This Non-Disclosure Agreement (this “Agreement”), effective as of -, made by and between Raincatcher, LLC (“Disclosing Party”), and - (“Recipient”) dated as of the date hereof (hereinafter collectively referred to as the “Parties” or individually as “Party”).
Disclosing Party is the business transaction intermediary acting as a business broker and/or a financial advisor to certain sellers (“Seller(s)”). Seller (and the cooperating/listing broker, if any) are intended beneficiaries of this Agreement.
Business(es) Covered – Recipient understands that the terms “Seller,” “Company,” “Business,” and “Listing” refer to each and every respective Seller, company, business, and/or listing introduced by, revealed by, and/or disclosed by Disclosing Party to the Recipient, and this Agreement covers each and every such Seller, company, business, and listing, and their respective Confidential Information. For the purposes of this Agreement, the term “Disclosing Party” shall include each applicable “Seller.” The respective “Effective Date” of this Agreement for each such Seller, company, business, and listing, shall be the date on which each respective Seller, company, business, and listing was introduced to, revealed by, and/or disclosed by Disclosing Party to the Recipient
Definition of Confidential Information.
(a) For purposes of this Agreement, “Confidential Information” means any data or information that is proprietary to the Disclosing Party and not generally known to the public, whether in tangible or intangible form, whenever and however disclosed, including, but not limited to: (i) any marketing strategies, plans, financial information, or projections, operations, sales estimates, business plans and performance results relating to the past, present or future business activities of such party, its affiliates, subsidiaries and affiliated companies; (ii) plans for products or services, and customer or supplier lists; (iii) any scientific or technical information, invention, design, process, procedure, formula, improvement, technology or method; (iv) any concepts, reports, data, know-how, works-in- progress, designs, development tools, specifications, computer software, source code, object code, flow charts, databases, inventions, information and trade secrets; and (v) any other information that should reasonably be recognized as confidential information of the Disclosing Party. Confidential Information need not be novel, unique, patentable, copyrightable or constitute a trade secret in order to be designated Confidential Information. Recipient acknowledges that the Confidential Information is proprietary to the Disclosing Party, has been developed and obtained through great efforts by the Disclosing Party and that certain of the Confidential Information may contain trade secrets of the Disclosing Party.
(b) Notwithstanding anything in the foregoing to the contrary, Confidential Information shall not include information which: (i) was known by the Recipient prior to receiving the Confidential Information from the Disclosing Party; (b) becomes rightfully known to the Recipient from a third-party source not known (after diligent inquiry) by the Recipient to be under an obligation to Disclosing Party to maintain confidentiality; (c) is or becomes publicly available through no fault of or failure to act by the Recipient in breach of this Agreement; (d) is required to be disclosed in a judicial or administrative proceeding, or is otherwise requested or required to be disclosed by law or regulation, although the requirements of paragraph 4 hereof shall apply prior to any disclosure being made; and (e) is or has been independently developed by employees, consultants or agents of the Recipient without violation of the terms of this Agreement or reference or access to any Confidential Information.
Disclosure of Confidential Information.
From time to time, the Disclosing Party may disclose Confidential Information to the Recipient. The Recipient will: (a) limit disclosure of any Confidential Information to its directors, officers, employees, agents or representatives (collectively “Representatives”) who have a need to know such Confidential Information in connection with the current or contemplated business relationship between the parties to which this Agreement relates, and only for that purpose; (b) advise its Representatives of the proprietary nature of the Confidential Information and of the obligations set forth in this Agreement and require such Representatives to keep the Confidential Information confidential; (c) shall keep all Confidential Information strictly confidential by using a reasonable degree of care, but not less than the degree of care used by it in safeguarding its own confidential information; and (d) not disclose any Confidential Information received by it to any third parties (except as otherwise provided for herein).
The Recipient shall be responsible for any breach of this Agreement by any of its Representatives.
Use of Confidential Information.
The Recipient agrees to use the Confidential Information solely in connection evaluating a potential transaction with Seller or Seller’s equity owners (“Transaction”). and not for any purpose without the prior written consent of an authorized representative of the Disclosing Party. No other right or license, whether expressed or implied, in the Confidential Information is granted to the Recipient hereunder. AS between Disclosing Party and Recipient, title to the Confidential Information will remain solely in the Disclosing Party. Any summaries, reports of or modifications or improvements to the Confidential Information by the Recipient shall be the sole property of the Disclosing Party.
Compelled Disclosure of Confidential Information.
Notwithstanding anything in the foregoing to the contrary, the Recipient may disclose Confidential Information pursuant to any governmental, judicial, or administrative order, subpoena, discovery request, regulatory request or similar method, provided that the Recipient promptly notifies, to the extent legally permissible , the Disclosing Party in writing of such demand for disclosure so that the Disclosing Party, at its sole expense, may seek to make such disclosure subject to a protective order or other appropriate remedy to preserve the confidentiality of the Confidential Information The Recipient agrees that it shall not oppose and shall cooperate with the Disclosing Party with respect to any such request for a protective order or other relief. Notwithstanding the foregoing, if the Disclosing Party is unable to obtain or does not seek a protective order and the Recipient is legally requested or required to disclose such Confidential Information, disclosure of such Confidential Information may be made without liability.
Term.
This Agreement shall remain in effect during the period of time that Recipient has access to Confidential Information, including through Recipient’s access to the Raincatcher Buyer Directory. And will terminate two years following termination of access to the Confidential Information. Notwithstanding the foregoing, Recipient agrees to continue to maintain the confidentiality of any Confidential Information that is identified as a “trade Secret” for as long as such information is maintained as a trade secret by the Disclosing Party.
Remedies.
Recipient acknowledges that the Confidential Information to be disclosed hereunder is of a unique and valuable character, and that the unauthorized dissemination of the Confidential Information would destroy or diminish the value of such information. The damages to Disclosing Party that would result from the unauthorized dissemination of the Confidential Information would be difficult to calculate. Therefore, Recipient agrees that the Disclosing Party shall be entitled to injunctive relief preventing the dissemination of any Confidential Information in violation of the terms hereof. Such injunctive relief shall be in addition to damages and any other remedies available hereunder, whether at law or in equity. Disclosing Party shall be entitled to recover its costs and fees, including reasonable attorneys’ fees, incurred in obtaining any such relief. Further, in the event of litigation relating to this Agreement, the prevailing party shall be entitled to recover its reasonable attorney’s fees and expenses.
Destruction of Confidential Information.
Recipient shall immediately destroy all tangible material embodying the Confidential Information provided hereunder and all notes, documents, summaries, memoranda, drawings, manuals, records, excerpts or information deriving there from (“Notes”) (and all copies of any of the foregoing, including erasure of “copies” that have been converted to computerized media in the form of image, data or word processing files either manually or by image capture) based on or including any Confidential Information, in whatever form of storage or retrieval, upon the earlier of (i) the completion or termination of the dealings between the parties contemplated hereunder; (ii) the termination of this Agreement; or (iii) at such time as the Disclosing Party may so request; provided however that the Recipient may retain such of its documents as is necessary to enable it to comply with its document retention policies. Upon request by Disclosing Party, Recipient will certify in writing such destruction by an authorized officer of the Recipient supervising the destruction).
Notice of Breach.
Recipient shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of Confidential Information by Recipient or its Representatives, or any other breach of this Agreement by Recipient or its Representatives, and will cooperate with efforts by the Disclosing Party to help the Disclosing Party regain possession of Confidential Information and prevent its further unauthorized use.
No Binding Agreement for Transaction.
The parties agree that neither party will be under any legal obligation of any kind whatsoever with respect to a Transaction by virtue of this Agreement, except for the matters specifically agreed to herein. The parties further acknowledge and agree that they each reserve the right, in their sole and absolute discretion, to reject any and all proposals and to terminate discussions and negotiations with respect to a Transaction at any time. This Agreement does not create a joint venture or partnership between the parties. If a Transaction goes forward, the non-disclosure provisions of any applicable transaction documents entered into between the parties (or their respective affiliates) for the Transaction shall supersede this Agreement. In the event such provision is not provided for in said transaction documents, this Agreement shall control.
No Warranty.
Disclosing Party disclaims any and all express or implied warranties with respect to Confidential information provided to Recipient under this Agreement. Without limiting the foregoing, no representation or warranty as to the accuracy or completeness of the Confidential Information is being made by Disclosing Party and Disclosing Party is not under any obligation under this Agreement to disclose any Confidential Information it chooses not to disclose. Disclosing Party shall not have any liability to Recipient for Recipient’s any use of or reliance on the Confidential Information.
Miscellaneous.
(a) This Agreement constitutes the entire understanding between the parties and supersedes any and all prior or contemporaneous understandings and agreements, whether oral or written, between the parties, with respect to the subject matter hereof. This Agreement can only be modified by a written amendment signed by the party against whom enforcement of such modification is sought.
(b) The validity, construction and performance of this Agreement shall be governed and construed in accordance with the laws of Delaware applicable to contracts made and to be wholly performed within such state, without giving effect to any conflict of laws provisions thereof. The Federal and state courts located in Delaware shall have sole and exclusive jurisdiction over any disputes arising under the terms of this Agreement.
(c) Any failure by either party to enforce the other party’s strict performance of any provision of this Agreement will not constitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement.
(d) Although the restrictions contained in this Agreement are considered by the parties to be reasonable for the purpose of protecting the Confidential Information, if any such restriction is found by a court of competent jurisdiction to be unenforceable, such provision will be modified, rewritten or interpreted to include as much of its nature and scope as will render it enforceable. If it cannot be so modified, rewritten or interpreted to be enforceable in any respect, it will not be given effect, and the remainder of the Agreement will be enforced as if such provision was not included.
(e) Any notices or communications required or permitted to be given hereunder may be delivered by hand, deposited with a nationally recognized overnight carrier, electronic-mail, or mailed by certified mail, return receipt requested, postage prepaid, in each case, to the address of the other party first indicated above (or such other addressee as may be furnished by a party in accordance with this paragraph). All such notices or communications shall be deemed to have been given and received (a) in the case of personal delivery or electronic-mail, on the date of such delivery, (b) in the case of delivery by a nationally recognized overnight carrier, on the third business day following dispatch and (c) in the case of mailing, on the seventh business day following such mailing.
(f) Recipient may not directly or indirectly assign or transfer this Agreement by operation of law or otherwise without the prior written consent of Disclosing Party. All obligations contained in this Agreement shall extend to and be binding upon the parties to this Agreement and their respective successors, assigns and designees.
(g) The receipt of Confidential Information pursuant to this Agreement will not prevent or in any way limit either party from: (i) developing, making or marketing products or services that are or may be competitive with the products or services of the other; or (ii) providing products or services to others who compete with the other.
(h) Paragraph headings used in this Agreement are for reference only and shall not be used or relied upon in the interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.