NDA (CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT)
This Confidentiality and Non-Disclosure Agreement (hereinafter called “Agreement”) is effective as of the date signed below (the “Effective Date”) between ShiMo Global Group (“ShiMo”, “Brothers’ Export & Import”), LLC (D/B/A: Brothers’ Export & Import) along with its partner companies and affiliates worldwide and having its principal place of business at 1546 Madison Avenue, Suite:100, New York, NY 10001, USA and _____________________________________ (“Recipient”) having its principal place of business at ______________________________________________.
1. Confidential Information
ShiMo proposes to disclose certain of its confidential and proprietary information (the "Confidential Information") to Recipient. Confidential Information shall include all data, materials, products, technology, computer programs, specifications, manuals, business plans, software, marketing plans, financial information, business relationship, trade secrets, export/import trade information, inventions, ideas, sketches, drawings, models, processes, formulas, source and object codes, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs, techniques, algorithms, equipment, information related to current, future and proposed products and services, business and partnership opportunity and other information disclosed or submitted, orally, in writing, or by any other media, to Recipient by ShiMo. Confidential Information disclosed orally shall be identified as such immediately upon disclosure. Nothing herein shall require ShiMo to disclose any of its information
2. Recipient's Obligations
A. Recipient agrees that the Confidential Information is to be considered confidential and proprietary to ShiMo and Recipient shall hold the same in confidence, shall not use the Confidential Information other than for the purposes of its business with ShiMo and its partner companies and affiliates, and shall disclose it only to its officers, directors, or employees with a specific need to know. Recipient will not disclose, publish or otherwise reveal any of the Confidential Information received from ShiMo to any other party whatsoever except with the specific prior written authorization of ShiMo.
B. Confidential Information furnished in tangible form shall not be duplicated by Recipient except for purposes of this Agreement. Upon request of ShiMo, Recipient shall return all Confidential Information received in written or tangible form, including copies, or reproductions or other media containing such Confidential Information, within ten (10) days of such request. At Recipient's option, any documents or other media developed by the Recipient containing Confidential Information may be destroyed by Recipient. Recipient shall provide a written certificate to ShiMo regarding destruction within ten (10) days thereafter.
3. Term
A. The obligations of Recipient herein shall be effective for five (5) consecutive years from the date ShiMo last discloses any Confidential Information to Recipient pursuant to this Agreement. Further, the obligation not to disclose shall not be affected by bankruptcy, receivership, assignment, attachment or seizure procedures, whether initiated by or against Recipient, nor by the rejection of any agreement between ShiMo and Recipient, by a trustee of Recipient in bankruptcy, or by the Recipient as a debtor-in-possession or the equivalent of any of the foregoing under local law.
B. No Party shall directly of indirectly, contact, deal with, solicit or otherwise attempt to transact business with the source introduced by one Party to any other Party (“Source”) at any time, in any manner or for any reason without the prior consent and authorization of the Party introducing the Source.
C. No party to this Agreement or its subsidiaries, affiliates, officers, directors, employees, both parties, representatives or consultants will make any contact, deal with or otherwise enter into any transactions with the third party introduced by a Party hereto without the prior express written consent of other Parties and execution of a similar Non-Disclosure and Non-Circumvention Agreement.
D. It is acknowledged and agreed by both parties that information regarding business plans, joint ventures, product offerings, wholesale pricing, terms of wholesale pricing, buy rates, commission percentages, freight costs, shipping charges, and/or transportation costs are valuable and unique and that disclosure in breach or violation of this Agreement will result in irreparable damages or injury to either party. Any Party that violates this Agreement shall be liable for all damages, as may be allowed by law, and injunctive relief by any court of competent jurisdiction. It shall not be necessary that a Party prove an inadequate remedy at law or availability of money damages as a precondition to obtaining injunctive relief. Any and all Parties prevailing in this litigation would be awarded all associated fees.
4. Other Information
Recipient shall have no obligation under this Agreement with respect to Confidential Information which is or becomes publicly available without breach of this Agreement by Recipient; is rightfully received by Recipient without obligations of confidentiality; or is developed by Recipient without breach of this Agreement; provided, however, such Confidential Information shall not be disclosed until thirty (30) days after written notice of intent to disclose is given to ShiMo along with the asserted grounds for disclosure.
5. No License
Nothing contained herein shall be construed as granting or conferring any rights by license or otherwise in any Confidential Information. It is understood and agreed that neither party solicits any change in the organization, business practice, service or products of the other party, and that the disclosure of Confidential Information shall not be construed as evidencing any intent by a party to purchase any products or services of the other party nor as an encouragement to expend funds in development or research efforts. Confidential Information may pertain to prospective or unannounced products. Recipient agrees not to use any Confidential Information as a basis upon which to develop or have a third party develop a competing or similar product.
6. No Publicity
Recipient agrees not to disclose its participation in this undertaking, the existence or terms and conditions of the Agreement, or the fact that discussions are being held with ShiMo.
7. Governing Law and Equitable Relief
This Agreement shall be governed and construed in accordance with the laws of the United States and the State of New York and Recipient consents to the exclusive jurisdiction of the state courts and U.S. federal courts located there for any dispute arising out of this Agreement. Recipient agrees that in the event of any breach or threatened breach by Recipient, ShiMo may obtain, in addition to any other legal remedies which may be available, such equitable relief as may be necessary to protect ShiMo against any such breach or threatened breach.
8. Final Agreement
This Agreement terminates and supersedes all prior understandings or agreements on the subject matter hereof. This Agreement may be modified only by a further writing that is duly executed by both parties.
9. No Assignment
Recipient may not assign this Agreement or any interests to other parties herein without ShiMo’s express prior written consent.
10. Severability
If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.
11. Notices
Any notice required by this Agreement or given in connection with it, shall be in writing and shall be given to the appropriate party by personal delivery or by certified mail, postage prepaid, or recognized overnight delivery services. Notices will be served at both parties’ corporate offices.
12. No Implied Waiver
Either party's failure to insist in any one or more instances upon strict performance by the other party of any of the terms of this Agreement shall not be construed as a waiver of any continuing or subsequent failure to perform or delay in performance of any term hereof.
13. Headings
Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.
