Terms & Conditions
The Parties acknowledge and agree that the following Terms & Conditions of Confidentiality shall apply in full to any and all business activities relating to the data and processes disclosed during the term of data exchange and discussion related thereto.
WHEREAS, the Parties acknowledge that, as an inducement for the disclosure of such confidential and proprietary information as hereunder contemplated, the Parties have agreed to maintain the confidentiality and protection of the information being disclosed or exchanged;
NOWTHEREFORE, in consideration of the foregoing and for the mutual promises and covenants herein contained, and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Confidential Information.
"Confidential Information" means all information and any idea in whatever form, tangible or intangible, whether disclosed to or learned by the Receiving Party, pertaining in any manner to the business of the Disclosing Party or its consultants or business associates, whether in written, oral, encoded, graphic, magnetic, electronic or in any other tangible or intangible form, and whether or not labeled as confidential by the Disclosing Party. "Confidential Information" includes, without limitation, the following:
a. information about costs, profits, markets and sales;
b. plans for future development and new business concepts;
c. all documents, including, without limitation, any contract entered into by and between the Parties, or any draft thereof; any Letter of Intent, Memorandum of Understanding or other contractual offering; books, papers, drawings, models, sketches, and other data of any kind and description, including electronic data recorded or retrieved by any means, that have been or will be given to the Receiving Party by the Disclosing Party, as well as written or verbal instructions or comments;
d. all introductions for Buyers, Suppliers, testing laboratories, funding sources, venture partners, individuals, banks, financial institutions, or anyone introduced directly or indirectly by the Disclosing Party to the Receiving Party;
e. The names, telephone numbers, email addresses, and other contact information of clients, borrowers, investors, lenders, agents, brokers, manufacturers, individuals and/or trusts, or buyers and sellers (hereinafter referred to as a “Contact” or the “Contacts”). The Parties agree that the identities of the Contacts shall be recognized by the other Parties as the exclusive and valuable Contacts of the introducing Party and shall remain so for five (5) years from the date on which negotiations between the Contacts and the Receiving Party break down, or from the termination date of any and all contracts entered into between a Contact and a Receiving Party subject to the terms of this Agreement.
2. Non-Disclosure Obligations of the Recipient.
a. Recipient agrees to hold all Confidential Information in strict confidence and shall not, without the prior written approval of the Disclosing Party take any of the following actions:
i. disclose any Confidential Information to any third party;
ii. use Confidential Information for any purposes whatsoever, other than that contemplated by the Transaction;
iii. Without limiting the generality of the foregoing, Recipient shall be permitted to disclose Confidential Information, only under the following circumstances:
1. To its officers, partners, members, employees, agents, representatives or consultants (which Consultants shall have first agreed inwriting to treat the Confidential Information in a manner consistent with Recipient’s confidentiality obligations hereunder and acknowledge and agree to the prohibition against circumvention established herein), who have a need to know such Confidential Information to evaluate the Transaction(s) or a potential business transaction with or involving or disclosed by the Disclosing Party, and who are informed of and agree to the terms hereof, provided that Recipient will be liable for breach by any such person or entity; and
2. As required to be disclosed in any civil or criminal legal proceeding or any regulatory proceeding or any similar process, provided that Recipient first notifies Discloser of such proceeding or process, and provides Discloser with reasonable assistance in challenging such request, if so requested by the Discloser;
3. Recipient shall not make any copies of the Confidential Information except as necessary for its employees or consultants with a need to know. Any copies made shall contain, and recipient shall not remove, existing copyright, and/or other proprietary marks appearing on original documents as provided by Discloser.
4. Recipient shall use its best efforts to assist Discloser in identifying and preventing any unauthorized use or disclosure of any Confidential Information.
a. Without limiting the foregoing, Recipient shall immediately advise Discloser in the event that it learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Agreement, and shall cooperate in seeking injunctive relief against any such person.
3. Exceptions to Obligation of Confidentiality.
The obligation of confidentiality shall not apply to Confidential Information to the extent that:
a. it is in the public domain at the time of the Disclosing Party's transmittal thereof to the Receiving Party; or,
b. it entered the public domain through no fault of the Receiving Party subsequent to the time of the Disclosing Party's communication thereof to the Receiving Party other than as a result of Recipient’s breach of the Agreement; or,
c. it was in the Receiving Party's possession, free of any obligation of confidence, at the time of the Disclosing Party's communication thereof to the Receiving Party; or
d. such information was developed by employees or agents of the Receiving Party, independently of and without reference to the information and the Receiving Party has evidence of such independent development.
e. The exceptions above do not exempt the Receiving Party from owing compensation to the Disclosing Party, as specified elsewhere herein or in other agreements with the Disclosing Party, with regard to the present or offered transaction as contemplated by the Parties to this Agreement.