NOW THEREFORE, in consideration of each other party's disclosure of Confidential Information and the covenants and promises contained herein, each party agrees as follows:
1. This Agreement will apply to all Confidential Information disclosed by one party to the other at any time. "Confidential Information" shall mean any information that has been identified as confidential or proprietary or reasonably appears to be proprietary or confidential in nature because of legends or other markings, the circumstances of disclosure, or the nature of the information itself, whether in writing or other tangible form or by electronic, oral, visual or other means.
2. Each party agrees to (i) hold the Confidential Information disclosed by any other party in confidence, (ii) not disclose such Confidential Information to anyone other than their Representatives (as defined below), and (iii) not use such Confidential Information for any purpose except for the Business Purpose. Each party shall protect and prevent the unauthorized use or dissemination of the Confidential Information disclosed by any other party by using the same degree of care it would use in protecting its own confidential information (which in no event shall be less than a reasonable degree of care). Notwithstanding anything to the contrary in the preceding two sentences, each party may disclose Confidential Information to it and its affiliates' employees, directors, officers, attorneys, advisors, agents and contractors (collectively, "Representatives") who have bona fide need to know and are subject to an obligation of confidentiality no less stringent than that set forth in this Agreement or other professional and ethical obligations. Each party will remain liable for any breach of this Agreement by its Affiliates or Representatives.
3. Confidential Information shall not include any information:
a. is now, or hereafter becomes, through no act or failure to act on the part of the receiving party, generally known or available to the public other than by breach of this Agreement by the receiving party or its Representatives;
b. was acquired by the receiving party before receiving such information from the disclosing party without any restriction known to the receiving party as to use or disclosure;
c. is hereafter furnished to the receiving party without restriction known to the receiving party as to use or disclosure by a third party authorized to make such disclosure; or
d. is information that was independently developed by the receiving party without reference to the Confidential Information disclosed by the other party.
4. In the event the receiving party is required by law, regulation or a valid subpoena or order, to disclose any of the Confidential Information, the receiving party will promptly notify the disclosing party in writing so that the disclosing party may seek a protective order or other appropriate remedy. The receiving party agrees to cooperate with the disclosing party in seeking such order or other remedy. The receiving party further agrees that if it is required or if advised by counsel to disclose Confidential Information, it will furnish only that portion of the Confidential Information that is legally required or is advised by counsel to be furnished and will exercise all reasonable efforts to obtain reliable assurances that confidential treatment will be accorded such Confidential Information. Each party acknowledges that the act of such disclosure will not operate to render Confidential Information non-confidential.
5. The receiving party will promptly return to the disclosing party, or, if so, directed by the disclosing party in writing, destroy all tangible items containing or consisting of the disclosing party's Confidential Information and all copies thereof upon the disclosing party's request.
6. Each party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to any of the parties, by license or otherwise, to any of the Confidential Information disclosed by the disclosing party except as specified in this Agreement. Nothing in this Agreement shall be deemed to grant to either party a license under the other party's copyrights, patents, trade secrets, trademarks or other intellectual property rights.
7. Nothing in this Agreement, any discussions undertaken, nor any disclosures made pursuant to this Agreement shall be deemed a commitment to disclose any information to the other party or to engage in any business relationship, contract or future dealing with the other party. This Agreement does not create a joint venture, partnership or other business relationship, nor shall it bind the parties to create any such relationship or create other legal obligation beyond what is contained herein. The receipt of Confidential Information pursuant to this Agreement will not prevent or in any way limit either party from: (i) developing, making or marketing products or services that are or may be competitive with the products or services of any of the other parties; or (ii) providing products or services to others who compete with the other party.
8. Each party understands and acknowledges that neither party makes any representation or warranty, express or implied, as to the accuracy or completeness of Confidential Information disclosed hereunder. The disclosing party shall have no liability or responsibility for errors or omissions in, or any decisions made by the receiving party in reliance on, any Confidential Information disclosed under this Agreement.
9. Each party acknowledges that (a) all Confidential Information disclosed by any of the parties is owned solely by the disclosing party, (b) such Confidential Information is valuable to the disclosing party, and (c) the unauthorized disclosure or use of such Confidential Information might cause irreparable harm and significant injury to the disclosing party, for which monetary damages alone might not be an adequate remedy. Accordingly, each party agrees that in the event of breach or threatened breach of this Agreement, the disclosing party shall be entitled to seek specific performance and injunctive or other equitable relief without the necessity of posting a bond. Any such relief shall be in addition to, and not in lieu of any other remedies available to the disclosing party, including but not limited to monetary damages.
10. Except upon mutual written agreement, the existence and terms of this Agreement, the discussions that gave rise to this Agreement, the fact that there have been, or will be, discussions or negotiations contemplated by this Agreement, and the existence and nature of any business relationship between the parties, shall be treated by each party as the Confidential Information of the other party in accordance with the terms of this Agreement.
11. This Agreement commences on the Effective Date and shall continue for a term of two (2) years. Either party may terminate this Agreement for any reason on thirty (30) days' prior written notice. The recipient's obligations regarding Confidential Information will survive the expiration or termination of this Agreement.
12. No waiver, modification or amendment of any provisions of this Agreement shall be valid unless made in writing, signed by both parties. This Agreement is the complete and exclusive statement regarding the subject matter of this Agreement and supersedes all prior and contemporaneous agreement, understandings and communications, oral or written, between the parties regarding the subject matter of this Agreement.
13. This Agreement has been made under and shall be governed by and construed in accordance with the laws of the State of New York. The state and federal courts in New York shall have exclusive jurisdiction over any disputes that arise under this Agreement.
14. None of the parties shall assign, including by operation of law, any of its rights or obligations hereunder, except to an affiliate without the prior written consent of the other parties, which consent will not be unreasonably withheld. All obligations contained in this Agreement shall be binding upon the parties respective successors, assigns and designees.
15. No failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
16. If any provision of this Agreement is found to be unenforceable, the remainder shall be enforced as fully as possible and the unenforceable provision shall be deemed modified to the extent required to permit its enforcement in a manner most closely representing the intention of the parties as expressed herein. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Any signed copy of this Agreement copied or reproduced and transmitted via photocopy, facsimile or other process that accurate) transmits the original document shall be considered an original document.
IN WITNESS THEREOF, the parties hereto have executed this Agreement by their duty and authorized officers or representatives.
Endless Surf | VP of Business Development