STANDARD FORM OF CONFIDENTIALITY, NON-DISCLOSURE AND
NON-CIRCUMVENT AGREEMENT
THIS AGREEMENT is made as of the __th day of November 20__, between Company
Partners LLC, having an address at and their officers, directors, affiliates and
subsidiaries (hereinafter, “Company”) and Our Company Capital, LLC a limited
liability company established pursuant to the laws of the state of New York and its
subsidiaries and affiliates (hereinafter collectively “Our Company”), and are each
referred to individually as a “Party” and collectively as the “Parties.”
WHEREAS the Parties are considering a business relationship with each other;
AND WHEREAS in the course of determining whether to enter into such a relationship, and
during such a relationship if and when entered into, the Parties will disclose certain
Confidential Information as hereinafter defined;
AND WHEREAS the Parties wishes to restrict the use of and to protect the confidentiality of
such Confidential Information;
NOW THEREFORE, in consideration for being given access to information that is confidential
and proprietary, and for the other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby agree and covenant as
follows:
1. Confidential Information
For the purposes of this Agreement, Confidential Information means any data or
information used by or belonging to Our Company or Company, whether oral, written or
otherwise recorded, that is identified as non-public, confidential or proprietary in nature.
Notwithstanding the foregoing, the following shall be considered Confidential
Information, whether or not specifically identified as such:
a) Technical information: Any scientific, computer or other technical information,
technology, research, methods, processes, formulae, compositions, systems,
techniques, inventions, machines, computer programs and research projects.
b) Marketing and Sales information: Customer lists, customer account information,
pricing data, sources of supply, financial data and marketing, production, or
merchandising, sales, marketing, financial and strategies systems, approaches or
plans, and all directory information; information relating to any current or proposed
products, services, methods, businesses or business plans, marketing, pricing,
distribution and other business strategies.
c) Business information: Design, idea, process, procedure, formula or improvement, or
any portion or phase thereof, lists of, or any other information relating to any
customers, vendors, service delivery mechanisms, dealers, agents or employees and
the relationships therewith; and any financial information relating to any of the
foregoing.
d) Financial information: Any financial information disclosed by Our Company or
Skymark.
e) Non-Public Information: Information of the Parties that is not generally known to
the public or the industry in which Our Company or Company is or may be engaged.
Confidential Information shall also include any analyses, compilations, forecasts, studies,
or other documents or records which contain, are based on, or otherwise reflect or are
generated in whole or in part by the Parties from Confidential Information, including that
stored on any computer, word processor or other similar device.
2. Disclosure
During the relationship between the Parties, Our Company or Company may disclose to
the other Confidential Information, either directly by verbal, written or electronic
communications, or indirectly by permitting employees or associates or agents of Our
Company or Company to observe various operations, processes, strategies or methods
conducted or used by Our Company or Company. Disclosures made by the Parties will
be made upon the basis of the confidential relationship between the Parties and upon each
Party’s agreement that, unless specifically authorized in writing, each upon receiving the
Confidential Information will, for a period of three (3) years thereafter:
a) not use Confidential Information for any other purpose other than the evaluation, or
continuation of, a business relationship between the Parties;
b) not (i) modify, reverse engineer, de-compile, or disassemble Confidential
Information, including any program or software, or (ii) remove, efface or obscure any
copyright notices, logos or other proprietary notices or legends included in
Confidential Information or any related documentation;
c) not disclose any portion of Confidential Information to any person, except those
employees or representatives of the Parties with a need to know such Confidential
Information for purposes of the business relationship with each other;
d) advise each such employee or representative of a Party before he or she receives
direct or indirect access to such Confidential Information of the obligations of the
Parties under this Agreement, and ensure that each such person to whom Confidential
Information is thus disclosed is aware of this confidentiality agreement which extends
the Party’s obligations hereunder to such person;
e) take reasonable precautions, at a minimum those as such Party affords its own
confidential information of a similar nature, to safeguard and protect from direct or
indirect disclosure to any unauthorized person or entity all Confidential Information
disclosed hereunder by a Party; and
f) upon the request of either Party, immediately return to the requesting Party, or
destroy, all tangible materials concerning Confidential Information, including but not
limited to memoranda, notes, reports, agreements, documents, drawings, hardware,
disks and tapes, as well as all copies or extracts thereof, whether such material was
made or compiled by the Parties or furnished by the Parties; provided, however, that
Receiving Party (as defined below) may retain copies of Confidential Information as
required as part of its US securities laws compliance program and/or procedures and
its legal counsel may retain one archival copy for use only as a record of the
Confidential Information disclosed by the other Party hereunder.
3. Non-Circumvention
a) During the term of this Agreement, each Party agrees not to pursue or engage in any
transaction involving the Party’s business relationship or intended transaction(s) or
contact directly or indirectly any party-in-interest relating to either Party’s business or
pursue any introduction of any party of interest without the disclosing Party’s prior
written consent. If either Party completes or closes any similar transaction to the
intended transaction with an entity introduced by the other Party (the “Introducing
Party”), any fees agreed to by the Parties as compensation to the Introducing Party
relating to the intended transaction shall be due the Introducing Party at the
conclusion or financial closing of such similar transaction.
b) The Recipient agrees that all communications regarding the intended transaction(s),
requests for additional information, and discussions or questions regarding procedures
will be submitted or directed to the disclosing Party and not directly with any other
party.
c) Each Party covenants not to use the Confidential Information it has received to the
detriment of the disclosing Party and to use it only in connection with its evaluation
of the intended transaction. The disclosing Party shall be present in the engagement
of any transaction involving the intended transaction or the disclosing Party with
introduced parties-in-interest by the receiving Party.
d) Each Party covenants and agrees that it will not, directly or indirectly, through or with
others, in any manner attempt to or knowingly contact, deal with or employ any
person or entity directly or indirectly introduced by one Party to the other without the
prior written consent of the introducing Party.
These restrictions will not apply if a Party can establish through documented evidence
that it has done business with the person or entity prior to the introduction by the other
Party.
4. Exceptions
The obligations of the Parties set forth in Section 2 hereof shall not apply to Confidential
Information:
a) that is or becomes publicly known through no improper act of the Party receiving the
Confidential Information (the “Receiving Party”);
b) that has been received in good faith by the Receiving Party from a third party who is
not known to the Receiving Party to be bound by a confidentiality agreement with
respect to the information so provided or to be otherwise prohibited from making
such disclosure;
c) that was in the legitimate possession of the Receiving Party prior to disclosure
hereunder;
d) that has been approved for disclosure by express written approval of the Party
disclosing the Confidential Information (the “Disclosing Party”); or
e) that was independently developed by the Receiving Party without the benefit of data
received from the Disclosing Party, which independent development the Receiving
Party shall have the burden of establishing by clear and convincing evidence.
In addition, notwithstanding anything in this Agreement to the contrary, the Parties may
disclose Confidential Information as necessary to prospective financing sources and their
respective attorneys, accountants and other financial advisors performing their
obligations in connection with a prospective financial transaction between or brought
about by the Parties. As a condition precedent to any such disclosure, the Receiving
Party agrees to (i) inform such parties receiving Confidential Information of its
confidential nature, and (ii) take all measures necessary to ensure that such parties are
bound by the obligations of confidentiality and use provisions of this Agreement. Each
Party has the right to advertise to the public in a general way the closing and funding of
any transaction brought about or with the other party, with the prior consent of the other
Party, which consent shall not be unreasonably withheld.
5. Mandatory Disclosure
If the Parties or their respective directors, officers, employees, consultants or agents are
requested or required by legal process to disclose any of the Confidential Information of
Company or Our Company, then, unless prohibited by law, the Party so required shall
give prompt notice so that the non-compelled Party may seek a protective order or other
appropriate relief.
6. No License
This Agreement shall not be construed as granting or conferring to the Receiving Party
any rights by license or otherwise in any Confidential Information, including any patent,
copyright, trademark, trade secret or other intellectual property right of the Disclosing
Party. All right, title and interest in and to all Confidential Information or other property
furnished to the Receiving Party, and all modifications or additions thereto by the
Receiving Party, shall remain with or otherwise belong to the Disclosing Party. The
Receiving Party shall not use or copy any Confidential Information of the Disclosing
Party other than expressly in accordance herewith or as may be otherwise approved in
advance in writing by the Disclosing Party.
7. Survival of Obligations
The obligations of the parties under this Agreement shall survive the termination of the
association between them for the period specified in Section 2 hereof, regardless of the
manner of such termination.
8. No Other Agreement
There are no understandings, agreements or representations with respect to the subject
matter hereof, express or implied, between Our Company and Company not specified
herein. This Agreement constitutes the entire Agreement between the Parties and
supersedes all prior discussion, negotiations and agreements, whether oral or written. The
Parties further intend that this Agreement constitutes the complete and exclusive
statement of its terms and that no extrinsic evidence whatsoever may be introduced in any
judicial or arbitration proceeding involving this Agreement.
9. Waiver
The waiver by either Party, or the failure by either Party, to claim a breach, or give notice
with respect thereto, of any provision of this Agreement shall not be, nor be held to be, a
waiver of any subsequent breach, or as affecting in any way the effectiveness, of such
provision.
10. Severability and Amendments
If any provision of this Agreement shall be held invalid, unenforceable or illegal, the
validity, legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby, and such provisions shall be enforced to the fullest extent
possible in accordance with the intent of the Parties hereto. Any change or amendment to
this Agreement, including oral modification supported by new consideration, must be
reduced to writing and signed by all Parties before it will be effective.
11. Governing Law
This Agreement shall be governed by the laws of the State of New York applicable
therein (without giving effect to principles of conflicts of laws).
12. Attorney’s Fees
If any Party files any action or brings any proceeding against the other arising from this
Agreement, or is made a party to any action or proceeding arising from this Agreement,
the prevailing Party shall be entitled to recover as an element of its cost to suit, and not as
damages, reasonable attorneys’ fees to be fixed by the court, arbitrator or adjudicative
authority.
13. Relationship
The Parties hereto shall not be deemed to be partners or joint venturers and neither Party
shall be liable for any of the other Party’s commitments or liabilities resulting from
execution of this Agreement.
14. Force and Effect of Documents
This Agreement may be executed in two (2) or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf
or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g.,
www.docusign.com) or other transmission method and any counterpart so delivered shall
be deemed to have been duly and validly delivered and be valid and effective for all
purposes. Each person signing this Agreement represents and warrants that he or she is
duly authorized and has legal capacity to execute and deliver this Agreement. Each Party
represents and warrants to the other that the execution and delivery of the Agreement and
the performance of such Party’s obligations hereunder have been duly authorized and that
the Agreement is a valid and legal agreement binding on such Party and enforceable in
accordance with its terms.
15. Breach and Damages
Each Party acknowledges and confirms that a breach of its obligations hereunder cannot
be compensated adequately by an award of damages or other pecuniary remedy and
therefore the other Party shall be entitled in the event of any such breach, in addition to
any other remedies available at law or in equity, to the remedies of injunction and
specific performance or other equitable relief in respect of any such breach.
16. Notices.
All notices shall be deemed to have been duly given (a) when delivered in person, (b)
upon confirmation of receipt when transmitted by facsimile transmission or by electronic
mail (but, in the case of electronic mail, only if followed by transmittal by national
overnight courier or hand delivery on the next business day), (c) upon receipt after
dispatch by registered or certified mail, postage prepaid, or (d) on the next business day if
transmitted by national overnight courier (with confirmation of delivery).
a) Change of Address
Either Party to this Agreement may notify the other Party of any changes to the
address or any of the other details specified in this paragraph; provided, however, that
such notification shall only be effective on the date specified in such notice or five
business days after the notice is given, whichever is later.
b) Refusal of Delivery
Rejection or other refusal to accept or the inability to deliver because of changed
address of which no notice was given shall be deemed to be receipt of the notice as of
the date of such rejection, refusal or inability to deliver.
c) Notices may be addressed to:
If to Company Partners LLC:
Email: @Company.com
If to Our Company:
Legal Department
P.O. Box
, NY
Fax:
Email: [email protected]
IN WITNESS WHEREOF the parties have executed this Agreement as of the date first above
written.
By: Company
Signature:
Name: , Principal and Executive Vice President
By: Our Company
Signature:
Name: , Managing Director New Products
