NOW IT IS AGREED as follows:
1. CONFIDENTIAL INFORMATION
Harris Corporation and Company intend to disclose to each other certain business and/or technical information in written or other tangible form pursuant to this Agreement that may be of confidential or proprietary, (“Confidential Information” or “Proprietary Information”) nature and such information which is disclosed verbally shall be summarized in writing by the disclosing party within thirty (30) days of the original disclosure date. All such information (hereinafter “Proprietary Information”) furnished pursuant to this Agreement shall be marked with a proprietary or confidentiality notice.Confidential or Proprietary Information means any and all technical, commercial, financial, proprietary, trade secret or other information and materials concerning the business and affairs of either party that have been or may hereafter be provided to the other party including, but not limited to, plans, designs, data, analyses, compilations, studies, or other documents. Confidential Information also includes without limitation, descriptions of strategic and business plans, the identity of one or more other parties with whom a Disclosing Party does business, descriptions of business operations, descriptions of non-public transaction structure proposals, descriptions or demonstrations of products, services, financial performance figures, financial projections, descriptions of computer systems and systems development, electronic communication technology, distribution networks, strategies, operations, billing and receivable operations, software, technical systems and product development methodologies and strategies, marketing and operational procedures and strategies, client lists and other similar information.
Both parties shall hold all of the Confidential Information it receives in strict confidence, and except as expressly set forth herein, will not disclose such Confidential Information to any third person(s) (which term as used in this Agreement will be broadly interpreted to include without limitation any corporation, company, group, partnership, agency, or individual).
A receiving party may only disclose Confidential Information to (i) those of its representatives who require such material in connection with Permitted Use, (ii) its officers, directors, employees and advisors who need to know the Confidential Information to accomplish the Permitted Use. The Receiving Party shall safeguard the Confidential Information with the same degree of care to avoid unauthorized disclosure as the receiving party uses to protect its own Confidential Information of a similar nature; but in no case less than reasonable care. The receiving party further agrees that the receiving party and its representatives shall not use any of the Confidential Information for any reason or purpose other than in connection with the Permitted Use. For purposes of this Section, Permitted Use means evaluating a business relationship between the parties or in furtherance of the performance of a purchase order.
It is receiving party’s responsibility to ensure that any officers, directors, or employees to have access to the Confidential Information will, prior to being provided with any or all of the Confidential Information, agree to be bound by the terms of this Agreement.
Each Party agrees not to disclose any such Proprietary Information received from the other Party to any third party, except as required by applicable law or legal process but only after the other party has had the opportunity to seek a protective order or other appropriate remedy or waive compliance with the provisions of this Confidentiality Agreement, and shall use the same degree of care to avoid disclosure of such Proprietary Information as it employs with respect to its own proprietary information of like importance, but no less than reasonable care, and shall disclose such only to its employees with a “need to know” and who have agreed to protect and preserve the confidentiality of such disclosures.
Any information disclosed hereunder should not be deemed to be confidential or proprietary and the receiving party shall have no obligation with respect to any such information which:
(a) was known to the receiving party at the time it was submitted, or
(b) is, or becomes, publicly known through no wrongful act of the receiving party, or
(c) is received by the receiving party from a third party without similar restrictions and without breach of this Agreement, or
(d) is approved for release by written authorization of the disclosing party, or
(e) is independently developed by the receiving party without the use of the information disclosed hereunder, or
(f) is furnished by the disclosing party to a third party without a similar restriction on the third party’s rights.
5. RETURN OF DOCUMENTS
All information provided pursuant to this Confidentiality Agreement shall be deemed the property of the disclosing party. Upon the termination of this Agreement, or at anytime, or ten (10) calendar days written notice, the party receiving any documents or other tangible property pursuant to this Agreement, whether or not it constitutes Proprietary Information, shall, at the disclosing party’s sole option, either return to the disclosing party all such documents and other tangible property supplied pursuant to this Agreement, including, but not limited to, all computer programs or data, documentation, notes, plans and drawings, and all writings derived therefrom, in addition to all copies of such information, and/or provide to the disclosing party written assurances that all such information, including all Proprietary Information, has been destroyed.
6. COMPELLED DISCLOSURE
In the event that the receiving party (or any of its representatives) are required by law or legal process (by oral questions, interrogatories, requests, subpoenas, depositions, civil investigative demands or otherwise) to disclose any Proprietary Information, the receiving party shall promptly notify the disclosing party of such request, so that the disclosing party may seek a protective order or other appropriate remedy or waive compliance with the provisions of this Agreement. The receiving party agrees to reasonably cooperate with the disclosing party in responding to such request or requirement and to protect the confidential nature of the Proprietary Information. In the event that a protective order or other remedy is not so obtained by the disclosing party, such portions of such information as, pursuant to the written advice of counsel, are required to be disclosed and only such portions, may be disclosed by the receiving party, and the receiving party shall exercise reasonable efforts to obtain reliable assurances that confidential treatment will be accorded to such information.
The term of this Agreement is three (3) years from the date Company agrees and accepts the terms hereof and shall be automatically renewed for additional three (3) year periods unless sooner terminated by either party with a thirty (30) day written notice. Each party receiving Proprietary Information under this Agreement shall maintain the information in confidence in accordance with the terms of this Agreement notwithstanding any termination of this Agreement the later of 3 (three) years from the date the Proprietary Information is disclosed to the Receiving Party or until the Proprietary Information is returned or destroyed, or in the case of any trade secret, for so long as such information remains a trade secret. The confidentiality obligations shall survive the cancellation or termination of this Agreement.
8. CURRENT DEVELOPMENTS EXCLUDED
8.1 Each party hereto acknowledges that the other party may now market or have under development products or services which are competitive with products or services now offered or which may be offered by the other party, and acknowledge that the Parties’ communications pursuant to this Agreement will not serve to impair the right of either party to independently develop, make, use, procure, or market products or services now or in the future which may be competitive with those offered by the other party, nor require either party to disclose any planning or other such information to the other.
9. NO LICENSES
Nothing contained in this Agreement shall be construed as granting or conferring any rights by license or otherwise, expressed or implied for any invention, discovery, or improvement made, conceived or acquired prior to, or after the date of this Agreement.
The parties acknowledge that the loss of confidentiality of the Proprietary Information will cause irreparable harm to the disclosing Party, damages for which may be impossible or difficult to measure. In addition to all remedies available in the law arising from a breach of this Agreement by the receiving Party including damage remedies, the Parties agree that the disclosing Party will be entitled to specific performance of this Agreement including temporary and permanent injunctive relief.
11. NO WARRANTY
All information provided to the receiving party, whether or not Proprietary Information, is provided “AS IS” and without any warranty whatsoever, whether express, implied, or statutory, as to the accuracy or completeness of the information supplied.
Any provision of this Agreement that is prohibited or unenforceable for any reason in any jurisdiction will, as to that jurisdiction, be ineffective to the extent of that prohibition or unenforceability without invalidating the remaining provisions, and any such prohibition or unenforceability in any jurisdiction will not invalidate or render unenforceable such provision in any other jurisdiction. For any provision so severed from this Agreement, there shall be deemed to be substituted a like provision to accomplish the intent of the parties as closely as possible to the provision so severed, as determined by any court of competent jurisdiction, to the extent permitted by law.
This Agreement is personal to the parties, and neither of them may, without the written consent of the other, assign, or dispose of any of its rights hereunder, or subcontract or otherwise delegate any of its obligations under this Agreement.
14. GOVERNING LAW AND JURISDICTION
The laws of the state of Florida, without giving effect to its conflicts of law principles, govern all matters arising out of or relating to this Agreement, without limitation, its validity, interpretation, construction, performance and enforcement.
Each party hereto unconditionally consents to the personal jurisdiction of the state or federal courts located within the Middle District of Florida for any actions, suits or proceedings arising out of or relating to this Agreement and each party agrees not to commence any action, suit or proceeding relating thereto except in such courts. Each party unconditionally waives and agrees not to plead in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.
15. EXPORT RESTRICTIONS
The receiving party represents and warrants that no technical data furnished to it by the Disclosing Party shall be disclosed to any foreign national, nation, firm, or country, including foreign nationals employed by or associated with the Receiving Party, nor shall any technical data be exported from the United States without first complying with all requirements of the International Traffic in Arms Regulation (ITAR) or the Export Administration Regulation (EAR), including the requirement for obtaining any export license if applicable. The Receiving Party shall first obtain the written consent of the Disclosing Party prior to submitting any request for authority to export any such technical data. The Receiving Party shall indemnify and hold the Disclosing Party harmless for all claims, demands, damages, costs, fines, penalties, attorney’s fees, and all other expenses arising from failure of the Receiving Party to comply with this clause or the ITAR and EAR.
16. ENTIRE AGREEMENT
This Agreement constitutes the entire understanding between the parties relative to the confidential/proprietary information identified herein, and does not supersede any prior and collateral communication, written or otherwise between the parties relative to the subject matter hereof. This Agreement may not be modified or amended in any way unless done in writing and signed by both parties hereto.