1. Refokus GmbH and “Business Partners” (the "Parties") will at any time take all possible and reasonable measures to ensure information security and protection of sensitive information. The parties are obliged to secrecy in respect of the following terms (hereinafter referred to as “Terms”).
2. Refokus GmbH and its “Business Partner” have an interest in sharing information, checking data and facilitating discussions. Both parties will attach great importance to the mutual protection of information and will treat it confidentially at all times.
3. “Confidential Information” includes, but is not limited to: (a) business plans, methods and practices; (b) information regarding personnel, customers and suppliers; (c) inventions, processes, methods, products, patent applications and other intellectual property rights; (d) specifications, drawings, sketches, models, samples, tools, computer programs, technical information, software codes and other corresponding or related information.
4. Each party will mark “Confidential Information” as protected and confidential in case of doubt. In the case of information disclosed orally or in written materials that are not marked as confidential, secrecy shall only apply in cases where it is obviously a matter of secrets or insofar as the necessity for confidentiality is pointed out subsequently. Notification of the protected and confidential nature of the information may be given orally, by e-mail, in written correspondence or, if necessary, by other means of communication.
5. As soon as the receiving party ("Recipient") is informed of the proprietary and confidential nature of the “Confidential Information” disclosed by the other party, the “Recipient” shall refrain from disclosing such “Confidential Information” to other third parties without the prior written consent of the disclosing Party. The “Recipient” shall protect such “Confidential Information” from inadvertent disclosure to a third party, using the same care and diligence as it uses to protect its own proprietary and confidential information, but in no event less than reasonable care.“Recipient” shall ensure that any of its employees, officers, directors or agents who have access to the “Confidential Information” disclosed under these “Terms” are informed of its proprietary and confidential nature and are required to comply with these “Terms”. The “Recipient” of “Confidential Information” disclosed under these “Terms” shall promptly notify the disclosing party of any further disclosure of such “Confidential Information” in violation of this Agreement or of any subpoena or other legal process requiring the submission or disclosure of such “Confidential Information”. Refokus GmbH is entitled to pass on “Confidential Information” to particularly trustworthy subcontractors for the processing of orders from the “Business Partner” and/or implementation/execution of the contract with the “Business Partner”. These subcontractors are bound to secrecy comparable to the conditions set out in these “Terms”.
6. All “Confidential Information” disclosed under these “Terms” shall be and remain the property of the disclosing Party, and nothing in this Agreement shall be construed to grant or transfer any rights in such “Confidential Information” to the other Party. The “Recipient” shall comply with any request by the disclosing Party to promptly return or destroy all copies of the “Confidential Information” disclosed under these “Terms” and any notes relating to “Confidential Information”.
7. Nothing in these “Terms” shall be construed to limit the right of either Party to independently develop or acquire products without using the other Party's “Confidential Information”. The disclosing Party acknowledges that the recipient may currently or in the future be developing information internally or may receive from other parties information similar to the “Confidential Information”. Nothing in these “Terms” prohibits “Recipient” from developing or having developed products, concepts, systems or techniques similar to or competing with the products, concepts, systems or techniques considered or contained in the “Confidential Information”, provided that “Recipient” does not breach any of its obligations under these “Terms” in connection with such development.
8. Notwithstanding the foregoing, the parties agree that information shall not be considered “Confidential Information” and the recipient shall not be required to keep such information confidential if such information
a. is already known to the recipient because it has been disclosed to him by a third party, without that third party being under any obligation of confidentiality to the disclosing party;
b. is or becomes publicly known without the recipient, its employees, officers, directors or agents having acted unlawfully;
c. is developed independently by the recipient and without reference to the confidential information disclosed herein;
d. is authorized for release (and only to the extent authorized by the disclosing party) or
e. if disclosure is required by the law, court or governmental authority.
9. Nothing in these “Terms” shall be construed to constitute an agency, partnership, joint venture or similar relationship between the “Parties”.
10. These “Terms” contain the entire agreement between the parties regarding secrecy and in no way creates an obligation for either party to disclose any information to the other party or otherwise.