NON-DISCLOSURE AGREEMENT (THE “AGREEMENT”) ENTERED INTO BY AND BETWEEN VOITCORPORATION, REPRESENTED HEREIN BY JOSE CARLOS ELIZONDO MORAN (HEREINAFTER “VOIT”), AND, REPRESENTED HEREIN BY (HEREINAFTER THE “COMPANY”), (VOIT AND THE COMPANY, HEREINAFTER REFERRED TO COLLECTIVELY AS THE “PARTIES” OR INDIVIDUALLY AS A “PARTY”), IN ACCORDANCE WITH THE FOLLOWING REPRESENTATIONS AND CLAUSES:
I. VOIT represents, through its legal representative, that:
a. It is a company duly organized and existing under the laws of Texas, United States of America, authorized pursuant to its corporate purpose to execute this Agreement and to assume the obligations set forth herein.
b. Its legal representative has sufficient power and authority to execute this Agreement on behalf of VOIT, which power and authority have not been modified, revoked or limited in any manner whatsoever.
c. It has its principal offices at 9258 Culebra Road Suite 116 San Antonio, Texas, 78251 United States of America.
d. It has taken all necessary measures commonly used in the industry to preserve and keep the confidentiality of the Information, as such term is defined below, to which THE COMPANY may have access.
e. It is willing to enter into this Agreement in order to set forth the terms and conditions under which the COMPANY shall, among others, (i) keep complete confidentiality with respect to proprietary Information of VOIT to which it may have access, and (ii) exclusively use the Information to which it may have access for the purpose of evaluating and determining their interest, to negotiate and, if applicable, in case the Parties agreed so, to enter into any legal documentation that implements the business, commercial, corporate or services transactions which the Parties are willing to maintain between themselves with respect to the Subject (as such term is defined below).
f. Represents and warrants to the COMPANY that it has the right to disclose its Confidential Information, under this Agreement.
g. Acknowledges the power and authority of the legal representative of the COMPANY to sign this Agreement.
II. The COMPANY represents, through its legal representative, that:
a. It is a company duly organized and existing under the laws of , authorized pursuant to its corporate purpose to execute this Agreement and to assume the obligations set forth herein.
b. Its legal representative has sufficient power and authority to execute this Agreement on behalf of the COMPANY, which power and authority have not been modified, revoked or limited in any manner whatsoever.
c. It has its principal offices at.
d. It is willing to enter into this Agreement in order to set forth the terms and conditions under which it shall, among others, (i) keep complete confidentiality with respect to proprietary Information of VOIT to which it may have access, and (ii) exclusively use the Information to which it may have access for the purpose of evaluating and determining their interest, to negotiate and, if applicable, in case the Parties agreed so, to enter into any legal documentation that implements the business, commercial, corporate or services transactions which the Parties are willing to maintain between themselves with respect to the Subject (as such term is defined below).
e. Acknowledges the power and authority of the legal representative of VOIT to sign this Agreement.
NOW THEREFORE, the Parties agree as follows:
FIRST. DEFINED TERMS. For the purposes of this Agreement, all capitalized terms used herein shall have the meanings assigned to such terms herein below:
“Information” shall have the meaning assigned to such term in clause second of this Agreement. “Parties” shall mean collectively VOIT and the COMPANY.
“Related Person” shall mean (a) regarding any entity, any Affiliate of such entity, any subsidiary of such entity, any trust in which such entity appears as a beneficiary of the same, any director or executive officer or any such individual’s Related Persons as determined by the following clause (b), and (b) regarding any individual, his spouse, his relatives up to the fourth degree, or the relatives of his spouse up to fourth degree, any Affiliate or subsidiary of him or any Affiliate or subsidiary of his spouse or of his relatives up to fourth degree, or any trust in which he, his spouse, the relatives of his spouse up to fourth degree or his relatives up to fourth degree appear as a beneficiary.
“Subject” means the sales transactions.
SECOND. CONFIDENTIALITY. VOIT has delivered and will deliver in the future to the COMPANY information, knowledge, documents, files, records, industrial secrets, industrial and intellectual property, of diverse nature, know-how, business strategies and designs, inventions, technical information, methods, formulas, processes, designs, drawings, sketches, plans, specifications, samples, reports, software, computer programs, models and goodwill (hereinafter the “Information”) owned by VOIT, in order to exclusively negotiate and, if applicable, enter into any legal documentation that implements the business, commercial, corporate or services transactions which the Parties are willing to maintain between themselves with respect to the development of the sales transactions.
For this purpose, the COMPANY, for all legal effects, hereby acknowledges that VOIT has invested considerable resources towards the development, improvement, implementation and maintenance of the confidentiality of the Information, which represents to VOIT and its Related Persons and Affiliates or subsidiaries, important economic or competitive advantages with respect to third parties; therefore, the COMPANY hereby agrees to keep such Information confidential.
In addition, the COMPANY agrees to protect all the Information that VOIT may disclose or deliver to it with at least the same degree of care as it normally carries out to protect its own Information, but in any event, no less than reasonable care.
Although VOIT intends to provide the COMPANY with Confidential Information relevant to the Subject, VOIT hereto does not grant any representation, warranty to the COMPANY with respect to the accuracy, suitability, completeness or veracity of the Information. Thus, VOIT shall not have any liability towards the COMPANY arising from the use of the Confidential Information for the Subject, unless such Confidential Information is the basis for a representation or warranty expressly made by VOIT in a separate written agreement.
THIRD. PROHIBITION ON USE AND DISCLOSURE OF THE INFORMATION. The COMPANY is obligated, with respect to any portion of the Information, to the following:
a. Neither disclose nor permit the disclosure to any third party of such portion of the Information of VOIT;
b. Not to use for itself or through third parties, the corresponding Information of VOIT with the purpose of obtaining a benefit, whether economic or otherwise, for purposes different from the ones agreed by the Parties;
c. Not to use such portion of the Information, whether directly or through third parties, in any transaction, operation or activity it performed, including without limitation, the direct or indirect development of any product or business and, in general, the COMPANY is hereby obligated not to adopt or carry out any action which purpose is the exploitation, disclosure, or dissemination of the industrial and/or intellectual property rights derived from the Information delivered to it or to which it was granted access.
Furthermore, the COMPANY shall be obligated to adopt all necessary measures in order to keep confidential the Information of VOIT; therefore, it shall enter into any necessary agreement in order to, and cause its Related Persons and their corresponding directors, officers, managers, representatives, employees, suppliers, auditors and counselors who in any manner have access to the Information of VOIT, to keep such Information as confidential.
The COMPANY shall deliver or, in its case, destroy, upon the written request of VOIT all the Information delivered to it by the latter by any means, including without limitation, such Information delivered to it by electronic or magnetic means, as well as all the copies and reproductions thereof, and all work papers incorporating any Confidential Information.
The COMPANY shall be obligated not to keep, after the request made by VOIT, any document or instrument whatsoever which contains Information.
FOURTH. EXCEPTIONS. The obligations of the COMPANY set forth in clauses Second and Third above do not apply to the Information that:
a. Has become generally available to the public;
b. VOIT agrees in writing that the corresponding portion of the Information is free of such restrictions;
c. At the time of its disclosure, such Information was known by the COMPANY, free of restriction as evidenced by documentation in its possession (as can be demonstrated by the Recipient’s or its Representative’s written records);
d. Is independently developed by the COMPANY or lawfully received by it free of restriction from another source having a right to furnish such Information (as can be demonstrated by the Recipient’s or its Representative’s written records); or
e. Is disclosed to any authority pursuant to any law, regulation or resolution of a competent administrative or judicial authority.
Notwithstanding the obligations set forth in Clause Second above, the COMPANY may disclose VOIT´s Confidential Information to the extent such disclosure is required by law or by court, provided, however, the COMPANY shall provide prompt written notice to VOIT of such requirement so that VOIT may seek a protective order or other appropriate remedy. In the event that no such protective order or other remedy is obtained, the COMPANY agrees to disclose only that portion of the Confidential Information it is legally required to disclose and to exercise all reasonable efforts to obtain confidential treatment for such Confidential Information.
FIFTH. CONFIDENTIAL INFORMATION DESTRUCTION. Title and all rights to the Confidential Information disclosed hereunder remain vested to VOIT. Upon written request of VOIT, the COMPANY shall promptly destroy all Confidential Information received hereunder and notify VOIT of such destruction.
SIXTH. TERM. The obligations to the COMPANY under this Agreement shall be in full force and effect for a period of 10 (ten) years from the date hereof. This Agreement shall be binding on the COMPANY and its legal successor(s) or assign(s).
SEVENTH. NO TRANSACTION COMMETMENT. It is hereby understood that (a) no contract or agreement providing for a transaction involving the parties hereto or their Affiliates with respect to the Possible Transaction shall be deemed to exist until definitive agreements pertaining to the Possible Transaction have been executed and delivered by each of the parties thereto, and that (b) until then, neither party hereto has any legal obligation of any kind whatsoever with respect to the Possible Transaction, except for the matters specifically agreed to herein.
EIGHTH. INTELLECTUAL PROPERTY RIGHT. This Agreement does not grant, and shall not be construed as granting, any license nor right to the COMPANY on the commercial brands, patents, copyrights, trademarks, trade names or any other industrial or intellectual property right conforming the Information; thus, the COMPANY will not have any right to claim any intellectual property right or other right whatsoever of VOIT.
NINTH. RELATIONSHIP BETWEEN THE PARTIES. The Parties agree that nothing in this agreement will be understood as if it would constitute them as partners or legal representatives of each other. The relationship between the Parties under this agreement is of independent contractors.
TENTH. ANTI BRIBERY. The parties state that behave ethically and shall not perform acts that are contrary to good practices of commercial industry.
The Parties hereby agree and acknowledge that they have full knowledge of the Corrupt Practices Act of the United States of America ("United States Foreign Corrupt Practices Act" or "Act FCPA"), which are obliged to observe the strict compliance with applicable laws, maintain the highest and most unquestionable ethical behavior and refrain from carrying out acts under this Convention that violate the FCPA law at all times.
The Parties, its employees, representatives and agents are obliged to refrain from payment (s) or transfer of anything of value, although in kind, either directly or indirectly, to any employee of the government of the United States or registered political party in the United States, or candidate or official thereof, to any agency whether Federal, State or Local, for the purpose of influencing any decision or to obtain or retain a benefit. Under the above conditions, the parties declare they know and comply with all requirements of the laws and regulations anti-corruption provisions.
In the event that during the term of this Agreement, the circumstances of the parties change regarding ethical behavior, the counterparty may terminate this instrument without liability.
ELEVENTH. PERSONAL DATA. The COMPANY hereby warrants, represents and undertakes that it knows, complies and will comply at any time during the term of this agreement, with the Personal Data national legislation. In case Personal Data has to be collected by the COMPANY, it warrants, represents and undertakes that the necessary authorizations, including data sharing for VOIT and/or its Affiliates, will be previously obtained.
TWELEVTH. NOTICES. All notices, requests and other communications between the Parties hereunder shall be in writing with acknowledgement of receipt, and delivered to the addresses indicated in the Representation Section, respectively.
THIRTEENTH. AMENDMENTS. Any amendment to this Agreement shall be effective only if made in a written instrument and signed by the legal representatives of both parties.
FOURTHEENTH. POSSIBLE COLLABORATION. The parties agree that the fact that they are discussing or have discussed a possible collaboration shall be Confidential Information.
FIFTEENTH. UNIQUE AGREEMENT. The Agreement contains the entire and only agreement between the parties concerning this subject matter.
SIXTEENTH. TERMS AND CONDITIONS. Both parties agree that the existence, terms and conditions of this Agreement are confidential.
SEVENTEENTH. THIRD PARTY. This Agreement shall not be assigned to any third party, without previous authorization in writing thereto by VOIT.
EIGHTEENTH.CLAIM OF BREACH. Waiver by either party or the failure by either party to claim a breach of any provision of this Agreement shall not be deemed to constitute a waiver or estoppel with respect to any subsequent breach of any provision hereof.
NINETEENTH. SEVERABILITY. If any of the provisions provided in this Agreement results in any manner illegal, invalid or unenforceable in accordance with any law in effect or future law, and in case the rights and obligations of the Parties hereunder are not materially affected by such situation
(i) this Agreement shall be interpreted and construed as if such illegal, invalid or unenforceable provision was never included in this Agreement and (ii) the remaining provisions shall be in effect and shall not be affected by the illegal, invalid or unenforceable provision.
TWENTIETH. GOVERNING LAW AND JURISDICTION. This Agreement shall be ruled and construed in accordance with the laws of Texas. For anything relating to the interpretation and enforcement of this Agreement, the Parties hereby agree to submit themselves to the jurisdiction of the competent court of Texas, expressly waiving to any other jurisdiction that might correspond to them by reason of their present or future domiciles.