FAQs & Policies
If you have any other questions, which I'm sure you will, don't hesitate to contact us.
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General
In short we use an Agile Methodology. In our experience Agile is the most productive and focused methodology that can be applied to any goal oriented deliverable. Whether it be, implementing a technology platform, or executing on a marketing plan, setting timeframes and budget, while letting the requirements change and adapt as the project moves on, gives flexibility with a hard stop. We have found this the most successful process.
We can do both. It really depends on the scope of the project, the resources, technologies, etc. At the end of the day we do both. We are lexible and work with the client to find a win-win for everyone involved.
We can work with your already existing hosting/cloud partner or we can host ourselves. It really depends on the clients preference, and requirements. We use Hostgator, and we work with AWS, Rackspace, and others.
We can manage your companies website. Most of our clients either have us manage their website, build their website, or have a support contract with us to do fixes and changes. We only build and manage Content Management System (CMS) based website such as, Joomla, Wordpress, Druple, Sitecore, and Kentico.
FAQs
We are headquarted in Denver, Colorado. We chose Denver for the lifestyle, mountians, culture, and outdoors. We have resources all over north america, and we are just a skype, plane, trains, and automobile away.
The company was formed by our Founder and Chief Marketing and Technology Officer, Lawrence Battey. It was founded out of solving a problem that is affecting all companies, of all sizes, of all industries, and that is, Integrating your Marketing and Technology efforts. We are in a day and age where this is the must, not the exception. That combined with Lawrence's background in design, creative, development, ERP, CRM, CMS, eCommerce, data analytics, and digital/traditional marketing gave him the vision and insight to build a comapany and solve that problem for clients.
We use a flexible model that leverages our own staff, as well as the best of the best free lancer talent pool, and subcontractor companies that have a bench of tier 1 resources.
As we always work with our clients to help them with their needs, we always flexible with payment schedule. Since we have a varitey of clients with different needs such as, some we have as paid a retainer and T/M, some we have as T/M, some we have as fixed budget. With that said, our typical payment schedule is 30%-50% of project scope up front. The reason for the upfront cost is for T/M to get started, as well as other upfront costs such as, Technologies, Subscriptions, Google Adwords, Display Advertisement, Media Buys, etc. After the initial payment and start of project, we break up the remainder of the project cost with Net 15 terms.
Policies
Anti-Spam and Acceptable Use Agreement This End User Subscription Agreement (“Agreement”) is a binding and enforceable legal agreement between You (“Client”) and Above the Noise Digital, LLC (“Above the Noise Digital”). “Application Services” means the provision of electronic access to one-to-one direct marketing software over a computer network and related technical support services. “You” or “Your” refers to the person, entity, or organization using software provided by Above the Noise Digital, and any successor or assignee of same. You represent and warrant that you are authorized to enter into this Agreement.
DEFINITIONS The “CAN-SPAM Act” means the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 in the U.S. CASL is Canada’s Anti-Spam Legislation (CASL). “Confidential Information” shall have the meaning set forth below. “Customer Data” means all electronic data or information submitted by You to the Application Services. “Non-Public Personal Information” shall mean personally identifiable information, including, without limitation, social security numbers, financial account numbers (i.e. credit card, checking account, savings account, etc.), medical, employment, or insurance numbers, and passport numbers. The “UIGE Act” means the Unlawful Internet Gambling Enforcement Act of 2006. USE. You may use the Application Services only in and for Client’s own internal purposes and business operations. You may not use the Application Services as a service for any third party. No license or right to use, reproduce, translate, rearrange, modify, enhance, display, sell, lease, sublicense or otherwise distribute, transfer or dispose of the email marketing software accessed by You hereunder, in whole or in part, is granted except as expressly provided by this Agreement. Neither You nor any of Client’s affiliates shall reverse engineer, decompile or disassemble the Application Services. Nothing in this Agreement will entitle You or any of Client’s affiliates to access or use the source code of the Application Services.
CLIENT’S RESPONSIBILITIES. You are responsible for all activity that occurs within Client account(s). You shall: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (b) prevent unauthorized access to, or use of, the Application Services, and notify Above the Noise Digital promptly of any such unauthorized access or use; and (c) comply with all applicable local, state, federal and foreign laws in using the Application Services, including without limitation the CAN-SPAM Act and CASL. You shall not upload to, or store within, the Application Services (and Customer Data shall not contain) any Non-Public Personal Information. You understand and acknowledge that: (i) Above the Noise Digital, in its reasonable discretion, may refuse to distribute any message content that Above the Noise Digital reasonably believes is defamatory, infringing, or otherwise unlawful; and (ii) Above the Noise Digital, in its reasonable discretion, may refuse to distribute any email to any recipient that Above the Noise Digital reasonably believes has not granted permission (or otherwise “opted-in”) to You to send such message(s) or that Above the Noise Digital reasonably believes is unlawful.
ABOVE THE NOISE DIGITAL ANTI-SPAM CERTIFICATION. To comply with federal law, email best practices, and the policies set forth by ISPs and other email filtering organizations, Above the Noise Digital requires all Clients to certify their compliance with Above the Noise Digital’s Anti-Spam email policy as well as the opt-in status of any lists they distribute using the Above the Noise Digital and service provider application(s). If you cannot provide the certifications requested below, please contact your Above the Noise Digital representative to discuss the means by which your email distribution list(s) may be brought into compliance with our opt-in list requirements.
1) First Certification: Above the Noise Digital Anti-Spam Policy. By using the services of Above the Noise Digital, I, or another member of my organization, have read and understand Above the Noise Digital’s Anti-Spam Policy. 2) Second Certification: List Source. I certify that: (A) I am the owner of all email distribution lists distributed using the Above the Noise Digital application, and that I am solely responsible for the composition and membership of each list; or (B) As a Client of Above the Noise Digital, I have executed an End User Subscription Agreement incorporating terms substantially similar to those set forth below. 3) Third Certification: List Opt-In Status. I certify that: (A) all subscribers to be used in connection with the application have provided permission to me to send them email; or (B) As a Client of Above the Noise Digital, I have executed an End User Subscription Agreement incorporating terms substantially similar to those set forth to the Master Services Agreement.
Above the Noise Digital Anti-Spam Policy. Anti-SPAM at Above the Noise Digital Our clients certify that they will use our software only to send emails to customers and prospects that have directly consented (opted-in) to receive email. They are forbidden to transmit unsolicited commercial email (spam) via our system(s). Above the Noise Digital does not buy or sell email lists, nor do we allow our clients to use purchased or harvested email lists (see below).
Additionally, Above the Noise Digital offers confirmed opt-in as an optional tool for our clients to use to help minimize allegations of spam and abuse. When a list is designated as “confirmed opt-in,” the system automatically sends a follow-up email to each subscriber on such lists asking the recipient to verify that they wish to receive communications via email. Only those subscribers responding affirmatively will be opted-in to future mailings sent via the system.
We additionally require that clients reconfirm (permission pass) or stop mailing an existing list when it is determined to be in violation of our anti-spam policies. Repeated violations or failures to comply with our policies will result in termination of that client's access to the system.
Our clients agree not to send unsolicited email via our system. For any opt-in list of email addresses used in Above the Noise Digital's system, clients agree to provide us with the source of the email addresses, the method used for recipient signup, and details surrounding the process used, and whatever other information relates to the transaction or sign-up process used. This includes, but isn't limited to, date and time of sign up, IP address of signup, website signed up from, and whatever other information the client asked of the recipient at point of sign up.
Our Clients certify that they will not use rented or purchased lists, email append lists, or any other list that contains email addresses captured in any other method than opt-in. The use of opt-out lists is prohibited in our system. Above the Noise Digital retains the right to review client lists and emails to verify that clients are abiding by the privacy and permission policies set forth herein. Our clients are required to comply with our policies and all applicable law.
How do we protect your privacy? We use strict security measures to protect against the loss, misuse and alteration of data used by our system. We promise to keep your email address secure and private and will not use it for other purposes. Please review our Privacy Policy on our website at digitalfusion.com for more details.
Why did you receive an email from our system? You should only receive email from our system from some client of ours that you recognize signing up to receive email from. Our clients certify that all email addresses used in our system are opt-in names that have given permission to the client to send them email. As we indicate above, Above the Noise Digital does not allow nor desire that any client use our email services to send unwanted mail or spam. If you don't recognize who sent you the message, see the next section.
Reporting Unwanted Mail as Spam If you don't recognize who used the Above the Noise Digital service to send you a given message, you can report it to us as spam by sending it to This email address is being protected from spambots. You need JavaScript enabled to view it.. We receive, investigate, catalog, and take action based on these complaints. If you're worried that we would simply “list wash” address without further investigation, feel free to report the message to whatever spam reporting entity you feel most comfortable working with. Spamcop at www.spamcop.net provides an easy way to report unwanted mail as spam. You can also use your email provider's (AOL, Hotmail, Yahoo) “report as spam” mechanism to notify the ISP that the message is spam. ISPs use this information to determine good senders from bad senders, and we regularly work with ISPs to take action based on that data. Alternately, there are reputable anti-spam blacklist groups that you can work with to identify an issue and inform service providers of that issue. We work with anti-spam blacklist groups and strive to address all issues to their satisfaction.
How do I get off an email list? Each email sent through the Above the Noise Digital system contains a link that allows subscribers to unsubscribe from receiving emails from the sender. Each email contains an easy and automated way for you to unsubscribe. You may also change your expressed interests at any time. If you wish to unsubscribe or change your interests, simply follow the instructions at the bottom of any email. If you have received an unwanted email sent by the Above the Noise Digital system, please see above for options on how to handle and report an issue.
Will your information ever be shared, sold or rented? We will never share, sell, or rent individual personal information without your advance permission, unless ordered by a court of law. Information submitted to us is available only to employees responsible for managing this data.
If you have any questions about Above the Noise Digital's Anti-Spam Policy, please contact us This email address is being protected from spambots. You need JavaScript enabled to view it..
This is the website of Above the Noise Digital LLC.
Our postal address is: 3515 W. 44th Ave, Denver, CO 80211
We can be reached via email at This email address is being protected from spambots. You need JavaScript enabled to view it.
For each visitor to our Web page, our Web server automatically recognizes the consumer’s domain name and e-mail address (where possible).
We collect the domain name and e-mail address (where possible) of visitors to our Web page, the e-mail addresses of those who post messages to our bulletin board, the e-mail addresses of those who communicate with us via e-mail, the e-mail addresses of those who make postings to our chat areas, aggregate information on what pages consumers access or visit, user-specific information on what pages consumers access or visit, information volunteered by the consumer, such as survey information and/or site registrations, name and address, telephone number, fax number, payment information (e.g., credit card number and billing address).
The information we collect is used to improve the content of our Web page; to customize the content and/or layout of our page for each individual visitor; to notify consumers about updates to our Website; to share with agents or contractors who assist in providing support for our internal operations; to contact consumers for marketing purposes: to disclose when legally required to do so at the request of governmental authorities conducting an investigation; to verify or enforce compliance with the policies governing our Website and applicable laws; to protect against misuse or unauthorized use of our Website; or to provide to a successor entity in connection with a corporate merger, consolidation, sale of assets or other corporate change respecting the Website.
With respect to cookies: We use cookies to store visitors preferences, record session information, such as items that consumers add to their shopping cart, record user-specific information on what pages users access or visit, alert visitors to new areas that we think might be of interest to them when they return to our site, record past activity at a site in order to provide better service when visitors return to our site, ensure that visitors are not repeatedly sent the same banner ads, customize Web page content based on visitors’ browser type or other information that the visitor sends.
If you do not want to receive e-mail from us in the future, please let us know by sending us e-mail at the above address.
From time to time, we make the e-mail addresses of those who access our site available to other reputable organizations whose products or services we think you might find interesting. If you do not want us to share your e-mail address with other companies or organizations, please let us know by calling us at the number provided above.
From time to time, we make our customer e-mail list available to other reputable organizations whose products or services we think you might find interesting. If you do not want us to share your e-mail address with other companies or organizations, please let us know by calling us at the number provided above.
If you supply us with your postal address on-line you may receive periodic mailings from us with information on new products and services or upcoming events. If you do not wish to receive such mailings, please let us know by calling us at the number provided above.
Please provide us with your exact name and address. We will be sure your name is removed from the list we share with other organizations
Persons who supply us with their telephone numbers on-line may receive telephone contact from us with information regarding new products and services or upcoming events. If you do not wish to receive such telephone calls, please let us know by sending us e-mail at the above address.
Please provide us with your name and phone number. We will be sure your name is removed from the list we share with other organizations
With respect to Ad Servers: To try and bring you offers that are of interest to you, we have relationships with other companies that we allow to place ads on our Web pages. As a result of your visit to our site, ad server companies may collect information such as your domain type, your IP address and clickstream information. For further information, consult the privacy policies of:
From time to time, we may use customer information for new, unanticipated uses not previously disclosed in our privacy notice. If our information practices change at some time in the future we will post the policy changes to our Web site to notify you of these changes and we will use for these new purposes only data collected from the time of the policy change forward. If you are concerned about how your information is used, you should check back at our Web site periodically.
Customers may prevent their information from being used for purposes other than those for which it was originally collected by e-mailing us at the above address.
Upon request we provide site visitors with access to financial information (e.g., credit card account information) that we maintain about them, unique identifier information (e.g., customer number or password) that we maintain about them, transaction information (e.g., dates on which customers made purchases, amounts and types of purchases) that we maintain about them, communications that the consumer/visitor has directed to our site (e.g., e-mails, customer inquiries), contact information (e.g., name, address, phone number) that we maintain about them.
Consumers can access this information by e-mail us at the above address.
Upon request we offer visitors the ability to have inaccuracies corrected in contact information, financial information, communications that the consumer/visitor has directed to the site.
Consumers can have this information corrected by sending us e-mail at the above address.
With respect to security: We have appropriate security measures in place in our physical facilities to protect against the loss, misuse or alteration of information that we have collected from you at our site.
If you feel that this site is not following its stated information policy, you may contact us at the above addresses or phone number.
See Above the Noise Digital's Acceptable Use Policy.
Above the Noise Digital Copyright Policy
Notification of Copyright Infringement:
Above the Noise Digital Technologies, Inc. (“Above the Noise Digital”) respects the intellectual property rights of others and expects its users to do the same.
It is Above the Noise Digital’s policy, in appropriate circumstances and at its discretion, to disable and/or terminate the accounts of users who repeatedly infringe or are repeatedly charged with infringing the copyrights or other intellectual property rights of others.
In accordance with the Digital Millennium Copyright Act of 1998, the text of which may be found on the U.S. Copyright Office website, Above the Noise Digital will respond expeditiously to claims of copyright infringement committed using the Above the Noise Digital website or other online network accessible through a mobile device or other type of device (the “Sites”) that are reported to Above the Noise Digital’s Designated Copyright Agent, identified in the sample notice below.
If you are a copyright owner, or are authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through the Sites by completing the following DMCA Notice of Alleged Infringement and delivering it to Above the Noise Digital’s Designated Copyright Agent. Upon receipt of the Notice as described below, Above the Noise Digital will take whatever action, in its sole discretion, it deems appropriate, including removal of the challenged material from the Sites.
DMCA Notice of Alleged Infringement (“Notice”)
Identify the copyrighted work that you claim has been infringed, or - if multiple copyrighted works are covered by this Notice - you may provide a representative list of the copyrighted works that you claim have been infringed.
Identify the material that you claim is infringing (or to be the subject of infringing activity) and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material, including at a minimum, if applicable, the URL of the link shown on the Site(s) where such material may be found.
Provide your mailing address, telephone number, and, if available, email address.
Include both of the following statements in the body of the Notice:
“I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use).”
“I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
Provide your full legal name and your electronic or physical signature.
Deliver this Notice, with all items completed, to Above the Noise Digital’s Designated Copyright Agent:
Copyright Agent
c/o Above the Noise Digital Technologies, Inc.
3515 W. 44th Ave
Denver, CO 80211
contact [at] Above the Noise Digital [dot] com
IMPORTANT: Communications unrelated to copyright use or infringement will be discarded. Please follow this link for Above the Noise Digital’s Guidelines for Third Party Data Requests and Service of Legal Documents.
COOKIE STATEMENT (GLOBAL)
Effective Date: July 15th 2015
We and our affiliates, third parties, and other partners use cookies and other identification technologies on our websites, mobile applications, electronic communications, advertisements, and other online services (collectively, the "Services") for a number of purposes, including: authenticating users, remembering user preferences and settings, determining the popularity of content, delivering and measuring the effectiveness of advertising campaigns, analyzing site traffic and trends, and generally understanding the online behaviors and interests of people who interact with our Services. You can read more here about the types of cookies we use, why we use them, and how you can exercise your choices.
Cookies Overview
Cookies are small text files that are stored on your browser or device by websites, apps, online media, and advertisements. There are different types of cookies. Cookies served by the entity that operates the domain you are visiting are called “first party cookies.” So cookies served by Above the Noise Digital while you are on www.abovethenoisedigital.com are first party cookies. Cookies served by companies that are not operating the domain you’re visiting are called “third party cookies.” So, we may allow Google to set a cookie on your browser while you visit www.Above the Noise Digital.com, and that would be a third party cookie. Cookies may also endure for different periods of time. “Session Cookies” only last only as long as your browser is open. These are deleted automatically once you close your browser. Other cookies are “persistent cookies” meaning that they survive after your browser is closed. For example, they may recognize your device when you re-open your browser and browse the internet again.
Other Identification Technologies
We call this a Cookie Statement, but the statement addresses cookies and other identification technologies we may use or permit on our Services. “Pixel tags” (also called beacons or pixels) are small blocks of code installed on (or called by) a webpage, app, or advertisement which can retrieve certain information about your device and browser, including for example: device type, operating system, browser type and version, website visited, time of visit, referring website, IP address, and other similar information, including the small text file (the cookie) that uniquely identifies the device. Pixels provide the means by which third parties can set and read browser cookies from a domain that they do not themselves operate and collect information about visitors to that domain, typically with the permission of the domain owner. “Local storage” refers generally to other places on a browser or device where information can be stored by websites, ads, or third parties (such as HTML5 local storage and browser cache). “Software Development Kits” (also called SDKs) function like pixels and cookies, but operate in the mobile app context where pixels and cookies cannot always function. The primary app developer can install pieces of code (the SDK) from partners in the app, and thereby allow the partner to collect certain information about user interaction with the app and information about the user device and network information.
Your Choices
You have the right to choose whether or not to accept cookies. However, they are an important part of how our Services work, so you should be aware that if you choose to refuse or remove cookies, this could affect the availability and functionality of the Services.
Most web browsers are set to accept cookies by default. If you prefer, you can usually choose to set your browser to remove or reject browser cookies. To do so, please follow the instructions provided by your browser which are usually located within the "Help" or “Preferences” menu. Some third parties also provide the ability to refuse their cookies directly by clicking on an opt-out link, and we have indicated where this is possible in the table above.
Removing or rejecting browser cookies does not necessarily affect third-party flash cookies which may be used by us or our partners in connection with our Services. To delete or disable flash cookies please visit this site for more information. For further information about cookies, including how to see what cookies have been set on your device and how to manage and delete them, you can visit www.allaboutcookies.org and www.youronlinechoices.eu.
Types and Purposes of Cookies
The following table sets out the different categories of cookies that our Services use and why we use them. The lists of third party cookie providers are intended merely as illustrative not comprehensive.
Type of Cookie
Purpose
Who Serves (for example)
Authentication Cookies
These cookies (including local storage and similar technologies) tell us when you’re logged in, so we can show you the appropriate experience and features such as your account information, trip history, and to edit your account settings.
• Above the Noise Digital
Security and site integrity cookies
We use these cookies to support or enable security features to help keep Above the Noise Digital safe and secure. For example, they enable us to remember when you are logged into a secure area of the Services andhelp protect your account from being accessed by anyone other than you.
• Above the Noise Digital
Localization
These help Above the Noise Digital provide a localized experience. For example, we may store information in a cookie that is placed on your browser or device so you will see the site in your preferred language.
• Above the Noise Digital
Site features and Services
These provide functionality that help us deliver products and Services. For example, cookies help you log in by pre-filling fields. We may also use cookies and similar technologies to help us provide you and others with social plugins and other customized content and experiences, such as making suggestions to you and others.
• Above the Noise Digital
• Facebook
• Twitter
• Google
Analytics and research
These are used to understand, improve, and research products and Services, including when you access the Above the Noise Digital website and related websites and apps from a computer or mobile device. For example, we may use cookies to understand how you are using site features, and segmenting audiences for feature testing. We and our partners may use these technologies and the information we receive to improve and understand how you use websites, apps, products, services and ads.
• Google
• MixPanel
• Optimizely
Advertising
Things like cookies and pixels are used to deliver relevant ads, track ad campaign performance and efficiency. For example, we and our ad partners may rely on information gleaned through these cookies to serve you ads that may be interesting to you on other websites. Similarly, our partners may use a cookie, attribution service or another similar technology to determine whether we’ve served an ad and how it performed or provide us with information about how you interact with them. For more information about interest-based ads, or to opt out of having your web-browsing information used for behavioral advertising purposes, please visit www.aboutads.info/choices if you are in the United States, or http://youronlinechoices.eu/ if you are outside the United States.
• Above the Noise Digital
• Google
• Facebook
• AOL
• Microsoft
• Yahoo
• Drawbridge
• Indeed
• Recruitics
• RocketFuel
• Simplyhired
• Twitter
• Ziprecruiter
• Mixpanel
• HasOffers/Tune
• Adjust
• AdRoll
• Quantcast
• Kenshoo
Contact us
If you have any questions about our use of cookies, please contact us at: This email address is being protected from spambots. You need JavaScript enabled to view it.
MUTUAL NON-DISCLOSURE AGREEMENT
This Agreement is made and entered into as of the last date signed below (the “Effective Date”) by and between ___________________, a ___________ corporation having its principal place of business at _______________ ("Above the Noise Digital") and __________________________, a ___________ corporation whose principal mailing address is _______________________ (the "Second Party").
WHEREAS Above the Noise Digital and the Second Party (the “Parties”) have an interest in participating in discussions wherein either Party might share information with the other that the disclosing Party considers to be proprietary and confidential to itself (“Confidential Information”); and
WHEREAS the Parties agree that Confidential Information of a Party might include, but not be limited to that Party’s:
(1) business plans, methods, and practices;
(2) personnel, customers, and suppliers; (3) inventions, processes, methods, products, patent applications, and other proprietary rights; or (4) specifications, drawings, sketches, models, samples, tools, computer programs, technical information, or other related information;
NOW, THEREFORE, the Parties agree as follows:
1. Either Party may disclose Confidential Information to the other Party in confidence provided that the disclosing Party identifies such information as proprietary and confidential either by marking it, in the case of written materials, or, in the case of information that is disclosed orally or written materials that are not marked, by notifying the other Party of the proprietary and confidential nature of the information, such notification to be done orally, by e-mail or written correspondence, or via other means of communication as might be appropriate.
2. When informed of the proprietary and confidential nature of Confidential Information that has been disclosed by the other Party, the receiving Party (“Recipient”) shall, for a period of three (3) years from the date of disclosure, refrain from disclosing such Confidential Information to any contractor or other third party without prior, written approval from the disclosing Party and shall protect such Confidential Information from inadvertent disclosure to a third party using the same care and diligence that the Recipient uses to protect its own proprietary and confidential information, but in no case less than reasonable care. The Recipient shall ensure that each of its employees, officers, directors, or agents who has access to Confidential Information disclosed under this Agreement is informed of its proprietary and confidential nature and is required to abide by the terms of this Agreement. The Recipient of Confidential Information disclosed under this Agreement shall promptly notify the disclosing Party of any disclosure of such Confidential Information in violation of this Agreement or of any subpoena or other legal process requiring production or disclosure of said Confidential Information.
3. All Confidential Information disclosed under this Agreement shall be and remain the property of the disclosing Party and nothing contained in this Agreement shall be construed as granting or conferring any rights to such Confidential Information on the other Party. The Recipient shall honor any request from the disclosing Party to promptly return or destroy all copies of Confidential Information disclosed under this Agreement and all notes related to such Confidential Information. The Parties agree that the disclosing Party will suffer irreparable injury if its Confidential Information is made public, released to a third party, or otherwise disclosed in breach of this Agreement and that the disclosing Party shall be entitled to obtain injunctive relief against a threatened breach or continuation of any such breach and, in the event of such breach, an award of actual and exemplary damages from any court of competent jurisdiction.
4. The terms of this Agreement shall not be construed to limit either Party’s right to develop independently or acquire products without use of the other Party’s Confidential Information. The disclosing party acknowledges that the Recipient may currently or in the future be developing information internally, or receiving information from other parties, that is similar to the Confidential Information. Nothing in this Agreement will prohibit the Recipient from developing or having developed for it products, concepts, systems or techniques that are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the Confidential Information provided that the Recipient does not violate any of its obligations under this Agreement in connection with such development.
5. Notwithstanding the above, the Parties agree that information shall not be deemed Confidential Information and the Recipient shall have no obligation to hold in confidence such information, where such information:
(a) Is already known to the Recipient, having been disclosed to the Recipient by a third party without such third party having an obligation of confidentiality to the disclosing Party; or
(b) Is or becomes publicly known through no wrongful act of the Recipient, its employees, officers, directors, or agents; or
(c) Is independently developed by the Recipient without reference to any Confidential Information disclosed hereunder; or
(d) Is approved for release (and only to the extent so approved) by the disclosing Party; or
(e) Is disclosed pursuant to the lawful requirement of a court or governmental agency or where required by operation of law.
6. Nothing in this Agreement shall be construed to constitute an agency, partnership, joint venture, or other similar relationship between the Parties.
7. Neither Party will, without prior approval of the other Party, make any public announcement of or otherwise disclose the existence or the terms of this Agreement.
8. This Agreement contains the entire agreement between the Parties and in no way creates an obligation for either Party to disclose information to the other Party or to enter into any other agreement.
9. This Agreement shall remain in effect for a period of two (2) years from the Effective Date unless otherwise terminated by either Party giving notice to the other of its desire to terminate this Agreement. The requirement to protect Confidential Information disclosed under this Agreement shall survive termination of this Agreement.
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