In consideration of mutual covenants contained herein, the parties agree as follows:
1. Definition of Confidential Information
(a) For purposes of this Agreement, “Confidential Information” means any data or information that is proprietary to the Customer and not generally known to the public, whether in tangible or intangible form, whenever and however disclosed, including, but not limited to:
(i) any marketing strategies, plans, financial information, or projections, operations, sales estimates, business plans and performance results relating to the past, present or future business activities of such party;
(ii) plans for products or services, and customer or supplier lists;
(iii) any scientific or technical information, invention, design, process, procedure, formula, improvement, technology or method;
(iv) any information covered under: the Health Information Portability and Accountability Act, Gramms-Leach-Bliley Act, and/or Sarbane-Oxley Act; and
(v) any other information that should reasonably be recognized as confidential information of the Customer. Confidential Information need not be novel, unique, patentable, copyrightable or constitute a trade secret in order to be designated Confidential Information.
The Company acknowledges that the Confidential Information is proprietary to the Customer, has been developed and obtained through great efforts by the Customer.
(b) Notwithstanding anything in the foregoing to the contrary, Confidential Information shall not include information which:
(i) was known by the Company prior to receiving the Confidential Information from the Customer;
(ii) becomes rightfully known to the Company from a third-party source not known by the Company to be under an obligation to the Customer to maintain confidentiality;
(iii) is or becomes publicly available through no fault of or failure to act by the Company in breach of this Agreement;
(iv) is required to be disclosed in a judicial or administrative proceeding, or is otherwise requested or required to be disclosed by law or regulation, although the requirements of paragraph 4 hereof shall apply prior to any disclosure being made; and
(v) is or has been independently developed by employees, consultants or agents of the Company without violation of the terms of this Agreement or reference or access to any Confidential Information.
2. Disclosure of Confidential Information
From time to time, the Customer may disclose Confidential Information to the Company. The Company will:
(a) limit disclosure of any Confidential Information to its directors, officers, employees, agents or representatives (collectively “Representatives”) who have a need to know such Confidential Information in connection with the current or contemplated business relationship between the parties to which this Agreement relates, and only for that purpose;
(b) advise its Representatives of the proprietary nature of the Confidential Information and of the obligations set forth in this Agreement and require such Representatives to keep the Confidential Information confidential;
(c) shall keep all Confidential Information strictly confidential by using a reasonable degree of care, but not less than the degree of care used by it in safeguarding its own confidential information; and
(d) not disclose any Confidential Information received by it to any third parties (except as otherwise provided herein). Each party shall be responsible for any breach of this Agreement by any of their respective Representatives.
3. Use of Confidential Information
The Company agrees to use the Confidential Information solely in connection with the current or contemplated business relationship between the parties and not for any purpose other than as authorized by this Agreement without the prior written consent of an authorized representative of the Customer. No other right or license, whether expressed or implied, in the Confidential Information is granted to the Company hereunder. Title to the Confidential Information will remain solely in the Customer. All use of Confidential Information by the Company shall be for the benefit of the Customer and any modifications and improvements thereof by the Company shall be the sole property of the Customer.
4. Compelled Disclosure of Confidential Information
Notwithstanding anything in the foregoing to the contrary, the Company may disclose Confidential Information pursuant to any governmental, judicial, or administrative order, subpoena, discovery request, regulatory request or similar method, provided that the Company promptly notifies, to the extent practicable, the Customer in writing of such demand for disclosure so that the Customer, at its sole expense, may seek to make such disclosure subject to a protective order or other appropriate remedy to preserve the confidentiality of the Confidential Information; provided in the case of a broad regulatory request with respect to the Company’s business (not targeted at Customer), the Company may promptly comply with such request provided the Company give (if permitted by such regulator) the Customer prompt notice of such disclosure. The Company agrees that it shall not oppose and shall cooperate with efforts by, to the extent practicable, the Customer with respect to any such request for a protective order or other relief. Notwithstanding the foregoing, if the Customer is unable to obtain or does not seek a protective order and the Company is legally requested or required to disclose such Confidential Information, disclosure of such Confidential Information may be made without liability.
5. Term
The parties’ duty to hold in confidence Confidential Information that was disclosed shall remain in effect for a term of no less than two years after termination of this Agreement.
6. Return of Confidential Information
The Company shall immediately return and/or destroy any Confidential Information disclosed by the Customer upon request only; costs associated with such return shall be paid by the Customer, if any are assessed.
7. Notice of Breach
Company shall notify the Customer immediately upon discovery of any unauthorized use or disclosure of Confidential Information by Company or its Representatives, or any other breach of this Agreement by Company or its Representatives, and will cooperate with efforts by the Customer to help the Customer regain possession of Confidential Information and prevent its further unauthorized use.
8. No Joint Venture or Partnership
This Agreement does not create a joint venture or partnership between the parties.
9. Warranty
Each party warrants that it has the right to make the disclosures under this Agreement. NO WARRANTIES ARE MADE BY EITHER PARTY UNDER THIS AGREEMENT WHATSOEVER. The parties acknowledge that although they shall each endeavor to include in the Confidential Information all information that they each believe relevant for the purpose, the parties understand that no representation or warranty as to the accuracy or completeness of the Confidential Information is being made by either party. Further, neither party is under any obligation under this Agreement to disclose any Confidential Information it chooses not to disclose. Neither Party hereto shall have any liability to the other party nor to the other party’s Representatives resulting from any use of the Confidential Information except with respect to disclosure of such Confidential Information in violation of this Agreement.
Notwithstanding the terms of this Agreement, all other liability, warranties, or all other covenants not expressly described herein shall be governed by the Company’s Limitations of Liability.
10. Miscellaneous
(a) This Agreement constitutes the entire understanding between the parties and supersedes any and all prior or contemporaneous understandings and agreements, whether oral or written, between the parties, with respect to the subject matter hereof. This Agreement can only be modified by a written amendment signed by the party against whom enforcement of such modification is sought.
(b) The validity, construction and performance of this Agreement shall be governed and construed in accordance with the laws of Wisconsin applicable to contracts made and to be wholly performed within such state, without giving effect to any conflict of laws provisions thereof. The Federal and state courts located in Wisconsin shall have sole and exclusive jurisdiction over any disputes arising under the terms of this Agreement.
(c) Any failure by either party to enforce the other party’s strict performance of any provision of this Agreement will not constitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement.
(d) Although the restrictions contained in this Agreement are considered by the parties to be reasonable for the purpose of protecting the Confidential Information, if any such restriction is found by a court of competent jurisdiction to be unenforceable, such provision will be modified, rewritten or interpreted to include as much of its nature and scope as will render it enforceable. If it cannot be so modified, rewritten or interpreted to be enforceable in any respect, it will not be given effect, and the remainder of the Agreement will be enforced as if such provision was not included.
(e) This Agreement is personal in nature, and neither party may directly or indirectly assign or transfer it by operation of law or otherwise without the prior written consent of the other party, which consent will not be unreasonably withheld. All obligations contained in this Agreement shall extend to and be binding upon the parties to this Agreement and their respective successors, assigns and designees.
(f) The receipt of Confidential Information pursuant to this Agreement will not prevent or in any way limit either party from:
(i) developing, making or marketing products or services that are or may be competitive with the products or services of the other; or
(ii) providing products or services to others who compete with the other.
(g) Paragraph headings used in this Agreement are for reference only and shall not be used or relied upon in the interpretation of this Agreement.