General Equipment and
Manufacturing Company, Inc.
d/b/a
TopWorx
3300 Fern Valley Road
Louisville, KY 40213 USA
T (502) 969-8000
F (502) 969-7315
Supplier Company Name:
(“Supplier”)
Supplier Principal Address:
(“Supplier’s Address”)
Effective Date:
(“Effective Date”)
Subject: Supplier Non Disclosure Agreement
This Non-Disclosure Agreement (the “Agreement”) is effective per the (“Effective Date”), by and between General Equipment
and Manufacturing Company, Inc. d/b/a TopWorx (“Company”), with its principal address at 3300 Fern Valley Road, Louisville,
KY 40213 and (“Supplier”) with its (“Supplier’s Address”), each being referred to herein as a “Party” and collectively as the
“Parties.” In consideration of this disclosure by Company and the willingness of Supplier to protect the Confidential Information
(defined below) of Company, the Parties agree as follows:
1.
Authorized Purpose. Under this Agreement, Company
may disclose certain Confidential Information in order to
enable Supplier to provide a quote, proposal, and/or
supply to Company products, parts, components,
equipment or services (or any combination thereof)
(“Authorized Purpose”). This Agreement shall not be
construed or interpreted as obligating either Party to enter
into a further agreement or contractual arrangement with
the other Party hereto with respect to the subject matter or
the stated Authorized Purpose of the disclosure.
2.
Confidential Information. “Confidential Information”
shall mean (i) any and all technical and non-technical
information, trade secrets, know-how, business or other
non-public or proprietary information relating to
Company or the parent company, subsidiary, Affiliate
(defined below), or division of Company, disclosed to, or
acquired by, Supplier in the course of the Authorized
Purpose, regardless of the medium of conveyance
(directly or indirectly, and whether in oral, written,
graphic, visual, electronic, or other form, or through
inspection, review or analysis), whether the information is
marked “confidential” or with other words of a similar
nature, is actually known by Supplier to be Company’s
confidential or proprietary information, is supplied in
confidence, or from all relevant circumstances should
reasonably be understood by a reasonable person to be
confidential or propriety nature; (ii) information relating
to Company, Company’s Affiliates, or Company’s
suppliers’ computer systems and architecture, security
systems and/or procedures for employees, agents or
subcontractors; and (iii) information relating to
Company’s existing or potential suppliers, investors,
representatives, and customers. Examples of Company’s
Confidential Information include, but are not limited to,
information relating to Company’s designs, creations,
firmware, materials, schematics, plans or other
information relating to research projects, work in process,
future
development,
inventions,
discoveries,
improvements,
experimental
results,
scientific
information,
engineering,
marketing,
financial
information, business plans, constructions, specifications,
operation and operating characteristics, products and
potential products, methods, techniques, processes, tools,
equipment, systems, uses and applications of products and
potential products, commercial information, costs of
producing products and services, business plans,
strategies, tactics, and any other business, technical,
financial, and commercial information and personnel
matters pertaining thereto. The term “Affiliate(s)” refers
to an entity that controls, is controlled by, or is under
common control with (directly or indirectly, and through
or more intermediaries) a Party to this Agreement.
3.
Non-Protected Information. Confidential Information
does not include any information that:
(a) was in Supplier's possession prior to its receipt of
Confidential Information from Company or
Company’s Affiliate;
(b) was independently developed by Supplier, after the
Effective Date of this Agreement, by persons who
did not have direct or indirect access to Confidential
Information and without use of Confidential
Information;
(c) is or becomes publicly known without breach of this
Agreement or other obligations of non-disclosure by
Supplier or its Affiliates, employees, officers,
directors, agents, consultants, contractors or
subcontractors (individually and collectively,
“Supplier Personnel”), but only to the extent that
such public knowledge did not result from the direct
FRM-NDA R1 2012-07-26 Page 1 of 4
or indirect disclosure of Confidential Information by
Supplier Personnel;
(d) was obtained by Supplier from a third party, not
connected with Company, who had the legal right to
disclose the information to Supplier; or
(e) is required or compelled to be disclosed pursuant to
any applicable statute, law, rule or regulation of any
government authority or pursuant to an order of any
court of competent jurisdiction, providing that
Supplier shall advise Company in a timely manner to
enable Company to apply for such legal protection as
may be available with respect to the confidentiality
of the Confidential Information and if such legal
protection is not obtained, Seller will disclose only
that portion of the Confidential Information that is
legally required to be disclosed.
as set forth in this Agreement. Supplier will maintain
these agreements and promptly make them available
for inspection by Company upon request. Company
is the intended third-party beneficiary of such
agreements; thus, Company will have a direct right
of action to enforce such agreements;
(b) Supplier and Supplier Personnel will not use the
Confidential Information for its own independent
benefit or for the benefit of a third party;
(c) Supplier and Supplier Personnel are prohibited from
reverse engineering, reproducing, distributing, or
modifying the Confidential Information, or any
portion of it, except as expressly provided in this
Agreement; and
(d) Supplier is liable for any breach of its obligations
and/or warranties under this Agreement caused by
Supplier Personnel or Supplier Personnel’s
employees, agents, or subcontractors. Supplier will
promptly notify Company in the event there is a
reasonable suspicion that any portion of the
Confidential Information has been used, disclosed,
copied, transmitted, or accessed in an unauthorized
manner while in the Supplier’s or Supplier
Personnel’s control and custody, and will cooperate
with Company in its lawful efforts to prevent or
remedy such disclosure.
If claiming one of the foregoing exclusions, Supplier will have
the burden to prove, with competent evidence, the existence of
one of the foregoing exclusions from Confidential Information.
4.
5.
Treatment of Confidential Information.
The
“Confidentiality Period” starts on the Effective Date and
terminates on the later to occur of ten (10) years after the
Effective date, or ten (10) years after the last disclosure of
Confidential Information under this Agreement.
Notwithstanding the foregoing, Supplier acknowledges
that certain Confidential Information of Company may be
deemed to be a trade secret (as that term is defined by the
Uniform Trade Secrets Act) and will protect such trade
secret(s) for as long as, and to the extent that, such
Confidential Information remains a trade secret. During
the Confidentiality Period, Supplier represents and
warrants to Company that Supplier and Supplier
Personnel will (i) not use, disclose, copy, or transmit
Confidential Information except as strictly required to
accomplish the Authorized Purpose, and then only as
permitted by this Agreement, and (ii) employ all
reasonable measures to avoid unauthorized disclosure or
transmission of the Confidential Information in breach of
this Agreement (including, but not limited to, disclosure
or potential disclosure resulting from the disposal or other
disposition of equipment or media containing Confidential
Information), consistent with the measures that Supplier
uses to protect its own most sensitive confidential
information.
6.
Return of Confidential Information.
Supplier
acknowledges that Confidential Information is the sole
and exclusive property of Company or, as applicable,
Company’s Affiliate. At any time that Company requests
in writing, or upon the termination of the Confidentiality
Period, whichever is sooner, Supplier shall immediately
return to Company or irretrievably erase or destroy (in
accordance with Company’s instructions) all Confidential
Information, including any and all copies, extracts,
reproductions and derivatives thereof. Supplier is not
obligated to return or destroy Confidential Information
that (i) it is required by law or regulation to retain, but
then only for the time period required, or (ii) is
commingled with other information or documents of
Supplier if it would pose a substantial administrative
burden to return or destroy such Confidential Information,
or if the Confidential Information is contained in an
archived computer system or backup made by Supplier in
accordance with its standard security or disaster recovery
procedures, provided in each case that: (A) such retained
Confidential Information will eventually be irretrievably
erased or destroyed in ordinary course of its records
management and/or data processing procedures, and (B)
that Supplier remains fully subject to the obligation of
confidentiality in this Agreement until the earlier of the
eventual destruction, or the expiration of the
confidentiality obligations set out in this Agreement. For
destruction efforts, Supplier will dispose of the
Confidential Information in a secure manner and
consistent with the measures that Supplier uses to dispose
of its own most sensitive confidential information.
7.
Independent Development. This Agreement will not be
construed to limit either Party’s right to independently
develop or acquire similar or competing products,
processes or services, provided that development or
acquisition occurs without breach of this Agreement.
Restrictions on Use. During the Confidentiality Period,
Supplier will restrict access, possession, knowledge and
use of the Confidential Information to Supplier Personnel
who need to know the Confidential Information to carry
out the Authorized Purpose. Additionally:
(a) Supplier will take appropriate action with any of its
Supplier Personnel to whom Confidential
Information is disclosed under this Agreement to
ensure that the entity or individual is informed of the
confidential nature of the information and of the
obligation to maintain the confidentiality of the
Confidential Information and is legally bound to
comply with the obligations and warranties under
this Agreement, including, without limitation,
procuring a written agreement with each such
Supplier Personnel on terms no less restrictive than
FRM-NDA R1 2012-07-26 Page 2 of 4
Nothing contained in this Agreement shall restrict, inhibit,
or encumber Company’s rights or ability to dispose of,
use, distribute, disclose, or disseminate in any way the
Confidential
Information.
8.
No Conveyance of License. Except as expressly granted
herein, nothing in this Agreement will be construed to
grant to Supplier or Supplier Personnel, either expressly
or by implication, any right, title or interest in or to
Company’s Confidential Information, or in or to any
patent, trademark, copyright, trade secret or other right,
whether intellectual property or otherwise, that may be
related thereto, or to grant any right to make, use, sell,
exploit or develop further Company’s Confidential
Information.
9.
Termination of Authorized Purpose. This Agreement and
any related discussions may be terminated by either Party
at any time, by providing thirty (30) days’ advance written
notice to the other Party. Those provisions of this
Agreement which by their nature survive the termination
of the Agreement will do so to give full force and effect to
those provisions. Any right of action arising from or
related to this Agreement which has accrued during the
term of this Agreement will also survive any termination.
10. No Company Warranty. This Agreement does not bind
Company, in any way, to enter into or to continue a
business relationship of any type with Supplier or Supplier
Personnel, whether in relation to the Authorized Purpose
or otherwise.
No transmission or exchange of
Confidential Information by Company shall constitute any
representation, warranty, assurance, guaranty, or
inducement to Supplier with respect to the infringement of
any rights of third parties. Company makes no
representations or warranties regarding the accuracy or
completeness of the Confidential Information furnished
pursuant to this Agreement.
Supplier expressly
recognized that Confidential Information is provided “AS
IS.”
COMPANY MAKES NO WARRANTIES,
EXPRESS
OR
IMPLIED
STAUTORY,
OR
OTHERWISE
WITH
RESPECT
TO
THE
CONFIDENTIAL INFORMATION, AND EXPRESSLY
DISCLAIMS
ALL
IMPLIED
WARRANTIES.
11. Governing Law. This Agreement, and any disputes
concerning its construction, interpretation, performance,
and/or validity, shall be governed by the laws of the State
of Kentucky. If any provision of this Agreement is held to
be unenforceable or in conflict with the law in a final,
non-appealable judgment by a court having jurisdiction,
the validity of the remaining provisions shall not be
affected by such holding and shall remain binding on the
Parties.
12. Compliance with Laws. Supplier and Supplier Personnel
will comply with all applicable laws, regulations, orders
and decrees with respect to the Confidential Information
and their respective businesses/industry, including,
without limitation, those laws, regulations, orders and
decrees that restrict or prohibit the use, export, import, reexport, transfer or communication of information or direct
products to other countries. The Parties recognize that the
communication or transfer of any Confidential
Information or direct products to or from certain countries
(or persons located therein) may be prohibited or
restricted or subject to prior approval of one or more
governments, including without limitation, the
government of the United States of America. Supplier
warrants to Company that Supplier, Supplier Personnel
and the employees, agents, and subcontractors of Supplier
Personnel will not use, export, import, re-export, transfer
or otherwise communicate any of the Confidential
Information to or from any country (or person located
therein) in which the use or possession, or to which
export, import, re-export, transfer or other communication
of such Confidential Information, is prohibited or
restricted by the United States of America or any foreign
government exception strict compliance with such laws,
and with the prior written consent of Company.
13. Notices. Any notice or communication required or
permitted to be given hereunder may be delivered by
hand, deposited with an overnight courier, or mailed by
registered or certified mail, return receipt requested,
postage prepaid, in each case to the address of the Party as
listed above or at such other address as may hereafter be
furnished in writing by either Party to the other Party.
Such notice will be deemed to have been given as of the
date it is delivered, sent, or mailed, whichever is earlier.
14. Remedies. The Parties to this Agreement acknowledge
that the restrictions set forth in this Agreement are
reasonable in scope and essential to Company’s legitimate
business interests and that a breach of this Agreement will
have irreparable, material and adverse effect upon
Company and that damages arising from any breach of
this Agreement may be difficult to ascertain. Without
limiting any other remedy at law or equity available to
Company, in the event of a breach of this Agreement by
Supplier or Supplier Personnel, Company shall have the
right to an immediate injunction enjoining the breach or
specific performance, and shall have the right to receive
from Supplier (in addition to any award or other amount
due) reasonable attorneys’ fees, costs and expenses in the
event any litigation or judicial proceeding is necessary to
enforce the provisions of this Agreement. The protections
afforded to Confidential Information are in addition to,
and not in lieu of, the protections afforded under any
applicable trade secret(s) or other laws. Every right and
remedy of Company shall be cumulative and Company, in
Company’s sole discretion, may exercise any and all
rights or remedies stated in this Agreement or otherwise
available at law or in equity. Company’s Affiliates whose
Confidential Information is disclosed under this
Agreement, shall be third party beneficiaries of this
Agreement and are entitled to enforce this Agreement as if
parties hereto. With the exception of the Parties to this
Agreement (or any parent company and/or affiliate or
subsidiary disclosing hereunder) no other person or entity
is entitled to any claim, cause of action, remedy, or right
of any kind under this Agreement.
15. Relationship. The Parties do not intend that any agency,
employment or partnership relationship be created
between them by this Agreement.
FRM-NDA R1 2012-07-26 Page 3 of 4
16. Assignees and Successors. This Agreement is binding on
the Parties and their respective assignees and successors;
however, Supplier shall not assign or otherwise transfer
any of its rights or obligations under this Agreement to
any third party without prior written consent of Company,
which may be withheld by Company for any reason. The
failure (or repeated failures) by Company to assert,
exercise, or seek to enforce its contractual and legal rights
under this Agreement shall not be interpreted as a waiver
of such rights, past or future.
to the Authorized Purpose, and cancels, terminates and
supersedes any and all prior agreements and
understandings between the Parties relating to the
Authorized Purpose. This Agreement shall not be
amended, changed or otherwise affected by such
additional agreements, the issuance of requests for
quotations, purchase orders, acknowledgment or
acceptance of purchase orders, shipping instructions, or
other documents containing terms or conditions which
differ from the provisions of this Agreement.
17. Construction. Supplier and Company have negotiated this
Agreement and each Party’s legal counsel has had the
opportunity to review this Agreement. Supplier and
Company agree that any rule of construction or
interpretation requiring resolution of any ambiguities in
this Agreement against the drafting Party will not apply in
the construction or interpretation of this Agreement.
19. Execution. For purposes hereof, a facsimile copy of this
Agreement, including the signature page(s), will be
deemed a valid original. Notwithstanding the foregoing,
as soon as practicable after the execution of this
Agreement, each of the Parties will deliver an original
execution copy of the Agreement to the other Party via
overnight
courier
delivery.
18. Entire Agreement. This Agreement constitutes the entire
agreement
of
the
Parties
relating
IN WITNESS WHEREOF,
Representatives.
the
Parties
have
executed
this
Agreement
by
their
respective
duly
authorized
Supplier
Signature:
Printed Name:
Title:
Date:
General Equipment and Manufacturing Company, Inc. d/b/a TopWorx
Signature:
Printed Name:
Title:
Date:
FRM-NDA R1 2012-07-26 Page 4 of 4