1. National Train Day Associationand its affiliates ("State Chapters And Participating Rail Line Communities"), and ___________________________ and affiliates
("___________") (collectively "Party"
or "Parties"), agree to protect one another’s confidential and
proprietary information as follows:
2. (a) DEFINITION: Information disclosed under, and
subject to, this Agreement ("Information") means:
"Information" also means information – even if not marked
"confidential" or "proprietary" – that, by its nature, is confidential,
non-public, and proprietary to the disclosing Party.
(b) PURPOSE: The Party receiving Information will make
use of it solely (i) to evaluate a potential business transaction between the
Parties, and (ii) to perform its obligations under any subsequently executed
agreement between them.
3. This Agreement governs all Information, in any context,
disclosed between the Effective Date and three (3) years thereafter. The
Parties’ nondisclosure obligations will survive for three (3) years from the
date Information is last disclosed. The Parties do not intend this Agreement to
grant any right (license or otherwise), in or to any Information. Neither Party
will disclose the other’s Information to a third party (other than to the
receiving Party’s subsidiary, agent, or subcontractor who has a need to know,
and who is expressly bound by the terms of this Agreement). Each Party will
protect the other’s Information from unauthorized or inadvertent use,
disclosure, dissemination or publication, using the same degree of care – but
not less than a reasonable degree of care – as each Party uses to protect its
own confidential information. On completion, termination or abandonment of this
Agreement, or at any time on written request, each Party will cease using the
other’s Information, return all items and copies of Information, and destroy any
writing including or making reference to the Information.
4. This Agreement imposes no obligation on either Party with
respect to Information (a) in the possession of, or known by, the receiving
Party prior to its receipt from the disclosing Party, through no breach of this
Agreement or other wrongful act of the receiving Party; (b) that is or becomes
public knowledge through no breach of this Agreement or other wrongful act of
the receiving Party; (c) rightfully received by the receiving Party from a third
party who has no obligation to maintain the confidentiality of such information;
or (d) independently developed by the receiving Party without use of the
disclosing Party’s Information.
5. On condition of prompt prior notice to the other, either
Party may disclose the other’s Information where disclosure is (a) compelled
pursuant to a legal proceeding, or (b) otherwise required by law. In either
case, the Party required to divulge the Information will: (i) give the
disclosing Party sufficient notice so as to allow it to seek legal protection
against release of Information, and (ii) use reasonable efforts to obtain
confidentiality treatment for the Information to be disclosed.
6. INFORMATION IS DELIVERED "AS IS", AND ALL REPRESENTATIONS
AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING FITNESS FOR A PARTICULAR PURPOSE,
MERCHANTABILITY, AND NONINFRINGEMENT, ARE HEREBY DISCLAIMED. The receiving Party
does not acquire any rights in Information, except the limited right to use
Information as described above. Neither Party has an obligation to sell or
purchase any item from the other Party. Nothing in this Agreement is intended to
be a representation that the receiving Party will not develop or acquire
information that is the same as, or similar to, Information, provided that the
receiving Party does not do so in breach of this Agreement. The receiving Party
agrees that (a) any breach by it of this Agreement will result in irreparable
harm to the disclosing Party for which damages are an inadequate remedy; and (b)
hereby waives the adequacy-of-damages defense to disclosing Party’s effort to
seek equitable relief.
7. This Agreement constitutes the entire agreement between the
Parties concerning nondisclosure of Information. Any modification of this
Agreement must be in writing and signed by an authorized representative of each
Party. If a provision of this Agreement is held by a court of competent
jurisdiction to be unenforceable, that provision will be severed, and the
remainder of this Agreement will continue in full force and effect. All State With Boundaries of United States
law – excluding its conflict of laws principles – will govern the construction
and interpretation of this Agreement.