Product And Services Agreement
Confidentiality Terms
These Confidentiality Terms govern each Party’s access to the other Party’s Confidentiality Information and provide for the non-disclosure and security of such Confidential Information in connection with the Agreement. These Confidentiality Terms constitute a binding contract between Buyer and ibml, and the disclosure and receipt of, or access to, the other Party’s Confidential Information in the course of performing each Party’s obligations under the Agreement, as described in the Contract Terms, shall at all times be subject to these Confidentiality Terms.
1. Definitions. As used in these Confidentiality Terms, the following terms shall have the following meanings:
(a) “Affiliate” shall mean, with regard to each Party to the Agreement, any persons or entities controlling, controlled by, or under common control with such Party, including any subsidiaries of such Party. Hereinafter, the term “ibml” shall refer to Imaging Business Machines, L.L.C. and its Affiliates, as the context may require, and the term “Buyer” shall refer to Buyer and its Affiliates, as the context may require.
(b) “Business Day” shall mean a day other than Saturday, Sunday, or a public holiday in England when banks in London are open for business.
(c) “Confidential Information” shall mean any and all non-public, confidential, or proprietary information disclosed before, on or after the Effective Date, by the Disclosing Party to the Receiving Party or a Receiving Party Representative, whether such information is disclosed orally, or disclosed or accessed in written, graphic or electronic form, and whether or not marked, designated, or otherwise identified as “confidential,” including, without limitation: (i) the Disclosing Party’s ideas, findings, research, data, specifications, processes, techniques, methods, algorithms, architecture, know-how, inventions, trade secrets, manuals, report studies, photographs, samples, programs, source code, object code, prototypes, customer lists, price lists, product descriptions, business plan, marketing plan, or work in process; (ii) all information concerning the Disclosing Party’s and its Affiliates’ past, present, and future business affairs, including, without limitation, finances, customer information, supplier information, products, services, organizational structure and internal practices, forecasts, sales and other financial results, records and budgets; (iii) any third-party confidential information included with, or incorporated in, any information provided by the Disclosing Party to the Receiving Party or any Receiving Party Representative; and (iv) any other information which the Disclosing Party designates, orally or in writing, as confidential or proprietary information or which the Receiving Party has reason to know is confidential or proprietary information.
(d) “Disclosing Party” shall mean the Party to the Agreement (either ibml or Buyer, as the case may be) disclosing Confidential Information to the Receiving Party.
(e) “Receiving Party” shall mean the Party to the Agreement (either ibml or Buyer, as the case may be, and their Affiliates) receiving Confidential Information from the Disclosing Party.
(f) “Receiving Party Representatives” shall mean the Receiving Party’s employees, officers, directors, partners, shareholders, agents, attorneys, accountants, advisors, subcontractors, or any other person to whom the other Party agrees in writing that Confidential Information may be disclosed.
2. Non-Disclosure Obligations. The Receiving Party, for itself and for its Receiving Party Representatives, agrees to protect and safeguard the confidentiality of all such Confidential Information with at least the same degree of care as the Receiving Party would use to protect its own Confidential Information (which shall be no less than a commercially reasonable degree of care). In any event, each Receiving Party shall:
(a) Disclose such Confidential Information to only those Receiving Party Representatives: (i) whose duties justify their need to know such information, (ii) who have been clearly informed by the Receiving Party of their obligation to maintain the confidential, proprietary and/or trade secret status of such Confidential Information, and (iii) who are subject to confidentiality duties or obligations to the Receiving Party that are no less restrictive than the terms and conditions of these Confidentiality Terms; and
(b) Use such Confidential Information only for the purpose of reviewing, analyzing and discussing with the Disclosing Party the Products or the Agreement or performing its obligations in accordance with the Agreement. Each Receiving Party shall, promptly upon the written request of the Disclosing Party, (i) return to Disclosing Party or destroy all Confidential Information received from the Disclosing Party, including all copies thereof made by the Receiving Party or any Receiving Party Representatives, (ii) destroy all materials incorporating or based on such Confidential Information which were prepared by the Receiving Party or any Receiving Party Representatives, and (iii) certify to the Disclosing Party in writing that it has complied with the Non-Disclosure Obligations in this Section.
3. Exceptions. The Non-Disclosure Obligations set forth above shall not apply to, and Confidential Information does not include any information: (a) which the Disclosing Party expressly agrees in writing is free of any non-disclosure obligations; (b) which, at the time of disclosure to the Receiving Party or Receiving Party Representative, was known to the Receiving Party or Receiving Party Representative (as evidenced by documentation in the possession of the Receiving Party or Receiving Party Representative) free of any non-disclosure obligations; (c) which is independently developed by the Receiving Party or Receiving Party Representative (as evidenced by documentation in the possession of the Receiving Party or Receiving Party Representative), without reference to or use of any of the Disclosing Party’s Confidential Information; (d) which is lawfully received by the Receiving Party or any Receiving Party Representative on a non-confidential basis from a third party, provided that such third party is not and was not prohibited from disclosing such Confidential Information to the Receiving Party by a legal, fiduciary, or contractual obligation to the Disclosing Party; or (e) which is or becomes generally available to the public without any breach of these Confidentiality Terms or unauthorized disclosure of such Confidential Information by the Receiving Party or any Receiving Party Representative.
4. Requests for Disclosure. If Receiving Party or a Receiving Party Representative is required, pursuant to (a) an order of any court of competent jurisdiction or any regulatory, judicial, governmental or similar body or any taxation authority of competent jurisdiction; (b) the rules of any listing authority or stock exchange on which its shares are listed or traded; or (c) the laws or regulations of any country to which its affairs are subject, to disclose any Confidential Information of the Disclosing Party, then, unless prohibited by applicable law, the Receiving Party or such Receiving Party Representative shall use reasonable efforts to notify the Disclosing Party prior to such required disclosure so that the Disclosing Party may seek, at its expense, a protective order or other remedy, and the Receiving Party shall reasonably assist Disclosing Party therewith. If the Receiving Party remains legally compelled to make such disclosure, it shall: (x) only disclose that portion of the Confidential Information which, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally compelled to disclose; and (y) use reasonable efforts to obtain assurances that confidential treatment will be accorded to such Confidential Information.
5. Survival. Upon expiration or termination of the Agreement for any reason, each Party’s obligations under these Confidentiality Terms with respect to Confidential Information received prior to such expiration or termination shall survive until such time as all Confidential Information of the Disclosing Party disclosed hereunder becomes publicly known and made generally available through no action or inaction of the Receiving Party or a Receiving Party Representative.
6. General.
(a) No Obligation. Neither Party has any obligation to disclose any Confidential Information to the other Party.
(b) Ownership of Confidential Information. All Confidential Information shall remain the property of the Disclosing Party, and nothing contained in these Confidentiality Terms shall be construed as granting or conferring any rights by license or otherwise in any Confidential Information of the Disclosing Party beyond the rights expressly set forth in these Confidentiality Terms.
(c) No Representations. No Party shall be deemed to make any representation, warranty, assurance or guarantee, express or implied, with respect to the accuracy or completeness of any Confidential Information disclosed hereunder, including without limitation any representation or warranty of merchantability, fitness for any particular purpose, or non-infringement of intellectual property or other rights of third parties. Disclosing Party will have no liability to the Receiving Party or any other person relating to the Receiving Party’s use of any of the Confidential Information or any errors therein or omissions therefrom.
(d) Rights and Remedies. The Parties agree that any breach of these Confidentiality Terms, including without limitation any actual or threatened disclosure of Confidential information without the express prior written consent of the Disclosing Party, would cause irreparable injury to the Disclosing Party for which money damages, alone, might not be an adequate remedy. Therefore, the Parties agree that in addition to all other remedies available at law or in equity, the Disclosing Party shall be entitled to seek injunctive relief and specific performance as remedies to redress any breach or threatened breach of these Confidentiality Terms by the Receiving Party, any Receiving Party Representative, or any other persons directly or indirectly acting for or on behalf of or with the Receiving Party. The rights and remedies hereunder shall be cumulative, may be exercised singularly or concurrently, and shall not be deemed exclusive.
7. Export Control Laws. Each Party agrees that certain information or technology provided by the other Party under these Confidentiality Terms may be subject to export control laws and regulations (collectively, “Export Control Laws”). Each Party agrees to comply with all provisions of the Export Control Laws of the United States and other relevant countries as such laws currently exist and as they may be amended from time to time, with respect to any export of Confidential Information.
[END OF CONFIDENTIALITY TERMS]