In consideration of our mutual undertakings in this Agreement, we agree as follows.
In connection with ongoing discussions between OutInDesign and the Second Party concerning a possible agreement relating to a proposed business relationship (the “Business Relationship”), each party to this Agreement may wish to disclose certain proprietary and confidential information to the other party on a confidential basis. Such proprietary or confidential information (“Information”) includes any and all technical and non‐technical information, including without limitation, marketing material, architectural and interior design plans and concepts, financial data, market research, business plans, analyses, forecasts, predictions, projections, intellectual property, trade secrets and know‐how disclosed in connection with the Business Relationship. “Information” may take the form of documents, drawings, specifications, software technical or engineering data, and other forms, and may be communicated orally, in writing, by electronic or magnetic media, by visual observation and by other means. “Information” includes any reports, analyses, studies or other materials, whether prepared by the receiving party or otherwise, that contain or are based upon proprietary or confidential Information covered by this Agreement.
“Representatives” means the controlled affiliates of either party, and the respective directors, officers, employees, attorneys, consultants and other agents and advisors of either party or of the controlled affiliates of either party. Each party shall be responsible for any breach of this Agreement by its respective Representatives and shall take all reasonably necessary measures to restrain its Representatives from unauthorized disclosure or use of Information.
With respect to Information disclosed under this Agreement, the party to whom the Information is disclosed and its Representatives shall:
- hold the Information in confidence, exercising a degree of care not less than the care used by such party to protect its own proprietary or confidential information that it does not wish to disclose, and in no event less that a reasonable degree of care;
- restrict disclosure of the information solely to those Representatives with a need to know and not disclose it to any other person;
- advise those Representatives of their obligations with respect to the Information; and
- use the Information only in connection with continuing discussions by the parties concerning the Business Relationship
The party to whom Information is disclosed shall have no obligation to preserve the proprietary or confidential nature of any Information which:
- was previously known to such party free of any obligation to keep it confidential;
- is or becomes publicly available by means other than unauthorized disclosure;
- is developed by or on behalf of such party independent of any Information furnished under this Agreement; or
- is received from a third party whose disclosure does not violate any confidentiality obligation.
This agreement does not create any obligation on the part of either party to enter into any Business Relationship or transaction.
Each party acknowledges that neither makes any representation or warranty (express or implied) as to the accuracy or completeness of any Information.
In the event that the receiving party becomes legally compelled to disclose any Information, the receiving party shall provide the disclosing party with prompt written notice so that the disclosing party may seek a protective order or other appropriate remedy to prevent disclosure of the Information.
Agreement shall benefit and be binding upon the parties and their respective successors and assigns; shall be governed by and construed in accordance with the law of the Commonwealth of Virginia without regard to conflict of laws principles; and shall become effective as of the date on which it is first executed below (“Effective Date”), provided that this Agreement shall cover all Information disclosed by one party to the other whether before or after the Effective Date.
Each party agrees that the disclosing party would be irreparably injured by a breach of this Agreement by the receiving party or its representatives and that the disclosing party shall be entitled to equitable relief, including injunctive relief and specific performance, in the event of any breach of the provisions of this Agreement. Such remedies may not be deemed to be the exclusive remedies for a breach of this Agreement, but may be in addition to all other remedies available at law or in equity.
IN WITNESS WHEREOF, each party has caused this Agreement to be executed on its behalf as of the date set forth below.
OUTINDESIGN, LLC,
a Virginia limited liability company
