WHEREAS, the Owner and Recipient are entering into discussions concerning possible business arrangements and may from time to time enter into such business arrangements;
WHEREAS, Recipient desires to review and examine certain proprietary and confidential information of the Owner in connection with its analysis of such proposed or actual business arrangements or contractual relationships. Such proprietary and confidential information will be disclosed to determine whether Recipient could assist the Owner with software development. The Owner has requested and the Recipient agrees that the Recipient will protect the confidential material and information which may be disclosed relating thereto;
WHEREAS, the Owner and Recipient hereby agree that this Agreement shall remain in full force and effect beginning on the Effective Date, except as to the specific information covered by the terms and conditions of any definitive agreement entered into between the parties hereto (which expressly provides that it supersedes this Agreement).
WHEREAS, the Owner and Recipient desire that all of their confidential and proprietary information revealed to the other party shall be subject to the confidentiality and non-disclosure restrictions imposed by this Agreement (except as superseded pursuant to a definitive agreement as provided in the preceding paragraph).
NOW THEREFORE, in consideration of the mutual promises exchanged herein, and intending to be legally bound, the parties agree as follows:
1. The term “Confidential Information” shall include all information, verbal or written, which is confidential and/or proprietary to both parties, whether or not owned or developed by the Owner, which is not known by, or generally available to the public at large and that concerns the business and affairs of both parties whether transmitted prior to or after the Effective Date of this Agreement. For the avoidance of doubt, both parties financial information, products/pricing, costs, customer information, programs, systems, trade secrets, technical data, product ideas, contracts, computer programs and listings, source code and/or object code, copyrights and intellectual property, inventions, sales leads, strategic alliances, partners, and/or other business strategies shall be deemed Confidential Information. Additionally, to the extent that the parties may have a responsibility to protect the privacy of their respective customers and contractors, all information relating to any such individual or entity which may be shared with, or obtained by the other in its performance under this Agreement shall be considered Confidential Information for purposes of this Section, and the parties shall comply with all state and federal privacy laws applicable to same.
2. Confidential Information shall not include any information or data which (i) was in the receiving party’s lawful possession prior to the submission thereof by the other party, (ii) is later lawfully made available to the receiving party by a third party having no obligation of secrecy to the other party, (iii) is independently developed by the receiving party, or (iv) is or later becomes available to the public through no act or failure to act by the receiving party. If the receiving party is required to disclose Confidential Information of the other party by a governmental agency or by a proper order of a court of competent jurisdiction, the receiving party shall promptly notify the other party of such demand and tender to it the defense of such demand, use its best efforts to minimize such disclosure and consult with and assist the disclosing party in obtaining a protective order prior to such disclosure. Notwithstanding the fact that a portion of Confidential Information is or may become non-confidential, each party’s obligations under this Agreement will continue to apply to all other Confidential Information.
3. Neither party shall have any obligation to specifically identify any information as to which the protection of this Agreement extends by any notice or other action.
4. Both parties understand and acknowledge that the Confidential Information has been developed or obtained by each party by the investment of significant time, effort and expense, and that the Confidential Information is a valuable, special and unique asset of each party which provides the each party with a significant competitive advantage, and needs to be protected from improper disclosure. In consideration for the receipt of the Confidential Information, each party agrees as follows:
A. No Disclosure. Each party will hold the Confidential Information in confidence and will not disclose the Confidential Information to any person or entity without the prior written consent of the originating party.
B. No Copying/Modifying. Each party will not copy or modify any Confidential Information without the prior written consent of the originating party.
C. Unauthorized Use. Each party shall promptly advise the originating party if the receiving party becomes aware of any possible unauthorized disclosure or use of the Confidential Information.
D. Application to Employees. Each party shall not disclose any Confidential Information to any employees, agents, and/or independent service providers of the party, except those employees, agents, and/or independent service providers who are required to have the Confidential Information in order to perform their job duties in connection with the limited purposes of this Agreement. Each permitted employee, agent, and/or independent service provider to whom Confidential Information is disclosed shall sign a non-disclosure agreement substantially the same as this Agreement at the request of the originating party.
5. If it appears that either party has disclosed (or has threatened to disclose) Confidential Information in violation of this Agreement, the originating party shall be entitled to an injunction to restrain the receiving party from disclosing the Confidential Information in whole or in part. Either party shall not be prohibited by this provision from pursuing other remedies, including a claim for losses and damages, which shall include reasonable attorney’s fees and expenses of litigation incurred therewith. Moreover, in the case of breach or threatened breach by either party, each party agrees that it will not raise the defense of an adequate remedy at law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Georgia, without giving effect to its conflict of laws provisions.
6. The Parties agree that for a period of eighteen (18) months from the date hereof, neither Party will directly or indirectly recruit solicit, engage or hire any officer or employee of the other or otherwise interfere with any such officer or employee’s employment relationship unless such officer or employee eases to be employed by the Party; provided, however , that this prohibition shall not deemed to prohibit (i) general solicitations or advertisements to the public that are not specifically directed to the Parties employees or (ii) solicitation via the use of a search firm or other employment agency (so long as it has not been instructed by the respective Party to contact such employees).
7. For a period of five (5) years after the end of the term of this Agreement, neither party will attempt to do business with, or otherwise solicit any business contacts found or otherwise referred by either party for the purpose of circumventing, the result of which shall be to prevent either party from realizing or recognizing a profit, fees, or otherwise, without the specific written approval of the referring party. If such circumvention shall occur the offended party shall be entitled to any commissions due pursuant to this Agreement or relating to such transaction.
8. Upon the written request of the by either party, the party receiving confidential information shall return to the originating party all written materials containing the Confidential Information. The receiving party shall also deliver to the originating party written statements signed by the receiving party certifying that all materials have been returned within five (5) days of receipt of the request.
9. Neither party has an obligation under this Agreement to purchase any service or item from the other party, or commercially offer any products using or incorporating the Confidential Information. This Agreement does not create any agency, partnership, or joint venture.
10. Both parties acknowledge and agrees that the Confidential Information is provided on an “AS IS” basis. EACH PARTY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE CONFIDENTIAL INFORMATION AND HEREBY EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OR USE OF ANY PORTION OF THE CONFIDENTIAL INFORMATION. Neither party represents or warrants that any product or business plans disclosed to the other party will be marketed or carried out as disclosed, or at all. Any actions taken by the either party in response to the disclosure of the Confidential Information shall be solely at the risk of the party.
11. Neither party shall acquire any intellectual property rights under this Agreement except the limited right to use as set forth above. Both parties acknowledge that the Confidential Information and all related copyrights and other intellectual property rights, are (and at all times will be) the property of the originating party, even if suggestions, comments, and/or ideas made by the receiving party are incorporated into the Confidential Information or related materials during the period of this Agreement.
12. Each party agrees to defend, indemnify, and hold harmless the other party and its officers, directors, agents, affiliates, distributors, representatives, and employees from any and all third party claims, demands, liabilities, costs and expenses, including reasonable attorney’s fees, costs and expenses resulting from the indemnifying party’s material breach of any duty, representation, or warranty under this Agreement.
13. In any legal action between the parties concerning this Agreement, the prevailing party shall be entitled to recover reasonable attorney’s fees and costs.
14. The obligations of this Agreement shall survive 5 years from the Effective Date or until both parties agree to release one another from this agreement.
15. This Agreement sets forth the entire understanding of the parties regarding confidentiality. Any amendments must be in writing and signed by both parties. This Agreement shall be construed under the laws of the State of Georgia. This Agreement shall not be assignable by either party. Neither party may delegate its duties under this Agreement without the prior written consent of the other party. The confidentiality provisions of this Agreement shall remain in full force and effect at all times in accordance with the term of this Agreement. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the remaining portions of this Agreement shall remain in full force and effect and construed so as to best effectuate the original intent and purpose of this Agreement.