Square1courses

Confidentiality Agreement

This Confidentiality Agreement (this “Agreement”) is made and entered into as of ____________ ___, 20___ (the “Effective Date”), by and between The SQUARE 1 System, LLC, an Illinois limited liability company (“Company”), and ____________________________________________( “Recipient”).  Company and Recipient are collectively hereinafter referred to as the “Parties”, or when used individually, a “Party.”

R E C I T A L S

WHEREAS, Company is the owner of certain Confidential Information (defined below);

WHEREAS, Recipient desires for Company to make available the Confidential Information to Recipient for Recipient’s internal evaluation purposes and for no other purpose, commercial or otherwise (hereinafter, the “Business Relationship”); and

WHEREAS, in connection with the Parties’ consideration and/or undertaking of the Business Relationship (hereinafter, the “Authorized Purpose”), Company will disclose to the Recipient certain Confidential Information only if such Confidential Information is properly protected and preserved from unauthorized dissemination and use as set forth herein.

A G R E E M E N T

NOW, THEREFORE, in consideration of the Business Relationship and of the mutual covenants and undertakings set out herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, it is agreed as follows:

• Definitions.
• “Confidential Information” shall mean any information disclosed by Company to Recipient, either directly or indirectly in writing or orally, whether disclosed prior to or after the Effective Date, by inspection of tangible objects or other means (including, without limitation, documents, prototypes, samples, videos, data, information and/or equipment), which is treated by Company as confidential or proprietary and either (i) identified by the Company as such, or (ii) is of such a nature that the Recipient should reasonably expect that Company would want it handled as such.  Confidential Information shall include without limitation, financial information, business strategies, computer programs, trade secrets, know-how, inventions, concepts, designs, plans, patent applications, and other data, information, and knowledge, whether in the form of data, text, pictures, audio, video, logos and copy in any form, including but not limited to written, oral, or electronic form.  Confidential Information may also include information disclosed to Recipient by third parties on behalf of Company.  Notwithstanding the foregoing, Confidential Information shall not include any information that the Recipient can establish (i) was publicly known and lawfully made available in the general public domain prior to the time of disclosure by Company; (ii) becomes publicly known and made generally available after disclosure to Recipient through no action or inaction of Recipient; or (iii) was in the possession of Recipient, without confidentiality restrictions, at the time of disclosure by Company as shown by Recipient’s files and records immediately prior to the time of disclosure. 
• “Representatives” shall mean the agents or advisors of a Party, including, without limitation, attorneys, accountants, consultants, bankers and financial advisors, and any other persons authorized to act on their behalf.
• Non-Use and Non-Disclosure. Recipient shall treat the Confidential Information in strict confidence, and use such Confidential Information only for the Authorized Purpose. Except as otherwise provided herein or otherwise agreed in writing, Recipient shall not disclose Confidential Information: (i) to any third party, unless authorized by Company in advance and in writing; or (ii) to any of its Representatives except where such Representative has (a) previously signed a non-use and non-disclosure agreement with the Recipient in content substantially as protective, but no less stringent, than the provisions contained herein, or (b) such Representative is a licensed professional bound by legal or other obligations of a comparable nature. Under no circumstances may Recipient reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody Confidential Information and which are provided to Recipient.
• Maintenance of Confidentiality. Recipient shall take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of Confidential Information. Recipient shall not make copies of the Confidential Information, or any portion thereof, except as necessary for the Authorized Purpose. All such copies shall contain Company’s proprietary rights notices, confidentiality markings and other indications of protection, in the same manner in which such notices were set forth in or on the original. Recipient shall immediately notify Company in the event of any unauthorized use or disclosure of Confidential Information.
• Breach of Agreement. Recipient shall be responsible for any breach of this Agreement by itself and its Representatives. At Company’s request, Recipient shall provide a list of all Representatives who have been provided any Confidential Information.
• Return of Materials.  All documents and other tangible objects containing or representing Confidential Information shall be and remain the sole property of Company.  All such items and all copies thereof, together with any other documents prepared by Recipient that contain or otherwise reflect any of the foregoing, shall be returned to Company or destroyed within five (5) days of Company’s written request or expiration or termination of this Agreement.  Upon request by Company, Recipient shall offer proof of such return or destruction by sending a suitable declaration in writing.  Electronic copies of or containing Confidential Information, which copies are automatically generated through data backup and/or archiving systems (“electronic copies”) are not required to be returned or destroyed, and retention of such electronic copies shall not be deemed to violate this Agreement as long as such electronic copies are not disclosed or used in violation of the terms hereof.  In addition, nothing in this Agreement shall prohibit the Recipient from retaining copies of any Confidential Information, including any electronic copies, as necessary to comply with regulatory requirements applicable to it or any internal recordkeeping policy or procedure to which it is subject.  Such retained copies shall remain subject to the terms and conditions of this Agreement and Recipient shall inform Company of the nature, extent and probable duration of such further retention. 
• No License.  Nothing in this Agreement is intended to grant any rights to Recipient under any patent, mask work, trademark, trade secret, or copyright of Company, nor shall this Agreement grant the Recipient any right in or to Confidential Information, except as expressly set forth herein.  Recipient may not register or claim intellectual property rights on the basis of any Confidential Information provided hereunder. 
• Disclosure Required by Law. Recipient shall be released from its duty of confidentiality to the necessary extent, if it is required by law or by lawful order of a court, agency or similar authority to disclose the Confidential Information. In such case, Recipient shall promptly notify the Company thereof in writing prior to making the disclosure in order to facilitate Company’s seeking a protective order or other appropriate remedy from the proper authority (except when the Recipient is prohibited by law or governmental order from informing Company of such required disclosure). Recipient shall cooperate reasonably with Company in seeking any such order or other remedy. Recipient further agrees that if Company is not successful in precluding the requesting legal body from requiring disclosure of the Confidential Information, Recipient will furnish only that portion of the Confidential Information which is legally required and will exercise all reasonable efforts to obtain reliable assurances that confidential treatment will be accorded the Confidential Information.
• Term and Termination. This Agreement shall become effective as of the Effective Date and shall continue for the longer of three (3) years or the duration of the Business Relationship. At the end of such period, this Agreement shall terminate without the need for a notice of termination by either Party. Notwithstanding anything contained herein to the contrary, all of Recipient’s non-use and non-disclosure obligations hereunder with respect to all Confidential Information provided during the term of this Agreement shall survive any expiration or termination of this Agreement (including, without limitation, upon the execution of any other agreement with respect to, or the consummation of, any Business Relationship) for a period of five (5) years.
• Remedies. Recipient agrees that any violation or threatened violation of this Agreement is likely to cause injury to Company that is irreparable and not compensable in readily ascertainable monetary damages. Therefore, Recipient agrees that in the event of a breach or threatened breach of this Agreement by Recipient, Company shall be entitled to specific performance (without need to post any bond) and/or injunctive relief as a remedy, which shall be in addition to, and not in lieu of, any appropriate relief in the way of monetary damages.
• No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED AS IS, AND THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS, NON-INFRINGEMENT OR USEFULNESS. COMPANY SHALL HAVE NO LIABILITY OR RESPONSIBILITY FOR ERRORS OR OMISSIONS IN, OR ANY DECISIONS MADE BY RECIPIENT IN RELIANCE ON, ANY CONFIDENTIAL INFORMATION.
• Severability. If any provision of this Agreement is found to be unenforceable, the remainder shall be enforced as fully as possible, and the unenforceable provision shall be replaced by a provision that represents most closely the intention of the Parties as expressed herein.
• Notices.  All notices, requests, demands, and other communications required or permitted to be given hereunder shall be in writing and shall be by electronic mail and confirmed by mailing of a paper copy, postage prepaid and return receipt requested.  All such notices shall be sent to each Party at its address identified below, or to such other address as such Party may give by written notice of the change to the other Party in the manner specified herein.
• No Business Relationship.  The Parties agree that no relationship is created by this Agreement that could any way imply (i) a partnership, joint venture or other commercial relationship between the parties, or (ii) an authorization for either Party to act as agent or representative of the other Party.
• Attorneys’ Fees. The prevailing Party in any suit or proceeding arising out of or relating to this Agreement shall be entitled to recover from the non-prevailing Party all reasonable attorneys’ fees and paralegals’ fees, and all other costs, expenses and fees incurred in connection with such suit or proceeding, and all costs, expenses and fees of any appeal.
• Governing Law and Jurisdiction. The Agreement is subject to the laws of the State of Illinois, U.S.A., without regard to any provisions governing conflicts of law. Any legal actions or claims relating to this Agreement must be filed and litigated only in a state or federal court sitting in the County of Cook in the State of Illinois, U.S.A. The Parties consent to the exclusive jurisdiction of such courts and waive any objection to such venue.
• Successors and Assignment. Recipient shall not assign any of its rights or obligations hereunder without the prior written consent of Company.
• Miscellaneous. This Agreement constitutes the entire agreement of the Parties and supersedes all prior agreements and understandings, whether written or oral, with respect to the subject matter hereof. No failure or delay in enforcing any provision of this Agreement shall constitute a waiver thereof, or of any other provision hereof. This Agreement may not be amended or added to, nor any obligations waived, except by a writing signed by each of the Parties hereto.

IN WITNESS WHEREOF, the Parties have caused this Confidentiality Agreement to be executed as of the Effective Date.