NOW, THEREFORE, in consideration of the mutual promises and covenants set forth below and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound, the Parties agree as follows:
When used in this Agreement, the following capitalized terms will have the following meanings:
“Confidential Information” means any data or information that is owned, controlled, or possessed by Apothecary and not generally known to the public, whether in tangible or intangible form, including, but not limited to: (i) all information and know-how (whether or not in writing and whether or not patentable or copyrightable) owned, possessed or used by Apothecary relating to its business, technical or financial affairs, or of its subsidiaries, affiliates, customers, potential customers, or suppliers or potential suppliers; (ii) any contract, invention, product, formula, method, technique, composition, compound, project, development, plan, company information, customer information, customer contacts, apparatus, equipment, trade secret, process, research, reports, laboratory data, financial data, technical data, computer program, software, software documentation, hardware design, technology, marketing or business plan, forecast, financial statement, budget, license, price, cost and personnel data, source code or object code; (iii) all information or material that has or could have commercial value or other utility in the business in which the Apothecary is engaged; (iv) any and all information designated “Confidential” by Apothecary, prior to its disclosure; or (v) any and all information which a reasonable person would understand to be confidential.
For the avoidance of doubt, Confidential Information includes information that either Apothecary or Recipient creates during the course of the Contemplated Purpose, whether or not contained in files, letters, memoranda, reports, records, data, sketches, drawings, programs, applications, or other written, photographic, electronic, or other media.
Notwithstanding the foregoing, Confidential Information does not include information disclosed by the Apothecary that is (a) publicly known at the time of disclosure or subsequently becomes publicly known through lawful means without fault of Recipient; (b) shown by written record to be known to Recipient prior to disclosure pursuant to this Agreement and not otherwise restricted by contract or law; (c) shown by written record to have been independently developed by Recipient without use of Confidential Information.
“Contemplated Purpose” means carrying out, establishing, or evaluating whether to establish a contractual or other business relationship between the Parties.
“Signing Date” means the date that the parties signed this Agreement as reflected in the signature block below.
“Unauthorized Disclosure” means any disclosure, use, or retention of Confidential Information, in any form, by any person or entity, that does not comply with this Agreement.
All Confidential Information of Apothecary that comes into Recipient’s care, custody, possession, or control is and shall remain the exclusive property of Apothecary, to be used by Recipient only for the Contemplated Purpose and for no other purposes whatsoever.
Recipient will use the same degree of care in safeguarding Apothecary’s Confidential Information as it uses for its own confidential or like information, but in no event less than reasonable care, and shall restrict disclosure of Apothecary’s Confidential Information to those of its employees and professional advisors who have a need to know in furtherance of the Contemplated Purpose. In the event that Recipient receives a request from a governmental agency or court requiring disclosure of Confidential Information, Recipient will notify Apothecary in sufficient time to object to and defend against the disclosure and may make disclosures as required by law or court order provided Recipient uses diligent and reasonable efforts to limit disclosure and has allowed Apothecary to seek a protective order. Nothing herein requires the disclosure of Confidential Information.
At the request of Apothecary, Recipient will destroy all of Apothecary’s Confidential Information in its care, custody, possession, or control or return the same to Apothecary, and in either case will also certify its compliance with the terms of this provision. After such destruction or delivery, Recipient will not retain any copies thereof in any form whatsoever.
Except as provided in Section 3, Recipient will not, without Apothecary’s prior written consent
(a) disclose Confidential Information to any other party (whether or not such other party is a business or entity affiliated with Recipient)
(b) use Confidential Information to develop, produce, market, distribute or sell any product or services, or
(c) otherwise employ the Confidential Information in any manner whatsoever except in accordance with Section 2.
Recipient will promptly notify Apothecary of any Unauthorized Disclosure and shall cooperate with Apothecary in its efforts to remedy the same, and will indemnify and hold Apothecary harmless against all costs, expenses, claims, suits, causes of action, losses, penalties and damages (including, without limitation, reasonable attorney fees) relating to, arising out of, or in any way occasioned by, whether directly or indirectly, an Unauthorized Disclosure.
The Parties acknowledge that Confidential Information is a valuable asset and that in the event of an Unauthorized Disclosure, the value of such Confidential Information and Apothecary will be irreparably damaged to a degree and in an amount not fully ascertainable. In that event, Apothecary is entitled to seek injunctive relief to redress or prevent any violation. This remedy is separate and apart from any other remedy the Apothecary may have at law, equity or otherwise.
The Parties acknowledge and agree that employees engaged in technical service activities possess special, unique and extraordinary talents which are in great demand in the present economy, and further agree that Apothecary has incurred substantial expense in recruiting and training such employees and would incur even greater expense if required to replace any such employee. Therefore during the term of this Agreement and continuing for a period of one year following expiration or termination (where permitted) of this Agreement, Recipient will not directly or indirectly solicit, offer to employ, employ, or otherwise engage any person who is employed, or within the preceding one year was employed, by Apothecary.
In the event that an employee or former employee of Apothecary becomes employed or engaged in any capacity by Recipient in violation of this Agreement, then Recipient shall pay Apothecary liquidated damages in an amount equal to fifty percent (50%) of the total first-year’s compensation paid to such employee (including sign-on bonus, salary, performance or year-end bonus, and other benefits).
The Parties stipulate and agree: (i) that this liquidated damages provision is intended as an agreement in advance to the settlement of damages that might arise from a breach of this section; (ii) that the amount of liquidated damages set forth herein is fair and reasonable, and bears a reasonable relation to the damages that might be sustained on account of the loss of such
employee’s services; and (iii) that the actual damages in the event of a breach would be uncertain in amount and difficult to prove; each Party specifically agrees not to assert the contrary.
In the course of carrying out the Contemplated Purpose, the Parties may enter, or have already entered, into other agreements (“Related Agreements”). In the event of a conflict or ambiguity between any term, condition or clause in this Agreement and any term, condition or clause in a Related Agreement, the term, condition or clause in this Agreement shall control.
(a) This Agreement may be executed in counterparts, each of which shall be deemed an original.
(b) No delay or omission by either Party in exercising any right under this Agreement will operate as a waiver of that or any other rights. A waiver or consent given by either Party on any 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.
(c) This Agreement is governed by and will be construed in accordance with the laws of the State of Illinois irrespective of its conflict of law provisions.
(d) The provisions of this Agreement shall be severable, and if any provision of this Agreement shall be held or declared to be illegal, invalid or unenforceable, the remainder of this Agreement shall continue in full force and effect as though such illegal, invalid or unenforceable provision had not been contained in this Agreement.
(e) All terms and conditions of this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs, successors and assigns.
(f) This Agreement maybe amended, waived or revoked only by a written instrument executed by both parties hereto.
(g) No party is obligated by this Agreement to disclose or deliver any Confidential Information that it desires to withhold.
(h) No party makes any warranty, express or implied, concerning the Confidential Information disclosed by it.
All
under this Agreement will be in writing and will be deemed to have been duly given (i) upon receipt, if delivered in person, or (ii) within three (3) business days, if mailed by first class certified, registered or express mail, return receipt requested and postage prepaid, or (iii) upon receipt, if sent by recognized overnight courier, with proof of delivery requested and charges prepaid, to Apothecary or Recipient at their usual place of business or as to such other address as either Party may specify in writing.
This Agreement does not constitute a partnership or joint venture and nothing herein is intended to constitute either party as the agent for the other.
Either Party by written notice of not less than 30 days may terminate this Agreement. However, the terms provided in Section 8 shall remain in effect for one year after termination and Recipient’s duties, obligations, prohibitions, and restrictions concerning Confidential Information will remain in effect indefinitely.
notices, requests, demands and other communications that are required or permitted to be given
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the Signing Date.
