MUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT
THIS MUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT (this “Agreement”) is effective this
day of
,
, and is made by and between CLEARCOVE SYSTEMS, INC., CLEARCOVE having its principal place
of business at 125 Tech Park Dr., Rochester, NY 14623 ("CLEARCOVE"), and
, having a place of business at
(“PARTY A”). For and in consideration of each party's disclosure of Confidential Information to the other, the
mutual covenants set forth herein, and for other good and valuable consideration, the sufficiency of which is hereby
acknowledged, the parties agree as follows:
ARTICLE 1 – DEFINITIONS
1.1 "Confidential Information" means any and all information, intellectual property, specifications, drawings, designs,
inventions, business plans and strategies, formulations, financials, principles of formulation, pricing, trade secrets or
know-how of a proprietary and confidential nature disclosed to CLEARCOVE and/or PARTY A , verbally, visually or
in writing (including computer-readable optical and magnetic media), in a manner reasonably calculated to alert the
recipient to its secret and confidential nature. Confidential Information may mean CLEARCOVE Confidential
Information, PARTY A Confidential Information, or both, as called for by the context of the provision.
1.2 "Objective" means the pursuit of a relationship with PARTY A for the development of business or customer
opportunities. .
ARTICLE 2 – DISCLOSURES AND CONFIDENTIALITY OBLIGATIONS
2.1 Each party shall treat as confidential and shall not directly or indirectly use or disclose, except in pursuit of the
Objective or as directed in writing by the disclosing party, the other party’s Confidential Information. Neither party
may disclose the other's interest in the Objective, or the fact that the parties are working toward the Objective, without
the other party’s prior written consent. If applicable, neither party shall conduct, have conducted or allow to be
conducted, any analyses, testing or reverse engineering with respect to Confidential Information or demonstrations
supplied by the other party unless expressly authorized to do so by the disclosing party. Neither party shall allow the
other party’s Confidential Information to be transferred to any other person or entity without the express written
permission of the disclosing party and shall return any unused sample portions to the disclosing party or shall dispose
of same in accordance with written instructions from the disclosing party.
2.2 The receiving party shall take reasonable steps to limit disclosure of the disclosing party’s Confidential
Information to the receiving party's employees, officers, agents, attorneys, engineering firms, third party agents, or
consultants ("Employees") who have a need to know related to the Objective. The receiving party shall instruct its
Employees that the disclosing party’s Confidential Information is proprietary, is to be held in strict confidence by said
Employees and take all reasonable precautions to safeguard and preserve the confidential status thereof. In addition,
the receiving party may disclose the Confidential Information only to a person or entity other than its Employees only
after such person or entity has entered into a confidential disclosure agreement that is no less stringent than the terms
and conditions herein.
2.3 The receiving party shall take reasonable steps to exclude unauthorized personnel and visitors from areas where the
disclosing party’s Confidential Information is or may be available or observable.
ARTICLE 3 – EXCEPTIONS
Confidential Information does not include information that: (i) was rightfully in the receiving party’s possession prior
to the date of initial disclosure; (ii) is published or becomes otherwise available to the general public or part of the
public domain through no act or failure to act of the receiving party; (iii) was in the receiving party’s possession from a
third party who had a bona fide right to make such information available; (iv) was disclosed in accordance with written
direction from the disclosing party; (v) was independently developed; or (vi) the receiving party is obligated to
produce pursuant to applicable laws and regulations or under order of a court of competent jurisdiction, provided that
said party agrees to notify the disclosing party of the facts pertaining to the action as soon as practical under the
circumstances in order to give the disclosing party an opportunity to protect its interests.
ClearCove Systems MDA
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ARTICLE 4 – MARKING
The disclosing party shall use reasonable efforts to mark all materials containing its Confidential Information. The
receiving party shall not remove such markings, and shall include such markings on permitted copies. However, failure
to mark does not by itself disqualify information from being Confidential Information if other factors or circumstances,
or a party’s course of performance, clearly indicate to the receiving party at the time of disclosure or the receiving
party acknowledges that the information is confidential.
ARTICLE 5 – RETURN OF MATERIALS
Upon the request of the disclosing party, the receiving party shall promptly return or destroy the originals and any
copies of any form of the Confidential Information and certify in writing that it has complied fully with the provisions
of this Article.
ARTICLE 6 – TERM
The period for exchange and disclosure of Confidential Information under this Agreement begins on the effective date
of this Agreement and will continue until terminated by either party upon thirty (30) days prior written notice to the
other party (“Disclosure Period”). Following expiration or termination of this Agreement, the obligations of the
receiving party with respect to the Confidential Information of the disclosing party will continue in full force and effect
as follows: (i) in the case of any information or materials that constitute a trade secret within the meaning of applicable
law, for as long as such information and materials remain as a trade secret; or (ii) in the case of any other information
or materials, for a term of five (5) years.
ARTICLE 7 – INVENTIONS
7.1 “Invention” means any improvement, creation, development, production, product, intellectual property or
discovery based upon or utilizing Confidential Information. All right, title and interest to any and all Inventions
conceived or developed solely by either party, including IP Rights arising therefrom, shall belong solely and
exclusively to such conceiving or developing party (“Sole Invention”). With regard to any Invention conceived or
developed jointly by CLEARCOVE and PARTY A, the parties will agree on the rights and obligations of each party in
relation to each such Invention in advance of development on a case by case basis.
7.2 Each party agrees not to file any patent application (domestic or foreign) covering or otherwise incorporating the
other party’s Confidential Information that meets the requirements of and is not subject to the exceptions above.
ARTICLE 8 – NO LICENSES; WARRANTIES
8.1 Nothing in this Agreement shall be construed as a grant of any right or license or an offer to grant any right or
license by either party to the other with respect to the Confidential Information exchanged hereunder.
8.2 The Confidential Information is provided “as is” and there are no representations or warranties, express or implied,
with respect to the Confidential Information, including but not limited to a warranty against infringement, accuracy or
completeness.
ARTICLE 9 – NOTICES
All notices or other communications required under this Agreement shall be in writing and shall be deemed to have
been given when delivered to the address listed on the first page hereof by hand or by overnight courier (effective upon
delivery), or by prepaid mail (effective three (3) days following mailing). All notices addressed to CLEARCOVE must
include a copy to: CLEARCOVE SYSTEMS, Inc., 125 Tech Park Dr., Rochester, NY 14623, . Either party may
change its address by notice to the other party.
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ARTICLE 11 – GENERAL
11.1 Nothing contained in this Agreement shall be construed to restrict or prevent a party from working internally or
with other parties in or on, or from acquiring other parties that work in or on, fields, products or processes similar or
identical to or competitive with those set forth in the Objective, and such actions shall not be used as a basis for a claim
of “inevitable disclosure or use” of Confidential Information in contravention or breach of this Agreement.
11.2 It is further understood and agreed that money damages would not be a sufficient remedy for any breach or
threatened breach of this Agreement and that the non-breaching party shall be entitled to seek specific performance
and injunctive or other equitable relief as a remedy for any such breach. Such remedy shall not be deemed to be the
exclusive remedy but shall be in addition to all other remedies available at law or equity to the non-breaching party. In
the event of any legal action to enforce the provisions of this Agreement, the prevailing party will have the right to an
award of its reasonable attorneys’ fees and costs related to the action.
11.3 Neither party shall assign this Agreement or any rights or obligations hereunder without the prior written consent
of the other party hereto, which consent may be withheld in its sole discretion. Notwithstanding the foregoing, either
party may assign this Agreement to an affiliate or a successor-in-interest through a merger or sale of assets upon notice
to the other party but without that party’s consent.
11.4 This Agreement shall be interpreted and construed in accordance with the laws of the State of New York.
11.5 The waiver of any one breach or default in accordance with the terms of this Agreement will not waive any
subsequent breach or default of the same or different kind.
11.6 If any provision of this Agreement is deemed unenforceable, the remainder of this Agreement shall not be
affected thereby and shall be enforced as permitted by law. The illegality, invalidity or unenforceability of any
provision of this Agreement under the law of any jurisdiction shall not affect its legality, validity or enforceability
under the law of any other jurisdiction.
11.7 This Agreement has been negotiated and executed by the parties hereto in English. If any translation of this
Agreement is prepared, it will be prepared solely for convenience. In the event of any inconsistency between or among
the non-English and the English versions of this Agreement or any other instrument, document or agreement executed
pursuant hereto, the provisions of the English version shall prevail.
11.8 This Agreement may not be modified or amended except in writing signed by an authorized representative of both
parties.
11.9 The parties agree that neither is under an obligation to enter into any further agreement regarding the Objective.
11.10 This Agreement (and the exhibits attached hereto, if any) constitutes the entire agreement between the parties,
and supersedes any previous oral or written understandings, commitments, or agreements pertaining to the subject
matter hereof. This Agreement may be executed in counterparts or by facsimile, each of which shall be considered one
and the same agreement and each of which shall be deemed an original.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed by their duly authorized
representatives effective as of the day and year first above written.
CLEARCOVE SYSTEMS, INC.
Signature
Signature
Printed Name
Printed Name
ClearCove Systems MDA
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Title
ClearCove Systems MDA
Title
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