You agree that the information contained in this Survey is Confidential or proprietary information and is the property of eMindful (“The Company” or “Company) and The Company is relying on your (“You” or “Recipient”) commitment to maintain such information in confidence in accordance with the following terms and conditions:
1. Disclosure of Information. The Company is providing to the Recipient certain proprietary and confidential information concerning the Company, which information may include, but is not limited to, trade secrets, designs, processes, methods, techniques, inventions, know-how, discoveries, reports, trade secrets, documentation and specifications, and all other documents and materials concerning Company. All such information shall be referred to in this Agreement as “Confidential Information". Confidential Information shall not, however, include any such information which is:
(a) Demonstrated to be in Recipient’s possession prior to receipt from the Company, or developed independently by Recipient prior to such receipt as shown by Recipient’s written records;
(b) Already available or becomes available to the public through no fault of Recipient; or
(c) Received by Recipient from a third party having the right and authority to disclose it.
2. Recipient’s Use of Confidential Information. Recipient acknowledges that the Confidential Information is confidential and proprietary to the Company, and is vital to the success of the Company’s business. Recipient therefore agrees as follows:
(a) Recipient shall use Confidential Information solely for the purpose of completing the survey for the Company. Once the Survey has been completed Recipient shall cease to have any right to use Confidential Information for any purpose and shall not share it with anyone. Recipient may disclose Confidential Information to a judicial, legislative or regulatory body that lawfully requires such disclosure, provided that, prior to such disclosure, Recipient shall notify the Company of such requirement and shall use its best efforts to afford the Company the opportunity to challenge such disclosure or to seek an appropriate protective order.
(b) Except as set forth in paragraph 2(a), for a period of five years after the last date on which Recipient receives or is authorized to use any Confidential Information or until it becomes publicly available as above, and Recipient shall keep all Confidential Information confidential, shall not disclose any Confidential Information to any person or any third party, and shall not use any Confidential Information for any purpose whatsoever. Recipient shall use the same efforts to protect Confidential Information from disclosure to third parties as it uses to protect its own proprietary information, which efforts shall at a minimum be commercially reasonable efforts.
3. Ownership and Possession of Property. The Company retains ownership of all intellectual property components of its Confidential Information and this Agreement does not grant any right or license, express or implied, to Recipient under any patent, invention, trade secret, trademark, or copyright of the Company, except for the limited right to use Confidential Information as set forth in paragraph 2(a). Recipient will not file any copyright registrations, patent applications or similar registrations of ownership with respect to Confidential Information disclosed by the Company. In the event Recipient does so in violation of this Agreement, Recipient will assign to the Company such registrations and applications. The Company also retains ownership of all tangible forms or embodiments of its Confidential Information, including but not limited to all computer programs, documentation, notes, plans, drawings, and copies thereof. Recipient will return all such tangible forms or embodiments, and any and all copies thereof, to the Company promptly in the event that either party decides not to proceed with discussions regarding a mutual business relationship, or earlier upon the Company’s request.
4. Equitable Relief. Recipient acknowledges and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by Recipient or its Representatives. Accordingly, Company shall be entitled to seek specific performance, injunctive relief or any other forms of equitable relief as a remedy for any breach of this Agreement by Recipient and its Representatives. Such remedies shall not be deemed to be exclusive, but shall be in addition to all other remedies available at law or in equity. In addition, Company will be entitled to payment from Recipient of its legal fees and disbursements, court costs and other expenses of enforcing, defending or otherwise protecting its interests hereunder.
5. Successors and Assigns. The benefits of this Agreement shall inure to the successors and assigns of the Company and its respective Representatives, and the obligations and liabilities assumed in this Agreement by the Recipient shall be binding upon its respective successors and assigns.
6. Indemnity. The Recipient agrees to defend, hold harmless and indemnify the Company and its successors and assigns from and against any and all loss, cost or damage incurred by any of them as a result of any failure by the Recipient or any of its officers or employees to perform and comply with any of the confidentiality provisions of this Agreement. Without limitation of the forgoing. The Recipient shall also, promptly upon demand by the Company, reimburse the Company for all costs and expenses, including attorneys’ fees and reimbursements, incurred on behalf of the Company in connection with the enforcement of any such provision of this Agreement.
7. Disclosure Under Legal Process. In the event that Recipient or any of its Representatives is requested or required pursuant to legal process or an applicable rule or regulation (including but not limited to those promulgated by an applicable self-regulatory body or stock exchange) to disclose any Confidential Information, Recipient will provide prompt notice of such request or requirement to the furnishing Party so that such furnishing Party may, at its option and at its own expense, seek an appropriate protective order or other remedy to assure that Confidential Information will be accorded confidential treatment. If in the absence of a protective order or the receipt of a waiver hereunder the Recipient is nonetheless, in the opinion of its counsel, compelled to disclose any Confidential Information to any tribunal or any other person or entity or else stand liable for contempt or suffer other censure or penalty, Recipient may disclose such information to such tribunal or other person or entity without liability hereunder.
8. Survival of Obligations. Notwithstanding the termination of the parties’ business relationship, Recipient’s confidentiality obligations hereunder shall continue and shall be binding upon Recipient’s successors and assigns.
9. Severability. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and such invalid, illegal or unenforceable provision (or provisions) shall be reformed and construed so that if (or they) will be valid, legal and enforceable to the maximum extent permitted by law.
10. Miscellaneous. This Agreement shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the laws of the State of Florida. Neither this Agreement nor any term hereof may be changed, waived, discharged, or terminated orally, but only by an instrument in writing signed by the party against which enforcement of such change, waiver, discharge or termination is sought. This Agreement embodies the entire agreement and understanding between the parties, superseding all prior agreements and understandings relating to the subject matter hereof, and is not assignable by either party.