THIS MUTUAL NON-DISCLOSURE AGREEMENT (this "Agreement") is made by and between Illumio, Inc., a Delaware corporation, and you.
WHEREAS, the above named parties desire to begin discussions regarding a business opportunity of mutual interest (the "Business Purpose"); and
WHEREAS, in connection with such discussions, the parties recognize that there is a need to disclose to each other certain confidential information to be used only for the Business Purpose and to protect such confidential information from unauthorized use and disclosure.
NOW THEREFORE, in consideration of the other party's disclosure of such confidential information, each party agrees as follows:
1. Definition. For purposes of this Agreement, "Confidential Information" means all non-public, confidential or proprietary information disclosed at any time by a party to the other party or such other party's affiliates, employees, partners, agents or advisors. whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as "confidential."
2. Obligations. Each party agrees: (a) to maintain the other party's Confidential Information in strict confidence affording the disclosing party's Confidential Information at least the same level of protection against unauthorized disclosure as the receiving party normally uses to protect its own information of a similar character, but in no event less than reasonable care; (b) not to disclose such Confidential Information to any third parties; (c) not to copy, decompile, reverse engineer or otherwise reproduce Confidential Information in whole or in part; and (d) not to use any such Confidential Information for any purpose except for the Business Purpose. Each party may disclose the Confidential Information of the other party to its employees and consultants who have a bona fide need to know such Confidential Information for the Business Purpose, but solely to the extent necessary to pursue the Business Purpose and for no other purpose; provided that each such employee and consultant first executes a written agreement (or is otherwise already bound by a written agreement) that contains use and nondisclosure restrictions at least as protective of the other party's Confidential Information as those set forth in this Agreement; provided further that the receiving party shall be responsible for any violation of such confidentiality obligations or use restrictions by its employees or consultants, even if the violation occurs after the professional relationship of such employees or consultants with the receiving party ends. The provisions of this Section 2 will not restrict a party from disclosing the other party's Confidential Information to the extent required by any law or regulation; provided that, to the extent legally permitted, the party required to make such a disclosure uses reasonable efforts to give the other party reasonable advance notice of such required disclosure in order to enable the other party to prevent or limit such disclosure.
3. Exceptions. The receiving party's obligations in Section 2 will not apply to the extent any Confidential Information: (a) is now or hereafter becomes generally known by or available to the public through no act or omission on the part of the receiving party; (b) was known, without restriction as to use or disclosure, by the receiving party prior to receiving such information from the disclosing party as evidenced by receiving party's written records predating such disclosure; (c) is rightfully acquired by the receiving party from a third party who has the right to disclose it without restriction as to use or disclosure; or (d) is independently developed by the receiving party without reference to any Confidential Information of the disclosing party, as evidenced by receiving party's contemporaneous written records.
4. Return. Upon the disclosing party's request, the receiving party will promptly destroy or return to the disclosing party all tangible items and embodiments containing or consisting of the disclosing party's Confidential Information and all copies thereof (including electronic copies) and provide the disclosing party with written confirmation of the receiving party's compliance with the foregoing obligation. Notwithstanding the foregoing, the receiving party shall be entitled to retain archival copies of the Confidential Information for legal, audit, insurance, regulatory or compliance purposes and nothing shall require the erasure or destruction of back-up media made in accordance with the receiving party's document-retention procedures, provided the terms of this Agreement continue to apply to any retained Confidential Information.
5. Ownership. All Confidential Information remains the sole and exclusive property of the disclosing party. Each party acknowledges and agrees that nothing in this Agreement will be construed as granting any rights, title or interest to the receiving party, by license or otherwise, in or to any Confidential Information of the disclosing party, or any patent, copyright or other intellectual property or proprietary rights of the disclosing party, except as specified in this Agreement. All Confidential Information is provided by the disclosing party "as is."
6. Remedies. Each party acknowledges that the unauthorized use or disclosure of the disclosing party's Confidential Information may cause the disclosing party to incur irreparable harm and significant damages, the degree of which may be difficult to ascertain. Accordingly, each party agrees that the disclosing party may seek equitable relief to enjoin any unauthorized use or disclosure of its Confidential Information, in addition to any other rights and remedies that it may have at law or otherwise.
7. Term. This Agreement will commence on the date either or both parties begin exchanging Confidential Information and, unless otherwise terminated by either party giving written notice to terminate, the Agreement will remain in effect for as long as the parties continue to exchange Confidential Information. Notwithstanding anything to the contrary herein, each party's rights and obligations hereunder shall survive expiration or termination of this Agreement for a period of three (3) years following the expiration or termination effective date (the "Survival Period"), provided that for any trade secrets of the disclosing party, the Survival Period shall last for as long as such Confidential Information qualifies as a trade secret under applicable law.
8. Miscellaneous. This Agreement will be construed, interpreted, and applied in accordance with the internal laws of the State of California (excluding its body of law controlling conflicts of law). This Agreement is the complete and exclusive statement regarding the subject matter of this Agreement and supersedes all prior agreements, understandings and communications, oral or written, between the parties regarding the subject matter of this Agreement. Neither party may assign this Agreement, in whole or in part, without the other party's prior written consent; any attempted assignment without such consent will be void. No waiver of or delay in enforcing a provision of this Agreement shall operate as a waiver of any other provision or the same provision on a future occasion.