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1. AUTHORIZED PURPOSE. Under this Agreement, each party will disclose certain information it considers confidential or proprietary in connection with an relationship between the Person and the Undersigned (the “Authorized Purpose”). In consideration of this disclosure by a party (the “Disclosing Party”), and the willingness of the other receiving party (the “Receiving Party”) to protect the confidential information of the Disclosing Party, the parties agree as follows:
2. CONFIDENTIAL INFORMATION. For purposes of this Agreement, the term “Confidential Information” means:
(a) Any business, technical or other non-public and proprietary information relating to the Disclosing Party that the Receiving Party receives from the Disclosing Party on or after the date of this Agreement in the course of the Authorized Purpose, regardless of the medium of conveyance (directly or indirectly, and whether in oral, written, graphic, electronic, or any other form, or through inspection, review or analysis); and
(b) including information relating to Disclosing Party’s (i) computer systems and architecture, security systems and procedures; (ii) its customer or shareholder information, which includes data regarding any current, prospective or former customers or shareholders of Disclosing Party and (iii) the fact that Confidential Information may be or has been provided by the Disclosing Party to the Receiving Party, and the fact that the Receiving Party may be, or has been, participating in discussions with the Disclosing Party.
3. NON-PROTECTED INFORMATION. Confidential Information does not include any information that:
(a) Is already known to or in the possession of the Receiving Party or its Representatives (as defined below) without, to the knowledge of the Receiving Party a restriction on disclosure at the time of disclosure;
(b) Is, was or becomes generally publicly available without breach of this Agreement by the Receiving Party or its Representatives;
(c) Is, was or becomes available the Receiving Party or its Representatives from a third party who is not known, by the Receiving Party, to be under a duty of confidentiality to the Disclosing Party with respect to such information;
(d) Is or was independently developed by the Receiving Party or its Representatives without the reliance upon the Disclosing Party’s Confidential Information; or
(e) The Disclosing Party agrees in writing is free of the restrictions set forth in this Agreement.
The Receiving Party will have the obligation to prove, the existence of one of the foregoing exclusions from Confidential Information.
TREATMENT OF CONFIDENTIAL INFORMATION.
(a) The “Confidentiality Period” starts on the Effective Date and terminates upon twelve (12) months after the Effective Date. Nowithstanding the foregoing, the confidentiality obligations of this Agreement shall terminate and the terms and conditions shall have no further force and effect upon twenty-four (24) months from the date hereof.
(b) During the Confidentiality Period, the Receiving Party agrees it will (i) not use, disclose, copy or transmit the Disclosing Party’s Confidential Information except as required to accomplish the Authorized Purpose, and then only as permitted in this Agreement, (ii) employ commercially reasonable measures to avoid unauthorized disclosure or transmission of the Disclosing Party’s Confidential Information in breach of this Agreement, consistent with the measures that the Receiving Party uses to protect its own most sensitive confidential information.
5. RESTRICTIONS ON USE. During the Confidentiality Period, the Receiving Party will restrict the disclosure of the Disclosing Party’s Confidential Information to (i) its own Affiliates (as defined below) and its and their respective personnel, directors, officers and employees (collectively, “Representatives”), (ii) to any professional advisers engaged by the Recipient including, without limitation, accountants, consultants tax advisers, lawyers, brokers or agents (its “Professional Advisers”) in respect of any transaction that is or may be entered into between the Parties which relates to the Authorized Purpose, provided that such Professional Adviser has agreed in writing to keep such Confidential Information confidential on terms substantially similar to this Agreement, (iii) with respect to the Undersigned only, to prospective participant, co-investor, funding source, insurer, re-insurer, assignee or transferee (“Risk Participant”) in respect of any transaction that is or may be entered into between the Parties which relates to the Approved Purpose, provided that such Risk Participant has agreed in writing to keep such Confidential Information confidential on terms substantially similar to this Agreement. The Receiving Party’s Representatives shall further be defined to include only those Representatives to whom Confidential 1 Information has been or hereafter is provided by the Receiving Party, or by the Disclosing Party at the Receiving Party’s request. The Receiving Party will promptly notify the Disclosing Party in the event it becomes aware that any portion of the Disclosing Party’s Confidential Information has been used, disclosed, copied or accessed in breach of this Agreement. “Affiliate” means, with respect to a party, any entity controlled, directly or indirectly, by the party, any entity that controls, directly or indirectly, the party, or any entity directly or indirectly under common control with the party. For this purpose, “control” of any entity or person means ownership of a majority of the voting power of the entity or person.
6 . DESTRUCTION OF CONFIDENTIAL INFORMATION. The Receiving Party will promptly destroy the Disclosing Party’s Confidential Information upon the Disclosing Party’s written request (email being sufficient). Neither party nor its Representatives is obligated to destroy Confidential Information that (i) it is requested or required by law, rule or regulation to retain, (ii) is required for good corporate governance, legal, credit or audit purposes, or (iii) is contained in an archived computer system or backup made by the Receiving Party in accordance with its standard security or disaster recovery procedures, provided in each case that: (A) such retained documents will eventually be erased or destroyed in the ordinary course of records management and/or data processing procedures; and (B) that the Receiving Party remains fully subject to the obligations of confidentiality in this Agreement until the expiration of the confidentiality obligations set out in this Agreement.
7. INDEPENDENT DEVELOPMENT. This Agreement will not be construed to limit either party’s right to independently develop or to acquire similar or competing products, processes or services as disclosed pursuant to the Authorized Purpose, provided that development or acquisition occurs without breach of this Agreement. The Disclosing Party acknowledges that the Receiving Party or its Representatives may now or subsequently develop information internally or receive information from third parties that is substantially similar to the Disclosing Party’s Confidential Information. Accordingly, nothing in this Agreement will be construed as a representation or agreement that the Receiving Party or its Representatives will not develop, or have developed for it, products, services, concepts, systems or techniques contemplated by or embodied in the Disclosing Party’s Confidential Information, provided that the Receiving Party and its Representatives abide by their obligations hereunder.
8. NO CONVEYANCE OF LICENSE. Except as expressly granted herein, nothing in this Agreement will be construed to grant to the Receiving Party, either expressly or by implication, any right, title or interest in or to the Disclosing Party’s Confidential Information, or in or to any patent, trademark, copyright, trade secret or other right, whether intellectual property or otherwise, that may be related thereto, or to grant any right to make, use, sell, exploit or develop further the Disclosing Party’s Confidential Information.
9. TERMINATION OF AUTHORIZED PURPOSE. This Agreement does not bind either party, in any way, to enter into or to continue a business relationship of any type with the other party, whether in relation to the Authorized Purpose or otherwise. This Agreement and related discussions may be terminated by either party at any time, by providing written notice. Any right of action arising from or related to a breach of this Agreement which has accrued during the term of this Agreement will also survive any termination.
10. PUBLICITY. Neither party may, without the Disclosing Party’s written consent, use, publish or disclose in any manner, whether directly or indirectly, the name, likeness, logo, trademarks or service marks of the other party, including without limitation in any client list, advertisement, news release, or release to any professional or trade publications, except as expressly permitted herein.
11. GOVERNING LAW. This Agreement will be construed for all purposes in accordance with the law of the state of New York without reference to conflict of laws principles. Any litigation or other dispute resolution between the parties relating to this Agreement will take place exclusively in the United States District Court for the Southern District of New York, or the state courts in New York County, New York. The parties affirmatively consent to the personal jurisdiction of and venue in the state of and federal courts within New York County, New York with respect to this Agreement. The parties waive all right to trial by jury in respect of any suit, action or proceeding relating to this Agreement.
12. COMPLIANCE WITH LAWS (a) Each party will comply with all applicable laws and regulations with respect to its performance of this Agreement and the Confidential Information of the Disclosing Party. Notwithstanding the foregoing, without the prior written consent of the Disclosing Party, the Receiving Party will not knowingly directly or indirectly transmit all or part of the Confidential Information received hereunder to any country outside the United States. (b) The parties recognize that the communication or transfer of any Confidential Information to or from certain countries (or persons located therein) may be prohibited or restricted or subject to prior approval of one or more governments, including without limitation the government of the United States of America. The Receiving Party agrees not to use, export, import, re-export, transfer, or otherwise communicate any of the Disclosing Party’s Confidential Information to or for any country (or any person located therein) in which the use or possession, or to which the export, import, re-export, transfer or other communication, of such Confidential Information is prohibited or restricted by the requirement of applicable laws of the United States of America or any foreign government except in strict compliance with all such laws, and with the prior written consent of the Disclosing Party.
13. SEVERABILITY. If a court or tribunal of competent jurisdiction determines that any provision of this Agreement is void or unenforceable, that provision will be severed from this Agreement, and the court/tribunal will replace it with a valid and enforceable provision that most closely approximates the intent of the parties, and the remainder of
14. REMEDIES. The parties agree that, if there is a breach of this Agreement by either party, the other party may have the right to seek any and all remedies at law or in equity including without limita
15. LEGAL DISCLOSURE. Notwithstanding anything herein to the contrary, the Receiving Party is not liable for disclosure of the Disclosing Party’s Confidential Information if requested or required by law, rule or regulation. If not lawfully permitted and practicable, the Receiving Party will provide reasonable notice to the Disclosing Party to permit the Disclosing Party, at the Disclosing Party’s expense, to seek to prevent or limit such disclosure. Notwithstanding anything herein to the contrary, the Receiving Party will not be liable for disclosure of the Confidential Information if made in connection with any audit or regulatory or self-regulatory examination or audit of the Receiving Party or any of its Affiliates by any governmental agency or authority having jurisdiction over the Receiving Party or its’ Affiliates.
16. ASSIGNEES AND SUCCESSORS. Neither party may assign or otherwise transfer its rights or delegate its duties or obligations under this Agreement without the prior written consent of the other party, which may be withheld for any reason. If such consent is duly granted, then this Agreement is binding on the approved parties and their respective assignees and successors.
17. CONSTRUCTION. Both parties have negotiated this Agreement and each party’s legal counsel has had the opportunity to review this Agreement. Both parties agree that any rule of construction or interpretation requiring resolution of any ambiguities in this Agreement against the drafting party will not apply in the construction or interpretation of this Agreement.
18. NOTICES. All notices or reports permitted or required under this Agreement will be in writing, and will be deemed effective when: (i) delivered by personal delivery, (ii) confirmed by the recipient, for notices delivered by electronic mail or facsimile transmission, or (iii) if sent by certified or registered mail (airmail, if overseas) or the equivalent (return receipt requested), on the date that mail is delivered or its delivery is attempted. Notices will be sent to the addresses set forth in this Agreement or such other address as either party may specify in writing.
19. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties with respect to the Author iz ed Purpose, and supe rsedes any prior or contemporaneous agreements or discussions regarding the Authorized Purpose. For purposes of clarity, this Agreement does not affect any agreement between the parties with respect to other matters. This Agreement may not be amended or modified except in a writing that is signed by both parties.
20. EXECUTION. To facilitate execution, this Agreement may be executed by one or more of the Parties in the form of an “Electronic Record” (as such term is defined in the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“ESIGN Act”)). The Agreement may be executed in as many counterparts as may be required to reflect all Parties’ assent; all counterparts will collectively constitute a single agreement. An “Electronic Signature” (as defined in ESIGN) that can be authenticated will constitute an original and binding signature of a Party. The fact that a document is in the form of an Electronic Record and/or is signed using an Electronic Signature will not, in and of itself, be grounds for invalidating such document.
IN WITNESS WHEREOF, each of the parties hereto, certifying that it is an authorized signatory, has duly executed this Agreement as of the Effective Date.