Company has requested the opportunity to provide information and/or product(s) to Arrowhead Plastic Engineering, Inc. ("Arrowhead"), for the purpose of exploring a potential future business relationship, which may require the disclosure of proprietary and confidential information by one Party to the other Party (hereafter referred to as "Confidential Information" and more particularly described in this "Agreement"). Arrowhead and Company are unwilling to disclose Confidential Information to the other Party unless this Agreement is executed.
Therefore, Arrowhead and Company agree that they shall each use reasonable and good faith efforts to ensure that all Confidential Information belonging to and disclosed by one Party (the "Disclosing Party") to the other Party (the "Receiving Party") in any form (in writing, electronically, in graphic form, etc.) shall be kept strictly confidential, regardless if it is physically marked as confidential. Further, the Receiving Party agrees that it will not use or disclose any of the Confidential Information or any material element thereof, unless the Receiving Party has first obtained the written permission of the Disclosing Party. The Receiving Party agrees to immediately return to the Disclosing Party upon request any and all Confidential Information and any and all copies thereof in the possession or control of Receiving Party.
"Confidential Information" means information, materials, data, et cetera, not intended for public use or disclosure, and which (i) is information in fact maintained as confidential by the Disclosing Party, and conspicuously identified by the Disclosing Party as confidential at or near the time of first disclosure; or (ii) constitutes a protectable trade secret of the Disclosing Party under applicable law, and is conspicuously identified as such by the Disclosing Party at or near the time of first disclosure. All Confidential Information shall remain the exclusive property of the Disclosing Party and the Receiving Party shall have no right to use or exploit or disclose the same without the advance consent of the Disclosing Party.1 The Confidential Information has been and will be developed at considerable expense and with the use of considerable talent, is extremely valuable, and could be unfairly exploited by others. Accordingly, any use or disclosure of the Confidential Information or any material element thereof would likely cause irreparable damage to the Disclosing Party.
Furthermore, each Party agrees that it will not use or exploit in any fashion whatsoever intellectual property rights owned by the other Party and protected under applicable copyright, trademark, trade secret, or patent law.
Notwithstanding anything to the contrary herein, any fabrication process developed in whole or in part by Arrowhead, even as a result of having received Confidential Information from Company, shall not be subject to the restriction established by this Agreement, and may be freely exploited by Arrowhead; provided, however, that any such exploitation shall not involve the production by Arrowhead of any product which is the same as or similar to Company’s product(s).
This agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns. This Agreement shall be construed and enforced in accordance with the laws of the State of Indiana without regard to conflicts-of-laws principles that would require the application of any other law. The obligations imposed under this Agreement shall remain in effect for three years after the termination of this agreement, except in regards to trade secrets, which shall remain in effect indefinitely. A Party will be entitled to recover all of its costs and expenses (including reasonable attorney fees) as part of any successful legal proceeding against a defaulting Party hereunder. This Agreement contains the sole and entire agreement between the Parties related to the disclosure of Confidential Information. Any future business relationship between the Parties regarding current or future business transactions shall be the subject of a separate agreement to be negotiated and executed by the Parties. This Agreement may only be modified in a writing executed by both Parties. Should any provision of this Agreement be deemed illegal or otherwise unenforceable, that provision shall be given effect and enforced to whatever extent would be reasonable and enforceable, and the remainder of this Agreement shall remain in full force and effect.
1 "Confidential Information" does not include information that: (1) was previously known by the Receiving Party other than as a result of being provided to the Receiving Party by the Disclosing Party; (2) is or becomes publicly known through no wrongful act or failure to act by the Receiving Party, or by the act or failure to act by another person if the Receiving Party is aware that such act (or failure to act) is wrongful; or (3) is properly disclosed to the Receiving Party pursuant to a statute, regulation, or final order of a court of competent jurisdiction, in which case, and before making such disclosure, the Receiving Party shall immediately notify the Disclosing Party of such order, and cooperate with the Disclosing Party in limiting, to the extent reasonable, the disclosure or use of Confidential Information.
