MUTUAL CONFIDENTIALITY AGREEMENT
This MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”) is entered into between the Environmental Working Group, a non-profit corporation having offices at 1436 U St. NW, Suite 100, Washington DC 20009 (“EWG”) and the Company submitting its application for the EWG VERIFIED® licensing program (hereinafter referred to, individually, as “Party” and collectively, as “Parties”). The Parties agree as follows:
1. Statement of Purpose. This Agreement is being executed in connection with discussions and other exchanges of information that representatives of the Parties have had or may have for the purpose of evaluating the possibility of entering into certain business transactions, pursuant to which Company would become a licensee of under certain trademarks and service marks in the EWG VERIFIED® licensing program.
2. Term. The term of this Agreement during which disclosures between the Parties may take place is three (3) years from the Effective Date (“Term”), unless sooner terminated upon written notice by one Party to the other. This Agreement shall survive execution of any other contract between the Parties unless otherwise expressly agreed.
3. Publicity. Except as may be required by law, neither Party shall disclose, publicize or advertise in any manner this Agreement or the discussions and/or negotiations giving rise to this Agreement without the prior written consent of the other Party, including consent as to the timing and content of such disclosure. Except as may be required by law, neither Party shall use the name of the other Party, or any affiliate of the other Party, in any promotion, publication or advertising in connection with the discussions and/or negotiations giving rise to this Agreement or in connection with the Confidential Information.
4. Confidential Information. “Confidential Information” means any information, technical data or know-how, including, but not limited to, that which relates to business plans, financial projections, agreements with third parties, patents, patent applications, trade secrets, research, product plans, products, services, suppliers, customers, prices and costs, markets, software, developments, inventions, processes, technology, designs, drawings, engineering, hardware configuration, marketing, licenses, budgets or finances of that is disclosed by the Disclosing Party to the Receiving Party or that is otherwise learned by the Receiving Party in the course of its discussions or business dealings with, or its physical or electronic access to the premises of, the Disclosing Party, and that has been identified as being proprietary and/or confidential or that by the nature of the circumstances surrounding the disclosure or receipt ought to be treated as proprietary and/or confidential. Without limiting the foregoing, EWG’s Confidential Information shall include the terms and conditions of the license agreement made available to Company and any modifications thereto, the pricing structure and cost allocations of the proposed Relationship, and any feedback from EWG regarding EWG’s evaluation of the Company’s application to become a licensee of EWG. Confidential Information also includes all information concerning the existence and progress of the parties’ dealings. The Party disclosing CI shall be referred to as the “Discloser” and the Party receiving CI shall be referred to as the “Recipient”. Notwithstanding the foregoing, CI shall not include information which: (a) is or becomes part of the public domain through a source other than Recipient; (b) was rightfully known to Recipient at the time of disclosure with no confidentiality obligations to a third party; (c) Recipient can show was independently developed by Recipient without breach of this Agreement; (d) Recipient can demonstrate was subsequently learned from a third party not under a confidentiality obligation to Discloser; (e) or (f) is authorized in writing by Discloser to be disclosed.
5. No Obligation to Disclose. Nothing in this Agreement shall be deemed to obligate either Party to disclose CI to or accept CI from the other Party.
The Company acknowledges that EWG has an ongoing duty to inform the public about chemicals used in consumer products that raise a public health and environmental concern and, accordingly, that any Ingredient and Labeling Information for products submitted for inclusion in EWG’s Skin Deep® Cosmetics Database (a public consumer guide that allows individuals to assess the ingredients used in their personal care products) may be uploaded into such database, in accordance with EWG’s Disclosure Agreement agreed to by the Company.
6. Use of and Duty to Protect Confidential Information. Each Party may disclose CI in strict confidence to the other Party. Recipient agrees to use the CI only for the purpose set forth in Section 1 hereof and to secure, protect and maintain the confidentiality of the CI of Discloser, using at least as great a degree of care as it uses to maintain the confidentiality of its own information of a similar nature or importance, but in no event less than reasonable care. Recipient shall not reproduce CI except as necessary in furtherance of the purpose of this Agreement as set forth in Section 1. A Recipient of tangible products or materials constituting CI agrees to not analyze or have a third party analyze such tangible products or materials. Recipient shall not sell, transfer, publish, disclose, or otherwise use or make available any portion of Discloser’s CI to third parties, except to those of its affiliates, directors, officers, employees, consultants, or attorneys who have a need-to-know the same in furtherance of the purpose of this Agreement as set forth in Section 1 and as expressly authorized herein, and who have agreed, either as a condition of employment or otherwise, to be bound by terms and conditions substantially similar to those in this Agreement. Recipient shall be responsible for the compliance of such third parties with the terms and conditions of this Agreement. The United States Patent Office and similar agencies in foreign countries are considered to be third parties under this Agreement. Accordingly, during the period that the obligations of secrecy are in effect, the Recipient shall not disclose the Discloser’s CI to any patent office for any purpose without the prior written consent of the Discloser.
7. Right To Notice. Recipient shall not be entitled to release CI (a) required to be disclosed by law, pursuant to a duly authorized subpoena, court order or government authority; or (b) to permit Recipient to prosecute or defend any claim hereunder, unless Recipient shall have provided Discloser with sufficient advance notice to permit Discloser to seek a protective order or other appropriate remedy protecting its CI from disclosure and Recipient limits the release of the CI to the greatest extent possible under the circumstances.
8. CONFIDENTIALITY OBLIGATIONS SURVIVE. The Parties’ confidentiality obligations hereunder shall survive for four (4) years following any termination or expiration of this Agreement, provided, however, that confidentiality obligations with respect to CI constituting trade secrets shall continue for as long as such CI shall be eligible for trade secret protection.
9. Ownership; No License. CI disclosed to Recipient hereunder is and shall remain the exclusive property of Discloser. No license or other right under any patent, trademark, copyright or other proprietary or intellectual property right is implied or granted under this Agreement.
10. Obligation to Destroy or Return Confidential Information. At the request of Discloser, Recipient shall promptly destroy all of its copies of the CI or return the same to Discloser, except for a single record copy of the CI kept solely for the purpose of ascertaining Recipient’s rights and obligations in the event of a dispute hereunder, and shall, within thirty (30) days of receiving such request, certify in writing its compliance with this Section.
11. Export Compliance. Each Party shall comply with all applicable export laws and regulations with respect to CI exchanged hereunder.
12. WarrantIES. Neither Party makes any representation or warranty, whether express or implied respecting CI or any other matter.
13. Injunctive Relief. The Parties acknowledge and agree that breach of this Agreement may cause irreparable harm and that, without posting bond or other security, Discloser may seek and obtain injunctive or other equitable relief against such breach or threatened breach without prejudice to any other remedies which may be available to Discloser; and Recipient shall not raise the defense of an adequate remedy at law.
14. No Liability. Discloser shall have no liability as a result of the use of or reliance on any CI by Recipient.
15. No Partnership; No Obligation. This Agreement does not create a partnership, joint venture or other legal or business relationship between the Parties; nor does it create or imply any obligation to enter into such a relationship. Any business or legal relationship between the Parties shall be governed by a separate agreement.
16. Waiver. No delay or omission in exercising any right hereunder will operate as a waiver of that or any other right. A waiver must be in writing. A waiver or consent given on one occasion is effective only in that instance and will not be construed as a bar to or waiver of any right on any other occasion.
17. CHOICE OF LAW AND FORUM. This Agreement shall be governed by the laws of the District of Columbia without regard to its conflict of laws principles. Any action instituted by either Party arising out of this Agreement shall only be brought, tried and resolved in the courts of the District of Columbia.
18. Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision hereof.
19. Notices. All notices, requests and consents hereunder shall be in writing and deemed given on the date received as evidenced by proof of receipt, if delivered to the Parties’ addresses set forth herein by (a) hand; (b) certified mail, return receipt requested; (c) fax, if confirmed by (b); or (d) overnight courier of national reputation.
20. Modification. This Agreement may be modified only by written amendment signed by both Parties.
21. Execution. This Agreement may be executed via facsimile or scanned signed copies and in counterparts, each of which shall be deemed an original and all of which, when taken together, shall constitute a single instrument.
22. Successors and Assigns. Neither Party may assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the other Party.
23. Headings. Headings are intended for reference only and shall have no effect on the meaning of any provision of this Agreement.
24. Integration. This Agreement constitutes the entire agreement between the Parties hereto concerning the subject matter hereof and supersedes any prior or contemporaneous agreements concerning the subject matter hereof.