EWAVE
CONFIDENTIALITY AGREEMENT
STRICTLY PRIVATE AND CONFIDENTIAL
In connection with negotiations
between EWAVE and the Solicitee identified above to evaluate the possible execution
of a Licensed Dealer Agreement providing for a license by Solicitee to sell
EWAVE’s proprietary surfboard fitted with a self-propulsion device utilizing
EWAVE Technology (as defined below) (“the Purpose”), EWAVE may
provide Solicitee with certain Confidential Information (as defined below),
all of which is subject to the terms and conditions of this Agreement.The time
available to Solicitee for evaluating EWAVE Technology will be limited to the
Evaluation Period (as defined in paragraph 1.2 below).
1. For the purposes
of this Agreement the following terms shall have the following meanings:
1.1 “Confidential
Information” shall mean the EWAVE Technology and any information, knowledge,
know how, property and material related to or disclosed by EWAVE or any of
EWAVE’s employees, directors, representatives, agents, or licensees that
Solicitee has received or receives in the course of the activities carried out
for the Purpose set forth above, whether of a tangible nature reducible to writing
or not, pertaining to the activities, products or any other facts and objects
of EWAVE, be it technical, financial or commercial in nature or otherwise of
confidential nature.
Confidential Information
shall include but not be limited to any trade secrets, knowledge and data that
relates to the business of EWAVE or any products, samples, services, software,
surfboards, batteries, research, development, processes, inventions, marks,
designs, models, raw materials, formulations, know- how, concepts, test data,
customer and prospect lists, business plans, marketing and sales plans, pricing
or any other strategies or subject matters pertaining to any sphere of activities
of EWAVE, as well as the fact that the Parties are carrying out activities
for the Purpose and the contents of this Agreement.
1.2 “Evaluation
Period” means a period of three (3) months from the date of this Agreement,
or for as long as six (6) months in total from the date of this Agreement with
EWAVE’s written consent.
1.3 “EWAVE Technology”
means the EWAVE proprietary surfboard and battery, and the systems, materials,
Products or components in any of its embodiments and applications disclosed
by EWAVE to Solicitee pursuant to this Agreement, and also includes any analyses,
data, plans, studies or documents prepared by Solicitee which contain or are
generated from any information disclosed by EWAVE.
1.4 “Intellectual
Property Rights” means all patents, copyrights, trademarks, database rights
and design rights, and utility models, as well as trade names and auxiliary
business names whether registered or not and whether now known or hereafter
devised.
1.5 “Know-How”
means information, data, know-how or experience whether patentable or not including
but not limited to all design and manufacturing techniques, Raw Materials or
Technology specifications drawings,
blue prints, and any technical or commercial information related to research,
design, development manufacture, assembly, use, or sales.
1.6 “Products”
means all of the consumer or industrial products that are developed, manufactured,
and/or supplied by EWAVE, to include the proprietary surfboard product or products
for sale comprised of EWAVE
Technology, its specific geometry or its applications, as well as batteries
and other components.
1.7 “Raw Materials”
means all chemicals, compounds, polymers, blends and material compositions that
are used to manufacture the EWAVE Technology.
1.8 “Solicitee”
shall mean the company or person identified above as well as all owners, members,
partners, officers, directors, and/or shareholders thereof.
2 In consideration
of the Confidential Information being made available by EWAVE to Solicitee,
the Solicitee agrees to the following: –
2.1 to use the Confidential
Information only for the above Purpose and, in particular, not to use any of
the Confidential Information for any other commercial or competitive purposes,
and;
2.2 Not to undertake
any independent research or development that uses or incorporates Confidential
Information provided, other than for the above Purpose, nor to apply for any
registered Intellectual Property protection which uses or incorporates the Confidential
Information and/or its technology and/or intelligence, and;
2.3 not to (directly
or indirectly) at any time, without EWAVE’s prior written consent, disclose
or reveal or permit access to the Confidential Information, in whole or in part,
to any third party or any of its holding companies and/or subsidiaries except
where required by law, and;
2.4 to treat and safeguard
as confidential all Confidential Information to the same level as the Solicitee
maintains its own confidential information, and;
2.5 not to make copies
in any form, reproduce or distribute in whole or in part any Confidential Information
or any documents, material or other data containing any Confidential Information
without EWAVE’s prior written consent, and;
2.6 that all Confidential
Information shall remain the property of EWAVE, and the disclosure of such
Confidential Information to Solicitee shall not be deemed to confer upon Solicitee
any rights or license whatsoever with respect to any part of the Confidential
Information, and;
2.7 that if EWAVE
so requests in writing Solicitee will forthwith at the election of EWAVE either
return to EWAVE or destroy all Products and/or samples and/or all Confidential
Information together with any copies of the same.
3 The confidentiality
obligations and undertakings set out in this Agreement do not apply to any Confidential
Information:
3.1 which is now or
hereafter comes into the public domain, otherwise than by reason of a breach
of this Agreement; or
3.2 which Solicitee
can prove was in its possession prior to it being furnished to Solicitee by
or on behalf of EWAVE, provided that the source of such Information was not
bound by or subject to a confidentiality agreement with EWAVE in respect thereof,
or by fiduciary or other similar duties of confidentiality; or
3.3 which after disclosure
to Solicitee, becomes generally available to third parties by publication or
other wise through no breach of this agreement by Solicitee; or
3.4 the disclosure
of which is required by law or the rules of any regulatory organization provided
that if Solicitee becomes (or it is reasonably likely that Solicitee shall become)
legally compelled to disclose any Confidential Information, prompt notice of
such fact shall be given to EWAVE prior to making any disclosure so that EWAVE
may seek an appropriate remedy to prevent such disclosure or waive compliance
with the provisions of this agreement, and Solicitee shall fully co-operate
with EWAVE if EWAVE elects to challenge the validity of such requirement and/or
take such steps as EWAVE may reasonably require to avoid or limit such disclosure.
4 EWAVE makes no representation
or warranty, express or implied, as to the accuracy, completeness or reasonableness
of the Confidential Information, and Solicitee agrees that neither EWAVE nor
any of its re spective directors, officers, employees, advisers and agents shall
have any liability resulting from the furnishing or use of the Confidential
Information.
5 It is agreed that
each Party will be responsible for its own costs, charges and expenses incurred
by it to further this Agreement.
6 Solicitee agrees
that documents and other data, whether containing EWAVE Technology, Confidential
Information or otherwise, made available to Solicitee, prior to or in the course
of or for the purpose of its evaluation of a possible license with EWAVE, do
not constitute an offer by or on behalf of EWAVE, nor will such documents or
EWAVE Technology or Confidential Information, material or data contained therein
form the basis of any representations or warranty in relation to any future
contract or this Agreement.
7 All Intellectual
Property Rights and all rights, title and interest existing, or that will in
the future, exist through out the world relating to EWAVE, including, without
limitation, Intellectual Property Rights that arise during the course of this
Agreement, in any of the following: EWAVE Technologies, the Products, Know-How,
Raw Materials, documents, samples, materials, brand, processes, shall belong
to EWAVE.
8 The rights and obligations
set out in this Agreement shall not be assigned or otherwise transferred in
whole or in part without the prior written consent of the other Party.
9 Nothing in this
Agreement is intended to, or shall be deemed to, establish any partnership or
joint venture between the Parties, constitute any Party the agent of the other
Party, nor authorize any Party to make or enter into any commitments for or
on behalf of any other Party.
10 No delay or failure
of a Party to exercise any right or remedy hereunder shall operate as a waiver
thereof, nor shall it any way prejudice any right of that Party under this Agreement
11 Should any provision of this Agreement become illegal or void for any
reason, the validity of the remaining provisions shall not be affected and the
Parties shall enter into negotiations in good faith to find a replacement for
the provision which is of similar economic effect to the Parties.
12 Solicitee acknowledges
and agrees that the obligations of Solicitee with respect to EWAVE’s
Confidential Information received pursuant to this Agreement shall survive for
a period of five (5) years following the
date of termination or expiration. Where the Confidential Information is a trade
secret comprising of formulations, chemical compositions and or processing conditions
(“Trade Secrets”), the obligation of confidentiality shall continue
until such time as the Trade Secrets are no longer held as confidential by EWAVE
and no longer constitute a trade secret.
13 The provisions contained
in this Agreement shall be governed by and construed in accordance with Texas
law. In the event of any dispute arising under this Agreement the Parties agree
to report this in writing to their respective Officers, Directors or Managers
immediately, and such officers/directors/managers shall use their best endeavours
to resolve the dispute amicably within 30 days of being notified of the dispute.
If this is not possible, resolution of the dispute shall be pursued by mediation
or arbitration in Collin County,Texas, in
accordance with the Commercial Mediation or Arbitration Rules of the American
Arbitration Association in effect at the time of the mediation or arbitration.
If a Dispute cannot be resolved through mediation or arbitration, the parties
may litigate the dispute pursuant to Section 14. Furthermore, this clause does
not prevent either Party from seeking an injunction, seizure or other immediate
remedy with a court of law or any other authority having jurisdiction over the
other Party.
14 The Parties each
have the right in a proper case to obtain temporary restraining orders and temporary
or preliminary injunctive relief from a court of competent jurisdiction. Any
and all court proceedings arising from or relating in any manner to any dispute
between the Parties arising out of, relating to or referencing this Agreement
or its breach in any way, shall be brought in, and only in, the District Court
of Collin County,Texas. Solicitee hereby consents to the exercise of jurisdiction
by such court.
