PURPOSE. The parties wish to engage in discussions concerning a potential transaction between them or other business opportunity of mutual interest (the “Project”) and, in connection with such discussions, Pinna may disclose to Individual certain confidential information that Pinna desires Individual to treat as confidential.
CONFIDENTIAL INFORMATION. “Confidential Information” means any non-public, proprietary or confidential information disclosed by Pinna to Individual, either directly or indirectly, in writing, electronically, orally or by inspection of documents or other tangible objects, that (i) is marked as “Confidential” or “Proprietary” or (ii) should reasonably be understood by Individual to be non-public, proprietary or confidential. Confidential Information includes all information relating to Pinna’s business plans, business strategies, business relationships and creative, marketing, distribution and production plans, budgets, concepts and strategies. Confidential Information may also include information disclosed to Individual by third parties. Confidential Information will not include any information that (a) was publicly known and/or made generally available in the public domain prior to the time of disclosure by Pinna, (b) becomes publicly known and/or made generally available in the public domain after disclosure by Pinna to Individual through no action or inaction of Individual, (c) is already in the possession of Individual at the time of disclosure by Pinna as shown by Individual’s files and records immediately prior to the time of disclosure, (d) is obtained by Individual from a third party without a breach of such third party’s obligations of confidentiality or (e) is independently developed by Individual without use of or reference to any Confidential Information, as shown by documents and other competent evidence in Individual’s possession.
NON-USE AND NON-DISCLOSURE. Individual shall not use any Confidential Information for any purpose except to evaluate and engage in discussions concerning the Project and, if the parties proceed with the Project, solely as necessary in connection with the Project. Individual shall not at any time use any Confidential Information for its own benefit or that of any third party, or to the detriment of Pinna. Individual shall not disclose any Confidential Information to Individual’s employees or independent contractors, except on a “need to know” basis to those employees and independent contractors who are required to have the information in order to evaluate or engage in discussions concerning the Project and/or to implement the Project, and only to those employees and independent contractors who have been informed of are bound by non-use and non-disclosure provisions equivalent to those set forth in this Agreement prior to any disclosure of Confidential Information to such employees and independent contractors. Individual shall be responsible for any breach of this Agreement caused by its employees and/or independent contractors.
MAINTENANCE OF CONFIDENTIALITY. Individual shall not disclose any Confidential Information to any third party without Pinna’s prior written authorization. Individual shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the foregoing, Individual shall take at least those measures that it takes to protect its own confidential information of a similar nature, but in no case less than reasonable care. Individual shall reproduce Pinna’s proprietary rights notices on any copies of the Confidential Information, in the same manner in which such notices were set forth in or on the original. Individual shall promptly notify Pinna of any use or disclosure of Confidential Information in violation of this Agreement of which it becomes aware.
NO PUBLICITY. Individual shall not at any time make any public announcement or disclosure of any prospective business arrangement with Pinna without Pinna’s express prior written authorization. Individual shall not furnish Pinna’s name, trademark or proprietary indicia as a reference, or utilize Pinna’s name, trademark or proprietary indicia in any advertising, announcement, press release or promotional material without Pinna’s express prior written authorization or as is permitted pursuant to another agreement between the parties.
NOTICE OF COMPELLED DISCLOSURE. In the event that Individual is requested or required by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or any other law, order or regulation or legal process to disclose any Confidential Information, then Individual shall, to the extent permitted by law, provide Pinna with prompt written notice of such request or requirement so that Pinna may seek an appropriate protective order and will cooperate with Pinna to limit the scope of any compelled disclosure to the extent legally permissible. Disclosure of Confidential Information in accordance with this Section 6 will not constitute a breach of this Agreement.
NO OBLIGATION. Nothing herein will obligate either party to proceed with any transaction between them, and each party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement concerning the business opportunity.
NO WARRANTY. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS.” PINNA MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE.
RETURN OF MATERIALS. All documents and other tangible objects and electronic copies of or files containing or representing Confidential Information and all copies thereof that are in the possession of Individual will be and remain the property of Pinna and will be promptly destroyed or returned to Pinna upon Pinna’s written request, except that Individual may retain one copy of any Confidential Information in accordance with its standard document retention practices (and the terms of this Agreement will continue to apply to any Confidential Information so retained).
NO LICENSE. Nothing in this Agreement is intended to, or does, grant any rights to Individual under any patent, copyright, trade secret or other intellectual property right of Pinna, nor will this Agreement grant Individual any rights in or to the Confidential Information except as expressly set forth herein.
TERM. The obligations of Individual hereunder will survive until such time as all Confidential Information disclosed hereunder becomes publicly known and made generally available through no action or inaction of Individual.
REMEDIES. The Confidential Information disclosed pursuant to this Agreement is of a special, unique, and extraordinary character and Pinna would be irreparably harmed by any disclosure of the Confidential Information in violation of this Agreement. Pinna shall be entitled to seek an injunction, specific performance and other equitable relief, without the necessity of posting a bond or having to prove the inadequacy of the available remedies at law, to prevent any breach of this Agreement, in addition to all other remedies available to Pinna at law or in equity.
MISCELLANEOUS. Neither party may assign or otherwise transfer this Agreement without the prior written consent of the other party, and any assignment without such consent will be void, except that either party may assign or transfer this Agreement without such consent to any successor to all or substantially all of such party’s assets or business to which this Agreement relates (whether by stock purchase, asset purchase, merger, operation of law or otherwise). Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties and their successors and assigns. This Agreement will be governed by the laws of the State of New York, without reference to the conflict of laws principles of any jurisdiction. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION LOCATED IN MANHATTAN IN THE CITY OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND HEREBY IRREVOCABLY AGREES, ON BEHALF OF ITSELF AND ON BEHALF OF SUCH PARTY’S SUCCESSORS AND ASSIGNS, THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION SUCH PERSON MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements concerning the same. If any provision of this Agreement is found to be illegal or unenforceable, the other provisions will remain effective and enforceable to the greatest extent permitted by law. Any failure to enforce any provision of this Agreement will not constitute a waiver thereof or of any other provision. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties (which shall not include e-mail). The parties may execute this Agreement in counterparts, each of which is deemed an original, but all of which together constitute one and the same instrument. Signatures to this Agreement delivered by facsimile or similar electronic transmission will be deemed to be binding as originals.
This Agreement is agreed to and accepted by the duly authorized representative of each party as of the Effective Date.