MUTUAL NON-DISCLOSURE AGREEMENT
This Mutual Non-Disclosure Agreement (the “Agreement”) is dated September 12, 2023 (the “Effective Date”) and is between Energy Storage Response Group LLC, an Ohio limited liability company (“ESRG”) and the City of Ripon, a California municipal corporation (“City”).
The parties agree as follows:
1. Confidential Information. Except as set forth in section 3 below, “Confidential Information” means all non-public, confidential, or proprietary information disclosed before, on, or after the Effective Date, by one party (“Disclosing Party”) to the other party (“Recipient”), to any of their affiliates, or to any of the parties’ employees, officers, directors, partners, shareholders, agents, attorneys, accountants, or advisors (collectively, “Representatives”), whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential”. Without limitation, Confidential Information includes:
(i) information concerning the parties’, their affiliates’, their customers’, their suppliers’, and other third parties’, past, present, and future business affairs including, without limitation, finances, customer information, supplier information, products, services, organizational structure and internal practices, forecasts, sales and other financial results, records and budgets, and business, marketing, development, deployment, sales, and other commercial strategies;
(ii) unpatented inventions, ideas, methods, and discoveries, trade secrets, know-how, unpublished patent applications, and other intellectual property; (iii) designs, specifications, documentation, components, source code, object code, images, icons, audiovisual components and objects, schematics, drawings, protocols, processes, and other visual depictions, in whole or in part, of any of the foregoing; (iv) other information that would reasonably be considered non-public, confidential, or proprietary given the nature of the information and the parties’ businesses; and (v) notes, analyses, compilations, reports, forecasts, studies, samples, data, statistics, summaries, interpretations, and other materials (the “Notes”) prepared by either party and their Representatives that contain, are based on, or otherwise reflect or are derived, in whole or in part, from any of the foregoing.
2. Term and Termination. The term of this Agreement shall commence on the Effective Date and shall expire on the two (2) year anniversary of the Effective Date, provided that either party may terminate this Agreement at any time by providing written notice to the other party. Notwithstanding anything to the contrary herein, each party’s rights and obligations under this Agreement will survive the expiration or termination of this Agreement for a period of five (5) years from the date of such expiration or termination, even after the return or destruction of Confidential Information (as defined below) by either party (the “Survival Period”), provided that for any and all Personal Information (as defined below) disclosed by Disclosing Party, the Survival Period shall last for the period of time required under applicable federal, state, and local law and that for any and all trade secrets of Disclosing Party, the Survival Period shall last for as long as such Confidential Information qualifies as a trade secret under applicable federal, state, and local law.
3. Exclusions from Confidential Information. Except as required by applicable federal, state, or local law or regulation, the term “Confidential Information” as used in this Agreement will not include information that:
(i) at the time of disclosure is, or thereafter becomes, generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Agreement, act, or omission by Recipient or any of its Representatives;
(ii) at the time of disclosure is, or thereafter becomes, available to Recipient on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information to Recipient by any legal, fiduciary, or contractual obligation; (iii) was known by or in the possession of Recipient, as established by documentary evidence, prior to being disclosed by or on behalf of Disclosing Party pursuant to this Agreement; or (iv) was or is independently developed by Recipient, as established by documentary evidence, without reference to or use of, in whole or in part, any of Disclosing Party’s Confidential Information.
4. Recipient Obligations. Recipient shall:
(i) use its best efforts to protect and safeguard the confidentiality of all such Confidential Information;
(ii) not use Disclosing Party’s Confidential Information in any manner to Disclosing Party’s detriment, including without limitation, to reverse engineer, disassemble, decompile, or design around Disclosing Party’s proprietary services, products, and/or confidential intellectual property; (iii) not disclose any such Confidential Information to any person or entity, except to Recipient’s Representatives who (a) need to know the Confidential Information to assist Recipient, or act on its behalf; (b) are informed in writing by Recipient of the confidential nature of the Confidential Information; and (c) are subject to confidentiality duties or obligations to Recipient that are no less restrictive than the terms and conditions of this Agreement;
(iv) comply with all applicable on-site access, remote access, and related security rules and procedures of Disclosing Party;
(v) immediately notify Disclosing Party of any unauthorized disclosure of Confidential Information or other breaches of this Agreement by Recipient or its Representatives; (vi) fully cooperate with Disclosing Party in any effort undertaken by Disclosing Party to enforce its rights related to any such unauthorized disclosure; and
(vii) be responsible for any breach of this Agreement caused by any of its Representatives.
5. Additional Confidentiality Obligations. Except as required by applicable federal, state, or local law or regulation, Recipient shall not, and shall not permit its Representatives to, disclose to any person:
(i) that the Confidential Information has been made available to Recipient or its Representatives, or that it has inspected any portion of the Confidential Information; (ii) that discussions or negotiations may be or are underway between the parties regarding the Confidential Information, including the status thereof; or (iii) any terms, conditions, or other arrangements that are being discussed or negotiated in relation to the Confidential Information.
6. Recipient Representations and Warranties. Recipient states that it will comply and will require its Representatives to comply, with all applicable federal, state, and local data protection laws and regulations in the maintenance, disclosure, and use of all Personal Information contained in any Confidential Information that is disclosed to Recipient or its Representatives hereunder. For purposes of this Agreement, “Personal Information” means information that relates to an individual person and identifies or can be used to identify, locate, or contact that individual alone or when combined with other personal or identifying information that is or can be associated with that specific individual. Recipient further states that the performance of its obligations herein does not and will not violate any other contract or obligation to which Recipient is a party, including covenants not to compete and confidentiality agreements and it is not legally or contractually prohibited from entering into a principal agreement with Disclosing Party. Recipient represents and warrants it has implemented and will continue to maintain sufficient information security protocols to secure and protect the confidentiality of all Confidential Information in Recipient’s or its Representatives’ possession or control.
7. Required Disclosure. Any disclosure by Recipient or its Representatives of any of Disclosing Party’s Confidential Information pursuant to a valid order issued by a court or governmental agency of competent jurisdiction (a “Legal Order”) shall be subject to the terms of this section. Prior to making any such disclosure, Recipient shall provide Disclosing Party with:
(i) prompt written notice of such requirement so that Disclosing Party may seek a protective order or other remedy; and
(ii) assistance in opposing such disclosure or seeking a protective order or other limitations on disclosure.
If, after providing such notice and assistance as required herein, Recipient remains subject to a Legal Order to disclose any Confidential Information, Recipient shall disclose, and, if applicable, shall require its Representatives or other persons to whom such Legal Order is directed to disclose, no more than that portion of the Confidential Information which, on the advice of Recipient’s legal counsel, such Legal Order specifically requires and shall use commercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment.
8. Return or Destruction of Confidential Information. Upon the expiration or termination of this Agreement, or at Disclosing Party’s request at any time during the term of this Agreement, Recipient and its Representatives shall promptly return to Disclosing Party all copies, whether in written, electronic, or other form or media, of Disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to Disclosing Party that such Confidential Information has been destroyed.
In addition, Recipient shall also destroy all copies of any Notes created by Recipient or its Representatives and certify in writing to Disclosing Party that such copies have been destroyed.
9. Audit Right. At any time during the term of this Agreement and for a period of one (1) year from the date of expiration or termination of this Agreement, at Disclosing Party’s request, Recipient shall provide to Disclosing Party or its designated agents full access to Recipient’s premises to inspect and audit the relevant books, records, procedures, and practices of Recipient to verify Recipient’s compliance with the terms and conditions of this Agreement.
10. Indemnification. The parties shall defend, indemnify, and hold harmless the other party, its affiliates and their respective shareholders, officers, directors, employees, agents, successors, and permitted assigns from and against all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorney fees, in connection with any third party claim, suit, action, or proceeding arising out of or resulting from any breach of this Agreement by the opposite party or any of its Representatives.
11. No Disclosing Party Representations or Warranties. Neither party nor any of their Representatives make any representation or warranty, expressed or implied, as to the accuracy or completeness of the Confidential Information disclosed to the other party hereunder. Neither party nor any of their Representatives shall be liable to the other party or any of its Representatives relating to or resulting from the a party’s use of any of the Confidential Information or any errors therein or omissions therefrom.
12. No Transfer of Rights, Title, or Interest. Disclosing Party hereby retains its entire right, title, and interest, including all intellectual property rights, in and to all Confidential Information. Any disclosure of such Confidential Information hereunder shall not be construed as an assignment, grant, option, license, or other transfer of any such right, title, or interest whatsoever to Recipient or any of its Representatives.
13. No Other Obligation. The parties agree that this Agreement does not require or compel Disclosing Party to disclose any Confidential Information to Recipient, that neither party shall be under any legal obligation of any kind whatsoever, or otherwise be obligated to enter into any business or contractual relationship, investment, or transaction, by virtue of this Agreement, except for the matters specifically agreed to herein, and that either party may at any time, at its sole discretion, terminate discussions and negotiations with the other party.
14. Remedies. Recipient acknowledges that money damages might not be a sufficient remedy for any breach or threatened breach of this Agreement by Recipient or its Representatives. Therefore, in addition to all other remedies available at law (which Disclosing Party does not waive by the exercise of any rights hereunder), Disclosing Party shall be entitled to seek specific performance and injunctive and other equitable relief as a remedy for any such breach or threatened breach, and Recipient hereby waives any requirement for the securing or posting of any bond or the showing of actual monetary damages in connection with such claim.
15. Governing Law, Jurisdiction, and Venue. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule (whether of the State of Ohio or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of Ohio. Any legal suit, action, or proceeding arising out of or related to this Agreement or the matters contemplated hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Ohio in each case located in the city of Columbus and County of Franklin, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding and waives any objection based on improper venue or forum non conveniens. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.
16. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth below (or to such other address that may be designated by a party from time to time in accordance with this section).
If to ESRG:
Energy Storage Response Group LLC
8350 U.S. Highway 23 North
Delaware, OH 43015
With email copies to:
Nicholas A. Warner, Owner [email protected] Andrew H. Stevens, Esq., Counsel [email protected]
If to City:
Mr. Ken Zuidervaart
Director of Planning
City of Ripon
259 N. Wilma Avenue
Ripon, CA 95366
With electronic copies to:
Mr. Ken Zuidervaart, Director of Planning [email protected]
17. Entire Agreement. This Agreement constitutes the sole and entire agreement between the parties with respect to the subject matter contained herein and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto.
18. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
19. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail, or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
20. Assignment. Recipient may not assign any of its rights or delegate any of its obligations hereunder without the prior written consent of Disclosing Party. Any purported assignment or delegation in violation of this section shall be null and void. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
21. Waivers. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
The parties are signing this Agreement as of the Effective Date.
Energy Storage Response Group LLC
Sign:
[Name, Title, Owner]
City of Ripon
Sign:
Michael Restuccia, Mayor