- Recipient agrees to treat as confidential all information, whether oral, written or otherwise, received from Disclosing Party in the course of dealings, meetings, transactions and work, including, but not limited to: (i) any financial information, business plans, marketing strategies, and performance results; (ii) plans for products or services, and customer or supplier lists; (iii) any concepts, reports, data, know-how, works-in-progress, specifications, computer software, source code, object code, flow charts, databases, inventions, information and trade secrets; (iv) any scientific or technical information, invention, design, improvement, technology or method (“Confidential Information”). Information need not be novel, unique, patentable, copyrightable or constitute a trade secret in order to be designated Confidential Information. Recipient acknowledges that the Confidential Information is proprietary to the Disclosing Party, has been developed and obtained through great efforts by the Disclosing Party and that Disclosing Party regards all of its Confidential Information as trade secrets.
- Recipient acknowledges that the Confidential Information is owned solely by Disclosing Party (or its licensors) and that no licenses or rights to such Confidential Information, other than those expressly recited herein, are granted to Recipient or otherwise implied from this Agreement. Recipient may disclose the Confidential information to its employees, agents, contractors and consultants (collectively “Representatives”) only if they have a specific need to know such Confidential Information in order to accomplish the purpose for which it was provided and only if they are bound by confidentiality obligations that prohibit unauthorized disclosure or use of such Confidential Information on terms no less restrictive or protective as those contained in this Agreement. Recipient shall be responsible for any violation of the terms of this Agreement by its Representatives.
- Recipient shall not be liable to Disclosing Party for disclosure of information received under this Agreement where: (i) the information is or becomes part of the public domain through no breach of this Agreement; (ii) the information is subsequently lawfully obtained by Recipient from a third party who is established as a lawful source of the information, without breach of this Agreement by Recipient; (iii) the information was known by Recipient prior to its disclosure by Disclosing Party, as evidenced by the written records of Recipient; (iv) Disclosing Party has provided its prior written consent to such disclosure.
- At any time upon Disclosing Party’s request, Recipient will immediately return all Confidential Information including any copies or reproductions (in electronic or any other formats) in its possession to Disclosing Party. This Section does not apply to any information in the public domain or which Recipient can show was either already lawfully in their possession prior to its disclosure by Disclosing Party or acquired without the direct or indirect involvement of Disclosing Party.
- Recipient will learn the names, telephone numbers, and email addresses of customers, business partners, affiliates, investors, borrowers, lenders, agents, or banks of Disclosing Party, hereinafter called “Contacts.” Recipient acknowledges, accepts and agrees that the identities of the Contacts will be recognized as exclusive and valuable assets and trade secrets of Disclosing Party. Recipient agrees to keep confidential the names of any Contacts introduced or revealed by Disclosing Party to Recipient, and that Recipient, its associates, subcontractors, joint ventures, partnerships, divisions, subsidiaries, employees, agents, heirs, assigns, designees, or consultants will not directly or indirectly contact, negotiate or deal with any of the Contacts without a written permission from Disclosing Party to do so for the Term of this Agreement, and two (2) years thereafter.
- Recipient will not hire any employees of Disclosing Party and will not, either directly or indirectly, solicit, induce, recruit or encourage any of Disclosing Party’s employees to leave its employment, or take away such employees, or attempt to solicit, induce, recruit, encourage or take away employees of Disclosing Party, either on behalf of Recipient or for any other person or entity.
- Mutual Indemnification
Each Party shall indemnify, defend, and hold harmless the other Party, its directors, officers, employees and agents with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, to the extent that it is based upon a claim that, if true, would constitute a breach of any of the indemnifying Party’s obligations hereunder. In claiming any indemnification hereunder, the Party claiming indemnification (the “Claimant”) shall provide the other Party with prompt written notice of the claim which the Claimant believes falls within the scope of the indemnification. The Claimant may, at its own expense, assist in the defense if it so chooses; provided that the other Party shall control such defense and all negotiations relative to the settlement of any such claim and further provided that any settlement intended to bind the Claimant shall not be final without the Claimant’s written consent. The Claimant’s failure to give prompt written notice shall relieve the indemnifying Party of responsibility only to the extent that it is actually prejudiced thereby.
This Agreement takes effect on the Effective Date, and continues in force for five years.
- Liquidated Damages
In the event of a breach of Confidentiality or Non-Circumvention provisions of this Agreement, Disclosing Party shall be entitled to liquidated damages from Recipient in the amount of $5,000 (five thousand U.S. dollars) per breach. The Parties expressly agree that this amount is not a penalty but is a reasonable estimate of the damages that would result from a breach, and such damages would be impractical or impossible to calculate. In the event that legal action becomes necessary for the enforcement of all or any part of this Agreement or to collect the liquidated damages provided for herein, Disclosing Party shall recover reasonable attorneys’ fees in addition to any other damages or relief awarded. Recipient acknowledges that in the event of a breach, Disclosing Party shall be entitled to recover injunctive relief as well as liquidated damages, and that the liquidated damages provision included herein does not provide Disclosing Party with an adequate remedy at law. Recipient further acknowledges that remedies provided in this Agreement are cumulative and not exclusive of any other rights or remedies that may be available to the parties, whether provided by law, equity, statute, in any other agreement between the parties or otherwise.
In the event that any provision of this Agreement shall be held to be invalid, the same shall not affect in any respect whatsoever the validity of the remainder of this Agreement.
This Agreement may be amended only by written agreement, signed by the Party to be bound by the amendment.
- Governing Law and Jurisdiction
This Agreement shall be governed by the internal laws of California, without regard to its conflict of law principles which would lead to application of any other law.
Any dispute, controversy or claim arising out of or related to this Agreement shall, upon the request of either party involved, be submitted to and settled by binding arbitration in San Diego, CA, pursuant to the rules then in effect of the American Arbitration Association (or at any other place or under any other form of arbitration mutually acceptable to the Parties so involved). Any award rendered shall be final and conclusive upon the Parties and a judgment thereon may be entered in the highest court of the forum, State or Federal, having jurisdiction. The expenses of the arbitration shall be borne equally by the Parties to the arbitration, provided that each party shall pay for and bear the cost of its own experts, evidence and counsel. This Section shall not prohibit any party from seeking injunctive relief from a court of competent jurisdiction in the event of a breach or prospective breach of this Agreement by the other party. Parties understand that this clause means they waive their right to sue in court and have a jury trial.