|Omnivision Multimedia, Inc. (the 'Provider') known as
| THE FIRST PART
|- AND -
|OMNIAC Site Member (the 'Recipient of Market Calls and FLASH UPDATES.')
|OF THE SECOND PART
IN CONSIDERATION OF and as a condition of
the Provider providing the Confidential Information to the Recipient in addition to other valuable consideration, the receipt and sufficiency of which consideration is hereby acknowledged, the parties to this Agreement agree as follows:
- By agreeing to become an OMNIAC Member, the Provider and the Recipient enter into a confidentiality agreement
with regard to the OMNI futures market recommendations. (the 'Permitted Purpose').
- In connection with the Permitted Purpose, the Recipient will receive certain confidential information (the 'Confidential Information').
- All written and oral information and materials disclosed or provided by the Provider to the Recipient under this Agreement is Confidential Information regardless of whether it was provided before or after the date of this Agreement or how it was provided to the Recipient.
- 'Confidential Information' means all data and information relating to the business of the Provider, including proprietary and trade secret technology and Production Processes, Other Proprietary Data, Business Operations, Computer Software, Computer Technology, Marketing and Development Operations, and Customers.
- Confidential Information will also include any information which has been disclosed by a third party to the Provider and governed by a non-disclosure agreement entered into between the third party and the Provider. Confidential Information will not include information that:
- is generally known in the industry of the Provider;
- is now or subsequently becomes generally available to the public through no wrongful act of the Recipient;
- the Recipient rightfully had in its possession prior to receiving the Confidential Information from the Provider;
- is independently created by the Recipient without direct or indirect use of the Confidential Information;
- the Recipient rightfully obtains from a third party who has the right to transfer or disclose it.
- 'Production Processes' means processes used in the creation, analysis and publication of the provided market information, including but not limited to formulas, carts, patterns, models, methods, techniques, processes, procedures, programs, and designs;
- 'Other Proprietary Data' means information relating to the Provider's proprietary rights prior to any public disclosure of such information, including but not limited to the nature of the proprietary rights, production data, technical and engineering data, technical concepts, market data and related results, simulation results, the status and details of research and analysis of market recommendations, and information regarding acquiring, protecting, enforcing and licensing proprietary rights (including patents, copyrights and trade secrets);
- 'Business Operations' means internal personnel and financial information, vendor names and other vendor information (including vendor characteristics, services and agreements), purchasing and internal cost information, internal services and operational manuals, and the manner and methods of conducting the Provider's business;
- 'Computer Software' means all sets of statements, instructions or programs, whether in human readable or machine readable form, that are expressed, fixed, embodied or stored in any manner and that can be used directly or indirectly in a computer ('Computer Programs'); any report format, design or drawing created or produced by such Computer Programs; and all documentation, design specifications and charts, and operating procedures which support the Computer Programs;
- 'Computer Technology' means all scientific and technical information or material pertaining to any machine, appliance or process, including specifications, proposals, models, designs, formulas, test results and reports, analyses, simulation results, tables of operating conditions, materials, components, industrial skills, operating and testing procedures, shop practices, know-how and show-how;
- 'Marketing and Development Operations' means marketing and development plans, price and cost data, price and fee amounts, pricing and billing policies, quoting procedures, marketing techniques and methods of obtaining business, forecasts and forecast assumptions and volumes, and future plans and potential strategies of the Provider which have been or are being discussed; and
- 'Customers' means names of customers and their representatives, contracts and their contents and parties, customer services, data provided by customers and the type, quantity and specifications of products and services purchased, leased, licensed or received by clients of the Provider.
- The Recipient will not sell, publish, distribute or dispurse the provided Confidential Information for profit or gain in any way shape or form.
- Except as otherwise provided in this Agreement, the Recipient must keep the Confidential Information confidential.
- Except as otherwise provided in this Agreement, the Confidential Information will remain the exclusive property of the Provider; and will only be used by the Recipient for the Permitted Purpose. The Recipient will not use the Confidential Information for any purpose which might be directly or indirectly detrimental to the Provider or any of its affiliates or subsidiaries.
- The obligations to ensure and protect the confidentiality of the Confidential Information imposed on the Recipient in this Agreement and any obligations to provide notice under this Agreement will survive the expiration or termination, as the case may be, of this Agreement and those obligations will last indefinitely.