Common use of Proprietary Rights Confidentiality Clause in Contracts

Proprietary Rights Confidentiality. 3.1 User acknowledges that the Software and the related documentation, embody valuable confidential and proprietary information of TTG, the development of which required the expenditure of considerable time and money by TTG, and are protected by United States copyright law and international treaty. User shall treat such information so received in confidence and shall not use, copy, disclose, nor permit any of its personnel (excepting those employees with a “need to know”) to use, copy, or disclose the same, or the existence of same, for any purpose that is not specifically authorized under this Agreement. By virtue of this Agreement, User acquires only the non-exclusive right as described above to receive the services provided by TTG through the use of its proprietary Software and related documentation, and does not acquire any rights of ownership in such materials. TTG, or its licensor, at all times retain all right, title and interest in the Software, related documentation, and, subject to Section 2.5 above, any derivatives thereof. 3.2 TTG acknowledges and agrees that User Data is, or will be and remain, the exclusive property of User and shall be deemed valuable confidential and proprietary information of User. TTG hereby waives any interest, title, lien or right to any such data. All User Data shall be used by TTG only as necessary to perform its obligations hereunder. In no event shall User Data be (i) disclosed, sold, assigned, leased, or otherwise provided to any party other than User, or (ii) commercially exploited by or on behalf of TTG, its affiliates, employees, subcontractors or agents. Upon expiration or termination of this Agreement for any reason or upon request by User, all User Data shall be returned to User in the media and form requested by User, and TTG shall erase or destroy all User Data remaining in TTG’s possession or control. 3.3 User recognizes and acknowledges that any unauthorized use or disclosure of the Software by User may cause TTG irreparable damage for which other remedies may be inadequate, and User hereby acknowledges as proper any request to a court of competent jurisdiction by TTG for injunctive or other equitable relief seeking to restrain such unauthorized use or disclosure. 3.4 TTG and User acknowledge that as a result of the performance of their respective responsibilities under this Agreement, User will obtain access to confidential and proprietary information of TTG and TTG will obtain access to confidential and proprietary information concerning User’s business, customers, methodologies and strategies (all such information, with respect to each party, the “Confidential Information”). All such Confidential Information of the other party shall be deemed to be confidential and proprietary unless such Confidential Information is; (i) is already known to the receiving party free of any restriction at the time it is obtained from the disclosing party; (ii) is subsequently learned from an independent third party free of any restriction and without breach of this Agreement; (iii) is or becomes publicly available through no wrongful act of either party; (iv) is independently developed by one party without reference to any Confidential Information of the other; or (v) is required to be disclosed pursuant to a requirement of a governmental agency or law so long as the parties provide each other with timely written prior notice of such requirements. 3.5 TTG and User shall not use any of the other party’s Confidential Information for any purpose other than to perform their respective responsibilities under this Agreement. TTG and User shall each take the same measures to protect the Confidential Information of the other party received by it as it prudentially should take with respect to its own Confidential Information, including, but not limited to, instructing its employees, vendors, agents, and independent contractors of the foregoing and requiring them to be bound by appropriate confidentiality agreements. Nothing in this Agreement shall be deemed to prevent TTG or User from providing information to their respective independent contractors who are retained to assist in the performance of such party’s obligations hereunder provided that the conditions set forth herein are complied with by such party and its independent contractors and any such independent contractor is not a competitor of the other party. Notwithstanding the foregoing, in the event that TTG seeks public or private financing, TTG will provide User with prior written notice of any proposed disclosure regarding this Agreement, (including the Exhibits hereto) which notice shall specifically identify the information to be disclosed, the manner of disclosure and the parties to whom TTG intends to seek such disclosure, and no such proposed disclosure shall be made in connection therewith, without User’s prior approval, which approval shall not be unreasonably withheld. User shall provide its comments to title proposed disclosure within ten (10) days of its receipt of the foregoing notice. In that connection, the parties will cooperate in seeking and jointly produce an acceptable redacted version of the Agreement (including Exhibits thereto) and the parties will use good faith reasonable efforts to obtain acceptable confidential treatment from any governmental agency or self regulatory authority and/or acceptable confidentiality agreements form any applicable non-governmental parties, in each case sufficiently protective of each party’s Confidential Information. 3.6 Neither party shall issue a press release or make any public statement announcing this relationship until such press release or public statement has been mutually agreed. Any publicity or press release relating to this Agreement must be received in writing for review and approval of the other party and shall not be released unless or until written approval is received from the other party. 3.7 The parties acknowledge that, in the event of a breach of Section 3.2, 3.3, 3.4, or 3.5 by either party, the other party will likely suffer irreparable damage that cannot be fully remedied by monetary damages. Therefore, both parties agree that either party shall be entitled to seek and obtain injunctive relief against any such breach in any court of competent jurisdiction and terminate this Agreement immediately upon written notice to the other party. The rights of either party under this section shall not in any way be construed to limit or restrict the right to seek or obtain other damages or relief available under this Agreement or applicable law.