PRIVACY POLICY

PRIVACY POLICY

This privacy policy governs how the affiliate will handle information of the Company and its customers.  

  • CONFIDENTIAL INFORMATION

Confidential Information. For purposes of this Agreement, each Company’s “Confidential Information” will be deemed to include only the following:

(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or projection) relating directly or indirectly to the business of the Company, any predecessor entity or any subsidiary or other affiliate of the Company (whether prepared by the Company or by any other Person and whether or not in written form) that is or that has been made available to the Affiliate or any Representative of the Affiliate by or on behalf of the Company or any Representative of the Company;

(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been prepared by or for the Affiliate or any Representative of the Affiliate and that contains, reflects, interprets or is based directly or indirectly upon any information of the type referred to in clause “(a)” of this sentence;

(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has been made available to the Affiliate or any of its Representatives; and

(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the proposed terms of any such transaction.

However, the Company’s “Confidential Information” will not be deemed to include:

(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of any of such information by the Affiliate or by any of the Affiliate’s Representatives;

(ii) any information that was in the Affiliate’s possession prior to the time it was first made available to the Affiliate or any of the Affiliate’s Representatives by or on behalf of the Company or any of the Company’s Representatives, provided that the source of such information was not and is not known to the Affiliate to be bound by any contractual or other obligation of confidentiality to the Company or to any other Person with respect to any of such information; or

 

(iii) any information that becomes available to the Affiliate on a non-confidential basis from a source other than the Company or any of the Company’s Representatives, provided that such source is not known to the Affiliate to be bound by any contractual or other obligation of confidentiality to the Company or to any other Person with respect to any of such information; or

(iv) any information that is developed by or on behalf of the Affiliate or any of the Affiliate’s Representatives without reliance on the information received from Company or any of the Company’s Representatives hereunder, as evidenced by written records.

  • LIMITATIONS ON USE AND DISCLOSURE OF CONFIDENTIAL INFORMATION

Subject to section 4 below, neither the Affiliate nor any of the Affiliate’s Representatives will, at any time, directly or indirectly:

  1. make use of any of the Company’s Confidential Information, except for the specific purpose of considering, evaluating and negotiating a possible negotiated transaction between the Parties; or
  2. disclose any of the Company’s Confidential Information to any other Person.

The Affiliate will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct on the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Affiliate will (at its own expense) take all actions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Company’s Confidential Information.

  • NO REPRESENTATIONS BY COMPANY

The Representatives of each Company will have the exclusive authority to decide what Confidential Information (if any) of the Company is to be made available to the Affiliate and its Representatives. Neither the Company nor any of the Company’s Representatives will be under any obligation to make any particular Confidential Information of the Company available to the Affiliate or any of the Affiliate’s Representatives or to supplement or update any Confidential Information of the Company previously furnished. Neither the Company nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any of the Company’s Confidential Information, and neither the Company nor any of its Representatives will have any liability to the Affiliate or to any of the Affiliate’s Representatives relating to or resulting from the use of any of the Company’s Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the Parties (a “Definitive Agreement”) will have legal effect.

  • PERMITTED DISCLOSURES
  1. Notwithstanding the limitations set forth in section 2 above:
  1. the Affiliate may disclose Confidential Information of the Company if and to the extent that the Company consents in writing to the Affiliate’s disclosure thereof;
  2. subject to section 4(b) below, the Affiliate may disclose Confidential Information of the Company to any Representative of the Affiliate, but only to the extent such Representative: (A) needs to know such Confidential Information for the purpose of helping the Affiliate evaluate or negotiate a possible negotiated transaction between the Parties; and (B) has been informed of the obligations set forth in this Agreement and has agreed to abide and be bound by the provisions hereof; and
  3. subject to section 4(c) below, the Affiliate may disclose Confidential Information of the Company to the extent required by applicable law or governmental regulation or by subpoena or other valid legal process.
  1. If the Company delivers to the Affiliate a written notice stating that certain Confidential Information of the Company may be disclosed only to specified Representatives of the Affiliate, then, notwithstanding anything to the contrary contained in section 4(a)(ii) above, the Affiliate shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any other Representative of the Affiliate.
  2. If the Affiliate or any of the Affiliate’s Representatives is required by applicable law or governmental regulation or by subpoena or other valid legal process to disclose any of the Company’s Confidential Information to any Person, then the Affiliate will promptly provide the Company with written notice of the applicable law, regulation or process so that the Company may seek a protective order or other appropriate remedy. The Affiliate and its Representatives will use reasonable efforts to cooperate with the Company and the Company’s Representatives in any attempt by the Company to obtain any such protective order or other remedy. If the Company elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the Affiliate disclose

Confidential Information of the Company, and if the Affiliate has been advised by its internal counsel or other reputable external legal counsel confirming that the disclosure of such Confidential Information is legally required, then the Affiliate may disclose such Confidential Information to the extent legally required; provided, however, that the Affiliate and its Representatives will use their reasonable efforts to ensure that such Confidential Information is treated confidentially by each Person to whom it is disclosed.

  • RETURN OF CONFIDENTIAL INFORMATION

Upon the Company’s request, the Affiliate and the Affiliate’s Representatives will promptly deliver to the Company any of the Company’s Confidential Information (and all copies thereof) obtained or possessed by the Affiliate or any of the Affiliate’s Representatives; provided, however, that, in lieu of delivering to the Company any written materials of the type described in clause “(b)” of the first sentence of section 2 above, the Affiliate may destroy such written materials and deliver to the Company a certificate confirming their destruction. Notwithstanding the delivery to the Company (or the destruction by the Affiliate) of Confidential Information of the Company pursuant to this section 6, the Affiliate and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement.

  • NO WAIVER

No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or provisions being waived or amended.

  • REMEDIES

Each Party shall indemnify and hold harmless the other Party and the other Party’s Representatives against and from, and shall compensate and reimburse the other Party and the other Party’s Representatives for, any damage, loss, claim, liability or expense (including legal fees and the cost of enforcing the other Party’s rights under this Agreement) arising out of or resulting from any unauthorized use or disclosure of any of the other Party’s Confidential Information or any other breach of this Agreement by such Party or any of its Representatives. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party will also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party or any of the other Party’s Representatives. The indemnification and equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either Party or any of its Representatives has breached this Agreement, such Party will be liable for, and will pay to the other Party and the other Party’s Representatives, the reasonable legal fees incurred by the other Party and the other Party’s Representatives in connection with such litigation (including any appeal relating thereto).

  • SUCCESSORS AND ASSIGNS; APPLICABLE LAW; JURISDICTION AND VENUE

This Agreement will be binding upon and inure to the benefit of each Party and its Representatives and their respective heirs, successors and assigns. 

This Agreement will be governed by and construed in accordance with the laws of the United States (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of ________________  for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the address set forth below the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or proceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of _________________; and (d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of ______________ has been brought in an inconvenient forum.

 

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