THIS CONSULTING AGREEMENT for independent consulting services (“Agreement”) is made and entered into as of Date by and between Bionatus, LLC, (“COMPANY”) and (the “Consultant”).
NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT
During the term of the Agreement to which this Non-Disclosure And Confidentiality Agreement is attached, COMPANY may share certain proprietary information with Consultant. Therefore, in consideration of the mutual promises and covenants contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
From time to time, COMPANY may disclose Confidential Information to Consultant. Consultant will: (a) limit disclosure of any Confidential Information to its directors, officers, employees, agents or representatives (collectively “Representatives”) who have a need to know such Confidential Information in connection with the current or contemplated business relationship between the parties to which this Agreement relates, and only for that purpose; (b) advise its Representatives of the proprietary nature of the Confidential Information and of the obligations set forth in this Agreement and require such Representatives to keep the Confidential Information confidential; (c) shall keep all Confidential Information strictly confidential by using a reasonable degree of care, but not less than the degree of care used by it in safeguarding its own confidential information; and (d) not disclose any Confidential Information received by it to any third parties (except as otherwise provided for herein). Each party shall be responsible for any breach of this Agreement by any of their respective Representatives.
Consultant agrees to use the Confidential Information solely in connection with the current or contemplated business relationship between the parties and not for any purpose other than as authorized by this Agreement without the prior written consent of an authorized representative of COMPANY. No other right or license, whether expressed or implied, in the Confidential Information is granted to Consultant hereunder. Title to the Confidential Information will remain solely in COMPANY. All use of Confidential Information by Consultant shall be for the benefit of COMPANY and any modifications and improvements thereof by Consultant shall be the sole property of COMPANY. Nothing contained herein is intended to modify the parties' existing agreement that their discussions in furtherance of a potential business relationship are governed by Federal Rule of Evidence 408.
Notwithstanding anything in the foregoing to the contrary, Consultant may disclose Confidential Information pursuant to any governmental, judicial, or administrative order, subpoena, discovery request, regulatory request or similar method, provided that Consultant promptly notifies, to the extent practicable, COMPANY in writing of such demand for disclosure so that COMPANY, at its sole expense, may seek to make such disclosure subject to a protective order or other appropriate remedy to preserve the confidentiality of the Confidential Information; provided in the case of a broad regulatory request with respect to Consultant’s business (not targeted at COMPANY), Consultant may promptly comply with such request provided Consultant give (if permitted by such regulator) COMPANY prompt notice of such disclosure. Consultant agrees that it shall not oppose and shall cooperate with efforts by, to the extent practicable, COMPANY with respect to any such request for a protective order or other relief. Notwithstanding the foregoing, if COMPANY is unable to obtain or does not seek a protective order and Consultant is legally requested or required to disclose such Confidential Information, disclosure of such Confidential Information may be made without liability.
The parties’ duty to hold in confidence Confidential Information that was disclosed during the term of the Agreement shall remain in effect for five years from the Effective Date.
Both parties acknowledge that the Confidential Information to be disclosed hereunder is of a unique and valuable character, and that the unauthorized dissemination of the Confidential Information would destroy or diminish the value of such information. The damages to COMPANY that would result from the unauthorized dissemination of the Confidential Information would be impossible to calculate. Therefore, both parties hereby agree that COMPANY shall be entitled to seek injunctive relief preventing the dissemination of any Confidential Information in violation of the terms hereof. Such injunctive relief shall be in addition to any other remedies available hereunder, whether at law or in equity. COMPANY shall be entitled to recover its costs and fees, including reasonable attorneys’ fees, incurred in obtaining any such relief. Further, in the event of litigation relating to this Agreement, the prevailing party shall be entitled to recover its reasonable attorney’s fees and expenses.
Consultant shall immediately return and redeliver to the other all tangible material embodying the Confidential Information provided hereunder and all notes, summaries, memoranda, drawings, manuals, records, excerpts or derivative information deriving there from and all other documents or materials (“Notes”) (and all copies of any of the foregoing, including “copies” that have been converted to computerized media in the form of image, data or word processing files either manually or by image capture) based on or including any Confidential Information, in whatever form of storage or retrieval, upon the earlier of (i) the completion or termination of the dealings between the parties contemplated hereunder; (ii) the termination of this Agreement; or (iii) at such time as COMPANY may so request; provided however that Consultant may retain such of its documents as is necessary to enable it to comply with its document retention policies. Alternatively, Consultant, with the written consent of COMPANY may (or in the case of Notes, at Consultant’s option) immediately destroy any of the foregoing embodying Confidential Information (or the reasonably nonrecoverable data erasure of computerized data) and, upon request, certify in writing such destruction by an authorized officer of Consultant supervising the destruction).
Consultant shall notify COMPANY immediately upon discovery of any unauthorized use or disclosure of Confidential Information by Consultant or its Representatives, or any other breach of this Agreement by Consultant or its Representatives, and will cooperate with efforts by COMPANY to help COMPANY regain possession of Confidential Information and prevent its further unauthorized use.
In witness whereof, the parties hereto have executed this Agreement as of the date first above written.
Name: Peter Capuciati
Its: Chief Executive Officer
Irvine, CA 92618
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Signed by Matt Case
Signed On: May 10, 2017
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Document Name: Consulting Agreement
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