RECITALS A. The Parties have entered into a separate agreement for services to be performed by Vendor for and on behalf of Imlach(the “Services”); B. In performing the Services, Vendor mayor will have access to Confidential Information (defined herein) bellowing to Imlach or its customers, to which Imlach has a valuable business interest in maintaining the security, secrecy, and privacy; NOW THEREFORE, in exchange for the mutual covenants stated herein and other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the Parties agree that: 1.
ConfidentialInformation. a. As used in this Agreement, the term “Confidential Information” will collectively refer to all information or material heretofore or hereafter disclosed, made available or provided to Vendor or Vendor’s affiliates, subsidiaries, shareholders, partners, members, directors, managers, officers, employees, agents, attorneys, consultants, lenders, investors (current or potential),advisors, or representatives (collectively Representatives) whether written, electronic, oral, or any other medium concerning any aspect of the business or affairs of Imlach or customers, including without limitation, any information or material pertaining to: (a) any purchasing, financial, sales, technical or business information, manufacturing requirements, customer lists and data, or supplier lists and data; (b) any unpatented inventions, ideas, discoveries, designs, trade secrets, unpublished patent applications and other confidential intellectual property, methods, applications, processes, technology, know-how, specifications, drawings, source code, techniques, samples, or materials, including modifications, improvements, or extensions thereof; (c) any information protected by any applicable law, and (d) any third-party confidential information included with, or incorporated in, any of the foregoing, in each case, whether or not reduced to tangible form. Such information shall be Confidential Information whether or not marked or designated as “confidential,” “proprietary,” or the like, but any document marked or designated as “Confidential” “Proprietary”, or the like shall beConfidential Information. Furthermore,Confidential Information may be in any form, including but not limited to, electronic or optical data storage and retrieval mechanisms regardless of whether any such information is protected by applicable trade secret or similar laws. Confidential Information also includes any notes, analyses, compilations, studies, or other material or documents prepared by Vendor or Vendor’sRepresentatives that contain, reflect, or are based, in whole or in part, on any Confidential Information. b.
Exclusions fromConfidential Information. ConfidentialInformation will not include information or material to the extent that such information or material (a) is publicly available or becomes publicly available(other than information that becomes publicly available through the action or fault of Vendor or Vendor’s Representatives in violation of the terms of thisAgreement); (b) was already in Vendor’s possession or known to Vendor before being disclosed or provided to Vendor by or on behalf of Imlach as reflected in writing in Vendor’s files, provided that the source of such information or material was not bound by a contractual, legal, or fiduciary obligation of confidentiality to Imlach or any other person; (c) was or is obtained by Vendor from a third party, provided that such third party was not bound by a contractual, legal, or fiduciary obligation of confidentiality to Imlach or any other party regarding such information or material; or (d) is an analysis or other document independently prepared by Vendor without use of or reliance on any Confidential Information as reflected in writing in Vendor’s files and without otherwise violating the terms of this Agreement. Neither party will disclose to a third party that this Agreement has occurred, without written consent from the other party. c.
Treatment ofConfidential Information. Vendor shall protect Confidential Information during the length of this relationship, and perpetually after the termination of this Agreement, and will only disclose Confidential Information to employees, agents, advisors, contractors, affiliates, or other representatives who need to know the Confidential Information, and who will also be advised and agree to the strict confidentiality of the information. Vendor will not use theConfidential Information for its own commercial gain or for any other purpose than performing the Services for or on behalf of Imlach. Vendor shall employ commercially reasonable efforts to ensure that Confidential Information is not accidentally disclosed to any unauthorized persons or third parties, but in no event shall Vendor use less than the efforts that it employs to protect its own information of a similar type. Upon any unauthorized disclosure of Confidential Information, for any reason, Vendor agrees to give Imlach prompt notice of the disclosure, which shall include: (i)the nature of the information disclosed, (ii) to whom the information was disclosed, and (iii) the circumstances surrounding the disclosure. If Vendor is requested or required (by applicable law, rule, or regulation; oral questions; interrogatories; requests for information; documents in legal proceedings; subpoena; civil investigative demand; or FOIA request or other similar process)to disclose any of the Confidential Information, Vendor must provide Imlach with prompt written notice of any such request or requirement so that Imlach may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. 2. Reporting of anyAdverse Data Security Event. For the purposes of this Agreement, an "Information SecurityEvent" is defined as any situation where there is reasonable belief(or it has been confirmed) that (i) Confidential Information has been lost;(ii) Confidential Information is or has been subject to unauthorized or inappropriate access, use, or misuse; or (iii) the security, confidentiality, or integrity of the Confidential Information is or has been compromised or is threatened to be compromised. Vendor agrees that it will:a. maintain a process to ensure that Information Security Events are reported to appropriate personnel as quickly as possible; b. Upon receipt of information alleging an Information Security Event, Vendor will use reasonable efforts to assess the matter within four (4) hours and promptly with an investigation to verify the extent and cause of the InformationSecurity Event. c. Should an Information Security Event impact Imlach’s Protected Information, Vendor must take reasonable measures to secure all impacted systems so as to permit recovery of any lost information, limit any additional compromise of ConfidentialInformation, allow Imlach to take further actions as may be required by its own internal protocols or applicable law, and/or permit any required further investigation. 3.
Term andTermination. This Agreement shall continue until the termination of the Services. Upon the termination of this Agreement or upon any request from Imlach, Vendor shall return all Confidential Information inits possession, including documents, prototypes, research and or other memoranda or documents, and destroy all copies (including without limitation, any memoranda, document or notes which may have been created by Imlach and which include or incorporate Confidential Information). 4.
Ownership of Information. By disclosing orproviding access to any Confidential Information, Imlach expressly does nottransfer any right, title, and/or interest in and to any of the ConfidentialInformation, and no disclosure of Confidential Information will be construed asa license, assignment or other transfer of any such right, title, and interest to Vendor or any other person. 5.
Indemnification. Vendor agrees to indemnify and hold harmless Imlach and its subsidiaries and affiliates and its or their shareholders, members, partners, directors, officers, employees, and agents from and against any and all claims, causes of action, losses, damages, liabilities, costs, and expenses (including reasonable attorney fees) arising out of or related to the breach or threatened breach of this Agreement by Vendor or its Representatives. 6.
Remedies;Injunctive Relief. The parties agree that, due to the sensitive nature of the Confidential Information, the breach or threatened breach of this Agreement would cause irreparable injury tothe Imlach, and the amount of money damages would be difficult to establish. For this reason, the Parties agree in any suit alleging a breach or threatened breach of this Agreement, the Imlach is entitled to a temporary restraining order, permanent injunction, or other injunctive relief in addition to any other remedies available at law or equity, without any showing of irreparable harm or posting of any bond. 7.
Governing Law: Forum. This Agreement will be construed, performed, and enforced in accordance with, and governed by,the internal laws of the state of Michigan, without giving effect to the principles of conflicts of law thereof. Vendor consents and agrees that all disputes arising out of or related to this Agreement may be heard and determined only by federal or state trial courts located in Michigan or any appellate courts having jurisdiction over such trial courts. 8.
Entire Agreement. Except for the agreement regarding the Services, this Agreement constitutes the completeagreement between the parties hereto regarding the subject matter hereof andsupersedes all prior agreements relating to the subject matter hereof betweenthe parties and will continue in full force and effect until terminated inwriting by the parties. 9.
Headings. The sectionheadings used herein are for reference purposes only and will not in any wayaffect the meaning or interpretation of this Agreement. 10.
Severability. Wheneverpossible, each provision of this Agreement will be interpreted in such a manneras to be effective and valid under applicable law, but if any provision hereofis held to be invalid, illegal, or unenforceable under any applicable Michiganlaw or rule, such provision will be ineffective only to the extent of suchinvalidity, illegality, or unenforceability, without invalidating the remainderof this Agreement. 11.
Amendment; Waiver. This Agreementmay not be modified or amended and no provision hereof may be waived, in wholeor in part, except by a written agreement signed by the party making suchwaiver. No waiver of any breach or default hereunder will be considered validunless in writing, and no such waiver will be deemed a waiver of any otherprovision or any subsequent breach or default of the same or similar nature. 12.
Signatures;Counterparts.This Agreement may be signed by facsimile copy, e-mail, or other electronicmeans, and any such copy will be considered an original for all purposes. This Agreement may be executed in any numberof counterparts, each of which will be deemed an original, but all of whichtaken together will constitute one and the same instrument.
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