Confidentiality Provisions (Version 1.0)
These non-disclosure provisions are a part of and are incorporated into those certain letter agreements (each, a “Letter Agreement“) that reference such provisions by and among the Company and Advisor.Each Letter Agreement and the provisions set forth herein are referred to as the “Agreement.” Capitalized terms used herein without definition shall have the meanings ascribed to them in the Letter
In connection with discussions relating to a Transaction, the Company may disclose certain of their operational, financial, business, and other proprietary or confidential materials and plans to Advisor. Pursuant to such disclosure, Advisor may become acquainted with certain confidential information and trade secrets of other party, including, but in no way limited to, business methods and systems, client screen techniques, client database information, strategic contracts, financial statements, fee schedules and other price information, billing records, policies, actual and projected financial and operational information, contracts, projections, business plans, officer, director and owner information, employees and contractors, suppliers and vendors, client lists, marketing, software, technology, technical memoranda, manuals, prospects and proposed projects, trademarks and patents, intellectual property, advice from lawyers and accountants and other consultants, and other information and know-how, all relating to or useful to the Company’s business and relating to the disclosed materials (collectively, the “Confidential Information”). The Confidential Information includes all disclosures of matters made prior to the Effective Date, if any, in addition to all disclosures made after the Effective Date.
As a condition to the Company’s disclosing its Confidential Information to Advisor and in recognition by each party that such Confidential Information constitutes proprietary, valuable, and unique assets owned by or in the custody of the Company, the parties agree as follows:
1. Access to Confidential Information
Advisor will receive or be given access to certain Confidential Information of the Company, all relating to or useful in the Company’s business and all considered by the Company as confidential or proprietary information.
2. Non-Disclosure and Non-Use of Confidential Information
Without the express written consent of the Company, which may be withheld in its sole and absolute discretion, Advisor covenants and agrees:
- (a) Not to disclose any of the Confidential Information, to any person, entity or third party,other than its financial and legal advisors expressly for the purpose of evaluating a Transaction;
- (b) Not to use the Confidential Information for any competitive advantage or in business activities or for any purposes other than in connection with a Transaction;
- (c) To keep in strict confidence the Confidential Information and to use appropriate and reasonable safeguards to maintain such confidentiality; and
- (d) Not to use the Confidential Information for any purpose which may be in any way detrimental to the Company or the business of the Company.
3. Non-Disclosure of Proposed Transactions
The terms of a Transaction are confidential and proprietary, and except as set forth in Section 4 below, the parties covenant and agree not to disclose any information related to a Transaction (including the existence thereof) to any person, entity, or third party, other than the party’s financial and legal advisors pursuant to Section (2)(a) above.
4. Mandated Disclosure
If disclosure of Confidential Information is required pursuant to a valid and enforceable judicial or government order (the “Mandated Disclosure”), Advisor will (a) promptly upon receipt of a subpoena or other written notice seeking the Confidential Information, provide prompt written notice to the Company concerning the request, and (b) reasonably cooperate with the Company in the event that the Company elects to legally contest and avoid the Mandated Disclosure.
5. Return of the Confidential Information
Within five (5) business days of Advisor’s receipt of a written request by the Company, Advisor will either (a) return to the Company the Confidential Information, both in hardcopy and electronic form, or (b) destroy the information.
The Confidential Information is, and will remain, the sole and absolute property of the Company, to be used by Advisor only for a Transaction expressly identified by this Agreement.Confidential Information will not be reproduced in any form except as required to accomplish the intent of the Agreement. Any reproduction of any Confidential Information will remain the property of the Company and will contain any and all confidential or proprietary notices or legends that appear on the original, unless otherwise authorized in writing by the Company.
Each party’s obligations herein will commence on the Effective Date and continue and survive for all applicable statutes of limitations without any specific time limit. Notwithstanding any other provision of the Agreement to the contrary, the Agreement will be effective whether or not a Transaction or any actual agreed upon transaction between the parties, if applicable, is consummated or completed.
The validity or unenforceability of a particular provision of these non-disclosure provisions will not affect the other provisions hereof, and such provisions, together with any other provision in the Agreement will be construed in all respects as if such invalid or unenforceable provisions were omitted.