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The Seward Johnson Atelier, Inc/Street/3,826.00/Mutual Nondisclosure and Non-Compete Agreement/Training for Maintenance and Conservation Work Related to Works Owned by the City of CarmeldA0 MUTUAL NONDISCLOSURE AND NON -COMPETE AGREEMENT This MUTUAL NONDISCLOSURE AND NON -COMPETE AGREEMENT (the "Agreement") is made and entered into as of the last date on which it is signed by the parties hereto ("Effective Date"), by and between The Seward Johnson Atelier, a New Jersey nonprofit corporation a place of business at 14 Fairgrounds Road, Hamilton, New Jersey 08619 (the "Atelier") and The City of Carmel, Indiana by and through its Board of Public Works and Safety, with a place of business at One Civic Square, Carmel, Indiana ("The City," "You" or "Your") (each a "Party" and, collectively, the "Parties"). WHEREAS, the Atelier has sold certain works created by Seward Johnson to The City of Carmel, Indiana, as listed in Schedule A hereto (the "Works"); WHEREAS, in order to help decrease the cost of maintaining the Works, the Atelier has agreed to train You, as a representative of The City of Carmel, Indiana, to perform certain maintenance and conservation work related to the Works. NOW, THEREFORE, for good and valuable consideration and the promises and agreements set forth herein, the sufficiency of which is hereby acknowledged, the Parties, each intending to be legally bound hereby, do promise and agree as follows: 1. Purpose. The Atelier wishes to conduct a training program for a representative of The City of Carmel, Indiana, under which the Atelier may disclose certain of its Confidential Information to You. 2. Payment. In exchange for the training and other services and benefits described herein, The City shall pay to the Atelier the sum of $3,826.00, which shall be due within 30 days of the receipt of the Atelier's invoice. 3. Definition. "Confidential Information" means any information, technical data, or know-how of the Atelier, including, but not limited to, that which relates to research, data, techniques, methods of maintaining and preserving sculptural works, formulae, product plans, products, services, customers, markets, software, developments, inventions, processes, designs, drawings, marketing, pricing or finances, which Confidential Information is designated in writing to be confidential or proprietary, or if given orally or visually, is confirmed promptly in writing within thirty (30) days of initial disclosure as having been disclosed as confidential or proprietary. Confidential Information does not include information, technical data or know-how that: (i) is in the possession of the receiving party at the time of disclosure as shown by the receiving party's files and records immediately prior to the time of disclosure; or (ii) prior or after the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action of the receiving party; or (iii) is approved by the disclosing party, in writing, for release; or (iv) is independently developed by the receiving party without the use of the disclosing party's Confidential Information as evidenced by written records of the receiving party; or (v) the receiving party is required to disclose pursuant to a valid order of a court or other governmental body or the Indiana Access to Public Records Act, as amended; provided, however, that the receiving party shall first have given notice to the disclosing party and shall give the disclosing parry a reasonable opportunity to interpose an objection or obtain a protective order requiring that the Confidential Information so disclosed be used only for the purposes for which the order was issued. Without limiting the generality of the foregoing, Confidential Information includes any reports or documents created by the receiving party that include, summarize or refer to the disclosing party's Confidential Information disclosed hereunder. 4. Nondisclosure of Confidential Information. You agree not to use the Confidential Information disclosed to You by the Atelier for Your own use or for any purpose except to carry out the conservation and maintenance of the Works. You will not disclose the Confidential Information of the Atelier to third parties. Any other employees or representatives of The City of Carmel, Indiana to whom Confidential Information of the Atelier is disclosed, or who have access to Confidential Information of the Atelier, shall sign a nondisclosure agreement in content substantially similar to this. Agreement. You agree that You will take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of the Atelier in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized hereunder to have any such information, which measures shall include the same degree of care that the receiving party utilizes to protect its own Confidential Information of a similar nature. You agree to notify the Atelier in writing of any misuse or misappropriation of Confidential Information of the Atelier that may come to its attention. 5. Return of Materials. Any materials or documents containing Confidential Information that have been furnished to You by the Atelier will be promptly returned, accompanied by all copies of such documentation immediately upon the request of the Atelier. 6. Non -Compete. You agree that you will not, directly or indirectly, either in Your individual capacity or as a representative of The City of Carmel, Indiana or any other entity, distribute, sell, offer to sell, or solicit any orders for the purchase or distribution of any services which incorporate any Confidential Information disclosed to You under this Agreement to any person, firm or entity. 7. No License. Nothing in this Agreement is intended to grant any rights, including, but not limited to, any copyright rights in or to any of the Works, nor shall this Agreement grant You any rights in or to the Confidential Information of the Atelier, except the limited rights to use such Confidential Information for the purposes described herein. 8. Term. This Agreement shall be in effect until the expiration of the copyright rights in and to the Works. The foregoing commitments in this Agreement shall terminate three (3) years following the termination of this Agreement, or after the period when The City no longer owns, controls or is charged with the care and maintenance of the Works, except for information designated as a "trade secret," for which the foregoing commitments shall remain in place as long as the applicable Confidential Information retains its status as a trade secret. 9. Miscellaneous. This Agreement shall be binding upon and for the benefit of the undersigned parties, their successors and assigns, provided that Confidential Information may not be assigned without the prior written consent of the Atelier. Failure to enforce any provision of this Agreement shall not constitute a waiver of any term hereof. 10. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New Jersey, excluding that body of law known as choice of law. 11. Remedies. The Parties agree and acknowledge that the obligations hereunder are necessary and reasonable in order to protect the Atelier and the Atelier's business, and expressly agree that monetary damages would be inadequate to compensate the Atelier for any breach of any covenant or agreement set forth herein. Accordingly, the Parties agree and acknowledge that any such violation or threatened violation will cause irreparable injury to the Atelier and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the Atelier shall be entitled to obtain injunctive relief against the threatened breach of this Agreement or the continuation of any such breach, without the necessity of proving actual damages. 12. Scope of Agreement. This Agreement is intended only to govern Your use of any and all Confidential Information disclosed to You by the Atelier during the course of the training provided to you by The Atelier in the care and maintenance of the Works. Nothing in this Agreement shall be interpreted to limit or alter any provision in any sales or other agreement(s) related to the Works executed between The City of Carmel, Indiana and the Atelier and its predecessors -in -interest. ********************** SIGNATURE PAGE FOLLOWS************************** IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first set forth above. THE SEW-,ARDJOHNN ON ATELIER, INC. By: Nai dv THE CITY OF CARMEL,; INDL ,NA BOARD OF PUBLIC WORKS AND SAFETY By: Name: Title: THE CITY OF CARMEL, INDIANA MEMBERS OF THE BOARD By: /ekA— Name: 7G f)-� 6 �Y R-3 N LOU Name: THE CITY OF CARMEL, INDIANA CLEI Name 0 ley SCHEDULE A (INSERT LIST OF WORKS OWNED BY THE CITY OF CARMEL, INDIANAI • Holding Out by Seward Johnson ©1987 The Seward Johnson Atelier, Inc. • My World by Seward Johnson 01992 The Seward Johnson Atelier, Inc. • Oh, It's You. Welcome! by Seward Johnson ©1997 The Seward Johnson Atelier, Inc. • Right Light by Seward Johnson 01983 The Seward Johnson Atelier, Inc. • Sidewalk Concert by Seward Johnson C1992 The Seward Johnson Atelier, Inc. • There, Now You Can Grow by Seward Johnson 01993 The Seward Johnson Atelier, Inc. • Things To Do by Seward Johnson 01992 The Seward Johnson Atelier, Inc. 5