WHEREAS, Disclosing Party possesses certain Confidential Information (as defined below);
WHEREAS, in connection with the pursuit, evaluation and/or feasibility of a business relationship and/or the consummation of a business relationship or transaction between Receiving Party and Disclosing Party or its Affiliates (collectively, the “Business Purposes”), Confidential Information of Disclosing Party may or has become available to Receiving Party; and WHEREAS, Disclosing Party desires to prevent the unauthorized use and disclosure of its Confidential Information.
NOW THEREFORE, in consideration of these premises and for other good and valuable consideration, receipt of which is hereby acknowledged, the parties agree as follows:
1. Confidential Information.
a. For purposes of this Agreement, the term “Confidential Information” shall, include, but not be limited to, all information (whether in print, on computer disks or in any other media, and whether internally generated or used by the Disclosing Party under contract with any third party) relating to ideas, concepts, processes, whether patented or not, technical information, inventions, discoveries, computer software, know-how, and product information, formulae, specifications, electronic files, strategic development and marketing plans, financial records, business plans, data, business records, customer information, project records, market reports, blueprints, techniques, designs, diagrams, models, technical data (e.g., financial and personnel data) regarding sales, costs, pricing, marketing, contracts with third parties, plans for product developments or improvements, research records, computer programs, computer interfaces, business and strategic plans, financial forecasts and all other information that may be or has been disclosed by the Disclosing Party or to which the Receiving Party, its agents, Affiliates or others may be or has been provided access by the Disclosing Party, its agents, Affiliates or others (regardless of whether or not specifically marked as “confidential”), or any other information that derives economic value, either directly or indirectly, from being confidential to or trade secrets of the Disclosing Party, its Affiliates or its actual or potential clients or which is generated as a result of or in connection with the Business Purposes, all of which is not generally available to the public.
b. The parties acknowledge and agree that some or all of the property that constitutes Confidential Information may not be a trade secret or qualify for protection under copyright or patent law, but the parties nevertheless acknowledge the property rights of the Disclosing Party in the Disclosing Party’s Confidential Information without regard to whether the Confidential Information is or may be subject to protection under any federal or state copyright, patent, trade secret or other laws, it being the specific intent of the parties that the provisions of this Agreement are to be in addition to any protection, right or remedy otherwise provided by law or available in equity.
2. Non-disclosure Obligations. The Receiving Party and/or any of its agents, employees and Affiliates agree that the Confidential Information of the Disclosing Party is the property of the Disclosing Party and to receive and hold such Confidential Information in strict confidence. Without limiting the generality of the foregoing, the Receiving Party and/or any of its Affiliates further agree:
a. To protect and safeguard the Confidential Information against unauthorized use, publication or disclosure.
b. Not to use any of the Confidential Information except for the Business Purposes.
c. Not to, directly or indirectly, in any way, reveal, report, publish, disclose, transfer or otherwise use any of the Confidential Information except as specifically authorized by the Disclosing Party in writing.
d. Not to use any Confidential Information to compete against or to obtain an unfair advantage over the Disclosing Party in any commercial activity that may be comparable to the commercial activity conducted by the Disclosing Party or contemplated by the parties in connection with the Business Purposes.
e. To restrict access to the Confidential Information to those of its officers, directors, employees, agents and Affiliates who clearly need such access to carry out the Business Purposes.
f. To advise each of the persons or entities to whom it provides access to any of the Confidential Information, that such persons or entities are strictly prohibited from making any use, publishing or otherwise disclosing to others, or permitting others to use for their benefit or to the detriment of the Disclosing Party, any of the Confidential Information, and, upon request of the Disclosing Party, to provide the Disclosing Party with a copy of a written agreement to that effect signed by such persons or entities. The Receiving Party acknowledges and agrees that it will be responsible to the Disclosing Party for any breach of the terms hereunder by the Receiving Party or the persons or entities referred to in this Section 2(f).
g. To comply with any other reasonable security measures requested in writing by the Disclosing Party.
3. Exceptions. The confidentiality obligations hereunder shall not apply to Confidential Information that:
a. Is, or later becomes, generally known to the public other than by breach of the provisions of this Agreement or the breach of a similar confidentiality obligation;
b. Is in the possession of the Receiving Party with the full right to disclose publicly prior to its receipt from the Disclosing Party, as evidenced by written records; or
c. Is independently received by the Receiving Party from a third party, with no restrictions on disclosure, so long as the delivery of information to the Receiving Party does not cause such third party to violate any agreement to which it is a party and the information was not obtained (by the third party or a predecessor source) in violation of any law or contract.
4. Return of Confidential Information. The Receiving Party agrees, upon termination of the Business Purposes or upon the written request of the Disclosing Party, whichever is earlier, to promptly deliver to the Disclosing Party all records, notes, and other written, printed, or tangible materials in the possession of the Receiving Party, embodying or pertaining to the Confidential Information.
5. No Right to Confidential Information. The Receiving Party hereby agrees and acknowledges that no license, either express or implied, is hereby granted to the Receiving Party by the Disclosing Party to use any of the Confidential Information, except for the Business Purposes.
6. Term. This Agreement shall remain, with respect to each item of Confidential Information disclosed by the Disclosing Party, in full force and effect for so long as such Confidential Information does not become generally known to the public without the Receiving Party’s or any of the Receiving Party’s representative’s or Affiliate’s fault or negligence. The Receiving Party shall promptly notify the Disclosing Party, in writing, of any act or omission to act by the Receiving Party or its Affiliate(s), which directly or indirectly causes or may be reasonably expected to cause unauthorized use or disclosure of any part or all of the Disclosing Party’s Confidential Information to any third party.
7. Definition of Affiliates. For purposes of this Agreement, “Affiliates” shall mean corporations, partnerships, joint ventures and other entities controlling, controlled by or under common control of such party.
8. Remedies. The Receiving Party understands and acknowledges that any disclosure or misappropriation of any of the Confidential Information in violation of this Agreement may cause the Disclosing Party irreparable harm, the amount of which may be difficult to ascertain and, therefore, agrees that the Disclosing Party shall have the right to apply to a court of competent jurisdiction for an order restraining any such further disclosure or misappropriation and for such other relief as the Disclosing Party shall deem appropriate. Such right of the Disclosing Party shall be in addition to remedies otherwise available to the Disclosing Party at law or in equity.
9. Successors and Assigns. The Receiving Party shall have no right to assign its rights under this Agreement, whether expressly or by operation of law, without the written consent of the Disclosing Party. This Agreement and the Receiving Party’s obligations hereunder shall be binding on representatives, permitted assigns, and successors of the Receiving Party and shall inure to the benefit of representatives, assigns and successors of the Disclosing Party.
10. Applicable Law. The validity of this Agreement and the interpretation and construction thereof shall be governed by the laws of the State of Washington.
11. Consent to Jurisdiction. For those matters or disputes of any nature arising out of, connected with, related or incidental to this Agreement, the parties hereto hereby irrevocably submit themselves to the exclusive jurisdiction of the courts of the State of Washington and to the jurisdiction of the United States District Court. The parties hereto hereby individually agree that they shall not assert any claim that they are not subject to the jurisdiction of such courts, that the venue is improper, that the forum is inconvenient or any similar objection, claim or argument. Service of process on any of the parties hereto with regard to any such action may be made by mailing the process to such persons by regular or certified mail to the address of such person set forth herein or to any subsequent address to which notices shall be sent or in any other manner permitted by applicable law.
12. Attorneys’ Fees. In any action or proceeding brought to enforce any provision of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs from the other party to the action or proceeding. For purposes of this Agreement, the “prevailing party” shall be deemed to be that party who obtains substantially the result sought, whether by settlement, mediation, judgment or otherwise, and “attorneys’ fees” shall include, without limitation, the actual attorneys’ fees incurred in retaining counsel for advice, negotiations, suit, appeal or other legal proceeding, including mediation and arbitration.
13. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original for all purposes when signed by any of the parties hereto.
14. Notices. Any notice, request, demand or other communication required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given when received if personally delivered; when transmitted if transmitted by fax or similar electronic transmission method; the day after it is sent, if sent by recognized expedited delivery service; and five (5) days after it is sent, if mailed, first class certified mail, return receipt requested, postage prepaid, in each case if provided to the other party at the following address (or at such other address that may be given in writing by a party to the others pursuant to this Section 14): Disclosing Party and the Receiving Party (entered below).
15. Entire Agreement. This Agreement constitutes the entire agreement, and supersedes all prior agreements and understandings, oral and written, among the parties to this Agreement with respect to the subject matter hereof.
16. Severability. Any provision of this Agreement which is determined by a court of competent jurisdiction to be prohibited, unenforceable or not authorized shall be ineffective to the extent of such prohibition, unenforceability or non-authorization without invalidating the remaining provisions hereof or affecting the validity, enforceability or legality of such provision in any other jurisdiction. In any such case, such determination shall not affect any other provision of this Agreement, and the remaining provisions of this Agreement shall remain in full force and effect. If any provision or term of this Agreement is susceptible to two or more constructions or interpretations, one or more of which would render the provision or term void or unenforceable, the parties agree that a construction or interpretation which renders the term or provision valid shall be favored.
17. Captions and Paragraph Headings. Captions and paragraph headings used herein are for convenience only and are not a part of this Agreement and shall not be used in construing it.
IN WITNESS WHEREOF, the parties have executed this Agreement on and as of the date first referenced above.