HomeMy Public PortalAboutExhibit MIEC 58D Exhibit DExhibitD
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any further prohibited use or disclosure; however, such remedial actions shall in no manner
relieve 's obligations or liabilities for breach hereunder.
3. Limitations on Obligations. This Agreement shall not restrict disclosure or use
of Confidential Information that:
(a) was, at the time of receipt, otherwise known t
restrictions as to use or disclosure, and was not received directly or indirectly
o without
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(b) was in the public domain at the time of disclosure
into the public domain throw no br h of this Agreement by
Confidential Information from
r thereafter enters
r those receiving
(c) becomes known to-rom a source other than which
source has no duty of confidentiality with respect to the information;
is independently developed by allillwithout reliance on or access
Confidential Information; or
(e) is required to be disclosecamimment agency or bureau a court
of law or equi wi co petent jurisdiction over provided that will first
have provided th ro • t written notice of such required disc osure and will take
reasonable steps to allow 11111111to see a o 've order with respect to the Confidential
Inform 'o to be disclosed. will promptly cooperate with and assist
at expense, in connection with obtaining such protective order.
4. No Warranty.
WHETHER EXPRESS OR ! 'L
CONFIDENTIAL INFORMATION.
OF ANY KIND AS A RESULT OF
CONFIDENTIAL INFORMATION, UNLESS SUCH RELIANCE OR USE IS EXPRESSLY
PERMITTED IN A WRITTEN AGREEMENT SIGNED BY BOTH PARTIES.
HEREBY DISCLAIMS ALL WARRANTIES,
SPECT TO ANY AND ALL OF THE
SHALL NOT BE LIABLE IN DAMAGES
S RELIANCE ON OR USE OF ANY
5. No License. No license or conveyance of any rights held by either party under
any discoveries, inventions, patents, trade secrets, copyrights, or other form of intellectual
property is granted or implied by this Agreement or by the disclosure of any Confidential
Information pursuant to this Agreement.
6. No Formal Business Obligations. This Agreement shall not constitute, create,
give effect to or otherwise imply (i) a joint venture, pooling arrangement, partnership or formal
business organization of any kind, or (ii) any obligation or commitment on either party to submit
a proposal or to enter into a further contract or business relationship with the other party, or (iii)
any obligation to disclose, supply or otherwise communicate any information, general or specific,
to the other party. Nothing herein shall be construed as providing for the sharing of profits or
losses arising out of efforts of either or both parties.
7. Confidentiality and Intellectual Property Notices. hall not (nor shall
it permit or assist others to) alter or remove any confidentiality abell , proprietary label, patent
marking, copyright notice or other legend placed on Confidential Information, and shall maintain
and place any such notices or legends on applicable Confidential Information and copies thereof.
The rights and obligations set forth in this Agreement shall take precedence over any inconsistent
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specific legend contained on, or any statements made in connection with the disclosure of, any
Confidential Information.
8. Governing Law. This Agreement shall be governed by and construed in
accordance with the law of the State o!without regard to its conflicts of law principles.
9. Injunctive Relief and Damages. The arties hereby acknowledge that, due to the
unique nature of the Confidential Information, remedies at law are inadequate and that
ill suffer irreparable harm in the event of breach or threatened breach of any provision
of this Agreement. Accordingly, in such event, .hall be entitled to seek preliminary and
final injunctive relief without a requirement to post bond, as well as any and all other applicable
remedies at law or in equity, including the recovery of damages.
10. Amendments; Waivers; Assignment.
(a) This Agreement may be amended and any of its terms and conditions may be waived
only by a written agreement signed by both parties. No provisions regarding the obligations of
the parties with respect to Confidential Information set forth in any subsequent or
contemporaneous agreement between the parties will take precedence over this Agreement unless
(i) such provisions are specific to a particular business objective, license or other arrangement
between the parties and (ii) either (A) such provisions are more stringent than those contained
herein or (B) the subsequent agreement specifically refers to this Agreement and waives or
amends the applicable provisions hereof.
(b) The failure of either party at any time or times to require performance of any provision of
this Agreement shall in no manner affect its rights at a later time to enforce the same. No waiver
by either party of any condition or term shall be deemed to be a continuing waiver of such
condition or term or any other condition or term.
(c) This Agreement shall be binding upon and inure to the benefit of the heirs, successors
and permitted assigns of the parties. Neither this Agreement nor the obligations of either party
hereunder shall be assignable or transferable by such party without the prior written consent of
the other party; provided thatjnay transfer this Agreement to any affiliate and
either party may transfer this Agreement to a successor in interest without such written consent of
the other party. Any attempted assignment of this Agreement without such consent shall be null
and void and shall have no effect. Even after assignment of this Agreement, the assignor shall
remain bound by its terms.
11. Notice. Any notice required to be given hereunder shall be in writing, sent to the
addresses of the parties set forth below such party's signature and made to the attention of the
persons executing this Agreement below. Such notice shall be deemed duly delivered on the date
of hand -delivery, on the date of transmission if sent by facsimile (provided a copy of such notice
is also sent by another means provided herein within one business day of such transmission), one
day after deposit with an overnight courier with tracking capabilities, or five days after deposit in
first class U.S. mail, postage prepaid, return receipt requested.
12. Termination and Survival. This Agreement shall commence as of the date written above
and shall remain in effect until terminated by either party (i) giving thirty (30) days' written
notice of termination to the other party at any time, or (ii) giving notice effective immediately
following a material breach of this Agreement by the other party that is not susceptible to cure.
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Any obligations imposed on the parties by this Agreement that should by their terms survive the
termination of this Agreement shall so survive.
13. Entire Agreement; Counterparts. This Agreement constitutes the entire and exclusive
agreement between the parties with respect to the subject matter hereof. All prior agreements,
understandings and proposals, oral or written, between the parties with respect to the subject
matter hereof are superseded by this Agreement. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which, when taken
together, shall constitute one and the same instrument. Signatures provided by facsimile or in
portable document format (a/k/a pdf) shall be as valid and binding as inked original signatures.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives as of the date first written above.
By: By:
Name: Name:
Title: Title:
Address: Address:
Fax: Fax:
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