The parties therefore agree as follows:
1. Unless otherwise agreed by the Disclosing Party in writing, the Receiving Party shall (1) hold the Disclosing Party’s Proprietary Information in strict confidence and take reasonable precautions to protect such Proprietary Information (including all precautions the Receiving Party employs with respect to its confidential materials), (2) not divulge any such Proprietary Information or any information derived therefrom to any third party (except employees and consultants, subject to the conditions stated below), and (3) not make any use whatsoever at any time of any such Proprietary Information except to evaluate internally its relationship with the Disclosing Party. Any employee or consultant given access to any such Proprietary Information must have a legitimate “need to know” and, if not then similarly bound in writing, the Receiving Party shall cause all such persons to become a party to this agreement or a non-disclosure agreement (or a similar agreement) not less restrictive than this agreement, and the Receiving Party will be liable for breaches of this agreement by such persons. Without granting any right or license, the Disclosing Party acknowledges that the foregoing clauses (1), (2), and (3) will not apply with respect to any information that the Receiving Party can document (1) is or becomes (through no improper action or inaction by the Receiving Party or any affiliate, agent, consultant, or employee) generally available to the public, (2) was in its possession or known by it prior to receipt from the Disclosing Party, or (3) was rightfully disclosed to it by a third party without restriction. The Receiving Party may make disclosures required by law or court order provided the Receiving Party promptly notifies the Disclosing Party, uses diligent and reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order, and has allowed the Disclosing Party to participate in the proceeding. The Receiving Party acknowledges and understands that this agreement does not grant any intellectual property rights or other interest in any Proprietary Information of the Disclosing Party.
2. Promptly upon a request by the Disclosing Party at any time, the Receiving Party shall returnto the Disclosing Party all Proprietary Information of the Disclosing Party and return or destroy all documents or media containing any such Proprietary Information and all copies (regardless of the form of reproduction) and all extracts therefrom. The Receiving Party acknowledges and understands that nothing herein requires the Disclosing Party to proceed with any proposed transaction or relationship.
3. Although the Disclosing Party has endeavored to include in the Proprietary Information facts known to the Disclosing Party that it believes to be relevant for its purposes, the Receiving Party acknowledges and understands that none of the Disclosing Party or any of its officers, directors, or employees have made or make any representation or warranty as to the accuracy or completeness of the Proprietary Information for such or any other purpose. The Receiving Party acknowledges and understands that none of the Disclosing Party, its officers, directors, or employees will have any liability to the Receiving Party, its officers, directors, employees, affiliates, or any representatives or advisors resulting from the use of the Proprietary Information.
4. The Receiving Party acknowledges and understands that 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 of breach, the Disclosing Party will be entitled to seek appropriate equitable relief (including injunctive relief) in addition to whatever remedies it might have at law. The Receiving Party shall notify the Disclosing Party in writing immediately upon the occurrence of any such unauthorized release or other breach of which it is aware. If any of the provisions of this agreement areheld by a court or other tribunal of competent jurisdiction to be illegal, invalid, or unenforceable, such provisions will be limited or eliminated to the minimum extent necessary so that this agreement otherwise remains in full force and effect.
5. This agreement is governed by the law of the State of New York without regard to its conflicts of law provisions. This agreement supersedes all prior discussions and writings and constitutes the entire agreement between the parties with respect to the subject matter hereof. The prevailing party in any action to enforce this agreement will be entitled to costs and attorneys’ fees. This agreement cannot be terminated except by a writing signed by both parties making specific reference to this agreement. The duties and obligations to protect Proprietary Information will survive termination of this agreement. No waiver or modification of this agreement will be binding upon either party unless made in a writing signed by a duly authorized representative of such party, and no failure or delay in enforcing any right will be deemed a waiver. This agreement may be signed in two or more counterparts, each of which willbe deemed an original, but all of which together will constitute one and the same instrument.