Non-Disclosure Agreement – Obsidian Solution

By ACCEPTING this Confidentiality and Non-Disclosure Agreement (the “Agreement”) you acknowledge that you have read, understand, knowingly and willingly enter into this agreement between yourself (inclusive of vendors, suppliers and tenants), and subsidiaries, on the one hand, (”Receiving Party”); and between OBSIDIAN SOLUTION, LLC and its owners, business affiliates, (inclusive of vendors, suppliers and tenants), and subsidiaries. On the other hand, (”Disclosing Party”). You further acknowledge that all images and information contained in this website is PROPRIETARY and is protected by Copyrights, Patents, Pending Patents and other Intellectual Property rights.

RECITALS

WHEREAS, the sole purpose of this Agreement is to provide for the disclosure of information between the “Disclosing Party” and the “Receiving Party” for the use in connection with the discussion concerning various aspects research and general knowledge, and of a potential business relationship that will include in-formation concerning market research, product development, patents, product registration, product design, strategic relationships, sales channels, competitors for development projects originating with each party (the “Business Transaction”).

WHEREAS, the parties to this Agreement intend that the information subject to this Agreement will include any information transmitted between the parties regardless of how the information is transmitted; that is, any information that is, in whole or in part, transmitted via any and all means of communication including this website, and but not limited to, written, oral, photos, hard copy print, CAD, computer renderings, fax, data files, verbal descriptions, email, engineering blue prints, drawings, manufacturing processes, product materials, design concepts, marketing ideas, product features and/or product functionality. The intent of this Agreement is to keep in strictest confidence the information and ideas being provided by the Disclosing Party to protect that party from having the information used or distributed by any means to any party not associated with, and having not signed a non-disclosure agreement pertaining to these product designs, assembly ideas, concepts, inventions, assembly systems, parts or materials, design, technology, process and/or items being developed.

WHEREAS, it is the intention of the Parties that any of the Disclosing Party’s intellectual property, or other property of inventions, designs, and final product developments of the Disclosing Party, shall be owned and remain vested solely with the “Disclosing Party.” Unless otherwise agreed to in writing, nothing in this Agreement shall grant the “Receiving Party” who obtains information subject to this Agreement any license or right of any kind with respect to product design, patents, trademarks, copyrights, materials, product functionality and/or product brand.

NOW THEREFORE, in consideration of executing this document with signature and other mutual promises, assertions, and covenants incorporated herein, the receipts of which is acknowledged hereby, the parties agree as follow:

TERMS AND CONDITIONS

In the following paragraphs, each party shall appear as the “Disclosing Party” or the “Receiving Party” as their respective roles may be in either disclosing or receiving Confidential Information.

1. 1. Confidential Information. The term “Confidential Information” as used in this Agreement shall mean all information, data, records, files, knowledge, and know-how (in whatever form and however communicated) relating, directly or indirectly, to either Party, to any affiliates of either Party, or to either Party’s business, operations, properties, products, markets, forecasts, business plans, strategies, contracts, agreements disclosed to the Receiving Party, its affiliate or any of their officers, directors, members, employees, agents, consultants to the Receiving Party in writing, electronically, verbally, orally, or through visual means, or which the Receiving Party learns or obtains aurally, through observation or through analyses, interpretations, compilations, studies, or evaluations of such information, data, knowledge, or know-how regardless of whether or not such information is marked or designated as “proprietary” or “confidential.” Furthermore, the term “Confidential Information” means all information provided by the Disclosing Party to the Receiving Party that is transmitted in any form (oral, digital, or visual), which may include, but shall not be limited to, the following types of information:
    
    (a)        Scientific and technical information, instructions, designs, processes, procedures, formulas or formulations, notebooks, theories, speculations, drawings, specifications, performance results, applications and uses (including new applications and uses for existing technology), equipment, prototypes, patent applications, data, manufacturing techniques, or improvements;
    (b)       Business and financial information, marketing evaluation and strategies, corporate development information, business plans, internal projections, competitive information, customer data, and internal financial and performance data.
    (c)        All information transferred will be presumed to be proprietary and confidential unless otherwise indicated. While some information may be labeled “Proprietary” or “Confidential” by the Disclosing Party, that lack of any label shall not negate the presumption that all information transferred between the parties is to be presumed to be proprietary and confidential.
    (d)       Unless otherwise agreed upon in writing, the transfer or communication of any confidential or proprietary information between the Parties shall not be construed in any manner whatsoever as granting any rights in the information to the Receiving Party, including any rights as a license under any copyright, trade secret, patent or patent application or any right of ownership in said information.

1. 1. Definition of Party Terms. The term “Disclosing Party” shall mean any party that discloses to the other Party any Confidential Information associated with the Business Transaction. The Receiving Party shall mean any Party that receives Confidential Information from the Disclosing Party concerning the Business Transaction.
  2. Confidential Treatment. The Receiving Party shall not disclose, either directly or indirectly, any Confidential Information to third parties. The Receiving Party shall take such steps to preserve the confidentiality of the Confidential Information in accord with any steps it takes with respect to its own Confidential Information. The “Receiving Party” shall limit the internal disclosure of the Confidential Information to only those employees to whom it is necessary to disclose it for the “Receiving Party” to perform its business evaluation associated with the Business Transaction. The “Disclosing Party” shall be deemed a third-party beneficiary of the employee’s duty to the “Receiving Party” and may enforce this Agreement against an employee of the Receiving Party who has, or who threatens to, disclose or misuse this information.
  3. Applicability. This Agreement shall be deemed to cover the initial disclosure of Confidential Information for evaluative purposes, and any subsequent disclosure pursuant to an ongoing business, research, or other contract or relationship between the “Disclosing Party” and the “Receiving Party”, whether or not growing out of or related to the initial disclosure. Any definitive agreement, which follows this agreement, may contain confidentiality provisions, which supplement or supersede this Agreement, as the case may be.

1. 1. Limitations on Use. The “Receiving Party” shall use the Confidential Information for no purpose other than evaluating a potential relationship with the Disclosing Party concerning the Business Transaction. Without limiting the generality of the foregoing, the “Receiving Party” shall not use the Confidential Information to develop any proprietary products or to aid in its own business or operations, and shall not incorporate any of the Confidential Information, or the fruits of its use thereof, into any patent application, trade secret, or confidential information claimed by the Receiving Party. In particular, and not by way of limitations, neither party shall use any of the Confidential Information to solicit the customers or employees of the other.

1. 1. No Interest Created. The disclosure of Confidential Information by the “Disclosing Party” to the “Receiving Party” shall not be deemed to create or imply:
    
    (a) Any ownership or other proprietary interest in the Confidential Information in the “Receiving Party”, including but not limited to a license, other than the implied license necessary for the “Receiving Party” to perform its investigation of the potential business relationship; or
    (b) Any business or contractual relationship between the “Disclosing Party” and the “Receiving Party”, including but not limited to the business relationship under consideration in connection with the mutual disclosure of Confidential Information.
    The Disclosing Party shall retain all proprietary and intellectual property rights to the Confidential Information and the uses thereof.

1. 1. Period of Confidentiality. The Receiving Party’s obligations under this Agreement shall remain in force for 36-months from date of this agreement, or from the most recent Business Transaction, or transmittal of Confidential Information, whichever is most recent.

1. 1. Return. Following the termination or expiration of the Receiving Party’s evaluation of the Confidential Information associated with the Business Transaction, or any subsequent business, research, or other contract or relationship between the Disclosing Party and the Receiving Party, the Receiving Party shall return all tangible Confidential Information to the Disclosing Party and shall not retain any copies, descriptions, or summaries thereof.

1. 1. Remedies. The parties agree that the disclosure or threatened disclosure of Confidential Information would cause immediate irreparable harm to the “Disclosing Party” that cannot be readily measured or remedied by money damages. Consequently, the Receiving Party agrees and acknowledges that the Disclosing Party shall be entitled to temporary, preliminary, and permanent injunctive relief from a court of competent jurisdiction restraining any actual or threatened violation of this Agreement. The Receiving Party further agrees that any bond associated with such injunctive relief shall not exceed $2,500. The right to seek injunctive relief shall be in addition to, and not in lieu of, all other rights and remedies of the Disclosing Party under this Agreement, by statute, at law, in equity, or otherwise.

1. 1. Counterparts. This Agreement may be executed in counterparts, which taken together shall represent the entire Agreement. Faxed signatures shall be deemed equivalent to original signatures.

1. 1. Integration and Amendment. This Agreement represents the entire agreement between the parties relating to its subject matter. All prior oral or written understandings relating thereto are extinguished and merged herein. This Agreement may only be amended by a writing signed by both parties specifically referring to itself as an amendment hereto.

1. 1. No Waiver. No delay by the Disclosing Party in enforcing any of the provisions of this Agreement, or failure to require at any time performance by any party of any of the provisions hereof, shall be construed to be a waiver of such provisions, nor shall failure to pursue a remedy for any given breach hereof waive the Disclosing Party’s right to pursue a remedy for a subsequent breach.

1. 1. Choice of Law; Choice of Forum. The validity, interpretation, and enforcement of this Agreement shall be governed by the laws of Texas. Any action brought to interpret or enforce this Agreement shall be brought in a court of competent jurisdiction in Dallas County, Texas.

1. 1. Representation. Each party represents and warrants that the individual signing this agreement for has the actual authority to bind the respective Party (including the Party’s owners, employees, agents, affiliates, subsidiaries, etc.) it purports to represent to the promises it is making in this Agreement.

1. 1. Sever-ability. If any provision of this Agreement is invalid or unenforceable in any jurisdiction, such provision shall be fully sever-able from this agreement and the other provisions hereof shall remain in full force and effect in such jurisdiction and the remaining provisions hereof shall be liberally constructed to carry out the provisions and intent hereof. The invalidity or enforceability of such provision in any jurisdiction shall not affect the validity or enforceability of such provision in any other jurisdiction, nor shall the invalidity or enforceability of any provision of this Agreement with respect to any person or entity affect the validity or enforceability of such provision with respect to any other person or entity.