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HomeMy WebLinkAboutDeere & Company; Cedar Valley Techworks; Greater Cedar valley Alliance - Confidentiality Agreement - 5.1.2006 o -. G CONFIDENTIALITY AGREEMENT This Confidentiality Agreement ("Agreement") is effective as of 21 April 2006 ("Effective Date") and is entered between DEERE & COMPANY, One John Deere Place, Moline, Illinois 61265, a Delaware corporation, ("Deere"), and the CEDAR VALLEY TECHWORKS, INC., represented by the GREATER CEDAR VALLEY ALLIANCE, 10 West Fourth Street, Suite 310, Waterloo, Iowa 50701 an Iowa corporation, ("GCVA"), and the CITY OF WATERLOO, IOWA, an Iowa municipal corporation ("Waterloo"). In connection with discussions involving a possible relationship between the parties, each of the parties is prepared but is not required to make available to the other certain nonpublic, confidential, proprietary information which may include, without limitation, information about its business, operations,business plans, programs and technical data. Each of the parties agrees that the following terms and conditions apply when one of the parties discloses ("Discloser") Proprietary Information to the other party ("Recipient"), 1. DEFINITIONS 1.1 "Proprietary Information" means Confidential Information and Trade Secrets, whether in written; oral, electronic or other forms furnished, transmitted to, observed or obtained by one of the parties. The Proprietary Information shall include, but is not limited to all documents delivered to GCVA and Waterloo relating to the transaction contemplated by this Agreement. Proprietary Information also includes any Confidential Information or Trade Secrets that are in a. Discloser's facility and are viewable; accessible or otherwise made available to Recipient The following information, all as reasonably substantiated by documentation, however. is not Proprietary Information and Recipient is not restricted as to its use or disclosure; (a) information already in the possession of, or already known to, the Recipient party as of the Effective Date, and not under any other obligations of confidentiality due to any other agreements between the parties; (b) information that enters the public domain after the Effective Date, or which, after such disclosure, enters the public domain through no fault of the Recipient; (c) information lawfully furnished or disclosed to the Recipient by a non-party to this Agreement without any obligation of confidentiality; (d) information independently developed by any party without use of any Proprietary Informations or (e) information that is explicitly approved for release by the Discloser of the information. 1.2 "Confidential Information" means technical and non-technical information (regardless of whether such information is in tangible or intangible form) including data, ideas, concepts, formulae, methods, techniques, processes, financial business plans and business methods (including any derivatives of any of the foregoing), other than Trade Secrets, disclosed to either party by or on behalf of the other party during the term of this Agreement or before and further means any information, including the arrangements and transactions contemplated by this Agreement, which are used, learned or contributed during the course of this Agreement, which is Confidentiality Agreement Cedar Valley Techworks,Inc. Page 1 of 5 Deere&Company not generally available to the public or which would give the one who uses it competitive advantage over the Discloser. The parties agree that the terms of this Agreement are to be treated as Confidential Information. 1.3 "Trade Secrets" means technical and non-technical information (regardless of whether such information is in tangible or intangible form) including data, ideas, concepts, formulae, methods, techniques, processes, financial business plans and business methods (including any derivatives of any of the foregoing) disclosed to either party by or on behalf of the other party that derive economic value, actual or potential, from not being generally known to other persons who could obtain economic value from the disclosure or use thereof, and which are the subject of efforts that are reasonable under the circumstances to maintain their secrecy. Unless the Discloser specifically marks or otherwise clearly designates information as a "trade secret", the information will be deemed by the Recipient to be Confidential Information and not a Trade Secret. 1.4 "Affiliates" means any current or_future corporation, partnership or other entity that is in or under the direct control of a party. 1.5 "Representatives" means any director, officer,employee, agent, advisor or consultant of either of the parties or their Affiliates. L. PROTECTION OF PROPRIETARY INFORMATION Recipient agrees that it shill hold Proprietary Information in confidence, agrees not to disclose ,uch Proprietary Information to persons not having a need to know such Proprietary Information consistent with the purpose for which it was transmitted and agrees that such Proprietary Information will not be used, directly or indirectly, for any nonprofit, commercial,business or other purpose or in any way detrimental to Discloser. Recipient shall take reasonable precautions to protect the confidentiality and value of Proprietary Information to Discloser including measures to prevent loss, theft and misuse. Recipient shall immediately give notice to Discloser of any unauthorized use or disclosure of Proprietary Information. Recipient agrees to assist Discloser in remedying any unauthorized use or disclosure of Proprietary Information caused by such Recipient. 3, BUSINESS RECORD EXCEPTION Each party acknowledges the information contained in notes, correspondence and reports prepared by a party in connection with the party's discussions are business records of the Recipient, and hereby agrees that such copies need not be returned or destroyed, but are subject to all other terms of this Agreement. 4. RETURN OF PROPRIETARY INFORMATION Upon written request of a party, each party shall promptly return or destroy (as directed by the Discloser) all Proprietary Information received from the other party, including all copies, except for Proprietary Information Recipient is entitled to retain under Section 3 "BUSINESS RECORD EXCEPTION." Upon the request of the Discloser, the Recipient shall furnish to the Discloser an affidavit providing assurances as to the return or destruction of the Discloser's Proprietary Information. Confidentiality Agreement Cedar Valley Techworks,Inc. Page 2 of 5 Deere&Company 5. DISCLOSURE REQUIRED BY LAW A disclosure of Proprietary Information in response to a valid order by a court or other governmental body or otherwise required by law is not considered to be a breach of this Agreement or a waiver of confidentiality for other purposes. Disclosure "required by law" includes, without limitation, disclosure that Waterloo is obliged to make pursuant to a records request under the Iowa open records law, set forth in Chapter 22 of the Iowa Code. Before any disclosure authorized by this Section 5, Recipient shall provide prompt written notice to Discloser to enable it to seek a protective order or prevent disclosure. If the Discloser has not, within five (5) business days of written notice from Recipient, filed suit seeking entry of a declaratory order or injunction to protect the confidentiality of the Proprietary Information, then the information sought will be released. 6. DISCLOSURE OF DISCUSSIONS PROHIBITED The fact that discussions are taking place between the parties is to remain confidential and may not be disclosed by either party to any of its employees or other Representatives or to any governmental agency, regulatory body and any other person without limitation, except on a need-to-know basis, consistent with the purpose and intent of this Agreement. 7. OWNERSHIP All materials transmitted between the parties and containing Proprietary Information are to remain the sole and exclusive:property of the Discloser. This Agreement and transmission or disclosure of any Proprietary Information does not grant the Recipient a license of any type under any patents, know-how, copyrights or trademarks owned or controlled by the Discloser. 8. EXPIRATION OF OBLIGATIONS All obligations of confidentiality and all restrictions on the use of Proprietary Information under this Agreement are to remain in effect for a period of five (5) years following the date of disclosure for Confidential Information, and with respect to Trade Secrets under applicable law, for as long as such information remains a Trade Secret. Such time period may be extended upon written agreement of the parties. 9. NO OBLIGATION The parties agree that unless and until a subsequent agreement or agreements between them with respect to a business relationship has/have been executed and delivered, none of the parties will be under any legal obligation to the other of any kind whatsoever with respect to such relationship, except for the matters specifically agreed to herein. 10. RESPONSIBILITY FOR AFFILIATES AND REPRESENTATIVES Each party is solely responsible for any breach of this Agreement by its Representatives including, without limitation, any improper use or disclosure by its Representatives of the other party's Proprietary Information, the disclosure to any third party of the existence of this Agreement or that discussions between the parties will or have occurred. Recipient may disclose Proprietary Information to its Affiliates and Representatives who in Recipient's reasonable judgment have the need to know such information in connection with the possible transaction between the parties. Recipient shall inform its Representatives of the confidential nature of such Confidentiality Agreement Cedar Valley Techworks,Inc. Page 3 of 5 Deere&Company Proprietary Information, shall direct them to hold Proprietary Information in strict confidence, shall take all reasonable precautions to prevent improper use of Proprietary Information by them, and shall be responsible for any breaches by them of the terms found in this Agreement. 11. GENERAL PROVISIONS 11.1 Prohibition on Assignment. The parties agree not to assign any rights or delegate any duties under this Agreement without the other party's prior written consent, and any attempt to do so is void and has no effect. 11.2 Binding Effect. This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. 11.3 Governing Law. The laws of the State of Iowa, without giving effect to its conflicts of law principles, govern all matters arising out of or relating to this Agreement, including, without limitation, its validity, interpretation, construction, performance and enforcement. Litigation or legal proceedings which arise out of or relate to this Agreement are to be conducted before a judge and not a jury. 11.4 Venue. The parties consent to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in Iowa for the purposes of adjudicating any matter arising our of or relating to this Agreement. 11.5 No Waiver. The failure of a party to enforce a provision, exercise a right or pursue a default of this Agreement shall not be considered a waiver. The express waiver of a provision is to be effective only in the specific instance, and as to the specific purpose, for which it was given. 11.6 Severability. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of this Agreement remain in full force and effect so long as the essential terms and conditions of this Agreement reflect the original intent of the parties and remain valid, legal and enforceable. 11.7 Section Headings and Captions. The section headings and captions contained in this Agreement are for convenience only and do not affect the construction or interpretation of any provision of this Agreement. 11.8 Construction. This Agreement is the result of arm's length negotiations between the parties and each of the parties has agreed to the use of the particular language in this Agreement. The parties further acknowledge that any questions of doubtful or unclear interpretation are not to be resolved by any rule or interpretation against the drafters, and that each party has participated in drafting this Agreement. Accordingly, this Agreement is to be construed without regard to the party or parties responsible for its drafting or preparation. 11.9 Counterparts. This Agreement may be executed in counterparts and delivered to each of the parties by facsimile. Facsimile or photocopy signatures are deemed as legally enforceable Confidentiality Agreement Cedar Valley Techworks,Inc. Page 4 of 5 Deere&Company as the original. Each such counterpart is deemed an original instrument, but all such counterparts taken together constitute one and the same agreement. 11.10 Remedies Cumulative. Unless stated otherwise, all remedies provided for in this Agreement are to be cumulative and in addition to, and not in lieu of, any other remedies available to either party at law, in equity or otherwise. 11.11 Injunctive Relief. It is agreed that money damages may not be a sufficient remedy for breach of this Agreement. Discloser is entitled to seek injunctive relief without proof of actual damages. In addition, Discloser may seek other appropriate relief, including monetary damages. 11.12 Compliance with Applicable Laws. Both parties represent and warrant they will comply with all applicable federal, state and local laws, rules, regulations, statutes, ordinances, codes, orders and/or programs (whether in effect as of the Effective Date of this Agreement or enacted during the term of this Agreement). The parties are signing this Agreement as of the Effective Date. DEERE & COMPANY, GREATER CEDAR VALLEY ALLIANCE JOHN DEERE WATERLOO WORK Name: Patrick Pinkston Name: Steve J. Dust Title. General Manager Title: President and C.E.O. John Deere Waterloo Works Greater Cedar Valley Alliance CITY OF WATERLOO, IOWA By: Name: Timothy J. Hurley Title: Mayor City of Waterloo, Iowa Confidentiality Agreement Cedar Valley Techworks,Inc. Page 5 of 5 Deere&Company