NOW. THEREFORE, the parties agree as follows:
"Confidential Information" means any information furnished or disclosed, in whatever form or medium, by The WakWay Foundation, (the "Discloser") to Company (the "Recipient") relating to the above-identified subject purposes of this para-graph, "prospective customer, vendor, investor, employee, sales representative, agent or consultant" shall mean any per-son or entity that has been introduced to the Recipient by the Discloser in connection with any prospectiveor con-summated business area,as well as information in whatever form relating to the business of the Discloser. Confidential Information will include, without limitation, any and all software programs, systems, algorithms, schematics, data, know-how, techniques, business information, marketing plans, pricing strategies, proposals, forecasts, trade secrets, consultant information and lists, and customer lists, as well as any and all documents. materials, procedures or other information disclosed to Recipient by the Discloser's customers, clients and/or suppliers. and any information created by a Recipi-ent based upon Confidential Information of the Discloser, all of which is deemed confidential and proprietary.
The Recipient will use the Confidential Information of the Discloser only for the purpose of internal evaluation of and collabora- tion on the proposed business relationship, and will make no use of the Confidential Information of the Discloser, in whole or in part, for any other purposes. The Recipient agrees to refrain from disclosing Confidential Information of the Discloser to third parties, unless the Discloser has given prior its written authorization. The Recipient further agrees to keep confidential all Confidential Information of the Discloser and to take all reasonable steps to pre- serve the confidential and proprietary nature of the Confidential Information If The Company profits or receives any prof- its or exchanges of money utilizing any part of the Confidential Information outside the scope of this relationship, those monies will be forfeited and paid to the Discloser.
Notwithstanding any other provisions of this Agreement, the Discloser acknowledges that Confidential Information will not in- clude any information that the Recipient can demonstrate: (a) was publicly available at the time of disclosure,or later became publicly available through no act or omission of the Recipient; (b) was rightfully in its possession at the time of disclosure; (c) was rightfully received by the Recipient from a third party without any obligation of confiden- tiality; or (d) was independently developed by the Recipient or for it and that was not obtained, in whole or inpart, from the Discloser or from Confidential Information of the Discloser.
For a period of two (2) years after the Effective Date, or such longer time as the parties may agree in writing the Recipient will not, directly or indirectly, enter into any discussions or negotiations with, solicit or induce or attempt to solicit or induce any current or prospective customer, vendor, investor, employee, sales representative, agent or consultant of the Discloser to terminate or adversely alter their employment, representation or other association with the Discloser, without the prior written consent of the Discloser. For the purpose of this paragraph, "prospective customer, vendor, investor, employee, sales representative, agent or consultant" shall mean any person or entity that has been intro- duced to the Recipient by the Discloser in connection with any prospective or consummated business between the parties.
In the event that a Recipient is requested or required by subpoena or other court order to disclose any Confidential Informa- tion of the Discloser, the Recipient will provide immediate notice of such request to the Discloser and will use rea- sonable efforts to resist disclosure, until an appropriate protective order may be sought, or a waiver of compliance with the provisions of this Agreement granted. If, in the absence of a protective order or the receipt of a waiver hereunder, the Recipient is nonetheless, in the written opinion of its counsel, legally required to disclose Confidential Information of the Discloser, then, in such event, the Recipient may disclose such information without liability hereunder, provided that the Discloser has been given a reasonable opportunity to review the text of such disclosure before it is made and that the disclosure is limited to only the Confidential Information specifically required to be disclosed.
The Discloser may elect at any time to terminate further access to its Confidential Information. Upon written request, the Recipient will return to the Discloser all Confidential Information in any form and promptly destroy any and all materi- al or information derived from the Confidential Information, including all copies of such and will forward to the Disclosera signed written verification of such.