JSCM Group Confidentiality Agreement
This Confidentiality Agreement (this “Agreement”) is by and between Badger Fortress, LLC d/b/a JSCM Group (“JSCM Group”) and the person / corporate entity whose authorized signatory and address appear in the signature block at the end of this Agreement (“Company”). In this Agreement, JSCM Group and Company are referred to individually as a “Party” and collectively as the “Parties.” In addition, a Party that discloses Confidential Information is referred to as a “Discloser”; the receiving Party is referred to as a “Recipient.”
JSCM Group and Company have entered into, or intend to enter into, a business relationship during the course of which each Party may have access to, receive, view, and/or utilize the Confidential Information (defined below) of the other Party (the “Purpose”). In furtherance of the Purpose, each Party may disclose Confidential Information with the other Party. This Agreement shall govern such disclosure(s) as well as a Recipient’s subsequent use of a Discloser’s Confidential Information.
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1. Definition; Permitted Use.
a. Defined. The term “Confidential Information” means any non-public or highly sensitive financial, technical, and other information including, without limitation, all copies, agreements, virtual files including software code (both source and object code versions), physical files, drafts, books, logs, charts, records, studies, reports, schedules, pictures, photographs, diagrams, models, proposals and plans and intellectual property of every kind and nature created and/or belonging to a Discloser. Confidential Information shall also include a Discloser’s internal corporate documents, financial documents, financial projections, internal memoranda, marketing strategies, customer lists (both present and past customer lists), customer relationship materials, and information specific to each of the Discloser’s customers, e.g., customer order history, specific customer needs, specific customer strategic plans, etc. Confidential Information shall not include information that: (i) has become part of the public domain through no act or omission of the Recipient; (ii) was lawfully disclosed to the Recipient by a third party who had no restriction on the disclosure of such information; or, (iii) is or was lawfully and independently provided to the Recipient prior to disclosure hereunder, from a third party who is not and was not subject to an obligation of confidentiality or otherwise prohibited from transmitting such information. Confidential Information shall be and remain confidential regardless of the means or methods by which such information is accessed, conveyed, disclosed, or transmitted, and a Party shall not be required to specifically label information as “Confidential” or “Highly Sensitive” in order for such information to qualify as Confidential Information.
b. Use. The Recipient hereby acknowledges and agrees that the Confidential Information is being disclosed, and shall be used solely, in furtherance of the Purpose; any other direct or indirect use, or any redistribution of the Confidential Information by the Recipient for any other reason, is strictly prohibited. The Recipient agrees to reveal the Confidential Information only to those persons who have a need to know such information in furtherance of the Purpose and who are bound by written confidentiality covenants that are at least as strict as the provisions of this Agreement. In all cases, the Recipient agrees that the Recipient’s use and disclosure of the Confidential Information shall be tailored so that only the minimum amount of information necessary to enable the Recipient to exercise its rights or to fulfill its duties or obligations hereunder shall be used or disclosed.
c. Due Care. The Recipient shall exercise the same degree of care with respect to the Confidential Information it receives from the Discloser as the Recipient normally takes to safeguard and preserve its own highly confidential and proprietary information, which in all cases shall be at least a high level of care.
2. Ownership. All Confidential Information, in whatever form or format such information is conveyed or disclosed to the Recipient, is and shall at all times remain the Discloser’s sole and exclusive property. The Recipient agrees that upon the request of and as directed by the Discloser, the Recipient shall either (at the election of the Discloser) return to the Discloser all such information, retaining no copies thereof, or destroy all such information in the Recipient’s possession or control, and promptly certify to the Discloser that the information, and all copies of the information, have been destroyed.
3. Remedies. The Parties acknowledge that the Confidential Information is the Discloser’s proprietary property and of competitive value, and in some instances, the trade secrets of the Discloser or the Discloser’s customers. The Parties agree that because of the unique nature of the Confidential Information, any breach of this Agreement by the Recipient would cause irreparable harm to the Discloser, and money damages would not be adequate to compensate the Discloser for any such breach. Accordingly, the Discloser shall be entitled, without the requirement of posting a bond or other security, to seek equitable relief, including, without limitation, injunctive relief and specific performance, as a remedy for any such breach. Such relief shall be in addition to, and not in lieu of, all other remedies available at law or in equity to the Discloser.
4. Compelled Disclosure. If the Recipient is legally compelled (whether by deposition, interrogatory, request for documents, subpoena, civil investigation, demand or similar process) to disclose any of the Confidential Information, the Recipient shall immediately notify the Discloser in writing of such requirement so that the Recipient may seek a protective order or other appropriate remedy and/or waive the Discloser’s compliance with the provisions hereof. The Recipient will use its best efforts, at the Discloser’s expense, to obtain or assist the Discloser in obtaining any such protective order. Failing the entry of a protective order or the receipt of a waiver hereunder, the Recipient may disclose, without liability hereunder, that portion (and only that portion) of the Confidential Information that the Recipient has been advised by written opinion of counsel that it is legally compelled to disclose; provided, however, that the Recipient agrees to use its best efforts to obtain assurance that confidential treatment will be accorded such Confidential Information by the person or persons to whom it will be disclosed.
5. No License. No license or conveyance of any rights held by either party under any discoveries, inventions, patents, trade secrets, copyrights, or other form of intellectual property is granted or implied by this Agreement or by the disclosure of any Confidential Information pursuant to this Agreement.
6. No Obligations. This Agreement shall not constitute, create, give effect to or otherwise imply (i) an employment agreement, joint venture, partnership or formal business organization of any kind, or (ii) any obligation or commitment on either party to submit a proposal or to enter into a further contract or business relationship with the other party, or (iii) any obligation by either Party to disclose, supply or otherwise communicate any information, general or specific, to the other Party.
7. Non-Solicitation.
a. Restrictions. As a material inducement for each party to undertake the Purpose, each party hereby agrees that during the period of time in which the Purpose is being carried out and for one (1) year thereafter (the “Restriction Period”):
i. Each party (a “Restricted Party”) shall not, directly or indirectly, as a principal or agent, solicit business from, divert business from, or do business with, any customer, sales lead, or account of the other party with whom the Restricted Party had contact as a result of the Purpose, unless the customer, sales lead, or account (as applicable) makes contact with the Restricted Party through no affirmative act or any direct or indirect activity of the other party (however, general advertisements for employment or solicitations aimed at the general public shall not violate the aforementioned restriction); and,
ii. A Restricted Party shall not solicit for employment, employ, or otherwise engage the business of, any employee of the other party with whom the Restricted Party had contact as a result of the Purpose.
b. Remedies. If a Restricted Party violates any of the provisions of this Agreement, then the Restricted Party will immediately suspend all activity that violates the terms of this Agreement and refrain from engaging in such activity for a period of time equaling the balance of the Restriction Period plus the period of time during which such activity occurred, and (ii) upon demand by the other party, immediately account for and pay to the other party any compensation, bonus, salary, gratuity, or other financial gain of any kind the Restricted Party received directly or indirectly, in any transaction connected with such violation.
8. Term; Termination. This Agreement shall begin as of the latest date of the signatures of the Parties below. Unless otherwise terminated by the mutual, written consent of both Parties, the confidentiality-related covenants of this Agreement shall continue unabated for three (3) years following the latest date on which Confidential Information related to the Purpose is exchanged or discussed between the Parties. Notwithstanding the foregoing, the Parties agree that the Parties shall never reveal a Discloser’s trade secrets (as defined under applicable law) to any third party at any time and, further, this covenant to keep trade secrets confidential shall survive the termination of this Agreement.
9. Other Agreements. In the event that the Parties enter into one or more additional agreements that contain confidentiality provisions or covenants (“Other Agreements”), the confidentiality terms and non-solicitation terms of such Other Agreements and this Agreement shall be cumulative, and the Parties shall adhere to the document that provides the greatest amount of protection, and the longest period of protection, for the Confidential Information.
10. Miscellaneous. This Agreement shall not be assigned by either Party at any time without the other Party’s prior written consent. This Agreement will be governed under the laws of the county in which JSCM Group’s “Applicable Office” (i.e., the office with which Company is primarily discussing the Purpose) is located. You hereby irrevocably consent to the exclusive jurisdiction and venue of the courts in the county in which the Applicable Office is located; provided, however, a Party may seek temporary injunctive relief in any jurisdiction in which a Recipient is located to prevent the potential or actual breach of this Agreement. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision hereof. This Agreement may not be amended, nor any obligation waived or delegated, except by a writing signed by both Parties. In the event that a Party is required to bring an action to enforce the terms of this Agreement, the prevailing Party in the action shall be entitled to an award of the reasonable attorneys’ fees and costs that the prevailing party incurred in the action at all levels of trial and appeal, as well as all fees and costs incurred by the prevailing Party in determining the proper amounts to be awarded pursuant to this paragraph. This Agreement may be signed and transmitted electronically in counterparts, and each counterpart shall be deemed an original for all purposes.