THIS MUTUAL CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT (“Agreement”), is entered into and effective as of the date of form submission (the “Effective Date”), is entered into by and between the Disclosing Party (the “Disclosing Party”) and the named Company, in the form submission, including any parent company, subsidiary, associate or agent (the “Recipient”, and together with the Disclosing Party, the “Parties”, and each, a “Party”).
A. WHEREAS, the Parties wish to exchange certain information for the purpose of evaluating a business relationship (the “Purpose”), which may require each Party to disclose Confidential Information (as defined below) that it considers and protects as confidential and/or proprietary.
B. WHEREAS, each Party desires that the other Party respect the confidential nature of the Confidential Information disclosed, use that Confidential Information only for the Purpose and protect such Confidential Information from unauthorized use or disclosure.
C. WHEREAS, this Agreement sets forth the terms under which Confidential Information of Discloser (as defined below) to Recipient (as defined below) is to be treated and handled.
NOW THEREFORE, the Parties agree, in consideration of the mutual covenants and provisions set forth below and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and in further consideration of the disclosure of the Confidential Information as anticipated by this Agreement, such disclosure is subject to the following terms and conditions:
1. DEFINITIONS.
“Recipient” means a Party, including such Party’s subsidiaries and affiliates, receiving Confidential Information from or regarding the other Party.
“Discloser” means a Party, including such Party’s subsidiaries and affiliates, disclosing or otherwise providing Confidential Information to the other Party.
“Confidential Information” means all information disclosed to Recipient, whether disclosed orally, in writing or by any other media, which the Discloser considers and/or protects as confidential or proprietary, and expressly including without limitation, all of the following: any medical or personal information concerning any customer or employee, any information concerning customers, suppliers or patients (including customer, supplier and patient lists), any trade secret, know-how, idea, invention, essay, process, procedure, pattern, analytical methodology, technique, prototype, algorithm, code, program (whether in source code or object code form), hardware, device, technology, design, schematic, drawing, formula, data, plan, operation, agreement, contract, license, program devices, business circular, prospectuses, memoranda, model, sample, projection, strategy or forecast, any scientific, technical, engineering, manufacturing, product, product application, marketing, servicing, financial, personnel and other information and materials of Discloser and its employees, consultants, investors, affiliates, licensors, suppliers, vendors, customers, clients and other persons and entities that is clearly and conspicuously marked “CONFIDENTIAL” by the Discloser before it is delivered or disclosed to the Recipient, or that reasonably should be considered confidential by a reasonable business person under the circumstances of disclosure. For the avoidance of doubt, Confidential Information expressly includes all analyses, compilations, forecasts, data studies, translations, memoranda, or other documents or materials, prepared by or for the Recipient, its employees, representatives or contractors containing, based on, generated or derived from, in whole or in part, any Confidential Information or information otherwise revealed or discovered during the course of either Party’s examination of the Purpose. Further, Confidential Information shall include the fact that the Parties have entered into the subject discussions regarding the Purpose, which information the Parties each desire to keep confidential.
2. LIMITATION ON USE.
Confidential Information may be used by the Recipient solely for the Purpose and for no other purpose, including but not limited to, any solicitation of Discloser’s employees, suppliers, or customers or to compete with Discloser’s business (directly or indirectly), without the prior written consent of the Discloser. Recipient must segregate any Confidential Information of Disclosure and not intermingle such Confidential Information with any other information. In addition, Recipient will not (i) make any copies of the Confidential Information except to the extent reasonably necessary to carry out the Purpose, or unless otherwise approved in writing in advance by Discloser or (ii) decompile, disassemble or otherwise reverse engineer any Confidential Information or any portion thereof, or determine or attempt to determine any source code, algorithms, methods or techniques embodied in any Confidential Information or any portion thereof.
3. LIMITATION ON DISCLOSURE.
Recipient shall accept and hold the nature and contents of the Discloser’s Confidential Information, in strict confidence. Recipient shall not disclose or reveal the Discloser’s Confidential Information, directly or indirectly, to any third party (including without limitation any affiliate, subsidiary, or parent of Recipient), or use the information for another’s benefit, without the prior written consent of the Discloser.
4. DISCLOSURE TO EMPLOYEES.
Recipient may disclose the Confidential Information only to those of its employees, officers, directors, independent contractors and professional advisors who need to know the Confidential Information in order to evaluate and carry out the Purpose, provided Recipient has instructed each individual to whom it intends to disclose the Confidential Information that such Confidential Information is confidential and/or proprietary and required them to maintain the confidential nature of the Confidential Information. Nothing in this Agreement permits, or is intended to permit, Recipient from disclosing the Confidential Information to any affiliate or subsidiary of Recipient or any officer, director, employee, representative or agent of such affiliate or subsidiary.
5. PROTECTION.
Recipient shall take all reasonable measures to prevent a breach of confidentiality under this Agreement and protect the Confidential Information against unauthorized use or disclosure, which measures shall be at least as effective as those taken by Recipient to protect its own Confidential Information. Recipient warrants that such measures are reasonably calculated to prevent the disclosure of Confidential Information.
6. EXCLUSIONS.
The provisions of this Agreement shall not apply to information the Recipient can reasonably prove: (i) at the time of disclosure by Discloser was in the public domain; (ii) becomes part of the public domain by publication or otherwise without a breach of this Agreement by Recipient; (iii) was lawfully in Recipient’s possession prior to the date of disclosure by Discloser, or was developed by employees or contractors of Recipient who had no knowledge of the Confidential Information and independent of disclosure by Discloser; or (iv) was disclosed to Recipient by an independent third party having the right to disclose it.
7. REQUIRED DISCLOSURE BY LAW.
If Recipient is required by a government body or court of law to disclose Confidential Information, Recipient will give Discloser reasonable advance written notice so that Discloser may contest the disclosure or seek a protective order. Recipient further agrees that if Discloser is not successful in precluding the requesting legal body from requiring the disclosure of the Confidential Information, it will furnish only that portion of the Confidential Information that is legally required, will promptly provide Discloser with a copy of the information so furnished, and will exercise all reasonable efforts to obtain reliable assurances that the Parties accord it confidential treatment.
8. TERM.
The terms of this Agreement and the restrictions and the limitations on the use and disclosure of Confidential Information shall remain effective and shall survive any termination or expiration of this Agreement and continue indefinitely.
9. OWNERSHIP.
All Confidential Information of Discloser (including, without limitation, all copies, extracts and portions thereof, and all information, documents, and other materials created from or which contain or reflect Confidential Information, including any such matters produced or created from or which contain or reflect Confidential Information, including any such matters produced or created by the Recipient) is and will remain the sole property of Discloser. Recipient does not acquire (by license or otherwise, whether express or implied) any intellectual property rights or other rights under this Agreement or any disclosure hereunder, except the limited right to use such Confidential Information in accordance with the express provisions of this Agreement. All rights relating to the Confidential Information that are not expressly granted hereunder to Recipient are reserved and retained by Discloser.
10. NO OBLIGATION.
Nothing contained in this Agreement shall be construed by implication or otherwise as an obligation, express or implied, to enter into any further agreement concerning the Confidential Information or the Purpose, or as a grant of a license to Recipient by Discloser to use the Confidential Information (except for the Purpose), or as a grant of any other right under any intellectual property or other proprietary right. It is understood that any disclosure of Confidential Information under this Agreement does not constitute a public disclosure, sale or offer for sale of the Confidential Information.
11. RETURN OF INFORMATION.
Recipient, upon termination of the Purpose as agreed upon by the Parties in writing or upon Discloser’s written request, will promptly return or destroy all Confidential Information received by Recipient, together with all tangible copies within Recipient’s possession, custody or control, in any and all forms, formats and media, and certify in writing that all such Confidential Information and all such copies thereof have been returned or destroyed. If occurring in the event of termination of the Purpose, such return or certification of destruction will occur no later than thirty (30) days of termination.
12. NOTIFICATION.
Should Recipient determine or suspect that unauthorized use or disclosure of Confidential Information has taken place, Recipient shall immediately notify Discloser and reasonably cooperate to regain possession, prevent further unauthorized use, and mitigate the consequences of the disclosure.
13. REMEDIES.
Both Parties agree that monetary damages may be an insufficient remedy for a breach of this Agreement and unauthorized disclosure of Confidential Information, which disclosure could constitute irreparable harm. As a result, Discloser may seek injunctive or other equitable relief without posting of a bond, proof of damages or other similar restriction, in addition to all other remedies available at law or in equity, in the event of a breach or threatened breach of this Agreement or disclosure of Confidential Information.
14. WARRANTY DISCLAIMER.
NO WARRANTIES ARE MADE BY THE DISCLOSING PARTY UNDER THIS AGREEMENT WHATSOEVER.
15. DISPUTE RESOLUTION AND GOVERNING LAW.
In the event that either Party commences any legal or equitable action or proceeding, including, without limitation, an action for declaratory relief or any other form of relief, in order to enforce, interpret, reform, rescind or in any other manner effect the provisions of, and/or relating to this Agreement against the other Party, such proceeding shall be commenced exclusively in the state and federal courts located in the Commonwealth of Massachusetts, USA. This Agreement shall be construed and performed exclusively under the laws of the Commonwealth of Massachusetts, except with respect to its choice of law provisions and substantive issues, which have been preempted by the laws of the United States of America and as to those issues the federal law shall apply. The prevailing Party shall be entitled to recover from the other all necessary expenses and reasonable attorneys’ fees awarded, in addition to any other relief to which it is entitled. Additional attorneys’ fees may be awarded the prevailing Party in any appellate action taken after an initial decision on the merits.
16. ASSIGNMENT.
This Agreement shall be binding upon and shall inure to the benefit of the Parties and their successors and permitted assigns. The Disclosing Party may, without consent, assign or transfer this Agreement and its rights and obligations hereunder to (i) a third party involved in the transfer or sale of all or substantially all of its business to which this Agreement pertains; or (ii) a third party involved in a merger, consolidation, change in control or similar transaction, so long as the Disclosing Party provides written notice to the other Party of such assignment or transfer within thirty (30) days following such assignment or transfer.
17. NOTICE.
Any notice given under this Agreement shall be valid and effective if in writing and if personally delivered, or delivered postage prepaid, first class mail, or overnight courier, or by facsimile confirmed by postage prepaid, first class mail, addressed to the other Party at the address shown above. Any notice shall be deemed received (a) immediately upon personal delivery, (b) the next day after submission to a reputable overnight courier or (c) upon transmission by facsimile with confirmed receipt in possession of sender.
18. ENTIRE AGREEMENT.
This Agreement (a) supersedes and cancels all previous agreements, written or oral, between the Parties regarding the disclosure of information, (b) contains the entire agreement between the Parties regarding the disclosure of information, (c) may not be altered or waived other than by a writing signed by both parties.
19. EXPORT COMPLIANCE.
Recipients will adhere to all applicable United States and foreign export control laws and regulations and will not export or re-export any Confidential Information or other technical data or products to any proscribed country listed in the U.S. Export Administration regulations, or foreign national thereof, unless properly authorized by the U.S. Government.
20. COUNTERPARTS; ELECTRONIC EXECUTION.
This Agreement may be executed in one or more counterparts, each of which will be deemed an original, and all of which together will be deemed one and the same instrument. This Agreement may be executed by electronic signature or other electronic means, including acceptance via an online form or similar submission process, and such execution or acceptance will be deemed binding as if executed in person.
21. NON SOLICITATION / NON CIRCUMVENT.
The Parties acknowledge each Parties’ personnel represents a valuable asset and that the Parties would suffer a significant loss and be deprived of the benefits of its work forces if the Parties were to hire the other Party’s personnel. Therefore, from the Effective Date of this Agreement until two (2) years after the termination of this Agreement, the Parties will not, without the other Parties’ prior written consent, directly or indirectly, solicit or encourage any employee or contractor of the Parties or its affiliates to terminate employment with, or cease providing services to, Parties or its affiliates.
22. SEVERABILITY.
In the event any arbitrator or court of competent jurisdiction should find any provision of this Agreement to be unenforceable or invalid, such provision shall be modified to the minimum extent possible to make it enforceable or valid. In the event such modification should prove impossible or impracticable the offending provision shall be severed from the Agreement, with the remaining terms of this Agreement to be enforced to the maximum extent permitted by law.