CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
This Confidentiality and Non-Disclosure Agreement (“Agreement”), is entered into by the receiving party identified by its electronic signature below (“Recipient”) and shall be effective as of the date executed by Recipient (“Effective Date”).
WHEREAS, Ocean Spray Cranberries, Inc., including its subsidiaries and affiliates (“Ocean Spray”), may engage Recipient in discussions regarding: Ocean Spray’s business, a potential business relationship with Recipient, and/or to the potential performance of services and/or supply of goods by Recipient to Ocean Spray;
WHEREAS, in the course of such discussions and work, Ocean Spray may disclose to the Recipient certain Confidential Information, as defined below, that Ocean Spray seeks to protect;
NOW, THEREFORE, in consideration of the promises, the disclosures by Ocean Spray, and the agreements hereinafter contained, the Recipient agrees as follows:
- 1. Confidential Information: As used in this Agreement, “Confidential Information” shall mean the following (whether (a) disclosed by or on behalf of Ocean Spray to the Recipient orally or in writing, or by means of electronic files, or (b) learned by the Recipient through observation or examination of any documents, books, records, data or products of Ocean Spray, or (c) learned by the Recipient through observation or examination of Ocean Spray’s places of business, plants, machinery, production facilities, processes or procedures, or (d) otherwise learned by the Recipient in any manner):
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- A. All information in which Ocean Spray claims a proprietary and/or confidential interest.
B. All confidential matters of Ocean Spray (whether marked as confidential or not) including, without limitation, agricultural information and data; manufacturing and distribution methods and processes; logistics; technical know-how; trade secrets; technical data; analyses; compilations; concept data and processes; packaging and food technology; recipes and formulae; specifications; inventions; intellectual property; research projects; customer information; pricing policies; operational methods; financial information; marketing and sales information; product development information; strategic plans; and other business affairs of either Party.
C. All information of a confidential nature concerning Ocean Spray’s suppliers and or employees.
D. All information Ocean Spray has received from others that Ocean Spray is obliged to treat as proprietary and/or confidential.
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2. Non-Disclosure: Recipient agrees that all information, materials, documentation and data provided by Ocean Spray and reproductions thereof relative to the Confidential Information are exclusively Ocean Spray’s confidential and proprietary property and shall be held in strictest confidence by the Recipient. Such information shall be disclosed only to such persons in the direct employ of the Recipient who have a business need to know it and who shall have agreed to abide by the terms of this Agreement or other similar confidentiality terms. The Recipient shall not make or use any copies or summaries of the Confidential Information except such as are strictly necessary for the internal communications of the Recipient in connection with the discussions and work with Ocean Spray. Neither the nature nor the content of any Confidential Information shall, directly or indirectly, be disclosed to others or used for the benefit of any person other than Ocean Spray without the prior written permission of Ocean Spray.
3. Security: The Recipient shall take all security precautions as may be necessary to protect the Confidential Information from disclosure. The Recipient covenants that it has a policy and procedure to protect the Confidential Information provided by Ocean Spray and that the Recipient will use the same degree of care it uses with its own Confidential Information of a similar type. The Recipient agrees to indemnify and save Ocean Spray harmless from and against all loss and liability resulting from, or arising in connection with, the unauthorized use or disclosure of the Confidential Information by the Recipient or its officers, management directors, employees, advisers, Recipients or agents. Recipient shall promptly notify Ocean Spray in writing if it becomes aware of any actual or suspected unauthorized use or disclosure of Ocean Spray’s Confidential Information and shall assist Ocean Spray in preventing further disclosure or unauthorized use its Confidential Information.
4. Exceptions: Confidential Information shall not include any information or data which:
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- A. the Recipient can demonstrate to have been previously known to the Recipient, at the time of its disclosure, by sources other than Ocean Spray; or
B. is or becomes publicly known through no wrongful act of the Recipient; or
C. the Recipient can demonstrate to have been independently developed by the Recipient for a party other than Ocean Spray and without use of or reference to any Confidential Information of Ocean Spray;
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5. Legally Required Disclosure: In the event that Recipient shall be legally compelled (by written interrogatories, depositions, court order, requests for information or documents, subpoenas, civil investigative demands or similar compulsory judicial, administrative, or governmental process) to disclose any of the Confidential Information, the Recipient shall promptly provide written notice to Ocean Spray unless doing so would violate a law or otherwise obstruct justice. When permitted by law, the Recipient shall provide timely and sufficient notice to enable the Ocean Spray, at its own expense, to seek a protective order, in camera process or other appropriate remedy to avoid public or third-party disclosure of the Confidential Information. In the event that such protective order is not obtained, the Recipient shall furnish only so much of the Confidential Information that it is legally compelled to disclose, and shall exercise its best efforts to obtain reliable assurance that confidential treatment will be afforded to the Confidential Information. The Recipient shall cooperate with and assist Ocean Spray in seeking any protective order or other relief requested pursuant to this Section.
6. No License or Warranties: Nothing contained in this Agreement shall be construed as granting or conferring any rights by license or otherwise, express or implied, to the to the Confidential Information of Ocean Spray, or any trademark, patent, invention, copyright, trade secret, or other intellectual property or proprietary right based on such Confidential Information disclosed or obtained pursuant to this Agreement. All Confidential Information is provided “as is” without any warranties of any kind. Ocean Spray will not be liable for any damages arising from the use of any Confidential Information, or from errors, omissions, or otherwise.
7. No Contract or Obligation: Nothing contained in this Agreement shall be construed as constituting a contract, commitment or order for the purchase of any product, goods or service. Recipient shall not represent that it is an approved supplier or licensee unless it first receives that designation in writing from Ocean Spray.
8. Return/Destruction of Confidential Information: At the end of the discussions contemplated hereby (or, if later, of any work that may arise as a result of such discussions), and upon written request of Ocean Spray, the Recipient shall promptly destroy all Confidential Information in whatever form or medium. except that the Recipient may retain one copy of the Confidential Information for compliance purposes, and shall not be required to erase or destroy Confidential Information retained within automated, systematic backup archives that are not normally retrieved. The provisions of this Agreement shall apply for as long as the Confidential Information remains in the electronic archives.
9. Equitable Relief: It is understood and agreed that money damages would not be a sufficient remedy for any breach of this Agreement, that unauthorized use or disclosure of the Confidential Information would cause irreparable harm to Ocean Spray, and that Ocean Spray shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach by Recipient. Recipient further agrees to waive any requirement for the security or posting of any bond in connection with such remedy. Such remedy shall not be deemed to be the exclusive remedy for breach of this Agreement, but shall be in addition to all other remedies available at law or equity.
10. Assignment: The rights and obligations of Recipient under this Agreement may not be assigned without the express written consent of Ocean Spray. Notwithstanding anything herein to the contrary, Ocean Spray may assign this Agreement at any time to a subsidiary or affiliate of Ocean Spray without the consent of Recipient and without any notice to Recipient of such assignment. This Agreement shall be binding upon Recipient and its respective successors and permitted assigns.
11. Miscellaneous: This Agreement contains the entire understanding between Recipient and Ocean Spray relative to the protection of Confidential Information and supersedes all prior and collateral communications, reports, understandings between Recipient and Ocean Spray in respect thereto. No waiver of any provision of this Agreement shall constitute a waiver of any other provision(s) or of the same provision on another occasion. The benefit of each provision of this Agreement shall be deemed to be separate and severable and enforceable accordingly. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.
12. Governing Law: This Agreement is entered into and shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts.
13. Term: This Agreement shall remain in force for so long as Ocean Spray is entitled to claim a proprietary interest and/or trade secret protection in the Confidential Information.
14. Electronic Signatures: This Agreement may be executed and delivered by facsimile signature or by other electronic means, which shall be accepted as if they were original execution signatures.
IN WITNESS WHEREOF, Recipient has duly caused this Confidentiality and Non-Disclosure Agreement to be executed by a duly authorized representative.