This Non-Disclosure Agreement (the “Agreement”) is by and between STREAMGEAR and the person or entity named in the signature block below (“Company”).
1. Purpose. The parties desire to exchange information on a confidential basis related to an actual or potential business relationship or activities (the “Purpose”). “Confidential Information” means all non-public information or materials, including information and materials disclosed prior to the date of this Agreement, that are marked as confidential, orally described as confidential, or should reasonably be understood to be confidential. However, Confidential Information does not include anything that (i) was previously known to the receiving party without any confidentiality obligation, (ii) is or becomes publicly known through no wrongful act of the receiving party, (iii) was rightfully received from a third party without any confidentiality obligation to that third party, or (iv) was independently developed by the receiving party without using any Confidential Information.
2. Nondisclosure and Limited Use Obligations. Each party will protect Confidential Information disclosed by the other party by (i) not disclosing it to third parties, (ii) preserving its confidentiality with the same level of care it applies to its own similar types of Confidential Information, and always by taking reasonable steps to preserve confidentiality, and (iii) using it only for the Purpose. A party will disclose the other party’s Confidential Information only to its employees, affiliates and consultants who need to know such information to further the Purpose, and only after informing such recipients that the information must be protected as confidential and may be used only for the Purpose. A party is responsible for any disclosure or misuse of Confidential Information by its employees, affiliates or consultants.
3. Legally-Required Disclosures. A receiving party may, without breaching this Agreement, disclose Confidential Information disclosed by the other party to the extent required to comply with a court order or applicable law or regulation. If a receiving party becomes subject to such a requirement, it must notify the disclosing party as soon as possible and, in any case, before it makes the required disclosure (if such notice is allowed) and it must cooperate with the disclosing party (if requested, and at the disclosing party’s expense) to seek a protective order or similar protection for its Confidential Information. The receiving party will disclose only such information as is legally required and will use commercially reasonable efforts to obtain confidential treatment for any Confidential Information that is so disclosed.
4. Money Damages are Not Sufficient Protection. Each party acknowledges that money damages may not adequately protect the disclosing party against actual or threatened breach of this Agreement and that such breach would result in irreparable harm to the disclosing party. Because of this, a disclosing party may pursue court orders to protect its Confidential Information without having to provide proof of actual damages.
5. Length of Obligations. This Agreement takes effect when both STREAMGEAR and Company have signed and will continue until either party elects to terminate with 30 days’ prior written notice to the other party. This Agreement applies to any Confidential Information disclosed while it is in effect, and it will apply to all such Confidential Information for a period of five years from its disclosure, regardless of any termination of this Agreement, except this Agreement will apply indefinitely to trade secret information and personal or customer information.
6. Other Terms. The disclosing party does not grant, under this Agreement, any rights under its patents, copyrights, trademarks or other proprietary rights. The disclosing party does not make any representation or warranty (whether express, implied or statutory) under this Agreement regarding any Confidential Information it discloses. This Agreement does not create any formal business association between the parties, nor any obligation to buy, sell or otherwise transact in any products or services. If a party transfers this Agreement, including as part of a change of control, it will not disclose Confidential Information disclosed by the other party to its transferee unless it has received the disclosing party’s express written approval. The laws of the State of Pennsylvania, USA (without their conflict of laws principles) govern this Agreement. The parties agree to submit to the jurisdiction of any state court sitting in Berks County, Pennsylvania or any federal court seated in Philadelphia, Pennsylvania. No failure or delay in enforcing any right will be deemed a waiver. This Agreement may be changed only in a writing signed by both parties. If any term of this Agreement is deemed illegal or otherwise unenforceable, that term will be severed and the rest of this Agreement will remain in full force and effect. With the exception of any separate agreement that references this Agreement, this Agreement is the entire agreement between the parties on disclosure and use of Confidential Information, and it supersedes any other negotiations, communications or agreements on those topics.