LNG CONSORTIUM PROJECT, LLC.
MUTUAL NONDISCLOSURE AGREEMENT
THIS NON-DISCLOSURE AGREEMENT (“Agreement”) is made and entered into on 9/27/2019 by and between___________________________ a company located in _____________________________________(“Company”), and LNG CONSORTIUM PROJECT, LLC. and all MEMBERS of LNG CONSORTIUM PROJEC, LLC. (“LNGCP”). For purposes of this Agreement, the undersigned parties are sometimes collectively referred to as the “Parties” and individually referred to as a “Party”. Each undersigned Party (the “Receiving Party”) understands that for the purpose of evaluating, discussing and/or entering into a business relationship or other transaction between the undersigned parties (the “Relationship”), the other Party (the “Disclosing Party”) has disclosed or may disclose information that is of a non-public, proprietary, or confidential nature, including, without limitation, all data, reports, analyses, forecasts, records, documentation, prototypes, photographs, specifications, computer programs, technical drawings, algorithms, know-how, formulas, processes, ideas, designs, inventions (whether patentable or not), technical, business, financial, or commercial information, whether furnished in written, oral, electronic or any other format, which to the extent previously, presently, or subsequently disclosed to the Receiving Party is hereinafter referred to as “Proprietary Information” of the Disclosing Party. Proprietary Information may be that of the Disclosing Party or of the Disclosing Party’s Affiliates or of third parties to whom the Disclosing Party has an obligation to treat the disclosed information as confidential. For the purposes of this Agreement, a party’s “Affiliates” shall mean legal entities that control, are controlled by, or are under common control with, such party.
In consideration of the Parties’ discussions and any access of the Receiving Party to Proprietary Information of the Disclosing Party, each Party agrees as follows:
The Receiving Party agrees: (i) to hold the Disclosing Party’s Proprietary Information in confidence and to take reasonable precautions to protect such Proprietary Information (including, without limitation, all precautions the Receiving Party employs with respect to its confidential materials); (ii) not to divulge any such Proprietary Information or any information derived therefrom to any third person other than the Receiving Party’s Affiliates, employees, agents, financial advisors, attorneys, accountants, consultants and actual or potential financing parties (collectively, “Representatives”) so long as such Representatives are informed of its confidential nature and are bound by confidentiality obligations no less protective of the Proprietary Information than the terms contained herein; (iii) not to make any use or disclosure whatsoever at any time of such Proprietary Information except to evaluate, discuss, and as necessary, perform its obligations with respect to the Relationship with the Disclosing Party; (iv) not to reverse engineer any such Proprietary Information; and (v) not to export or reexport (within the meaning of U.S. or other export control laws or regulations) any such Proprietary Information or product thereof.
Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (i) is or becomes (through no improper action or inaction by the Receiving Party or its Representatives) generally available to the public, or (ii) was in its possession or known by it prior to receipt from the Disclosing Party, or (iii) was rightfully disclosed to it by a third party who had not, to Receiving Party’s knowledge, received such Proprietary Information from the Disclosing Party or such Receiving Party, or (iv) was independently developed without use of any Proprietary Information of the Disclosing Party by employees of the Receiving Party who have had no access to such information.
Notwithstanding anything herein to the contrary, the Receiving Party may make disclosures required by law, regulation, governmental rule or order of a governmental body; provided the Receiving Party uses diligent reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order and has allowed the Disclosing Party to participate in the proceeding to the extent legally permissible.
Promptly upon a request by the Disclosing Party at any time, the Receiving Party will turn over to the Disclosing Party, or destroy and certify such destruction in writing, all Proprietary Information disclosed by the Disclosing Party and all documents or media containing any such Proprietary Information and any and all copies or extracts thereof; provided, however, that each Receiving Party and its Representatives (i) may retain copies of the Proprietary Information that are stored on its IT backup and disaster recovery system until the ordinary course deletion thereof; and (ii) may retain one copy of any Proprietary Information required to ensure compliance with any applicable state or federal statutes, laws or regulations or its internal compliance procedures. Receiving Party shall continue to be bound by the confidentiality obligations set forth in this Agreement with respect to such retained Proprietary Information.
The Receiving Party understands that nothing herein (i) requires the disclosure of any Proprietary Information of the Disclosing Party or (ii) requires the Disclosing Party to proceed with the Relationship or any transaction.
The obligations set forth herein shall remain in effect for the period of two (2) years from the date set forth above, except that each Receiving Party’s obligation with respect to Proprietary Information that is considered the Disclosing Party’s trade secret shall be perpetual as long as such information remains a trade secret.
Proprietary Information shall remain the property of the Disclosing Party. Neither this Agreement nor any exchange of Proprietary Information hereunder shall be construed as granting any right or license to the Receiving Party of any aspect of the Proprietary Information, or under any copyright, invention, or patent now or hereafter owned or controlled by the Disclosing Party. Such information as may be transmitted by the Disclosing Party under this Agreement is provided “as-is” and shall not constitute any representation, warranty, assurance, guarantee or inducement by the Disclosing Party to Receiving Party with respect to the infringement of any patent or other proprietary right owned or controlled by any third party. No warranty of merchantability nor warranty of fitness for a particular purpose is provided hereunder for any of the Proprietary Information. Nothing in this Agreement shall be construed as a warranty, representation, assurance, guarantee or inducement by the Disclosing Party to each Receiving Party with respect to the content, completeness or accuracy of documents and information transmitted or exchanged by the parties under this Agreement.
The Receiving Party acknowledges and agrees that due to the unique nature of the Disclosing Party’s Proprietary Information, there may be no adequate remedy at law for any breach of its obligations hereunder, which breach may result in irreparable harm to the Disclosing Party, and therefore, that upon any such breach or any threat thereof, the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever remedies it might have at law.
This Agreement and all matters relating hereto are governed by, and construed in accordance with, the laws of the State of California, without regard to the conflict of laws provisions of such State. Any legal suit, action or proceeding relating to this Agreement must be instituted in the federal or state courts located in San Francisco County, California. Each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
The prevailing Party in any action to enforce this Agreement shall be entitled to costs and attorneys’ fees.
In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be illegal, invalid or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.
This Agreement supersedes all prior discussions and writings and constitutes the entire agreement between the parties with respect to the subject matter hereof. No waiver or modification of this Agreement will be binding upon a Party unless made in writing and signed by a duly authorized representative of such Party and no failure or delay in enforcing any right will be deemed a waiver.
This Agreement may be executed in two or more counterparts, each of which together shall be deemed an original, but all of which together shall constitute one and the same instrument. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a ".pdf" format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or ".pdf" signature page were an original thereof. Counterpart signatures need not be on the same page and shall be deemed effective upon receipt.
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IN WITNESS WHEREOF, each Party has caused this Agreement to be executed by its duly authorized representative.
LNG CONSORTIUM PROJECT, LLC
LNG CONSORTIUM PROJECT BI-LATERAL NDA
THE LNG CONSORTIUM PROJECT, LLC.