Register

For the purpose of evaluating certain possible business transactions and conducting negotiations in connection therewith (the “Purpose”), each party (“Discloser”) has disclosed or may disclose to the other party (“Recipient”) or its Representatives (defined below) certain commercially valuable, proprietary or confidential information or trade secrets, including but not limited to information relating to Discloser’s products, ideas, inventions, technology, processes, specifications, financial information and plans, formulae, data, know-how, designs, software, services, marketing plans and strategies and customer and supplier information (collectively, “Proprietary Information”).

Except as otherwise hereafter expressly permitted in writing by Discloser, Recipient agrees and agrees to cause its Representatives to (i) keep confidential all Proprietary Information of Discloser and to protect such Proprietary Information by using the same degree of care, but no less than a reasonable degree of care, to prevent its loss, theft or unauthorized dissemination or publication as Recipient uses to protect its own Proprietary Information of a like nature, (ii) use such Proprietary Information solely for the Purpose, (iii) not disclose such Proprietary Information to any person or entity other than Recipient’s subsidiaries and its and its subsidiaries’ employees, agents and contractors who have a bona fide need to know for the Purpose and are under a duty of nondisclosure with respect to such information (collectively, “Representatives”), (iv) not use any of such Proprietary Information for Recipient’s product development or incorporate any such Proprietary Information in any device, method, product, service or patent, and (v) not modify, translate, reverse engineer, decompile or attempt to obtain the source code for any such Proprietary Information.

Recipient agrees that any and all Proprietary Information of Discloser is and shall remain the property of Discloser.  Recipient shall notify Discloser immediately upon discovery of any unauthorized use or disclosure of Proprietary Information or any other breach of this Agreement and will reasonably cooperate with Discloser to help Discloser regain possession of its Proprietary Information and prevent its further unauthorized use or disclosure.

Recipient’s obligations hereunder shall not apply to any Proprietary Information of Discloser: (i) that is or becomes generally available to the public through no fault of Recipient; (ii) was previously known to Recipient free of any restriction or obligation to keep it confidential; (iii) is subsequently disclosed to Recipient by a third party who rightfully discloses such information without restriction and free of any obligation to keep it confidential; or (iv) is independently developed by Recipient. In addition, Proprietary Information of Discloser may be disclosed by Recipient to the extent that disclosure is necessary to comply with law or the valid order or regulatory or other requirement of a governmental entity or court of competent jurisdiction; provided that Recipient uses reasonable efforts to provide Discloser with at least ten days’ prior written notice of such disclosure, Recipient discloses only that portion of the Proprietary Information that is legally required to be furnished, and Recipient reasonably cooperates with Discloser in its efforts to obtain a protective order or assurances of confidential treatment thereof.

Within five business days of Discloser’s request, Recipient shall cease use of all Proprietary Information of Discloser and shall return it to Discloser or destroy, and certify in writing to Discloser as to the permanent destruction of, all tangible or retrievable materials embodying such Proprietary Information.

Recipient agrees to abide by and reproduce and include any restrictive legend or proprietary rights notice that appears in or on any Proprietary Information of Discloser (or any third-party owner) that it is authorized to reproduce. Recipient also agrees not to remove, alter, cover or distort any trademark, trade name, copyright or other proprietary rights notices, legends, symbols or labels appearing on or in any Proprietary Information of Discloser (or any third-party owner).

EACH PARTY PROVIDES INFORMATION SOLELY ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND or duty to update or correct. Recipient acknowledges that Discloser shall not have an adequate remedy at law if Recipient breaches this Agreement and that Discloser will suffer irreparable damage in such event, and Recipient agrees that Discloser, in addition to any other available rights and remedies, shall be entitled to equitable relief, without bond or other security, restricting Recipient from committing or continuing any such breach.

This Agreement shall be governed by the laws of Massachusetts, exclusive of its conflict of laws principles. If any provision hereof is held to be void or unenforceable, in whole or in part, the other provisions of this Agreement shall continue to be valid and the parties shall replace the void or unenforceable provision with one that is valid and enforceable and most nearly approximates their original intentions. This Agreement expresses the entire understanding of the parties, and supersedes all prior oral or written agreements, commitments and understandings, with respect to the subject matter hereof. This Agreement may be executed in one or more counterparts, each of which shall be an original. Facsimile signatures shall be deemed to be equivalent to original signatures for purposes of this Agreement. No modification or waiver of any provision of this Agreement shall be binding upon a party unless it is in writing and is executed by such party.