1. In connection with services that may be rendered by Recipient (the "Purpose"), Disclosing Party may disclose Confidential Information (as defined below) to Recipient. Recipient shall use the Confidential Information solely for the Purpose of the Services, and shall not disclose Confidential Information other than to its affiliates and its or their employees, officers, directors, shareholders, partners, agents, independent contractors, service providers, sublicensees, subcontractors, attorneys, accountants and financial advisors (collectively, "Representatives") who need access to such information for the Purpose. Recipient shall protect Confidential Information from unauthorized use or disclosure using a reasonable degree of care. The Recipient shall, at all times, be fully liable for any breach of this Agreement by its Representatives. The Recipient may disclose certain Confidential Information of the Disclosing Party, without violating the obligations of this Agreement, to the extent such disclosure is required by a valid order of a court or other governmental body having jurisdiction, provided that the Recipient provides the Disclosing Party with reasonable prior written notice of such disclosure and makes a reasonable effort to obtain, or to assist the Disclosing Party in obtaining, a protective order preventing or limiting the disclosure and/or requiring that the Confidential Information so disclosed be used only for the purposes for which the law or regulation required, or for which the order was issued.. The Recipient will immediately notify the Disclosing Party upon discovery of any loss or unauthorized disclosure of the Confidential Information of the Disclosing Party.
2. Recipient acknowledges that (x) the existence, terms and conditions of this Agreement, (y) the existence of any discussions between the Parties concerning the Purpose and/or concerning any information of Disclosing Party’s business and (z) information disclosed by the Disclosing Party, including, without limitation, information related to its intellectual property, computer software, technology and programs, product plans, designs, formulae, processes, techniques, drawings, diagrams, visual demonstrations, ideas, concepts, costs, prices, clients, customers, finances, marketing plans, advertising, commercial or sales materials, business opportunities, personnel, research, development or know-how and other data in oral, written, graphic, electronic or any other form or medium whatsoever (regardless of whether such information is marked as confidential or proprietary) will be considered confidential information (the "Confidential Information"). However, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Recipient's or its Representatives' material breach of this Agreement; (b) is obtained by Recipient or its Representatives on a non-confidential basis from a third party that, to Recipient's knowledge, was not contractually restricted from disclosing such information; (c) was in Recipient's or its Representatives' possession prior to Disclosing Party's disclosure hereunder; or (d) was or is independently developed by Recipient or its Representatives without using any Confidential Information. Notwithstanding anything in this Agreement to the contrary, failure by the Discloser to mark such information as protected, confidential or proprietary will not be determinative of the protected, confidential or proprietary character of the disclosed information.
3. On Disclosing Party's written request, Recipient shall, at its discretion, promptly return to Disclosing Party or destroy all Confidential Information. The return of the Disclosing Party’s Confidential Information shall not relieve the Recipient and its Representatives from their respective obligations under this Agreement.
4. Each Party represents and warrants to the other party that it has the right to enter into this Agreement and that it is not a party to any other agreement with, or under any obligation to, any third party that would prevent it from entering into this Agreement. All information provided by Disclosing Party is provided "AS IS" and without any representation or warranty (express, implied or otherwise) regarding its accuracy or performance. No other obligations, express or implied, are created or assumed by either Party except as stated herein. Each Party acknowledges that this Agreement in no way detracts from or limits the power of Disclosing Party to carry on any other negotiations or otherwise deal with its Confidential Information in any manner whatsoever.
5. The rights and obligations of the parties under this Agreement expire upon the earlier of (a) the execution by Disclosing Party and Recipient of a Master Services Agreement containing provisions relating to nondisclosure or confidentiality or (b) two (2) years after the Effective Date.
6. Recipient acknowledges and agrees that any breach of this Agreement may cause injury to Disclosing Party for which money damages would be an inadequate remedy and that, in addition to remedies at law, Disclosing Party is entitled to seek injunctive relief or similar equitable relief against the continuing or further breach, without the necessity of proof of actual damages. This right to injunctive relief or similar equitable relief without necessity of proof of damage is in addition to any other right that Disclosing Party may have under this Agreement or otherwise in law or in equity.
7. Nothing in this Agreement shall be construed to create a relationship of agency, partnership, joint venture or license between the Disclosing Party and Recipient. Neither this Agreement nor the disclosure or receipt of Confidential Information shall constitute or imply any promise by either Party with respect to the present or future marketing, sale or pricing of products or services, or the completion of any proposed transaction.
The Recipient agrees that nothing contained in this Agreement shall be construed to grant any rights to the Receiving Party, by license or otherwise, to any Confidential Information or any trademark, patent, copyright or any other intellectual property right of the Disclosing Party, except as specified in this Agreement.
8. This Agreement and all matters relating hereto are governed by, and construed in accordance with, the laws of the State of New York, without regard to the conflict of laws provisions of such State. Any legal suit, action or proceeding relating to this Agreement must be instituted in the federal or state courts located in New York, New York. Each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
9. All notices provided under, and communications regarding, this Agreement must be in writing and will be deemed to have been duly delivered and given by a Party (a) upon being personally delivered, (b) one (1) business day after delivery by national overnight courier service (e.g., Federal Express, UPS, etc.) or (c) three (3) business days after deposit in the U.S. mail via certified or registered mail to the address of the other Party listed above.
10. This Agreement is not assignable by Recipient without the prior written consent of the Disclosing Party. Notwithstanding the foregoing, Recipient may assign this Agreement without prior written consent to a successor in interest via merger or stock or asset purchase or sale. All of the terms and provisions of this Agreement inure to the benefit of and are binding upon each Party and its permitted successors and assigns.
11. Wherever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law. However, if any provision of this Agreement is prohibited by, or invalid under, applicable law, such provision will be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.
12. This Agreement constitutes the entire agreement of the parties with respect its subject matter, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, whether written or oral, with respect to such subject matter. This Agreement may only be amended, modified, waived or supplemented by an agreement in writing signed by both parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date.