This Mutual Non-Disclosure and Non-Solicitation Agreement (“Agreement”) effective from date of submission of this electronic form (“Effective Date”) by and between Imagine and Wonder Publishers, New York, located at 28 Sycamore Ln Irvington, New York 10053 and party digitally submitting the form below (the “Parties”).
The Parties wish to explore possible business transactions and acknowledge that in the course of discussions, business and trade information that is confidential to them may be provided or disclosed by one to the other intentionally or otherwise.
In consideration for this Agreement, the receiving party is being granted access to the information, confidential or not, and other good and valuable consideration (the adequacy of which is hereby agreed and acknowledged).
IT IS AGREED:
1. Confidential Information
1.1 In this Agreement, without limitation, Confidential Information includes:
(1) any information provided by either party (“Owner”) to the other (“Recipient”) that satisfies the definition of Confidential Information in Section 1.1(2), below;
(2) any information, technical data or know-how that relates to the business, services or products of the Owner. Such Confidential Information shall include, but is not limited to, information concerning trade secrets, know-how, research and development, software, databases, inventions, processes, technology, any intellectual property, investments, profits, pricing, costs, products, services, vendors, customers, clients, partners, investors, personnel, compensation, training, sales, marketing, and business plans for Owner. It is expressly understood that Confidential Information shall also include any such information disclosed to or received by the Recipient or any discussion held between Owner and Recipient prior to the Agreement Date of this Confidentiality Agreement.
1.2 In this Agreement, Confidential Information does not include information, which:
(1) is already published or available to the public other than by a breach of this Agreement;
(2) is rightfully received by Recipient from a third party not in breach of any obligation of confidentiality to Owner;
(3) is independently developed by personnel or agents of the Recipient without access to the Confidential Information of the Owner;
(4) is proven to be known to the Recipient on a non-confidential basis at the time of disclosure; or,
(5) is disclosed in compliance with any law or a court order, provided that the Recipient first gives the Owner reasonable notice of the intended disclosure under this provision and allows the Owner opportunity to defend and/or attempt to limit the disclosure. In the event that such protective order or other limitation is not possible, Recipient will furnish only that portion of the Confidential Information that is legally required and will exercise his reasonable efforts in good faith to obtain reliable assurance that confidential treatment will be accorded the Confidential Information.
2. Restrictions on Use
2.1 The Recipient must:
(1) not use the Confidential Information for its own use or for any purpose except to evaluate whether it wishes to enter a business transaction with the Owner or as necessary to carry out the terms of that business transaction;
(2) not disclose, divulge, reveal, communicate, share, or transfer Confidential Information to any person other than the Recipient’s employees, agents, independent contractors, or otherwise who are directly involved in the decision whether to pursue a business transaction with the Owner without the prior written consent of the Owner;
(3) take reasonable security measures and use care to preserve and protect the secrecy of, and to avoid disclosure or use of, the Owner’s Confidential Information; and,
(4) immediately advise the Owner in writing of any inadvertent inappropriate disclosure, misappropriation or misuse by any person of the Confidential Information as soon as it comes to the Recipient’s attention.
2.2 In the event of a disclosure of Confidential Information to persons under clause 2.1(2), the Recipient must ensure that those persons are bound before they receive or are granted access to any of the Confidential Information, in the same manner and to the same extent as the Recipient is bound by this agreement, as though they were the Recipient, by an agreement in favor of the Owner which applies to all Confidential Information and which is on the same terms and conditions (with necessary changes) as are contained in this Agreement.
3. Return of Information
3.1 On the Owner’s written request, any information of the Owner (whether confidential or not) which has been furnished to the Recipient must be promptly returned (or at Owner’s request, destroyed) by the Recipient to the Owner accompanied by all copies of the information made by the Recipient (including, among other things, all oral information furnished to Recipient which shall have been reduced to writing or some other tangible form, and all electronically-stored information).
4. No Rights of Ownership
4.1 The Recipient acquires no rights of ownership or title to the Owner’s Confidential Information by virtue of this Agreement. Nothing in this Agreement limits or restricts the rights of the Owner to assert claims for infringement of intellectual property rights against the Recipient unless the infringement is expressly authorized under this Agreement.
It is understood and agreed that no failure or delay by Owner in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power, or privilege hereunder preclude any other or further exercise thereof.
5.1 The Recipient acknowledges that:
(1) the Confidential Information is at all times the property of the Owner;
(2) the Confidential Information may be a trade secret or the subject of a current or future patent application;
(3) a breach of this Agreement would be harmful to the business interests of the Owner;
(4) monetary damages alone would not be a sufficient remedy for a breach of this Agreement; and,
(5) in addition to any other remedy that may be available in law or equity, the Owner is entitled to interim, interlocutory and permanent injunctions, or any of them, to prevent breach of this Agreement and to compel specific performance of it.
5.2 Provided that the Recipient uses all reasonable efforts to protect the Confidential Information of the Owner in accordance with the terms of this Agreement, the Recipient will not be liable for loss of profits, loss or inaccuracy of data, or indirect, special, incidental or consequential damages, even if the Recipient has been advised of the possibility of such damages.
6. No Solicitation
6.1 Neither party may at any time solicit, or seek to solicit, the services of any of the other party’s employees, agents, independent contractors, or otherwise, for the purpose of carrying out any business transactions that may be directly competitive with the business of the other party. This restriction commences on the Effective Date of this Agreement and survives termination for a period of one (1) year.
7.1 This Agreement shall remain in full force and effect in perpetuity, or until the Confidential Information disclosed to Recipient is no longer confidential.
8. Entire Agreement
8.1 The Parties agree that this written Agreement embodies the complete and entire understanding between the Parties and supersedes and replaces any and all prior understandings, arrangements, and agreements, whether oral or written, relating to the Owner and the Confidential Information.
9. Governing Law
9.1 This Agreement is governed by and construed in accordance with the laws of the State of New York.
10. Privileged Information.
10.1 To the extent that any Confidential Information may include materials subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Party understands and agrees that the Parties have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of both parties that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential Information provided by the Disclosing Party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine
The Parties have caused this Agreement to be executed by their duly authorized representatives as of the Effective Date of submission.