In consideration of PatentDive’s disclosure of Confidential Information and Confidential software to a User and the representations, warranties, and covenants contained in this Agreement, and other good and valuable consideration, the sufficiency of which is hereby acknowledged, each of the parties hereby agrees as follows:
1. For purposes of this Agreement, “Confidential Information” means any and all confidential and proprietary information of PatentDive, including, without limitation, all non-public information, materials, knowledge, technical data, trade secrets, know-how, existing or planned products, services, projects, programs, marketing plans, business plans, finances, capitalization plans and/or methods, stock plans, stock offers and purchases, stock redemptions, concepts, proposals, customers, clients, suppliers, vendors, ideas, inventions, methods, technologies, software, designs, prototypes, processes, formulas, designs, drawings, artwork, characters, environments, technical information, product or service designs and implementations, procedures, research, development activities, details of the work done for the clients or customers of PatentDive (whether performed by User or otherwise), and other business-related information, whether or not developed or owned by PatentDive, whether or not copyrighted or patented, whether disclosed verbally or by visual presentation or in writing, and shall, without limiting the generality of the foregoing, specifically include all information that: (i) is marked “confidential” or “proprietary;” (ii) is disclosed to PatentDive by any third party which information PatentDive is obligated to treat as confidential or proprietary information; (iii) the existence and the terms and conditions of this Agreement; (iv) under the circumstances surrounding disclosure, a person exercising reasonable business judgment should understand to be confidential or proprietary; or (v) any and all notes, memoranda, reports, studies, analyses, compilations, recordings, transcripts, interpretations, excerpts, extracts, summaries, or other documents or materials of any kind or nature (whether prepared by either party) that are based on or otherwise derived from any of the foregoing (collectively, along with any portion or derivative of any of the foregoing, the “Confidential Information”).
2. User acknowledges and agrees that User shall: (i) maintain the Confidential Information in strict confidence; (ii) not provide any unauthorized person or entity with access to, or the opportunity to, copy or otherwise reproduce any of the Confidential Information; (iii) not disclose, distribute, transmit, share, lend, publish, or otherwise disseminate any of the Confidential Information to any person or entity that has not been expressly authorized by PatentDive to receive such Confidential Information; (iv) not use any of the Confidential Information (or any portion or derivative thereof) for any purpose except in connection with the parties’ discussions regarding the Business Purpose, and only in strict compliance with all of the terms and conditions of this Agreement; (v) not use any Confidential Information for User’s own interests or any personal business of User, or for the benefit of any person or entity other than PatentDive; and (vi) not reproduce, copy, adapt, alter, modify, or otherwise create any derivative work based on or otherwise derived from any of the Confidential Information. Notwithstanding the foregoing, User may disclose the Confidential Information only to its legal and financial advisers who have a bona fide need to know such Confidential Information in order to participate in the parties’ discussions regarding the Business Purpose, and solely to the extent necessary to pursue the Business Purpose; provided that each such individual must first execute a written agreement (or is otherwise already bound by a written agreement) that contains access, copying, reproduction, distribution, use and nondisclosure restrictions that are at least as protective of the Confidential Information as those set forth in this Agreement. User shall also instruct and remind each such legal or financial adviser who is provided access to or the disclosure of any portion of the Confidential Information of the confidential nature thereof and of his or her responsibilities to safeguard such information from any unauthorized access, copying, reproduction, disclosure, distribution or use. Furthermore, in the event that any such person’s business relationship with User is terminated, then User shall use best efforts to recover the Confidential Information which remains within such person’s custody or control. User acknowledges and agrees that User shall take all reasonable measures to protect and maintain the confidentiality of the Confidential Information and to avoid any unauthorized access, copying, reproduction, disclosure, distribution, or use thereof in order to prevent the Confidential Information from falling into the public domain or into the custody or control of any unauthorized individual or entity, which measures shall include the highest degree of care that User utilizes to protect User’s own confidential information of a similar nature (and in any event no less than reasonable care). User expressly covenants and irrevocably agrees that he or she shall not, both during and after the term of this Agreement, publish, distribute, disclose or disseminate (including, without limitation, any submission, sharing, posting, hosting, or otherwise making available on any social media platform, any website or application that enables users to create and share content or to participate in social networking, or on or by means of any other forum, platform, service, product, form, format, media, means, method, process or technology, whether now known or that hereafter comes into existence) any details of or concerning the Business Purpose or any details regarding any of the services, contributions, or activities performed or otherwise provided by User or PatentDive, or any of the services that PatentDive provides, has provided or plans to provide that relate in any manner to any existing or prospective customer or client, unless PatentDive’s prior written consent and the written consent of such customer or client has first been obtained. User further agrees that User shall immediately notify PatentDive in writing of any unauthorized access, copying, reproduction, disclosure, distribution, or use of any of the Confidential Information.
3. The obligations set forth in Section 2, above, shall not apply to any particular information that User can substantiate: (i) was known by User prior to the disclosure thereof by PatentDive; (ii) is or becomes publicly known through no wrongful act or omission by User, directly or indirectly; (iii) is approved for release by written authorization of PatentDive; or (iv) is rightfully received by User from a third party without breach of any separate confidentiality obligation and without restriction on subsequent disclosure. In the event that User is requested or otherwise becomes legally compelled to disclose any Confidential Information by any court of competent jurisdiction, or other valid and effective governmental action, then User shall seek to maintain the confidentiality of such Confidential Information by asserting any applicable privileges or restrictions available to User, and shall immediately notify PatentDive in writing of any such production request in order to provide PatentDive with a meaningful opportunity to contest such disclosure or to seek such remedies as are available to it to prevent, restrict or otherwise limit the disclosure of any of the Confidential Information. User acknowledges and agrees that User shall cooperate with and assist PatentDive in connection with its efforts to obtain such relief as PatentDive deems necessary, including, without limitation, petitioning for a protective order or other appropriate remedy to limit the disclosure or use of the Confidential Information solely for the limited purpose for which the court order was issued. If PatentDive waives User’s compliance with the provisions of this Agreement or fails to obtain a protective order or other appropriate remedy, User covenants and agrees that User shall furnish only that limited portion of the Confidential Information that is legally required to be disclosed pursuant to such judicial, governmental or administrative order. For the avoidance of doubt, User further acknowledges and agrees that any Confidential Information so disclosed shall continue to be subject to the obligations set forth in this Agreement, and that User is and shall be obliged to maintain the confidentiality of such Confidential Information for all purposes (excluding only in accordance with the limited purpose of such effective and legally compelled disclosure).
4. User acknowledges and agrees that all rights, title and interests in and to the Confidential Information shall, as between PatentDive and User, be or remain the sole and exclusive property of PatentDive. User further agrees that nothing in this Agreement shall be construed as a grant by PatentDive to User of any rights or interests of any kind or nature (whether by license, implication, estoppel or otherwise) in or relating to any of the Confidential Information, or in or with respect to any copyright, trademark, patents or patent rights, or other intellectual property rights or proprietary rights of any kind or nature that are owned or otherwise controlled by PatentDive (except the limited right to hold the Confidential Information in custody and to review and use such Confidential Information solely in connection with the parties’ discussions regarding the Business Purpose for the sole and exclusive benefit of PatentDive and for no other purpose). Furthermore, this Agreement does not limit or otherwise affect any of PatentDive’s rights or interests as of the Effective Date of this Agreement. Neither this Agreement, nor the disclosure or receipt of any Confidential Information, shall create or be deemed to create or otherwise imply any obligation, promise or commitment, or confirm any intention by either party to proceed with any transaction between the parties regarding the Business Purpose or otherwise, or to enter into any separate agreement or other form of contractual arrangement of any kind or nature. Each of the parties, respectively, reserves the right, in its sole discretion, to terminate the parties’ discussions of or concerning the Business Purpose. Nothing in this Agreement shall be construed to restrict, prevent or otherwise interfere with any of PatentDive’s rights, title and interests in and relating to the Confidential Information, which rights and interests may be exercised as deemed appropriate by PatentDive, in its sole discretion.
5. ALL CONFIDENTIAL INFORMATION IS AND WILL BE PROVIDED BY PATENTDIVE TO User “AS IS” AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR OTHERWISE, SUCH AS, BY WAY OF EXAMPLE AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ANY IMPLIED WARRANTIES OF ACCURACY, COMPLETENESS, PERFORMANCE, SUITABILITY FOR ANY PARTICULAR USE OR PURPOSE, OR NON-INFRINGEMENT. PATENTDIVE SHALL NOT HAVE ANY OBLIGATION OR LIABILITY TO User OR TO ANY THIRD PARTY RESULTING FROM OR RELATING TO ANY USE OF OR RELIANCE UPON THE CONFIDENTIAL INFORMATION (OR ANY PORTION OR DERIVATIVE THEREOF) OR ANY ERRORS OR OMISSIONS WITH RESPECT TO THE CONFIDENTIAL INFORMATION.
6. User acknowledges and agrees that (i) no copies of any of the Confidential Information may be made unless approved in writing by PatentDive; (ii) User shall not, directly or indirectly, make any copies or reproductions of any of the Confidential Information (or any portion or derivative thereof); (iii) PatentDive shall be the sole source of any copy or reproduction of any and all of the Confidential Information; and (iv) disclosure of Confidential Information in furtherance of this Agreement neither constitutes nor shall be deemed to constitute the publishing of such Confidential Information.
7. User further acknowledges and agrees that User shall not remove any copyright notice, trademark notice, confidentiality notice or other proprietary legend set forth on or contained within any of the Confidential Information (or any portion or derivative thereof).
8. User represents and warrants that User shall not, directly or indirectly, (i) decompile, disassemble, derive any source code from, or otherwise reverse engineer, any of the Confidential Information (or any part or portion thereof); or (ii) attempt any of the foregoing.
9. User acknowledges that disclosure of the existence of the parties’ discussions regarding the Business Purpose or regarding any details or other information concerning such discussions would foreseeably result in irreparable harm and significant damages to the business and goodwill of PatentDive, whether such disclosure should occur during the course of the parties’ discussions or following the discontinuation or conclusion of such discussions. Accordingly, User covenants and agrees to keep the existence of its discussions with PatentDive in strict confidence and not to disclose or otherwise distribute to any third party any facts regarding the occurrence, nature or substance of any of the parties’ discussions or any details relating thereto, unless PatentDive’s written consent shall first have been obtained.
10. User acknowledges and agrees that a breach or threatened breach of any of the covenants, obligations, representations, warranties or agreements contained herein, including, as an example, and without limiting the generality of the foregoing, any of User’s obligations to protect against any unauthorized access, copying, reproduction, disclosure, distribution, or use of the Confidential Information, will cause PatentDive irreparable harm and significant injury, the degree of which will be difficult to ascertain and for which there would be no adequate remedy at law. Accordingly, User acknowledges and agrees that PatentDive shall be entitled, in addition to any other remedies available to it at law or in equity, to the immediate ex parte issuance of injunctive or other equitable relief, without the necessity of proving damages and without the posting of any bond or other form of surety, to enjoin or otherwise prevent any breach or threatened breach of User’s obligations hereunder. PatentDive’s right to obtain any such injunction, restraining order or other equitable relief shall not be deemed a waiver of its rights to pursue any other remedies that may be available to it hereunder or otherwise at law or in equity, including, without limitation, monetary damages resulting from such breach. To the maximum extent permissible under applicable law, PatentDive may set off and apply any damages caused by User’s breach of this Agreement and other amounts (if any) owed by User to PatentDive against any and all amounts owed to User by PatentDive. User further agrees that if User fails to comply with any of User’s representations, warranties, covenants or obligations set forth herein, then PatentDive shall be entitled to an accounting and repayment of all forms of compensation, commissions, remunerations or other benefits which User directly or indirectly realizes as a result of or in connection with any such breach or default, and such relief shall be in addition to, and not in substitution or limitation of, any equitable relief or any other remedies that are available to PatentDive pursuant to this Agreement or otherwise at law or in equity. PatentDive may pursue any and all available remedies (whether at law, in equity, or otherwise) concurrently or consecutively in any order as to any breach or threatened breach, and the pursuit of one such remedy at any time shall not be deemed to be an election of remedies or a waiver of the right to pursue any other remedy.
11. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Louisiana (excluding that body of law relating to choice of laws) and of the United States of America, and all claims relating to or otherwise arising in connection with this Agreement or any breach relating to this Agreement, regardless of whether such claim is asserted on the basis of contract, tort or otherwise, shall also be governed by, construed and enforced in accordance with the laws of the State of Louisiana (excluding that body of law related to choice of laws). Any action or proceeding brought to enforce or to interpret the provisions of this Agreement, whether initiated by PatentDive or User, shall be brought and shall be tried only in the state or federal courts of competent jurisdiction located in Orleans Parish, LA. Each of the parties hereby irrevocably submits itself to the jurisdiction and venue of such courts for purposes of any such action and agrees that service of process may be effected by delivery of the summons via certified or registered mail to the respective address listed in the preamble of this Agreement or to the last known address of such party. Notwithstanding the foregoing, PatentDive shall be entitled to the issuance of appropriate equitable relief regarding User’s breach or threatened breach of this Agreement in any court of competent jurisdiction in any county, state or country in which such breach or threatened breach occurs. In the event of any legal proceeding between the parties involving this Agreement, the prevailing party shall be entitled to recover, in addition to any other relief awarded, its costs and expenses incurred in connection with such proceeding, including, without limitation, its reasonable fees for attorneys, expert witnesses and court costs. For purposes of this Agreement, the term “prevailing party” shall mean the party that is afforded the greater relief (whether affirmatively or by means of a successful defense) with respect to the claims having the greatest value or importance as determined by the applicable court (or other dispute resolution body) of competent jurisdiction, taking into consideration all of the claims, counterclaims, and defenses asserted under this Agreement in connection with any such proceeding.
12. User acknowledges and agrees that all copies of the Confidential Information in tangible or machine-readable form that are in the possession, custody or otherwise under the control of User shall be immediately returned to PatentDive in the event that: (i) the Business Purpose is rejected; (ii) the parties’ discussions are discontinued or concluded, or (iii) at any time upon PatentDive’s request. Alternatively, with PatentDive’s prior written consent, User shall destroy (or, in the case of digital copies or embodiments, permanently erase) all Confidential Information, together with all copies, excerpts and summaries thereof, that remain in User’s possession, custody or otherwise under its control. In the event that User destroys any of the Confidential Information in accordance with the provisions of this Section, then User shall provide PatentDive with a written affidavit signed by User confirming such destruction, and additional evidence substantiating the occurrence of such destruction shall (upon PatentDive’s request and at PatentDive’s sole discretion) either be (x) provided by User to PatentDive; or (y) certified by a third party that has been approved by PatentDive.
13. User may not assign or otherwise transfer this Agreement (in whole or in part), or assign or otherwise transfer any of its rights hereunder, nor subcontract or otherwise delegate any of its obligations hereunder, to any third party unless the prior written consent of PatentDive is first obtained. Any attempted or purported assignment, conveyance, subcontract, delegation, or other such transfer without having first obtained PatentDive’s prior written consent shall be null and void and a material breach of this Agreement. PatentDive may, in its absolute discretion, assign or otherwise transfer this Agreement (in whole or in part). Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the undersigned parties, and their respective successors and permitted assigns.
14. User agrees to indemnify and hold PatentDive harmless from and against any and all claims, losses, liabilities, damages, expenses, and costs (including, without limitation, fees for attorneys, expert witnesses, court costs, etc.) which result from a breach or threatened breach of any of User’s commitments, covenants, obligations, representations or warranties set forth herein.
15. No failure or delay in exercising or enforcing any provision of this Agreement shall constitute or otherwise be deemed to constitute as a waiver of any such provision. No waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. Any waiver by either party of any provision of this Agreement (or any part thereof) shall not be construed to be a waiver of any other provision of this Agreement, nor shall such waiver operate as or be construed as a waiver of such provision respecting any future event or circumstance.
16. If any provision of this Agreement (or part thereof) is determined by a court of competent jurisdiction to be void, invalid or otherwise unenforceable, such provision (or part thereof) shall be enforced to the maximum extent permissible (consistent with the stated intention of the parties), and such determination shall not affect the remaining provisions of this Agreement, which shall continue in full force and effect. Any court of competent jurisdiction that holds any provision of this Agreement (or part thereof) to be invalid or otherwise unenforceable shall have the power to modify the duration or scope of such provision (or part thereof) so as to make it enforceable.
17. This Agreement contains the entire understanding and agreement between the parties regarding the subject matter set forth herein and supersedes all prior and contemporaneous communications, correspondence, discussions, negotiations, understandings and agreements between the parties, both verbal and written, regarding such subject matter. No modification or amendment of any provision of this Agreement shall be effective unless in writing and signed by both of the parties.
18. User’s commitments, covenants, obligations, representations and warranties to protect and to maintain the confidentiality of the Confidential Information in accordance with the provisions of this Agreement shall survive the discontinuance, cessation or earlier termination of the parties’ discussions regarding the Business Purpose and shall continue in full force and remain in effect thereafter (subject to the provisions of Section 3, above). For the avoidance of doubt, User’s confidentiality obligations with respect to any particular Confidential Information that embodies or contains any trade secret of PatentDive shall continue in effect for the duration of such trade secret’s protection under applicable trade secret law (subject to the provisions of Section 3, above).
19. This Agreement shall be fairly interpreted in accordance with its stated terms and conditions, and without any strict construction in favor of or against either party. Any ambiguity shall not be interpreted against the drafting party. Unless stated otherwise, or depending on the context, use of singular nouns shall also include the plural and vice versa, where appropriate, and any use of the term “or” shall be interpreted to mean “and/or” (i.e., “a or b” means “a, or b, or both a and b”).
20. EACH OF THE PARTIES, RESPECTIVELY, ACKNOWLEDGES AND AGREES THAT IN USING THE SOFTWARE IT HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, THAT IT HAS READ AND UNDERSTANDS ALL OF THE PROVISIONS OF THIS AGREEMENT, AND THAT IT AGREES TO BE LEGALLY BOUND THEREBY.