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Confidentiality Agreement
THIS CONFIDENTIALITY
AGREEMENT is made and entered into this _____ day
of _________,
20__, by Altfeld, Inc., in favor of__________________________(“Customer.”).
WHEREAS, in
connection with certain business transactions and relationships
between Altfeld, Inc. and the Customer, Altfeld, Inc. may from
time to time have been provided and be provided access to certain
confidential information relating to the Customer and the Customer’s
business; and
WHEREAS Altfeld,
Inc. recognizes, understands and accepts that the business of
the Customer might be irreparably damaged if Altfeld, Inc. disclosed
any such confidential information.
NOW THEREFORE,
in consideration of the premises contained herein and for other
goods and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereby agree as
follows:
1. NON-DISCLOSURE.
(a) Access to Customer Confidential Information. Altfeld, Inc. hereby acknowledges that
in connection with the business relationships that it has or
may in the future have with Customer, Altfeld, Inc. has and
will or may be exposed to, and has and will or may have access
to, certain data and information with respect to Customer, Customer’s
operations and the Products and Services, that has not been
publicly disclosed and is not a matter of common knowledge and
which in each case will be limited to data and information that
is specifically designated as being confidential information
by way of stamp or other notation thereon (collectively, the
“Customer Confidential Information”).
(b) Agreement Not To Disclose. Except as set forth in Section 1(c) below,
Altfeld, Inc. agrees that it shall not, without prior written
consent of Customer, at any time, divulge, disclose, or communicate
any of the Customer Confidential Information to any third person,
partnership, joint venture, company, corporation, entity or
other organization, or use the Customer Confidential Information
for any purpose or in any manner other than in connection with
the business transactions entered into between Altfeld, Inc.
and the Customer.
(c) Exceptions.
Notwithstanding Section 1(b) above, Altfeld, Inc.
shall be entitled to disclose Customer Confidential Information
if such Customer Confidential Information:
(i)
was already
known to or otherwise in the possession of Altfeld, Inc. prior
to the disclosure to Altfeld, Inc. by Customer;
(ii)
was already
publicly available or otherwise comes into the public domain
prior to the date of this Agreement;
(iii)
becomes
publicly available or otherwise in the public domain by means
other than as a result of acts by Altfeld, Inc. in violation
of this Agreement; or
(iv)
is required
to be disclosed by the Altfeld, Inc. pursuant to judicial action
or governmental regulations or other requirements, provided
the Altfeld, Inc. has notified Customer prior to such disclosure
and reasonably cooperates with Customer in the event Customer
elects to legally contest and avoid such disclosure.
2. RIGHT TO DISCLOSE. Notwithstanding anything in this Agreement to the contrary,
Customer represents and warrants that it may rightfully disclose
or make available the Customer Confidential Information to Altfeld,
Inc. without violation of any contractual, legal, fiduciary
or other obligation to any person, and Customer agrees to indemnify
and hold harmless in full Altfeld, Inc. against any and all
damages, costs and expenses of any nature whatsoever (including
but not limited to attorney’s fees) incurred by Altfeld,
Inc. as a result of any untruth of such representation or the
breach by Customer of such warranty.
3. SPECIFIC PERFORMANCE. The parties hereto agree that damages at law will be an
insufficient remedy to the Customer in the event that the covenants
of the Agreement are violated and that, in addition to any remedies
or rights that may be available to Customer, Customer shall
also be entitled, upon applications to a court of competent
jurisdiction, to obtain injunctive relief to enforce the provisions
of this Agreement.
4. RETURN OF PROPERTY. Altfeld, Inc. agrees to return to Customer all furnished Customer
Confidential Information, upon Customer’s written request
therefore, and in such event, any reports, memoranda or other
materials prepared by Altfeld, Inc or at its direction containing
or otherwise reflecting Customer Confidential Information shall
be destroyed.
5. NO RIGHTS IN DEVELOPED PRODUCTS OR INFORMATION. It is understood and agreed that as a
result of the business transactions between the parties hereto,
Altfeld, Inc. may develop for Customer and/or provide Customer
access to products and/or information which utilize or work
with Customer Confidential Information. Customer agrees that any such products
and/or information which is developed by Altfeld, Inc. for use
by Customer or made available to Customer by Altfeld, Inc. and
any and all rights therein (including without limitation rights
to copyrights and trademarks and/or copyright and trademark
applications) shall be the sole property of Altfeld, Inc. and
may be utilized by Customer only if and to the extent provided
for by way of a separate written agreement between parties.
6. INDEMNIFICATION. Altfeld, Inc. agrees that Altfeld, Inc. will indemnify
Customer in respect to any and all claims, losses, costs,
liabilities and expenses (including reasonable attorneys’
fees) resulting from or arising out of any breach of this Agreement
with Altfeld, Inc..
7. ARBITRATION OF DISPUTE. This Agreement shall be
interpreted under the laws of the State of California (except
that if any choice of lay provision under California law would
result in the application of the law of another state, such
provision shall not apply). Wherever possible, each provision of this
Agreement shall be interpreted in such a manner as to be valid
and of full force and effect, but if any provision of the Agreement
shall be prohibited by or invalid under applicable law, such
provision shall be ineffective only to the extent of such prohibition
or invalidity, without invalidating the remainder of such provisions
of the Agreement. This Agreement may be executed in one or more
counterparts and all of such counterparts together shall constitute
one and the same instrument.
The parties shall make a good-faith effort to settle
any dispute or claim arising under this agreement.
If the parties fail to resolve such disputes or claims,
they shall submit them to arbitration under the rules of the
American Arbitration Association then in effect.
Judgement on arbitration awards may be entered by any
court with appropriate jurisdiction.
IN
WITNESS WHEREOF, this Agreement has been signed by the duly
authorized officers of the parties on the date first above written.
Accepted: By:
____________________________________
__________
Jim Altfeld, President
Altfeld, Inc.
Date
____________________________
(The Customer)
By: ____________________________________
___________
Date
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