NON-DISCLOSURE AGREEMENT
Exhibit
10.6
THIS
NON-DISCLOSURE AGREEMENT ("Agreement") is entered into
this 2nd day of February, 2006 by and between Sun Energy Solar, Inc., a Delaware
company having an address at 0000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx
00000, Xxxxxx Xxxxxx of America ("Company"), and Xxxxxx
Xxxxxxx, an individual residing in the state of Florida, and having an address
at 0000 Xxx Xxxx Xxxxx, Xxxx, XX
33558("Recipient").
RECITALS
A. Company
and Recipient have initiated or intend to initiate discussions concerning the
possibility of entering into a mutually advantageous business relationship
whereby Recipient shall perform certain services on behalf of and for the
benefit of Company (the
“LimitedPurpose”).
B. To
facilitate the disclosure of certain Confidential Information (as defined below)
by Company to Recipient, the parties desire to enter into this
Agreement.
AGREEMENT
Now
therefore, in
consideration of the foregoing recitals, which are hereby incorporated into
this
Agreement by reference, and the mutual covenants and agreements contained
herein, and other good and valuable consideration, the adequacy and receipt
of
which is hereby acknowledged, the parties agree as follows:
1. Definitions. In
addition to the terms
defined elsewhere in this Agreement, the following terms shall have the
following meanings:
(a) "Confidential
Information" mean any information, whether written, oral, magnetic,
photographic, optical, or other form, tangible or intangible, which has been,
or
after the date hereof will be, furnished or disclosed by Company, or its
employees, consultants, representatives or agents, or which Recipient may have
access to in connection with the Limited Purpose, which has been designated
as
being confidential, or which under the circumstances of disclosure reasonably
ought to be treated as confidential, including but not limited to any
information pertaining to or regarding the business, financial condition,
pricing, sales, strategies, plans, customers, suppliers, properties and
operations of Company (including such information visually available to
Recipient at Company’s premises or Company presentations), and including without
limitation all technical information of any nature whatsoever and all business
plans, inventions, trade secrets, know-how, methodologies, concepts, techniques,
discoveries, computer programs (including functionality and source code),
processes, drawings, designs, research, plans or specifications relating
thereto.
(b) "Related
Party" or "Related Parties" shall mean the directors,
officers, employees, legal, tax and other professional advisors or consultants
of Recipient, to the extent such entities or persons receive Confidential
Information.
2. Non-Disclosure
and Restricted Use of Confidential Information.
(a) Recipient
shall keep in strictest confidence and trust all Confidential Information and,
except upon the express prior written consent of Company, Recipient shall (i)
not disclose any Confidential Information to any other entity or person, and
(ii) use the Confidential Information solely as necessary to implement the
Limited Purpose and not for Recipient’s own benefit or for the benefit of any
other entity or person. Recipient shall take all reasonable
safeguards to prevent the disclosure or misuse of the Confidential Information,
including without limitation such measures as the Recipient takes to safeguard
its own confidential information, and shall not photocopy, transcribe or
otherwise reproduce or modify any of the Confidential Information except as
necessary to implement the Limited Purpose or otherwise upon the express written
consent of the Company.
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(b) Recipient
may disclose the Confidential Information to Related Parties on a "need to
know"
basis only. Recipient shall inform all Related Parties who have
access to the Confidential Information that such Confidential Information is
confidential and proprietary to Company and shall require each such Related
Party to agree to restrictions and obligations at least as strict as those
set
forth herein prior to disclosure of any Confidential
Information. Recipient shall diligently enforce any and all
confidentiality agreements with Related Parties and shall be responsible and
liable for any breach of the confidentiality obligations and restrictions on
use
set forth herein by any Related Party.
(c) The
obligations of Recipient stated in the preceding paragraphs of this Section
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shall not apply to information that (i) is or becomes generally known or
available to the public through no wrongful act of the Recipient; (ii) was
in
the Recipient's possession at the time of disclosure or receipt, as evidenced
and verified by prior tangible evidence, and was not acquired under an
obligation of confidence; (iii) Recipient demonstrates was rightfully received
by it from a third party after the time it was disclosed or obtained hereunder,
provided that such third party was not under an obligation of confidence with
the Company at the time of the third party’s disclosure to Recipient; (iv) is
independently developed by Recipient without use of or reference to the
Confidential Information and without breach of this Agreement, as evidenced
and
verified by prior tangible evidence; or (v) is required to be disclosed in
a
judicial or administrative proceeding, or as otherwise required to be disclosed
by law, in any such case after all reasonable legal remedies for maintaining
such information in confidence have been exhausted, including, but not limited
to, giving Company as much advance notice of the possibility of such disclosure
as practical so Company may attempt to stop such disclosure or obtain a
protective order concerning such disclosure. Recipient shall provide
Company with written notice no less than five (5) days prior to the disclosure
or use of any information of Company pursuant to this Section 2(c), subsections
(i) through (v).
(d) Recipient
shall (i) notify Company immediately of any unauthorized possession, use or
knowledge of the Confidential Information, (ii) promptly furnish Company full
details of such possession, use or knowledge, and (iii) cooperate with Company
against third parties as may be deemed necessary by Company to protect its
proprietary rights in the Confidential Information.
3. Term
of Agreement. This Agreement shall be effective as of the date of
first disclosure of Confidential Information and may be terminated, without
cause, with respect to future disclosures upon thirty (30) days prior written
notice to the other party; provided however, that all rights and obligations
accrued prior to such termination shall survive the termination of this
Agreement. Notwithstanding anything herein to the contrary, the
nondisclosure obligations and restrictions on use with respect to any
Confidential Information shall continue and bind Recipient for a period of
five
(5) years after the date of the last disclosure of Confidential Information
hereunder, except that the nondisclosure obligations and restrictions on use
with respect to any Confidential Information that constitutes a trade secret
shall continue in effect for so long as the Confidential Information remains
a
trade secret under applicable law. Any termination or expiration of
this Agreement shall be without prejudice to the rights of Company against
Recipient in respect of any claim or breach of any of the provisions of this
Agreement.
4. Return
of Confidential Information. Recipient shall return to Company,
or at Company’s request, destroy, and shall cause its Related Parties to return
or destroy, the Confidential Information and all copies, transcriptions or
other
reproductions of, and any notes relating to, the Confidential Information,
including without limitation, any memoranda, photocopies, computer files and
libraries, computer-generated data or other similar repositories or archives,
upon (i) the accomplishment of the purpose for which the Confidential
Information was provided, or (ii) receipt of a written notice from Company
requesting return or destruction of the Confidential Information, and upon
request, shall provide to Company written certification signed by an officer
of
Recipient that it has complied with the foregoing.
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5. Ownership.
(a) All
Confidential Information is and shall remain the property of
Company. By disclosing Confidential Information to Recipient, Company
does not grant any express or implied right to Recipient to or under any
patents, copyrights, trademarks, or trade secret information except as required
to implement the Limited Purpose. Company reserves without prejudice
the ability to protect its rights under any such patents, copyrights,
trademarks, or trade secrets. Recipient shall not remove any
proprietary, copyright, trade secret or other legend from any form of the
Confidential Information. Recipient shall, at the reasonable written
request of Company and at Company’s expense, add to the Confidential Information
any proprietary, copyright, trade secret or other legend or modify the same,
which Company deems necessary to protect its intellectual property
rights. Without limiting the foregoing, Company shall retain all
right, title, and interest in and to all forms of Confidential Information
delivered or disclosed hereunder, including, without limitation, any patents,
copyrights, trademarks, service marks, trade dress, logos, technical
information, know-how, trade secrets, and any modifications or enhancements
thereto (whether developed by Company, Recipient, any Related Party, or on
either party’s behalf) or other intellectual property rights throughout the
world, whether currently existing or hereafter developed or acquired, and all
applications, disclosures and registrations with respect thereto (collectively,
“IP Rights”). If Recipient or any third party
engaged by Recipient is deemed to have any ownership interest or rights in
any
IP Rights in the Confidential Information, then Recipient, for no additional
consideration, shall assign and/or cause such third party to assign, and
Recipient does hereby assign, all of such ownership interest and rights
exclusively and irrevocably to Company. Recipient shall cooperate
with Company and shall cause to be executed all such instruments and documents
as Company reasonably may request in connection with such assignments and shall
do all other lawfully permitted acts reasonably required to further the intent
of this Section 5; provided, however, this Agreement shall be effective
regardless of whether any such additional documents are
executed. Recipient shall not dispute or contest, directly or
indirectly, Company’s right, title and interest in or to, or the validity and
enforceability of, any IP Rights in the Confidential Information (including
the
attempt to register or record the same in any
jurisdiction). Notwithstanding anything herein to the contrary, this
Section 5 shall survive any termination or expiration of this
Agreement.
(b) Recipient
may from time to time provide suggestions, comments or other feedback
("Feedback") to Company with respect to the Confidential
Information. Both parties agree that all Feedback is and shall be
given entirely voluntarily. Recipient shall not give Feedback that is
subject to license terms that seek to require any Company product, technology,
service or documentation incorporating or derived from such Feedback, or any
Company intellectual property, to be licensed or otherwise shared with any
third
party. Recipient hereby acknowledges and agrees that all Feedback
shall be deemed Confidential Information of Company, subject to the obligations
of confidentiality and restricted use provided under this
Agreement. Furthermore, Recipient hereby acknowledges and agrees that
Company shall have the exclusive right to use, disclose, reproduce, license
or
otherwise distribute, and exploit the Feedback as Company sees fit, entirely
without obligation or restriction of any kind on account of intellectual
property rights or otherwise.
6. Accuracy
and Completeness of Confidential Information. The disclosure of
any Confidential Information to Recipient shall be solely in Company 's
discretion. This Agreement shall not require Company to disclose any
information or to require the consummation of any transaction in connection
with
which the Confidential Information is disclosed. Notwithstanding
anything to the contrary, Company shall not be deemed to have made any
representation or warranty to Recipient concerning the accuracy or completeness
of any Confidential Information, except to the extent that such representation
or warranty may be expressly set forth in a definitive written agreement
concerning any subsequent business relationship.
7. Independent
Contractors. Neither this Agreement, nor any terms and conditions
contained herein, will be construed as creating a partnership, joint venture,
or
agency relationship or as granting a franchise. The parties are
independent contractors each acting for its own account, and neither is
authorized to make any commitment or representation, express or implied, on
the
other’s behalf.
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8. Remedies. Recipient
acknowledges and agrees that Company would be irreparably harmed if any of
the
Confidential Information were to be disclosed to third parties, or if any use
were to be made of the Confidential Information other than that specified in
this Agreement, and further agrees that Company shall have the right to seek
and
obtain injunctive relief upon any violation or threatened violation of the
terms
of this Agreement without the necessity of posting bond or other security,
in
addition to all other rights and remedies available to Company at law or in
equity. Any trade secrets of the Company will be entitled to all of
the protections and benefits under the applicable Uniform Trade Secrets Act
and
any other applicable law. If any information that Company deems to be
a trade secret is found by a court of competent jurisdiction not to be a trade
secret for purposes of this Agreement, such information nevertheless will be
considered Confidential Information for purposes of this
Agreement. Recipient hereby waives any requirement that the Company
submit proof of the economic value of any trade secret.
9. Indemnity. Recipient
shall indemnify Company for and against all damages, losses, claims, costs
(including reasonable attorneys' fees), expenses and liabilities, suffered
or
incurred as a direct or indirect result of Recipient failing (whether
intentionally or not) to fully comply with its covenants and obligations under
this Agreement, including by virtue of any act of any Related
Party.
10. Entire
Agreement. This Agreement sets forth the complete and exclusive
understanding of the parties regarding the subject matter of this Agreement
and
supersedes all prior agreements, understandings, and communications, oral or
written, between the parties regarding the subject matter of this
Agreement. This Agreement is not, however, intended to limit any
rights that Company may have under trade secret, copyright, patent, trademark
or
other laws that may apply to the subject matter of this Agreement both during
and after the term of this Agreement.
11. Amendments. No
amendment or waiver of any term of this Agreement shall be effective unless
such
amendment or waiver is in writing and is signed by each of the parties
hereto.
12. Assignment. Recipient
shall not assign or transfer, in whole or in part and whether by contract or
operation of law, this Agreement, or any rights or obligations hereunder,
without the prior written consent of Company. Subject to the
foregoing, this Agreement shall be binding upon, and shall inure to the benefit
of, the parties and their respective representatives, successors and
assigns.
13. Attorneys'
Fees. If any party shall commence any action or proceeding
against the other in order to enforce the provisions of this Agreement, or
to
recover damages as the result of the alleged breach of any of the provisions
of
this Agreement, the prevailing party therein shall be entitled to recover all
reasonable costs incurred in connection therewith against the party commencing
such action or the party who has breached this Agreement, as the case may be,
including reasonable attorneys' fees.
14. Applicable
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida, other than such laws, rules,
regulations and case law that would result in the application of the laws of
a
jurisdiction other than the State of Florida. Any suit to enforce any
provision of this Agreement, or arising out of or based upon this Agreement,
shall be brought exclusively in the United States District Court for the
District of Florida or the District Court in and for the
city of Sarasota and the County of Sarasota, State of Florida. Each
party hereby agrees that such courts shall have in personam jurisdiction
and venue with respect to such party, and each party hereby submits to the
in
personam jurisdiction and venue of such courts.
15. Severability. If
any provision of the Agreement shall be held by a court competent jurisdiction
to be illegal, invalid or unenforceable, the parties hereby authorize the court
to modify such provision to the minimum extent necessary to effectuate the
parties’ intentions and the remaining provisions shall remain in full force and
effect.
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[SIGNATURE
PAGE FOLLOWS]
This
Agreement has been executed as of
the date first set forth above.
Sun
Energy Solar,
Inc..
By:
/s/Xxxx
X.
Xxxxx
Title:
CEO
Date:
July
10,
2006
Recipient
Signature:
/s/
Xxxxxx
Xxxxxxx
Printed:
Xxxxxx
Xxxxxxx
Date:
February
18,
2006
