THIS CONFIDENTIALITY AGREEMENT (this “Agreement”) is made this
INSERT FULL LEGAL NAME
INSERT JURISDICTION AND TYPE OF ENTITY
, with its principal place of business located at
”) and Survey Sampling International, LLC, a Delaware limited liability company, with its principal place of business located at 6 Research Drive, Suite 200, Shelton, Connecticut 06484 (hereinafter “
WHEREAS, Disclosing Party intends to disclose its Confidential Information (as defined herein) to the Receiving Party in connection with a survey/questionnaire designed by The Fuels Institute that will be hosted or conducted by the Receiving Party (the “
WHEREAS, all disclosures of Confidential Information in connection with the Purpose, whether by the Disclosing Party and/or its parents, subsidiaries, and/or affiliates and/or its and/or their employees, representatives, and/or agents is and will be subject to, and governed by, the terms of this Agreement.
NOWTHEREFORE, in consideration of the disclosure of Confidential Information and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
Confidential Information; Exceptions.
1.1 For the purpose of this Agreement, “
” includes all confidential and/or proprietary information (oral/verbal and/or written (including, written disclosures in electronic form or format or transmitted electronically)) and documentation of Disclosing Party, including, without limitation, that which relates, if applicable, to and management processes, procedures and techniques; reward and incentive programs; designs; plans; programs; methods; technology; source code; information security; privacy practices and processes; networks; systems, servers and technical infrastructure; computer programming techniques; survey programming and hosting techniques and technology; inventions; plans for future products or services; patents, copyrights, trade secrets, trade names, service marks, and any other intellectual property and proprietary rights, material, content, marks, and information; marketing and pricing plans and strategies; sales information; financial, accounting and business plans, processes, forecasts, projections, and information; employee information, including, without limitation, salary or labor costs; client information, including, without limitation, client lists; confidential and/or proprietary information of any third party; and partner, supplier, or subcontractor information, including, without limitation, lists of partners, suppliers, or subcontractors. By way of clarification only, Receiving Party hereby expressly acknowledges and agrees that all verbal or oral disclosures, if any, of Confidential Information made via telephone calls or in person meetings, shall be deemed to be disclosures of Confidential Information protected in accordance with the terms of this Agreement.
1.2 The term “
” does not include information that Receiving Party can demonstrate, via written records: (i) is generally known and available within the public domain (“
”) at the time of disclosure to Receiving Party by Disclosing Party; (ii), after disclosure to it, becomes Publicly Known through no breach of this Agreement by Receiving Party; (iii) is lawfully in the possession of Receiving Party, at the time of disclosure to it, without an obligation of confidentiality; (iv) is received by Receiving Party from a third party free to disclose such information to Receiving Party without any restriction or obligation of confidentiality; or (v) is independently developed by Receiving Party and/or its parents, subsidiaries and/or affiliates and/or its and/or their employees, representatives, and/or agents without reference to, or use of, the Confidential Information.
Confidentiality; Restrictions on Use and Disclosure; Ownership.
2.1 Except as set forth in Section 3 below, Receiving Party agrees that Confidential Information shall be kept confidential and used, accessed, and disclosed solely for, and in connection with, the Purpose.
2.2 Receiving Party shall protect Confidential Information from unauthorized use, access, and/or disclosure by using the same degree of care Receiving Party uses to protect and secure its own confidential and proprietary information, but in no event shall Receiving Party use less than a reasonable degree of care.
2.3 Receiving Party will not, without the prior express written consent of Disclosing Party, disclose or transfer Confidential Information to any third party; provided, however, Receiving Party may disclose Confidential Information to its parents, subsidiaries, and/or affiliates and/or its and/or their employees, representatives, and/or agents on a “need-to-know” basis only in connection with the Purpose. Receiving Party shall, prior to disclosing Confidential Information to any such person or party, inform such person or party of the confidentiality restrictions and obligations contained herein. In addition to the foregoing, Receiving Party may disclose to The Fuels Institute de-identified data based on Confidential Information, which is aggregated with similar types of confidential information that Receiving Party may have gathered from third parties, in an encrypted or password-protected medium. Receiving Party shall be liable and responsible for any breach or violation of this Agreement by any person or party to whom Receiving Party discloses or transfers, or provides access to, Confidential Information.
2.4 Except as permitted herein, Receiving Party agrees it shall not, without the prior express written consent of the Disclosing Party, disclose to any person or party: (i) that it has received or disclosed Confidential Information pursuant to this Agreement; or (ii) the occurrence or status of any discussions about the Purpose.
2.5 Receiving Party shall promptly notify Disclosing Party upon first discovering or learning of any unauthorized use and/or disclosure of Confidential Information or any other breach of this Agreement by Receiving Party and/or any person or party receiving or accessing Disclosing Party’s Confidential Information by or through Receiving Party. Receiving Party shall fully cooperate with Disclosing Party in its efforts to mitigate and remediate the foregoing.
2.6 Receiving Party acknowledges and agrees it is not granted, and shall not receive, any right, title, and/or interest in and/or to any Confidential Information of Disclosing Party and no such right, title, and/or interest shall be inferred or implied.
Notwithstanding anything contained herein to the contrary, Receiving Party may disclose Disclosing Party’s Confidential Information as required by a court, administrative body of competent jurisdiction, government agency, or operation of law (“
Legal Disclosure Requirement
”). In the event of a Legal Disclosure Requirement, Receiving Party shall: (i) use reasonable efforts to provide Disclosing Party with prior written notice, to the extent permitted by applicable law; and (ii) reasonably and legally cooperate with Disclosing Party in its attempts to seek a protective order or to otherwise limit or restrict disclosure of its Confidential Information. In the event Disclosing Party is unable to obtain a protective order or to otherwise limit or restrict disclosure of its Confidential Information, Receiving Party may disclose Confidential Information, but only to the extent legally required.
Return and/or Deletion of Confidential Information
. Upon written request from Disclosing Party and/or upon or prior to the one (1) year anniversary of this Agreement, Receiving Party will: (i) return all Confidential Information, including, without limitation, all originals, copies and/or derivative works created therefrom, in hardcopy form or format, and/or (ii) delete and erase all Confidential Information, including, without limitation, all originals, copies and/or derivative works created therefrom, in electronic, magnetic, and/or any other non-hardcopy form or format and located on any and all types of media, systems, servers, disks, and devices. Upon written request, Receiving Party will cause a duly authorized representative to certify in writing to Disclosing Party that all Confidential Information has been returned and/or deleted and erased, as the case may be, and no copies retained. Receiving Party acknowledges and agrees that Disclosing Party’s failure to request written certification does not and will not waive, or release or relieve Receiving Party from its obligation to comply with, the requirements and obligations contained in this Section. Notwithstanding anything contained herein to the contrary, Disclosing Party agrees Receiving Party shall not be required to delete and erase Confidential Information contained within, or located in, electronic back-up, archival, disaster recovery or business continuity systems, or other similar types of data storage devices or systems; however, all such Confidential Information shall be kept, maintained, and protected in accordance with this Agreement, regardless of the termination or expiration of this Agreement, until such Confidential Information is deleted and/or destroyed in accordance with Receiving Party’s data storage retention, destruction, and deletion processes and practices.
Warranty; Disclaimers; Limitation of Liability
. The Disclosing Party represents, warrants, and covenants that it has the legal right to disclose its Confidential Information to Receiving Party and to permit Receiving Party to use the Confidential Information for, and/or in connection with, the Purpose. The Receiving Party acknowledges and agrees that Disclosing Party has not made and hereby expressly disclaims all representations and warranties whether express or implied, as to the accuracy and completeness of its Confidential Information. Neither Party shall be liable to the other for any indirect, incidental, punitive, special or consequential damages (including, without limitation, lost profits) regardless of whether a Party is informed of the possibility the same may exist and the total aggregate liability of each Party shall be limited to direct damages only.
No Further Commitments
. Neither this Agreement nor the disclosure or receipt of Confidential Information hereunder shall require or obligate either Party to enter into any subsequent agreement.
. The term of this Agreement commences on the Effective Date and expires one (1) year thereafter; however, the confidentiality obligations contained in this Agreement shall continue for a period of one (1) year after the expiration of this Agreement. Notwithstanding anything contained herein to the contrary, with respect to protectable trade secrets, the foregoing shall be kept, maintained, and protected in accordance with this Agreement in perpetuity.
. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the state of New York, USA without regard to any choice of law principles (whether those of New York or any other jurisdiction) that provide for the application of a different jurisdictions laws. Any matter arising out of, or related to, this Agreement shall be subject to the exclusive venue and jurisdiction of the Federal or state courts located in the borough of Manhattan, New York, New York. Failure by either Party, at any time, to enforce any obligation or breach by the other, shall not constitute a waiver of the particular breach or of any subsequent breach, or of either Party’s rights or remedies hereunder. Neither Party may assign this Agreement, in whole or in part, without the prior express written consent of the other, which consent shall not be unreasonably withheld, conditioned or denied. Notwithstanding anything contained herein to the contrary, a Party may assign this Agreement, without the prior express written consent of the other, to: (i) a parent, subsidiary, or affiliate in connection with a corporate restructuring or change of control transaction, (ii) an entity purchasing all or substantially all of the Party’s assets, or (iii) the surviving or resulting entity in the event of a merger; provided, however, any assignee of the Receiving Party’s obligations must agree in writing to be bound by, and subject to, this Agreement. Any assignment in violation of this Section 8 shall be null, void, and of no force or effect. This Agreement shall be binding upon the Parties, their successors, permitted assigns and transferees. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the remaining provisions shall be unimpaired and remain in full force and effect. The terms that by their nature should survive the expiration of this Agreement, shall so survive such expiration. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The Parties agree that facsimile counterpart signatures and signatures on an electronic image, file, or document (e.g. an image, file, or document in .pdf or .jpg format) shall be acceptable and deemed original signatures.
IN WITNESS WHEREOF, the Parties have caused their authorized representatives to sign this Agreement as of the Effective Date.
* Typing your full name below indicates your acceptance and agreement to abide by the terms