Arrow Networks Legal

This agreement (hereinafter, the “Agreement”), describes the contractual agreement between us, Arrow Networks (“Arrow” or “Company”) and you, the customer (hereinafter, “Receiving Party”). Arrow and Receiving Party may be referred to herein individually as a “Party” or collectively as the “Parties.”

WHEREAS, the Parties herein desire to enter into discussions concerning a potential business relationship (“Proposed Relationship”).

WHEREAS, due to the nature of the Parties and the Proposed Relationship, it is necessary and desirable for the Parties hereto to disclose certain confidential and proprietary information as hereinafter described (“Confidential Information”); and

NOW THEREFORE, the Parties hereto are entering into this mutual Non-Disclosure Agreement (“Agreement”) for the purpose of establishing the terms governing the disclosure of such Confidential Information that one Party (“Disclosing Party”) may disclose to the other Party (“Receiving Party”) in connection with the Proposed Relationship. As used in this Agreement, the term “Receiving Party” includes any of the Receiving Party’s employees or agents.

1. Scope

‍For the purpose of this Agreement, the term “Confidential Information” (hereinafter, “Confidential Information”) shall be defined as all information, in whatever form transmitted, relating to the past, present, or future business affairs of a Party or the Parties, including without limitation, research, development, business plans, operations, or systems, of the Disclosing Party or another party whose information the Disclosing Party has in its possession under obligations of confidentiality, which: (a) is disclosed by Disclosing Party or its Affiliates, as defined herein, to Receiving Party or its Affiliates (each a “Receiving Party Representative”), bearing an appropriate legend indicating its confidential or proprietary nature or otherwise disclosed in a manner consistent with its confidential or proprietary nature; or (b) is produced or developed during the working relationship between the Parties, and which would, if disclosed to competitors of either Party, give or increase such competitors’ advantage over that Party, or diminish that Party’s advantage over its competitors. For purposes of this Agreement, the term Affiliate shall mean any person or entity controlling, controlled by, or under common control with a Party, or acting in behalf of, or as an agent of a Party (“Affiliate”).

Confidential Information shall not include any information of a Disclosing Party that: (a) is or becomes publicly known through no wrongful act of the Receiving Party; (b) is independently developed by the Receiving Party without the use of Confidential Information of the Disclosing Party; (c) is communicated to a third party free of any obligation of confidence with express written consent of the Disclosing Party; or (d) is lawfully required to be disclosed to any government agency or is otherwise required to be disclosed by law, provided that before making such disclosure the Receiving Party shall provide the Disclosing Party an adequate opportunity to interpose an objection or take action to assure confidential handling of such information.

2. Term

This Agreement shall continue in full force and effect for as long as any Confidential Information disclosed hereunder continues to constitute Confidential Information.

3. Non-Disclosure Obligation

‍Unless otherwise agreed to in writing by the Disclosing Party, the Receiving Party, and their attorneys, agrees (a) not to disclose, or permit its Affiliates to disclose, Confidential Information, or the existence of this Agreement and/or the discussions relating to the Proposed Relationship; (b) to use the same degree of care and diligence to protect Confidential Information from disclosure to others as the Receiving Party employs or should reasonably employ to so protect its own information of like confidence (but in no event less than reasonable care); (c) not to use, reproduce or copy the Confidential Information, in whole or in part, except as necessary for the evaluation or conduct of the Proposed Relationship; and (d) to immediately notify the Disclosing Party upon discovery of any loss or unauthorized disclosure of the Confidential Information by the Receiving Party.  Notwithstanding the foregoing, the Receiving Party may disclose the Confidential Information to such of the Receiving Party’s Affiliates or the employees, consultants, legal and tax advisers, and agents of the Receiving Party or its Affiliates (each a “Receiving Party Representative”) which the Receiving Party reasonably and in good faith believes are needed to be involved in the evaluation or performance of the Proposed Relationship, provided such Receiving Party Representative is informed of this Agreement and agrees to be bound by the terms hereof, and the Receiving Party uses best efforts to cause the Receiving Party Representative to observe the terms of this Agreement.  The Receiving Party agrees that a breach of this Agreement by a Receiving Party Representative shall constitute a breach of this Agreement by the Receiving Party. In the event that the Receiving Party is required by applicable law, rule, regulation or lawful order or ruling of any court, government agency or regulatory commission to disclose any Confidential Information, the Receiving Party agrees that it will provide the Disclosing Party with prompt notice of such requirement to enable the Disclosing Party to seek an appropriate protective order or to take steps to protect the confidentiality of such Confidential Information, and in the event such protection is not obtained or the Disclosing Party waives compliance with the provisions of this Agreement, the Receiving Party agrees that it will disclose only that portion of the Confidential Information which it is legally required to disclose.

4. Destruction of Confidential Information

All Confidential Information which is disclosed in tangible form by a Disclosing Party to the Receiving Party under this Agreement (including, without limitation, documents, writings, designs, drawings, specifications, and information incorporated in computer software or held in electronic storage media) shall remain the property of Disclosing Party. Upon the expiration or termination of this Agreement, or upon request of the Disclosing Party, all such Confidential Information shall be returned to Disclosing Party or destroyed promptly and shall not thereafter be retained in any form by the Receiving Party. Receiving Party shall provide a written statement to disclosing party certifying the destruction of all confidential information. The rights and obligations of the Parties under this Agreement shall survive any such return of Confidential Information. If the information is oral, then it shall be presumed by the Receiving Party to be confidential.

5. No additional rights

‍Unless otherwise agreed in writing, the Receiving Party shall not have any rights or obligations respecting the Confidential Information other than those specifically set forth in this Agreement.  Without limiting the generality of any other provision of this Agreement, and unless otherwise agreed in writing: (a) no license is hereby or otherwise granted, directly or indirectly, under any patent, trademark, copyright, trade secret or other proprietary right of the Disclosing Party; and (b) neither Party shall be obligated to disclose information to the other Party or to enter into any further agreements relating to the Proposed Relationship or any information.  Unless otherwise agreed in writing, a Party and its Affiliates may terminate discussions regarding the Proposed Relationship at any time.  The Receiving Party’s obligations under this Agreement respecting the Confidential Information shall survive termination of such discussions.  The Disclosing Party shall have no right to review, copy or otherwise access any studies, reports, or work product prepared by the Receiving Party; however, such studies, reports, and/or work product, shall be deemed as Confidential Information, to the extent such studies, reports, and/or work product reference, describe, and/or encompass the Confidential Information of the Disclosing Party, and shall not be disclosed or disseminated, unless otherwise agreed to, in writing, by the Disclosing Party.

6. Limitations on Liability

‍Disclosing Party shall not have any liability or responsibility for any errors or omissions in its Confidential Information, or for any business decisions made by the Receiving Party in reliance upon any Confidential Information disclosed under this Agreement. The Disclosing Party shall not be liable to the Receiving Party in connection with this Agreement or the subject matter hereof for any indirect, incidental, special, or consequential damages, loss of revenue, cost of capital, or loss of profit or business opportunity, whether such liability arises out of contract, tort (including negligence) strict liability or otherwise; provided however, that the foregoing shall not apply to claims arising from intellectual property infringement or misappropriation of intellectual property rights.

7. Breach

‍The Parties agree that, in the event of a breach or threatened breach of the terms of this Agreement, the Disclosing Party shall be entitled to seek an injunction prohibiting any such breach. Any such relief shall be in addition to and not in lieu of any appropriate relief in the way of money damages. The Parties acknowledge that Confidential Information is valuable and unique, and that disclosure of Confidential Information, in breach of this Agreement, would result in irreparable injury to Disclosing Party. In the event that a legal action is instituted by either Party to interpret or enforce any term of this Agreement, the prevailing party shall be entitled to an award of its reasonable attorneys’ fees.

8. Survival

‍Notwithstanding termination of the Proposed Relationship, or this Agreement, all rights and obligations hereunder shall survive with respect to Confidential Information disclosed prior to such termination. (Confidential and Proprietary)

9. Confidentiality/Nondisclosure

‍Neither Party hereto shall in any way or in any form disclose, publicize or advertise in any manner the discussions that give rise to this Agreement or the discussions or negotiations covered by this Agreement without the prior written consent of the other Party. Without the prior written consent of the Disclosing Party, a Receiving Party, or a Receiving Party Representative shall not use any Confidential Information for any purpose whatsoever except the analysis, investigation and evaluation of the proposed business relationship between the Parties.

10. Non-Solicitation

‍Neither Party hereto may hire any employee of the other Party hereto. This agreement of each Party to refrain from hiring employees of the other Party shall be in effect during the Term of this Agreement and for one (1) year after the termination or expiration of this Agreement and shall expressly survive any termination or expiration of the Agreement.

11. Governing Law

‍This Agreement shall be governed by the laws of the State of Missouri.

12. Severability

‍In the event that any provision of this Agreement is found to be invalid or unenforceable by a court of law having competent jurisdiction to make such a ruling, this shall have no effect of the remaining terms of this Agreement, which shall remain in full force and effect.

13. Headings

‍The headings used in this Agreement are for convenience only and will not be used in interpreting this Agreement.

14. Interpretation

‍Both Parties have had the opportunity to review this Agreement and neither party will be deemed the drafter of this Agreement for the purposes of interpreting any ambiguity in this Agreement.

15. Multiple Counterparts

‍The Parties agree that this Agreement may be signed by manual or facsimile signatures and in counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument.

16. Entire Agreement

‍This Agreement is the complete agreement of the Parties concerning the subject matter hereof and supersedes any prior such agreements. This Agreement may not be amended or in any manner modified except in a writing signed by both Parties.