Non-Disclosure Agreement [NDA]
Agreement entered into this ____th day of __________ 2008 by and between Synergy Playgrounds, Inc. (hereinafter SP^360, Synergy or Synergy Playgrounds, Inc.), a Houston, Texas Incorporated Co. SP^360 and Recipient are referred individually as a “party” to this Agreement and collectively as “parties” to this Agreement. WHEREAS, SP^360 and Recipient wish to discuss the possibilities of Recipient licensing or otherwise acquiring the rights to use knowledge bases or other products developed or being developed by SP^360 for Recipient’s own purpose or for the purpose of a third party; and WHEREAS, SP^360 may disclose to Recipient and Recipient may disclose to SP^360 Confidential Information which is defined below; and WHEREAS, SP^360 and Recipient desire to enter into an understanding to mutually protect each party’s disclosed Confidential Information. NOW THERFORE, in consideration of the mutual obligations and promises hereinafter provided, and intending to be legally bound, the parties agree as follows:
1. Confidential Information for the purposes of this Agreement shall mean the content of knowledge bases or other products developed or being developed by SP^360, and, for both SP^360 and Recipient, any information, know how, procedures or data, whether technical or non-technical, including but not limited to, all trade secrets, confidential or proprietary information and all other knowledge, information, documents, samples, prototypes, drawings, software code or materials, stored or represented in any medium whatsoever, which are owned, developed or possessed by SP^360 and which relate in any manner to SP^360’s operations, vendor and customer lists (including the identities of customers and prospective customers, and the contacts at such entities), financial information, business procedures, business relationships, products and services (including prices, costs, concepts or content), marketing plans, products financial information, business methods, future plans, data bases and operating procedures and knowledge of the organization of SP^360 and all other information for which a party herein has a lawful right to claim protection as proprietary, confidential or trade secret information, regardless of the method of disclosure, including, but not limited to, disclosure by writing, graphic presentation, electronic transmission, oral statements or product samples.
2. SP^360 and Recipient each warrant that they are the owners of the confidential Information, if any, that each may disclose to the other party.
3. SP^360 and Recipient agree to guard and keep the Confidential Information provided to each other under this and any future Agreement(s) in the strictest confidence and will not disclose, or permit disclosure of the Confidential Information, or any portion thereof, to any other person, firm or corporation, unless otherwise specified in future Agreements. SP^360 and Recipient each agree that it will not use the Confidential Information, or any portion thereof, directly or indirectly, except as expressly permitted by the other party SP^360 and Recipient each agree, on its behalf and on behalf of its agents, employees and representatives, not to disclose, divulge, copy, reveal, sell, license or otherwise make available, in whole or in part, the Confidential Information, or any portion thereof, to any other person, firm or corporation in any fashion whatsoever; nor will their agents, employees and representatives, appropriate the Confidential Information or any portion thereof, for use individually or as a partner, agent, shareholder, independent contractor or employee of any person, firm or corporation. SP^360 and Recipient shall have no obligations with respect to any portions of such Confidential Information which:
a. Is or becomes public knowledge through no fault of SP^360 or Recipient;
b. Was known to SP^360 or Recipient prior to the date of the disclosure and can be shown; or
c. Is subsequently disclosed to SP^360 or Recipient in good faith by a third party who has a right to make such a disclosure.
4. It is hereby acknowledged that SP^360 or Recipient shall not incur any liability merely for evaluating, examining and considering the Confidential Information and nothing in this Agreement shall be construed as representing any commitment by any party to enter into any purchase, license or additional agreements of any kind.
5. SP^360 and Recipient acknowledge that a monetary remedy for a breach of the terms contained herein may be inadequate and that an injunction restraining SP^360 or Recipient from continuing any breach of this Agreement, in whole or in part, shall be available to SP^360 or Recipient, in addition to any other remedies which may be available through a court of competent jurisdiction.
6. In the event a court of competent jurisdiction finds any of the restrictions in this Agreement to be avoidable, then it is the intent of the parties that such court apply a rule of reasonableness and limit the restrictions to a degree that it considers reasonable. In the event a court finds such a procedure to be inappropriate, then such terms as are found to be avoidable, shall be excised from the Agreement and the remaining terms shall remain in effect.
7. At the completion of any evaluation period, SP^360 and Recipient shall promptly return to the other party all information, including without limitation all Confidential Information, disclosed to it hereunder which belongs to the other party, together with any copies thereof.
8. The secrecy and non-use obligation under the terms of this Agreement shall remain in effect for five (5) years from the termination of any dealings between the parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above mentioned.
Synergy Playgrounds, Inc. (SP^360)
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Recipient:
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