This Confidentiality Agreement (“Agreement”), effective as of the date of agreement/signing (“Effective Date”), by and between Pace Communications, Inc.(“Pace”) and the recipient of the Confidential Information (“Recipient”). Pace and Recipient are sometimes referred to herein collectively as the “Parties” or individually as the “Party.”
WHEREAS, Pace plans to disclose certain confidential and/or proprietary information to Recipient for the purpose of facilitating a user test for one of its clients (the “Purpose”); and
WHEREAS, the Parties are entering into this Agreement to set forth the terms and conditions that shall govern disclosure of Confidential Information (as defined below) and the rules governing the use and the protection thereof.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Recipient agrees as follows:
1. Confidential Information. “Confidential Information” means any nonpublic information furnished or disclosed, in whatever form or medium, by Pace or any of its affiliates, subsidiaries or clients to the Recipient relating to the business of Pace or any of its affiliates, subsidiaries or clients, and includes, without limitation, all of the trade secrets, trademarks, business plans, marketing plans, know-how, data, documents, business and website concepts, customer lists, financial information, existing or future services or programs, products, operations, management, strategies, and objectives of Pace and any of its affiliates, subsidiaries or clients, whether written or verbal, all of which are deemed confidential and proprietary.
2. Exceptions. Notwithstanding any other provisions of this Agreement, each Party acknowledges that Confidential Information will not include any information that the Recipient can demonstrate: (a) was publicly available at the time of disclosure, or later became publicly available through no act or omission of the Recipient; (b) was already lawfully in its possession at the time of disclosure; (c) was rightfully received by the Recipient from a third party without any obligation of confidentiality known to Recipient; or (d) was independently developed by or for the Recipient without use of Confidential Information. For purposes of this Section 2, it is agreed that specific Confidential Information which the Recipient may obtain hereunder shall not be free of such obligations merely because individual features, or parts of such Confidential Information are embraced within the scope of more general information known to Recipient, available to the public generally, obtained from other sources, or independently developed.
3. Disclosure and Use of Confidential Information. The Recipient will use Confidential Information only for the Purpose, and will make no use of the Confidential Information, in whole or in part, for any other purposes. The Recipient will not intentionally use the Confidential Information in a manner adverse to Pace or its clients. The Recipient agrees to refrain from disclosing Confidential Information to third parties. The Recipient further agrees to keep confidential all Confidential Information and to take all adequate, administrative, and physical safeguards to preserve the confidential and proprietary nature of such Confidential Information. The Recipient agrees to inform Pace as soon as possible of any security breach or other incident involving possible unauthorized disclosures or access to Confidential Information.
4. Nature of Information. Recipient acknowledges and agrees that the Confidential Information protected by this Agreement is of a special, unique, unusual, and extraordinary character that money damages would not be sufficient to avoid or compensate for the unauthorized use or disclosure of the Confidential Information and that specific performance, injunctive relief, and other equitable relief would be appropriate to prevent any actual or threatened use or disclosure of the Confidential Information. Recipient also acknowledges that the interests of Pace and its clients to the Confidential Information may be irreparably injured by disclosure of such Confidential Information. The remedies stated above may be pursued in addition to any other remedies available at law or in equity for breach of this Agreement, and the Recipient agrees to waive any requirement for the securing or posting of any bond in connection with such remedy. Recipient agrees to indemnify Pace against any and all losses, damages, claims or expenses incurred or suffered by Pacey as a result of Recipient’s breach of this Agreement.
5. Relationship. This Agreement is to evidence the Parties’ agreement to maintain the confidentiality of the Confidential Information, and nothing contained in this Agreement shall be deemed to constitute either Party a partner, joint venturer or employee of the other Party for any purpose.
6. Rights to Confidential Information. Any Confidential Information disclosed under this Agreement is communicated solely for the Purpose. Recipient shall not receive any ownership rights to the information through this Agreement.
7. Governing Law. North Carolina law will govern the interpretation of this Agreement, without reference to rules regarding conflicts of law. Any dispute arising out of this Agreement will be submitted to a state or federal court sitting in Guilford County, which will have the exclusive jurisdiction regarding the dispute and to whose jurisdiction the Parties irrevocably submit. In a dispute arising out of or related to this Agreement, the prevailing Party shall have the right to collect from the other Party its reasonable attorneys’ fees and costs and necessary expenditures.
8. Modification. This Agreement may not be amended except by a writing signed by the Parties.
9. Survival. Terms and conditions of this Agreement that are required to survive, or reasonably intended to survive, shall survive termination or expiration of this Agreement.
10. No Waiver. The failure to exercise any right provided in this Agreement shall not be a waiver of prior or subsequent rights.
11. Severability. If any provision of this Agreement is determined by any court of competent jurisdiction to be invalid or unenforceable, such provision shall be interpreted to the maximum extent to which it is valid and enforceable, all as determined by such court in such action, and the remaining provisions of this Agreement will, nevertheless, continue in full force and effect without being impaired or invalidated in any way.
12. Compliance with Laws. In performing hereunder, each Party shall comply with applicable laws, regulations and ordinances, including but not limited to export laws and regulations.
13. Term and Termination. This Agreement and Recipient’s duty to hold Confidential Information in confidence shall remain in effect until whichever of the following occurs first: (a) Pace sends Recipient written notice releasing it from this Agreement, or (b) Confidential Information disclosed under this Agreement ceases to be confidential.
14. Miscellaneous. This Agreement contains the entire understanding between the Parties with respect to the subject matter hereof and replaces and supersedes all prior representations, understandings, and agreements (whether written or oral) between the Parties. This Agreement will inure to the benefit of and be binding upon the Parties, their successors and assigns. The headings used herein are for reference purposes only and shall not be used to interpret or modify any of the terms and conditions in this Agreement.