This is an agreement between Individual and Owner involving the material exchange of confidential information and shall be effective at the date of form submittal or agreement to terms upon selection and submission via PhenomAInon.com.

 

RECITAL

 

Each party (the "Individual") understands that the other party (the "Owner") has disclosed or may disclose information including, without limitation, computer programs, code, algorithms, know-how, formulas, processes, ideas, inventions (whether patentable or not), and other technical, business, financial and product development plans, forecasts, strategies and information, which to the extent previously, presently, or subsequently disclosed to the Individual, is hereinafter referred to as "Proprietary Information" of the Owner. All Proprietary Information shall be protected and safeguarded if it is (a) marked as the Owner's confidential or proprietary information (or with an equivalent legend) at the time of disclosure, if disclosed in tangible form; or (b) identified as Proprietary Information at the time of disclosure. Notwithstanding the failure of the Owner to mark information as confidential or proprietary as described above, information that, by its very nature, or under the particular circumstances of disclosure, should reasonably be understood to be confidential or proprietary, shall be deemed to be Proprietary Information.

 

In consideration of the parties' discussions and access the Individual may have to Proprietary Information of the Owner, the Parties hereby agree as follows:

 

• The Individual agrees (i) to hold the Owner's Proprietary Information in confidence and to take all necessary precautions to protect such Proprietary Information including, without limitation, all precautions the Individual employs with respect to its own confidential materials, (ii) not to divulge  any such Proprietary Information or any information derived therefrom to any third person, (iii) not to make any use of such Proprietary Information, except for the below stated purpose, and (iv) not to copy or reverse  engineer, or attempt to derive the composition or underlying information of any such Proprietary Information.

• The Individual further agrees to limit the use of and access to the Owner's Proprietary Information to the Individual's employees who need to know such Proprietary Information for said purposes and shall cause such employees to comply with the obligations set forth herein.

• The Owner agrees that the foregoing obligations shall not apply with respect to information that (i) was in the possession of the Individual or known by it prior to receipt from the Owner, or (ii) was rightfully disclosed to the Individual by another person without restriction, or (iii) was independently developed by the Individual without access to such Proprietary Information, or (iv) is required to be disclosed pursuant to any statutory or regulatory authority or court order, provided the Individual has given the Owner prompt notice of such requirement and the opportunity to   contest it, (v) is or becomes generally known to the public without violation of this Agreement or without a violation of an obligation of confidentiality owed to the Owner.

• Immediately upon a request by the Owner at any time, the Individual will turn over to the Owner all Proprietary Information of the Owner and all documents or media containing any such Proprietary Information and all copies or extracts thereof and will promptly and permanently delete any Proprietary Information which is electronically or optically recorded or stored.

• The Individual acknowledges and agrees that due to the unique nature of the Owner's Proprietary Information, there can be no adequate remedy at law for any breach of its obligation hereunder, that any such breach may allow the Individual or third parties to unfairly compete with the Owner resulting in irreparable harm to the Owner, and therefore, that upon any such breach or any threat thereof, the Owner shall be entitled to seek appropriate equitable relief in addition to whatever remedies it might have at law. The Individual will notify the Owner in writing immediately upon the occurrence of any such unauthorized release or other breach. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the remaining portions hereof shall remain in full force and effect.

• Neither party acquires any intellectual property rights under this Agreement or any disclosure hereunder, except the limited right to use such Proprietary Information in accordance with this Agreement.

 

NO WARRANTIES OF ANY KIND (INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) ARE GIVEN WITH RESPECT TO THE PROPRIETARY INFORMATION DISCLOSED OR USED UNDER THIS AGREEMENT, AND NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR DAMAGES ARISING OUT OF OR CAUSED BY DEFECTS OR DEFICIENCIES IN THE PROPRIETARY INFORMATION OF EITHER PARTY, WHETHER DIRECT, INCIDENTAL, CONSEQUENTIAL OR OTHERWISE.

 

This Agreement supersedes all prior discussions and writings and constitutes the entire agreement between the parties with respect to the subject matter hereof. No waiver or modification of this Agreement will be binding upon either party unless made in writing and signed by a duly authorized representative of such party, and no failure or delay in enforcing any right will be deemed a waiver. The obligations of non- use and non-disclosure shall survive for a period of three (3) years following the Effective Date.