PROPRIETARY INFORMATION AGREEMENT
This Proprietary Information Agreement (Agreement), effective as of the ___th day of ____,
2012, is entered by and among Kiewit Infrastructure Co. (KIEWIT) which address is 470
Chestnut Ridge Road, 2nd Floor, Woodcliff Lake, New Jersey 07677 and
(COMPANY) which address is
.
RECITALS
A.
KIEWIT and COMPANY wish to exchange certain materials and information for the
purpose of KIEWIT developing a proposal for submission to the Port Authority of
New York and New Jersey (OWNER) for the construction of the Goethals Bridge
Replacement project (PROJECT) and COMPANY developing a quote for certain
work relating to the PROJECT for submission to KIEWIT or to a joint venture team
that includes KIEWIT.
B.
KIEWIT and COMPANY consider certain of their respective materials and
information, including information referenced in Recital C, to be confidential and
proprietary and are only willing to exchange such materials and information subject
to the conditions and restrictions set forth in this Agreement.
C.
COMPANY acknowledges that KIEWIT is pursuing the PROJECT on a team with
Macquarie Investment Group, Weeks Marine, Inc., Massman Construction Co. and
Parsons Transportation Group (collectively, the TEAM MEMBERS). Any
Proprietary Information provided by KIEWIT or one of these TEAM MEMBERS to
COMPANY, regardless of the initial source of such information, will be subject to
the terms of this Agreement.
D.
KIEWIT and COMPANY acknowledge that COMPANY has agreed to a separate
Non-Disclosure and Confidentiality Agreement governing Confidential Information
of the OWNER provided to COMPANY.
AGREEMENTS
Accordingly, KIEWIT and COMPANY (sometimes hereinafter individually or collectively
referred to as the “Party” or “Parties”) agree as follows:
1.
For purposes of this Agreement, Proprietary Information is defined to mean all
proprietary, confidential, and/or trade secret information disclosed by a Party to
another Party pertaining to the PROJECT, including but not limited to information
regarding the products, processes, operations, means and methods contemplated for
the Project, provided that:
a.
Proprietary Information will not include information already in the public
domain or known to the receiving Party (as evidenced by written records) when
first received from the disclosing Party, and
Proprietary Information Agreement, Page 1 of 4.
b.
Proprietary Information will lose its status as Proprietary Information if,
and as of the date when (i) it becomes part of the public domain through no
wrongful act of the receiving Party, (ii) it is rightfully disclosed to the receiving
Party without restriction by a source other than the disclosing Party, or (iii) it is
developed by the receiving Party entirely independently of any disclosure
hereunder.
2.
Each Party agrees that it will preserve in confidence, not disclose to others, and not
use (except for the purposes set forth in Recital A of this Agreement) any and all
Proprietary Information received from the other Party; provided that Proprietary
Information, when first received from the disclosing Party, must be either (i) in
written form containing a stamp or legend indicating its confidential nature or (ii) not
in written form but initially identified by the disclosing Party as proprietary and/or
confidential and thereafter confirmed by the disclosing Party within ten (10) days in
writing to the receiving Party as being Proprietary Information.
3.
Notwithstanding the other provisions of this Agreement, the Receiving Party
may disclose Proprietary Information to those employees or other
representatives who have a need to know such Proprietary Information in
order for the receiving Party to achieve the purpose set forth in Recital A.
The receiving Party shall have any external representatives sign a
confidentiality agreement containing terms and conditions that are either
substantially similar to those i ncl uded i n t hi s Agreem ent or are
reas o nabl y accep t abl e t o t he di s cl osi ng P art y. R ecei vi ng Part y s h all
b e res pons ibl e for an y breach of t his Agreem ent b y an y of receiving
Party's employees or representatives and any person or entity receiving Party
discloses Proprietary Information to.
4.
Materials and information provided under this Agreement are licensed to the
receiving Party for the limited purpose set forth in Recital A; and no disclosure or
physical transfer of any materials or information covered by this Agreement will be
construed as granting (a) a license under any patent, patent application, or copyright
or (b) any right of ownership in such materials or information.
5.
Upon written request of the disclosing Party, the Proprietary Information and
all copies, reproductions and reprints thereof in the receiving Party's
possession shall be destroyed or, at the receiving Party's election, returned
by the receiving Party to the disclosing Party.
6.
This Agreement will automatically expire five (5) years from its effective date unless
sooner terminated in accordance with this Paragraph. Any Party may terminate this
Agreement upon written notice to the others specifying the effective date of such
termination. Any such expiration or termination, however, will have no effect upon
rights and obligations relative to Proprietary Information disclosed to a Party under
this Agreement prior to the effective date of such expiration or termination.
Proprietary Information Agreement, Page 2 of 4.
7.
COMPANY will not refer to this Agreement, or to any related activity or relationship
with KIEWIT or the TEAM MEMBERS, for any promotional purpose or in any news
release or public announcement without the prior written approval of KIEWIT.
8.
This Agreement will be governed by the laws of the State of New York, U.S.A.,
except that the conflict of laws provisions under New York law will not be applied
for the purpose of making other law applicable.
9.
KIEWIT at its sole discretion will determine the viability and usefulness of
Proprietary Information and will make any and all decisions as whether to incorporate
said Proprietary Information into the work.
10.
This Agreement contains the entire understanding between the Parties regarding
Proprietary Information defined herein disclosed regarding the PROJECT on or after
the effective date hereof and supersedes, merges, and replaces any and all prior and
contemporaneous communications and understandings with respect thereto. No
modification of, or exception to, this Agreement will be binding on a Party hereto
unless first agreed to in writing by such Party. This Agreement will apply in lieu of
and notwithstanding any specific legend or statement associated with any particular
materials or information disclosed or transferred by either Party to the other. The
agreement referenced in Recital D shall remain in full force and effect according to its
terms and is not affected by this Agreement.
--BALANCE OF PAGE INTENTIONALLY LEFT BLANK—
Proprietary Information Agreement, Page 3 of 4.
Kiewit Infrastructure Co.
COMPANY
By:____________________________
(Signture)
By:______________________________
(Signature)
_______________________________
(Printed or Typed Name)
_________________________________
(Printed or Typed Name)
Title: ___________________________
Title:______________________________
Date:___________________________
Date:______________________________
Proprietary Information Agreement, Page 4 of 4.