1. Definitions.
For purposes of this Agreement, the term “Confidential Information” means:
i) all information (including all instruments, documents, notices, analyses, drawings, valuations, elaborations and data of whatever kind, even if not specifically indicated and marked as “confidential”) referring to the Production & Procurement Project, including, without limitation, customer or supplier names or information, KPI’s, customer data, business processes, revenues, products formula, products ingredients, products know how, store fixture, furniture and equipment designs, layout and sketches, and anything else about their clients Production & Procurement Project that are at any moment (or have been before the signature of this Confidentiality Agreement) provided, whether in writing or verbally or in any other form by their clients and its members, executives, managers and employees generally and consultants, or other individuals instructed by their clients to the SUPPLIER;
ii) all contractual documents, negotiations, formal and informal activities relating to the potential contractual relationship between their clients and the SUPPLIER, including the notices of interest in the Production & Procurement Project;
iii) all information of whatever kind that has been acquired by the SUPPLIER at any time and in any manner during interviews with their clients’s staff and/or visits to their clients’s premises related to the Production & Procurement Project;
iv) all documents, analyses, evaluations, elaborations, studies, projections, and other documentation materials of whatever kind prepared or delivered by their clients to SUPPLIER and containing, reproducing, reflecting or based on the information referred to in paras. (i); (ii) and (iii) above.
1.2 Confidential Information will also include any information covered by industrial or intellectual property rights of their clients or its franchisors, including patents, and related applications for registration, unregistered inventions, processes, formulas, trade or industrial secrets, know-how, trademarks, copyrights and related rights, whether registered or unregistered, models and designs, whether registered or unregistered, or the related applications for registration, technical, financial and managerial information and models, customers’ or commercial partners’ names, prospective transactions, reports, plans, market projections, promotional materials, data or any other confidential information as well as analyses, working documents, databases, and comparative tables regarding the store fixture, furniture and equipment that will be part of the Production & Procurement Project.
1.3 Confidential Information will not include any information which:
i) already lies in the public domain at the time of its communication;
ii) after having been communicated, becomes of public domain other than through the SUPPLIER’s default on their obligations hereunder;
iii) the SUPPLIER may prove, by means of appropriate documents, to be already in its knowledge before its communication by their clients;
iv) must be disclosed under any law provision, regulation or order by government or other authority having jurisdiction.
2. Use of Confidential Information.
2.1 The Confidential Information shall not be used, copied, reproduced, in whole or in part, without their clients’s prior written consent, for purposes other than under the Production & Procurement Project above stated during this Agreement and for a period of five (5) years after its termination.
2.2 Except as required by law, the SUPPLIER shall not disclose any Confidential Information to any third party and shall use the same degree of care as it uses to protect its own confidential information of a similar nature, but no less than reasonable care, to keep in strict confidence and protect the Confidential Information received and, in general, to prevent the unauthorized use, dissemination or publication of the Confidential Information.
2.3 Confidential Information may be used by the SUPPLIER exclusively for the purposes of carrying on the activities connected with the Production & Procurement Project.
2.4 On the closing of discussion and negotiation regarding the Production & Procurement Project, or at any time negotiations should be discontinued for any reason or cause, the SUPPLIER (without prejudice to any other obligation undertaken hereunder) will have to:
i) return to the their clients (or to any individual or entity to be designated by their clients) all documents included in the Confidential Information;
ii) destroy or cause to destroy all copies of such documents as well as every opinion, report, analysis or commentary on the same carried out by or on behalf of their clients or by any Related Entity or Third Party to whom it has transmitted the Confidential Information;
iii) delete or cause to delete any and all Confidential Information recorded on any computer memory or other device in the possession or custody of, or controlled by, the SUPPLIER or any Related Entity or Third Party.
2.5 SUPPLIER shall not, without the prior written consent of their clients, use, in whole or in part, the Confidential Information: i) to manufacture or enable manufacture by third party of their clients’ product, products similar thereto or products derived therefrom; ii) to develop, prepare and/or file any application for any patents, trademarks, copyrights, technology or other trade secrets, using in whole or in part, the Confidential Information disclosed or delivered by H their clients.
3. Permitted use.
3.1 The confidentiality obligations hereunder will not prevent the SUPPLIER from communicating Confidential Information to:
i) company belonging to the SUPPLIER through which the contractual relationship may be implemented or that are anyhow involved in the same (all of whom are hereinafter referred to as “Related Entities”) to whom the knowledge of all or part of the Confidential Information is necessary in order to evaluate the Production & Procurement Project, it being understood that each and every Related Entity that should so become aware of any such Confidential Information will be bound to comply with the terms and conditions hereof, and undertake the related commitments, as if he were a party hereto
ii) entities other than those specified in para. (a) above (“Third Parties”) subject however to prior written authorization by their clients the SUPPLIER will in any case cause any such Third Party to sign a Confidentiality agreement the contents of which fully reflect this Confidentiality Agreement
iii) any public authorities having jurisdiction, or the public, to the extent that disclosure complies with any obligation of law, regulation or directive or with the requests of any such authority; in any such event, the SUPPLIER undertakes to immediately notify, and consult with, their clients so as to reach an agreement regarding the timing and contents of any communication, announcement or disclosure
iii) the SUPPLIER will in any case be fully and exclusively responsible for any breach of the obligations hereunder by any Related Entity or Third Party who has received Confidential Information from said the SUPPLIER, and hereby declares and undertakes to hold their clients safe, harmless and indemnified from any prejudice it should suffer as a consequence thereof.
4. Ownership and Return of Confidential Information.
4.1 The SUPPLIER acknowledges that it has no ownership or proprietary rights in the Confidential Information disclosed by their clients.
5. Duration.
This Agreement shall commence on the Effective Date and shall expire on 31.12.2024. The confidentiality obligations shall, however, survive the termination of this Agreement for a period of five (5) years.
6. Further agreements.
6.1 Nothing contained in this Agreement shall be deemed, by implication or otherwise, to convey to the SUPPLIER any rights in any Confidential Information disclosed to it, nor shall this Agreement be deemed a commitment of any kind by either the SUPPLIER or their clients to enter into any further agreements with each other with respect to any Confidential Information. No license or other right is granted by this Agreement or implied by any disclosure made pursuant to the terms of this Agreement.
6.2 This Agreement does not represent, and in no way implies:
i) a partnership, joint venture or other commercial relationship between the Parties;
ii) an authorization for either Party to act as the agent or representative of the other;
iii) an agreement or commitment by either Party to purchase, acquire, develop, or use the products or services of the other Party; or
iv) an encouragement to either Party to expend funds or other resources in the development of products or services.
7. Miscellaneous and General.
7.1 This Agreement contains the entire Agreement between the Parties. No waiver, amendment or modification of any provisions of this Agreement shall be effective unless in writing and signed by the Party against whom such waiver, amendment or modification is sought to be enforced. No failure or delay by either Party in exercising any right, power or remedy under this Agreement, except as specifically provided in this Agreement, shall operate as a waiver of any such sought right, power or remedy.
7.2 This Agreement shall be binding upon and inure to the benefit of the successors and permitted assigns of the SUPPLIER. Except as described below, the SUPPLIER may not assign any of its rights or delegate any of its obligations under this Agreement to any third party without the express written permission of their clients.
7.3 In the event any action is brought to enforce this Agreement, their clients shall be entitled to recover its costs of enforcement including, without limitation, reasonable attorneys fees and court costs. The Parties acknowledge and agree that the covenants contained in this Agreement will be difficult or impossible to ascertain and that there will be no adequate remedy of law available to their clients and that in the event of such breach, their clients, in addition to receiving damages for the breach, shall be entitled to enforce any and all of the covenants contained in this Agreement by injunctive, prohibitory or other urgent equitable relief against the threatened breach of this Agreement or the continuation of any such breach by the SUPPLIER, without the necessity of proving actual loss or damage.
7.4 Furthermore, in case of default by the SUPPLIER(and/or any entity for which responsibility is undertaken pursuant to Article 3.1 above) on the obligations set forth in this Agreement, their clients will be entitled to indemnification for any damage, cost, expense, loss or other prejudice suffered or incurred as a consequence of, or in connection with, such default in addition to any and all remedy available at law. In the event of any violation of the confidentiality obligations set forth in this Agreement, without prejudice to all other legal liabilities and consequences, their clients shall be entitled to receive compensation for liquidated damages hereby determined as of €50,000.00 per single violation, without prejudice to any possible further damages.
7.5 If any provision of this Agreement as applied to either Party or to any circumstance shall be considered by a court of competent jurisdiction to be void or unenforceable for any reason, the same shall in no way affect the validity or enforceability of any other provision of the Agreement to the maximum extent permissible by law.
8. Disclaimer of liability for the information provided
8.1 It is understood that the Confidential Information to be provided by their clients will not be subject to autonomous verification by the SUPPLIER and that such Confidential Information will not be regarded as being in any way complete or exhaustive to the purposes of assessing the expedience of entering into the agreement.
8.2 The SUPPLIER acknowledges and agrees that their clients (including its company board members, executives, managers and employees in general) and/or its consultants provide no representation or warranty, whether express or implied, that Confidential Information is exhaustive, accurate, correct or representative, and that no liability or damage may be ascribed to any the abovementioned entities on account of errors, omissions or misrepresentations contained in the Confidential Information.
Consequently, neither their clients nor its shareholders or company board members, executives, managers and employees in general and/or consultants will under any circumstance be held liable for any loss, damage or prejudice deriving from the use of Confidential Information.
9. Applicable law and jurisdiction
9.1 This Agreement shall be governed by and construed in accordance with the Italian laws. If any provision of this Agreement or the application thereof to any person or circumstances shall, to any extent be invalid or unenforceable, such provision shall be adjusted rather than voided, if possible, in order to achieve the intent of the parties, to the extent possible; in any event, all other provisions of this Agreement shall be deemed valid and enforceable to the full extent.
9.2 Any disputes between Parties relating to or arising in connection with this Agreement, including any question regarding its existence, validity or termination, shall first make a good faith attempt to resolve the matter through their management. In the event such negotiations fail to settle the dispute(s) within sixty (60) days of the date of notice of it’s existence, it shall be finally settled by the Courts of where Aurora locates.
