This Independent Subcontractor Non-Disclosure Agreement (the “Agreement”) is made between Project One LLC and the “Subcontractor” and is effective the date this form is signed and submitted.
This Agreement applies exclusively to all subcontractors working on the Raven Project (the “Project”). The parties agree as follows:
1. Subcontractor Services
Project One LLC has engaged Subcontractor to perform the following services: Facilities maintenance/handyman services or as further described in the project scope of work to be furnished to Subcontractor. During the performance of Subcontractor services, Subcontractor and Subcontractor representatives may be exposed to Confidential Information (as defined below). “Subcontractor Representatives” means Subcontractor’s officers, directors, employees, agents, consultants, and/or advisors who have a legitimate need to know the Confidential Information for purposes of the Project. Subcontractor shall be responsible for every act or omission of its Representatives relating to Confidential Information as if such act or omission were committed by Subcontractor. The Agreement is intended to prevent the unauthorized disclosure of Confidential Information by Subcontractor and Subcontractor representatives.
2. Confidential Information
“Confidential Information” means any information, materials, data, or know-how provided by Project One LLC or its Clients or representatives to Subcontractor or its Representatives, whether on, before or after the Effective Date and in whatever media or form (whether oral, written or electronic, and whether tangible or intangible and irrespective of whether expressly designated as “confidential” or given a similar designation), including, but not limited to, (a) that which relates to Project One LLC’s or Client’s market research, product plans, business plans, products, services, clients, markets, business processes and systems, operations, strategic information, forecasts, reports, records, employees, contractors, trade secrets, revenues, expenses or finances and financial data, client information and/or information relating to its business methodologies, plans, systems, programs or forecasts and (b) the fact that discussions or negotiations are taking place between the parties or any terms, conditions or other facts with respect to the Project, including the status thereof or that Confidential Information has been made available to Subcontractor or its Representatives by Project One LLC. Confidential Information does not include any of Project One LLC’s or Client’s information, data or know-how which: (i) is or becomes part of the public knowledge other than as a result of any inaction or action of Subcontractor or its Representatives in violation of this Agreement; (ii) is developed by Subcontractor through its independent resources without reference to Project One LLC’s or Client’s Confidential Information or in violation of the terms of this Agreement; (iii) is disclosed to Subcontractor by a third party without restriction and, to the knowledge of Subcontractor after reasonable inquiry, without violation of any obligation of confidentiality to any other person; or (iv) is approved for release by Project One LLC in writing. “Client” means any direct or indirect client, customer, end customer, property owner, brand, project participant, or affiliated entity associated with the Project, whether or not identified to Subcontractor before the Effective Date.
3. Non-Disclosure
Without Project One LLC’s prior written consent, Subcontractor will not: (a) disclose Confidential Information to any third party; (b) make or permit to be made copies or other reproductions of Confidential Information; or (c) use Confidential Information for any other purpose other than to solely perform services specifically authorized by Project One LLC in connection with the Confidential Project. The Subcontractor will carefully restrict access to Confidential Information to those of its officers, directors, and employees who are subject to non-disclosure restrictions at least as protective as those set forth in this Agreement and who clearly need such access to participate on Subcontractor’s behalf to perform Subcontractor Services. Subcontractor and its Representatives is only to discuss issues regarding the work they are performing and/or topics related to future issues with Project One LLC, and discussions regarding current or future repairs are not to occur with our clients, except for emergency safety communications or if contact is expressly directed by Project One LLC.
4. Notice
Subcontractor shall immediately notify Project One LLC in writing of any actual or suspected loss, unauthorized access, use, disclosure, copying, or misappropriation of Confidential Information and shall fully cooperate with Project One LLC in investigating and mitigating the incident.
5. Mandatory Disclosure
In the event that Subcontractor or its Representatives are requested or required by law, an administrative process or by a regulatory or supervisory authority to disclose any of the Confidential Information, to the extent legally permitted, Subcontractor shall give prompt notice of the existence, terms and circumstances surrounding such request so that Project One LLC may seek a protective order or other appropriate relief, and Subcontractor shall cooperate with Project One LLC in connection therewith. In the event that such protective order is not sought or obtained, Subcontractor shall (or shall cause its Representative to, if applicable) disclose only that portion of the Confidential Information which its counsel advises that Subcontractor (or its Representative, if applicable) is legally required to disclose.
6. Return of Confidential Materials
Upon the request of Project One LLC, Subcontractor shall immediately return all original materials provided by Project One LLC and any copies, notes or other documents in Subcontractor’s possession pertaining to Confidential Information. Upon request, Subcontractor is required to provide written certification of destruction of Confidential Information.
7. Exclusions
This agreement does not apply to any information that: (a) was in Subcontractor’s possession or was known to Subcontractor, without an obligation to keep it confidential, before such information was disclosed to Subcontractor by Project One LLC; (b) is or becomes public knowledge through a source other than Subcontractor and through no fault of Subcontractor; (c) is or becomes lawfully available to Subcontractor from a source other than Project One LLC; or (d) is disclosed by Subcontractor with Project One LLC’s prior written approval.
8. Term
This Agreement shall remain in effect until Project One LLC releases Subcontractor from it in writing. Subcontractor’s obligations concerning Confidential Information shall survive the completion or termination of the Project and shall continue for as long as Subcontractor or any of its Representatives possesses or retains Confidential Information. With respect to information qualifying as a trade secret, the obligations shall continue for as long as the information remains a trade secret under applicable law.
9. General Provisions
- Relationships. Nothing contained in this Agreement shall be deemed to constitute either party a partner, joint venture or employee of the other party for any purpose.
- Severability. If a court finds any provision of this Agreement invalid or unenforceable, the remainder of this Agreement shall be interpreted so as best to affect the intent of the parties.
- Integration. This Agreement expresses the complete understanding of the parties with respect to the subject matter and supersedes all prior proposals, agreements, representations, and understandings. This Agreement may not be amended except in a writing signed by both parties.
- Waiver. The failure to exercise any right provided in this Agreement shall not be a waiver of prior or subsequent rights.
- Injunctive Relief. Any misappropriation of Confidential Information in violation of this Agreement may cause Project One LLC irreparable harm, the amount of which may be difficult to ascertain, and therefore Subcontractor agrees that Project One LLC shall have the right to apply to a court of competent jurisdiction for an order enjoining any such further misappropriation and for such other relief as Project One LLC deems appropriate. This right of Project One LLC is to be in addition to the remedies otherwise available to Project One LLC.
- Governing Law. This Agreement shall be governed in accordance with the laws of the State of Arizona.
- Binding Arbitration. The parties agree that any dispute, claim, or controversy arising out of or relating to this Agreement shall be resolved by binding arbitration. The arbitration shall be governed by the laws of the State of Arizona, without regard to conflict-of-law principles. Each party waives any right to pursue such dispute in any other forum, except as necessary to enforce an arbitration award or seek temporary or preliminary injunctive relief.
- Successors & Assigns. This Agreement shall bind each party’s heirs, successors, and assigns. The Subcontractor may not assign or transfer its rights or obligations under this Agreement without the prior written consent of Project One LLC. However, no consent is required for an assignment or transfer that occurs: (a) to an entity in which Subcontractor owns more than fifty percent of the assets; or (b) as part of a transfer of all or substantially all the assets of Subcontractor to any party. Any assignment or transfer in violation of this section shall be void.
10. Remedies for Breach
Subcontractor shall indemnify, defend, and hold harmless Project One LLC and its clients from losses, liabilities, claims, damages, costs, and reasonable attorneys’ fees arising from or relating to any breach of this Agreement by Subcontractor or its Representatives, including amounts Project One LLC becomes obligated to pay to its client as a result of such breach.
