In connection with a potential business transaction between Braindrip, LLC ("Braindrip"), and the undersigned Receiving Party (the "Potential Transaction"), the Receiving Party may obtain information about Braindrip’s business, and Braindrip is willing to share certain aspects of its business and planned business with the Receiving Party provided that Receiving Party agrees to the terms and conditions contained herein with respect to the confidential information of Braindrip. In consideration of the covenants and agreements herein contained and intending to be legally bound hereby, Braindrip and Receiving Party agree as follows:
1. DEFINITION. “Confidential Information” shall mean all confidential or other proprietary information that is disclosed by Braindrip to Receiving Party in any form, whether written, oral, or electronic, and whether provided before of after the date of Receiving Party accessing Braindrip’s website, including, without limitation, any financial information, financial models, operating methods and instructions, intellectual property, patents, patents pending, copyrights, trade secrets and/or proprietary information, research, development, equipment, inventions, databases, sources, contacts, marketing plans, contractual matters, techniques, know how, drawings, analyses, algorithms, ideas, processes, reports, formulas, business models and concepts, trade names, trademarks, costs, pricing, vendors, designs and documentation, pricing, client lists, client information, business, service and product and/or development plans, contracts, hardware, software, or other information that Braindrip designates as confidential, or which under the circumstances surrounding disclosure or given the nature of the information would reasonably be believed by the Receiving Party to be confidential.
2.1 General. As a condition to the receipt of Confidential Information from Braindrip, the Receiving Party shall: (i) not disclose, directly or indirectly, to any third party any portion of the Confidential Information without the prior written consent of Braindrip; (ii) not use or exploit the Confidential Information in any way except for consideration of the Potential Transaction; (iii) not copy or reproduce the Confidential Information, in whole or in part except as required in connection with the consideration of a Potential Transaction; (iv) segregate such Confidential Information from its own proprietary information and information received from third parties; (v) take all necessary precautions to protect the confidentiality of the Confidential Information received hereunder and exercise at least the same degree of care in safeguarding the Confidential Information as the Receiving Party would with its own confidential information, but in no event less than a diligent standard of care; and (vi) promptly advise Braindrip in writing upon learning of any unauthorized use or disclosure of the Confidential Information.
2.2 Governmental Order. If the Receiving Party is required under a final judicial or governmental order to disclose any Confidential Information received from Braindrip, the Receiving Party may disclose the Confidential Information provided that the Receiving Party gives Braindrip sufficient prior notice to contest such order and that the Receiving Party discloses only such portions of the Confidential Information as required by such order.
3. OWNERSHIP. All Confidential Information furnished to the Receiving Party by Braindrip is and shall remain the property of Braindrip. Except for use of the Confidential Information for the purposes as strictly set forth herein, Braindrip does not grant the Receiving Party any license, by implication or otherwise, to use the Confidential Information or any license rights in any patent, copyright or other intellectual property rights regarding the Confidential Information. Any right of the Receiving Party to use the Confidential Information shall terminate when notice thereof is provided by Braindrip in its sole discretion, and Receiving Party shall immediately return all Confidential Information and copies or other embodiments thereof and including all notes, summaries and derivatives and other materials representing the Confidential Information to Braindrip, but in any event no later than five (5) days following such notice.
4. DISCLAIMER. Braindrip makes no representation of warranty whatsoever with respect to its Confidential Information, including the accuracy or completeness of the Confidential Information, or non-infringement of any patent, copyright or other third party intellectual property right. Nothing contained herein shall bind the parties with respect to a Potential Transaction except as otherwise agreed to by the parties or any other business relationship, and neither party hereto shall have any liability therefor to the other, except for the breach of this Agreement. Further, nothing contained herein shall obligation Braindrip from providing any of its Confidential Information, in whole or part, to the other party.
5. MISCELLANEOUS. The Receiving Party recognizes that breach of the terms and conditions contained herein will cause irrevocable harm to Braindrip that is inadequately compensable in damages and that Braindrip is entitled to injunctive relief for such breach without posting of bond, along with any other remedies available to Braindrip. The invalidity or unenforceability of any provision of the terms and conditions shall not affect the validity or enforceability of any other provision hereof. The obligations of confidentiality of the Receiving Party hereunder shall survive the termination or expiration of the negotiations with respect to a Potential Transaction for a period of three (3) years following such termination. The Receiving Party may not assign or otherwise transfer this Agreement or the rights granted hereunder, in whole or in part. These terms and conditions shall be binding on and inure to the benefit of respective successors, assigns or other legal representatives of the parties hereto. No provision of these terms and conditions may be amended or waived without a written agreement signed by Braindrip and the Receiving Party. The provisions of the terms and conditions shall be governed by the laws of the State of Florida and the United States of America, without giving effect to principles of conflicts of laws and the parties consent to the jurisdiction of the state and federal courts located in Duval County, Florida. In the event any action or proceeding at law or in equity is brought by Braindrip to enforce a provision of the terms and conditions, the substantially prevailing party in any such action or proceeding shall be entitled to, and the other party shall pay the substantially prevailing party, the legal costs and reasonable attorneys’ fees incurred by such substantially prevailing party for the enforcement of the terms and conditions contained herein.