CONFIDENTIALITY AGREEMENT
This CONFIDENTIALITY AGREEMENT (the "Agreement") is entered into by and
between Three For Peace, Inc., a Pennsylvania corporation and
_____________________, a _________________________ ("PROSPECTIVE Buyer").
WHEREAS Three For Peace, Inc., and PROSPECTIVE BUYER desire to have
discussions in connection with a possible transaction pertaining to grilled cheese restaurants
and franchising; and
WHEREAS, in connection with these discussions, it may be necessary for the parties
to disclose to each other certain valuable proprietary and confidential information relating to
their respective technology and businesses or those of their respective affiliates or subsidiaries;
NOW, THEREFORE, in consideration of the foregoing and in consideration of the
mutual covenants and promises contained herein, the adequacy and receipt of which are hereby
acknowledged, the parties hereto agree as follows:
1.
Each Receiving Party agrees to refrain from publishing the results of any
testing conducted based upon the Confidential Information disclosed by the Disclosing Party
and at no time file or have filed any patent application or initiate any procedure purporting to
obtain any legal rights covering any product, process or other technical disclosure of
Confidential Information made by Disclosing Party.
Each Receiving Party further
acknowledges that nothing herein provided shall be deemed to convey to the Receiving Party
any rights or license under any patents, patent applications, inventions, copyrights, trade
secrets, trademarks or other intellectual property rights possessed by the Disclosing Party.
2.
Each Receiving Party shall hold all Confidential Information of the
Disclosing Party in strict confidence and shall in any case protect such Confidential
Information with no less diligence than that with which it protects its own confidential or
proprietary information. During the term of this Agreement and for two years thereafter, each
Receiving Party shall not disclose any Proprietary Information of the Disclosing Party to any
third party nor may Receiving Party use any Proprietary Information of the Disclosing Party for
any purpose other than that set forth above. During the term of this Agreement and at all times
thereafter, each Receiving Party shall not disclose any Trade Secrets of the Disclosing Party to
any third party nor may Receiving Party use any Trade Secrets of the Disclosing Party for any
purpose other than that set forth above. Each Receiving Party shall take all precautions to
insure that the secrecy of the Confidential Information of the Disclosing Party is preserved
among its employees and it shall be responsible for the preservation of such secrecy during the
term of their employment or engagement, as applicable, and after termination thereof. All
Confidential Information of the Disclosing Party placed in tangible form by the Receiving
Party shall be promptly marked with a legend prominently referring to its confidential nature
and ownership by the Disclosing Party. The obligations in this Section shall apply during the
term of this Agreement and for two years after its termination, except with respect to such
obligations for which this Agreement expressly provides that a longer period shall apply.
3.
The following capitalized terms are used herein as defined below:
"Confidential Information" means, collectively, both Proprietary Information and
Trade Secrets.
"Proprietary Information" shall mean all data, formulae, processes, procedures,
methods, documentation, information, records, drawings, designs, specifications, test results,
evaluations, know how, material directly related to tests or assays, business, assets, products,
processes, or prospects related to either party (the "Disclosing Party"), communicated to,
supplied to, or observed by the other party (the "Receiving Party"), directly or indirectly, at any
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time, whether or not received from the Disclosing Party or any person subject to a contractual
or fiduciary relationship with the Receiving Party, either orally, by demonstration or in the
form of a writing or drawing. The term "Proprietary Information" shall not include information
that the Receiving Party can prove:
(a)
Was known to the Receiving Party at the time of receipt from the Disclosing
Party, so long as such information was not acquired directly or indirectly
from the Disclosing Party; or
(b)
Is or becomes publicly known through no act or fault of the Receiving Party;
or
(c)
Is or becomes part of the public domain through no act or fault of the
Receiving Party; or
(d)
Was received by the Receiving Party from a third party having the legal right
to transmit the same; or
(e)
Was developed by the Receiving Party independently of any of the
Proprietary Information;
provided, however, that a combination of features shall not be deemed to be
within the foregoing exceptions merely because PROSPECTIVE BUYER
features are in the public domain or otherwise within such exceptions, as
previously described, unless the combination itself is in the public domain or
otherwise entirely within any one such exception.
"Trade Secrets" means all data, formulae, processes, procedures, methods,
documentation, information, records, drawings, designs, specifications, test results, evaluations,
know how, material directly related to tests or assays, business, assets, products, processes or
prospects related to a Disclosing Party, and which are protectable by such Disclosing Party as a
"Trade Secret" under applicable law.
4.
Under no circumstances shall the Receiving Party, without the prior written
approval of the Disclosing Party, acknowledge to any third party what is or is not a part of the
Confidential Information of the Disclosing Party, nor shall the Receiving Party acknowledge to
any third party the execution of this Agreement, the terms and conditions contained herein or
the underlying discussions with the other party. In the event disclosure of the Confidential
Information of a Disclosing Party is required of the Receiving Party under provisions of any
law or court order, the Receiving Party will notify the Disclosing Party of the obligation to
make such disclosure sufficiently in advance of the disclosure that the Disclosing Party will
have a reasonable opportunity to object. In the event of required disclosure, each Receiving
Party will assert confidentiality to all Confidential Information of the Disclosing Party not
directly required to be disclosed.
5.
Each Receiving Party represents and warrants that each of its employees to
whom Confidential Information of the Disclosing Party is disclosed shall have a need to know
such information for the purposes contemplated by this Agreement and shall have first
executed an agreement requiring such employee to be bound by all of the restrictions on
confidentiality set forth herein.
6.
Each Receiving Party shall return to the Disclosing Party upon request all
Confidential Information of the Disclosing Party including all written evaluation reports
prepared by the Receiving Party and all copies thereof in whatever medium embodied.
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7.
This Agreement shall commence on the date of execution of this Agreement
by the last party to sign set forth below, and shall terminate on the first anniversary thereof. On
such first anniversary this Agreement shall automatically renew for an additional term of one
year unless either party shall have given written notice to the other party of its intention not to
have this Agreement so renewed. Each party's obligations under this Agreement shall survive
the termination of its association with the other party regardless of the manner of such
termination, and shall be binding upon its successors and assigns.
8.
In the event of a breach of this Agreement, the parties shall be entitled to
equitable relief by injunction, in addition to any and all rights and remedies available to at law
or in equity. In the event of a lawsuit between the parties, the prevailing party shall be entitled
to an award of its attorneys' fees and expenses, in addition to any other sums to which it may be
entitled.
9.
The validity and interpretation of this Agreement and the rights and
obligations of the parties shall be governed by the laws of the State of Pennsylvania, excluding
its principles of conflicts of laws.
10.
This Agreement constitutes the entire agreement and understanding between
the parties relating to the subject matter hereof and supersedes all prior discussions and
agreements either oral or written, express or implied, relating to the subject matter hereof. Any
amendments to, or waiver of, the terms of this Agreement must be in writing and executed by
authorized officials of the parties hereto.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have
executed this Agreement as of the last date set forth below.
Three For Peace, Inc.,:
PROSPECTIVE BUYER:
By:
By:
Title:
Title:
Dated:
Dated: