“Confidential Information” is described as any information that is disclosed by one party and its Affiliates (the “Discloser”) to the other party and its Affiliates (the “Recipient”) and is: (i) marked as proprietary or confidential, or (ii) not marked or disclosed as confidential, but should be reasonably understood by the Recipient to be confidential due to the nature of the disclosed information and/or the circumstances surrounding disclosure. Confidential Information shall include, but shall not be limited to information relating to the Disclosers (including that of its Affiliates or subsidiaries) business, finances, technology, products, pricing, services, strategies, customers, trade secrets, know-how, ideas and inventions, designs, drawing, specifications, roadmaps, strategies in whatever form maintained or disclosed, whether documentary, computerized, electronic, oral or otherwise which (i) is or has been disclosed to the Recipient whether prepared by the Discloser and/ or its advisors, agents, or otherwise, or (ii) are prepared by the Recipient, its representatives, or others and that contain or otherwise reflect or are based upon, in whole or in part, any of Discloser’s Confidential Information.
The Recipient’s obligations hereunder shall continue in full force and effect with respect to non-technical, sales, marketing, and financial Confidential Information for five (5) years from the date of disclosure of such Confidential Information. The Recipient’s obligations with respect to all technical Confidential Information shall be terminated when the Recipient can document that it is publicly available through no fault of Recipient.
This Agreement shall be effective for three (3) years from the date of execution and may be terminated by either party at any time upon thirty (30) days written notice to the other party. Each party’s rights and obligations shall survive termination as provided herein with respect to Confidential Information disclosed prior to the expiration or termination of the Agreement.
The recipient shall use Confidential Information only for the purposes of evaluating, creating and/or maintaining a business relationship between the parties (the “Purpose”).
Protection of Confidential Information
Each party agrees that Recipient shall hold in confidence and not disclose to any third-party Discloser’s Confidential Information. The recipient may disclose Confidential Information only to its and its Affiliates, employees, and consultants who need to know for the Purpose and who are bound to Recipient by obligations of confidentiality and restrictions on use as protective as the terms of this Agreement. “Affiliate” means an entity which controls, or is controlled by or under common control with a party hereto.
This Agreement imposes no confidentiality obligation upon Recipient with respect to Confidential Information it can prove: (a) was in Recipient’s possession without a duty of confidentiality before receipt from Discloser from a third party without a duty of confidentiality; (b) is or becomes publicly available through no fault of Recipient; (c) is rightfully received without a duty of confidentiality by Recipient from a third party without a duty of confidentiality; or (d) must be disclosed in accordance with an order of a court of competent jurisdiction, provided that Recipient shall first, unless prohibited by law, give Discloser prompt written notice to give Discloser the opportunity to seek a protective court order or take other legal steps to protect its interests in Confidential Information.
Return of Confidential Information
At the Discloser’s written request, the Recipient shall return to the Discloser all Confidential Information and copies thereof in any medium or certify in writing by an authorized representative its destruction.
Neither party to this agreement acquires any intellectual property rights or licenses under any trademarks, trade secrets, copyrights, patents; mask works right nor any other intellectual property rights. Neither party will identify the other party or use the other party’s name, trademark, logo or acronym in any press release, advertising, sales material, public disclosure or publicity without prior written authorization.
The parties agree that money damages may not be a sufficient remedy for any breach of the provisions of this Agreement. In addition to all other remedies available at law or in equity, the Discloser shall be entitled to seek specific performance and injunctive or other equitable relief as a remedy for any breach or threatened breach of this Agreement, and the Recipient hereby waives any requirement for the receiving or posting of any bond in connection therewith.
All Confidential Information is provided by the Discloser “As Is.” Discloser makes no warranties, express, implied or statutory, regarding the accuracy, completeness, performance, merchantability, fitness for use, non-infringement or other attributes of its Confidential Information.
Independent Action and Disclaimer
Neither party has any obligation under this Agreement to purchase or otherwise acquire any service or item from the other party. The parties do not intend that any agency, partnership or joint venture relationship be created between them by this Agreement. Any information provided under this Agreement is subject to change at any time and should not be relied upon in making purchasing decisions. Without violating the terms herein, nothing contained in this Agreement shall limit either party’s right to independently develop or acquire products without the use or benefit of the other party’s Confidential Information.
Recipient agrees to comply with all applicable export laws and regulations and shall not export, re-export, resell, transfer or disclose, directly or indirectly, any product or technical data received from the other, or the direct products thereof, to any prescribed person, entity or country, or foreign national thereof, unless properly authorized by the U.S. government and any other applicable government or regulatory body.
Neither party may assign its rights, duties or obligations under this Agreement without the other party’s written consent, except to a successor-in-interest through a merger, acquisition, or sale of all or substantially all its assets. Subject to the foregoing, this Agreement shall bind and inure to the benefit of permitted successors and assigns.
This Agreement sets forth the entire agreement with respect to Confidential Information disclosed hereunder and supersedes all prior or contemporaneous agreements related thereto, whether written or oral. All additions or modifications to this Agreement must be made in writing and signed by authorized representatives of both parties. If any term of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective. This Agreement is made under and will be construed according to the laws of the State of Texas, without reference to the conflicts of laws principles therein, with venue in Dallas, Texas.