FranklinWH Reseller Terms and Conditions

The parties hereto agree as follows:

Exhibit A: Non-Disclosure Agreement (NDA)

As part of the FranklinWH Reseller Agreement, this Mutual Non-Disclosure Agreement is made between FranklinWh and the Reseller, The foregoing parties shall hereinafter be referred to individually as a “Party” or collectively as the “Parties”.

• Disclosure. The Parties hereto intend to engage in discussions concerning a potential business relationship (the “Proposed Relationship”) between them. In connection therewith, the Parties may disclose to each other technical, financial and/or other information, material, and/or data which is written, oral or in any other form, electronic or otherwise (collectively, “Information”) which may be necessary for each Party to evaluate the Proposed Relationship.
• Confidential Information. “Confidential Information” means (a) any Information disclosed by or on behalf of a Party (“Disclosing Party”) to the other Party (“Receiving Party”), which Disclosing Party: (i) considers proprietary and confidential, (ii) has not voluntarily disclosed or made available to the general public or (iii) under the circumstances, appears to a reasonable person to be confidential or proprietary, including, without limitation, any business, commercial or technical information and data, formula, pattern, program, process, chart, figure, software, report, method, strategy, concept, idea, know-how, device, tool, price, forecast, plan, specification, drawing, design, model, prototype, sample, analysis code, invention, patent application and license relating to such Party’s products, technology, quality control, testing, factory, procurement, production, distribution, research and development, personnel, legal affairs, investment and customers, or any other similar information relating to the current and/or future business and operations of the Disclosing Party; (b) any information, material or data provided by third party in connection with the Proposed Relationship; (c) any copies, abstracts, analyses, compilations, studies, summaries, extracts or other documentation prepared by another Party in any manner or in any medium based on or related to the Confidential Information disclosed by the Disclosing Party; (d) information which is orally or visually disclosed, or otherwise difficult to so mark due to the nature of such Confidential Information, together with any and all information and materials observed by a Party while on the other Party’s premises; and (e) all terms of the Proposed Relationship including, without limitation, all discussions, negotiations and instructions relating thereto. The parties agree that this Agreement also relates to Information that may have been disclosed by the parties prior to the Effective Date with regard to or in connection with the Proposed Relationship. In addition, the term Confidential Information shall include any Information of Disclosing Party’s subsidiaries, parents and/or affiliates (collectively, “Affiliate(s)”) disclosed by Disclosing Party or the subject Affiliate pursuant to this Agreement.
• Exceptions. Notwithstanding any other provision of this Agreement, any Information shall not be, or shall cease to be, Confidential Information hereunder: (a) if such Information is known to the Receiving Party prior to disclosure thereof by the Disclosing Party; (b) after such Information is published or becomes publicly available without restriction and without breach of this Agreement by the Receiving Party; provided, however, that Confidential Information shall not be deemed to be in the public domain merely because any part of the Confidential Information is embodied in general disclosures or because individual features, components or combinations thereof are now or become known to the public; (c) after such Information becomes available to the Receiving Party without restriction from others having no obligation to hold such Information in confidence; or (d) if such Information is ascertained to have entered the public domain by proper means without breach of the confidentiality obligations provided in this Agreement; or (e) if such Information is developed by or for the Receiving Party independently of any disclosure of such Information by the Disclosing Party; or (f) is approved for public release by written authorization of the Disclosing Party.
• Obligations. Unless otherwise agreed to in writing by the Disclosing Party, the Receiving Party agrees: (a) not to disclose or disseminate, directly or indirectly, the Confidential Information to any third party; (b) to protect the confidentiality of the Confidential Information by using the same degree of care and diligence to protect such Confidential Information from disclosure to others as such party employs or should reasonably employ to so protect its own information of like importance (but in no event less than reasonable care); (c) not to use, reproduce or copy the Confidential Information, in whole or in part, except as necessary for the evaluation of the Proposed Relationship and (d) not reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody any Confidential Information and not allow a third party to do so. Notwithstanding the foregoing, if: (w) the Receiving Party reasonably and in good faith believes its directors, officers, employees, consultants, advisors or agents or any of its Affiliates‘ directors, officers, employees, conslutants, advisors or agents (collectively, “Receiving Party Representative”) should be involved in the evaluation or performance of the Proposed Relationship, (x) the Receiving Party Representative is informed of this Agreement and agrees to be bound by the terms and has obligations to the Receiving Party at least commensurate with the mutual obligations of the Parties hereof, (y) the Receiving Party or Affiliate uses its best efforts to cause the Receiving Party Representative to observe the terms of this Agreement and (z) the Receiving Party or Affiliate provides the Disclosing Party prior written notice. The Receiving Party agrees that a breach of this Agreement by a Receiving Party Representative shall constitute a breach by the Receiving Party. Receiving Party shall promptly notify the Disclosing Party, in writing, after becoming aware of any unauthorized use or disclosure of, and/or unauthorized attempts to access or modify, any of Disclosing Party’s Confidential Information in the custody or control of the Receiving Party, the Receiving Party’s Affiliate or any of their respective Affiliates, and shall cooperate with Disclosing Party to investigate and mitigate any adverse effects therefrom.
• Required Disclosure Notice. If the Receiving Party, its Affiliates or any of their respective Representatives is required by applicable law, rule, regulation or lawful order or ruling of any court, government agency or regulatory commission to disclose any Confidential Information, the Receiving Party agrees to provide the Disclosing Party with prompt notice of such request(s) to enable the Disclosing Party to seek an appropriate protective order or to take steps to protect the confidentiality of such Confidential Information. The Receiving Party will ensure that the Receiving Party, its Affiliates or any of their respective Representatives cooperates with the Disclosing Party in seeking such order or other remedy or in defining the scope of any required disclosure, and that only that portion of the Confidential Information that it is legally required to disclose is disclosed and that all reasonable efforts are exercised to obtain reliable assurances that confidential treatment will be accorded.
• Ownership of Property. Notwithstanding any disclosures made by the Disclosing Party hereunder to the Receiving Party or any discussions or communications between the Parties, and subject only to such explicit written agreements to the contrary as the Parties may hereafter enter into which supersede this Agreement with respect to the subject matter of this Section 6, the Disclosing Party shall have and retain sole and exclusive ownership of all Information, Confidential Information, and other property owned by the Disclosing Party at the time of disclosure to the Receiving Party.
• No Additional Rights. The Receiving Party shall not have any rights or obligations with respect to the Confidential Information other than those specifically set forth in this Agreement. Without limiting the generality of any other provision of this Agreement: (a) no license is hereby or otherwise granted, directly or indirectly, under any patent, trademark, copyright or other proprietary right of the Disclosing Party or its third party vendors; and (b) neither Party shall be obligated to disclose any Information (including Confidential Information) to the other Party or to enter into any further agreements relating to the Proposed Relationship or for any other purpose. Nothing herein shall obligate either Party to accept any Information (including Confidential Information), and each Party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement at any time.
• Injunctive Relief. The Receiving Party acknowledges that it may be impossible to measure in money the damage to the Disclosing Party caused by the Receiving Party’s failure to comply with, or any breach of, the material terms, promises, agreements, and conditions of this Agreement, and that such failure or breach or threatened breach may result in irreparable and continuing damage to the Disclosing Party, and that in the event of any such failure or breach or threatened breach, the Disclosing Party may not have an adequate remedy at law or in damages. Therefore, the Disclosing Party may seek the issuance of an injunction, a decree for specific performance, and/or the enforcement of other equitable remedies against the Receiving Party (including monetary damages if appropriate) to compel the performance of all of the material terms of this Agreement.
• Public Statements. Neither Party shall publicly disseminate evaluations or summaries of the Confidential Information without the other Party’s review of such evaluations or summaries and written authorization for their dissemination. All materials disseminated with such authorization shall bear the Disclosing Party’s copyright notice and any other markings necessary to protect the Confidential Information.
• Term. The provisions of this Agreement shall apply retroactively to any Confidential Information which may have been disclosed in connection with discussions and negotiations regarding the Transaction prior to the Effective Date. This Agreement shall survive until such time as all Confidential Information disclosed hereunder becomes publicly known and made generally available through no action or inaction of Recipient.
• Actions Upon Termination. Except as otherwise expressly agreed by the Parties in writing, upon termination of this Agreement, the Receiving Party shall, upon written request by the Disclosing Party, (a) immediately cease using the Confidential Information, and, upon the Disclosing Party’s request and (b) promptly destroy or return to the Disclosing Party all Confidential Information, including all copies thereof, disclosed hereunder. Notwithstanding the foregoing, the Receiving Party may retain one copy thereof in the confidential, restricted access files of its law department for use only in the event a dispute arises between the Parties hereunder and only in connection with that dispute, and nothing herein shall require the Receiving Party to delete or purge any records in backup or archival systems kept in the normal course of business; provided that such information may not be accessed or reviewed other than for purposes of complying with the Receiving Party’s audit or regulatory obligations.
• Declaratory Relief Action. Neither Party shall rely upon the existence of this Agreement, upon any Confidential Information disclosed under the Agreement, or upon any Confidential Information disclosed to carry out the purposes underlying the Agreement as justification for instituting declaratory relief action, including seeking a declaratory judgment for patent infringement, against the other Party. The Parties agree further that nothing communicated between them in connection with exploring the Proposed Relationship shall be used or referenced as a basis for instituting any such action for declaratory relief or any action asserting patent infringement or any related claim.
• Independent Development. Each Party, as a Disclosing Party, understands and agrees that the other Party, as a Receiving Party, may currently or in the future develop information internally, or receive information from other parties, that is similar to the Disclosing Party’s Confidential Information. Nothing in this Agreement will prohibit a Receiving Party from developing or having developed for it products, services, concepts, systems or techniques that are similar to or compete with the products, services, concepts, systems or techniques contemplated by or embodied in the Disclosing Party’s Confidential Information provided that such Receiving Party does not violate any of its obligations under this Agreement in connection with such development.
• 14.General Provisions.
  • Entire Agreement/Modification. This Agreement supersedes any and all agreements, either oral or written, between the Parties hereto with respect to the subject matter hereof. Each Party to this Agreement acknowledges that no representations, inducements, promises, or agreements oral or otherwise, have been made by any Party, or anyone acting on behalf of any Party with respect to the subject matter hereof, which are not embodied herein, and that no other agreement, statement, or promise with respect to the subject matter hereof not contained in this Agreement shall be valid or binding. This Agreement may be modified or rescinded only by a writing signed by all parties to this Agreement or by their duly authorized agents.
  • Waiver. No waiver of default by any Party hereunder shall be implied from any omission by a Party to take any action on account of such default if such default persists or is repeated, and no express waiver shall effect any default other than the default specified in the express waiver, and that only for the time and to the extent therein stated. The consent or approval of any Party shall not be deemed to waive or render unnecessary the consent or approval of said Party of any subsequent or similar acts or omissions by a Party.
  • Notices. All notices, requests, demands and other communications which are required or may be given under this Agreement shall be in writing and in the English language, and shall be deemed received only when duly sent by facsimile, electronic mail or registered mail to the respective addresses of the Parties as set forth below, or to such other addresses as may be designated by written notice to each Party hereto; provided, however, that any notice of change of address shall be effective only upon receipt.
  • Partial Invalidity. If any provision of this Agreement is held by a court of competent jurisdiction or arbitrator to be invalid, void or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way.
  • Attorneys’ Fees. In the event of any controversy, claim, or dispute between the parties hereto, arising out of or relating to this Agreement, or the breach thereof, the prevailing party shall be entitled to recover from the other party reasonable expenses, attorneys' fees and costs.
  • Assignment/Inurement. Neither this Agreement nor any duties or obligations under this Agreement may be assigned by either Party without the prior written consent of the other Party. This Agreement shall inure to the benefit of, and shall be binding upon, the permitted assigns, successors in interest, personal representatives, estates, heirs, and legatees of each of the parties hereto.
  • Governing Law. This Agreement and any action related thereto will be governed, controlled, interpreted, and defined by and under the laws of the State of Delaware, without giving effect to any conflicts of laws principles that require the application of the law of a different state.
  • No Remuneration or Warranties. The Parties are not entitled to any remuneration for disclosure of any Information under this Agreement. ALL CONFIDENTIAL INFORMATION IS PROVIDED PURSUANT TO THIS AGREEMENT “AS IS”. EACH PARTY MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, RELIABILITY, MERCHANTABILITY, GOOD TITLE, NON-INFRINGEMENT, FITNESS, COMPLETENESS OR PERFORMANCE. Neither Party assumes any liability of any kind to the other Party or any third party with respect to any Confidential Information disclosed pursuant to this Agreement or any use thereof.
  • Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to constitute a single document. The facsimile, electronically signed, or scanned signatures of the parties shall be deemed to constitute original signatures and facsimile, electronically signed and scanned copies hereof shall be deemed to constitute duplicate original counterparts.