By and between (APPLICANT) of and APPLE ROCK ADVERTISING AND PROMOTION, INC, with its offices at 7602 Business Park Drive, Greensboro, NC, 27409, with reference to the following recitals and agreements:
A. (APPLICANT) and APPLE ROCK ADVERTISING AND PROMOTION, INC desire to exchange and examine certain design, engineering, and technical data and information, know-how, patentable and unpatentable inventions, and trade secrets and confidential information (the “Confidential Information”), relating to the respective businesses of each, in order to further a potential of existing business relationship between (APPLICANT) and APPLE ROCK ADVERTISING AND PROMOTION, INC. The party disclosing Confidential Information and the party receiving Confidential Information shall hereinafter be referred to as the “Disclosing Party” and “Receiving Party”, respectively, or collectively as the “Parties".
B. (APPLICANT) and APPLE ROCK ADVERTISING AND PROMOTION, INC are willing to disclose to each other the Confidential Information on the terms and conditions set forth in this Agreement. THEREFORE, in consideration of (APPLICANT) and APPLE ROCK ADVERTISING AND PROMOTION, INC disclosing the Confidential Information to each other, (APPLICANT) and APPLE ROCK ADVERTISING AND PROMOTION, INC agree as follows:
1. The Parties acknowledge that the Confidential Information is a valuable proprietary asset of the Disclosing Party.
2. The Parties agree that disclosure of any of the Confidential Information written, orally, visually, electronically, machine-readable, or in any other medium of any type whatsoever, is made in strictest confidence and that:
a. The Receiving Party agrees to use at least the same degree of care to avoid unauthorized disclosure, use, or publication of the ConfidentialInformation as it employs with respect to its own ConfidentialInformation.
b. To be protected by this Agreement, Confidential Information disclosed in written or graphic form must be labeled “Confidential,” or “Confidential Information,” or “Proprietary” with a similar legend. Orally or visually disclosed Confidential Information must be, at the time of disclosure, identified as confidential and thereafter confirmed in writing, conspicuously labeled as described above, within thirty (30) days after disclosure.
c. The Receiving Party may disclose the Confidential Information only to its own employees to whom disclosure is reasonably necessary to further the business relationship between the parties. The Receiving Party agrees that it will take appropriate action (by instruction, agreement, or otherwise) with such employees in order to satisfy the Receiving Party’s obligation under this Agreement with respect to use, copying, protection, andsecurity of the Confidential Information.
d. The Receiving Party shall not disclose the Confidential Information to any entity outside of the Receiving Party without first obtaining, from each such entity a confidentiality agreement approved by the Disclosing Party.
e. The Receiving Party shall not print or copy, in whole or in part, any documents or magnetic media containing any of the Confidential Information without the prior written consent of the Disclosing Party.
f. The Receiving Party agrees to use the Confidential Information only in furtherance of its business relationship with the Disclosing Party.
g. The Confidential Information will not be used to provide an interference with any patent application which the Disclosing Party has filed with respect to the Confidential Information, and will not be used to amend any claim in any pending patent application to expand the claim to read on, cover, or dominate any invention (whether or not patentable) disclosed in the Confidential Information. Further, the exchange of Confidential Information pursuant to this Agreement shall not constitute or beconstrued as a grant of either an express or implied license or other right with respect to the Disclosing Party’s patent or other intellectual property right.
h. Notwithstanding anything else in this agreement, the Receiving Party acknowledges that the Disclosing Party’s designs, drawings, and specifications are proprietary to Apple Rock Advertising and Promotion, Inc, and constitute Apple Rock Advertising and Promotions, Inc confidential information and trade secret information. Accordingly, the Receiving Party shall not use any confidential information to analyze designs, drawings, specifications, or parts provided hereunder to determine their composition or method of manufacture, except upon express written consent by Apple Rock Advertising and Promotion, Inc.
i. The Receiving Party will not, and will not assist any third party to, use any confidential information to reverse engineer, reconstruct, or decompile any sample or products supplied by Apple Rock Advertising and Promotion, Inc, or any product that the Receiving Party knows or reasonably believes is an Apple Rock Advertising and Promotion, Inc product. If theReceiving Party violates this paragraph, then the Receiving Party assigns all rights, title, and interest in such part to Apple Rock Advertising and Promotion, Inc. The Receiving Party shall not otherwise use or dispose of the Confidential Information except with the prior written consent of the Disclosing Party. The Disclosing Party’s consent may be withheld in its sole and absolute discretion, and may be granted upon such terms as the Disclosing Party may establish from time to time.
j. The Confidential Information shall, at all times, remain the property of theDisclosing Party.
k. Upon the termination of the business relationship between the parties, or at the Disclosing Party’s request, the Receiving Party shall return to the Disclosing Party all materials (including copies) comprising or including the Confidential Information and given to or in the possession or controlof the Receiving Party.
3. The obligation to protect Confidential Information, and the liability for unauthorized disclosure or use of Confidential Information, shall not apply with respect to such information which:
a. is lawfully published or is otherwise lawfully in the public domain at the time of its disclosure, or
b. is lawfully known to the Receiving Party prior to disclosure by theDisclosing Party, or
c. is disclosed with the prior written approval of the Disclosing Party, or
d. is independently developed by the Receiving Party without use of suchConfidential Information, or
e. is lawfully known or available to the Receiving Party for use without restriction from a third party, or
f. becomes part of the public domain without improper means, or breach of this Agreement by the Receiving Party, or
g. is disclosed as required by judicial action after all available legal remedies to maintain the Confidential Information in secret have been exhausted; provided that advance notice of such judicial action was timely given to the Disclosing Party.
4. (a) The Parties agree that the validity, construction, and performance of this Agreement are governed by the laws of North Carolina, and that suit may be brought only in North Carolina to enforce the terms of this Agreement.
(b) If any arbitration, litigation, or other legal proceeding occurs between the Parties relating to this Agreement, the prevailing party shall be entitled to recover (in addition to any other relief award or granted) its reasonable costs and expenses, including attorney’s fees incurred in the proceeding.
(c) This Agreement is binding upon and ensures to the benefit of the successorsand assigns or transfers the rights or obligations granted to them under thisAgreement.No waiver, amendment, or modification of any provision of this Agreement shall be effective unless in writing and signed by authorized representatives of both Parties.No failure or delay by the Parties in exercising any rights, power, or remedy under this Agreement shall operate as a waiver of the right, power, or remedy.
5. No waiver, amendment, or modification of any provision of this Agreement shall be effective unless in writing and signed by authorized representatives of both Parties.
6. No failure or delay by the Parties in exercising any rights, power, or remedy under this Agreement shall operate as a waiver of the right, power, or remedy. No waiver of any term, condition, or default of this Agreement by the Parties shall be construed as a waiver of any other term, condition, or default.
7. Term and Termination:
This Agreement shall commence as the date first above written and shall apply to all disclosures of Confidential Information between the parties for twenty-four (24) months thereafter, at which time this Agreement shall expire, unless earlier terminated by either Party upon providing to the other ten (10) days prior written notice. The obligations of the Receiving Party regarding receipt of Confidential Information contained in this Agreement shall survive the expiration or termination of this agreement for five (5) years thereafter.