NIC MUTUAL NON-DISCLOSURE AND NON-USE AGREEMENT
1. Information. For purposes hereof, and without regard to whether the party making such disclosure NATIONAL INVESTMENT CENTER "Information" shall mean and include, inter alia, all information, formulations, data, technology, know-how, designs, inventions, discoveries, processes, models, software, source codes, drawings, oil painting, concepts and systems, any and all other intellectual property rights and/or trade and business secrets, including without limitation, customers, prospects, sales figures and projections, financial, contractual, personnel and marketing information, of a confidential and/or proprietary nature of the Disclosing Party, whether conveyed to the receiving party (as such, the “Recipient”) in tangible form, by visual display or presentation, or orally, whether in part or in whole, which has been heretofore or may hereafter be transmitted or otherwise disclosed to the Recipient or any of its Representatives (as defined below) by or on behalf of the Disclosing Party, or which the Recipient or any of its Representatives otherwise acquires from the Disclosing Party or anyone acting on behalf of the Disclosing Party (such as its advisors, attorneys or other agents). The failure to specifically identify any Information, of whatever nature or in whatever medium conveyed by the Disclosing Party to Recipient hereunder or in connection herewith as “CONFIDENTIAL” or “PROPRIETARY” shall not render any of such Information ineligible for the protection contemplated hereby, the presumption being that any information conveyed by a Disclosing Party to the Recipient hereunder constitutes confidential “Information” unless a specific exclusion set forth in Section 4 below conclusively applies to such information.
2. Limitations. For a period of Ten (10) years from the date of last disclosure of Information to a Recipient hereunder, or to any of its Representatives, whichever is last, such Recipient shall maintain all Information received in the strictest confidence and, in any event, accord all such Information confidential treatment and handling no less strict than that which is accorded by such Recipient to its own confidential or proprietary information. The Recipient shall not, during such period, directly or indirectly, disclose or divulge, nor cause or permit to be disclosed or divulged, any Information in whatever form or medium obtained or maintained, to any person, firm or corporation without the prior express written consent of the Disclosing Party in each instance; provided, however, that access to the Information may be afforded to those of the Recipient’s directors, officers, employees, legal counsel or other professional advisers (collectively, “Representatives” and individually a “Representative”) having a demonstrable need for access to such Information in furtherance of the purpose for which such Information was provided by the Disclosing Party. Any such director, officer, employee or agent of Recipient to whom Information is provided, or who is otherwise afforded access to Information for the purpose contemplated hereby, shall preserve the confidentiality thereof, shall be advised by Recipient of Recipient’s obligations hereunder, and shall agree for himself or herself to observe the restrictions set forth herein.
3. Non-Use; Non-Circumvention and Non-Misappropriation. (a) Except to the extent, if any, that the Disclosing Party otherwise expressly approves in writing, the Recipient shall utilize the Information only for the purpose of evaluating its interest in furthering its commercial relationship with the Disclosing Party, and shall not utilize Information for any other purpose whatsoever. Under no circumstances shall a Recipient use any Information, nor any information furnished by a Disclosing Party even if its does not constitute Information, for the direct or indirect purpose of identifying and contacting the Disclosing Party’s customers, suppliers or employees, or for any purpose not expressly authorized hereby. Furthermore, each party acknowledges and agrees, as an inducement to the other party to enter into this Agreement and to make disclosures of Information hereunder, that it will make no use nor appropriation of any such Information for its own benefit or for the benefit of any party other than the Disclosing Party or in pursuit of furthering the commercial relations between NATIONAL INVESTMENT CENTER and Company (you). Notwithstanding the provision of Information to a Recipient hereunder, the parties agree and acknowledge that all Information is, and shall remain, solely and exclusively the property of the Disclosing Party and that by virtue of access to such Information, the Recipient does not have and shall not acquire ownership or other rights thereto. No license or right with respect to the Information, or any portion thereof, is granted by either party to the other, neither by implication or otherwise, and without regard to whether any of such Information is protected by patent, patent application, claims of patent or license, copyright or other proprietary rights.
(b) Each party hereto acknowledges that the disclosure, release, dissemination or use of any or all of the Information furnished to it hereunder in any manner other than as expressly permitted hereby could cause substantial damage to the Disclosing Party or to its competitive position. Accordingly, in the event of a breach or threatened breach of a Recipient’s undertakings set forth herein relating to the preservation of the confidentiality of Information furnished hereunder, the Disclosing Party (in that instance) shall be entitled to injunctive and equitable relief in any court of competent jurisdiction, in addition to such other and further remedies and recourse that a court of competent jurisdiction may deem reasonable under the circumstances.
4. Exclusions. This Agreement shall not apply to, and the term “Information” shall not be construed so as to include, specific information which the Recipient is able to conclusively demonstrate (a) is and/or has become available in the public domain otherwise than by reason of a direct or indirect breach hereof; (b) was known to the Recipient prior to the disclosure thereof by the Disclosing Party hereunder, provided that, promptly after disclosure hereunder, the Recipient shall have notified the Disclosing Party thereof in writing and shall have demonstrated by tangible evidence, such as written records, that such information was in fact so known to the Recipient; or (c) is legally transmitted or disclosed to the Recipient by a third party which owes no obligation of confidentiality to the Disclosing Party. In the event that Recipient becomes subject to a compulsory disclosure obligation under law or by court order with respect to any portion of the Information, it shall provide written notice thereof to the Disclosing Party on an urgent basis so that the Disclosing Party shall have as much time as possible to intervene and seek to protect and preserve the confidentiality of such Information. The burden of demonstrating that an exclusion pursuant to this Section 4 applies to any Information provided hereunder shall be upon the Recipient, in each instance.
5. Return of Information. Upon the request of a Disclosing Party hereto at any time, the Recipient party shall promptly deliver to the requesting party all copies of all documents or other records which were, at any time, in its possession or under its control, and all materials (in whatever medium created or stored), which contain or embody Information, and whether part of the Information conveyed or thereafter created by the Recipient using such Information.
6. Limitations. The disclosure by a party hereto of any Information to the other party, or use of any Information by the Recipient thereof, shall not be construed in any way to grant or convey to the Recipient any license, permit and/or any other right with respect to the Information other than the right to use the Information strictly in accordance with the terms, and for the limited purpose contemplated by, this Agreement.
7. No Export of Information. Each party hereby covenants and agrees that in its capacity as a Recipient none of the Information provided by the Disclosing Party, nor any portion thereof, will be exported or transmitted from the United States to any other country and, without limiting the generality of the foregoing, each party agrees that in its capacity as a Recipient of Information hereunder it will abide at all times with all provisions of the United States Export Administration Act and the regulations promulgated thereunder, and all other laws and regulations applicable thereto restricting or regulating the export of software products.
8. Term. This Agreement shall become effective upon execution by the parties hereto and shall continue in full force and effect until terminated by either party in writing. Notwithstanding any such termination, the obligations of each party qua Recipient under this Agreement shall survive termination hereof and continue for the period specified in Section 2 above.
9. No Assignment Permitted; Relationship not a Joint Venture. Neither this Agreement (or any of the rights hereunder), nor any duties hereunder, shall be assigned or delegated by either party hereto without the express prior written consent of the other party hereto in each instance. Notwithstanding anything contained in or to be inferred from this Agreement to the contrary, NATIONAL INVESTMENT CENTER and Company are and shall remain separate entities, and the provision of Information by one to the other hereunder does not constitute the parties as partners or joint venturers, and neither NATIONAL INVESTMENT CENTER nor Company shall have the power or right (nor shall either hold itself out as having such power or right) to bind the other or to undertake any obligations on the other party’s behalf.
10. Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio, USA, applicable to agreements made and to be performed in Ohio, without regard to its conflict of laws principles. In the event of any dispute, claim or controversy relating hereto or arising herefrom, the parties agree that the sole and exclusive forum for the resolution thereof shall be the State or Federal Courts situated in Lucas County, Ohio, and each of the parties hereto agrees to be subject to the jurisdiction of such courts for such purpose, and hereby waives any claim or defense premised upon any of such courts constituting a forum non conveniens.
11. Waivers. Failure on the part of either party hereto to enforce any of the provisions of this Agreement shall not constitute a waiver of any of the terms or conditions hereof, nor prohibit that party from thereafter enforcing that and all other terms and conditions of this Agreement. To be effective hereunder, a waiver must be in writing, must set forth the specific terms thereof, and must be duly executed by the party against which enforcement of such waiver is sought
12. Severability. In the event that any provision of this Agreement, or the application thereof to any person, entity or circumstance, shall be determined by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions of this Agreement or the application of such provision to persons, entities or circumstances other than those to which its application is deemed invalid or unenforceable, shall remain in full force and effect in accordance with the terms hereof.
13. Amendment or Modification. This Agreement may be amended or modified, if at all, only by an instrument in writing signed by the parties hereto, making reference to this Agreement and setting forth the agreed amendment or modification.
14. Complete Agreement. This Agreement represents the complete agreement and understanding of the parties hereto with respect to the subject matter hereof, merging and superseding any prior or contemporaneous discussions, understandings or agreements that they may have had, whether written or oral, unless expressly herein set forth. Each party agrees and acknowledges that it is not relying upon any representation, statement or inducement not expressly set forth herein.
15. Section Headings. Section headings have been inserted herein solely for convenience of reference and do not form a substantive part of this Agreement, nor shall they be accorded any weight in the interpretation hereof.
National Investment Center, Inc.
Free Republican Services