NDA

I, mukkle seller, agree to this Mutual NDA with mukkle buyer


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MUTUAL NONDISCLOSURE AGREEMENT
 
This Agreement is made as of the 29th day of February, 2016 (the “Effective Date”) between mukkle seller, Jamaica (“seller") and mukkle buyer, of Kingston, Jamaica (“buyer”).
 
            WHEREAS "seller and buyer" desire to explore and discuss the potential mutual benefits from certain business arrangements or activities, which explorations and discussions are herein referred to as the “Discussions”;
 
            AND WHEREAS in connection with the Discussions, mukkle seller and mukkle buyer will acquire certain confidential information relating to each other’s businesses and desire to protect the confidentiality of, maintain their respective rights in, and prevent the unauthorized use and disclosure of such confidential information during and after the Discussions;

 NOW THEREFORE for valuable consideration (the receipt and sufficiency of which is hereby acknowledged) mukkle seller and mukkle buyer hereby agree as follows:


1.              CONFIDENTIAL INFORMATION.  “Confidential Information” shall mean all information disclosed by one party or its agents (“Disclosing Party”) to the other party or its agents (“Receiving Party”) relating to the assets, business plans, customers, employees, equipment, financial statements and financial performance, intellectual property, inventory, market strategies, operations, pricing, products, suppliers, know how, and trade secrets of the Disclosing Party whether communicated in written form, orally, visually, demonstratively, technically or by any other electronic form or other media, or committed to memory, and whether or not designated, marked, labelled or identified as confidential or proprietary, including: (i) information relating to identifiable individuals (“Personal Information”); and (ii) all analyses, compilations, records, data, reports, correspondence, memoranda, specifications, materials, applications, technical data, studies, derivative works, reproductions, copies, extracts, summaries or other documents containing or based upon, in whole or in part, any of the information listed above in this Section 1. Notwithstanding the foregoing, Confidential Information shall not include any information, other than Personal Information, which is or becomes generally available to or known by the public, other than as a result of improper disclosure by the Receiving Party or any of its Representatives (as defined herein).

2.              USE OF CONFIDENTIAL INFORMATION.  The Receiving Party may use Confidential Information only in pursuance of the Discussions and its business relationship with the Disclosing Party. 

3.              NON-DISCLOSURE.  The Receiving Party agrees that all Confidential Information will at all times, and for all purposes, be held by the Receiving Party in strict confidence and not disclosed to any third parties. Notwithstanding the foregoing, the Receiving Party may disclose the Confidential Information to its directors, officers, employees, agents, consultants, advisors and other representatives, accountants, auditors and lenders (collectively, “Representatives”), only if such Representatives have a need to know the Confidential Information to assist the Receiving Party in connection with the Discussions and carrying out its obligations under this Agreement, who are informed by the Receiving Party of the confidential nature of the Confidential Information and who are bound by confidentiality obligations identical to those contained herein. The Receiving Party will be responsible for any breach of this Section 3 or any disclosure, divulgence, communication or use of the Confidential Information in a manner not authorized by this Agreement by any of its Representatives.

Without the prior written consent of the Disclosing Party, the Receiving Party will not, and will not allow its Representatives to, disclose to any other person or entity: (i) any part of the Confidential Information; (ii) that the Confidential Information has been made available; (iii) that this Agreement has been entered into; (iv) that any discussions or negotiations have been entered into with respect to the Discussions; or (v) any of the terms, conditions or other facts with respect to the Discussions, except as provided in this Section 3 and Section 5 below.

4.              STORAGE OF CONFIDENTIAL INFORMATION. The Receiving Party will store the Confidential Information properly and securely and ensure that appropriate technical and organizational means are in place to protect it against unauthorized or unlawful access or processing and against accidental loss, destruction or damage, including taking reasonable steps to ensure the reliability of any of Representatives permitted by the Receiving Party to have access to the Confidential Information.

5.              REQUIRED DISCLOSURE. If the Receiving Party or any of its Representatives is required by applicable law or by any governmental authority to disclose any Confidential Information, the Receiving Party or the applicable Representative will, (i) prior to making the disclosure, provide the Disclosing Party with prompt written notice of the requirement, to allow the Disclosing Party to seek a protective order or other appropriate remedy; (ii) disclose only such portion of the Confirmation Information as is legally required; and (iii) use commercially reasonable efforts to obtain confidential treatment for any Confidential Information so disclosed.

6.              OWNERSHIP OF CONFIDENTIAL INFORMATION.  The Receiving Party acknowledges and agrees that the Disclosing Party is the exclusive owner of all right, title and interest in and to the Disclosing Party’s Confidential Information. The Receiving Party further acknowledges that the Receiving Party has no right, title, interest or licence in or to the Disclosing Party’s Confidential Information, except for the right, subject to this Agreement, to review that Confidential Information in connection with the Discussions.

7.              NOTICE OF UNAUTHORIZED USE.  The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized or unlawful use or disclosure of Confidential Information or any other breach of this Agreement by the Receiving Party.  The Receiving Party shall cooperate with the Disclosing Party in every reasonable way to help the Disclosing Party regain possession of such Confidential Information and prevent its further unauthorized use.

8.              RETURN OF CONFIDENTIAL INFORMATION.  The Receiving Party will, upon the written request of the Disclosing Party, promptly return or destroy all physical or tangible materials and manifestations of the Confidential Information received from the Disclosing Party (in any form and including, without limitation, all summaries, copies, reproductions, applications and excerpts of the Confidential Information). At the Disclosing Party’s option, the Receiving Party shall provide written certification of its compliance with this Section 8.

9.              REMEDIES.  The Receiving Party acknowledges that disclosure or use of any Confidential Information in breach of this Agreement would cause serious and irreparable harm to the Disclosing Party which could not adequately be compensated for in damages. The Receiving Party therefore agrees that the Disclosing Party shall have the right, in addition to its other rights and remedies, to seek injunctive relief for any breach of the provisions of this Agreement and the specific enforcement of the terms of this Agreement, without proof of actual damages.

10.           TERMINATION.  The term of this Agreement shall commence as of the Effective Date and shall expire as of the date the Discussions and any agreement(s) between the parties in connection therewith expire or are terminated; provided, however, that the obligations set out in this Agreement with respect to the use or disclosure of Confidential Information shall survive the termination of this Agreement and the Discussions for a period of one (1) year and the obligations relating to the collection, use or disclosure of Personal Information shall survive indefinitely.

11.           INDEPENDENT DEVELOPMENT.  The Disclosing Party acknowledges that the Receiving Party may currently or in the future be developing information internally, or receiving information from other parties, that is similar to the Confidential Information. Accordingly, nothing in this Agreement shall be construed as a representation or agreement that the Receiving Party shall not develop, or have developed for it, products, concepts, systems or techniques that are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the Confidential Information, provided that the Receiving Party does not violate any of its obligations under this Agreement in connection with such development.

12.           MISCELLANEOUS

(a)            Independent Contractor.  This Agreement is not intended to and will not be construed as creating a joint venture, partnership or other form of business association between the parties, nor as establishing a licence or grant of any kind from one party to another.

(b)            Entire Agreement.  This Agreement constitutes the entire agreement between the parties relating to the matters discussed herein, and there are no representations, warranties or other agreements between the parties in connection with the subject matter of this Agreement except as specifically set out in this Agreement. Each party’s obligations hereunder are in addition to, and not exclusive of, any and all of its other obligations and duties to the other party, whether express, implied, in fact or in law.

(c)            Enurement.  This Agreement shall enure to the benefit of and be binding upon the parties and their respective heirs, executors, administrators, estate trustees, trustees, personal or legal representatives, successors and assigns.

(d)            Amendment and Waiver.  No amendment, modification or waiver of this Agreement or any section of this Agreement is binding unless it is in writing and executed by each party. Any failure by either party to enforce the other party’s strict performance of any provision of this Agreement shall not constitute a waiver of its right to substantially enforce such provision or any other provision of this Agreement.

(e)            Invalidity. If any provision of this Agreement or any part of any provision of this Agreement is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, such provision or part shall not affect the validity, legality or enforceability of any other provision of this Agreement or the balance of any provision of this Agreement absent such part and such invalid, illegal or unenforceable provision or part shall be deemed to be severed from this Agreement and this Agreement shall be construed and enforced as if such invalid, illegal or unenforceable provision or part had never been inserted in this Agreement.

(f)            Further Assurances. Each party shall provide and execute such further documents or instruments and provide any further assurances, undertakings and information as may be reasonably required by any other party to give effect to this Agreement, and without limiting the generality of this section, will do or cause to be done all acts and things, execute and deliver or cause to be executed and delivered all agreements and documents and provide any assurances, undertakings and information as may be reasonably necessary or desirable to effect the purpose of and to carry out the provisions of this Agreement.

(g)            Governing Law.  This Agreement shall be governed by and construed according to the laws of Jamaica and shall be treated in all respects as a Jamaica contract.  Each of the parties irrevocably attorns to the jurisdiction of the courts of Jamaica. 

(h)           Counterparts.  This Agreement may be executed and delivered by the parties in one or more counterparts, each of which shall be an original, and each of which may be delivered by facsimile, e-mail or other functionally equivalent means of transmission, and those counterparts will together constitute one and the same instrument.

 
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date listed above.

Mukkle by Bluedot