Mutual Confidentiality and Non-Disclosure Agreement (MNDA) - Sign

This Agreement dated  (the “Effective Date”) is made by and between Five Tier, Inc. and it’s related entities, having a place of business at 120 East 23rd Street 5th Floor New York NY 10010, and  , having a place of business or residence at  , for the purpose of preventing the unauthorized disclosure of Confidential Information as defined below. The parties agree to enter into a confidential relationship with respect to the disclosure of certain proprietary and confidential information (“Confidential Information”).

  1. Confidential Information. The parties intend to disclose to one another certain information which is not in the public domain and may be confidential and proprietary to the disclosing party (“Confidential Information”). Confidential Information may include, but is not to be limited to, information which relates to financial and business operations and proposals, manufacturing and marketing data and plans, employees, product plans, organization, designs, samples, drawings, graphics, know-how, customer lists, suppliers, distribution arrangements, trade secrets and ideas. The parties further intend to restrict and control the use and disclosure of such information pursuant to this Agreement.

  2. Nondisclosure. Each party agrees (i) to hold the Confidential Information in confidence and take all commercially reasonable precautions to protect such Confidential Information as employed by such party with respect to its most confidential materials, including, but not limited to, limiting disclosure of such Confidential Information to only those employees who have a need to know such Confidential Information in connection with the Authorized Purpose; (ii) not to use or allow use of any Confidential Information or notes, summaries or other material prepared by the receiving party derived from its inspection or evaluation of Confidential Information (“Notes”) other than for the Authorized Purpose; (iii) not to disclose, or allow disclosure, to third parties of any portion of the Confidential Information or Notes, including, but not limited to, agents, advisors, consultants and other representatives of the receiving party, without the prior written consent of an authorized representative of the disclosing party; and (iv) to prevent the unauthorized use, disclosure or publication of the Confidential Information and Notes.

  3. Information Not Covered. A receiving party has no obligation with respect to any information which: (i) was already known by the receiving party prior to the receipt of same from the disclosing party; or (ii) is or becomes generally known to the public through no wrongful act of the receiving party; or (iii) is rightfully provided to the receiving party by a third party without restriction on disclosure or use; or (iv) is independently developed by personnel of the receiving party, who have not had access to the other party’s Confidential Information; or (v) is made available by the disclosing party to a third party, without restriction concerning use or disclosure.

  4. Return of Confidential Information. As promptly and practicable following any request by a disclosing party to return Confidential Information, the receiving party will destroy or render unusable such Confidential Information and any copies thereof in the receiving party’s possession; provided, however, the receiving party may retain any (i) Notes (such Notes to be held in strict confidence, subject to the terms of this Agreement), (ii) one (1) copy of all Confidential Information furnished by the disclosing party to the receiving party; provided such Confidential Information is retained by the receiving party’s legal department for record or archive purposes only in connection with the Authorized Purpose (to which all of such receiving party’s obligations contained herein shall continue to apply,) and (iii) copies of Confidential Information only to the extent necessary to satisfy any requirements of any law, regulation or securities exchange rule governing such receiving party’s conduct (such materials, information and other documents described in the foregoing subparagraphs (i) through (iii), collectively, the “Retention Documents”).

  5. Ownership. All Confidential Information supplied by either party, together with all intellectual property rights embodied therein (including, but not limited to, all patent rights, inventions (whether patentable or not), concepts, ideas, algorithms, formulae, processes, methods, techniques, copyrights, copyrightable works, trade secrets, know-how, and trademarks) shall remain the sole and exclusive property of, and shall be returned to, the disclosing party or destroyed upon request. No copies of any Confidential Information may be made without the prior written consent of an authorized representative of the disclosing party.

  6. Permitted Use. Each party agrees not to use the other’s Confidential Information for any purpose other than the Authorized Purpose. Any other use of such Confidential Information shall be made only upon the prior written consent of an authorized representative of the party which disclosed such information or pursuant to subsequent agreement between the parties.

  7. Permitted Disclosure. Neither party shall be liable for disclosure of Confidential Information if made in response to a valid order of court or authorized agency of government; provided that such disclosure is made only to the extent so ordered and that best efforts are used to ensure that confidential treatment shall be afforded the disclosed portion of the Confidential Information; provided further, that notice first be given to the party owning the Confidential Information, so a protective order if appropriate, may be sought by such owner.

  8. No Other Rights. A party shall receive no license under this agreement for any patent, copyright, trademark, or other such intellectual property right of the other party.

  9. Term. Each party’s respective obligations of nondisclosure and restricted use, as a recipient of Confidential Information under this Agreement, shall expire two (2) years after the date of this Agreement, except with regard to trade secrets of the disclosing party, which shall be held in confidence for as long as such information remains a trade secret. The receiving party’s obligations to remain the confidentiality of the Retention Documents in accordance with the terms of this Agreement shall survive the date of termination of this Agreement indefinitely.

  10. Equitable Remedies. The parties agree that it would be impossible or inadequate to measure and calculate damages from any breach of the covenants set forth herein. Accordingly, the parties agree that in the event of a breach of any of the covenants contained in this Agreement, the affected party will have available, in addition to any other right or remedy available, the right to obtain an injunction from a court of competent jurisdiction restraining such breach or threatened breach and to specific performance of any such provision of this Agreement. The parties further agree that no bond or other security shall be required in obtaining such equitable relief and the parties hereby consent to the issuance of such injunction and to the ordering of specific performance.

  11. No Formal Business Obligations. This Agreement shall not constitute, create, give effect to, or otherwise imply a joint venture, pooling arrangement, partnership, or formal business organization of any kind, nor shall it constitute, create, give effect to, or otherwise imply an obligation or commitment on the part of either party to submit to a proposal to or perform a contract with the other party. Nothing herein shall be construed as providing for the sharing of profits or loss arising out of the efforts of either or both parties.

  12. Termination of Discussions. Either party may terminate discussions at any time and for any reason with any liability to the other party, other than with respect to the obligations hereunder. Further, neither party is under any obligation to disclose Confidential Information of any kind to you merely by executing this Agreement or by way of our discussion with you with respect to the Authorized Purpose.

  13. Governing Law; Jurisdiction. This Agreement shall be governed by the State of New York, United States of America, without regard to conflict of laws principles. Any legal proceeding arising in connection with this Agreement shall be submitted for trial before the United States District Court for the District of New York, or if and only if the United States District Court does not have jurisdiction, then before the Superior Court in and for the County of Manhattan, State of New York or if and only if neither such courts shall have jurisdiction, then before any other court sitting in Manhattan County, New York, having subject matter jurisdiction. The parties hereto consent to the exclusive jurisdiction of said courts in connection with any legal proceeding arising in connection with this Agreement and to service of process outside of the State of New York pursuant to the requirement of such court in any matter subject to it.

  14. Assignment; Final Agreement. This Agreement will be binding upon the successors and assigns of the parties. This Agreement states the entire agreement between the parties relating to the subject matter hereof and supersedes all prior written and verbal agreements. This Agreement may only be modified in a writing signed by both parties.

  15. Counterparts. This Agreement may be executed in counterparts (which may be exchanged by facsimile), each of which shall be deemed an original, but which together shall constitute one and the same instrument.

, the parties hereto, intending to be legally bound, have caused this Agreement to be executed on the year and date written above.

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Signed by Frank O'Brien
Signed On: December 22, 2017

Five Tier, Inc.
Signature Certificate
Document name: Mutual Confidentiality and Non-Disclosure Agreement (MNDA) - Sign
Unique Document ID: 612ffa6f5d6c4d38a7984eb3208b17b1b3070a99
Timestamp Audit
October 3, 2017 2:26 pm ESTMutual Confidentiality and Non-Disclosure Agreement (MNDA) - Sign Uploaded by Frank O'Brien - IP