(a) "Confidential Information" means Discloser's confidential or proprietary information of any nature, including, without limitation, information relating to technology, (including preservation technology and object store technology), software, products, services, designs, specifications, methodologies, business plans, business processes and workflow, product roadmaps, finances, marketing plans, customers or prospects disclosed to Receiver during the Term. Confidential Information also includes any information that has been made available to Discloser by third parties that Discloser is obligated to keep confidential.
(b) Confidential Information must be marked "confidential" or "proprietary" or with a similar legend if provided in written or other tangible form. Each party will mark any documentary or tangible Information considered confidential or proprietary as "Confidential" or "Proprietary" at the time of disclosure. If Information is disclosed verbally, the disclosing party will use reasonable efforts to identify such Information as confidential and proprietary under this Agreement at the time of disclosure. However, confidentiality shall be extended to any verbal disclosure of Information that, under the circumstances surrounding such disclosure, the parties could have reasonably inferred that such disclosure was intended to be confidential and covered by this Agreement. The parties agree to use reasonable efforts to summarize the content of oral disclosures which are proprietary or confidential but failure to provide such summary shall not affect the confidential nature of the Information disclosed.
(c) "Confidential Materials" means any document, diskette, tape, writing, presentation or other tangible item that contains any Confidential Information, whether in printed, handwritten, coded, magnetic, digital or other form and whether delivered by Discloser or made by Receiver.
(d) "Discloser" means a party that discloses any of its Confidential Information to the other party under this Agreement.
(e) "Receiver" means a party that receives any Confidential Information from the other party under this Agreement.
4. OBLIGATIONS: The Receiver agrees that: (a) it will use the same degree of care to maintain to prevent the Confidential Information and Confidential Materials from unauthorized use and disclosure as it uses in protecting its own proprietary and confidential information, but always with no less than a reasonable degree of care; (b) it will use the Confidential Information and Confidential Materials only for the above Purpose unless some other purpose is hereafter agreed to in writing by Discloser. Receiver will deliver to Discloser, in accordance with any written request, and with reasonable notice (such notice not to exceed thirty (30) days) from Discloser, all tangible embodiments of the Confidential Information including copies, notes, packages, pictures, diagrams, computer memory media, and all other materials containing any portion of the Confidential Information.
5. TERM, AMENDMENT AND PERIOD OF CONFIDENCE: This Agreement shall be effective as of the date of the last signature hereto and Quantum and Participant shall exchange information and materials under this Agreement until the Agreement is terminated in writing by either party with thirty (30) days prior written notice. The duty to protect Confidential Information and Confidential Materials disclosed under this Agreement shall expire 3 years after the date of such disclosure under this Agreement. Notwithstanding the foregoing, Receiver’s obligations with regard to any software or firmware source code, information related to software or firmware architecture, or application programming interfaces disclosed hereunder will extend indefinitely. This Agreement shall only be amended by a writing signed by the parties hereto.
6. INFORMATION NOT COVERED: Receiver will have no obligation with respect to any portion of the Confidential Information which (a) was rightfully known to it prior to receipt of such Confidential Information; (b) is lawfully obtained by it from a third party under no obligation of confidentiality; (c) rightfully is or becomes publicly known or available without any act or failure to act by it; or (d) is independently developed by it without reference to Confidential Information received hereunder.
7. LIMITED SCOPE OF DISCLOSURE: Receiver will only provide Confidential Information and Confidential Materials to its affiliates and its and their respective officers, directors, employees, agents, partners, advisors (including, but not limited to legal counsel, consultants, accountants and financial advisors), ( collectively, "Representatives") who have a need to know such Confidential Information in order to accomplish the Purpose stated above and who: (i) are themselves subject to an obligation of confidentiality with the Receiver; and (ii) are advised of the confidential nature of the Confidential Information and directed to comply with the confidentiality and use terms of this Agreement.
8. Receiver and its Representatives may make disclosure if requested or required by law, rule, regulation, order or legal proceeding (including by oral questions, interrogatories, requests for information, subpoena, civil investigative demand, or similar process), provided that, to the extent permitted by law or regulation, it gives Discloser prompt notice of such request or requirement sufficient to contest, limit such requirement of disclosure, and protect such disclosure from further disclosure.
9. OWNERSHIP: Receiver agrees the Discloser or its licensors shall continue to own all right, title and interest in the Confidential Information and/or Confidential Material, and all intellectual property rights thereto, that is provided to the Receiver. Receiver shall reproduce the Discloser’s proprietary rights notices in or on any copies in the same manner in which such notices were set forth in or on the original. Receiver shall not reverse engineer, disassemble or decompile any prototypes, software, or tangible or intangible objects which embody Discloser’s Confidential Information.
10. NO LIABILITY: Discloser represents that it has the right to make the disclosures under this Agreement. Confidential Information and Confidential Materials are made available under this Agreement "AS IS". Discloser makes no representations or warranties, express or implied, as to the accuracy, performance or completeness of the Confidential Information disclosed hereunder.
The Disclosing party understands that the Receiving party may currently or in the future be developing information internally, or receiving information from third parties, that may be the same as or similar to the Confidential Information of the Discloser. The Discloser further understands that the Receiving party will not incur any liability as a result of the receipt and evaluation of the Confidential Information in accordance with the Purpose and the terms of this Agreement. Accordingly, nothing in this Agreement will be construed as a representation or inference that the Receiving party will not develop products or services, or have products or services developed for the Receiving party, that compete with products and services contemplated by the Confidential Information, provided such development does not refer to or use the Confidential Information of the Discloser.
Neither party has an obligation under this Agreement to enter into any business relationship, or purchase or offer for sale any item. Nothing contained in this Agreement shall prevent either party from entering into discussions or business relations with other parties that are the same or similar to the Purpose of this Agreement, provided that neither party improperly disclose the other party’s Confidential Information.
11. INJUNCTIVE RELIEF; EQUITABLE REMEDIES: In the event of any breach of this Agreement, Discloser may suffer irreparable harm and/or have no adequate remedy at law. Discloser will be entitled to seek injunctive relief, specific performance and other equitable remedies without proof either of monetary damages or the inadequacy of other available remedies. In addition to any other remedy, the prevailing party will be entitled to recover all reasonable costs and expenses, including reasonable attorneys’ fees, incurred to enforce this Agreement or to recover damages or other relief on account of any breach of this Agreement.
12. NO LICENSE GRANTED: Nothing contained in this Agreement shall be construed to imply the grant of any license to Receiver, under any legal theory, to make, use or sell, or otherwise exploit any portion of the Confidential Information or Confidential Material, or any intellectual property right embodied therein, disclosed by Discloser.
13. COMPLIANCE WITH TECHNOLOGY TRANSFER REGULATIONS: Receiver will not knowingly export or reexport, directly or indirectly through Receiver’s affiliates, licensees, or subsidiaries, any portion of the Confidential Information provided hereunder or under any ancillary agreements hereto in violation of any portion of any applicable export rules or regulations.
14. MISCELLANEOUS: This Agreement may not be amended or modified except by a writing signed by the party against whom such amendment or modification is to be enforced. This Agreement constitutes the entire agreement between the parties pertaining to the Purpose hereof. Receiver may not assign this Agreement or any interest herein without Discloser’s express, prior written consent. If any terms of this Agreement are held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.
15. COUNTERPARTS: Each party agrees that electronic or facsimile signatures of authorized representatives of either party shall be binding for the purposes of executing this Agreement. This Agreement may be executed in any number of separate counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument.
16. APPLICABLE LAW AND FORUM: Quantum and Participant agree that this Agreement shall be interpreted and enforced in accordance with California law. The federal and state courts in Santa Clara County in the State of California shall have exclusive jurisdiction and venue to adjudicate any dispute arising out of, or in relation to, this Agreement. The parties hereby agree to the foregoing jurisdiction.
17. TRANSLATION: In the event this Agreement is presented with a translation of this Agreement into a language other than English, the translation is provided solely for the purpose of facilitating understanding and has no legal value. In case of deviation from the original English text, the English text shall apply.
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