This Mutual Nondisclosure Agreement (this “Agreement”) is entered into between OPEN ENERGY GROUP INC. (“OEG”), a Delaware corporation, and the undersigned (the “Counterparty,” the Counterparty and Open Energy Group Inc. each, a “Party” and collectively, the “Parties”). In order to protect certain Confidential Information (as defined below), disclosed by or on behalf of one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), the Parties agree that:
1. This Agreement shall apply to all Confidential Information disclosed between the Parties.
2. “Confidential Information” means any information or materials of either party marked or designated as confidential that relate to the business, technology or operations of the Disclosing Party.
3. The Receiving Party with respect to any Confidential Information shall, and shall ensure that its officers, directors, employees, agents, and representatives agree to, and do, (a) retain in confidence all Confidential Information, (b) refrain from disclosing any Confidential Information to any third party, and (c) use Confidential Information only for the purpose of and in connection with the business relationship of the Parties.
4. The restrictions set forth in Paragraph 3 shall not apply to Confidential Information that (a) is or becomes public knowledge (through no fault of the Receiving Party), (b) is received by the Receiving Party from a third party on a nonconfidential basis, provided that the source of such information is not bound by a confidentiality agreement or other contractual, legal, or fiduciary obligation of confidentiality with respect to such information, (c) is in the Receiving Party’s possession before the time of disclosure by the Disclosing Party and was not acquired, directly or indirectly, from the Disclosing Party, (d) is developed by the Receiving Party independent of the receipt of information from the Disclosing Party, or (e) is required by applicable law or regulation to be disclosed by the Receiving Party, provided, however, that the Receiving Party gives the Disclosing Party reasonable notice to permit it to seek a protective order or other similar order with respect to such Confidential Information.
5. This Agreement shall remain in effect until it is terminated by either Party with 30 days prior written notice. The terms and conditions of this Agreement shall survive any such termination with respect to Confidential Information disclosed prior to the effective date of termination.
6. Unless the Parties otherwise agree in writing, the Receiving Party’s duty to protect Confidential Information expires two (2) years from the date of disclosure.
7. The Receiving Party, upon the Disclosing Party’s written request, will promptly return all Confidential Information received from the Disclosing Party, together with all copies, or certify in writing that all Confidential Information and copies thereof have been destroyed.
8. Notwithstanding any other provision in this Agreement, in the event that a third party applies to, solicits, or otherwise contacts OEG to secure financing for a solar project (the “Third Party Project”), if the Counterparty and OEG have discussed, plan to discuss, or have otherwise disclosed Confidential Information related to the same solar project or a solar project comprised of any sites or facilities contemplated in the Third Party Project, OEG may disclose to the third party: (1.) the existence of the Counterparty; and (2.) that discussions around a solar project similar to the Third Party Project are occurring with the Counterparty. OEG shall not reveal to the third party the identity of the Counterparty or any Confidential Information disclosed by the Counterparty to OEG, without Counterparty’s express permission.
9. This Agreement imposes no obligation on a Party to exchange Confidential Information or to purchase, sell, license, transfer or otherwise make use of any technology, services or products.
10. This Agreement does not offer or grant to either Party any rights in or license under any present or future patent, patent application, trademark, copyright, trade secret right, mask work protection right, or any other intellectual property right of the other Party.
11. Each Party acknowledges that damages for improper disclosure or use of Confidential Information may be irreparable, therefore, the injured Party is entitled to seek equitable relief, including injunction and preliminary injunction, in addition to all other remedies.
12. This Agreement shall be construed in accordance with and governed by the laws of the State of New York and the United States of America, without giving effect to the principles of conflicts of law thereof. Both Parties consent to the jurisdiction of the courts of the State of New York.
13. This Agreement does not create any agency or partnership relationship. This Agreement may not be assigned in whole or in part by either Party without the prior written consent of the other Party, except that each Party may assign its rights and obligations under this Agreement to a successor in ownership of all or substantially all of such Party’s business.
14. All additions or modifications to this Agreement must be made in writing and must be signed by both Parties.
15. This Agreement contains the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes all prior proposals, agreements, and understandings, written or oral, with respect to the subject matter hereof.
16. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute but one and the same instrument.