NONDISCLOSURE AGREEMENT
1. In connection with the possible interest of the parties in discussing and evaluating potential business transactions, it may be necessary or appropriate for either party to disclose to the other specifications, drawings, data, computer programs, software, marketing and financial or other technical and business information, in whatever form, which the disclosing party considers proprietary ("Information") relating to potential business dealings concerning the desire of the parties to explore and discuss the possibility of working in concert to further their respective business purposes.
2. With respect to Information provided under or in contemplation of this agreement ("Agreement"), the receiving party shall: (a) hold the Information in confidence using the same degree of care as it normally exercises to protect its own proprietary Information, (b) restrict disclosure and use of the Information solely to those employees (including any contract employees or third party consultants and/or attorneys) of such party with a need-to-know, and not disclose it to any other parties, (c) advise those employees and consultants of their obligations with respect to the Information, (d) not copy, duplicate, reverse engineer or decompile anything provided hereunder, and (e) use the information only for evaluation purposes.
3. The receiving party shall have no obligations to preserve the proprietary nature of any Information which: (a) was previously known to the receiving party free of any obligation to keep it confidential, or (b) is or becomes publicly available, by other than unauthorized disclosure, or (c) is independently developed by the receiving party, or (d) is disclosed to third parties by the disclosing party without restriction, or (e) is received from a third party whose disclosure would not violate any confidentiality obligation.
4. The Information shall be deemed the property of the disclosing party and, upon request, the receiving party will return all Information in tangible form or destroy all such Information and certify such destruction in writing.
5. Nothing in this Agreement or in any disclosure of Information hereunder shall be construed as (a) granting or conferring any rights by license or otherwise in any Information, (b) creating warranties or representations of any kind in connection with the Information, (c) constituting or implying any representation or commitment as to the development or availability of commercial products, features or services, (d) constituting or implying any announcement of products, services, features, delivery or any other commercial factor, (e) soliciting any business or organizational changes or incurring any obligations of any kind not specified herein, or (f) prohibiting either party from proceeding independently to develop services or product competitive with those involved herein and/or associating themselves with competitors of the other party for purposes substantially similar to those involved herein.
6. This Agreement may not be assigned by either party without the prior written consent of the other, except by Elsevier to its affiliates, and any such purported assignment shall be void.
7. All obligations undertaken hereunder shall survive any termination of this Agreement. If this Agreement is or becomes ancillary to another contract this Agreement shall be deemed incorporated therein by reference unless such contract explicitly provides otherwise with specific reference to this Agreement; thereupon, each party shall be permitted to use any Information disclosed hereunder to the extent necessary for its performance under such other contract. Subject to Paragraph 9 below, the obligations hereunder shall in all other respects survive the termination of such other contract.
8. This Agreement may be terminated by either party upon thirty (30) days prior written notice to the other. The obligation to protect the confidentiality of Information received prior to such termination shall survive for a period of three (3) years from the date(s) of respective disclosures made hereunder. Neither this Agreement nor any prior or subsequent oral statements by either party constitutes or creates, and shall not constitute or create, any legally binding or enforceable obligation on the part of any party to this Agreement other than as provided by this Agreement. Except as set forth in this Agreement, no further legally binding obligation shall arise except by the execution and delivery of an agreement containing such terms and conditions of the proposed transaction as shall have been agreed upon by the parties, and then only in accordance with the terms and conditions of such agreement. Such agreement shall be subject to approval of the Board of Directors of both parties by means of signature of a member of the Board of Directors or an executive officer. Both parties herewith agree that in a situation where one of the parties decides, regardless the moment or the reason of such decision, not to continue the negotiations of the agreement no legally binding or enforceable obligation shall arise to reimburse the other party for any fees, expenses, costs or damages.
9. This Agreement supersedes any prior oral or written understandings and constitutes the entire Agreement between the parties with respect to its subject matter; and no modification, amendment or waiver thereof shall be effective unless in writing and signed by both parties.
10. Regardless of the place of physical execution of this Agreement, or of its delivery, this Agreement shall be treated as though executed within the Netherlands (the “Governing State”) and shall be governed and interpreted according to the laws of that country or state; and the parties irrevocably submit to the jurisdiction of the courts of the Governing State with respect to all disputes or matters arising out of or pertaining to this Agreement.
