MUTUAL CONFIDENTIALITY AGREEMENT
This agreement is made between Follett School Solutions and Individuals Accessing the Surplus Management Program.
Follett School Solutions and Users of the Surplus Management System (the “Parties”) are evaluating possible uses of the program and relationships between them. Solely for purposes of this evaluation (“Permitted Purpose”), either party (“Owner”) may disclose to the other (“Recipient”) confidential or proprietary information. The Parties desire to define the rights and obligations of the Recipient with respect to such information.
NOW, THEREFORE, in consideration of the mutual promises set forth in this Agreement, the Parties agree:
(a) “Confidential Information” means any information, including information regarding Owner’s divisions or affiliates, which is disclosed by Owner to Recipient, in any form, and which is treated by Owner in good faith as confidential, and: (i) is conspicuously marked “confidential,” or words to that effect at disclosure; or (ii) is reasonably identified to Recipient in writing as “confidential” within 30 days after disclosure; or (iii) should be reasonably known to be confidential by Recipient. “Confidential Information” shall include the fact that the Parties are exploring a possible transaction and the contents of any request for proposal and response to such request.
(b) Notwithstanding the foregoing, Recipient shall have no obligation under this Agreement with respect to any Confidential Information that Recipient can show was either: (i) rightfully in its possession prior to disclosure by Owner; or (ii) independently developed by Recipient without use of any Confidential Information of Owner; or (iii) generally known or available, or has become generally known or available, in the Parties’ business without breach of this Agreement by Recipient; or (iv) rightfully obtained by Recipient from any third party having the right to transfer or disclose it.
Treatment of Confidential Information.
(a) Notwithstanding disclosure hereunder, Owner retains all rights with respect to all Confidential Information and any translations, abridgments, revisions, adaptations or improvements thereon. Recipient shall use Confidential Information solely for the Permitted Purpose, and shall not use or disclose Confidential Information to or for benefit of any third party, or use it for any other purpose.
(b) Further, Recipient shall use reasonable care, but not less than the same care Recipient employs with respect to its own information of like importance, to protect Confidential Information from disclosure and unauthorized use.Â Without limiting the generality of the foregoing, Recipient shall: (i) limit the duplication of Confidential Information to the extent practical consistent with the Permitted Purpose; and (ii) disclose Confidential Information only to its employees having a legitimate need to know in connection with the Permitted Purpose; and (iii) where disclosure to non-employee attorneys, accountants, consultants or advisors is required by business necessity in connection with the Permitted Purpose, ensure that such professionals are informed of the contents of this Agreement prior to disclosure.
(c) If, in Recipient’s reasonable judgment, Recipient becomes legally obligated to disclose Confidential Information by any judicial, governmental or regulatory process, Recipient shall promptly notify Owner and afford Owner an opportunity to appear and contest or limit disclosure (at Owner’s expense). In any event when disclosing Confidential Information pursuant to any legal process, Recipient shall use its good faith efforts (at its own expense) to limit the disclosure to the minimum legally required, and to avail itself fully of any confidential treatment afforded by such legal process.
(d) Recipient acknowledges that: (i) this Agreement creates no obligation for Owner to disclose any particular information; (ii) all Confidential Information disclosed hereunder is disclosed on an “AS IS” basis without any warranty; and (iii) any reliance by Recipient on any such Confidential Information is at Recipient’s own risk.
Competition [Optional: and Solicitation].
(a) The Parties acknowledge that they or their affiliates may be competitors in certain markets and that nothing in this Agreement will prevent them from continuing to compete in any such markets; provided, however, that use of Confidential Information disclosed hereunder for any competitive purposes is strictly prohibited.
(b) Beginning on the date of execution of this Agreement and continuing for the term of this Agreement pursuant to Section 4, neither Party shall solicit or induce any employee of the other Party to leave such Party’s employ.]
(a) This Agreement is effective as of its execution with respect to Confidential Information disclosed thereafter or within sixty days before.Â This Agreement shall expire and be of no further force or effect upon the first to occur: (i) the passage of two years without any disclosure of Confidential Information hereunder; or (ii) two years after written notice by either Party terminating this Agreement; or (iii) execution of a definitive written agreement with respect to any business transaction, other than in the ordinary course of business, between the Parties containing nondisclosure obligations equal or greater to those contained herein.
(b) Immediately upon receipt of written notice of termination of this Agreement, and in any event upon expiration of the term of this Agreement (unless expressly agreed in writing to the contrary), Recipient shall either: (i) return to Owner all Confidential Information disclosed hereunder, including all copies thereof; or (ii) destroy, and certify such destruction to Owner in writing of the same.
Remedies and Interpretation.
(a) The Parties acknowledge that in the event of any breach or threatened or reasonably anticipated breach of this Agreement by either of them as Recipient, the resulting damage to the other Party as Owner would be difficult or impossible to quantify and remedy at law, and therefore, in addition to any other rights or remedies available hereunder, Owner shall be entitled to injunctive and other equitable relief and to recover from Recipient its reasonable attorneys’ fees and costs incurred in connection with enforcement of this Agreement.
(b) This Agreement is the sole expression of the understanding between the Parties with respect to the gratuitous sharing of information, and it may not be modified or waived except in writing signed by the Party against whom enforcement of such modification or waiver is sought.