This agreement (“Agreement”) governs the disclosure and use of Confidential Information and is made and entered into as of the Effective Date by and between Rockwell Automation and Company, each being a party and together the parties. The parties hereby agree as follows:
1. Definitions.
“Affiliate” means with respect to a party (i) any corporate entity for which that party holds at least one seat on the board, (ii) any partnership or joint venture where that party is a general partner, or (iii) any other entity that is Controlling, Controlled by or under common Control with such party.
“Control” means having the right, through the ownership of voting securities or otherwise, to elect the management and otherwise to direct the policies of such entity.
“Discloser” means a party disclosing Confidential Information according to the terms and conditions set forth in this Agreement.
“Recipient” means the party receiving Confidential information disclosed by Discloser pursuant to this Agreement.
“Effective Date” means the date last signed above.
2. Use of Confidential Information. Recipient will (i) protect Confidential Information using the same degree of care, but no less than reasonable care, as it uses to protect its own confidential information; (ii) only disclose Confidential Information to those of its employees, officers, directors, consultants, agents, contractors and Affiliates who have a business need to know or possess Confidential Information in connection with the Purpose and who are legally bound to Recipient to maintain confidential information in accordance with terms no less restrictive than set forth in this Agreement, (iii) use Confidential Information only in furtherance of the Purpose, and (iv) not decompile, disassemble, decode, reproduce, redesign, or reverse engineer Confidential Information or any part thereof. Recipient may make a limited number of copies of Confidential Information as necessary to complete the Purpose. All copies made will reproduce any restrictive legends of the original
This Agreement shall not be construed to limit Recipient’s right to independently develop or acquire products without use of Discloser’s Confidential Information. Discloser acknowledges that Recipient may now, or in the future, develop information internally, or receive information from other parties that is similar or identical to the Confidential Information. Accordingly, nothing in this Agreement shall be construed as a representation or an agreement that Recipient will not develop or have developed for it products, concepts, systems or techniques contemplated that are similar in nature to the Discloser, provided that Recipient does not violate any of its obligations under this Agreement. The parties agree that this Agreement will not restrict the right of either party to enter into agreements with other parties for the same or similar efforts, or to make, have made, use, sell, buy, develop, market, or otherwise transfer any technology, products or services now or in the future.
3. Disclosure of Confidential Information. Subject to the terms and conditions of this Agreement, Confidential Information may be disclosed by either party during the Disclosure Period. Confidential Information may be disclosed in visual, written, oral, printed, electronic or machine-readable form. All disclosures of Confidential Information are deemed confidential at the time of disclosure. Confidential Information disclosed in human or machine-readable form must contain an appropriate legend such as “Confidential” or “Proprietary.” Confidential Information disclosed in oral form must be designated as confidential in a writing sent to Recipient’s Representative within thirty (30) days of the initial disclosure, summarizing the Confidential Information sufficiently for identification.
4. Termination and Continuing Obligations. All exchanges of Confidential Information subject to this Agreement shall be completed within the Disclosure Period. This Agreement shall expire at the end of the Disclosure Period unless terminated earlier by either party. Either party may terminate this Agreement before the end of the Disclosure Period with or without cause for any reason by giving at least fifteen (15) days prior written notice to the other party. The terms and conditions set forth herein shall survive any expiration or termination of this Agreement for Confidential Information disclosed hereunder for the duration of the Confidentiality Period.
5. Exclusions. This Agreement imposes no obligation upon Recipient if Recipient can demonstrate that the Confidential Information disclosed by Discloser (i) was in Recipient’s lawful possession before receipt from Discloser, (ii) is or becomes a matter of public knowledge through no fault of Recipient, (iii) is rightfully received by Recipient from a third party, (iv) is disclosed by Discloser to a third party without a duty of confidentiality on the third party, (v) is independently developed by Recipient without use of Discloser’s Confidential Information, or (vi) is disclosed under operation of law, provided Recipient notifies Discloser (to the extent permitted by law) and upon Discloser’s request, agrees to cooperate in all reasonable respects to contest the disclosure or obtain a protective order.
Notwithstanding anything to the contrary in this Agreement, the parties agree that (a) nothing in this Agreement prohibits a Recipient from reporting possible violations of any law or regulation to any governmental agency, or from making other disclosures that are protected under the whistleblower provisions of any law or regulation; and (b) neither a Recipient nor any of its representatives (i) needs the prior authorization of anyone at the Discloser, including the Discloser’s legal counsel to make any such reports or disclosures, or (ii) is required to notify the Discloser that such reports or disclosures have been made.
6. Return. Upon receipt of a written request from Discloser, Recipient will (i) cease using Discloser's Confidential Information, and (ii), at Recipient's expense, promptly return, or certify in writing the destruction of, all Discloser's Confidential Information received under this Agreement. The obligation to return or destroy all copies of Confidential Information does not extend to automatically generated back-up copies which are not readily accessible provided that the Recipient shall make no further use of those copies and such copies are treated as confidential.
7. Warranty. Discloser represents that it has the right to make the disclosures under this Agreement. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS.” The Discloser shall not be liable for the accuracy or completeness of the Confidential Information, nor are there any express or implied representations or warranties by Discloser to the Recipient including with respect to the non-infringement of any intellectual property rights.
8. Remedies. The parties agree that (i) breach of the provisions of this Agreement by Recipient may cause irreparable damage to Discloser for which money damages may be inadequate, and (ii) Discloser may be entitled to seek injunctive relief to protect Discloser’s rights under this Agreement among other legal remedies that may be allowed by a court of law.
9. Successors and Assigns. Except as to a sale or transfer of the business to which this Agreement relates, the rights of the parties under this Agreement may not be assigned or transferred to any person, firm or corporation without the express prior written consent of the other party, which consent will not be unreasonably withheld. Any purported assignment without such express prior written consent will be void.
10. Governing Law. This Agreement will be governed by the laws of Country and/or State identified in Section B without regard to its conflicts of law principles.
11. No Other Rights Granted. No license or immunity is granted by this Agreement by either party to the other, either directly or by implication, estoppel, or otherwise, under any patents, copyrights, trademarks, mask works, trade secrets, know-how or other intellectual property right, nor does this Agreement grant Recipient any rights in or to Discloser’s Confidential Information solely in connection with the Purpose.
12. General. The parties acknowledge that the Confidential Information disclosed by each of them under this Agreement may be subject to export controls under the laws of the United States and other applicable laws. Each party will comply with such laws and agrees not to knowingly export, re-export or transfer Confidential Information of the other party without first obtaining any required United States or any other applicable authorizations or licenses. This Agreement constitutes the entire agreement between the parties with respect to the subject matter thereof. All modifications to this Agreement must be in writing signed by both parties. Failure to enforce any provision of this Agreement will not constitute a waiver of any term of this agreement. This Agreement may be signed in one or more counterparts by facsimile, emailed PDF, or electronic signature, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Reproductions of this executed original (with reproduced signatures) will be deemed to be original counterparts of this Agreement. If any provision of this Agreement is determined to be illegal, invalid or unenforceable, the validity and enforceability of the remaining provisions of this Agreement will not be affected.