To explore the possibility of a business relationship between Company and Entity, each Party (“Discloser”) may disclose sensitive information to the other (“Recipient”) (each a “Party”, together the “Parties”).
The Parties agree as follows:
1. Definition.
The term “Proprietary Information” means, to the extent previously, presently or subsequently disclosed by or for Discloser to Recipient, all financial, business, legal and technical information of Discloser or any of its affiliates, suppliers, customers and employees (including information about research, development, operations, marketing, transactions, regulatory affairs, discoveries, inventions, methods, processes, articles, materials, algorithms, software, specifications, designs, drawings, data, strategies, plans, prospects, know-how and ideas, whether tangible or intangible, and including all copies, abstracts, summaries, analyses and other derivatives thereof), that is marked or otherwise identified as proprietary or confidential at the time of disclosure, or that by its nature would be understood by a reasonable person to be proprietary or confidential. Proprietary Information shall not include any information that
(a) was rightfully known to Recipient without restriction before receipt from Discloser,
(b) is rightfully disclosed to Recipient without restriction by a third party which is not known by Recipient or its Representatives to be in violation of any applicable legal or contractual requirement with respect to disclosure of such information,
(c) is or becomes generally known to the public without violation of this Agreement by Recipient,
(d) is already in the possession of the Recipient at the time of disclosure by the Discloser, as shown by the Recipient’s files and records,
(e) is independently developed by Recipient or its Representatives without access to or reliance on such information, or
(f) is approved for release by written authorization of the Discloser. Discloser represents and warrants to Recipient that it is authorized to disclose any and all Proprietary Information made available to Recipient under this Agreement.
2. Restrictions.
As to the other party’s Proprietary Information, Recipient agrees
(a) to use the Proprietary Information only for its consideration internally of a business relationship or transaction between the parties, and its performance in any resulting arrangement, but not for any other purpose,
(b) to maintain the Proprietary Information as confidential with the same degree of care it accords its own Proprietary Information of similar nature but not less than reasonable care, and exercise reasonable precautions to prevent any unauthorized access, use or disclosure,
(c) not to copy the Proprietary Information unless approved in writing in advance by Discloser,
(d) not to disclose the Proprietary Information to any third party other than Recipient’s officers, advisors, employees and agents (“Representatives”) who have a need to know for the permitted purpose and who are apprised of the confidential nature of the Proprietary Information and are bound by confidentiality terms no less restrictive than those in this Agreement,
(e) not to decompile, disassemble or otherwise reverse engineer any Proprietary Information, or use any similar means to discover its underlying composition, structure, source code or trade secrets and
(f) not to export or re-export any Proprietary Information or product thereof in violation of U.S. or other export control laws or regulations. The terms and conditions of any transaction or possible transaction between the parties, the fact that disclosures, evaluations or discussions are taking place, and the status and results thereof will also be held in confidence by both parties and not disclosed to any third party. Each party shall be responsible for any breach of its confidentiality obligations by its respective Representatives.
3. Compelled Disclosures.
These restrictions will not prevent either party from complying with any law, regulation, court order or other legal requirement that compels disclosure of any Proprietary Information. Recipient will, to the extent permitted by law, use its reasonable efforts to promptly notify Discloser upon learning of any such legal requirement, and exercise commercially reasonable cooperation with Discloser in the exercise of its right to protect the confidentiality of the Proprietary Information before any tribunal or governmental agency. If the Recipient is nonetheless required to disclose Proprietary Information, it will furnish only that portion of the Proprietary Information that is legally required and will use commercially reasonable efforts to obtain reliable assurances that such Proprietary Information will be treated confidentially to the extent possible. If Recipient discovers that it has used, disclosed or copied any Proprietary Information in an unauthorized manner, it shall immediately notify the Discloser in writing and cooperate in a commercially reasonable way to help the Discloser regain possession of the Proprietary Information and prevent its further unauthorized use or disclosure.
4. No Warranties or Licenses.
All Proprietary Information is provided “AS IS.” Discloser will not be liable to Recipient for damages arising from any use of the Proprietary Information, from errors, omissions or otherwise. All of Discloser’s rights in and to its Proprietary Information remain the exclusive property of Discloser. Neither this Agreement, nor any disclosure of Proprietary Information hereunder
(a) grants to Recipient any right or license under any copyright, patent, mask work, trade secret or other intellectual property right, except solely for the use expressly permitted herein,
(b) obligates either party to disclose or receive any information, perform any work or enter into any agreement,
(c) limits either party from developing, manufacturing or marketing products or services that may be competitive with those of the other except insofar as this Agreement limits the use and disclosure of Proprietary Information,
(d) limits either party from assigning or reassigning its employees in any way or (e) limits either party from entering into any business relationship with third parties.
5. Termination.
This Agreement will terminate as to the further exchange of Proprietary Information immediately upon the earliest of
(a) receipt by one party of fifteen (15) days written notice from the other,
(b) the first anniversary of this Agreement, or
(c) entering into a definitive agreement between the Parties relating to the confidential treatment of the Proprietary Information. The confidentiality obligations of this Agreement, as they apply to any Proprietary Information disclosed prior to termination, will survive termination until such a time as the Proprietary Information received no longer qualifies as Proprietary Information. Upon Discloser’s written request at any time, Recipient shall (at its option) promptly, but in any event within ninety (90) days, return to Discloser or subject to reasonable technical limitations, destroy all originals and copies of any Proprietary Information and destroy all information, records and materials developed therefrom, and confirm such return or destruction in writing to the Discloser, provided that Recipient and its Representatives may retain Proprietary Information to the extent required by law, rule, regulation or any competent judicial, governmental, administrative, supervisory or regulatory body or in accordance with internal document retention policies. Notwithstanding the return or destruction of the Proprietary Information, all Proprietary Information shall continue to be subject to the terms of this Agreement.
6. Remedies.
Due to the unique nature of the Proprietary Information, the parties agree that any breach or threatened breach of this Agreement may cause not only financial harm to Discloser, but also irreparable harm for which money damages may not be an adequate remedy. Therefore, Discloser shall be entitled, in addition to any other legal or equitable remedies, to seek an injunction or similar equitable relief against any such breach or threatened breach without the necessity of posting any bond.
7. General.
This Agreement constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties concerning the subject matter hereof. This Agreement may be executed in one or more counterparts, each of which is an original, but taken together constituting one and the same instrument. Execution of a facsimile or electronic copy shall have the same force and effect as execution of an original, and a facsimile or electronic signature shall be deemed an original and valid signature. No change, consent or waiver to this Agreement will be effective unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. Unless expressly provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be governed by and construed in accordance with the laws of the State of Specify a US state
, without regard to the conflicts of laws provisions thereof. Any dispute arising out of this Agreement shall be solely and finally resolved through binding arbitration administered by JAMS in accordance with the then-current JAMS Comprehensive Arbitration Rules. Any dispute shall be arbitrated on an individual basis. No party may join or consolidate claims in arbitration by or against others. The arbitration hearing shall be held in Specify place
in Specyfy language
. The Parties shall maintain the arbitration proceeding, its contents, and the award as Proprietary Information. To the extent reasonably necessary to prepare for or conduct the arbitration proceeding, each party may use Proprietary Information, subject to obtaining reasonable confidentiality protections in such instances. In any action or proceeding to enforce or interpret this Agreement, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys’ fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained. Any notice hereunder will be effective upon receipt and shall be given in writing, in English and delivered to the other party at its address given herein or at such other address designated by written notice. Each party reserves the right to assign its rights and the enforcement thereof under this Agreement to its wholly owned affiliate or any other person or entity that acquires such party or all or substantially all of its assets, in each case, provided that such party gives the other party reasonable prior written notice of such transaction, but shall not otherwise assign its rights or obligations under this Agreement without the express written consent of the other parties to this Agreement, and any such assignment without such written consent shall be void.
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