1. “Confidential Information” under this Agreement means any non-public, confidential, proprietary, and/or secret information that is owned, held, used or developed by DISCLOSER, including: trade secrets; ideas, business concepts, discoveries or inventions; specifications, patterns, or techniques; formulas, computations, or software and computer programs; devices, processes, or operation methods; products or equipment, or new product developments, plans or improvements; technical information, insights, and know-how; customer information or lists; financial information or statements; sales or marketing information, plans, projections, or strategies; personnel information or new personnel acquisition plans; pricing policies; and business relationships and business acquisition plans. Confidential Information includes both tangible information and information in oral, visual, or conceptual form. DISCLOSER does not make any representation as to the accuracy or completeness of the Confidential Information. Confidential Information shall not include information that is or becomes known to the public without violation of the terms of this Agreement, or is generally used by other persons or entities engaged in the same business as RECIPIENT. For information that, given its nature or the circumstances surrounding its disclosure, reasonably should or could be considered confidential, proprietary, or secret, any failure by DISCLOSER to mark or otherwise designate it as "confidential" or “proprietary” or "secret" shall not deny its status as Confidential Information.
2. Ownership of Confidential Information. DISCLOSER hereby represents to RECIPIENT that DISCLOSER owns or otherwise has legal rights to the Confidential Information. In no way does this Agreement provide RECIPIENT any ownership rights or other rights of claim (including intellectual property rights) to the Confidential Information or its derivatives. Nothing herein shall be construed as giving RECIPIENT any license to, or other rights with respect to, any patent heretofore or hereafter issued to DISCLOSER. This Agreement does not obligate DISCLOSER either to disclose any Confidential Information to RECIPIENT, or to enter into any subsequent transaction with RECIPIENT.
3. Purpose and Use. RECIPIENT agrees to use the Confidential Information only for consideration and evaluation, in anticipation and/or pursuit of a potential mutually beneficial business relationship between the parties (the “Purpose”). RECIPIENT agrees to use the Confidential Information only in furtherance of the Purpose, and in accordance with the terms and conditions of this Agreement.
4. RECIPIENT’S OBLIGATIONS. RECIPIENT agrees to treat all Confidential Information as strictly confidential, and agrees not to disclose the Confidential Information to any third party for any reason whatsoever. RECIPIENT agrees not to use the Confidential Information in any way for commercial purposes outside of a business relationship that has been or may be established between the parties to this Agreement. RECIPIENT agrees not to attempt to analyze, disassemble or duplicate any tangible Confidential Information received from DISCLOSER. These obligations are subject to the following two exceptions: Legal Process . RECIPIENT shall disclose Confidential Information to the extent, if any, required by law or legal process; but if so required then RECIPIENT must give DISCLOSER prompt written notice in order to permit DISCLOSER to seek a protective order.
Furthermore, RECIPIENT agrees to take the appropriate security steps (e.g., password access) necessary to protect the Confidential Information in its possession from both unauthorized use and unauthorized disclosure.
5. Return or Erasure of Confidential Information. Upon demand by DISCLOSER, RECIPIENT agrees to:
(i) promptly return to DISCLOSER all Confidential Information that either had been provided in tangible or written form to RECIPIENT, or otherwise had been made tangible or written by RECIPIENT; and/or (ii) permanently erase any and all Confidential Information that RECIPIENT had stored in electronic media or format, including backup files and e-mails. Upon completion of return and/or erasure, RECIPIENT shall promptly provide to DISCLOSER written assurance that all known instances of items that are, contain, or reflect Confidential Information known to exist in tangible, written, or electronic format in the possession of RECIPIENT or RECIPIENT’S personnel have been eliminated.
6. Remedies. RECIPIENT understands and agrees that, in the event of RECIPIENT'S breach or threatened breach of this Agreement, DISCLOSER may: (i) seek temporary and/or permanent injunctive relief against RECIPIENT to prevent the unauthorized use or disclosure of Confidential Information; (ii) seek direct, consequential, indirect, or punitive damages, and that such damage calculations may include lost potential profits or cost savings; and (iii) seek all other available legal and equitable remedies. The parties agree that all legal and equitable rights, remedies and damages available to DISCLOSER shall be considered cumulative and the use or choice of a particular remedy, damages or relief shall not preclude DISCLOSER'S further exercise of other rights, remedies and damages. DISCLOSER will have no liability to RECIPIENT resulting from any use of the Confidential Information by RECIPIENT.
7. Contract Execution. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same document. This agreement is considered executed by any party upon manual signature of an authorized representative of that party on any counterpart, including on a photocopy or facsimile of a counterpart. Delivery by facsimile of an executed counterpart by any party to another shall have the same force and effect as a delivery in person of that document.
8. Term. This agreement shall be effective and binding upon all parties hereto as of the latest date when all parties have first executed any counterpart of this agreement (the “Effective Date”). The Term of this Agreement begins on the Effective Date and continues for a period of five (5) years.
9. Miscellaneous. This Agreement may be modified only if such change is mutually agreed upon in a writing signed by the parties. This Agreement expresses the sole and entire Agreement between the parties in this matter and supersedes all prior discussions, representations and understandings in this matter. If any court determines that any provision of this agreement is invalid or unenforceable, any invalidity or unenforceability will affect only that provision and will not make any other provision of this agreement invalid or unenforceable.