[This is the agreement that editors and translators must sign before working on ELSS jobs.]
This non-disclosure agreement is between ELSS, Inc., hereinafter referred to as ELSS, and _________________, hereinafter referred to as the Subcontractor. The terms of this agreement apply fully not only to the agreeing parties, but also to any persons under their employ or otherwise under their supervision in matters related to this Agreement.
ELSS and the Subcontractor intend to exchange unpublished information for the Purpose of editing, dictating or translating materials provided to ELSS by its clients for editorial, dictation or translation services
Now, therefore, it is hereby agreed as follows:
1. For the Purpose of this agreement "confidential information" shall mean such information, regardless of the form of disclosure or the medium used to store it, including but not limited to any unpublished documents, figures, tables, photographs, drawings, sketches or designs, and patent applications disclosed or supplied either by ELSS to the Subcontractor, or by the Subcontractor to another ELSS subcontractor as authorized by ELSS, and which at the time of its disclosure or supply is identified as being provided either for editing, dictation or translation services or for related informational purposes.
2. ELSS and the Subcontractor each undertake to treat any and all confidential information as confidential, to use it solely for the Purpose of editing, dictation or translating or estimating the feasibility or cost of editing, dictating or translating as ordered by ELSS clients, not to disclose it voluntarily to any third party, and not to knowingly make it publicly available or accessible in any way, except with the prior consent of ELSS. This restriction shall not apply to the exchange of edited or translated versions of the confidential information among editors or translators specifically assigned by ELSS to collaborate on the editing or translation of said confidential information.
3. The obligations specified in this Agreement shall not apply with respect to any confidential information that:
1. the Subcontractor can prove has been known to the Subcontractor prior to the time of its receipt pursuant to this agreement; or
2. is in the public domain at the time of disclosure or thereafter enters the public domain without breach of the terms of this agreement on the part of the Subcontractor. The release from confidentiality provided by this term applies only to the public domain form of the information; or
3. the Subcontractor can prove becomes known to the Subcontractor through disclosure by sources other than the disclosing party, having a right to disclose such information; or
4. the Subcontractor can prove has been developed independently by an employee of the Subcontractor who has not had access to any of the confidential information of the disclosing party.
4. Except as necessary for the Purpose stated in this agreement and provided that any disclosed confidential information or any copy thereof is made accessible only to such employees and subcontractors who have a need to know, the Subcontractor shall not, without the prior written consent of ELSS, copy or reproduce any item or document supplied to the Subcontractor - being or containing in whole or in part confidential information. Copies may be made if necessary for editing, dictation, or translation purposes.
5. All confidential information shall remain the exclusive property of the ELSS client, as do all patent, copyright, neighboring right of copyright, trade secret, trademark, intellectual property rights and other rights therein. No license or conveyance of any such rights to ELSS or to the Subcontractor is granted or implied under this agreement.
6. The parties agree that any confidential information is made available "as is" and that no warranties of any kind are granted or implied with respect to the quality of confidential information, including but not limited to, its fitness for any purpose, non-infringement of third party rights, accuracy, completeness or correctness.
7. The Subcontractor may not under any circumstance transfer or assign any of its interests or commitments in this Agreement, in whole or in part, without the prior written consent of ELSS.
8. This agreement shall be effective as of the date of the last signature and shall thereafter continue until the Subcontractor notifies ELSS in writing that they no longer will accept confidential information from ELSS. Termination of this agreement applies only to information subsequently exchanged between ELSS and the Subcontractor. Information exchanged prior to termination of this agreement will remain confidential for five years from the date the subcontractor first receives it unless one or more of the terms of section 3 apply or permission to disclose it is obtained in writing by ELSS from the relevant ELSS client.
9. The Subcontractor agrees not to contact any ELSS clients whose information the Subcontractor has received from ELSS for any purpose related to editing, dictation, or translation unless prior written consent has been granted by ELSS. Unless such consent has been granted and communicated in writing by ELSS, all communications between the Subcontractor and ELSS clients shall be through ELSS.
10. The Subcontractor shall indemnify ELSS for any and all damages, including reasonable attorney’s fees and court costs arising from any breach of this agreement.
11. Ancillary agreements, amendments or additions hereto must be made in writing.
12. This agreement shall be construed and interpreted by the laws of Japan. The Tokyo District Court shall have jurisdiction. In this regard, the Subcontractor hereby agrees to accept service of process by registered mail. As an alternative to litigation, either party may submit the matter to arbitration pursuant to Japanese law, provided that the other party agrees in writing to this method of dispute resolution.
13. If any provisions of this agreement are invalid or unenforceable, the validity of the remaining provisions shall not be affected. The parties shall replace the invalid or unenforceable provision by a valid and enforceable provision that will meet the Purpose of the invalid or unenforceable provision as closely as possible.