Vendor Confidentiality Obligations

  1. In connection with the Company and Supplier’s business relationship (the “Transaction”), the Parties may from time to time disclose to each other certain Confidential Information. As used herein, “Confidential Information” shall mean written or oral information of any Party disclosed to the other Party relating to the business of such Party, including, but not limited to, past, present or future plans, forms, methods, technology, inventions, computer software programs, copyrights, research and development activities, customer, financial and business information, trade secrets or other confidential or proprietary information of a Party or its subsidiaries or affiliates. The Party disclosing Confidential Information is referred to herein as the “Disclosing Party” and the Party receiving such Confidential Information is referred to herein as the “Receiving Party.”
  2. In consideration of the disclosure referred to in Section 1 hereof, the Receiving Party agrees that (a) the Confidential Information shall be kept strictly confidential using the same degree of care that it uses for its own confidential information, but in no event less than a reasonable degree of care, and shall not be sold, traded, published or otherwise disclosed to anyone in any manner whatsoever, including by means of photocopy or reproduction, without the Disclosing Party’s prior written consent, except as provided in Section 3 below, and (b) the Confidential Information will not be used by the Receiving Party except in connection with the evaluation of the Proposed Transaction. The Receiving Party may disclose the Confidential Information without the Disclosing Party’s prior written consent only to the extent the Receiving Party can document that such Confidential Information is: (a) already known to the Receiving Party prior to the disclosure hereunder; (b) already in possession of the public or becomes available to the public other than through the act or omission of the Receiving Party in breach hereof; (c) subject to Section 5, required to be disclosed under applicable law or by a governmental order, decree, regulation or rule (provided that the Receiving Party shall give written notice to the Disclosing Party prior to such disclosure); (d) acquired independently from a third party that, to the knowledge of the Receiving Party, has the right to disseminate such information at that time it is acquired by the Receiving Party; or (e) independently developed by the Receiving Party without knowledge of or reliance on the Confidential Information disclosed by the Disclosing Party.
  3. The Receiving Party shall be entitled to disclose the Confidential Information without the Disclosing Party’s prior written consent to the following persons (the “Representatives”), to the extent the Representatives need to know such Confidential Information for the purpose of assisting with the evaluation of the Proposed Transaction, are informed of the confidential nature of the Confidential Information and agree in writing to be bound by terms no less protective than the terms of this Agreement: (a) employees, officers, and directors of the Receiving Party; (b) its affiliates and the employees, officers, and directors of such affiliates; or (c) any professional consultant or agent retained by the Receiving Party for the purpose of evaluating the Proposed Transaction. The Receiving Party shall be responsible for ensuring that all of its Representatives to whom the Confidential Information is disclosed under this Agreement shall keep such information confidential in accordance with the terms of this Agreement and shall not disclose, divulge or use such Confidential Information in violation of this Agreement. The Receiving Party shall be responsible to the Disclosing Party for any breach of this Agreement by the Representatives of the Receiving Party.
  4. Disclosure of information, including but not limited to Confidential Information, shall not be, or be deemed to be, a license or transfer of any rights, including those pertaining to ownership, trademarks, copyrights or patents relating to such disclosed information. The Confidential Information shall remain the property of the Disclosing Party, and the Disclosing Party may demand the return thereof at any time upon giving written notice to the Receiving Party. Within five (5) days of receipt of such notice or upon termination of this Agreement, the Receiving Party shall return all of the original Confidential Information in its possession and in the possession of Representatives to whom it was disclosed pursuant to Section 3 hereof, including notes and work papers containing Confidential Information.
  5. If a Receiving Party becomes legally compelled to disclose any of the Confidential Information of a Disclosing Party, such Receiving Party will provide such Disclosing Party with prompt written notice prior to any disclosure to a third party so that the Disclosing Party may seek a protective order or other appropriate remedy. If such protective order or other remedy is not obtained, the Receiving Party will furnish only that portion of the Confidential Information which is legally required, and the Receiving Party will cooperate with the Disclosing Party’s counsel to enable the Disclosing Party to obtain a protective order or other reliable assurance that confidential treatment will be accorded the same.
  6. Either Party may terminate this Agreement at any time by providing written notice to the other Party. The obligations of confidentiality hereunder and Section 3-6 and 9 shall survive the termination of this Agreement.
  7. The Disclosing Party hereby represents and warrants that it has the right and authority to disclose the Confidential Information to the Receiving Party. The Disclosing Party, however, makes no representations or warranties express or implied, as to the quality, accuracy, and completeness of the Confidential Information disclosed hereunder. The Disclosing Party, its affiliates, and their officers, directors, and employees shall have no liability whatsoever with respect to the use of or reliance upon the Confidential Information by the Receiving Party.
  8. In the event of any breach or threatened breach by either Party of the terms hereof, the other Party shall be entitled to injunctive and other equitable relief, without the posting of a bond if permitted by law, and such breaching Party shall not plead in defense thereto that there would be an adequate remedy at law. Any such relief shall be in addition to, and not in lieu of, money damages or any other legal or equitable remedy available to the Party seeking relief.
  9. For as long as a Party continues to possess or control the Confidential Information furnished by the other Party, and for so long as the Confidential Information remains unpublished, confidential and legally protectable as the intellectual property of the Disclosing Party, except as otherwise specified herein, the Receiving Party shall make no use of such Confidential Information whatsoever, notwithstanding the expiration of this Agreement. The Parties acknowledge their understanding that the expiration of this Agreement shall not be deemed to give either Party a right or license to use or disclose the Confidential Information of the other Party.