This Nondisclosure Agreement (the “Agreement”), dated as of Date is between Company, a Delaware corporation (“Company”), and Counter-Party, a State Entity Type (“Recipient”). To explore the possibility of a business relationship between Company and Recipient, Company may disclose sensitive information to Recipient. The parties agree as follows:
1. Definition. “Proprietary Information” means, to the extent previously, presently or subsequently disclosed by or for Company to Recipient, all financial, business, legal and technical information of Company or any of its affiliates, suppliers, customers and employees (including information about research, development, operations, marketing, transactions, regulatory affairs, discoveries, inventions, methods, processes, articles, materials, algorithms, software, specifications, designs, drawings, data, strategies, plans, prospects, know-how and ideas, whether tangible or intangible, and including all copies, analyses and other derivatives thereof). Proprietary Information shall not include any information that (a) was rightfully known to Recipient without restriction before receipt from Company, (b) is rightfully disclosed to Recipient without restriction by a third party or (c) is or becomes generally known to the public through no fault of Recipient. The terms and conditions of any transaction or possible transaction between the parties, the fact that disclosures, evaluations or discussions are taking place, and the status and results thereof are all Proprietary Information.
2. Restrictions. Recipient agrees (a) to use the Proprietary Information only for its consideration internally of a business relationship or transaction between the parties, and its performance in any resulting arrangement, but not for any other purpose, (b) to maintain the Proprietary Information as secret, and exercise all reasonable precautions to prevent unauthorized access to it, (c) not to copy the Proprietary Information, (d) not to disclose Proprietary Information to any third party other than Recipient’s employees and agents who have a need to know for the permitted purpose and who are similarly bound (consistent with the restrictions in this Agreement) to protect the Proprietary Information, (e) not to decompile, disassemble or otherwise reverse engineer any Proprietary Information, or use any similar means to discover its underlying composition, structure, source code or trade secrets and (f) not to export or re-export (within the meaning of US or other export control laws or regulations) any Proprietary Information or product thereof. Recipient shall promptly notify Company of any unauthorized use or disclosure of Proprietary Information, and shall be responsible for any breach of its confidentiality obligations by its employees and agents. Recipient will promptly notify Company if it decides not to proceed with the proposed business relationship or transaction.
3. No Warranties or Licenses. All Proprietary Information is provided “AS IS.” Company will not be liable to Recipient for damages arising from any use of the Proprietary Information, from errors, omissions or otherwise. All of Company’s rights in and to the Proprietary Information remain the exclusive property of Company. Neither this Agreement, nor any disclosure of Proprietary Information hereunder (a) grants to Recipient any right or license under any copyright, patent, mask work, trade secret or other intellectual property right, (b) obligates Company to disclose any information, perform any work or enter into any agreement or (c) limits Company from entering into any business relationship with third parties.
4. Termination. This Agreement will terminate as to the further exchange of Proprietary Information immediately upon the earlier of (a) receipt by one party of written notice from the other and (b) the first anniversary of this Agreement. Recipient’s confidentiality obligations, as they apply to any Proprietary Information disclosed prior to termination, will survive termination until Recipient can document it falls into one of the exceptions stated in Paragraph 1. Upon termination of this Agreement for any reason, or upon Company’s request at any time, Recipient shall promptly return to Company all originals and copies of any Proprietary Information and all information, records and materials developed therefrom.
5. Remedies. Due to the unique nature of the Proprietary Information, Recipient agrees that any breach or threatened breach of this Agreement will cause not only financial harm to Company, but also irreparable harm for which money damages will not be an adequate remedy. Therefore, Company shall be entitled, in addition to any other legal or equitable remedies, to an injunction or similar equitable relief against any such breach or threatened breach without the necessity of posting any bond.
6. General. This Agreement constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties concerning the subject matter hereof. This Agreement may be executed in one or more counterparts, each of which is an original, but taken together constituting one and the same instrument. Execution of a facsimile copy shall have the same force and effect as execution of an original, and a facsimile signature shall be deemed an original and valid signature. No change, consent or waiver to this Agreement will be effective unless in writing and signed by the party against which enforcement is sought. The failure of Company to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. Unless expressly provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, USA without regard to the conflicts of laws provisions thereof. Exclusive jurisdiction and venue for any action arising under this Agreement is in the federal and state courts located in New York City, and both parties hereby consent to such jurisdiction and venue for this purpose. In any action or proceeding to enforce or interpret this Agreement, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys' fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained. Any notice hereunder will be effective upon receipt and shall be given in writing, in English and delivered to the other party at its address given herein or at such other address designated by written notice.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as a sealed instrument, effective as of the date and year first written above.