known to the public other than as a result of any act or omission of DOWNLINE APPLICANT, its officers, directors, employees, agents, or other representatives; (ii) it is lawfully received from a third party having the right to disseminate the information without restriction on disclosure; or (iii) it is voluntarily furnished to others by the UPLINE without restriction on disclosure.
3. Disclosure of Confidential Information to DOWNLINE APPLICANT for Limited Purpose; DOWNLINE APPLICANT Has No Rights in any Confidential Information. Each Party hereto acknowledges that, in connection with the Business Relationship, the UPLINE has provided, or from time to time may provide, Confidential Information to DOWNLINE APPLICANT in confidence and solely for the purpose of evaluating, negotiating, or otherwise discussing the Business Relationship. The Parties agree and acknowledge this Agreement will apply to Confidential Information disclosed by the UPLINE to DOWNLINE APPLICANT both before and after the Effective Date. DOWNLINE APPLICANT represents and warrants that DOWNLINE APPLICANT has treated, and will continue to treat, all Confidential Information of the UPLINE as confidential and secret and that DOWNLINE APPLICANT has not disclosed or permitted access to, and will not disclose or permit access to, such Confidential Information except as permitted under this Agreement. DOWNLINE APPLICANT acknowledges and agrees that (i) the UPLINE claims and reserves all rights afforded under all applicable privacy, intellectual property, and trade secret laws, regulations, and rulings in all Confidential Information furnished to DOWNLINE APPLICANT; (ii) DOWNLINE APPLICANT is granted only a limited right of use of Confidential Information, as specified above, which right is revocable at will by the UPLINE and not coupled with any interest in the Confidential Information; (iii) this Agreement will not effect any transfer of right, title, or interest in or to any Confidential Information of the UPLINE, all of which rights (including any applicable copyright rights) will remain fully vested in the UPLINE; (iv) DOWNLINE APPLICANT will not assert any right, title, or interest in any Confidential Information of the UPLINE; and (v) The UPLINE grants no license under any patents, trademarks, service marks or copyrights under this Agreement.
4. Obligations of DOWNLINE APPLICANT. DOWNLINE APPLICANT agrees: (i) to protect any and all Confidential Information from unauthorized use or disclosure with at least the same degree of care such Party uses to protect its own confidential information of a similar nature; (ii) to use the Confidential Information only for the purposes expressly set forth in, and in accordance with, the terms of this Agreement; (iii) not to copy or reproduce any Confidential Information in any form, except to the extent contemplated by this Agreement; (iv) not to disclose to or otherwise permit any third person or entity access to any Confidential Information except with prior written consent of the UPLINE; (v) to limit disclosure of Confidential Information to those employees, agents, or other representatives of DOWNLINE APPLICANT who are necessary for and involved in DOWNLINE APPLICANT's evaluation of the Business Relationship and the performance of DOWNLINE APPLICANT's obligations under this Agreement; (vi) to ensure that any of DOWNLINE APPLICANT's employees, agents, or other representatives who receive or obtain Confidential Information are advised of the nature of the Confidential Information and of the obligations DOWNLINE APPLICANT has undertaken with respect to such information under this Agreement and agree to comply with these obligations; and (vii) to take any and all other steps necessary to safeguard Confidential Information against unauthorized access or disclosure. DOWNLINE APPLICANT further agrees that, to assist (NAME) in identifying any access, disclosure, or use of Confidential Information in a manner inconsistent with the provisions of this Agreement, DOWNLINE APPLICANT will, upon request, inform (NAME) of all individuals or entities to whom the Confidential Information has been disclosed, or who otherwise have been afforded access thereto. DOWNLINE APPLICANT must notify (NAME) immediately, both orally and in writing, of any known possession, use, or knowledge of any Confidential Information by any person or entity other than those authorized under this Agreement to receive the immediately, both orally and in writing, of any known possession, use, or knowledge of any Confidential Information.
5. Return of Confidential Information by DOWNLINE APPLICANT. Upon the UPLINE's request or termination of the Business Relationship, whichever occurs first, DOWNLINE APPLICANT will immediately and voluntarily surrender to the UPLINE all Confidential Information, together with any drafts, copies, or other non-originals thereof, in DOWNLINE APPLICANT's possession, custody, or control, or in the possession, custody, or control of any of DOWNLINE APPLICANT's officers, directors, employees, agents, or other representatives.
6. The UPLINE's Right to Injunctive Relief. DOWNLINE APPLICANT acknowledges and agrees that the UPLINE operates in a highly regulated and competitive environment; and that the unauthorized disclosure or use of Confidential Information will cause irreparable harm and significant injury to the UPLINE which will be difficult to measure with certainty or to compensate through monetary damages. Accordingly, DOWNLINE APPLICANT agrees that injunctive or other equitable relief will be appropriate in the event of any breach by DOWNLINE APPLICANT or DOWNLINE APPLICANT's officers, directors, shareholders, attorneys, accountants, employees, consultants, independent contractors, agents, and other representatives of any obligation assumed under this Agreement, in addition to such other remedies as may be available at law.
7. No Warranties Regarding Confidential Information DOWNLINE APPLICANT acknowledges and agrees that neither the UPLINE, nor any of its officers, directors, employees, agents, or other representatives (collectively the "Related Parties") has made or will make any representation concerning the accuracy or completeness of Confidential Information, which is provided to DOWNLINE APPLICANT in an "AS IS" condition. Neither the UPLINE nor any Related Party will have any liability whatsoever to DOWNLINE APPLICANT resulting from DOWNLINE APPLICANT's use of Confidential Information.
8. No Use of Trade Names. DOWNLINE APPLICANT may not use the names, trade names, service marks, trademarks, trade dress, or logos of the UPLINE in publicity releases, advertising, or any other external communications or public disclosures without the UPLINE's prior written consent.
9. Indemnity. DOWNLINE APPLICANT agrees to indemnify, defend, and hold the UPLINE and the Related Parties harmless from or against any actual or threatened legal or administrative action, claim, liability, penalty, fine, assessment, lawsuit, litigation, or other loss, expense, or damage including, but not limited to, any reasonable attorneys' fees and costs, that the UPLINE or Related Parties may incur, arising from DOWNLINE APPLICANT's breach of any provision of this Agreement.
10. Survival. This Agreement is effective as of the Effective Date. The Parties' rights and obligations under this Agreement will survive its termination and the termination of any negotiations or discussions between the Parties or the Business Relationship.
11. No Agency Relationship. In evaluating, negotiating, or discussing the Business Relationship, or in performing its obligations under any agreement to further the goals of the Business Relationship, each Party will act solely in its own capacity and not as an agent, servant, employee, joint venturer or representative of the other Party or any related entity. Consequently, neither Party has any authority to bind the other Party. Furthermore, neither Party will make any statement or take any action that might cause any third party to believe that it has the authority to transact any business, enter into any agreement, or in any way bind or make any commitment on behalf of the other Party or any entity affiliated with the other Party, unless expressly authorized in writing by a duly authorized officer of the other Party.
12. Waiver. No delay or omission by a Party to exercise any right or power occurring upon any noncompliance or default by the other Party with respect to any of the terms of this Agreement will impair any such right or power or be construed to be a waiver thereof. A waiver by a Party of any of the provisions of this Agreement will not be construed to be a waiver of any succeeding breach thereof or of any other provision.
13. Governing Law and Venue. This Agreement will be construed in accordance with the laws of the State of Tennessee, including Tennessee's statues of limitation, without regard to choice of law principles. Each Party agrees that any action brought under this Agreement must be exclusively brought in the state or federal courts located in the County of Sumner, Tennessee. In any action upon this Agreement, each Party irrevocably consents to the personal jurisdiction of the aforementioned courts. Each Party also agrees not to oppose the venue of such action in Sumner County, Tennessee on the grounds of improper or inconvenient forum.
14. No Obligation to Enter into Business Relationship. Nothing in this Agreement will obligate either of the Parties to consummate the Business Relationship or otherwise enter into any business transaction with the other Party. Each Party claims and reserves the right, in its sole and absolute discretion and judgment, to terminate all negotiations and discussions with the other Party for any reason.
15. Miscellaneous Provisions. This Agreement constitutes the entire Agreement between the Parties with respect to its subject matter and there are no understandings or agreements relative to that subject matter other than those that are explicitly expressed herein. In any legal action arising from this Agreement, the prevailing Party will be entitled to its reasonable attorneys' fees and costs, in addition to any other relief to which such Party may be entitled. The UPLINE will have the unrestricted right to assign, delegate, subcontract, or otherwise transfer any or all of its rights and/or obligations under this Agreement to any parent, subsidiary, or other affiliate, or to any entity that is a successor in interest to any phase of the UPLINE's business. DOWNLINE APPLICANT may not partially or completely assign, delegate, subcontract, or otherwise transfer any of DOWNLINE APPLICANT's rights or obligations except with the express, written consent of a duly authorized officer of the UPLINE. This Agreement may be altered, amended, or otherwise changed only by a written instrument signed by authorized officers of both Parties.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized officers as set forth below.