Confidentiality and Non-Disclosure Agreement

1. Confidential Information. RECIPIENT and COMPANY intend to disclose to each other information, (whether furnished orally, in writing, visually, photographically, electronically, or otherwise) which may include confidential information, for the purposes of discussing and/or carrying out a business relationship whereby RECIPIENT would provide certain services to COMPANY ‘s customers, affiliates and their respective operations. The term “Confidential Information” means any information intellectual property or data which is disclosed by a party to the other party under or in contemplation of this Agreement and which (a) if in tangible form or other media that can be converted to readable form, is clearly marked or otherwise designated as confidential when disclosed, or (b) if oral, is clearly identified as confidential when disclosed or (i) concerns the disclosing party’s past or present customers, business partners or plans or (ii) involves future directions and strategies.

2. Obligation of Confidentiality. The recipient acknowledges the economic value to the disclosing party of all Confidential Information. With respect to Confidential Information, the receiving party will keep such Confidential Information confidential and will:

  1. use the Confidential Information solely for the purpose of performing the services for COMPANYs customers, affiliates and their respective operations. Recipient will be fully responsible for any actions taken by its directors, officers or employees in violation of this Agreement;
  2. restrict disclosure of the Confidential Information solely to those employees, agents and independent contractors (collectively, “Authorized Parties”) of such party with a “need to know” (as defined below) and who are subject to obligations of confidentiality substantially similar to those imposed by this Agreement;
  3. advise Authorized Parties who gain access to Confidential Information of their obligations with respect to the Confidential Information;
  4. make only the number of copies of the Confidential Information necessary to disseminate the information to Authorized Parties, and ensure that any confidentiality notices set forth on the Confidential Information are reproduced in full on such copies; and ensure Confidential Information is not used to contact COMPANYs customer, affiliates and their respective operations.
  5. safeguard the Confidential Information with the same degree of care to avoid unauthorized disclosure as the recipient party uses to protect its own confidential information.

A “need to know” means that the Authorized Party requires the Confidential Information in order to perform such Authorized Party’s responsibilities in connection with the matters contemplated hereby.

3. Exceptions. The obligations in Section2  will  not apply under the following conditions: Receiving Party has the burden of proving that the Confidential Information is subject to one or more of the above listed exceptions

  1. is or becomes available to the public through no breach of this Agreement;
  2. was previously known by the receiving party without any obligation to hold it in confidence;
  3. is independently developed by the receiving party without the use of Confidential Information of the disclosing party;
  4. is approved for release by written authorization of the disclosing party, but only to the extent of and subject to such conditions as may be imposed in such written authorization;
  5. is required by law or regulation to be disclosed, but only to the extent and for the purposes of such required disclosure; or
  6. is disclosed in response to a valid order of a court or other governmental body of the United States or any political subdivisions thereof, but only to the extent of and for the purposes of such order and only if the receiving party (if permitted by law) first notifies the disclosing party so that the disclosing party may seek an appropriate protective order.

4. Owners Confidential Information, including permitted copies, will be deemed the property of the disclosing party. The receiving party will, within 7 days of a written request by the disclosing party, return all Confidential Information, including all copies thereof, to the disclosing party or destroy all such Confidential Information.

5. Injunctive Relief. An impending or existing violation of any provision of this Agreement would cause the disclosing party irreparable injury for which it would have no adequate remedy at law, and the disclosing party may seek immediate injunctive relief prohibiting such violation, in addition to any other rights and remedies available to it. Neither party hereto will oppose granting of equitable relief to the non-breaching party; thus each party here to will waive any requirement for the posting of any bond or other security in connection therewith.

6. No Commitment. Nothing contained in this Agreement or in any discussions undertaken or disclosures made pursuant hereto will (a) be deemed a commitment to engage in  any  future  business  relationship  with  the other party, or (b) limit either party’s right to conduct similar discussions or perform similar work to that undertaken pursuant hereto, so long as said discussions or work do not violate this Agreemen

7. No License. No patent, copyright, trademark or other proprietary right or license is granted by this Agreement or any disclosure hereunder. No warranties of any kind are given with respect to the Confidential Information disclosed under this Agreement or any use thereof, except as may be otherwise agreed to in writing.

8. Term. This Agreement will be effective as of the date first written above and will remain in effect for a period of Seven years, unless earlier terminated by a party by the giving of at least 90 days notice in writing. Notwithstanding the foregoing, the terms of this Agreement will  remain  in   effect  with  respect  to Confidential Information disclosed prior to termination for a period Seven years from the date of disclosure of such Confidential Information.

9. Miscellaneous.

  1. This Agreement will be governed in all respects by the laws of California, without regard to any conflicts of law principle, decisional law, or statutory provision which would require or permit the application of another jurisdiction’s substantive law.
  2. Recipient shall not disclose directly or indirectly comment on the fact that the Confidential Information has been made available or that recipient is performing services for COMPANYs customer’s affiliates, named etc.
  3. This Agreement contains the complete agreement between the parties with respect to the subject matter hereof. All previous and collateral agreements, representations, promises, and conditions relating to the subject matter of this Agreement are superseded by this Agreemen This Agreement may only be amended by a writing signed by both parties. The invalidity, in whole or part, of any provision of this Agreement will not affect the remainder of that provision or this Agreement.
  4. waiver by a party of any default by the other will not be deemed a waiver of any other default irrespective of whether such default is similar.
  5. This Agreement may not be assigned by either party without the prior approval of the other, except no such approval is required for assignment by COMPANY to a subsidiary or affiliated company or in the event of a transfer in a (i) transaction involving a change in control of a party hereto or (ii) sale or other disposition of all or substantially all of the assets of the business or operations of a party hereto directly related to this Agreement.
  6. All notices, claims, and approvals given under this Agreement must be in writing and delivered in person, by first class or express mail or facsimile Notice given in accordance with this subsection will be deemed given when received.

SIGNATURES The authorized parties have duly executed this Agreement as of the date written.

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