“Confidential Information” shall mean any non-public information, regardless of its form or the medium in which it is stored, that a party specifically marks, designates and discloses (the “Disclosing Party”), either orally or in writing, as confidential, to the other party (the “Recipient”); or which, under the circumstances surrounding the disclosure, ought to be treated as confidential or which the parties may create or produce in the course of this Agreement, including such information as may originate, be derived from, or be connected with such Confidential Information or which contain, reflect, or are based, in whole or in part, upon such information. “Confidential Information” includes, but is not limited to, information relating to commercial, financial, marketing, technical, planning or other business affairs and internal records of both parties, trade secrets, know-how, methods, techniques, processes, programs, inventions and other information relating to products, services or processes marketed or used in the course of business of both parties, customer lists and other information relating to other persons, including customers, subcontractors, employees, and co-venturers of both parties or potential customers, unpublished patent applications, verbal representations, vendor lists, business practices/strategies, project plans, blueprints, formulas, designs, hardware/software configuration, technical developments, existing or proposed research projects, investments, product schematics or drawings, descriptive material, specifications, software (source code or object code), sales and customer information. Notwithstanding the foregoing
enumeration, in case of doubt as to whether particular information is confidential, the same shall be treated as confidential.
Recipient shall not, without the prior written consent of the Disclosing Party:
(a) disclose to any person that it possesses such Confidential Information;
(b) disclose any or all parts of the Confidential Information to any person, including any third party or its employees, unless such persons are required to have knowledge of the Confidential Information for the parties to achieve their mutual purposes, as may be determined by the Disclosing Party, and they have been advised of the confidential and proprietary nature of the Confidential Information and have agreed to protect the same; or
(c) reproduce, copy or permit to be reproduced or copied Confidential Information in any medium or form; Provided, that the Recipient shall AT ALL TIMES protect the Confidential Information by using the same degree of care to prevent its unauthorized use, dissemination or publication as the Recipient uses to protect its own confidential information of a like nature, but no less than a reasonable degree of care, and that the Recipient shall, for and on behalf of the Disclosing Party, enforce this Agreement against those persons to whom it is authorized to disclose any such Confidential Information of the Disclosing Party.
Notwithstanding the above, if the Recipient is obliged or required by any court or governmental, regulatory, or other body or person, to disclose Confidential Information, it shall notify the Disclosing Party in writing of the circumstances under which such disclosure will be made, including the nature of the disclosure and the entity to which it is to be made, and shall, if so required in writing and for valid and lawful reasons by the Disclosing Party, and if practicable or feasible, cooperate with the Disclosing Party in opposing such requirement or request, subject to the duty of the Disclosing Party to equally share with the Recipient
the necessary litigation and related expenses for the purpose. In such case, neither the Recipient, its affiliates, subsidiaries nor its relevant staff or employees shall bear any liability under this Agreement if the Recipient, or its affiliates, subsidiaries or its relevant staff or employees discloses Confidential Information pursuant to any law, order or other governmental or judicial authority’s requirement
The restrictions above shall not apply to Confidential Information which:
(a) becomes publicly known through no wrongful act of the Recipient, or
(b) becomes known to the Recipient without confidential or proprietary restriction from a source other than any of the parties, or
(c) the Recipient rightfully possessed without obligation of confidentiality before communication by the Disclosing Party, as evidenced by written records; or
(d) is independently developed by the Recipient through persons who have not had either direct or indirect access to or knowledge of such information and which fact can be proven by independent evidence; or
(e) is disclosed with written approval of the Disclosing Party or after the applicable period of confidentiality has expired; or
(f) lawfully and rightfully received by the Recipient from sources other than the Disclosing Party under circumstances not involving, to the best of the knowledge of the Recipient, any breach of the confidentiality of the Confidential Information defined in this Agreement.
In consideration of the mutual exchange and disclosure of Confidential Information, each party undertakes, in relation to the other party’s Confidential Information:
(a) To maintain the same in strict confidence and to use it solely and exclusively for the mutual purpose or purposes of the parties, for which the Confidential Information was disclosed, and not for any other purpose or benefit or for the purpose or benefit of any unauthorized third party;
(b) To ensure that its employees, and the employees of its subsidiaries and affiliates having access to the Confidential Information adhere to the terms and conditions of this Agreement;
(c) Not to use the Confidential Information to gain or attempt to gain a competitive advantage over the Disclosing Party;
(d) To apply thereto security measures and such degree of care not less than those which the Recipient applies to its own confidential or proprietary information and which the Recipient warrants as providing adequate protection of such information from unauthorized disclosure, copy or use, but no less than reasonable care; and
(e) To immediately notify in writing the other party upon discovery of any unauthorized use or disclosure of Confidential Information or Confidential Materials, or any other breach of this Agreement, and will cooperate with the other party in every reasonable way to help it regain possession of the Confidential Information and/or Confidential Materials and prevent further unauthorized use or disclosure thereof.
Notwithstanding the expiration or termination of this Agreement, the obligation of the parties to protect Confidential Information and the restrictions on use of Confidential Information shall survive indefinitely or until the Recipient is relieved of such obligation by the Disclosing Party.
Upon termination of this Agreement,, or receipt of a written request from the other party, which written request shall enumerate the specific documents and materials wished by the Disclosing Party to be returned to it by the Recipient, the Disclosing Party may demand of the Recipient the immediate return of all copies of documents and materials containing Confidential Information disclosed to Recipient by the Disclosing Party, to the possession or control of the Disclosing Party. The Recipient shall certify in
writing to the Disclosing Party that the Recipient retains no copy and has fully complied with the requirements of this item. Any Oral Confidential Information will continue to be subject to the terms and conditions of this Agreement.
Notwithstanding the preceding paragraph, the Recipient shall not be obligated to erase the Confidential Information or Confidential Material that is contained in an archived computer system backup made in accordance with the Recipient’s security and/or disaster recovery procedures provided that such archived copy will (i) eventually be erased or destroyed in the ordinary course of the Recipient’s data processing procedures; and (ii) such copy shall remain fully subject to the obligations of confidentiality stated herein, until the erasure or the destruction of such copy, or the expiration of such confidentiality obligations, whichever comes earlier.
Each Party reserves all rights it may have by law or contract to its Confidential Information and no rights or obligation other than those expressly stated herein are granted or implied from this Agreement, unless otherwise agreed in writing by the parties. No license is hereby granted by one Party to the other, directly or indirectly, under any existing patent, invention, discovery, copyright, trade secret, trademark, service mark, or other intellectual property held or obtained in the future by either Party.
Unless otherwise stated in this Agreement, no warranty, express or implied, in the Confidential Information disclosed is granted by this Agreement, and warranties of merchantability, fitness for a particular purpose, accuracy or completeness are hereby disclaimed.
In the event of a violation by one Party of any provision of this Confidentiality Clause, the other Party shall have the full right to seek injunctive relief, in addition to any other existing rights provided in this Agreement or by operation of law. The Party who caused the breach or violation of this Agreement shall reimburse the other Party for all costs, expenses or damages that it may incur as a result of any violation of any provision of this Agreement. This obligation shall include court costs, litigation expenses, and reasonable attorneys’ fees.