FIREMON, LLC (HEREINAFTER “FIREMON) IS DISCLOSING THE CONFIDENTIAL INFORMATOIN SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS NONDISCLOSURE AGREEMENT (THE “AGREEMENT”) AND ON THE CONDITION THAT RECIPIENT ACCEPTS AND COMPLIES WITH THEM. BY ACCESSING OR OTHERWISE USING THE CONFIDENTIAL INFORMATION, YOU AGREE AS THE “RECIPENT” TO BE BOUND BY THIS AGREEMENT. YOU HEREBY (A) ACCEPTS THIS AGREEMENT AND AGREES THAT RECIPIENT IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENTS AND WARRANTS THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY ON BEHALF OF RECIPIENT TO ENTER INTO THIS AGREEMENT AND BIND RECIPIENT TO ITS TERMS. IF YOU LACK AUTHORITY OR RECIPIENT DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, RECIPIENT MUST NOT USE OR DISCLOSE THE CONFIDENTIAL INFORMATION IN ANY MANNER OR FOR ANY PORPOSE.
IF RECIPENT HAS ENTERED INTO A SEPARATE WRITTEN AGREEMENT WITH FIREMON WHICH GOVERNS THE USE AND DISCLOSURE OF FIREMON CONFIDENTIAL INFORMATION, SUCH AGREEMENT SHALL GOVERN IN LIEU OF THESE TERMS.
Recipient will have access or be exposed to information relating to current and future FireMon products, solutions and services. Recipient is willing to maintain in strict confidence all such Confidential Information and neither use nor disclose such Confidential Information without the express written permission of FireMon. FireMon has conditioned its disclosure on acceptance of the terms of this Agreement by Recipient.
NOW, THEREFORE, for and in consideration of disclosure of Confidential Information to the Recipient, other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and the mutual promises, covenants, warranties and agreements herein contained, the parties agree as follows:
1. Confidentiality. The parties agree and acknowledge that they intend by this Agreement to establish a relationship of trust and confidentiality due to the sensitive and confidential nature of the subject matter analyzed and discussed and the information provided to Recipient, as well as the potential of damage to FireMon if such Confidential Information is disclosed to third parties.
(i) As used herein, the term “Confidential Information” means all non-public information (whether or not marked “secret” of “confidential”) relating to FireMon and its products, solutions services, organization, financials, business strategies, and customer reviews and analysis.
(ii) Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Recipient’s breach of this Agreement; (b) was in Recipient’s possession prior to FireMon’s disclosure hereunder; or (c) was or is independently developed by Recipient without using any Confidential Information.
(iii) Any Confidential Information which FireMon discloses to Recipient: (a) shall not be used by Recipient for a competitive advantage or in other business activities or for any purpose other than to consider the purchase of products, solutions and/or services from FireMon; (b) shall be kept in strict confidence by Recipient; and (c) shall not be disclosed by Recipient to any third party including without limitation, a competitor of FireMn. In furtherance of the foregoing and without limitation, Recipient agrees that unless legally compelled to do otherwise Recipient shall keep the Confidential Information confidential in the same manner as Recipient would treat their own confidential information, and Recipient will not, without FireMon’s prior written consent, disclose any such information to any other person, firm or entity.
(iv) All copies of all documents and other materials containing Confidential Information, which Recipient receives shall upon request be returned to FireMon, including a certification that all such information has been returned, and none of the Confidential Information shall be retained by Recipient in any form.
2. No Representation or Warranties. Each party acknowledges that FireMon is providing information, which it believes to be reliable and relevant, and that FireMon makes no representation or warranty as to the accuracy or completeness of the information.
3. Governing Law and Interpretation, Jurisdiction and Venue. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Kansas. Each party hereby: (a) designates the federal or state courts of Kansas as the courts of proper jurisdiction and venue of and for any and all lawsuits or other legal proceedings relating to this letter agreement and (b) irrevocably consents to such designation, jurisdiction, and venue.
4. Modification and Amendment. This Agreement contains the entire agreement between the parties hereto with respect to the preservation of Confidential Information and supersedes all prior representations of the parties, whether written or oral, with respect to Confidential Information. Unless specifically provided otherwise in this Agreement, this Agreement shall not be modified or amended except by an instrument in writing signed by both parties.
5. Parties Benefited. This Agreement shall inure to the benefit of, and be binding upon, each party’s successors, assigns, heirs, executors, and administrators.
6. Equitable Relief. Recipient hereby acknowledges that: (a) the provisions of this Agreement are fundamental for the protection of FireMons legitimate business interests; (b) such provisions are reasonable and appropriate in all respects; and (c) in the event it violates and such provisions, FireMon will suffer irreparable harm and its remedies at law would be inadequate. Accordingly, in the event Recipient violates any such provisions, FireMon shall be entitled to a temporary restraining order, temporary and permanent injunctions, specific performance, and other equitable relief without any showing of irreparable harm or damage or the posting of any bond, in addition to any other rights or remedies which may then be available to the other party, including but not limited to FireMon’s reasonable costs and fees incurred in connection with enforcing its rights hereunder..
7. Term and Termination. Recipient’s duty to protect Confidential Information expires five (5) years from the date on which that Confidential Information was disclosed to Recipient. Either party may terminate this Agreement upon thirty (30) days written notice, but any termination of this Agreement shall not relieve Recipient of its confidentiality and use obligations with respect to Confidential Information disclosed prior to the date of termination.
8. Return of Confidential Information. Upon request of FireMon, Recipient shall return or destroy all Confidential Information, including all copies thereof and an Officer of Recipient will certify in writing that (i) all copies have been returned or destroyed and (ii) Recipient did not use or disclose any Confidential Information of FireMon in violation of this Agreement.
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