EXHIBIT 5.2
MUTUAL NON-DISCLOSURE AGREEMENT
This Agreement made this 22 of March 2005, by and between Symmetrex
Inc. ("Symmetrex") with an address of 000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxx
XX, 00000 and XXXXXX BEAUMONT INC. with an address at 0000 00xx Xxxxxx Xxxx,
Xxxxxxxxx, XX 00000 ("Other Party").
WHEREAS, SYMMETREX and Other Party (jointly the "parties") wish to
disclose to each other certain information solely for the purpose of evaluating
a proposed business arrangement between the parties (the "Evaluation"); and
WHEREAS, in consideration of and as an inducement for and condition of
such disclosure, each party hereby requires the other party to agree to the
terms and conditions of this agreement.
NOW, THEREFORE, for adequate consideration acknowledged to be received
by each party, each party, intending to be legally bound, hereby agrees as
follows:
1. For all purposes of this agreement, the following definitions shall
apply:
A. "Confidential Information" of a party shall mean any trade
secrets, know-how, inventions, products, designs, methods, techniques, systems,
processes, software programs, works of authorship, business plans, customer
lists, projects, plans, pricing, proposals and any other information which a
party discloses to the Recipient Party that: (i) if disclosed in writing is
clearly marked as confidential or carries a similar legend; or (ii) if disclosed
verbally or in tangible form is identified as confidential at the time of
disclosure, then summarized in a writing so marked by the Disclosing Party and
delivered to the Recipient Party with fifteen (15) days. Confidential
Information shall also include the terms of this agreement, the fact that the
information is being made available to the parties hereunder and the fact that
the parties are contemplating a possible business arrangement.
B. "Disclosing Party" shall mean, with respect to any
information disclosed by one party to the other, the party which, directly or
through one of its agents, discloses such information.
C. "Recipient Party" shall mean, with respect to any
information disclosed by one party to the other, the party which receives such
information.
2. Each Recipient Party with respect to Confidential Information
received by it hereunder shall:
A. Hold such Confidential Information in strict confidence and
protect it in accordance with a standard of care which shall be no less than the
care it uses to protect its own information of like importance and in no event
less than reasonable care.
B. Not use such Confidential Information for any purpose
except as is necessary for the Evaluation referenced above or as otherwise
authorized in writing by the Disclosing Party of such information in advance.
C. Not disclose Confidential Information to any person other
than to one of the Recipient Party's directors, officers, employees,
representatives, consultants or agents (collectively called "Representatives")
who need to know such information for the purposes of the Evaluation, provided
that each Representative shall be informed, directed and obligated by the
Recipient Party to treat such information in accordance with the obligations of
this agreement and the Recipient Party shall be liable for breach of any such
obligation by any of its Representatives.
D. Not copy or otherwise duplicate such Confidential
Information, or knowingly allow anyone else to copy or otherwise duplicate any
such Confidential Information without the Disclosing Party's prior written
approval.
3. Each Recipient Party shall notify the Disclosing Party in the event
that any Confidential Information of the Disclosing Party is required to be
disclosed by the Recipient Party by judicial, administrative or other govern
mental order. Such notification shall be made reasonably promptly so that the
Disclosing Party, at its expense, may seek a protective order or other
appropriate remedy. Provided such notification is given, the Recipient Party is
hereby authorized to comply with such judicial, administrative or governmental
order. The Recipient Party shall provide the Disclosing Party reasonable
cooperation (at the expense of the Disclosing Party) in connection with any
protective order or other remedy sought by the Disclosing Party in connection
with such order.
4. The obligations imposed on a Recipient Party with respect to
Confidential Information shall not apply to Confidential Information disclosed
to it hereunder which (a) the Recipient Party can demonstrate is, at the time of
disclosure, already known to the Recipient Party, (b) is or becomes generally
known to the public or is otherwise deemed to be in the public domain through no
wrongful act of the Recipient Party, (c) is received from a third party who has
the legal right to so furnish such Confidential Information, or (d) the
Recipient Party can demonstrate is independently developed by or for the
Recipient Party without use of Confidential Information.
5. Upon the written request of the Disclosing Party with respect to any
Confidential Information disclosed by it hereunder, the Recipient Party shall
return to the Disclosing Party any or all of such information and all copies,
contracts or other reproductions in whole or in part thereof or, with the
written permission of such Disclosing Party, effect the destruction of all of
same and certify such destruction in writing to the Disclosing Party.
6. Each party acknowledges that the other party has no legal obligation
pursuant to this agreement to disclose information to it hereunder but is doing
so as an accommodation to the Recipient Party in reliance upon the terms of this
agreement and that all information received by the Recipient Party hereunder
cannot be relied upon as a representation or warranty of the Disclosing Party
and, accordingly, no Disclosing Party shall be liable for any reliance upon any
information disclosed by it hereunder, unless otherwise agreed to in writing by
the Disclosing Party.
7. Nothing contained in this agreement shall be construed as granting
to either party any right, title or interest in any information disclosed
hereunder to it, except for the limited right to use and disclosure as expressly
permitted hereunder.
8. Each Recipient Party shall on any copies it may make of any
information received hereunder maintain any and all copyright, patent or
trademark notices which may appear on such information when so received.
9. Each party represents that the disclosure by it of information
hereunder does not violate the rights of any other entity.
10. If either Party breaches its promises made in this Agreement, the
non-breaching Party will have available to it all remedies available under law.
11. This agreement shall become effective on the date it is fully
executed and delivered by both parties and both this agreement and the duties of
the parties hereunder shall continue for a period of two years after the last
disclosure of information made hereunder.
12. This agreement shall be binding upon and inure to the benefit of
each party and its successors. No representations have been made to induce
either party to enter this agreement other than those expressly stated herein.
This agreement supersedes all prior or contemporaneous agreements or expressions
of intent or understanding and is the entire agreement between the parties with
respect to its subject matter. Neither party shall be charged with any waiver of
any provision of this agreement unless such waiver is evidenced by a writing
signed by an authorized officer of such party and any such waiver shall be
limited to the terms of such writing. This agreement shall not be changed or
terminated, except by a writing signed by an authorized officer of Symmetrex and
an authorized officer of Other Party. This agreement shall be governed by the
laws of the State of Florida, without regard to the conflicts of law principles
of that state.
IN WITNESS WHEREOF, the parties have executed this agreement as of the
date stated above.
XXXXXX BEAUMONT, INC. SYMMETREX INC
NAME: Xxxx Xxxxxx NAME: Xxxxxx X. Xxxxx
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TITLE: President TITLE: President
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SIGNATURE: /s/ Xxxx Xxxxxx SIGNATURE: /s/ Xxxxxx X. Xxxxx
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DATE: 3/22/2005 DATE: 3/22/05
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