1. Definition of Confidential Information. The term "Confidential Information" means all technical, business, financial, marketing and other non-public information which is disclosed or made available by a party (the "Disclosing Party") to the other party hereto (the "Receiving Party") or to which the Receiving Party gains access, whether such information is disclosed or made available orally, visually, or in writing or in other tangible medium, including, without limitation: (a) all trade secrets, non-public patent applications, copyrights, know-how, processes, ideas, inventions (whether patentable or not), formulas, computer programs, databases, technical drawings, designs, algorithms, technology, circuits, layouts, interfaces, materials, schematics, names and expertise of employees and consultants, any other technical, business, financial, customer information and product development plans, supplier information, forecasts, strategies and other confidential information; and (b) all notes, analyses, compilations, studies or other documents prepared by the Receiving Party based upon, derived from, containing or otherwise reflecting such information of the Disclosing Party.
1.1. Exclusions. Confidential Information does not include any information that the Receiving Party can demonstrate: (i) is or becomes (through no improper action or inaction by the Receiving Party) generally available to the public; (ii) was properly in its possession or properly known by it, without restriction, prior to receipt from the Disclosing Party; (iii) is rightfully disclosed to the Receiving Party by a third party without restriction on disclosure and which the Receiving Party knows or should know is not in breach of a nondisclosure obligation to the Disclosing Party; or (iv) was independently developed by the Receiving Party without access to, reference to or use of the Disclosing Party's Confidential Information.
2. Nondisclosure and Nonuse; Exceptions.
2.1. Nondisclosure and Nonuse. The Receiving Party shall: (a) hold the Disclosing Party's Confidential Information in strict confidence and take all reasonable precautions to protect any Confidential Information (including, without limitation, all precautions the Receiving Party employs with respect to its own confidential materials of like nature); (b) not disclose any such Confidential Information or any information derived therefrom to any third party without the prior written consent of the Disclosing Party; (c) not make any use of any Confidential Information except for the purpose for which the Confidential Information was disclosed ("Purpose"); (d) not copy, alter, modify, reverse engineer, or attempt to derive the composition or underlying information, structure or ideas of any such Confidential Information; and (e) not remove or export from the United States (or such other local jurisdiction) Confidential Information except with the express prior written consent of the Disclosing Party and only then in compliance with any licenses, laws and/or regulations.
2.2. Exceptions. Notwithstanding the foregoing, Confidential Information may be disclosed to the Receiving Party's employees, personnel, and/or contractors ("Representatives") who need to know such information only to the extent necessary for the Purpose, on the condition that (i) each such Representative is similarly bound in writing or by law to confidentiality obligations at least as restrictive as the terms of this Agreement, and (ii) the Receiving Party is responsible for any breach of this Agreement by its Representatives. A disclosure by the Receiving Party either (i) as required by law; or (ii) necessary to establish the rights of either party under this Agreement, shall not be considered a breach of this Agreement by such Receiving Party or a waiver of confidentiality on the condition that, such Receiving Party shall provide prompt prior written notice thereof to such Disclosing Party to enable the Disclosing Party to seek a protective order or otherwise prevent such disclosure.
3. Term. This Agreement shall govern all communications between the parties that are made from the Effective Date a party receives from the other party written notice that subsequent communications shall not be so governed ("Termination Notice"). Each party's obligations under Paragraph 2 ("Nondisclosure and Nonuse Obligations") regarding Confidential Information received prior to the Termination Notice shall continue for 3 years after receipt of the Termination Notice, or for such time such Confidential Information constitutes Trade Secrets, if longer, unless earlier terminated pursuant to Paragraph 2 ("Exclusions").
4. Return of Confidential Information. Upon the written request of the Disclosing Party, the Receiving Party shall return all materials containing Confidential Information of the Disclosing Party, regardless of their format.
5. Ownership. Confidential Information disclosed hereunder shall remain the property of the Disclosing Party. No license, assignment, or other transfer of rights under any patent, copyright, trademark, trade secret, or other intellectual property or proprietary right is granted or implied.
6. General Provisions
6.1 Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes any and all prior or contemporaneous negotiations, representations, agreements and understandings, written or oral, regarding the subject matter hereof.
6.2 Governing Law and Jurisdiction This Agreement will be governed by and construed under the laws of the United States and the State of California, without regard to its conflict of laws provisions. Any claim or dispute arising under this Agreement will be brought in the federal or state courts of competent jurisdiction located in the Northern District of California, and each party hereby submits and consents to the jurisdiction of such courts over any such dispute or claim.
6.3 Costs & Attorneys' Fees. Should any party hereto commence or maintain any action at law or in equity including, but not limited to, administrative or alternative dispute resolution against the other party hereto by reason of the breach or claimed breach of any term or provision of this Agreement the prevailing party in the action shall be entitled to recover court costs which include, without limitation, reasonable attorneys' fees and expert fees.
6.4 Waiver, Amendment and Modification. No breach of any provision hereof can be waived unless in writing. Waiver of any one breach of any provision hereof shall not be deemed to be a waiver of any other breach or the same or any other provision hereof. This Agreement may be amended only by a written Agreement executed by the parties at the time of the modification, and may not be modified by course of dealings.
6.5 Notices. All notices under this Agreement shall be in writing, reference this Agreement, and shall be deemed delivered when either (i) sent by email and confirmed by either recipient’s response or by hardcopy by mail, or (ii) one business day after deposit with a commercial overnight carrier (e.g., Fedex), with written verification of receipt. All communications will be sent to the addresses set forth below or to such other address as may be designated by a party in writing delivered under this Section.
6.6 Force Majeure. Except in the case of paying monies owed under this Agreement, in the event of any governmental act, fire, explosion, typhoon, flood, earthquake, tide, lightning, war, conflict, or any other events which are unforeseeable by and beyond the control of any party hereto, (“Force Majeure Event”), the party affected by such event shall immediately notify the other party. In the event of occurrence of Force Majeure Event, no party shall be held liable for the damages, losses or increased expenses arising from such party’s failure of or delay in the performance under Agreement due to the Force Majeure Event, and the failure of or delay in the performance of the Agreement due to the Force Majeure Event shall not be deemed as a breach of this Agreement. The party affected by the Force Majeure Event shall take all appropriate measures to set off or minimize the effect of the Force Majeure Event, and it shall use the best efforts to continue to perform the obligations the performance of which has been suspended or delayed. After the Force Majeure Event is eliminated, both parties agree that they shall use their best endeavors to continue to perform this Agreement.
6.7 Assignment. Neither party may assign its rights or obligations hereunder, by operation of law or otherwise, without express written consent of the other party. However, either Party may assign this Agreement in its entirety (including all SOWs and Exhibits) without the other Party’s consent in connection with a merger, acquisition, corporate reorganization or recapitalization or sale of substantially all of the assets of such Party. Any attempted assignment without such consent will be void. A party may not unreasonably withhold consent to the assignment of this Agreement to an affiliate of the other party, but may condition such consent on the party remaining responsible for the affiliate’s performance under this Agreement for the benefit of such affiliate. Subject to the foregoing, this Agreement will benefit and bind the successors and assigns of the parties.
6.8 No Third Party Beneficiaries; No Agency. Except as expressly provided herein to the contrary, no provisions of this Agreement, express or implied, are intended or will be construed to confer rights, remedies or other benefits to any third party under or by reason of this Agreement. This Agreement will not be construed as creating an agency, partnership or any other form of legal association (other than as expressly set forth herein) between the parties.
6.9 Captions; Interpretation. The captions and section and paragraph headings used in this Agreement are for convenience only and shall not affect the meaning of any provision of this Agreement or be used in the construction of this Agreement. The parties hereto participated jointly in the preparation of this Agreement, and each has had the opportunity to review, comment upon and re-draft this Agreement. Accordingly, it is agreed that this Agreement shall be construed as if the parties jointly prepared this Agreement and any uncertainty or ambiguity shall not be interpreted against any party.
6.10 Survival. The provisions of Sections 3, 4, 5, 6, and such terms regarding ADR and Non-Admissibility, if applicable, shall survive the Termination of this Agreement.
6.11 Further Assurances; Binding Authority. The parties hereto agree to execute such other documents, and to take such other Action, as may reasonably be necessary to further the purposes of this Agreement. The signatories to this Agreement warrant and represent that they have full power, right and authority to execute this Agreement on behalf of the parties hereto.
6.12 Partial Invalidity. If any provision of this Agreement, as applied to any part or to any circumstance, shall be found by a court to be void, invalid or unenforceable, the same shall in no way affect any other provision of this Agreement, the application of any such provision in any other circumstance, or the validity or enforceability of this Agreement.
6.13 Counterparts. The parties shall execute this Agreement in any number of counterparts and the counterparts shall constitute one and the same agreement. The parties agree that each counterpart is an original and that facsimile copies may be treated as an original, and shall be binding upon all parties, even though all of the parties are not signatories to the same counterpart.