5.1 “Confidential Information” means any information or data, whether or not reduced to writing, used by or belonging or relating to the Company or Customer, or any person or entity to whom either the Company or Customer owes a duty of confidentiality, that is not generally known to the industry in which the Company or Customer, or any person or entity to whom the Company or Customer owes a duty of confidentiality, is or may be engaged, including, without limitation, any and all: (i) trade secrets, proprietary data or information relating to the Company or Customer, or any person or entity to whom the Company or Customer owes a duty of confidentiality; (ii) inventions, concepts, designs, processes, specifications, schematics, equipment, reaction mechanisms, processing techniques, formulations, chemical compositions, technical information, drawings, diagrams, software (including source code), hardware, control systems, research, test results, plant layout, feasibility studies, procedures or standards, know-how, manuals or patent information; (iii) the identity of or information concerning current or prospective clients, customers, accounts, suppliers, service providers, consultants, licensors, licensees, contractors, subcontractors or other agents or representatives; (iv) financial or sales information, current or planned commercial activities, business strategies, records, marketing plans, or other information relating to the business activities or operations of the Company or Customer, or any person or entity to whom the Company or Customer owes a duty of confidentiality; (v) any information that should reasonably be considered to be confidential or proprietary; or (vi) any other information that the Company or Customer, or any person or entity to whom the Company or Customer owes a duty of confidentiality, advises the Company or Customer should be treated as confidential information.
5.2 Notwithstanding the foregoing, Confidential Information does not include information which the receiving party can document:
5.2.1 is known to the receiving party at the time of disclosure other than as a result of the receiving party’s breach of any legal obligation;
5.2.2 has become publicly known and made generally available through no wrongful act of the receiving party;
5.2.3 has been rightfully received by the receiving party from a third party who has the legal right to disclose such information; or
5.2.4 is required to be disclosed pursuant to court order or government authority, whereupon the receiving party shall provide written notice to the disclosing party prior to such disclosure unless prohibited by such court order from providing such written notice.
5.3 Without the disclosing party’s prior written approval, the receiving party shall not communicate, publish or disclose to any person or entity or use (for the receiving party’s own benefit or the benefit of others) any Confidential Information for any purpose whatsoever; provided, however, the receiving party may use the disclosing party’s Confidential Information solely for the purpose and to the extent required in connection with carrying out the receiving party’s duties as contemplated by this Agreement. The receiving party will at all times use and disclose the other party’s Confidential Information using at least the same degree of care that it uses with to protect its own Confidential Information, but in no event less than a reasonable degree of care. The receiving party will return
to the disclosing party all originals and copies of documents and other materials, whether in print or electronic format or otherwise, containing or derived from Confidential Information in the receiving party’s possession or under the receiving party’s control when the obligations of the receiving party no longer require it’s possession thereof, or whenever the disclosing party requests, and
in any event will return all Confidential Information within ten (10) days if this Agreement is terminated for any or no reason and will not retain any copies thereof, other than to the extent required by applicable law or to enforce the terms of this Agreement. If requested by the disclosing party, the receiving party will certify in writing to the disclosing party as to the return or destruction of all Confidential Information. The receiving party acknowledges that it is obligated to protect the Confidential Information from disclosure or use even after termination of this Agreement. Notwithstanding the foregoing, the receiving party shall not be required to return Confidential Information outside of its control or where doing so would be commercially impractical (i.e., backups that include both Confidential and non-Confidential information).
5.4 Notwithstanding the foregoing, the Company may disclose Confidential Information of Customer to officers, directors, employees, agents, attorneys, representatives, and subcontractors (collectively, “Third Parties”) that may be hired by or work with the Company in rendering products or Services for Customer; provided, however, such Third Parties are aware of the Company’s obligations set forth herein; and provided, further, that such Third Parties are subject to restrictions of confidentiality substantially similar to those set forth herein.
5.5 The disclosing party shall retain ownership of all right, title and interest in and to its Confidential Information. Except for the limited right to use the disclosing party’s information as required to perform its obligations under this Agreement and/or any Service Attachment, the receiving party shall not acquire any other right, title or interest in or to the disclosing party’s Confidential Information.
5.6 Non-Solicitation. Customer agrees that during the term of this Agreement and for a period of two (2) years after the termination of this Agreement, Customer will not, either directly or indirectly, separately or in association with others, interfere with, impair, disrupt or damage the Company’s business by hiring, soliciting, encouraging or recruiting for itself or others any of the Company’s (a) current employees, contractors, officers, managers, or agents (“Current Employees”); or (b) any former employees, contractors, officers, managers, or agents who were employed by, engaged to perform Services on behalf of the Company or the Company’s affiliates in the twelve (12) month period immediately prior to the date of such solicitation (“Former Employees”), or causing others to solicit or encourage or recruit any of the Company’s Current Employees or Former Employees to discontinue their employment or otherwise change their relationship with the Company.
5.7 Nondisparagement. Upon termination of this Agreement, the Company and Customer agree that, unless otherwise legally required to do so, they will each at all times thereafter refrain from discussing the circumstances relating to such termination and from disparaging, or describing in a derogatory light, the
performance, capabilities, Services, business practices, or ethics of the other (or of the officers, directors, managers, or members of the other). This provision does not apply to statements made by a party to its, his or her immediate family or attorneys, or to statements made by either party in legal proceedings in conjunction with legal actions to pursue rights and/or remedies under this Agreement.
5.8 Right To Injunction. Each party acknowledges that the other party will suffer immediate and irreparable harm that will not be compensable by damages alone in the event such party repudiates or breaches this Section 5, or threatens or attempts to do so. In the event of any such breach or any threatened or attempted breach, such party agrees that the other party, in addition to and not in limitation of any other rights, remedies or damages available to it at law or in equity, shall be entitled to obtain temporary, preliminary, and permanent injunctions to prevent or restrain any such breach, and the other party shall not be required to post a bond as a condition for the granting of such relief.
5.9 Customer shall ensure, by written agreement with terms substantially similar to Section 5, that each of its direct and indirect affiliates, officers, employees (while employed), contractors, managers and directors are bound by the terms of this Section 5.