Confidentiality Terms
These Confidentiality Terms represent the agreed rights and obligations (the “Agreement”) of ICON Aircraft, Inc. and the Supplier identified on the Purchase Order into which these terms are incorporated by reference with respect to the provision of Confidential Information by ICON to Supplier. Capitalized terms not defined herein shall have the meanings ascribed to them in the Purchase Order.
In consideration of the mutual promises and covenants contained herein and in the Purchase Order, the parties hereto agree as follows:
- Confidential Information
- “Confidential Information” means any proprietary information that is disclosed by ICON to Supplier which relates to ICON’s business (including without limitation, business plans, financial data, customer information, marketing plans, etc.), technology (including without limitation, technical drawings, designs, schematics, algorithms, technical data, product plans, research plans, software design and architecture, computer programs, computer code, modules, scripts, algorithms, features and modes of operations, etc.), techniques, methodologies, testing procedures, analysis and performance information, user documentation, internal documentation and features, products, services, strategies, trade secrets, know-how, formulas, processes, ideas and inventions (whether or not patentable), as well as names and expertise of employees, consultants, customers and prospects, know-how which previously has been or is presently or subsequently disclosed to Supplier.
- Confidential Information shall not include any information that: (i) is or falls into the public domain without fault of Supplier; (ii) Supplier can show by written documentation was in its possession without any obligation of confidentiality prior to receipt thereof from ICON; or (iii) is obtained by Supplier from a third party without any obligation of confidentiality to ICON.
- “Confidential Information” means any proprietary information that is disclosed by ICON to Supplier which relates to ICON’s business (including without limitation, business plans, financial data, customer information, marketing plans, etc.), technology (including without limitation, technical drawings, designs, schematics, algorithms, technical data, product plans, research plans, software design and architecture, computer programs, computer code, modules, scripts, algorithms, features and modes of operations, etc.), techniques, methodologies, testing procedures, analysis and performance information, user documentation, internal documentation and features, products, services, strategies, trade secrets, know-how, formulas, processes, ideas and inventions (whether or not patentable), as well as names and expertise of employees, consultants, customers and prospects, know-how which previously has been or is presently or subsequently disclosed to Supplier.
- Nondisclosure and Nonuse Obligations
- Confidential Information of ICON shall be used by Supplier solely for the purpose of fulfilling the Purchase Order and shall not be used for any other purpose. Supplier shall hold Confidential Information in strictest confidence at all times and shall not disclose Confidential Information without the prior written consent of ICON, which consent may be withheld in ICON’s sole discretion. Supplier may disclose Confidential Information to Supplier’s employees on a need-to-know basis provided that Supplier shall have executed appropriate written agreements with its employees to ensure compliance with all the provisions of this Agreement. Supplier agrees to take all reasonable measures to protect the Confidential Information from falling into the public domain or the possession of persons other than those persons authorized to have any such Confidential Information, which measures shall include the highest degree of care that Supplier utilizes to protect its own information of a similar nature, but in no event less than a reasonable degree of care. Supplier shall be responsible to ICON for any violations of this Agreement by Supplier Personnel.
- The relationship between the parties shall be considered confidential, and no disclosure shall be made by the parties that the parties have entered into this Agreement or have dealings relating to Confidential Information.
- Nothing in this Agreement shall prohibit Supplier from disclosing Confidential Information if legally required to do so by judicial or governmental order or in a judicial or governmental proceeding (“Required Disclosure“); provided that Supplier shall (i) give ICON prompt written notice of such Required Disclosure prior to disclosure; (ii) cooperate with ICON in the event that it elects to contest such disclosure or seek a protective order with respect thereto, and (iii) in any event only disclose the exact Confidential Information, or portion thereof, specifically requested by the Required Disclosure.
- Supplier agrees to comply with the U.S. Foreign Corrupt Practices Act (regarding among other things, payments to government officials) and all export laws, restrictions, national security controls and regulations of the United States or other applicable foreign agency or authority, and not to export or re-export, or allow the export or re-export or any Confidential Information or any direct product thereof in violation of any such restrictions, laws or regulations.
- Confidential Information of ICON shall be used by Supplier solely for the purpose of fulfilling the Purchase Order and shall not be used for any other purpose. Supplier shall hold Confidential Information in strictest confidence at all times and shall not disclose Confidential Information without the prior written consent of ICON, which consent may be withheld in ICON’s sole discretion. Supplier may disclose Confidential Information to Supplier’s employees on a need-to-know basis provided that Supplier shall have executed appropriate written agreements with its employees to ensure compliance with all the provisions of this Agreement. Supplier agrees to take all reasonable measures to protect the Confidential Information from falling into the public domain or the possession of persons other than those persons authorized to have any such Confidential Information, which measures shall include the highest degree of care that Supplier utilizes to protect its own information of a similar nature, but in no event less than a reasonable degree of care. Supplier shall be responsible to ICON for any violations of this Agreement by Supplier Personnel.
- General Provisions
- Ownership of Confidential Information. All Confidential Information is and shall remain the property of ICON. Nothing contained in this Agreement shall be construed as granting or conferring any rights by license or otherwise, either express, implied or by estoppel, to any Confidential Information, or under any patent, copyright, trademark or trade secret of ICON.
- No Warranties. All Confidential Information furnished under this Agreement is provided by ICON “AS IS, WITH ALL FAULTS.” ICON makes no warranties, express or implied, regarding the accuracy, completeness, performance, merchantability, fitness for use, or other attributes of Confidential Information. ICON makes no representations or warranties with respect to the non-infringement of third party patents, copyrights, trademarks or trade secrets with respect to Confidential Information.
- Return of Confidential Information; Survival. Immediately upon the (i) the termination of the parties relationship, or (ii) request by ICON at any time, Supplier shall return to ICON all copies or extracts of the Confidential Information, in any medium, or certify, in writing by an authorized officer of Supplier, the destruction of the same to ICON. Notwithstanding return of the copies and extracts, Supplier’s obligations under Section 2 and the general provision of this Section 3 shall survive and continue until the Confidential Information is in the public domain under Section 1(b).
- Assignment. Supplier may not assign or transfer this Agreement or any of its rights hereunder or delegate any of its obligations hereunder (whether by merger, operation of law or in any other manner) without the prior written consent of ICON, which consent may be withheld in ICON’s sole discretion. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon the parties, their permitted successors and permitted assigns.
- Privileged Information. To the extent that any Confidential Information may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential Information provided by ICON that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement and under the joint defense doctrine. Nothing in this Agreement obligates ICON to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.
- Scope of this Agreement. Nothing contained in this Agreement shall be construed to require ICON to disclose Confidential Information.
- Equitable Relief. Each party acknowledges and agrees that due to the unique nature of ICON’s Confidential Information, there can be no adequate remedy at law for any breach of Supplier’s obligations hereunder, that any such breach may allow Supplier or third parties to unfairly compete with ICON resulting in irreparable harm to ICON and, therefore, that upon any such breach or any threat thereof, ICON shall be entitled to appropriate equitable relief in addition to whatever remedies it might have at law. Supplier will notify ICON in writing immediately upon the occurrence of any such unauthorized release or other breach of which Supplier is aware.
- Severability. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect.
- Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the treatment of Confidential Information exchanged in connection with the Purchase Order and supersedes any prior understanding and agreements between and among them respecting the subject matter hereof. It shall not be modified except by a written agreement signed by both parties.
- Waivers. No delay, failure or waiver of either party’s exercise or partial exercise of any right or remedy under this Agreement shall operate to limit, impair, preclude, cancel, waive or otherwise affect such right or remedy. No waiver of any provision of this Agreement shall constitute a waiver of any other provision(s) or of the same provision on another occasion.
- Ownership of Confidential Information. All Confidential Information is and shall remain the property of ICON. Nothing contained in this Agreement shall be construed as granting or conferring any rights by license or otherwise, either express, implied or by estoppel, to any Confidential Information, or under any patent, copyright, trademark or trade secret of ICON.