In consideration of the mutual covenants and promises contained herein, the Parties agree as follows:
1. CONFIDENTIAL INFORMATION
1.2 For the purposes of this Agreement, “Confidential Information” means all information, in whatever form transmitted, relating to the past, present or future business affairs of the disclosing Party (“Disclosing Party”), including without limitation, (i) technical information, including patent, copyright, trade secret, and other proprietary information, techniques, sketches, drawings, models, inventions, know-how, processes, apparatus, equipment, algorithms, software programs, software source documents, and formulas; or (ii) non-technical information, including without limitation pricing, margins, marketing plans and strategies, finances, financial and accounting data and information, suppliers, customers, customer lists, purchasing data, sales and marketing plans, future business plans and any other information belonging to the Disclosing Party or to a third party whose information is in the Disclosing Party’s possession or control under obligations of confidentiality, and which (i) is disclosed to the receiving Party (“Recipient”) or (ii) developed by Recipient at the Disclosing Party’s expense.
1.2 Recipient hereby agrees that all information provided by the Disclosing Party or developed by Recipient at the expense of the Disclosing Party shall be considered Confidential Information and shall not be reproduced, transmitted, disclosed or used by Recipient without the written consent of the Disclosing Party, except as may be necessary for Recipient to fulfill the Recipient’s obligations to the Disclosing Party.
1.3 Notwithstanding the above, these limitations shall not apply to information which is (i) already known to Recipient at the time of its disclosure; (ii) or becomes publicly known through no wrongful act or omission of Recipient; (iii) communicated to a third party with the express written consent of the Disclosing Party and not subject to restrictions on further use or disclosure; (iv) independently developed by Recipient; or, (v) required by law to be disclosed to any governmental agency, provided that before making such disclosure, Recipient shall immediately provide the Disclosing Party with written notice and a reasonable opportunity for the Disclosing Party to object to the disclosure or to take action to maintain the confidentiality of the information.
1.4 The requirements of this Article shall survive the termination of this Agreement.
2. LIABILITY
2.1 Recipient shall use reasonable care to protect the Confidential Information.
2.2 The Parties agree that in the event of a breach or threatened breach of this Agreement, the Disclosing Party shall be entitled to obtain an injunction prohibiting any such breach. Any relief granted shall be in addition to and not in lieu of any other legal or equitable relief, including monetary damages. The Parties acknowledge that Confidential Information is valuable and unique and that disclosure of the Confidential Information in breach of this Agreement may result in irreparable injury to the Disclosing Party.
2.3 Other than an obligation upon the Disclosing Party to deal in good faith, the Disclosing Party makes no warranties and shall bear no liability or responsibility for errors or omissions in any Confidential Information disclosed under this Agreement or for any business decisions made by Recipient in reliance on any Confidential Information disclosed under this Agreement.
3. NO LICENSE GRANTED Both parties recognize and agree that, on and after the date hereof, neither party will have the right to use the other party's service marks, trademarks, trade names, licenses, procedures, processes, labels, trade secrets or customer lists without explicit written consent.
4. DIRECT CONTACT BY CLIENT If the Client contacts the Receiving Party directly, in any manner and by any media, to engage Receiving Party, Disclosing Party or a third party to provide Services or merely to inquire about Receiving Party, Disclosing Party or a third-party providing Services, Receiving Party shall notify Disclosing Party immediately of the contact and advise Disclosing Party of the identity of the person making contact and the details of the inquiry.
5. REMEDY The Receiving Party acknowledges and agrees that due to the unique nature of OMNIUM's Proprietary Information, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach or any unauthorized use or release of any of the Proprietary Information will allow the Receiving Party or third parties to compete unfairly with OMNIUM resulting in irreparable harm to OMNIUM and therefore, that upon any such breach or any threat thereof, OMNIUM shall be entitled to appropriate equitable relief in addition to whatever remedies it might have at law and to be indemnified by the Receiving Party from any loss or harm, including, without limitation, attorney's fees, in connection with any breach or enforcement of the Receiving Party's obligations hereunder or the unauthorized use or release of any such Proprietary Information. The Receiving Party will notify OMNIUM in writing immediately upon the occurrence of any such unauthorized release or other breach of which it is aware. The Receiving Party shall be principally liable for any acts or omissions of any of the Receiving Party's Agents.
6. TERM AND TERMINATION The obligations of the Receiving Party under this Agreement shall survive for a period of two years from the date of termination of employment or termination of the independent contractor relationship.
7. GOVERNING LAW The validity, construction and performance of this Agreement and all disputes between the Parties arising out of or related to this Agreement shall be governed by the laws of the State of Massachusetts. Each Party irrevocably submits to the jurisdiction and venue as set forth herein.
8. ENTIRE AGREEMENT This Agreement contains all of the promises, representations and understandings of the Parties and supersedes any previous understandings, commitments, proposals or agreements, whether oral or written. This Agreement shall not be altered, changed, or amended except as set forth in a written amendment to this Agreement and duly executed by the Parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
