In connection with the parties’ respective evaluation of the Transaction, each party, their respective affiliates and their respective directors, officers, employees, agents or advisors (collectively, “Representatives”) may provide or grant access to certain confidential and proprietary information. A party disclosing its Confidential Information to the other party is hereafter referred to as a “Disclosing Party.” A party receiving the Confidential Information of a Disclosing Party is hereafter referred to as a “Receiving Party.” In consideration for being furnished Confidential Information, Disclosing Party and Receiving Party agree as follows:
1. Confidential Information. The term “Confidential Information” as used in this Agreement shall mean any data or information that is competitively sensitive material and not generally known to the public, including, but not limited to, information relating to any of the following:
☒ product development
and plans
☒ proprietary concepts
☒ technical or product
documentation
☒ marketing strategies
☒ financial development plans
☒ operations
☒ systems
☒ reports
☒ specifications
☐ computer software
☒ source code
☒ object code
☒ flow charts
☒ databases
☒ inventions
☒ know-how
☒ trade secrets
☒ customer lists
☒ customer
relationships
☒ customer profiles
☒ supplier lists
☒ supplier relationships
☒ supplier profiles
☐ pricing
☒ sales estimates
☒ business plans and internal
performance results relating
to the past
☒ present or future business
activities
☒ technical information
☒ design
☒ technical processes
☒ company procedures
☒ formula
☒ improvement
☒ technical or product data
☒ other: curriculum/ anmethodology/pedagogy
which Disclosing Party considers confidential.
2. Exclusions from Confidential Information. The obligation of confidentiality with respect to Confidential Information will not apply to any information:
a. If the information is or becomes publicly known and available other than as a result of prior unauthorized disclosure by Receiving Party or any of its Representatives;
b. If the information is or was received by Receiving Party from a third-party source which, to the best knowledge of Receiving Party or its Representatives, is or was not under a confidentiality obligation to Disclosing Party with regard to such information;
c. If the information is disclosed by Receiving Party with the Disclosing Party’s prior written permission and approval;
d. If the information is independently developed by Receiving Party prior to disclosure by Disclosing Party and without the use and benefit of any of the Disclosing Party’s Confidential Information; or
e. If Receiving Party or any of its Representatives is legally compelled by applicable law, by any court, governmental agency or regulatory authority or by subpoena or discovery request in pending litigation but only if, to the extent lawful, Receiving Party or its Representatives give prompt written notice of that fact to Disclosing Party prior to disclosure so that Disclosing Party may request a protective order or other remedy to prevent or limit such disclosure and in the absence of such protective order or other remedy, Receiving Party or its Representatives may disclose only such portion of the Confidential Information which it is legally obligated to disclose.
3. Obligation to Maintain Confidentiality. With respect to Confidential Information:
a. Receiving Party and its Representatives agree to retain the Confidential Information of the Disclosing Party in strict confidence, to protect the security, integrity and confidentiality of such information and to not permit unauthorized access to or unauthorized use, disclosure, publication or dissemination of Confidential Information except in conformity with this Agreement;
b. Receiving Party and its Representatives shall adopt and/or maintain security processes and procedures to safeguard the confidentiality of all Confidential Information received by Disclosing Party using a reasonable degree of care, but not less than that degree of care used in safeguarding its own similar information or material;
c. Upon the termination of this Agreement, Receiving Party will ensure that all documents, memoranda, notes and other writings or electronic records prepared by it that include or reflect any Confidential Information are returned or destroyed as directed by Disclosing Party;
d. If there is an unauthorized disclosure or loss of any of the Confidential Information by Receiving Party or any of its Representatives, Receiving Party will promptly, at its own expense, notify Disclosing Party in writing and take all actions as may be necessary or reasonably requested by Disclosing Party to minimize any damage to the Disclosing Party or a third party as a result of the disclosure or loss; and
e. (Check one)
☒ Maintain Confidentiality Indefinitely. The obligation not to disclose Confidential Information shall survive the termination of this Agreement, and at no time will Receiving Party or any of its Representatives be permitted to disclose Confidential Information, except to the extent that such Confidential Information is excluded from the obligations of confidentiality under this Agreement pursuant to Paragraph 2 above.
☐ Maintain Confidentiality for a Definite Period. The obligation not to disclose Confidential Information shall remain in effect until ___________ ☐ months ☐ years from the date hereof or until the Confidential Information ceases to be a trade secret, except to the extent that such Confidential Information is excluded from the obligations of confidentiality under this Agreement pursuant to Paragraph 2 above.
4. Non-Disclosure of Transaction. Without Disclosing Party’s prior written consent, neither Receiving Party nor its Representatives shall disclose to any other person, except to the extent, the provisions of Paragraph 2 apply: (a) the fact that Confidential Information has been made available to it or that it has inspected any portion of the Confidential Information; (b) the fact that the Disclosing Party and Receiving Party are having discussions or negotiation concerning the Transaction; or (c) any of the terms, conditions or other facts with respect to the Transaction.