|
THIS AGREEMENT is
entered into as of day of
2007 between
Spiral-NEXT, LLC, herein after known as the 1st Party and
hereinafter known as
the 2nd Party.
1. 1st Party and 2nd
Party intend to disclose to each other information, which may include
confidential information relating to the evaluation of a potential
relationship (the “Potential Relationship”). The term “Confidential
Information” shall mean any information or data which is disclosed by a
party to the other party under or in contemplation of this Agreement and
which (a) if in tangible form or other media that can be converted to
readable form, is clearly marked as proprietary, confidential, or
private when disclosed, or (b) if oral, is identified as proprietary,
confidential, and private on disclosure and is summarized in a writing
so marked and delivered within thirty (30) days following such
disclosure. Confidential Information may be either the property of the
disclosing party or information provided to the disclosing party by a
corporate affiliate of the disclosing party or by a third party.
2. This Agreement is
intended to encompass the corporate/personal affiliates and subsidiaries
of both parties hereto. Consequently, affiliates and subsidiaries of
either party may disclose Confidential Information to the other party or
its affiliates and subsidiaries, and affiliates and subsidiaries of
either party may receive Confidential Information from the other party
or its affiliates and subsidiaries. The terms “disclosing party” and
“receiving party” shall include affiliates and subsidiaries of the
parties hereto with respect to Confidential Information disclosed or
received by the affiliates and subsidiaries. The rights and obligations
of the parties hereto shall inure to the benefit of their respective
corporate affiliates and subsidiaries and may be directly enforced by
them.
3. The receiving party
acknowledges the economic value to the disclosing party of all
Confidential Information. With respect to Confidential Information, the
recipient shall:
-
use the Confidential Information only for the purpose of evaluating
the Potential Relationship
-
restrict disclosure of the Confidential Information solely to those
employees or authorized representatives of such party and its
affiliates with a “need to know” and not disclose it to any other
person or entity without the prior written consent of the disclosing
party;
-
advise those personnel who gain access to Confidential Information of
their obligations with respect to the Confidential Information;
-
make only the number
of copies of the Confidential Information necessary to disseminate the
information to those personnel who are entitled to have access to it,
and ensure that all confidential notices set forth on the Confidential
Information are reproduced in full on such copies; and
-
safeguard the Confidential Information with the same degree of care to
avoid unauthorized disclosure as recipient uses to protect its own
confidential and private information;
-
For the purposes of
this Agreement only, “employees’ includes third parties retained for
temporary administrative, clerical or programming support.
-
A “need to know”
means that the person requires the Confidential Information in order
to perform his or her responsibilities in connection with the
Potential Relationship.
4. The obligations of
Paragraph 3 shall not apply to any Confidential Information which the
recipient can demonstrate:
-
is or becomes
available to the public through no breach of this Agreement;
-
was previously known by the recipient without any obligation to hold
it in confidence;
-
is received from a
third party not known to recipient to be prohibited from disclosing
such information without restriction;
-
is independently
developed by the recipient without the use of Confidential Information
of the disclosing party;
-
is approved for release by written authorization of the disclosing
party, but only to the extent of and subject to such conditions as may
be imposed in such written authorization;
-
is required by law or regulation to be disclosed, but only to the
extent and for the purposes of such required disclosure; or
-
is disclosed in response to a valid order of a court or other
governmental body of the United States or any political subdivisions
thereof, but only to the extent of and for the purposes of such order,
provided, however, that the recipient shall first notify the
disclosing party of the order and permit the disclosing party to seek
and appropriate protective order.
5. When requested by
the recipient, the disclosing party will provide a non-confidential
summary prior to disclosure of the actual Confidential Information to
enable the recipient to determine whether it can accept the Confidential
Information. Each party has the right to refuse to accept any
information under this Agreement, and nothing obligates either party to
disclose to the other party any particular information.
6. Confidential
Information, including permitted copies, shall be deemed the property of
the disclosing party. The recipient shall, within twenty (20) days of a
written request by the disclosing party, return all Confidential
Information, including all copies thereof, to the disclosing party or
destroy all such Confidential Information.
7. Both parties agree
that an impending or existing violation of any provision of this
Agreement would cause the disclosing party irreparable injury for which
it would have no adequate remedy at law, and that the disclosing party
shall be entitled to seek immediate injunctive relief prohibiting such
violation, in addition to any other rights and remedies available to it.
8. Nothing contained
in this Agreement or in any discussions undertaken or disclosures made
pursuant hereto shall (a) be deemed a commitment to engage in any
business relationship, contract or future dealing with the other party,
or (b) limit either party’s right to conduct similar discussions or
perform similar work to that undertaken pursuant hereto, so long as said
discussions or work do not violate this Agreement.
9. No patent,
copyright, trademark or other proprietary right or license is granted by
this Agreement or any disclosure hereunder, except for the right to use
such information in accordance with this Agreement. No warranties of
any kind are given with respect to the Confidential Information
disclosed under this Agreement or any use thereof, except as may be
otherwise agreed to in writing.
10. This Agreement may
not be assigned by either party without the prior written consent of the
other which consent may not be unreasonably withheld. No permitted
assignment shall relieve a party of its obligations hereunder with
respect to Confidential Information disclosed to that party prior to the
assignment. Any assignment in violation of this Section shall be void.
This agreement shall be binding upon the parties and their respective
successors and assigns.
11. If any provision
of this Agreement shall be held invalid or unenforceable, such provision
shall be deemed deleted from this Agreement and replaced by a valid and
enforceable provision which so far as possible achieves the parties’
intent in agreeing to the original provision. The remaining provisions
of this Agreement shall continue in full force and effect.
12. Each party
warrants that it had the authority to enter into this Agreement to
lawfully make the disclosures contemplated hereunder.
13. This Agreement
represents the entire understanding between the parties with respect to
the subject matter hereof and supersedes all prior communications,
agreements and understandings related thereto. The provisions of this
Agreement may not be modified, amended, or waived, except by a written
instrument duly executed by both parties. This Agreement shall be
governed in all respects by the domestic laws of the State of Nebraska.
Disclosing Party:
By:
Print Name: Mike R.
Jay
Date:
By Receiving Party:
|
