This Mutual Nondisclosure Agreement ("Agreement") is effective as of full signature hereof ("Effective Date"). Each Party (collectively “the Parties”) that discloses Confidential Information, as defined below, is "Discloser" with respect to such disclosure, and the Party that receives any such Confidential Information by any such disclosure is "Recipient", all as further defined and provided for herein.
In consideration of the following covenants, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
Purpose. The Parties wish to explore a possible business opportunity of mutual interest (the "Purpose"), in connection with which either Party may have disclosed and/or may, after the Effective Date, disclose Confidential Information (as defined below) to the other. This Agreement is intended to protect Confidential Information (including Confidential Information previously disclosed, if any) against unauthorized use or disclosure, as provided herein.
Definition. "Confidential Information" means information relating to the Discloser's business, including, without limitation, the Discloser’s identity, intent with their patent assets, participation in ClearAccessIP’s Marketplace, product designs, product plans, data, software and technology, financial information, marketing plans, business opportunities, proposed terms, pricing information, discounts, inventions and know-how, media, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, algorithms, software programs, software source documents, and formulae related to the current, future, and proposed products and services of each of the parties, such as information concerning research, experimental work, development, design details and specifications, engineering, metrics, procurement requirements, purchasing, manufacturing, customer lists, investors, employees (including, but not limited to, the names, contact information, jobs, compensation, and expertise of such employees, consultants, or advisors), business and contractual relationships, business forecasts , sales and merchandising, cost data, and market-share data, disclosed by Discloser to Recipient, either directly or indirectly, whether in writing, verbally or otherwise, and whether prior to, on or after the Effective Date, that either: (a) is designated as confidential by the Discloser at the time of disclosure; or (b) would reasonably be understood, given the nature of the information or the circumstances surrounding its disclosure, to be confidential. Confidential Information also includes the existence of this Agreement and the fact or nature of the discussions between the parties.
Disclosure of Confidential Information. Recipient will: (a) hold Confidential Information in strict confidence and take reasonable precautions to protect such Confidential Information (such precautions to include, at a minimum, all precautions Recipient employs with respect to its own confidential materials, but not less than reasonable precautions); (b) not divulge any Confidential Information to any third party (other than to employee s, authorized representative or contractors as set forth below); and (c) not copy (except as required to accomplish the intent of this Agreement) or reverse engineer, modify, decompile, create other works from, or disassemble any materials disclosed under this Agreement or remove any proprietary markings from any Confidential Information or copies thereof without the prior written consent of the Discloser. Any employee, authorized representative or contractor given access to any Confidential Information must have a legitimate "need to know" such Confidential Information for the Purpose specified in Section 1 above and Recipient will remain responsible for each such person's compliance with the terms of this Agreement.
Term; Confidentiality Period. Either party may terminate this Agreement upon 30 days prior written notice to the other party. Irrespective of any termination of this Agreement, Recipient's obligations with respect to Confidential Information under this Agreement expire 5 years from the date of receipt of the Confidential Information and will be binding upon such party's heirs, successors, assigns, executors, administrators, and legal representatives.
Exclusions. This Agreement imposes no obligations with respect to information which: (a) was in Recipient's possession before receipt from Discloser free of any obligation of confidence at the time it was disclosed to the Recipient; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) was rightfully disclosed to Recipient by a third party without restriction on disclosure; or (d) is developed by Recipient without use of the Confidential Information as can be shown by documentary evidence. Recipient may make disclosures to the extent required by law or court order provided Recipient makes commercially reasonable efforts to provide Discloser with prior notice of such disclosure as promptly as possible and uses reasonable efforts to obtain, or assist the Discloser in obtaining, a protective order preventing or limiting the disclosure.
Return or Destruction of Confidential Information. Upon termination of this Agreement or written request by Discloser, the Recipient will: (a) cease using the Confidential Information; (b) promptly return to Discloser or destroy the Confidential Information and all copies, notes or extracts thereof; and (c) upon request of Discloser, confirm in writing that Recipient has complied with these obligations. Notwithstanding the foregoing, the Recipient may retain a copy of Confidential Information solely to the extent required to comply with law or pursuant to bona fide automatic electronic backup procedures. The Recipient must comply with the confidentiality obligations herein with respect to any retained copy of Confidential Information.
Proprietary Rights. Neither party to this Agreement acquires any intellectual property rights or any other rights under this Agreement except the limited right to use the Confidential Information as set forth in Section 1 above.
Disclaimer. CONFIDENTIAL INFORMATION IS PROVIDED "AS IS" AND WITH ALL FAULTS.
Publicity. Neither party will make, or authorize any third party to make, any public announcement or other disclosures related to this Agreement and any potential agreement or relationship with the other party or any of its affiliates or subsidiaries without the prior written approval of the other party. For the purposes of this Agreement public announcements include disclosures to any person or entity other than a party hereto by any means, including but not limited to, press releases, written or oral statements made to the media, blogs, trade organizations, publications, websites, or any other public audience or unauthorized third parties.
Export. Recipient agrees not to remove or export any Confidential Information or any direct product thereof, except in compliance with, and with all applicable export laws and regulation.
Injunctive Relief; Breach. Each party acknowledges that any breach of this Agreement may cause irreparable harm for which monetary damages are an insufficient remedy and accordingly, upon any breach or threatened breach of this Agreement Discloser will be entitled to seek appropriate equitable relief without the posting of a bond in addition to whatever remedies it might have at law. Further, if either party breaches any covenant in this Agreement with respect to Confidential Information, without limiting any other rights or remedies of the non-breaching party, the breaching party shall be required to pay to the non-breaching party, following a final determination by a court of competent jurisdiction and provided that the non-breaching party is the prevailing party in any such legal claim, any reasonable attorneys' fees incurred by the non-breaching party to enforce this Agreement.
General. Neither party has an obligation under this Agreement to purchase or offer for sale any item or proceed with any proposed transaction. In the event that any of the provisions of this Agreement will be held illegal or unenforceable by a court of competent jurisdiction, such provisions will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect. Neither party may assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party. Any purported assignment by such party will be null and void, except that a party may assign this Agreement without such consent to its successor in interest by way of merger, acquisition, or sale of all or substantially all of its assets. This Agreement shall inure to the benefit of, and be binding upon, the parties hereto and their respective heirs, executors, administrators, representatives, members, owners, shareholders, licensees, designees, successors and permitted assigns. This Agreement shall be governed by the laws of the State of California, without reference to conflict of laws principles. All actions arising out of or relating to this Agreement, including the formation of this Agreement, shall be heard and determined exclusively by the Superior Court of the State of California for the County of San Francisco or the United States District Court for the Northern District of California located in the County of San Francisco. The parties consent to personal jurisdiction in both courts. This Agreement supersedes all prior discussions and writings and constitutes the entire agreement between the parties with respect to the subject matter hereof. Each party acknowledges and agrees that (a) it has carefully read and fully understands all of the terms of this Agreement, (b) this Agreement contains the Parties’ entire understanding relating to the subject matter hereof and cannot be changed or modified, except by an instrument signed by the Parties and (c) each party has signed this Agreement voluntarily, without duress, coercion or undue influence. The prevailing party in any action to enforce this Agreement will be entitled to costs and attorneys' fees. No waiver or modification of this Agreement will be binding upon either party unless made in writing and signed by a duly authorized representative of each party and no failure or delay in enforcing any right will be deemed a waiver.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.