MUTUAL SUPPLIER CONFIDENTIALITY AGREEMENT
THIS MUTUAL SUPPLIER CONFIDENTIALITY AGREEMENT (the “Agreement”), is made and
entered into as of this
day of
,
, by and among Meritor WABCO Vehicle Control Systems, a
Delaware general partnership, (“Meritor WABCO”) and
a
(the “Company”). Meritor WABCO and
Company may each be referred to herein as “Party” or, collectively, as “Parties.”
RECITALS
WHEREAS, the Parties have expressed an interest in engaging in a (the “Transaction”) whereby Company
would provide Meritor WABCO certain materials, components, products and/or services; and
WHEREAS, to facilitate the Parties’ evaluation of such Transaction, each Party is desirous of having the
other Party disclose and transmit to it and its authorized employees, representatives, and consultants, certain
confidential and proprietary information; and
WHEREAS, each Party is willing to disclose and transmit such information but only upon the agreement of
the other Party to such covenants, agreements and restrictions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the Parties agree as
follows:
1.
Definitions.
The following terms have the following respective meanings:
“Affiliate” means, with respect to any Person, its partners and any other Person directly or indirectly
controlling, controlled by, or under common control with, such Person; for purpose of this definition
“control” (including, with correlative meanings, the terms “controlling”, “controlled by” and “under
common control with”) shall mean the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of the Person, whether through the ownership of voting securities,
by contract or otherwise.
“Confidential Information” means and includes any and all information, whether printed, written,
electronic, verbal, photographic or otherwise, which may have been previously or may be disclosed or
made available by or on behalf of Disclosing Party to Receiving Party and which is marked with the word
“confidential,” “proprietary,” or “sensitive” if in a form which permits such marking or, if disclosed orally,
will be followed by written confirmation to the Receiving Party within 30 days of disclosure, or which,
regardless of the form, and whether or not so marked or confirmed, is of a character which would be treated
by any reasonable business person as confidential, proprietary or sensitive in nature. By way of example,
but not of limitation, Confidential Information includes a) information concerning the business and affairs
of Disclosing Party and its Affiliates (which includes historical financial statements, financial projections
and budgets, historical and projected sales, capital spending budgets and plans, the names and backgrounds
of key personnel, personnel training techniques and materials), however documented, or is otherwise
obtained from review of Disclosing Party’s documents or property or discussions with Disclosing Party’s
Representatives or by Receiving Party’s Representatives (including current or prospective financing
sources) or representatives of Receiving Party’s Representatives irrespective of the form of the
communication, and also includes all notes, analyses, compilations, studies, summaries and other material
prepared by Receiving Party or Receiving Party’s Representatives and b) trade secrets concerning the
business and affairs of Disclosing Party and its Affiliates, product specifications, data, know-how,
formulae, compositions, processes, designs, sketches, photographs, graphs, drawings, samples, inventions
and ideas, past, current, and planned research and development, current and planned manufacturing or
distribution methods and processes, customer lists, current and anticipated customer requirements, price
lists, market studies, business plans, computer software and programs (including object code and source
code), computer software and database technologies, systems, structures and architectures (and related
processes, formulae, composition, improvements, devices, know-how, inventions, discoveries, concepts,
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ideas, designs, methods and information), and any other information, however documented, that is a trade
secret of Disclosing Party and/or its Affiliates within the meaning of applicable state trade secret law).
“Derivatives” means (a) for copyrightable or copyrighted material, any translation, abridgment, revision or
other form in which an existing work may be recast, transformed or adopted; (b) for patentable or patented
material, any improvement thereon; and (c) for material that is protected by trade secret, any new material
derived from such existing trade secret material, including new material which may be protected under
copyright, patent and/or trade secret laws.
“Disclosing Party” has the meaning set forth in Section 2.
“Disclosing Party Contact” has the meaning set forth in Section 5.
“Electronic Embodiments” has the meaning set forth in Section 7.
“Person” means and includes (without limitation) any individual, corporation, limited liability company,
entity, firm, trust, partnership, joint venture, association, company, unincorporated organization,
government or governmental authority (domestic or foreign), court or arbitrator.
”Representatives” means the Receiving Party’s and it’s Affiliates’ employees, officers, directors, partners,
shareholders, agents, consultants, contractors, accountants, advisors and attorneys.
2.
Treatment of Confidential Information.
Each Party (a “Receiving Party”) agrees to retain all
Confidential Information received from or relating to the other Party or its Affiliates (a “Disclosing Party”) in
confidence with the same degree of care as the Party accords to its own Confidential Information, but not less than a
commercially reasonable degree of care, and, except as provided in Section 3 of this Agreement, to not disclose,
divulge or communicate Confidential Information to any other Person. Receiving Party further agrees that
Confidential Information will be used by it solely for purpose of the Transaction, and Receiving Party agrees that it
will not use, practice or exploit the Confidential Information for any other purpose whatsoever, including without
limitation, to reverse engineer, disassemble, decompile, or design around the Disclosing Party’s proprietary products
or services, Derivatives and/or confidential intellectual property. Receiving Party shall immediately notify
Disclosing Party of (i) any actual or suspected misuse, misappropriation or unauthorized disclosure of Disclosing
Party’s Confidential Information, and (ii) other breaches of this Agreement by Receiving Party or its
Representatives, which comes to Receiving Party’s attention. Receiving Party will provide all reasonable assistance
and cooperation to the Disclosing Party as the Disclosing Party may request in its efforts to regain possession and
control of its Confidential Information and to prevent further unauthorized use.
3.
Disclosure of Confidential Information.
Receiving Party may disclose, divulge and
communicate Confidential Information to its directors, officers, and/or employees having a need to know, and to
third parties but only with the prior written consent of Disclosing Party, and in any case only to the extent as may be
reasonably appropriate in connection with the Transaction; provided, however, that Receiving Party shall first advise
each such recipient of Confidential Information of the requirements of this Agreement and provided, further,
however, that each such recipient of Confidential Information shall make and maintain a specific and distinct file
with respect to this matter, which shall contain all Confidential Information and any and all memoranda, notes,
reports, work papers, computer printouts, computer discs and similar items, electronic media, and other documents
whatsoever in any way relating to or bearing on the subject matter hereof. Receiving Party shall maintain a record
of each Person who has access to the Confidential Information and shall be fully responsible for any breach by any
of its Representatives of this Agreement.
4.
Exceptions.
The restrictions set forth in Sections 2 and 3 of this Agreement shall not apply to
Confidential Information which Receiving Party demonstrates:
(a)
Is a part of the public domain by use and/or publication at the time of its receipt from the
Disclosing Party or thereafter becomes a part of the public domain, other than as a result of, directly or indirectly,
any violation or breach of the provisions of this Agreement by Receiving Party or any of its Representatives; or
(b)
Is rightfully acquired by Receiving Party on a non-confidential basis through an
independent third party who or which has no legal, fiduciary or contractual obligation of confidence to Disclosing
Party; or
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(c)
Is required to be disclosed in response to a valid order by a court or other governmental
body, provided, however, that (i) Receiving Party shall have given prior written notice to Disclosing Party prior to
disclosure in order that Disclosing Party may have every opportunity to intercede in such process to contest such
disclosure prior to the disclosure thereof, (ii) the Disclosing Party shall have been given a reasonable opportunity to
review the text of such disclosure before it is made, and (iii) the disclosure is limited to only the Confidential
Information specifically requested to be disclosed.; or
(d)
Is independently developed by Receiving Party, as established by documentary evidence,
without reference to or use of, in whole or in part, any of Disclosing Party’s Confidential Information.
5.
Requests for Confidential Information.
All requests by Receiving Party for Confidential
Information shall be made to one or more individuals of Disclosing Party that Disclosing Party shall designate in
writing (each, a “Disclosing Party Contact”), who shall be solely responsible for coordinating all such requests. If a
party does not so designate a Disclosing Party Contact, such party’s Disclosing Party Contact shall be each
individual that reasonably appears to have such capacity for purposes of the Transaction. It is further understood and
agreed that Receiving Party shall not contact any of the officers, directors, employees, customers, suppliers, or
affiliates of Disclosing Party in connection with the evaluation of the Transaction, whether in person or by
telephone, mail or other means of communication, without the specific prior authorization of a Disclosing Party
Contact.
6.
No Obligation.
This Agreement does not constitute or impose or create any obligation
on Disclosing Party to provide any Confidential Information or other information to Receiving Party, but merely
defines the rights, duties and obligations of the Parties with respect to the Confidential Information to the extent it
may be disclosed or made available to Receiving Party. Each Party reserves the right, in its sole discretion, to reject
any and all proposals by the other Party or the other Party’s Representatives with regard to the Transaction and to
terminate discussions and negotiations with the other Party at any time. Nothing in this Agreement requires either
Party to enter into a business relationship or transaction or to negotiate such relationship or transaction with the
other Party. It is also understood by both Parties that neither Party obligates itself to refrain from entering
discussions with third parties, including those that may compete with the other Party. Any such discussion or
agreement with any third party will not include any of the Disclosing Party’s Confidential Information covered by
this Agreement.
7.
Ownership of Confidential Information/No License. The Receiving Party acknowledges and
agrees that, as between the Receiving Party and Disclosing Party, all of the Confidential Information of the
Disclosing Party, and any Derivatives thereof, whether created by Disclosing Party or by Receiving Party, is and
shall remain the sole and exclusive property of the Disclosing Party, free of any and all claims of the Receiving
Party. Any and all Confidential Information and Derivatives in all tangible embodiments including all information
held in computer memory or software, in electronic storage media, and/or in the form of email and/or attachments
(“Electronic Embodiments”) shall remain the sole and exclusive property of the Disclosing Party. No patent right,
copyright, trademark or license is granted by this Agreement and the disclosure of Confidential Information or
Derivatives does not result in any obligation to grant Receiving Party any such right or license in and to the
Confidential Information or Derivatives.
8.
Return or Destruction of Confidential Information. If requested by Disclosing Party, Receiving
Party and its Representatives shall destroy or return to Disclosing Party all Confidential Information supplied to it,
and Receiving Party shall not retain any copies or other reproductions, notes, or extracts thereof, of the Confidential
Information. Upon the request of Disclosing Party, an officer or other authorized employee of Receiving Party shall
provide a certificate to Disclosing Party certifying that it and its Representatives have fully complied with the
requirements of this Section. All Electronic Embodiments, upon the request of the Disclosing Party shall be
promptly returned and erased.
9.
Remedies.
Receiving Party acknowledges that it will be difficult to measure accurately the
damages to Disclosing Party from any breach by Receiving Party of the covenants and restrictions set forth herein,
that the injury to Disclosing Party from any such breach would be incalculable and irremediable and the monetary
damages would not, therefore, in and of themselves, be an adequate remedy. Receiving Party therefore agrees that,
in the event Disclosing Party establishes a breach or attempted breach by Receiving Party of the terms of this
Agreement or any of the covenants and restrictions set forth herein, Disclosing Party shall be entitled as a matter of
right to (i) obtain from any court of competent jurisdiction an injunction, without the necessity of (a) proving actual
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damages or (b) posting any bond or other security, prohibiting Receiving Party from any further breaches of this
Agreement and (ii) shall be indemnified by Receiving Party from any loss or harm, including but not limited to legal
fees, arising out of or in connection with any breach or enforcement of Receiving Party’s obligations under this
Agreement or the unauthorized use or disclosure of Disclosing Party’s Confidential Information. The provisions of
this Section 9 shall be in addition to any other rights or remedies available to Disclosing Party under applicable law.
10.
Term. This Agreement shall become effective on the date of execution of the Agreement and
remain in effect for a period of five (5) years or until either Party receives from the other written notice that
subsequent communications shall not be so governed; provided, however, that each Party’s obligations under
Section 2 (“Treatment of Confidential Information”) with respect to Confidential Information of the other Party
which it has previously received shall continue in perpetuity unless such restrictions shall not apply pursuant to
Section 4.
11.
No Representation or Warranty.
ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS
IS” AND WITHOUT ANY WARRANTY, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS
ACCURACY, COMPLETENESS OR PERFORMANCE. NEITHER THE DISCLOSING PARTY NOR ANY OF
ITS REPRESENTATIVES SHALL BE LIABLE TO THE RECEIVING PARTY OR ANY OF ITS
REPRESENTATIVES FOR DAMAGES, OF WHATEVER KIND, RELATING TO OR RESULTING FROM THE
RECEIVING PARTY”S RELIANCE ON OR USE OF ANY OF THE CONFIDENTIAL INFORMATION OR
ANY ERRORS THEREIN OR OMISSIONS THEREFROM.
12.
Export Control.
(a)
To the extent the Confidential Information exchanged under this Agreement is covered
by the requirements of the Arms Export Control Act, 22 U.S.C. 2751-2794, including the International Traffic in
Arms Regulations (ITAR), 22 C.F.R. 120 et seq.; and the Export Administration Act, 50 U.S.C. app. 2401-2420,
including the Export Administration Regulations, 15 C.F.R. 730-774; each Party agrees to comply with all
applicable U.S. export control laws and regulations, including the requirement for obtaining any export license or
agreement, if applicable, and including any and all embargoes and or other restrictions imposed by the Treasury
Department’s Office of Foreign Asset Controls. Without limiting the foregoing, each Party agrees that it will not
transfer any Confidential Information it receives from another party that constitutes an export controlled item, data,
or services, to include transfer to foreign persons employed by or associated with, or under contract to that party or
the party’s suppliers, without the authority of an export license, agreement, or applicable exemption or exception,
and each Party shall indemnify the other for any violation of applicable U.S. export control laws and regulations..
(b)
Each Disclosing Party agrees to notify the Receiving Party if any Confidential
Information the Disclosing Party discloses is restricted by export laws or regulations.
(c)
Each Party shall immediately notify the other Party if it is, or becomes, listed in any
Denied Parties List or if the Party’s export privileges are otherwise denied, suspended or revoked in whole or in part
by an U.S. Government entity or agency.
(d)
Each Party that is engaged in the business of either exporting or manufacturing (whether
exporting or not) defense articles or furnishing defense services represents that it is registered with the Office of
Defense Trade Controls, as required by the ITAR.
(e)
Each Party shall be responsible for its own losses, costs, claims, causes of action,
damages, liabilities, and expenses including attorneys’ fees, all expense of litigation and/or settlement, and court
costs, arising from any act or omission of that party, its officers, employees, agents, suppliers or subcontractors in
the performance of any of its obligations under this Section 12.
13.
Governing Law. This Agreement shall be governed by, and construed in accordance with, the
laws of State of Michigan (other than conflicts of law rules and excluding the United Nations Convention on the
International Sale of Goods).
14.
No Waiver.
No action or inaction taken pursuant to this Agreement shall be deemed to
constitute a waiver of compliance with any covenants or agreements contained herein. Any waiver by any Party of a
breach of any provisions of this Agreement shall be in writing and shall not operate or be construed as a waiver of
any other or subsequent breach.
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15.
Notices. All notices, requests, waivers, elections and consents under this Agreement shall be in
writing and shall be effective upon receipt, if delivered by mail, hand (including courier) or telecopy, addressed to
such Party. All notices, requests, elections and consents hereunder shall be addressed or directed to the addresses or
facsimile number of each Party set forth below unless a Party designates a different notice address in writing to the
other Party:
Meritor WABCO Vehicle Control Systems
Attn:
Trade Compliance Officer
2135 W. Maple Rd.
Troy, MI 48084-7186
Company:
Attn:
Address:
16.
Severability.
If any term or provision of this Agreement, or any application thereof to any
circumstances, shall, to any extent and for any reason, be held to be invalid or unenforceable, the remainder of this
Agreement, or the application of such term or provision to circumstances other than those to which it is held invalid
or unenforceable, shall not be affected thereby and shall be construed as if such invalid or unenforceable provision
had never been contained herein, and each term and provision of this Agreement shall be valid and enforceable to
the fullest extent permitted by law.
17.
Entire Agreement.
This Agreement constitutes the only, entire and final understanding
between the Parties regarding the subject matter of this Agreement and supersedes and replaces all previous
understandings between the Parties with respect to the subject matter hereof. No amendment of this Agreement
shall be of any force or effect, unless in writing and signed by the Party to be charged. Each of the signatories below
represents that he or she has the legal authority to bind the Party for whom he or she has signed.
18.
No Assignment. Neither Party may assign its rights or delegate any of its duties under this
Agreement without the prior written consent of the other. This Agreement shall inure to the benefit of and be
binding upon the Parties hereto, and their authorized successors and assigns. Nothing contained in this Agreement,
express or implied, is intended to confer upon any third party any benefits, rights or remedies.
19.
Counterparts.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the same agreement. Each Party
agrees that electronic or facsimile signatures of authorized representatives of either Party will be binding for the
purposes of executing this Agreement.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the date first written above.
Meritor WABCO Vehicle Control Systems
By_________________________________ Date ____________
Name:
Title:
Supplier:
By_________________________________ Date ____________
Name:
Title:
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