THIS AGREEMENT, entered into on the day and year last below written:
BY AND BETWEEN:
Grid Independent Data Centers, LLC (“GIDC”) (Discloser #1) 117 West Gay Street, Suite 126, West Chester, PA 19380
Masi Marketing Organization, LLC, (“MMO”) and Dominion Development Group, LLC (“DDG”) 476 Delaware Avenue, Egg Harbor Township, NJ 08234 (“MMO”) (collectively MMO and DDG are Discloser #2 ), collectively, both Discloser #1 and Discloser #2 are (“Disclosers”).
Recipient, hereinbelow an Undersigned
Now Therefore, in connection with our mutual interest in having discussions regarding doing business in the context of exploring a collaboration with Disclosers (the “Transaction (s)”), one or more of the Parties to this Agreement, individually called the “Discloser” is providing to the other Party, individually called the “Recipient”, or its Representatives (as defined below) with certain information in connection with the Transaction concerning Discloser #1 which is either non-public, confidential or proprietary in nature and Discloser #2 is also providing Recipient with certain Confidential Information including access to it executive network, business information and funding resources, and Discloser #1’s executives, advisors and business information which is confidential and protected information.
Individually each Discloser and Recipient are a “Party” and together are “Parties” to this agreement.
WHEREAS, GIDC has one or more business opportunities relating to the development, financing, construction and operation of one or more grid independent data center facilities that may or may not be combined with other industrial park uses (the “Business Transaction”) and wishes to present the same to the Recipient for its review for the purposes of participating in the Business Transaction.
WHEREAS, in connection with the Business Transaction the Parties have disclosed and will continue to disclose certain confidential and/or otherwise proprietary information to each other; and
WHEREAS, the Parties wish to protect, pursuant to this Agreement, such confidential and proprietary information;
NOW, THEREFORE, the Parties, intending to be legally bound, hereby agree as follows:
- This Agreement shall apply to all Confidential Information disclosed by or on behalf of GIDC to MMO/DDG, or MMO/DDG to GIDC, or disclosed by MMO, DDG and/or GIDC to Recipient (including, without limitation, each Party’s members, officers, directors, employees, agents, and other representatives).
- The Parties acknowledge and agree that “Confidential Information” in whatever form disclosed hereunder, including, without limitation, written, visual, audible or oral, includes, without limitation,
- Information concerning any of a Party’s customers, clients, financing sources or vendors;
- Information referring to, discussing, or in any way related to a Party’s business condition, financials (including, without limitation, profit and loss statements, balance sheets, pricing, customer data, etc.), strategies, business models, plans, ideas, initiatives, systems, processes, and/or policies;
- Proprietary technology and systems, including but not limited to know-how, and any confidential patent applications and information relating to patents; and
- Any other information that a Party designates as confidential.
- The Parties further acknowledge and agree that “Confidential Information” also includes any reports, notes, summaries, abstracts, or drafts of Confidential Information or of oral presentations, reports, or discussions referring to, describing, elaborating upon, or otherwise relating to Confidential Information.
- Each Party hereto acknowledges that, in connection with the Business Transaction, the other Party has provided, and from time to time may continue to provide, Confidential Information to the other Party in confidence and solely for the purpose of evaluating, negotiating, or otherwise discussing the Business Transaction.
- Each Party acknowledges and agrees that:
- Each Party claims and reserves all rights afforded under all applicable contract, intellectual property, trade secret and other laws and regulations, protecting the Confidential Information furnished to the other Party;
- A Party is granted only a limited right of use of Confidential Information, as specified above, which right is revocable at will by the Party granting such use and not coupled with any interest in the Confidential Information;
- This Agreement shall not affect any transfer of right, title, or interest in or to any Confidential Information;
- A Party shall not assert any right, title, or interest in any Confidential Information of the other Party; and
- Neither Party grants any license under any patents, trademarks, service marks or copyrights, trade secrets or to any Confidential Information under this Agreement.
- Each Party acknowledges that the Confidential Information being disclosed is highly critical to each Party’s business interests Therefore, each Party hereto agrees to take all reasonable and customary efforts:
- To protect any and all Confidential Information from unauthorized use or disclosure;
- To use the Confidential Information only for the purpose(s) expressly set forth in, and in accordance with, the terms of this Agreement;
- Not to copy or reproduce any Confidential Information in any form, except to the extent contemplated by this Agreement;
- Not to disclose to or otherwise permit any third person or entity access to any Confidential Information except with prior written consent of the Party owning such Confidential Information;
- To limit disclosure of Confidential Information to those employees, agents, or other representatives of a Party who are necessary for and involved in that Party’s performance of its obligations under this Agreement;
- To ensure that any of a Party’s employees, agents, or other representatives who receive or obtain Confidential Information are advised of the nature of the Confidential Information and of the obligations such Party has undertaken with respect to such information under this Agreement and agree to comply with these obligations; and
- To take any and all other reasonable and customary steps necessary to safeguard Confidential Information against unauthorized access or disclosure.
- Each Party further agrees that, to assist the other Party in identifying any access, disclosure, or use of Confidential Information in a manner inconsistent with the provisions of this Agreement, each Party shall, upon request, inform the other Party of all individuals or entities to whom Confidential Information has been disclosed or who otherwise have been afforded access to Confidential Information.
- A Party shall immediately notify the other Party, both orally and in writing, of any known possession, use, or knowledge of any Confidential Information by any person or entity other than those authorized under this Agreement to receive the information
- Information of a Party shall not be deemed Confidential Information if it is:
- Information that was in the receiving Party’s possession at the time of disclosure, and which was obtained free from obligation to any third Party;
- Information, which is now, or becomes in the future, public knowledge other than through acts or omissions of the receiving Party;
- Information that was lawfully obtained from sources free from obligation to any third Party;
- Information that is developed by the receiving Party independently, without access to the Confidential Information; and
- Information that is disclosed by the receiving Party pursuant to a requirement of law or court order.
- Each Party agrees that it will not, directly or indirectly, interfere with, circumvent or attempt to circumvent, compete with, avoid, by-pass or obviate the interest of the other Party and its successors and assigns, in the Confidential Information or otherwise circumvent the purpose and spirit of this Agreement in relation to opportunities presented to either Party by the other.
- Upon a Party’s (the “Disclosing Party”) request, the other Party (the “Receiving Party”) shall voluntarily surrender all Confidential Information of the Disclosing Party in the Receiving Party’s possession, custody, or control (including, without limitation, the possession, custody, or control of any of the Receiving Party’s members, officers, directors, employees, agents, or other representatives), including, without limitation, any drafts, copies, or other non-originals. However, notwithstanding any other requirement to the contrary, Company shall be entitled to retain a copy of any document containing the professional opinions of Company or any of its directors, members, employees, officers, agents, or other representatives and any documents relied upon by Company or any of its officers, directors, members, employees, agents or other representatives in preparing, developing or formulating such professional opinions, subject to the requirements of Paragraph 4, above.
- Each Receiving Party acknowledges and agrees that the unauthorized disclosure or use of Confidential Information will cause irreparable harm and significant injury to the Disclosing Party, which will be difficult to measure with certainty or to compensate solely through money damages. Accordingly, the Receiving Party agrees that injunctive or other equitable relief sought by Disclosing Party shall be appropriate in the event of any breach or threatened breach by the Receiving Party of this Agreement or any part thereof in addition to such other remedies and all damages as may be available at law.
- 10. The Receiving Party acknowledges and agrees that neither the Disclosing Party, nor its officers, directors, members, employees, agents, or other representatives (the “Related Parties”) has made or will make any representation concerning the accuracy or completeness of Confidential Information; and that neither the Disclosing Party nor any Related Party shall have any liability whatsoever to the Receiving Party resulting from the Receiving Party’s use of Confidential Information as permitted by this Agreement Recipient shall be entitled to rely upon all information, including confidential information, provided by GIDC or its affiliates, associates and vendors for use in development of design and design documents, including but not limited to the Basis of Design and Owner’s Requirements Documents, only for purposes related to the Business Transaction. Should any provision of this agreement become unenforceable, void or invalid for any reason the validity of the remaining provisions shall not be affected.
- No forbearance or failure by the Disclosing Party to exercise, assert or claim any right or entitlement hereunder shall be construed as a waiver of that right or entitlement. No waiver of any breach of any term of this agreement shall, unless expressly agreed in writing by the Disclosing Party, be construed as a waiver of a future breach of the same term, or as authorizing a continuation of a particular breach.
- This Agreement is effective as of the Effective Date. The Receiving Party acknowledges that its obligations with regard to the Confidential Information of the Disclosing Party shall remain in effect for a term of Three (3) years from the Effective Date. Trade secrets shall survive this agreement.
- This agreement shall renew on an annual basis after the initial two years unless terminated in writing by either Party.
- This Agreement shall be governed by and construed in accordance with the laws of the State of Pennsylvania without regard to any choice of law principles that may require the application of the laws of any other jurisdiction.
- The Parties hereto hereby agree that they will not circumvent one another by entering into any agreement with one Party to this Agreement, without the third party being included. A breach of this non-circumvention covenant shall entitle the circumvented Party to the right of injunctive relief and damages.
- This non-circumvention covenant shall remain in effect during the term of this agreement and any extensions, plus an additional period of 36 months from the date of termination of this agreement.
- Any disputes relating to the performance of this Agreement shall be resolved in the following sequential order: (i) by good faith negotiation between the Parties; (ii) by non-binding mediation using a neutral mediator who is acceptable to both Parties; (iii) then the dispute shall be resolved by binding arbitration using a neutral arbitrator who is acceptable to both Parties. In all cases the location shall be one that is acceptable to both Parties and both Parties shall share all costs equally.
- This Agreement may be executed in counterparts, digitally and/or by facsimile, each of which so executed shall be deemed to be an original, and together which shall be deemed to be but one and the same instrument.
- This Agreement constitutes the entire Agreement between the Parties with respect to its subject matter and there are no understandings or agreements relative to that subject matter other than those that are explicitly expressed herein.
- Neither Party shall partially or completely assign, delegate, subcontract, or otherwise transfer any of its rights or obligations except with the express, written consent of a duly authorized officer of the other Party. This Agreement shall be binding upon any successor or affiliated companies that are directly related to the transactions introduced by either Party.
- This Agreement may be altered, amended, or otherwise changed only by a written instrument signed by authorized officers of both Parties.