1. Definition of Confidential Information “Confidential Information” as used in this Agreement shall mean any and all technical and non-technical information related to the current, future and proposed products and services of Soint Tech (“Discloser”), and includes, without limitation, Discloser’s respective information concerning customers, research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising, and marketing plans and information. “Confidential Information” also includes proprietary or confidential information of any third party who may disclose such information to either party in the course of the other party’s business. Such information disclosed by the Discloser will be considered Confidential Information by the receiving party (“Recipient”), only if: (i) such information is identified in written or oral format by the Discloser as confidential, trade secret or proprietary information; or (ii) the Recipient knows or has reason to know such information is confidential, trade secret or proprietary information of the Discloser because the information was disclosed in circumstances of confidence, or would be understood by Discloser, exercising reasonable business judgment, to be confidential.

 

2. Nondisclosure and Nonuse Obligation Each party agrees that it will not make use of, disseminate, or in any way disclose any Confidential Information of Discloser to any person, firm or business, except to the extent necessary for negotiations, discussions, and consultations with personnel or authorized representatives of the Recipient, and any purpose the other party may hereafter authorize in writing. Furthermore, the existence of any business negotiations, discussions, consultations or agreements in progress between the parties shall not be released to any form of public media without written approval of both parties. Recipient agrees that it shall treat all Confidential Information of Discloser with the same degree of care as it accords to its own Confidential Information, and Recipient represents that it exercises reasonable care to protect its own Confidential Information. Recipient agrees that it shall disclose Confidential Information of Discloser only to those of its employees who need to know such information and certifies that such employees have previously agreed, either as a condition to employment or in order to obtain the Confidential Information, to be bound by terms and conditions substantially similar to those of this Agreement. Recipient will immediately give notice to Discloser of any unauthorized use or disclosure of the Confidential Information. Recipient agrees to assist Discloser in remedying any such unauthorized use or disclosure of the Confidential Information. At no time and under no circumstances shall Recipient modify, translate, reverse engineer, decompile or disassemble any software or other similar Confidential Information provided by Discloser under this Agreement.

 

3. Exclusions from Nondisclosure and Nonuse Obligations Recipient’s obligations under Paragraph 2 (“Nondisclosure and Nonuse Obligations”) with respect to any portion of Discloser’s Confidential Information shall terminate when Recipient seeking to avoid its obligation under such Paragraph can document that: (i) it was in the public domain at or subsequent to the time it was communicated to Recipient by Discloser through no fault of Recipient; (ii) it was rightfully in Recipient’s possession free of any obligation of confidence at or subsequent to the time it was communicated to Recipient by Discloser; (iii) it was developed by employees or agents of Recipient independently of and without reference to any information communicated to Recipient by Discloser; or (iv) the communication was in response to a valid order by a court or other governmental body, was otherwise required by law, or was necessary to establish the rights of either party under this Agreement; provided that Recipient provides to Discloser (A) prior notice of the intended disclosure and an opportunity to respond or object to the disclosure or (B) if prior notice is not permitted or practical under the circumstances, prompt notice of such disclosure.

 

4. Ownership of Confidential Information and Other Materials All Confidential Information, and any derivatives thereof whether created by Discloser or Recipient, remain the property of Discloser and no license or other rights to Confidential Information is granted or implied hereby. All materials (including without limitation, documents, drawings, models, apparatus, sketches, designs and lists) furnished to Recipient by Discloser, and which are designated in writing to be the property of such party, shall remain the property of such party and shall be returned to it promptly at its request, together with any copies thereof.

5. Disclosure of Third Party Information Neither party shall communicate any information to the other in violation of the proprietary rights of any third party.

 

6. No Warranty All Confidential Information is provided “AS IS” and without any warranty, express, implied or otherwise, regarding its accuracy or performance.

 

7. No Export Recipient shall not export, directly or indirectly, any technical data acquired from the other pursuant to this Agreement or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of export requires an export license or other government approval without first obtaining such license or approval.

 

8. Term This Agreement shall govern all communications between the parties that are made during the period from the effective date of this Agreement to the date on which either party receives from the other written notice that subsequent communications shall not be so governed; provided, however, that Recipient’s Nondisclosure and Nonuse Obligations with respect to Confidential Information of Discloser which it has previously received shall continue in perpetuity unless terminated pursuant to Paragraph 3 (“Exclusions from Nondisclosure and Nonuse Obligations”).

 

9. No Assignment Recipient party shall not assign or transfer any of its rights or obligations under this Agreement, including to any successor to all or substantially all of its assets (whether by way of merger, asset sale, stock sale or otherwise). Immediately upon such change, or merger of Company with a third party, return to Discloser all documentation, copies, notes, diagrams, computer memory media and other materials containing any portion of the Information, or confirm to Discloser, in writing, the destruction of such materials.

 

10. Notices Any notice required or permitted by this Agreement shall be in writing and shall be delivered as follows with notice deemed given as indicated: (i) by personal delivery when delivered personally; (ii) by overnight courier upon written verification of receipt; (iii) by telecopy or facsimile transmission upon acknowledgment of receipt of electronic transmission; or (iv) by certified or registered mail, return receipt requested, upon verification of receipt. Notice shall be sent to the addresses set forth above or such other address as either party may specify in writing.

 

11. Governing Law This Agreement shall be governed in all respects by the laws of the United States of America and by the laws of the State of California, as such laws are applied to agreements entered into and to be performed entirely within the State of California.

 

12. Severability Should any provision of this Agreement be held by a court of law to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby.

 

13. Waiver The waiver by Discloser of a breach of any provision of this Agreement by Recipient shall not operate or be construed as a waiver of any other or subsequent breach by Recipient.

 

14. Injunctive Relief A breach of any of the promises or agreements contained herein will result in irreparable and continuing damage to the non-breaching party for which there will be no adequate remedy at law, and the non-breaching party shall be entitled to injunctive relief and/or a decree for specific performance, and such other relief as may be proper (including monetary damages if appropriate).

 

15. Entire Agreement This Agreement constitutes the entire agreement with respect to the Confidential Information disclosed herein and supersedes all prior or contemporaneous oral or written agreements concerning such Confidential Information. This Agreement may only be changed by mutual agreement of authorized representatives of the parties in writing.