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NONDISCLOSURE AGREEMENT
Each undersigned party, in consideration of the discussions among representatives of New Age Manufacturing, Inc. (the "Receiving Party") and _____________________________ (the "Disclosing Party") (the Disclosing Party and Receiving Party sometimes are separately referred to herein as the "Party" and collectively as the "Parties") relating to possible present and future business relationships between the Receiving Party and the Disclosing Party (the "Business Relationship"), and further in consideration of any access the Receiving Party may have to Proprietary Information (as defined in Section 1 hereof) of the Disclosing Party, and intending to be legally bound hereby, agrees as follows:
Section 1. Disclosure of Proprietary Information. The Receiving Party understands that the Disclosing Party may disclose information related to the Disclosing Party's assets, properties and business, including, without limitation, the names and expertise of employees and consultants, business relationship, negotiations with third parties, know-how, processes, ideas, inventions (whether patentable or not) and other technical, business, financial, customer and product research and development plans, forecasts, strategies and information, which, to the extent presently or subsequently disclosed to the Receiving Party, is hereinafter referred to as "Proprietary Information" of the Disclosing Party. The Receiving Party understands that nothing contained in this Agreement (i) requires the disclosure of any Proprietary Information of the Disclosing Party, which shall be disclosed, if at all, solely at the option of the Disclosing Party; or (ii) requires the Disclosing Party to proceed with any proposed transaction or relationship in connection with which Proprietary Information may be disclosed.
Section 2. Confidentiality / Non-use. The Receiving Party hereby agrees to the following:
(1) to hold the Disclosing Party's Proprietary Information in strict confidence and to take all reasonable precautions to protect such Proprietary Information (including, without limitation, all precautions the Receiving Party employs with respect to its confidential information) ;
(2) not to divulge any such Proprietary Information or any information derived there from to any third person;
(3) not to make any use whatsoever at any time of such Proprietary Information except to evaluate internally whether to enter into the currently contemplated Business Relationship with the Disclosing party; and
(4) not to copy or reverse engineer any such Proprietary Information.
(5) Any employee of the Receiving Party given access to any such Proprietary Information must be reasonably acceptable to the Disclosing party and shall be similarly bound in writing for the Disclosing Party's benefit.
(6) Except to the extent required by law, no Party shall disclose the existence or subject matter of the negotiations or Business Relationship contemplated by this agreement.
Section 3. Permitted Disclosures. Without granting any right or license, the Disclosing Party agrees as follows:
(1) Section 2(a) shall not apply with respect to any information that the Receiving Party can document, (i) is or (through no improper action or inaction by the Receiving Party or any affiliate, agent, consultant or employee of the Receiving Party) becomes generally known to the public; or (ii) was in its possession or known by it prior to receipt from the Disclosing Party; or (iii) was rightfully disclosed to it by a third party without restriction; and
(2) Section 2 in its entirety shall not apply to disclosures agreed to by the Disclosing Party. The Receiving Party may make disclosures required by a court order, provided the Receiving Party used best diligent efforts to limit disclosure and to obtain confidential treatment or a protective order and has allowed the Disclosing Party to participate in the proceeding.
Section 4. Return of Proprietary Information. Immediately upon (i) the decision by either the Disclosing Party or the Receiving Party not to enter into the Business Relationship, or (ii) request by the Disclosing Party at any time (which will be effective if actually received or three days after mailed first class postage prepaid to the Receiving Party's address herein), the Receiving party shall turn over to the Disclosing Party all or media containing any such Proprietary Information and any and all copies or extracts thereof.
Section 5. Term. This Agreement shall apply to disclosures made within three (3) years of the date of this Agreement; provided, however, that the obligations hereunder with respect to any disclosures made within that period shall continue indefinitely.
Section 6. Remedies. The Receiving Party acknowledges and agrees that due to the unique nature of the Disclosing Party's Proprietary Information, there may be no adequate remedy at law for any breach of its obligations hereunder, and that any such breach may allow the Receiving Party or third parties to unfairly compete with the Disclosing Party. The Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever remedies it might have at law, and to be indemnified by the Receiving Party form any loss or harm, including without limitation, reasonable and customary attorney's fees in connection with enforcement of the Receiving Party's obligations hereunder. The Receiving Party shall notify the Disclosing Party in writing immediately upon the occurrence of any such unauthorized release or other breach of which it is aware. No failure or delay in enforcing any right hereunder shall be deemed a waiver.
Section 7. Binding Effect. This Agreement shall be binding upon and shall insure the benefit of the parties hereto and their respective heirs, successors and assigns. Nothing herein expressed or implied is intended to confer upon any person, other than the Parties and their respective heirs, successors and assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement, unless such person is expressly stated to be entitled to any such right, remedy or claim.
Section 8. Nebraska Law to Govern. This Agreement shall be governed by and interpreted and enforced in accordance with the substantive laws of the State of Nebraska, without regard to conflicts of laws principles.
Section 9. Contents of Agreement. The Agreement embodies the entire agreement of the Parties regarding the subject matter hereof, and supersedes any prior and contemporaneous negotiations, agreements and understandings among the Parties. No provision of this Agreement may be amended, modified, terminated or waived by an instrument in writing signed by each of the Parties.
Section 10. Section Headings. All section headings are for convenience only and shall in no way modify or restrict any of the terms or provisions hereof.
Section 11. Cooperation. Subject to the provisions hereof, the Parties shall use their reasonable best efforts to take, or cause to be taken, such action to execute and deliver, or cause to be executed and delivered, such additional documents and instruments and to do, or cause to be done, all things necessary, proper or advisable under the provisions of this Agreement and under applicable law to consummate and make effective the transaction contemplated by this Agreement.
Section 12. Severability. Any provision of this Agreement which is invalid or unenforceable in any jurisdiction shall be ineffective to the extent of such invalidity or unenforceability without invalidating or rendering unenforceable the remaining provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
Section 13. Counterparts. This Agreement may be executed in two or more counterparts, each of which is an original and all of which together shall be deemed to be one and the same instrument. This Agreement shall become binding when one or more counterparts taken together shall have been executed and delivered by all of the Parties. It shall not be necessary in making proof of this Agreement or any counterpart hereof to produce or account for any of the other counterparts.
IN WITNESS WHERE OF, the Parties have duly executed this Agreement as of date or dates hereinafter set forth.
New Age Manufacturing, Inc., the Receiving Party
By: David S. Wood, Its President Date
_______________________,the Disclosing Party
By: ____________________________________ Date