APTIVITI, INC.
NON-DISCLOSURE AND RESTRICTED USE AGREEMENT
This Non-Disclosure, Restricted Use and Intellectual Property Agreement (“Agreement”) by and between the undersigned, his/her/it’s affiliates, successors and/or assigns, (“Receiving Party”), and Aptiviti, Inc. having its principal office at 129 West 29th Street, 3rd Floor, New York, NY 10001, a Delaware Corporation (“Company”), the parties to this Agreement.
In consideration of the Company’s disclosure of certain proprietary and confidential information, the Receiving Party agrees as follows:
1. CONFIDENTIAL INFORMATION
1.1 “Confidential Information” means nonpublic information that the Company designates as being confidential or which, under the circumstances surrounding disclosure, ought to be treated as confidential. Confidential Information includes, without limitation, information relating to the Company’s technology, know how, patents and patent applications; research, results, designs, samples, models and formulas; development, process, and production methodology; testing methods and results; and trade secrets; as well as information relating to the Company’s business or financial affairs, which may include business methods, marketing strategies, pricing, competitor information, product development strategies and methods, customer lists and financial information. Confidential Information also includes information received from others that the Company is obligated to treat as confidential and oral information that is identified by the Company as confidential. Confidential Information disclosed by a subsidiary of the Company or its agents is covered by this Agreement. Confidential Information includes all tangible materials which contain Confidential Information whether written or printed documents, or any type of storage device.
1.2 Confidential Information shall not include any information that (a) is in the public domain; (b) is already known to the Receiving Party and/or its affiliates, free of any obligation to keep it confidential; (c) is or becomes publicly known through no wrongful act of the Receiving Party and/or its affiliates; (d) is received by the Receiving Party from a third party without any restriction on confidentiality; (e) is independently developed by the Receiving Party and/or its affiliates; (f) is disclosed to third parties by the Company without any obligation of confidentiality; or (g) is approved for release by prior written authorization of the Company.
1.3 The Receiving Party hereby acknowledges and agrees that the Confidential Information received is without any warranty of any kind by the Company with respect to such information or any use thereof and without any indemnification by the Company against third party claims arising from the use of such information by the Receiving Party.
2. RESTRICTIONS AND DISCLOSURE AND USE
2.1 The Receiving Party shall not disclose any Confidential Information to third parties for a period of five (5) years following the date of disclosure by the Company to the Receiving Party, except to the Receiving Party’s employees or consultants as provided below.
2.2 Confidential Information may be disclosed, reproduced or used only pursuant to and consistent with the Receiving Party’s business relationship with the Company, or as otherwise provided herein. The Receiving Party agrees to segregate all tangible materials containing Confidential Information from the confidential materials of other third parties in order to prevent commingling. The Receiving Party agrees that it will not, and it will not allow others to, reverse engineer, decompile or disassemble any prototype or sample disclosed by the Company to the Receiving Party. In addition, the Receiving Party shall advise all of its employees who receive Confidential Information of their obligations under this Agreement.
2.3 No license under any trademark, patent, copyright trade secret, mask work, protection right or any other intellectual property right is either granted or implied by this Agreement or by the disclosure of Confidential Information by the Company. All Confidential Information (including tangible copies and computerized or electronic versions or any other version on any other medium and summaries thereof), shall, at all times, remain the property of the Company.
2.4 The Receiving Party shall take reasonable security precautions, at least as great as precautions it takes to protect its own confidential information to preserve the confidentiality of the Confidential Information. The Receiving Party may disclose the Confidential Information only to the Receiving Party’s employees and/or consultants on a need-to-know basis. The Receiving Party shall cause its employees or consultants to execute appropriate written agreements sufficient to enable the Receiving Party to comply with all of the provisions of this Agreement.
3. RIGHTS OF PARTIES. The Receiving Party agrees to notify the Company immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this Agreement by the Receiving Party, or its employees or consultants, and will cooperate with the Company in every reasonable way to help the Company regain possession of the Confidential Information and prevent its further unauthorized disclosure or use. The Receiving Party will return all originals, copies and summaries of the Confidential Information upon the Company’s option, and certify in writing to the Company that all other originals, copies and summaries of such Confidential Information have been destroyed. The Company may visit the Receiving Party’s premises during normal business hours, after giving prior notice of a reasonable time in advance of any visit, to review the Receiving Party’s compliance with the terms of this Agreement.
4. DOCUMENT REQUESTS IN LEGAL PROCEEDINGS. If the Receiving Party, and/or any of its respective partners, officers, directors, employees or agents, is requested or required in a legal proceeding or pursuant to legal process to disclose any Confidential Information supplied by the Company or any of the Company’s officers, directors, employees or agents in the course of their dealings with the Company, then the Receiving Party will use all reasonable efforts to notify the Company promptly so that the Company may seek any appropriate protective order and/or take any other mutually agreed action. If, in the absence of a protective order or the receipt of a waiver hereunder, the Receiving Party is none the less, in the judgment of its counsel, compelled to disclose such information, the Receiving Party shall use all reasonable efforts to inform the Company as far in advance of such disclosure as practicable.
5. INJUNCTIVE RELIEF. The Receiving Party hereto acknowledge and agree that the breach of any term, covenant or provision of this Agreement may cause irreparable harm to the Company and accordingly, upon the breach by the Receiving Party of any term or provision of this Agreement, the Company shall be entitled to seek injunctive relief, together with any other remedy available at law or in equity.
6. MISCELLANEOUS
This Agreement may not be assigned by the Receiving Party to any third party, but shall benefit and be binding upon the parties hereto and the Company’s successors and assigns.
This Agreement constitutes the entire understanding between the parties with respect to the subject matter hereof and shall not be altered, modified or amended except in writing executed by the parties. No waiver of any provision of this Agreement shall constitute a waiver of any other provision(s) or of the same provision on another occasion.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York without reference to any conflict of laws provisions. All parties consent to jurisdiction by and venue in the state and federal courts sitting in the State of New York.
All parties agree that they do not intend, nor will they, directly or indirectly, export or transmit any Confidential Information in violation of restrictions or rules imposed by the United States Government.
If any provision of this Agreement shall be held by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions shall remain in full force and effect.
If either of the parties employs attorneys to enforce any rights arising out of this Agreement, the prevailing party shall be entitled to recover reasonable attorney’s fees.
Neither party may use the name of the other in connection with any advertising or publicity materials or activities without the prior written consent of the other party.
IN WITNESS WHEREOF, the Receiving Party has executed this Agreement on the Effective Date first written above.