EC-Council (“Disclosing Party”) intends to make available or have made available to the other party (“Receiving Party”) certain proprietary and confidential information including but not limited to members database, softcopies of courseware, power points, notes and research materials in connection with the management and training of the EC-Council certification programs between the parties (“Business Purpose”), in accordance with the terms of this Confidentiality and Non-Disclosure Agreement (“Agreement”). Such information so provided to the Receiving Party or its affiliates or its or their officers, employees, directors, agents or representatives (collectively, “Representatives”), whether provided before or after the date hereof and whether written or oral, together with all manuals, documents, memoranda, notes, analyses, forecasts and other materials prepared by Receiving Party or any of its affiliates or Representatives which contain or reflect, or are generated from, such information shall be collectively referred to herein as the “Confidential Information.” The parties now agree as set forth below.
Receiving Party shall restrict access to the Confidential Information and the proposed terms of any potential transaction to its duly authorized Representatives who need to know such information in furtherance of the Business Purpose. Receiving Party shall further cause its Representatives to hold such information in strict confidence and not to disclose or use such information other than for the Business Purpose. Receiving Party will be responsible for any breach of this Agreement by any of its affiliates or Representatives to the same extent as if such breach were by Receiving Party.
Disclosing Party shall be deemed the owner of all Confidential Information, including all patent, copyright, trademark and other proprietary rights and interests therein. Receiving Party acknowledges and agrees that nothing contained in this Agreement shall be construed as (i) granting any rights in or to any Confidential Information or (ii) obligating either party to enter into an agreement regarding the Confidential Information, unless otherwise agreed to in writing.
“Confidential Information” shall not include information that (i) becomes generally available to the public other than through a disclosure by Receiving Party or any of its affiliates or Representatives; (ii) is lawfully received by Receiving Party or any of its affiliates or Representatives from a third party without restriction and without breach of any applicable confidentiality agreement; (iii) was previously known to or is independently developed by Receiving Party or any of its affiliates or Representatives, or a third party; or (iv) is ordered to be disclosed pursuant to a final binding order of a governmental agency or court of competent jurisdiction, provided that Receiving Party will provide prompt notice of such order to Disclosing Party and cooperate with and assist Disclosing Party in connection with obtaining a protective order at Disclosing Party’s cost and expense.
Upon Disclosing Party’s written request, at any time, any Confidential Information disclosed hereunder and any copies thereof (including, without limitation, all documents, memoranda, notes, analyses, forecasts and other materials prepared by the Receiving Party or its affiliates or Representatives, and all electronically stored copies), will be returned or destroyed.
Receiving Party hereby acknowledges that the remedy at law available to Disclosing Party for a breach of the provisions of this Agreement will be inadequate and that, in addition to any other remedy that Disclosing Party may have, Disclosing Party shall be entitled to an injunction restraining any breach or threatened breach without proof of actual damages.
All Confidential Information shall continue to be subject to the terms of this Agreement until three years from the disclosure thereof. This Agreement shall be governed by and construed in accordance with the laws of the State of New Mexico, without regard to its conflict of law principles.
This Agreement may not be modified except by writing signed by both parties hereto. Neither party hereto may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other. If any provision of this Agreement or any portion thereof shall be held invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall remain in full force and effect, and the affected provisions or portion thereof shall be replaced by a mutually acceptable provision, which comes closest to the economic effect and intention of the parties hereto.