In the course of discussions regarding a possible business relationship between our companies or in furtherance of an existing business relationship, our two companies may exchange or have access to proprietary business and technical information of the other. We both consider such information to be confidential and Proprietary Information and want to ensure that it be kept confidential and not disclosed to any third parties. This Agreement, when countersigned by you, will constitute a binding agreement between us to maintain the confidentiality of all proprietary information exchanged by our two companies.
The term 'Proprietary Information', whenever used in this Agreement, shall mean all information and data furnished by one party (the 'Disclosing Party') to the other (the 'Recipient') or its employees or agents, whether in oral, written, graphic or machine readable form, including but not limited to: (a) information concerning research and development activities; (b) trade secrets, processing techniques, testing and production procedures, patents and know-how; © software, firmware, databases, computer systems, technical data, discoveries, test data, applications and computer programs, and the elements of design relating thereto; (d) designs, drawings, graphics, photographs, flow charts, and formulae; (e) financial information, forms, contracts, business plans, company history, and any other business information that has not been made publicly available; (f) information about vendors, suppliers and contractors, and any information or arrangements pertaining to such vendors, suppliers and contractors, including any pricing and delivery schedules; (g) any information disclosed by any third-party that the party has agreed, or is otherwise obligated, to treat as confidential or proprietary; (h) all documentation and information respecting the parties' technology needs, plans, and opportunities; (i) all copies of Proprietary Information and any materials protected by copyright or trademarks; and (j) customer and prospective customer information. The above shall not apply to any information and data that the parties agree in writing is not proprietary or confidential.
Information made available by a party shall not be considered to be Proprietary Information if it: is in the public domain; was already known to the Recipient prior to receiving it from the Disclosing Party as demonstrated by the Recipient's written records; was disclosed to the Recipient by a third party under no obligation to maintain its confidentiality; was independently developed by or for the Recipient without reference to the Disclosing Party's Proprietary Information; or was disclosed pursuant to governmental or judicial requirement.
Notwithstanding anything to the contrary contained herein, Proprietary Information may be disclosed by a Recipient to the extent required by law, provided that the Recipient notifies the Disclosing Party prior to such disclosure so as to afford the Disclosing Party a reasonable opportunity to object or seek an appropriate protective order with respect to such disclosure.
In consideration for entering into or for continuing our business relationship and other valuable consideration which is hereby acknowledged, the parties agree and accept the following terms and conditions:
1. Each party agrees that it shall not at any time, either during or after the termination of any discussions or business relationship with the other party, communicate, disclose, use, copy or in any way, either directly or indirectly, make available to others any Proprietary Information of the other party without the prior written consent of the other party. However, a Recipient may disclose the same to its affiliated companies, including its parent company, if any (collectively, 'Affiliates'), for the limited purpose of assisting Recipient in satisfying any obligations it owes to the Disclosing Party. In the event of any such disclosure to its Affiliates, the Recipient shall be responsible for any prohibited disclosure or use of the Proprietary Information by its Affiliates. The Recipient shall hold all Proprietary Information in strict confidence and shall use reasonable means to protect and safeguard the Proprietary Information, which shall be at least the equivalent of action taken to protect the Recipient's own proprietary information.
2. Each party agrees to limit the use of, and access to, the Proprietary Information to its employees whose use or access is necessary to determine whether to enter into a business relationship with the other party or to affect the purposes of an existing business relationship between the parties. Each employee to whom disclosure is made shall be told in writing that such information is proprietary and confidential and must be kept confidential. Each party shall be responsible for any use or disclosure of Proprietary Information by its employees or agents. Recipient shall take all reasonable and necessary steps to guard against the unauthorized dissemination, use or disclosure of the Proprietary Information and to handle the Proprietary Information with the same degree of care used to protect its own Proprietary Information.
3. Proprietary Information divulged to a party shall be used only for the purpose of determining whether to enter into a business relationship with the other party or in furtherance of an existing business relationship between the parties.
4. The Recipient understands and acknowledges that the Proprietary Information is being provided 'As Is' and without representation or warranty, expressed or implied, as to the accuracy or completeness of the Proprietary Information.
5. Each party agrees to return all written documents containing Proprietary Information, including any copies, to the Disclosing Party upon the Disclosing Party's request or the termination of any discussions or business relationship between the parties, whichever is earlier. All Proprietary Information shall remain confidential even after the termination of any such discussions or business relationship, and the provisions of this Agreement shall survive the termination of such discussions or business relationship.
6. Neither Party shall, during this Agreement and for a period of one (1) year immediately following the termination of this Agreement, either directly or indirectly, recruit or employ, or solicit for employment by others, or otherwise encourage or facilitate the departure of any of the other Party's employees, officers or directors for the purpose of any participation or employment in any business or venture, without the written consent of the other Party.
7. Each party acknowledges that a Disclosing party will be irreparably harmed if obligations in this Agreement are not specifically enforced and that a Disclosing Party would not have an adequate remedy at law in the event of an actual or threatened breach by the Recipient of its obligations. Therefore, each Party hereby agrees that the other Party shall be entitled to specific performance of all obligations under this Agreement, as well as such further relief as may be granted by a court of competent jurisdiction, including temporary, preliminary and/or permanent injunctive relief against the threatened breach of this Agreement of the continuation of any breach, without the necessity of proving damage. Such relief shall be in addition to and not exclusive of any other relief to which either of the parties may be entitled. If any action at law or in equity is brought to enforce or interpret the provisions of this Agreement, the prevailing party in such action shall be entitled to reasonable attorney's fees.
8. This Agreement shall be governed by and construed in accordance with the laws of the State of New York in the United States, without giving effect to its conflict of laws principles or rules.
9. Each party will use its best efforts to assist a Disclosing Party in identifying and preventing any unauthorized use or disclosure of Proprietary Information, and shall advise the Disclosing Party immediately in the event it learns or has reason to believe anyone may or has made unauthorized use or disclosure of Proprietary Information.
10. Each party agrees that all Proprietary Information and any derivative works or improvements on or to the Proprietary Information is and shall be the sole property of the Disclosing Party and shall make no claims to the ownership of such Proprietary Information.
11. The parties hereto agree that this Agreement is for the purposes of protecting Proprietary Information only. It does not create a partnership, joint venture or any other business arrangement or rights, nor does it impose upon a party any obligation to disclose Proprietary Information to the other. No rights or licenses under any trademarks, inventions, copyrights, patents or other intellectual property are implied or granted under this Agreement. Any agreement between the parties to enter into or continue a business relationship will be set forth in one or more separate written instruments. The undersigned warrant that they have the requisite authority to bind the respective companies to this Agreement.
12. No delay, failure or waiver of either Party's exercise or partial exercise of any right or remedy under this Agreement shall operate to limit, waive or otherwise affect such right or remedy.
13. This Agreement may only be amended in writing signed by both Parties. Neither Party may assign its rights or delegate its duties or obligations under this Agreement without prior written consent of the other Party. This Agreement shall be binding upon and inure to the benefit of the undersigned Parties, and their heirs or successors-in-interest.
If you agree to the foregoing terms and conditions, please sign the enclosed copy of this Agreement in the space provided below and return the executed copy to the undersigned.
MB SOFTWARE & CONSULTING, INC.
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