Confidentiality

Use of Confidential Information

The parties, from time to time, may disclose Confidential Information (as defined below) to one another. Accordingly, each party agrees as the recipient (the “Receiving Party”) to keep strictly confidential all Confidential Information provided by the other party (the “Disclosing Party”). The Receiving Party further agrees to use the Confidential Information of the Disclosing Party solely for the purpose of exercising its rights and fulfilling its obligations under this Agreement. The Receiving Party may not use for its own benefit or otherwise disclose any of the Confidential Information of the Disclosing Party for any other purpose.

Definition of Confidential Information

“Confidential Information” means, subject to Section 6.3 herein, information in any form, oral, graphic, written, electronic, machine-readable, or hard copy consisting of (i) any non-public information provided by the Disclosing Party, including but not limited to, all of its inventions, designs, data, source and object code, programs, program interfaces, know-how, trade secrets, techniques, ideas, discoveries, marketing and business plans, pricing, profit margins, and/or similar information; (ii) any information which the Disclosing Party identifies as confidential information or the Receiving Party should understand from the context of the disclosure, to be confidential information; or (iii) any information that the parties otherwise treat as confidential by their actions. Without limiting the generality of the foregoing, Customer acknowledges and agrees that ASHLIN’s “know-how” constitutes Confidential Information.

Exclusions

The term “Confidential Information” will not include information that (a) is publicly available at the time of disclosure by the Disclosing Party; (b) becomes publicly available by publication or otherwise after disclosure by the Disclosing Party, other than by breach of this Section 6 by the Receiving Party; (c) was lawfully in the Receiving Party’s possession, without restriction as to confidentiality or use, at the time of disclosure by the Disclosing Party; (d) is provided to the Receiving Party without restriction as to confidentiality or use by a third party without violation of any obligation to the Disclosing Party, or (e) is independently developed by employees or agents of the Receiving Party who did not access or use the Confidential Information.

Protection of Confidential Information

The Receiving Party will inform those employees and consultants who have access to the Confidential Information of the Disclosing Party that such information is confidential and proprietary information of a third party. The Receiving Party agrees to disclose the Confidential Information of the Disclosing Party to its employees and consultants solely for the purpose of exercising the Receiving Party’s rights and fulfilling the Receiving Party’s obligations hereunder and solely to those employees and consultants who are under confidentiality obligations at least as restrictive as those set forth herein. The Receiving Party will ensure compliance by its employees and consultants having access to the Confidential Information of the Disclosing Party and will be responsible for any breach by any such parties. The Receiving Party will treat the Disclosing Party’s Confidential Information with the same degree of care as the Receiving Party treats its own highly confidential and proprietary information, but in no case will such standard of care be less than a reasonable standard of care, taking into account the nature of the Confidential Information at issue. The Receiving Party will notify the Disclosing Party without delay if it has reason to believe that any Confidential Information of the Disclosing Party has been used or disclosed in violation of this Section.

Return of Confidential Information

Promptly upon the written request of the Disclosing Party or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy all copies of the Disclosing Party’s Confidential Information. ASHLIN will, however, maintain a copy of any Confidential Information necessary to support its work under this Agreement for reference and archive purposes, in accordance with applicable professional standards. The parties acknowledge that in the case of Confidential Information communicated through email or that has been scanned or otherwise stored electronically by the Receiving Party, the Receiving Party’s deletion of (a) email messages from individual mailboxes, or (b) documents from network or individual hard drives will not result in the removal of all copies of such information from the Receiving Party’s back-up or archival systems. 

Record Retention

ASHLIN maintains a record retention policy for documents, including documents in electronic form, in its possession from Customer and otherwise. Documents tendered to ASHLIN in tangible form may be stored solely in electronic form. A copy of ASHLIN’s policy is available to Customer upon request. ASHLIN will exert commercially reasonable efforts to follow its record retention policy and will destroy documents in accordance with its policy, unless otherwise instructed by the Customer or as provided herein.

Legal Proceedings

In the event that the Receiving Party becomes legally compelled to disclose any of the Confidential Information of the Disclosing Party, the Receiving Party will provide the Disclosing Party with prompt notice (to the extent such notice is legally permissible) so that the Disclosing Party may seek a protective order or other appropriate remedy.

Remedy for Breach of Confidentiality

Each party acknowledges that the other party will not have an adequate remedy in the event that it breaches the provisions of this Agreement regarding Confidential Information and that such party may suffer irreparable damage and injury in such event. The breaching party agrees that the non-breaching party, in addition to seeking any other available rights and remedies as may apply, will be entitled to seek an injunction restraining the breaching party from committing or continuing such violation without the necessity of posting a bond or other security.

Survival

This Section 6 of the Agreement shall survive the termination or expiration of this Agreement for a period of one (1) year; provided, however, that with respect to any Confidential Information that has been designated by the Disclosing Party as “trade secret” information, the confidentiality obligations under this Section 6 shall remain in effect for so long as such Confidential Information retains its trade secret status under applicable law.