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Information (including, without limitation, all precautions the Receiving Party |
employs with respect to its most confidential materials), (ii) not to divulge |
any such Proprietary Information or any information derived therefrom to any |
third person (except consultants or agents, subject to the conditions stated |
below), (iii) not to make any use whatsoever at any time of such Proprietary |
Information except to evaluate internally whether to enter into a proposed |
business transaction with the Disclosing Party without the prior written |
permission of the disclosing party, (iv) not to remove or export from the United |
States or re-export any such Proprietary Information or any direct product |
thereof except in compliance with all licenses and approvals required under |
applicable export laws and regulations, including without limitation, those of |
the U.S. Department of Commerce, and (v) not to copy or reverse engineer any |
such Proprietary Information. |
Any employee, consultant or agent given access to |
any such Proprietary Information must have a legitimate "need to know" and shall |
be similarly bound in writing. |
The parties shall be entitled to exchange |
Proprietary Information under the |
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terms of this Agreement for a period not to exceed two (2) years from the date |
hereof, unless otherwise extended by mutual written agreement of the parties or |
incorporated into a separate agreement. |
Without granting any right or license, |
the Disclosing Party agrees that the foregoing clauses (i), (ii), (iii) and (v) |
shall not apply with respect to all obligations after five (5) years following |
the disclosure thereof or any information that the Receiving Party can document |
(i) is or (through no improper action or inaction by the Receiving Party or any |
agent, consultant or employee) becomes generally known to the public, (i) was in |
its possession or the possession of an affiliate or consultant or known by it |
prior to receipt from the Disclosing Party, (iii) was rightfully disclosed to |
it, an affiliate or a consultant by a third party without restriction, or (iv) |
was independently developed without use of any Proprietary Information of the |
Disclosing Party by employees of the Receiving Party who can be demonstrated to |
have had no access to such information. |
The Receiving Party may make disclosures |
required by court order provided the Receiving Party uses diligent efforts to |
limit disclosure and to obtain confidential treatment or a protective order and |
has allowed the Disclosing Party to participate in the proceeding. |
2. |
Patent or Copyright Infringement. |
Nothing in this Agreement is |
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intended to grant any rights under any patent or copyright of the Disclosing |
Party, nor shall this Agreement grant the Receiving Party any rights in or to |
the Disclosing Party's Proprietary Information, except the limited right to |
review such Proprietary Information solely for the purpose of evaluating a |
possible business transaction. |
3. |
Return of Materials. |
Immediately upon (i) the decision by either |
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party not to enter into a relationship as a result of the exchange of |
information hereunder, or (ii) a request by the Disclosing Party at any time, |
the Receiving Party will turn over to the Disclosing Party all Proprietary |
Information of the Disclosing Party and all documents or media containing any |
such Proprietary Information and any and all copies or extracts or derivatives |
thereof to the extent it is requested by either party in writing, except that a |
single copy may be retained for legal archival purposes, subject to protection |
and non-disclosure in accordance with the term of this agreement. |
The Receiving |
Party understands that nothing herein (i) requires the disclosure of any |
Proprietary Information of the Disclosing Party, which shall be disclosed if at |
all solely at the option of the Disclosing Party, or (ii) requires the |
Disclosing Party to proceed with any proposed transaction or relationship in |
connection with which Proprietary Information may be disclosed. |
4. |
No Publicity. |
Except to the extent required by law, neither |
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party shall disclose the existence or subject matter of the negotiations or |
business relationship contemplated by this Agreement. |
5. |
Securities Law Considerations. |
Each party is aware, and will |
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advise its employees, consultants and agents who are informed of the matters |
that are the subject of this agreement, of the restrictions imposed by the |
United States securities laws on the purchase and sale of securities by any |
person who has received material, non-public information from the issuer of such |
securities and on the communication of such information to any other person when |
it is reasonably foreseeable that such other person is likely to purchase or |
sell such securities in reliance upon such information. |
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6. |
Miscellaneous. |
The Receiving Party acknowledges and agrees that |
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due to the unique nature of the Disclosing Party's Proprietary Information, |
there can be no adequate remedy at law for any breach of its obligations |
hereunder, that any such breach may allow the Receiving Party or third parties |
to unfairly compete with the Disclosing Party resulting in irreparable harm to |
the Disclosing Party, and therefore, that upon any such breach or any threat |
thereof, the Disclosing Party may seek appropriate equitable relief (without the |
need to post bond or other security) in addition to whatever remedies it might |
have at law. |
The Receiving Party will notify the Disclosing Party in writing |
immediately upon the occurrence of any such unauthorized release or other breach |