THIS CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT (the “Agreement”), is made and entered into as of the date by and among [client name] (“[client name]”), and the Inavero, (“Inavero”) an independent contractor. [Client Name], and Inavero may be referred to in this Agreement individually as a “Party” or collectively as the “Parties.”
WHEREAS, Inavero, Inc. provides professional services to companies, including but not limited to [Client Name].
WHEREAS, [Client Name] and Inavero, Inc. desire to exchange certain types of proprietary and confidential information as hereinafter defined (“Confidential Information”) to conduct certain research (the “Research”); and
WHEREAS, [Client Name] and Inavero are willing to disclose such Confidential Information to facilitate the Research under the terms and conditions set forth herein.
NOW, THEREFORE, for and in consideration of the premises, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto, intending to be legally bound, hereby agree as follows:
1. “Confidential Information” shall mean without limitation all know-how, trade secrets, technical information, business opportunities, data, specifications, plans, drawings, financial performance measures, experience or knowledge, heretofore or hereafter provided by any Party to any other Party (whether transmitted in writing, orally or electronically), of a secret, proprietary or confidential nature relating to each Party’s respective: (a) products or services; (b) customer lists, customer information, business plans, sales volumes, profitability figures, financial information or other economic or business information; or (c) any efforts undertaken by any Party hereunder concerning the Research.
2. It is understood and agreed that no Party shall, without the express written consent of the disclosing Party, use or disclose to any person, company or governmental agency any of the Confidential Information, except that any Party may disclose the Confidential Information to those of its employees who need to know such information for the purpose of the Research and who agree to be bound by this Agreement and not to disclose the Confidential Information to any other person, company or governmental agency. In the event that any Party becomes legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose any of the Confidential Information (the “Compelled Party”), the Compelled Party will provide the disclosing Party with prompt prior written notice of such requirement so that the disclosing Party may seek a protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained, the Compelled Party agrees to furnish only that portion of the Confidential Information which the Compelled Party is advised by written opinion of counsel is legally required and to exercise reasonable commercial efforts to obtain assurance that confidential treatment will be accorded such Confidential Information.
3. Each Party agrees that the Confidential Information shall not include any information which: (a) is already in the public domain as of the date hereof, or that subsequently becomes part of the public domain by publication or otherwise, unless by the wrongful act of any Party; (b) any Party can reasonably demonstrate in writing that the information was known by such Party prior to disclosure by the disclosing Party; (c) is disclosed to any Party by a third party under no obligation of confidentiality; or (d) is independently developed by any Party without any use of or reference to the Confidential Information of the disclosing Party;
provided, however, that a combination of features of the Products shall not be deemed to be within the foregoing exceptions merely because individual features of the Products are in the public domain or otherwise within such exceptions, as previously described, unless the combination itself is in the public domain or otherwise entirely within any one such exception.
4. Each Party hereby acknowledges and agrees that a breach of this Agreement by any Party (the “Breaching Party”) will result in irreparable harm to any other Party (the “Non-Breaching Party”) and that the Non-Breaching Party will be entitled to equitable relief, including injunction and specific performance, in the event of any breach or threatened breach of the provisions of this Agreement, in addition to all other remedies available to the Non-Breaching Party at law or in equity.
5. If any Party so requests (the “Requesting Party”), the other Parties shall deliver to the Requesting Party or destroy, at the Requesting Party’s option, and shall cause all other such persons who are provided access to or copies of the Confidential Information to return or destroy the Confidential Information, including all originals, copies and excerpts of, and all notes, analyses, compilations, studies, correspondence or other documents pertaining to, the Confidential Information, within ten (10) days following request thereof from the Requesting Party. Upon completion of the delivery or destruction, as the case may be, of all the Confidential Information, the other Parties shall deliver to the Requesting Party written certification of same. In the event of a failure or refusal by any person to return or destroy all evidence of the Confidential Information, the other Parties expressly agree that the Requesting Party shall be entitled to seek specific performance for the return thereof.
6. Each Party hereby acknowledges and agrees that no license or rights under any patent, patent application, trademark, service mark, copyright, trade secret, invention or any other intellectual property or property of any Party or under any information which is derived from the Confidential Information is granted to any other Party by this Agreement.
7. Each Party hereby acknowledges and agrees that no Party is making any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information, and no Party nor any of our respective officers, directors, employees, shareholders, owners, affiliates or agents will have any liability to any other Party or to any other person resulting from any Party’s use of the Confidential Information.
8. Inavero hereby acknowledges and agrees that Inavero is an independent contractor and is not an employee, agent, joint venturer or partner of [Client Name]. Inavero shall not have any authority to act on behalf of, or to bind, [Client Name] in any manner whatsoever. Inavero shall be responsible for the payment of all required taxes, whether federal, state or local in nature, including but not limited to income taxes, social security taxes, federal or state unemployment compensation taxes, self-employment taxes, and any other fees, charges, licenses or other payments required by law.
9. With respect to Confidential Information not constituting a trade secret, this Agreement shall remain in full force and effect for a period of three (3) years; with respect to Confidential Information constituting a trade secret, this Agreement shall remain in full force and effect for so long as the Confidential Information constitutes a trade secret.
10. This Agreement shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
11. Any judicial determination that any provision(s) of this Agreement are unlawful or unenforceable shall not affect the enforceability or legality of the remaining provisions hereof.
12. No failure or delay in exercising any rights, powers or privileges hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any rights, powers or privileges hereunder.
13. This Agreement constitutes the entire agreement by and among [Client Name] and Inavero with respect to the subject matter hereof, and supersedes any prior understandings, agreements or representations by or among the Parties. No amendments or modifications shall be made to this Agreement unless in writing and executed by all Parties.