CONFIDENTIALITY AND NON-USE AGREEMENT
THIS AGREEMENT is entered into this day of , ___ , by and between XXXXXX, having a place of business at ________________, on behalf of itself and its wholly-owned United States subsidiary, XXXXXX., (hereinafter jointly referred to as the "Company") and YYYY , having a place of business at _______(hereinafter referred to as " YYYY "). The Company and YYYY are hereinafter referred to from time to time as a "Party" or the "Parties."
WHEREAS, the Partieswish to evaluate a business arrangement with respect to ____(the "Purpose?); and
WHEREAS, in connection with the Purpose, the Parties may disclose to each other certain commercially valuable, proprietary and confidential information and trade secrets with respect to each Party?s business and products.
NOW, THEREFORE, in consideration of each Party?s undertakings hereunder, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, the Parties agree as follows:
1. Definitions. For the purpose of this Agreement, "Confidential Information? shall mean any business or technical information, tangible or intangible (including, without limitation, trade secrets; inventions and ideas; technical data and specifications; know-how; formulae; processes; designs, methods; samples, specimens, or physical materials; testing methods; business or financial information; research and development results; product and marketing plans; and customer and supplier information) that is furnished by one Party or any of its Affiliates (defined below) to the other Party, regardless of whether such information is specifically designated as confidential and regardless of whether such information is in written, oral, electronic, physical, or other form. This Agreement shall include Confidential Information acquired by a Party during any and all tours of the other Party's facilities. Not by way of limitation of the foregoing, it is acknowledged and agreed that samples, models, both digital and physical, and prototypes of the Company's Products, and any parts thereof, together with any process diagrams related thereto (collectively, the "Proprietary Product or Materials"), embody, and are included within the definition of, the Company's Confidential Information and, further, constitute the Company's trade secrets under applicable law.
"Affiliate,? with respect to a Party, shall mean any company which, directly or indirectly, controls or is controlled by or is under common control with such Party by means of ownership of more than fifty percent (50%) of the voting stock or similar interest in said company.
2. Disclosure. Each Party disclosing information (a "Disclosing Party?) will make Confidential Information available to the other Party (a "Receiving Party?) to the extent that the Disclosing Party, at its sole discretion, reasonably considers appropriate for the Purpose. Each Disclosing Party represents and warrants to the other Party that it has the right to disclose any Confidential Information disseminated by it.
3. Obligation of Confidentiality and Non-Use.
(a) The Receiving Party agrees to use the Confidential Information only for the Purpose and for such other purpose which the Disclosing Party authorizes in writing and not for any other purpose whatsoever. The Receiving Party shall not use the Confidential Information in any manner which is detrimental to the Disclosing Party. The Receiving Party also agrees that it shall limit dissemination of the Confidential Information only to those of its employees who have a need to know in relation to the Purpose. The Receiving Party shall inform all such employees of the confidential nature of the Confidential Information. The Receiving Party further agrees that it shall use the same degree of care to protect the Confidential Information as the Receiving Party uses to protect its own proprietary information, which in any event shall be no less than a reasonable degree of care, and to prevent communication of any Confidential Information, or any portion thereof, to any third party. The Receiving Party also agrees that it shall not disclose or otherwise make available any Confidential Information to any of its Affiliates or other related entities unless it first provides written notice to the Disclosing Party describing the specific purpose for the disclosure and to whom the disclosure is to be made, and the Receiving Party receives the Disclosing Party?s written consent prior to any such disclosure. The Receiving Party shall take adequate steps to ensure that any such Affiliate or related entity to which the Receiving Party discloses any Confidential Information is bound to protect such Confidential Information in accordance with the terms of this Agreement prior to any such disclosure. The Receiving Party shall maintain the Confidential Information of the Disclosing Party and otherwise comply with the provisions of this Section 3 for a period of ______(___) Years from disclosure; except as to trade secrets, which must be maintained in confidence perpetually.
(b) In the event of any unauthorized access or disclosure of the Company's Confidential Information, the Receiving Party shall provide the Company with immediate written notice thereof, providing in reasonable detail the circumstances and persons involved.
4. Permitted Exceptions. The obligations of the Receiving Party, contained in Section 3 above, shall not apply to any Confidential Information which:
(a) the Receiving Party can show was already lawfully known to the Receiving Party prior to its receipt of the Confidential Information; or
(b) the Receiving Party can show was independently developed by the Receiving Party without use of, or reliance upon, any of the Confidential Information; or
(c) is publicly available or becomes publicly available without a breach of this Agreement by the Receiving Party; or
(d) is rightfully received by the Receiving Party from a third party who is not under a duty of confidentiality to the Disclosing Party; or
(e) is disclosed by the Receiving Party with the Disclosing Party?s prior written approval; or
(f) is disclosed pursuant to any judicial or governmental requirement or order; provided that the Receiving Party takes all reasonable steps to give the Disclosing Party sufficient prior notice in order to seek a protective order or contest such requirement or order.
5. Termination. This Agreement shall commence as of the Effective Date and shall remain in effect until it is terminated by either Party upon ____ (__) days prior written notice to the other Party hereto. The Receiving Party?s obligations under this Agreement, with respect to any Confidential Information received by the Receiving Party during the term of this Agreement, shall survive any termination hereof.
6. Return of Information. Upon request from the Disclosing Party or upon any termination of this Agreement, whichever shall first occur, and at the direction of the Disclosing Party, the Receiving Party agrees to either return to the Disclosing Party or destroy (and certify such destruction in writing to the Disclosing Party) all Confidential Information, and all copies thereof as well as all notes, documents, summaries and other recordings of the Confidential Information then in its possession, and to permanently delete all email and electronic files containing any Confidential Information from its systems.
7. Confidential Relationship. The Receiving Party acknowledges that the Confidential Information consists of confidential, trade secrets of the Disclosing Party. The Receiving Party understands that this Agreement establishes a confidential relationship between the Receiving Party and the Disclosing Party and that the Receiving Party has a duty to honor this confidential relationship by carrying out its obligations under this Agreement with respect to the Confidential Information. The Receiving Party further understands that the Disclosing Party relies upon the Receiving Party honoring such duty of confidence when the Disclosing Party entrusts the Receiving Party with access to the Confidential Information.
8. No Grant of License. This Agreement imposes no obligation on either Party to disclose any of its Confidential Information to the other Party hereto, or to make any use of Confidential Information which it receives from the other Party. No rights or obligations other than those expressly recited herein are to be implied from this Agreement. Nothing in this Agreement shall be construed to convey to the Receiving Party any right, title or interest in any Confidential Information, or any license to use, sell, distribute, exploit, copy or further develop the Confidential Information in any way. Furthermore, no license is hereby granted or implied to the Receiving Party under any patent, copyright or trademark, any application for any of the foregoing, or any trade name, trade secret or other intellectual property right in which the Disclosing Party has any right, title or interest. Nothing herein shall in any way affect the present or prospective rights of the Parties hereto under the patent, copyright or other intellectual property laws of any country.
9. Equitable Relief. The Receiving Party agrees that any breach of the Receiving Party?s obligations under this Agreement with respect to the Confidential Information may cause serious and irreparable damage to the Disclosing Party, the exact amount of which would be difficult to ascertain. Consequently, the Receiving Party agrees that in the event of such a breach or threatened breach, the Disclosing Party shall be entitled as a matter of right to seek immediate injunctive relief or specific performance, and that these remedies shall be in addition to, and not in lieu of, any other remedies which may be available to the Disclosing Party in law or in equity.
10. No Waiver. The failure of the Disclosing Party to enforce any of its rights under this Agreement or to take action against the Receiving Party in the event of any breach by the Receiving Party hereunder shall not be deemed a waiver by the Disclosing Party as to any subsequent enforcement of rights or subsequent actions in the event of a future breach.
11. No Agency; Binding Effect. This Agreement does not create any agency, partnership or joint venture relationship between the Parties hereto. This Agreement shall be binding upon and enforceable by the Parties hereto, including their respective successors and assigns. Neither Party shall assign or otherwise transfer this Agreement or any of its rights or obligations hereunder without the prior written consent of the other Party hereto, which consent shall not be unreasonably withheld.
12. Governing Law; Exclusive Jurisdiction. This Agreement shall be construed and governed in accordance with the laws of the __________________, without giving effect to any principles of conflicts of law. The Parties agree that any lawsuit filed by one Party against the other in connection with this Agreement shall be heard by the federal or state courts located in _____________, which shall have exclusive jurisdiction over any such lawsuits, and the Parties hereto agree to submit to the jurisdiction of those courts. Notwithstanding the foregoing, either Party may enforce this Agreement or any judgment in connection herewith in any jurisdiction where the other Party or its assets may be found.
13. Entire Agreement; Amendments. This Agreement constitutes the entire agreement between the Parties hereto and supersedes all prior agreements and understandings, either oral or written, with respect to the subject matter hereof. Any additions or modifications to this Agreement shall not be effective unless made in writing and signed by authorized representatives of both Parties hereto.
14. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which, taken together, constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives.
By: __________________________________ By: ______________________________
Name: _______________________________ Name: ____________________________
Title: _________________________________ Title: _____________________________
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