1. INFORMATION. In this Agreement, "Information" means all written information or oral information, whatsoever provided to Recipient; any entity controlled by, in control of, or under common control with Recipient or the directors, officers, employees, agents, or advisors of any of the foregoing entities (such entities and persons collectively the "Recipient's Affiliates") by or through USER ; any entity controlled by, in control of, or under common control with USER ; or the directors, officers, employees, agents, or advisors of any of the foregoing entities (such entities and persons collectively the "USER 's Affiliates"), whether provided directly, indirectly, orally, electronically, in writing, or by any other means. Information shall include without limitation the following: (a) information concerning the financial, business, or other affairs of USER or USER 's Affiliates; (b) the facts that such information has been delivered to Recipient and that a possible transaction with USER is under consideration by Recipient; and (c) the terms, conditions, status, or other facts with respect to any such transaction or the services to be rendered.
2. PERMITTED USE. Recipient agrees that the Information shall be used solely for the purpose of evaluating a possible transaction between USER and Recipient or for performing services for USER. It shall not be used for any other business, competitive, or commercial purpose, nor in any way detrimental to USER. The Information shall be kept strictly confidential by Recipient; provided, however, that (a) such of the Information may be disclosed to Recipient's Affiliates to the extent such Recipient's Affiliates need to know such Information for the purpose of evaluating a possible transaction between USER and Recipient or performing services for USER (it being understood that Recipient shall inform such Recipient's Affiliates of the confidential nature of the Information and shall cause them to each agree to treat such Information in accordance with this Agreement), (b) any other disclosure of such Information may be made to which USER expressly consents in writing; (c) such information which is or becomes publicly available, other than as a result of a breach of this Agreement; and (d) such information which is or becomes lawfully available to the Recipient from any third party free from any confidentiality obligations or restrictions. Without limiting the generality of the confidentiality requirements imposed upon Recipient, Recipient is aware that the Information may be subject to the requirements of the Family Educational Rights and Privacy Act ("FERPA") and the Health Insurance Portability and Accountability Act ("HIPAA"). Recipient will comply with all applicable laws, including HIPAA and FERPA. Recipient agrees that no right or license is granted to Recipient or Recipient's Affiliates in relation to the Information except for the use expressly permitted under this Agreement. Recipient's confidentiality obligations under this Paragraph 2 shall survive termination of this Agreement.
3. CONTACTS. Except as might be required in connection with the contemplated transaction with USER and except as may be permitted in writing by USER, Recipient agrees not to directly or indirectly contact any of USER 's officers, directors, employees, agents, contractors, suppliers or customers, or any other person, firm, or entity regarding the Information, USER or USER 's Affiliates, or this Agreement. In addition, for a period of one year from the termination date of the Database Analysis Agreement, Recipient shall not solicit for employment any officer, director or employee of USER or any of USER 's Affiliates without USER 's prior written approval.
4. DISPOSITION. In the event that Recipient determines not to pursue a transaction with USER or perform services for USER, or immediately upon written demand by USER, whichever occurs first, Recipient shall return the Information to USER, together with any copies, extracts, or other reproductions of the Information. Any Information contained in any work papers, memoranda, other writings, or electronic data prepared by Recipient or Recipient's Affiliates shall be destroyed upon termination of negotiations between Recipient and USER or immediately upon USER 's written demand, whichever occurs earlier, save for any Information which is or becomes publicly available other than as a result of a breach of this Agreement, or any such information which is or becomes lawfully available to the Recipient from any third party free from any confidentiality obligations or restrictions.
5. DISCLAIMERS. Except as expressly set forth in any representations or warranties made to Recipient by USER in any final written agreement regarding the possible transaction (when, as, and if executed) and subject to such limitations and restrictions as may be specified in such final written agreement, Recipient acknowledges and agrees that (a) neither USER nor any of USER 's Affiliates makes any express or implied representation or warranty as to the accuracy or completeness of the Information, (b) Recipient is not entitled to rely upon the accuracy or completeness of the Information and that Recipient will be entitled to rely solely upon Recipient's own investigations, and (c) prior to entering into any possible transaction with USER , Recipient shall conduct its own due diligence investigation regarding such transaction as Recipient deems necessary and prudent.
6. RELIEF. Without prejudice to the rights and remedies otherwise available, including the right to damages, USER shall be entitled to equitable relief by way of injunction, if Recipient breaches or threatens to breach any of the provisions of this Agreement. DonorSearch further indemnifies USER from any losses, damages, fines, penalties and other costs arising from breaches of its data while under the control of DonorSearch.
7. TEST. In the event that USER agrees to submit a Test File to DonorSearch, "Test File" as used herein shall refer to records from USER prospective donor list, prepared and submitted as instructed by DonorSearch. DonorSearch will process the Test File which will be conducted at no charge to the USER and will not create any future obligations by either party unless otherwise negotiated. The purpose of the Test is to allow USER to sample DonorSearch's services for the sole purpose of determining whether USER will proceed to purchase DonorSearch's related product and/or service offerings.
8. NOTICES. All notices hereunder shall be in writing and delivered by hand or sent by certified mail, return receipt requested; facsimile machine; or overnight delivery service to the receiving party at its address set forth below or as otherwise designated by written notice.
If to USER: USER
If to Recipient:
Tedesco and Affiliates, LLC
11245 Dovedale Court
Marriottsville, MD 21104
Attention: Bill Tedesco, President
Notice given by mail shall be considered to have been given when received. Notice given by telegram shall be considered to have been given on delivery of such telegram to a telegraph office with charges therefore paid by or to be billed to the sender. Notice given by facsimile machine or email shall be considered to have been given on the date receipt thereof is electronically acknowledged and the sender confirms delivery by telephone. Notice given by an overnight delivery service shall be considered to have been given on the next business day.
9. ASSIGNMENT; BINDING AGREEMENT. Any attempted assignment of rights or benefits under this Agreement by Recipient without USER's express prior written consent shall be void. Without limiting the generality of the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their personal representatives, heirs, successors, and permitted assigns.
10. CONTINUING RELATIONSHIP. Nothing in this Agreement shall impose any obligation upon (a) either party to complete the possible transaction, or to deal with the other, or to enter into any discussions or negotiations, or (b) upon USER to provide any Information with respect thereto.
11. GOVERNING LAW; SITUS. This Agreement and all disclosures of Information made hereunder shall be construed in accordance with and governed exclusively by the laws of the State of New York applicable to contracts entered into and to be fully performed herein. The parties hereby submit themselves to the exclusive personal jurisdiction of the courts of the State of New York for the adjudication of any dispute arising from or in any way connected with this Agreement.
12. SEVERABILITY. If any provision hereof as applied to either party or to any circumstance shall be adjudged by a court of competent jurisdiction to be void or unenforceable, the same shall in no way affect any other provision hereof, the application of such provision in any other circumstances, or the validity or enforceability hereof.
13. REMEDIES CUMULATIVE; NO WAIVER. All remedies, rights, undertakings, obligations, and agreements contained in this Agreement shall be cumulative, and none of them shall be in limitation of any other remedy, right, undertaking, obligation, or agreement of either party, whether under this Agreement or otherwise. The failure of any party to insist upon strict performance of any provision of this Agreement shall not be construed as a waiver of any subsequent breach of the same or similar nature.
14. PARAGRAPH HEADINGS. The titles of the paragraphs of this Agreement are for convenience only and shall not in any way affect the interpretation of any paragraphs of this Agreement or of the Agreement itself.
15. ENTIRE AGREEMENT; MODIFICATION; COUNTERPARTS. This Agreement constitutes the entire agreement between the parties and supersedes any prior or contemporaneous oral or written representation with regard to the subject matter hereof. This Agreement may not be modified except by a writing signed by both parties. This Agreement may be executed in counterparts and by facsimile.
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