TheChickStarter and Other Party (each, a “Party”, and collectively, the “Parties”) desire to explore possible business arrangements and/or exchange information. In connection with this exploration, each Party may need to disclose certain of its confidential and proprietary information and materials to the other Party. The Parties wish to enter into this Agreement to provide for the protection of such information and materials and to restrict the use and disclosure of such information and materials by the receiving Party.Now therefore, in consideration of the mutual promises and obligations contained herein and for other good and valuable consideration, the receipt, adequacy, and sufficiency of which is hereby acknowledged, the Parties mutually agree as follows:
1. Definition of Confidential Information. For purposes of this Agreement, “Confidential Information” means: (a) confidential and/or proprietary information and materials disclosed orally or in writing during the term of this Agreement; (b) all information and materials identified on Exhibit A to this Agreement; and (c) any modifications or derivatives prepared by the Receiving Party that contain or are based upon any Confidential Information obtained from the Disclosing Party, including any analysis, reports, or summaries of the Confidential Information. The Party disclosing Confidential Information is referred to in this Agreement as the “Disclosing Party” and the Party receiving such Confidential Information is referred to as the “Receiving Party.”
2. Term. This Agreement will commence on the Effective Date and each Party’s non-disclosure and other obligations hereunder shall continue in full force and effect: (a) in the case of Confidential Information that constitutes a trade secret under applicable law, for as long as such Confidential Information remains a trade secret; or (b) in the case of any other Confidential Information, for a term of two (2) years.
3. Limitations on Use. Unless the Disclosing Party expressly authorizes otherwise in writing in advance of such use, the Receiving Party must only use the Confidential Information in connection with evaluating the matter referenced in the Background section at the beginning of this Agreement.
4. Protection of Confidential Information. Receiving Party will protect the confidentiality
of the Confidential Information with no less care than it protects the confidentiality of its own proprietary and confidential information and materials of like kind, but in no event will the Receiving Party protect the confidentiality of the Confidential Information with less than a reasonable standard of care. Receiving Party will take (and will cause its employees and agents to take) any reasonable steps required to avoid inadvertent disclosure of materials in Receiving Party’s possession.
5. Access to Confidential Information. Access to the Confidential Information must be restricted to employees of Receiving Party on a need-to- know basis, who are engaged in the analysis and discussions concerning a possible transaction with the Disclosing Party as contemplated in the Background statement at the beginning of this Agreement.Furthermore, Receiving Party shall require all non-employee personnel granted access to the Confidential Information including, but not limited to, agents and independent contractors of Receiving Party, to execute a non-disclosure agreement binding such personnel to the confidentiality obligations set forth herein, to the same extent as the Receiving Party is bound to the Disclosing Party herein. In all such personnel non-disclosure agreements, the Disclosing Party must be specifically identified as an intended third-party beneficiary to that agreement.
6. No Other License: No Representations. Confidential Information disclosed by the Disclosing Party to the Receiving Party will at all times remain the property of the Disclosing Party. No other license to use any trademarks, patents, copyrights, or other rights is granted under this Agreement or by any disclosure of Confidential Information under this Agreement. The parties understand that they have not made and do not make any representation or warranty as to the accuracy or completeness of their Confidential Information. Neither party shall have any liability to the other party resulting from the use of the other party’s Confidential Information in accordance with the terms of this Agreement.
7. Return of Confidential Information. All Confidential Information made available under this Agreement, including copies of Confidential Information, must be destroyed whereupon written certification of such destruction shall be provided to Disclosing Party by Receiving Party, or, returned to the Disclosing Party upon the first to occur of: (a) termination of discussions concerning a possible transaction between the Parties, or, (b) upon the request by the Disclosing Party. Any materials prepared by the Receiving Party which include any Confidential Information of the Disclosing Party, including summaries or extracts thereof, must be destroyed, and written certification of such destruction provided to the Disclosing Party, except that neither party will be obligated to send the other party notes or other personal works containing Confidential Information, provided that the parties shall comply with the provisions of Section 2 and Section 4 herein with respect to such notes or personal works.
8. Non-Confidential Information. Nothing in this Agreement will prohibit or limit Receiving Party’s use of information (including but not limited to intangible ideas, concepts, know-how, techniques, and methodologies) that the Receiving Party can demonstrate is: (a) previously known to Receiving Party; (b) independently developed by the Receiving Party without the use of Confidential Information by any personnel, including but not limited to employees, agents, and independent contractors, that have not had access to the Confidential Information, as can be substantiated by reasonable evidence; (c) acquired by the Receiving Party from a third party which was not, to the Receiving Party’s knowledge, under an obligation to the Disclosing Party not to disclose such information; or (d) which is or becomes publicly available through no breach by the Receiving Party or the Receiving Party’s personnel.
9. Judicial Disclosures. If Receiving Party receives a subpoena or other validly issued administrative or judicial process demanding Confidential Information, Receiving Party must promptly notify Disclosing Party and tender to it the defense of that demand.Unless the demand has been timely limited, quashed or extended, Receiving Party will thereafter be entitled to comply with such demand to the extent permitted by law. If requested by the Disclosing Party, Receiving Party will cooperate (at the expense of the Disclosing Party) in the defense of a demand.
10. Successors and Assigns. This Agreement is and will be binding upon the Parties and each of their respective affiliates, and upon their respective heirs, successors, representatives, and assigns.
11. Injunctive Relief; Fees. The Parties recognize that serious injury could result to the Disclosing Party and its business if the Receiving Party breaches its obligations under this Agreement. Therefore, Receiving Party agrees that the Disclosing Party will be entitled to a restraining order, injunction or other equitable relief if Receiving Party breaches its obligations under this Agreement, in addition to any other remedies and damages that would be available at law or equity. The party prevailing in any action or proceeding between the parties arising under or related to this Agreement or the subject matter hereof shall be entitled to recover its reasonable attorneys’ fees and expenses in addition to costs of suit and such other recovery and relief as may be authorized by law
12. Advertising and Publicity. Neither Party may use the name of the other in connection with any advertising or publicity materials or activities concerning the Parties’ relationships without the prior written consent of the other Party.
13. Governing Law. The validity, performance, construction, and effect of this Agreement will be governed by the laws of the State of New York, without regard to its conflicts of laws principles. With respect to any dispute, controversy or claim arising out of or relating to this Agreement or the relationship between the parties, the Executive agrees and consents to jurisdiction of and exclusive venue in the United States District Court, District of New York, New York.
14. Entire Agreement. This Agreement constitutes the entire agreement between the Parties concerning the confidentiality and non-disclosure obligations discussed herein and may not be modified or amended other than by a written instrument executed by both Parties. The Parties represent that they have read this Agreement, understand it and agree to be bound by its terms and conditions. There are no understandings or representations, express or implied, which are not expressed herein. No provision herein is to be construed against or in favor of any Party on the basis of authorship.
15. Captions. The titles and captions contained in this Agreement are inserted herein only as
a matter of convenience and for reference and in no way define, limit, extend, or describe the scope of this Agreement or the intent of any provision hereof.
16. Severability. Each provision of this Agreement is independent, and if any term, covenant, or condition in this Agreement shall, to any extent, be invalid or unenforceable, the remainder of this Agreement and the covenants herein contained shall not be affected thereby and the residue shall be valid and enforceable to the fullest extent permitted by law.
17. Disclaimer. Neither Party hereto makes any representation, express or implied, with respect to, nor warrants, any information provided under this Agreement.
18. Facsimile Signature and Counterparts. The Parties hereby agree that signatures transmitted and received via facsimile and/or email are true and valid signatures for all purposes hereunder and shall bind the parties to the same extent as that of an original signature. The parties may also execute this Agreement in counterparts, each of which will constitute an original.
19. Similar Business Opportunities. The Parties acknowledge that the other party may currently be engaged in, or may in the future pursue, business opportunities that are the same or similar to the proposed relationship, either independently or in collaboration with third parties. Nothing in the Agreement is intended or should be construed to limit either party’s right to pursue such opportunities, regardless of whether or not the parties enter into the Relationship, so long as such party does not disclose or make use of the other party’s Confidential Information in violation of this Agreement.
20. Similar Products and Programs. The Parties acknowledge and agree that the other party may now or in the future market or develop or have under consideration products or programs utilizing ideas, concepts and information similar or identical to the Confidential Information or products of the other party and the same shall not be a violation of the Agreement, so long as products or programs are developed without reference to any Confidential Information of the other party.
By acknowledging and checking this box, both parties have agreed and automatically executed this Agreement.