In connection with a possible business relationship between the Parties, the Parties intend to disclose certain “Confidential Information” (as such term is hereinafter defined) to the other for the purpose of facilitating and/or evaluating a possible business relationship between or amongst the Parties as they may agree (the “Purpose”). Accordingly, as set forth herein, the Parties agree not to disclose such Confidential Information and shall only use such Confidential Information for the express Purpose set forth above.
- For purposes of this Agreement, “Confidential Information” shall mean all non-public information provided by one party (the “Disclosing Party”) to the other (the “Receiving Party”) including without limitation, information regarding its business practice, financing strategies, business contacts, business plans, operations, technology, business opportunities, vendors, suppliers, or other confidential sources of potential future business that is disclosed by one party to the other.
Confidential Information shall not include any information that (i) is already known to the Receiving Party at time of its disclosure; (ii) becomes available to the Receiving Party from a lawful source other than the Disclosing Party; (iii) is or becomes public knowledge, or is or comes into public domain, (except by the fault of the Receiving Party); (iv) is independently developed or re-created by the Receiving Party or discovered by the Receiving Party without use of the Confidential Information; (v) is or was disclosed to the Receiving Party at any time, whether prior to or after the time of its disclosure under this Agreement, by a third party having no fiduciary relationship with the Disclosing Party and having no obligation of confidentiality with respect to such Confidential Information, or, (vi) is lawfully required to be disclosed, provided that before making such disclosure, such Party shall immediately give the other Party written notice and cooperate in any actions to secure confidential handling of such information.
- The Receiving Party agrees not to use, utilize, or disclose any Confidential Information and shall only use Confidential Information for the express Purpose set forth above. In this regard, the Receiving Party hereby agrees that:
- It shall maintain all Confidential Information in strict confidence.
- It shall use all Confidential Information solely for the Purposes set forth in this Agreement; and
- It shall allow its directors, officers, employees, consultants, and advisors access to the Confidential Information only to the extent necessary to affect the Purposes set forth in this Agreement.
- Each Party further agrees that, with respect to any Confidential Information disclosed hereunder, it shall neither directly nor indirectly in association with or as a stockholder, director, officer, consultant, employee, partner, joint venture, member or otherwise of or through any person, firm, corporation, partnership, association or other entity, use, cause to be used, disclose, or cause to be disclosed any Confidential Information provided hereunder for any use not set forth herein, including without limitation, any use that is competitive with or otherwise disadvantageous to the Disclosing Party.
- The Receiving Party acknowledges that the Disclosing Party makes no representations and gives no warranties of any kind regarding the Confidential Information disclosed to Receiving Party and shall have no liability with respect to any such Confidential Information under this Agreement.
- This Agreement shall be effective as of the date hereof and shall continue thereafter and obligations set forth herein shall survive any termination of this Agreement and shall remain in effect for a period of THREE (3) years. Upon termination by either Party the Receiving Party shall return to the Disclosing Party all tangible manifestations of Confidential Information in its possession or control.
- The Receiving Party agrees that any breach of its obligations under this Agreement will cause irreparable harm to the Disclosing Party; therefore, the Disclosing Party shall have, in addition to any remedies available at law, the right to obtain equitable relief to enforce this Agreement. In the event of any litigation between the parties under this Agreement the parties agree the courts of the State of Delaware shall be the exclusive venue for disputes arising under this Agreement. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the remaining portions hereof shall remain in full force and effect.
- The Parties each acknowledge and agree that the Confidential Information is being delivered to the Receiving Party only for the Purposes of preliminary discussions regarding a future business arrangement between the Parties, and is in no way an offer or intention to enter into such business arrangement(s), which business arrangement(s) shall only be binding upon the execution and delivery of complete and final documents that may be mutually agreed upon by the Parties at a future date to effectuate the contemplated transactions hereunder.
- Each party appoints the signed person listed below as its coordinator to receive, on its behalf, all Confidential Information pursuant to this Agreement. Either party may change its coordinator by giving the other party written notice of the name and address of its newly appointed coordinator.
- Nothing contained in this Agreement shall be construed as granting to or conferring upon Recipient any rights, by license or otherwise, express, or implied, in Owner’s Confidential Information, other than the right to use the Confidential Information for the mutual Purpose of this Agreement.
- The Disclosing Party understands that Recipient Party may, currently or in the future, be developing information internally or receiving information from other Parties which may be similar to Disclosing Party’s Confidential Information. Accordingly, nothing in this Agreement shall be construed as a representation or inference that Recipient will not conduct business transactions, for itself or for others, which compete with products or systems contemplated by Disclosing Party’s Confidential Information, provided Recipient does not use Owner’s Proprietary Information in such business transactions.