"Confidential Information" means all confidential and/or proprietary information and intellectual property, whether or not in tangible form, disclosed or made available by one party as "Discloser" to the other as "Recipients," including but not limited to a Business Relationship including the nature and details of potential relationship between the two parties and related proprietary information. The sole purpose of this Agreement is to prevent the unauthorized disclosure or use of Confidential and Proprietary Information and intellectual property and information (data or through conversation, and/or any other means of communication) as well as Non-confidential information in furtherance of the current or anticipated business relationship between (Discloser) and (Recipients) to any relevant consultation, webinar series, facilitation documentation, products, services, or the like (the "Business Relationship"). This Agreement does not form any such Business Relationship between the Parties or otherwise obligate them except as expressly set forth herein.
1. Reports and any other form of oral or written communications of a technical nature or concerning research and development and/or the activity of (Discloser). Confidential Information may be that of Discloser or of third parties to whom Discloser has an obligation to treat the disclosed information as confidential. Confidential Information also includes intellectual property, copies, notes, tape/video/DVD recordings, PowerPoint presentations, teleseminar, seminars, webinars, tape recordings, workbooks, abstracts, products, systems, methodologies, processes, protocols, materials, equipment, programs, plans, procedures methods of operation and production, financial data including costs, margins, payment terms and credit records, marketing strategies, models plans for development and expansion, attendant tools and the like as well as information gained from interviews and discussions and other tangible and intangible embodiments made to Recipients (pre-existing or developed during the course of our engagement) that are based on or contain any of such information, as well as the existence and progress of the Purpose (described in Section 4 below).
2. Identification of Confidential Information
Information will be considered to be Confidential Information and protected under this Agreement if it is identified as "confidential" or "proprietary" at the time of disclosure or if the information should reasonably be considered to be confidential or proprietary due to its nature or the context of its disclosure.
Recipients covenants and agrees to use Discloser’s Confidential and Non-Confidential Information solely for the purposes to participate in agreed upon projects, projected projects, and/or fulfill agreed upon commitments (the "Purpose"). It is understood by the (Recipients) that the Confidential and Proprietary Information may relate to projects, products and services that are under development or planned for development by the Discloser.
4. Protection of Confidential Information
Each party acknowledges that the other party claims that its Confidential Information and Intellectual Property are valuable and unique assets and agrees to the following:
(a) Recipients (i) will not disclose Confidential Information to any third party; (ii) will not disclose this Confidential Information to its employees or sub-contractors unless the employees and sub-contractors have a need to know the Confidential Information for the Purpose and have executed a written confidentiality agreement at least as restrictive as this Agreement; and (iii) will use the Confidential Information solely for the Purpose and will not use it for the benefit of any third party. Recipients will use the same degree of care to protect the Confidential Information from unauthorized use or disclosure as it would use to protect its own information of a similar nature, but in no event with less than reasonable care.
(b) Recipients’ obligations under this Agreement with respect to particular information do not apply to the extent that: (i) Discloser authorizes Recipients in writing to disclose such information to third parties; (ii) Recipients know such information at the time of disclosure by Discloser, free of any obligation to keep it confidential, as evidenced by written records; (iii) such information is or becomes generally known in the relevant industry without fault of Recipients; (iv) employees of Recipients independently develop such information without access to or use of the Discloser’s Confidential and Non-Confidential Information, as evidenced by written records; or (v) Recipients rightfully obtains such information from a third party who has the right to disclose the information without violation of any confidentiality obligations. However, even if certain information is already known, Recipients’ use of the information (including the fact of the party’s use and the manner and results of use) may not be used and thus would be considered to be Confidential Information.
(c) Notwithstanding anything herein to the contrary and except as reasonably necessary to comply with any applicable federal and state securities laws, Recipients (and each employee, sub-contractor, representative, or other agent of Recipients) may disclose to only agreed-upon third parties who have executed a Non-Disclosure agreement acceptable to (Discloser) and meet all the criteria in this same Non-Disclosure Agreement, the U.S. federal and state tax treatment and tax structure of the transaction and all materials of any kind (including opinions or other tax analyses) that are provided to Recipients relating to such U.S. federal or state tax treatment and tax structure ("Tax Information"). For this purpose, "tax structure" is any fact that may be relevant to understanding the U.S. federal or state tax treatment of the transaction. However, the foregoing shall not be construed to permit disclosure by Recipients of any information of a technical nature concerning research and development and engineering activity disclosed by Discloser, including without limitation, intellectual property, software, any oral or written communications, diagrams, abstracts, methodologies, systems, processes, procedures, materials, product designs or specifications, manufacturing know-how, patent/trademark applications, attendant tools and information gained and the like from interviews and discussions and other tangible and intangible embodiments (pre-existing or developed during the course of our engagement) that are based on or contain any of such information, as well as the existence and progress of the Purpose (described in Section 4).
(d) If Recipients is subject to judicial or governmental proceedings requiring disclosure of particular Confidential or Non-confidential Information, or if Recipients intend to disclose any Tax Information to a third party, then, prior to any such disclosure, Recipients will provide Discloser with reasonable prior written notice and will obtain, or provide Discloser with an opportunity to obtain, a protective order or confidential treatment of the Confidential Information or Tax Information.
5. Return of Confidential Information
All Confidential and Non-confidential Information of Discloser (tangible or intangible) remains the property of that party and will be returned to Discloser along with all copies thereof or destroyed at its request. Thus, upon the request of the
other party, a party shall return all documents and records containing the Confidential Information, without in any manner retaining any copies, duplicates, extracts or other reproductions, in whole or in part, of such documents or records which contain the Confidential information. Upon the request of a party, all Confidential Information contained in the databanks or any computer operated by the other party and all data, memoranda, documents and materials developed from or including, Confidential Information shall be destroyed or retuned to the requesting party. Within ten days of receiving such a request from Discloser, Recipients will comply with the request and provide a written certification, signed by the Recipient, of its compliance.
6. No License or Warranty
No license under any patents, copyrights, mask work rights, trademarks or other proprietary rights is granted by the disclosure of or access to Confidential and Non-confidential Information under this Agreement. ALL INTELLECTUAL PROPERTY AND CONFIDENTIAL INFORMATION ARE PROVIDED "AS IS", WITHOUT ANY EXPRESSED OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO A WARRANTY THAT IT IS ACCURATE OR COMPLETE OR A WARRANTY AGAINST INFRINGEMENT.
7. No Inducement or Commitment
Each party will determine in its sole discretion the information to be disclosed to the other party. Neither the disclosure nor access to Confidential and Non-confidential Information under this Agreement constitute an inducement or commitment to enter into any business relationship. If the parties desire to pursue business opportunities together, the parties will execute a separate written agreement with respect to such opportunities.
8. Term & Termination
This Agreement will be effective from (Date _____________) and will continue until written notice of termination is provided by either party to the other. All provisions of this Agreement relating to Confidential and Non-confidential Information disclosed pursuant to this Agreement prior to termination will survive. This agreement survives termination of this relationship.
9. Assignment & Binding Effect
Neither party may assign this Agreement without the other party’s prior written consent, except that no such consent is needed in the event of a party’s assignment or transfer of the majority of its stock or all or substantially all of its assets to which the Purpose relates, as part of a merger, acquisition or asset sale. Any assignment in violation of this Agreement will be void. This Agreement benefits and binds the parties to this Agreement and their respective successors and permitted assigns.
(a) The disclosure of Confidential and Non-confidential Information under this Agreement will not be construed as the granting of any rights or license for any purpose other than that provided hereunder, nor shall there be implied or construed any obligation in the future to grant such rights or license.
(b) This Agreement and the Recipients’ described obligations shall be binding on the representatives, assigns, and successors of the Recipients and shall inure to the benefit of the assigns and successors of the Discloser.
(c) The Recipients shall adhere to all applicable laws, regulations, and rules relating to the export of technical data, and shall not export or re-export any Confidential or Non-confidential Information, Intellectual Property, products, and/or the like received from the Discloser, or the direct product of such Confidential and Non-confidential Information to any proscribed country listed in such applicable laws, regulations, and rules unless properly authorized.
(d) This Agreement may not be amended, modified, or rescinded except in writing signed by each of the parties to the agreement.
11. Jurisdiction & Venue
This Agreement will be governed by and construed in accordance with the laws of the State of Illinois, exclusive of its choice of law principles. The state and federal courts located in DuPage County, Illinois have exclusive jurisdiction and venue over any dispute arising out of or relating to this Agreement. Each party consents to the personal jurisdiction and venue of these courts.
12. Entire Agreement
This Agreement contains the entire understanding, and supersedes any and all prior and contemporaneous agreements (oral or written), between the parties regarding this Agreement’s subject matter. This Agreement will not be modified, and no provision will be waived, except by written notice that both parties sign. A party’s failure to require performance will not affect the right to require performance at any later time. If any part of this Agreement is unenforceable, the rest will remain in effect.
Each party will comply with all applicable export control laws, rules and regulations. Any notice under this Agreement, if sent to the party entitled to such notice at the address set forth below, will be deemed to have been provided three (3) days after the notice is sent by certified mail (postage prepaid), or the next business day if the notice is sent by national overnight service.