STANDARD CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
Below is the standard Confidentiality and Non-Disclosure Agreement that we use.
THIS CONFIDENTIALITY AGREEMENT (this “Agreement”) is made and entered into as of this __ day of ________, 20__ (the “Effective Date”), by and between World Net Capital 1 LLC, an Indiana limited liability company (“WNC”), on the one hand, and _____________, (“_____”) a _______-based corporation on the other hand. WNC is referred to herein as a “Party”, and Peoples together are referred to herein as a “Party”, and collectively both Parties are referred to herein as the “Parties”. The Parties have expressed a mutual interest in exploring a relationship in which the Parties may be collaborating on one or more business ventures (each, a “Venture”) and, in connection with evaluating or effectuating any such Ventures, from time to time a Party and/or its Related Persons may, directly or indirectly, disclose Confidential Information or Key Relationships (a “Disclosing Party”) to the other Party and/or its Related Persons (a “Receiving Party”).
When used in this Agreement with respect to any Party, the term “Related Persons” shall mean, from all times prior to the Effective Date and thereafter, such Party’s Affiliates and any other person or entity involved or potentially involved with such Party in a Venture and/or with whom such Party has a business relationship, including, but not limited to, any of such Party’s partners or other equity holders, employees, business partners, clients, customers, attorneys, investment bankers, consultants, investors, developers, property owners, project managers, and other advisors, service providers, agents or representatives. When used in this Agreement, the term “Key Relationships” shall mean, from all times prior to the Effective Date and thereafter, all Related Persons of a Disclosing Party that do not have a preexisting business relationship with the Receiving Party that predates the Effective Date (a “Preexisting Relationship”). The Receiving Party is responsible for immediately notifying the Disclosing Party in writing that the Receiving Party has a Preexisting Relationship with a Related Person of the Disclosing Party, and such Related Person must confirm this Preexisting Relationship in order for the Related Person not to be deemed to be a Key Relationship of the Disclosing Party. When used in this Agreement with respect to any Party, the term “Affiliate,” shall mean, from all times prior to the Effective Date and thereafter, (a) any person or entity directly or indirectly controlling, controlled by or under direct or indirect common control with such Party, (b) any other entity of which such Party at the time owns, or has the right to acquire, directly or indirectly, 5% or more on a consolidated basis of the equity or beneficial interest of such entity, (c) any other person or entity which at the time owns, or has the right to acquire, directly or indirectly, 5% or more on a consolidated basis of the equity or beneficial interest of such Party, and (d) any executive officer or director, or person serving in a similar capacity, of such Party or its Affiliates.
When used in this Agreement, the term “Confidential Information” shall refer to the Confidential Information of the Disclosing Party and shall mean any and all information relating to the Ventures, a Party or a Party’s Key Relationships disclosed by the Disclosing Party to the Receiving Party, directly or indirectly, at all times prior to the Effective Date through the Final Termination Date: (i) in tangible form (including, without limitation, written, graphic, visual or virtual information incorporated in computer software or held in electronic storage media), whether or not clearly and conspicuously identified as confidential or proprietary; or (ii) contained in oral communications, whether or not prefaced as confidential in any case. The existence and content of this Agreement, the identity of another Party’s Related Persons and any discussions related to this Agreement and/or a potential Venture by the Parties and/or their Related Persons is Confidential Information. All information relating a Dispute, including but not limited to: (i) the existence of the Dispute, (ii) the basis of the Dispute, (iii) any judicial or arbitral rulings relating to the Dispute, and (iv) the final disposition of the Dispute, is Confidential Information.
Confidential Information shall not include information that (i) was already known to or in the possession of the Receiving Party on a non-confidential basis prior to being furnished by the Disclosing Party, (ii) is or becomes generally available to the public other than as a result of a direct or indirect breach of this Agreement, (iii) becomes available to the Receiving Party on a non-confidential basis from a Permitted Source, (iv) is required to be disclosed pursuant to a legal or regulatory process by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or other similar process, or (v) information which is approved for use or disclosure by written authorization of the Disclosing Party. A “Permitted Source” is any source not reasonably known by a Receiving Party to be prohibited from disclosing such Confidential Information by legal, contractual, professional or fiduciary obligation. A Permitted Source shall not include a Disclosing Party’s Key Relationships.
Use of Confidential Information. The Receiving Party agrees that it shall treat all Confidential Information as proprietary and confidential and shall not disclose or use the Confidential Information other than in connection with evaluating and/or consummating a possible Venture, and that it will keep the Confidential Information strictly confidential and will use the same general standard of care in protecting the Disclosing Party’s Confidential Information as is used to protect its own Confidential Information. The Receiving Party may disclose the Confidential Information of the Disclosing Party to the Receiving Party’s Related Persons only if such Related Persons need to know the Confidential Information for the purpose of assisting in evaluating a possible Venture, it being understood and agreed that (i) such Related Persons shall be informed by the Receiving Party of the confidential nature of the Confidential Information and shall be directed in writing by the Receiving Party to treat the Confidential Information confidentially and strictly in accordance with the terms of this Agreement, (ii) such Related Persons shall be required to agree to and be bound by the terms of this Agreement or a Third Party Agreement as a condition precedent to receiving the Confidential Information, and (iii) in any event, the Receiving Party shall be fully responsible for any breach of this Agreement by any of its Related Persons to whom it has disclosed Confidential Information. “Third Party Agreement” shall mean an agreement provided by the Receiving Party and executed by its Related Person in which such Related Person agrees to be bound by the same or substantially similar terms and conditions as in this Agreement.
Notice Preceding Compelled In the event that a Receiving Party or anyone to whom a Receiving Party transmits Confidential Information pursuant to this Agreement becomes compelled by law, rule or regulation, or legal or administrative process or proceeding, to disclose any of such Confidential Information, the Receiving Party shall provide the Disclosing Party with prompt notice so that the Disclosing Party may seek a protective order or other appropriate remedy or waive compliance with the provisions of this Agreement. The Receiving Party shall cooperate with the Disclosing Party as it reasonably requests to obtain a protective order or other remedy. In the event that such protective order or other remedy is not obtained, the Receiving Party shall furnish only that portion of the Confidential Information which the Receiving Party is advised by counsel is legally compelled and shall exercise reasonable efforts to obtain reliable assurance that confidential treatment shall be accorded any Confidential Information that must be disclosed. The Receiving Party shall not be liable for the disclosure of Confidential Information compelled pursuant to this paragraph unless such disclosure was caused by, or resulted from a previous disclosure by, the Receiving Party in a manner not permitted by this Agreement.
No Warranty of The Disclosing Party will endeavor to disclose only information that it reasonably believes to be reliable and relevant for the purpose of the evaluation of the Ventures, but the Receiving Party acknowledges that, unless otherwise stated in writing, neither the Disclosing Party nor any of its Related Persons is making any representation or warranty as to the accuracy or completeness of any information which is so provided, including implied warranties of merchantability, fitness for a particular purpose, or freedom from patent or copyright infringement, whether arising by law, custom or conduct. In no event shall either Party be liable for consequential or incidental damages. For the purposes of this paragraph, “information” is deemed to include all information furnished to the Receiving Party by the Disclosing Party, whether or not that information is deemed to be Confidential Information.
Return of All written Confidential Information will be certified as such by a responsible officer of the Receiving Party and returned promptly to the Disclosing Party or destroyed (as certified by a responsible officer of the Receiving Party) upon the written request of the Disclosing Party, and no copies of such Confidential Information or any abstracts thereof or reports or summaries based thereon shall be retained by the Receiving Party.
The Receiving Party acknowledges that the Disclosing Party has invested a substantial amount of time and effort in developing the Key Relationships. The Receiving Party hereby acknowledges that, at all times prior to the Effective Date through the Final Termination Date, the Key Relationships belong exclusively to the Disclosing Party. The Parties agree that the purpose of this Agreement is to set out the terms and conditions under which the Disclosing Party shall permit the Receiving Party to temporarily use the Key Relationships to evaluate and potentially consummate the Ventures for the benefit of both Parties. Nothing contained in this Agreement shall be construed as permitting the Receiving Party from engaging, directly or indirectly, in an Unauthorized Use of the Key Relationships at any time through the Final Termination Date. “Unauthorized Use,” when used in this Agreement with respect to the Confidential Information or the Key Relationships, shall mean any action by the Receiving Party in which they, directly or indirectly, disclose or use or attempt to use the Confidential Information or the Key Relationships for a purpose other than one in furtherance of the evaluation or consummation of a Venture in which both Parties participate.
The Disclosing Party hereby consents to assist the Receiving Party in evaluating and potentially consummating the Ventures by using or allowing the Receiving Party and/or its Related Persons to use, as necessary, the Key Relationships. The Receiving Party hereby agrees and consents to use the Key Relationships exclusively to evaluate and potentially consummate the Ventures for the benefit of both Parties in accordance with the terms and conditions of this Agreement and not, under any circumstances, to engage in any Unauthorized Use of the Key Relationships at any time through the Final Termination Date. The Receiving Party may provide access to the Key Relationships of the Disclosing Party to the Receiving Party’s Related Persons only if such Related Persons need such access for the purpose of assisting in evaluating a possible Venture, it being understood and agreed that (i) such Related Persons shall be informed by the Receiving Party of the confidential and proprietary nature of the Key Relationships and shall be directed in writing by the Receiving Party to treat the Key Relationships strictly in accordance with the terms of this Agreement, (ii) such Related Persons shall be required to agree to and be bound by the terms of this Agreement or a Third Party Agreement as a condition precedent to receiving access to the Key Relationships, and (iii) in any event, the Receiving Party shall be fully responsible for any breach of this Agreement by any of its Related Persons.
Each Party shall not, and shall not permit or otherwise facilitate its Related Persons to, take any actions which are intended or could reasonably be anticipated, directly or indirectly, to circumvent any of the terms or provisions of this Agreement at all times prior to the Effective Date through the final termination date.
The Parties acknowledge and agree that each Party is acting independently from the other Party, and nothing in this Agreement shall be deemed to make any Party the agent of the other Party or create a partnership or joint venture between the Parties. The Parties agree that, absent an explicit written agreement to the contrary, no Party shall be under any obligation of any kind whatsoever with respect to a Venture or any other matter by virtue of any written or oral expression with respect to such Venture by a Party or any of its Related Persons, or by virtue of this Agreement, except for the matters specifically agreed to herein.
Each Party hereby represents and warrants that it has all requisite power, authority and capacity to execute, deliver and comply with the terms of this Agreement, on behalf of itself and its Affiliates, and such execution, delivery and compliance does not conflict with, or constitute a default under, any instruments governing the Party, or violate any law, regulation or order, or any agreement to which the Party is a party or by which the Party may be bound. Moreover, the Disclosing Party warrants that it has the right to disclose the Confidential Information to the Receiving Party in accordance with the terms and conditions of this Each Party shall be responsible for any breach of this Agreement by itself or any of its Related Persons.
This Agreement constitutes the entire understanding and agreement between the Parties with respect to the subject matter hereof and it supersedes all prior and/or contemporaneous understandings and agreements (whether written or oral) with respect to the subject matter hereof, all of which are merged Titles and headings used in this Agreement are for convenience only and shall not be used to limit, expand or interpret the language used thereunder. This Agreement may be modified, amended, waived or superseded only by a written instrument signed by both of the Parties. The failure of a Party to insist upon strict adherence to any term or provision of this Agreement on any occasion shall not be considered a waiver thereof or deprive that Party of the right thereafter to insist upon strict adherence to that term or provision or any other term or provision of this Agreement. This Agreement is a perpetuating guarantee for the term of this Agreement and is to be applied to any and all transactions, present and future, related in any way to the Ventures, including subsequent follow-up, repeat, extended, renegotiated, and new transactions regardless of the success of the Ventures. This Agreement may be executed through the use of separate signature pages or in any number of counterparts with the same effect as if the Parties executing such counterparts had all executed one counterpart; provided, however, that the counterparts, in the aggregate, shall have been signed by all of the Parties.
If at any time any of the provisions of this Agreement shall be deemed invalid or unenforceable or are prohibited by the laws of the jurisdiction where they are to be performed or enforced, by reason of being vague or unreasonable as to duration or geographic scope or scope of activities restricted, or for any other reason, such provision shall be construed, to the greatest extent possible, in a manner that shall render it valid and enforceable, or otherwise shall be considered divisible and shall become and be immediately amended to include only such restrictions and to such extent as shall be deemed to be reasonable and enforceable by the court, arbitrator or other body having jurisdiction over this Agreement, and the Parties hereby agree that such provisions, as so amended, shall be valid and binding as though any invalid or unenforceable provision had not been included herein. No invalidity or unenforceability of any provision shall affect any other portion of this Agreement unless the provision deemed to be so invalid or unenforceable is a material element of this Agreement, taken as a whole.
Notwithstanding the place where this Agreement may be executed by any of the Parties, the Parties expressly agree that this Agreement shall be governed by and construed in accordance with the laws of Indiana in the United States of America, without regard to its conflicts of law principles. Each Party hereby irrevocably and unconditionally submits to the exclusive jurisdiction of any State or Federal court sitting in Evansville, Indiana over any suit, action or proceeding arising out of or relating to this Agreement, and each Party hereby irrevocably and unconditionally waives any objection to the laying of venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.
Except as otherwise provided herein, any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate (a “Dispute”), shall be determined by arbitration in Evansville, Indiana before one arbitrator; provided, that if the Parties cannot agree on a single arbitrator within 30 days, a panel of three arbitrators shall decide the Dispute; each Party shall choose one arbitrator, and then those two arbitrators shall choose a third arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. The fee of the arbitrator(s) shall be split evenly between the Parties and each Party shall otherwise bear its own costs and attorneys’ fees. The Parties agree that the arbitrators may, in their discretion, impose sanctions to enforce compliance with discovery and other obligations. The Parties undertake to abide by and to execute the award rendered by such arbitrators without delay. The arbitrator’s award shall be final and binding upon all Parties and judgment upon the award may be entered in any state or federal court of competent jurisdiction in the state of Indiana, or application may be made to such court for a judicial acceptance of the award and enforcement as the law of such jurisdiction may require or allow. This paragraph shall not preclude either Party from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
The Receiving Party agrees that any breach or violation by it or its Related Persons of their obligations under this Agreement or any Third-Party Agreement would cause irreparable injury to
the Disclosing Party. The Disclosing Party, without waiving any other available remedies, shall be entitled to equitable relief that may include but that shall not be limited to both temporary and permanent injunctions to prevent any breach or threatened breach of the terms of this Agreement, and the Receiving Party agrees not to oppose the granting of such injunctive relief. The Disclosing Party shall be entitled to appropriate injunctive relief without the posting of any bond or other security upon a showing of likelihood of success on the merits, and without a showing of irreparable harm, balancing of harms, consideration of public interest, or the inadequacy of monetary damages as a remedy. In no event shall the injunctive relief described in this paragraph be considered the exclusive remedy of the Disclosing Party for any breach or violation by the Receiving Party or its Related Persons of their obligations under this Agreement or a Third-Party Agreement.
This Agreement shall commence as of the Effective Date and shall continue in effect until it is terminated in accordance with the terms herein. This Agreement may be terminated by either Party, at any time and for any reason, by written notice to the other Party delivered in accordance with the terms herein; provided, however, that all terms and provisions herein shall survive for a period of two (2) years from the date of such termination (the “Final Termination Date”). It is understood and agreed that the terms and obligations under this Agreement shall survive termination of the conferences and negotiations between the Parties, whether or not they culminate in any Venture and shall continue through the Final Termination Date; provided, however, that if the Parties execute definitive agreements that contain terms that conflict with the terms herein, the terms of the definitive agreements shall control only if they explicitly state that they are intended to supersede the conflicting terms herein.
All notices and other communications to be given by either Party hereunder shall be in writing and shall be delivered by hand, sent by facsimile or email, or by an internationally recognized air express carrier requiring a receipt against Every notice shall be deemed received (i) if hand delivered, on the date of delivery; (ii) if by email or facsimile, on the date such email is sent or of confirmation of such fax transmittal’s completion, if and only if, the recipient acknowledges the receipt of such email or facsimile in a return email or facsimile or in other written form; or (iii) if by air express, on the first to occur of actual delivery or actual refusal of such notice or communication, or the date of the third attempted delivery of such notice or communication on dates that were Business Days in the jurisdiction of the noticed Party, all as reflected in the written records of such air express carrier.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.