All information disclosed by one party to the other on a confidential basis as part of the Project shall be deemed “Proprietary Information” including any business plan or presentations, strategy, trade secret, know-how, information, process, technique, algorithm, computer program (source and object code), design or drawing, in each case, relating to any research, project, work in process, future development, engineering, manufacturing, marketing, servicing, financing or personnel matter relating to the disclosing party, its past, present or future products, sales, suppliers, clients, customers, employees, investors or business, and its discussions with the undersigned, whether in oral, written, graphic or electronic form, including all notes, analyses, compilations, studies, interpretations, copies or other documents prepared by each party or its representatives which contain, reflect or are based upon information furnished by the disclosing party. The term “Proprietary Information” shall not include information which: (a) is now, or hereafter becomes publicly known or available through lawful means; (b) is rightfully in recipient’s possession, as evidenced by recipient’s records, or is part of recipient’s general knowledge prior to exploring the Project; (c) is disclosed to Recipient without confidential or proprietary restriction by a third party who rightfully possesses the information (without confidential or proprietary restriction); or (d) is demonstrated to have been independently developed by Recipient without any breach of this Agreement.
With respect to all Proprietary Information, each party shall: maintain it in trust and confidence; use it only to the extent required to accomplish the purposes of this Agreement as described above; and limit access to it to those employees and representatives having a need to know, and in such case, advise them of its confidential nature and obtain their written agreement to be bound by the terms of this Agreement.
With respect to all Proprietary Information, each party shall not: disclose it to any third party or use it for any unauthorized purpose without the disclosing party’s express written consent; reproduce it in any form except as required to accomplish the intent of this Agreement; or use it for any purpose or in any manner that would constitute a violation of any laws or regulations, including without limitation the export control laws of the United States.
No rights or licenses to trademarks, inventions, copyrights, patents, trademarks, know-how, or other intellectual property are implied or granted under this Agreement. All Proprietary Information (including all copies thereof) shall remain the property of the disclosing party and shall be returned to the disclosing party after the recipient party’s need for it has expired, or upon written request of the disclosing party, or upon the termination of this Agreement.
Notwithstanding any other provision of this Agreement, limited disclosure of Proprietary Information shall not be precluded if such disclosure: (a) is in response to a valid order of a court or other governmental body of the United States or any political subdivision thereof; provided, however, that the responding party shall first have given written notice to the other party hereto, adequate to allow the party to act independently to protect the information, and shall have made a reasonable effort to obtain a protective order requiring that the Proprietary Information so disclosed be used only for the purposes for which the order was issued; (b) is otherwise required by law after consultation with the other party concerning that legal conclusion; or (c) is otherwise necessary to establish rights or enforce obligations under this Agreement, but only to the extent that any such disclosure is necessary.
This Agreement may be terminated by either party upon written notice, however, the obligations imposed by Paragraphs 2 through 7, inclusive, shall continue to survive for a period of two (2) years from the termination of this Agreement.
Each party hereby acknowledges and agrees that in the event of any breach of this Agreement by the other party, including, without limitation, the actual or threatened disclosure or unauthorized use of a disclosing party’s Proprietary Information without the prior express written consent of the disclosing party, the disclosing party will suffer an irreparable injury, such that no remedy at law will afford it adequate protection against, or appropriate compensation for, such injury. Accordingly, each party hereby agrees that the other party shall be entitled to specific performance of the recipient party’s obligations under this Agreement, as well as such further relief as may be granted by a court of competent jurisdiction.
This Agreement contains the final, complete and exclusive agreement between the parties relative to the subject matter hereof and supersedes all prior and contemporaneous understandings and agreements relating to its subject matter. This Agreement may not be changed, modified, amended or supplemented except by a written instrument signed by both parties. This Agreement shall benefit and be binding upon the parties hereto and their respective successors and assigns.
This Agreement shall be construed in accordance with, and governed in all respects by, the internal laws of the State of Maine, without giving effect to principles of conflict of laws.
If any provision, or portion thereof, of this Agreement, is found by proper authority to be unenforceable, that provision or portion shall be severed and the remainder of this Agreement will continue in full force and effect.
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