Now Therefore, in consideration of the mutual agreements contained herein, the parties agree as follows:
Non-disclosure. Each party will maintain the secrecy of the Confidential Information (as defined below) furnished to it by the other party to prevent the unauthorized use, dissemination, or publication of the Confidential Information.
Related Parties. Each party agrees not to disclose or permit the disclosure of the Confidential Information to any person, except to its corporate parents, subsidiaries, affiliates, officers, directors, employees, consultants, attorneys or accountants (collectively, "Recipient Related Parties") but only on a need-to-know basis where such Recipient Related Parties shall agree in writing to maintain the confidentiality of the Confidential Information as set forth in this Agreement. Each receiving party will be responsible for any breach of confidentiality or any misuse of the Confidential Information by any Recipient Related Parties or any other party to whom the recipient discloses the Confidential Information.
Use. Each party agrees not to use the Confidential Information for its own benefit, or for the benefit of a third party, and will not permit such use, except with the prior, express written consent of the disclosing party.
Definition. "Confidential Information" means any trade secrets, knowledge, data or other proprietary or confidential information relating to products, processes, know-how, designs, developmental or experimental work, computer programs and associated source code, scripts, art work, databases, other original works or authorship, customers, business plans, marketing plans and strategies, financial information or other subject matter pertaining to any business of either party or any of either party's clients, affiliates (as defined by the Securities and Exchange Act of 1934), partners, consultants or licensees, whether communicated in writing or orally, communicated before, on or after the date hereof, marked as "confidential" or "proprietary" or "secret" at the time of disclosure, or unmarked (including orally disclosed information), but identified as confidential at the time of disclosure. The Contractor acknowledges that during the engagement [he, she, or they] will have access to and become acquainted with various trade secrets, inventions, innovations, processes, information, records, and specifications owned or licensed by the Company and/or used by the Company in connection with the operation of its business including, without limitation, the Company’s business and product processes, methods, customer lists, accounts, and procedures. The Contractor agrees that [he, she, or they] will not disclose any of the aforesaid, directly or indirectly, or use any of them in any manner, either during the term of this Agreement or at any time thereafter, except as required in the course of this engagement with the Company. All files, records, documents, blueprints, specifications, information, letters, notes, media lists, original artwork/creative, notebooks, and similar items relating to the business of the Company, whether prepared by the Contractor or otherwise coming into [his, hers, or their] possession, shall remain the exclusive property of the Company. The Contractor shall not retain any copies of the foregoing without the Company’s prior written permission. Upon the expiration or earlier termination of this Agreement, or whenever requested by the Company, the Contractor shall immediately deliver to the Company all such files, records, documents, specifications, information, and other items in [his, hers, or their] possession or under [his, hers, or their] control. The Contractor further agrees that [he, she, or they] will not disclose [his, hers, or their] retention as an independent contractor or the terms of this Agreement to any person without the prior written consent of the Company and shall at all times preserve the confidential nature of [his, hers, or their] relationship to the Company and of the services hereunder.
Exceptions. Notwithstanding the provisions of Section 4 of this Agreement, Confidential Information does not include information that (a) is generally known or available by publication, commercial use or otherwise through no fault of the receiving party, (b) is known by the receiving party at the time of disclosure and is not subject to restriction, (c) is lawfully obtained from a third party who has the right to make such disclosure, or (d) is released for publication by the disclosing party in writing. If the receiving party becomes subject to legal proceedings that require the disclosure of the Confidential Information, then, prior to disclosing such Confidential Information, the receiving party shall promptly notify the disclosing party and, upon the disclosing party’s request, shall cooperate with the disclosing party in contesting such request.
Copyright. To the extent any inventions, technologies, reports, memoranda, studies, writings, articles, plans, designs, specifications, exhibits, software code, or other materials prepared by the Contractor in the performance of services under this Agreement include material subject to copyright protection, such materials have been specially commissioned by the Company and they shall be deemed “work for hire” as such term is defined under U.S. copyright law. To the extent any such materials do not qualify as “work for hire” under applicable law, and to the extent they include material subject to copyright, patent, trade secret, or other proprietary rights protection, the Contractor hereby irrevocably and exclusively assigns to the Company and its successors and assigns all right, title, and interest in and to all such materials. To the extent any of the Contractor rights in the same, including without limitation any moral rights, are not subject to assignment hereunder, the Contractor hereby irrevocably and unconditionally waives all enforcement of such rights. The Contractor shall execute and deliver such instruments and take such other actions as may be required to carry out and confirm the assignments contemplated by this paragraph and the remainder of this Agreement. All documents, magnetically or optically encoded media, and other tangible materials created by the Contractor as part of its services under this Agreement shall be owned by the Company.
Reliance. Each party understands and agrees that the other is providing Confidential Information in reliance on the reciprocal agreements contained in this Agreement.
Return and Destruction. At any time, upon request by a disclosing party, a receiving party will within five (5) business days of receipt of notice return all Confidential Information furnished to the receiving party, and any copies or extracts thereof, and destroy any notes or analyses which are derived from or contain any Confidential Information.
Expiration. Each party's duty to protect the other's Confidential Information expires three (3) years after its return or destruction, in the case of Confidential Information embodied in tangible form, or three (3) years after its receipt or development (whichever is later), in the case of any other Confidential Information.
Independent Development. Each party understands that a receiving party may currently or in the future be independently developing information internally, or receiving information from other parties, that may be similar to the disclosing party’s information. Accordingly, nothing in this Agreement will be construed as a representation or inference that a receiving party will not develop products or services, or have products or services developed for it, that, without violation of this Agreement, compete with the products, services, or systems contemplated by the disclosing party’s Confidential Information.
No Representations or Warranties. Neither party makes any representation or warranty as to the accuracy or completeness of the information furnished by it in the Confidential Information and shall have no liability resulting from the use of the Confidential Information by a receiving party.
Nature of Relationship. Each party acknowledges that this Agreement shall not create a joint venture, partnership or other formal business relationship or entity of any kind or any obligation to form any such relationship. Each party will act as an independent contractor and not as an agent of the other party for any purpose, and neither will have the authority to bind the other.
Insider Trading. Each party shall not, and shall advise the Recipient Related Parties not to, buy or sell securities of the other party using material, non-public information.
Notices. All notices under this Agreement shall be in writing, and shall be deemed given when personally delivered, when sent by confirmed fax, when sent by confirmed e-mail, or one business day after being sent by reputable overnight courier to the address of the party to be notified as set forth on the signature page hereto, or such other address as such party last provided to the other by written notice.
Miscellaneous. This Agreement shall be binding on all successors and assigns. 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. This Agreement supersedes all proposals, oral or written, any letters of intent, all negotiations, conversations, or discussions between or among parties relating to the subject matter of this Agreement and all past dealing or industry custom. No changes, modifications, or waivers are to be made to this Agreement unless evidenced in writing and signed for and on behalf of both parties. 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 this 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 Delaware, without regard to conflicts of law provisions thereof. Each party acknowledges that any breach of the provisions of this Agreement may cause the other party immediate and irreparable harm for which there are no adequate remedies at law and will entitle such party to seek immediate injunctive relief, in addition to any other remedies which may be available. Any litigation pertaining to the interpretation or enforcement of this Agreement shall be filed in and heard by the state or Federal courts located in Delaware, and the parties hereby submit to the jurisdiction of and waive any venue objections against such courts. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. Headings herein are for convenience of reference only and shall in no way affect interpretation of the Agreement. Unless the context clearly requires otherwise, (a) the plural and singular members shall each be deemed to include the other; (b) the masculine, feminine, and neuter genders shall each be deemed to include the others; (c) “shall,” “will,” or “agrees” are mandatory, and “may” is permissive; (d) “or” is not exclusive; (e) “includes” and “including” are not limiting; and (f) “days” means calendar days unless specifically provided otherwise. No provision of this Agreement shall inure to the benefit of any third parties so as to constitute any such person a third-party beneficiary of this Agreement. This Agreement shall be construed without regard to any presumption or rule requiring construction against the drafting party. Each of the individuals executing this Agreement on behalf of a party individually represents and warrants that he or she has been authorized to do so and has the power to bind the party for whom he or she is signing. The parties hereby agree to execute such other documents and perform such other acts as may be necessary or desirable to carry out the purposes of this Agreement. This Agreement may be executed in counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument. Signatures executing this Agreement may be delivered by facsimile transmission or electronic mail.
In Witness Whereof, the parties have caused this Agreement to be duly executed by their respective officers as of the date first written above.
