Confidential Recall Masters Information
1. Confidential Information and Confidential Materials
a) “Confidential Information” means any information, knowledge and know-how provided before, on or after the Effective Date, by Recall Masters, its Affiliates (as defined below) or their respective Representatives (as defined below) to User, its Affiliates or their respective Representatives, whether in written, oral, electronic or digital format, which is marked confidential or that would reasonably be expected to be considered proprietary or confidential, including, without limitation, any information, knowledge and know-how relating to the business, financial condition, operations, assets or liabilities of Recall Masters or its Affiliates including, without limitation, all marketing information, technical information, data sheets, manuals, product or service concepts, advertising methods, customer lists, pricing policies, financial information, employee-related information, research and development, studies, reports, contracts, agreements, libraries, compilations, databases, intellectual property or any information derived therefrom.
b) “Confidential Information” does not include any information that: (i) is or becomes generally available to the public other than as a result of a wrongful disclosure by the User or its Representatives; (ii) was in the User’s possession or known to it prior to receipt from the Recall Masters provided that the User did not obtain such information through improper means; (iii) becomes available to the Receiving Party on a non-confidential basis from a source which is not to the User’s knowledge prohibited from disclosing such information; (iv) is developed independently by the User without violation of this Agreement; or (v) was generally made available to third parties by the Recall Masters without restrictions similar to those imposed under this Agreement.
c) “Confidential Materials” means all materials containing or reflecting Confidential Information, regardless of medium or format, including, without limitation, written or printed documents, and all digitally stored documents, such as email messages, electronic and optical files, and the like, whether machine or user readable, and any summaries, notes, analyses or other derivative works.
2. Use and Disclosure
a) The User may use Confidential Information and Confidential Materials only for the purpose of evaluating the Recall Masters as a potential vendor, and for no other purpose, and will not disclose any Confidential Information or Confidential Materials to any third party, except as provided in Sections 2(b) and (c) below. The User may not, to the extent applicable, modify, reverse engineer, decompile, create derivative or other works from, or disassemble any such Confidential Information or Confidential Materials without the prior written approval of the Recall Masters.
b) User may disclose Confidential Information in accordance with judicial or other governmental order, law or regulation, as required in the reasonable written opinion of User’s counsel, provided that User shall give Recall Masters prompt notice – unless prohibited by law – prior to such disclosure and shall, if promptly requested to do so, reasonably cooperate with Recall Masters in obtaining at Recall Masters’s expense an applicable protective order or equivalent.
c) User shall take security precautions, at least as great as the precautions it takes to protect its own confidential information of similar nature and importance which shall in no event be less than reasonable precautions, to keep confidential the Confidential Information and Confidential Materials. User may disclose Confidential Information and Confidential Materials only to its Representatives (other than any person or entity which User knows or suspects to be a competitor of or advisor to a competitor Recall Masters), who need to know such information for purposes of evaluating Recall Masters and who agree to be bound by this Agreement, provided, that, User shall be liable for any breach of this Agreement by any of its Representatives. In addition, without the prior written consent of Recall Masters, User will not disclose, and will direct its Representatives not to disclose, to any person the fact that discussions or negotiations are taking place concerning a possible Opportunity with respect to the Recall Masters, or any of the terms, conditions or other facts with respect to any such possible Opportunity, including the status thereof. “Representatives” mean employees, officers, directors, shareholders, advisors and representatives including, without limitation, counsel and consultants. “Affiliates” means any company belonging to the group of companies in which a parent company owns directly or indirectly a majority interest.
3. Rights and Remedies
a) User will notify Recall Masters in writing promptly upon User’s discovery of any unauthorized use or disclosure of Confidential Information and/or Confidential Materials, and will cooperate with Recall Masters’s reasonable requests to help Recall Masters regain possession of the Confidential Information and/or Confidential Materials, prevent further unauthorized use and/or dissemination, and otherwise mitigate the effects of the unauthorized use or disclosure.
b) Upon termination of this Agreement or upon the Recall Masters’s written request, the User (i) will return or destroy (or, as appropriate, permanently delete) all originals, copies, reproductions and summaries of Confidential Information and Confidential Materials in the possession or under the control of the User (including its Representatives), and (ii) will destroy (or, as appropriate, permanently delete) all documents, memoranda, notes and other writings whatsoever maintained by the User or its Representatives based on the Confidential Information or Confidential Materials, and will certify such destruction and/or deletion, in writing; provided that the User may retain (i) an archival copy of the Confidential Information in any computer network archival backup system and (ii) a copy in the possession of counsel of its own choosing for purposes of legal or regulatory compliance or for use in pursuing, defending and/or resolving a claim arising hereunder. Notwithstanding the return or destruction of any Confidential Information and Confidential Materials, User will continue to be bound by its obligations of confidentiality and other obligations hereunder.
c) The User acknowledges that monetary damages will not be a sufficient remedy for unauthorized disclosure of Confidential Information or Confidential Materials. Therefore, in the event of a breach of this Agreement or threat thereof, the Recall Masters will be entitled, without waiving any other rights or remedies, to such injunctive or other equitable relief as may be deemed proper by a court of competent jurisdiction. Such remedy shall not be Recall Masters’s exclusive remedy for any breach or threatened breach of this Agreement, but shall be in addition to all other rights and remedies available at law or in equity. User shall indemnify and hold harmless Recall Masters, its Affiliates and their respective Representatives from and against any damages, losses or costs whatsoever, including reasonable attorneys’ fees for any threatened breach or breach of this Agreement by User or any of its Representatives or other unauthorized use or disclosure of the Confidential Information or Confidential Materials by User or its Representatives.
a) All Confidential Information and Confidential Materials are and will remain the property of the Recall Masters. By disclosing information to the User, the Recall Masters does not grant any express or implied right or license to the User to or under the Recall Masters’s patents, copyrights, trademarks, trade secrets or other property.
b) Except as may otherwise be provided in a future agreement between the Parties, neither the Recall Masters, nor its Representatives, will be liable or responsible for errors or omissions in, or any business decisions made by the User in reliance on, any Confidential Information or Confidential Materials disclosed under this Agreement. Neither the Recall Masters, nor its Representatives, make any representation or warranty, expressed or implied, as to the accuracy or completeness of the Confidential Information. All information disclosed under this Agreement is provided “as is”.
c) Neither this Agreement nor any written or oral expression of interest with respect to the Opportunity obligates either Party to pursue the Opportunity, to enter into any discussions or negotiations with the other Party, or to consummate any transaction or commit to any services involving the other Party, except as may be provided in a separate written agreement executed by both Parties. This Agreement does not create an agency, joint venture or partnership relationship.
d) This Agreement supersedes and replaces all negotiations and prior discussions between the Parties relating to the subject matter thereof and constitutes the entire agreement between the Parties with respect to the subject matter hereof and may not be modified except by a written agreement signed by both Parties. No provision of this Agreement will be deemed to have been waived by any act or acquiescence on the part of the Recall Masters or its Representatives, but only by an instrument in writing signed by an authorized officer of the Recall Masters. No waiver of any provision of this Agreement will constitute a waiver of any other provision(s) or of the same provision on another occasion.
e) This Agreement will be construed and governed in accordance with the laws of California without reference to its choice of law provisions.
f) Subject to the limitations set forth in this Agreement, this Agreement will inure to the benefit of and be binding upon the parties, their successors and assigns. This Agreement may not be assigned by either Party without the prior written consent of the other Party, which will not be unreasonably withheld.
g) If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions will remain in full force and effect unless modified or eliminated through a subsequent written agreement.
h) This Agreement is effective as of the Effective Date and may be terminated by either Party at any time on written notice. The obligations under this Agreement with respect to Confidential Information and Confidential Materials shall continue for a period of three (3) years from the Effective Date. Notwithstanding, the foregoing and any other provision in this Agreement to the contrary, such obligations under this Agreement shall survive with respect to trade secrets for so long as any such Confidential Information remains a trade secret under applicable law.
Questions about this agreement may be directed to:
Recall Masters, Inc.
Attn: Legal Dept.
740 Tunbridge Road
Danville, CA 94526