CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
THIS CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT is executed as of this [Date] _________________ (this “Agreement”) by and between [Full Company Legal Name] __________________________________, a [State of Organization] ______________________ [Type of Entity] _________________, with its principal place of business at [Principal Place of Business] _________________ and its affiliates (collectively and or individually hereafter referred to as “CLIENT”), and DEBEX, INC. and its affiliates (collectively and or individually hereafter referred to as “COMPANY”).
WHEREAS, CLIENT will allow COMPANY to review and inspect certain information relating to the CLIENT.
In consideration of the mutual promises set forth herein and other valuable consideration, the parties hereto agree as follows:
1. Definitions.
Unless otherwise set forth in this Agreement, the following capitalized terms shall have the following meanings:
“Affiliate” means (a) any person, corporation, partnership, trust, joint venture or other entity with more than five percent (5%) of the voting or other securities (or partnership/joint venture interest) of which are owned (beneficially or otherwise) or controlled, directly or indirectly, by (i) such party, (ii) any person or entity that owns or controls, directly or indirectly, more than five percent (5%) of the voting or other securities (or partnership/joint venture interest) of such party, or (iii) any officer, director, partner, beneficiary, joint venturer, or other Affiliate of such party, (b) any person or entity who owns or controls, directly or indirectly, more than five percent (5%) of the voting or other securities (or partnership/joint venture interests) of such party, (c) any partnership or joint venture of which such party or any of its Affiliates is a member, (d) any officer, director, partner, beneficiary, joint venturer or management employee of such party, (e) any person, corporation, partnership, joint venture or other entity under common control with such party, and (f) the spouse, parents, minor children and dependents of such party.
" Confidential Information" means any nonpublic and proprietary information from or about CLIENT or its Affiliates, relating to the finances, operations, financial and operating results, marketing, customers and suppliers, properties, methods of doing business, personnel, contracts, commitments or contingencies or legal affairs involving CLIENT, whether or not labeled or otherwise identified as confidential. Such information shall include, but not be limited to, all oral and written communications, including technical, operating, business, environmental and financial information, together with any notes, memoranda, analyses, evaluations, charts, graphs or summaries derived there from as well as all information generated by CLIENT or its partners, beneficiaries, officers, employees or agents that contains, reflects or is derived from any of the foregoing or that is acquired, directly or indirectly, by COMPANY before or after the date of this Agreement. The term Confidential Information shall not include information which: (a) is already known to the COMPANY from sources (other than CLIENT or its partners, officers, employees or agents) that are not known by the COMPANY to be subject to any confidentiality obligations to the CLIENT, (b) is or becomes generally available to the public other than as a result of a disclosure by the COMPANY or any of its Representatives; or (c) is required to be disclosed pursuant to Section 3.
"Disclosing Party" means with respect to Confidential Information, CLIENT and its Representative(s).
"Receiving Party" means with respect to Confidential Information, COMPANY and its Representative(s).
"Representative(s)" means (i) with respect to any entity/party, any and all employees, officers, directors, stockholders, members, partners, beneficiaries and owners of such entity, and all contractors, accountants, consultants, advisors, attorneys, or other agents employed or retained by such entity and (ii) with respect to any person, any and all contractors, accountants, consultants, advisors, attorneys or other agents employed or retained by such person.
2. Non-Disclosure and Restricted Use.
(a) Non-Disclosure. Each Receiving Party shall keep the Confidential Information disclosed to it by the Disclosing Party confidential and shall not disclose, permit the disclosure of, release, disseminate or transfer, whether written or orally or by any other means, such Confidential Information, in whole or in part, to any person other than its Representatives who need to know such Confidential Information (it being agreed and understood that any such Representatives shall be informed by the Receiving Party of the confidential nature of the Confidential Information and shall be required by the Receiving Party to agree to treat the Confidential Information in the manner set forth in, and subject to the provisions of, this Agreement), except with the prior written consent of the Disclosing Party or as otherwise permitted hereunder. The provision of this Agreement relating to access to, and disclosure of, Confidential Information shall apply to all Representatives of each Receiving Party and each Receiving Party shall be responsible for ensuring the compliance of all of its Representatives with the terms hereof. Receiving Party shall take reasonable measures to safeguard the confidentiality and avoid any disclosure of Confidential Information to any unauthorized person by Receiving Party or its Representatives.
(b) Return of Information. Upon the Disclosing Party’s written request and in its sole discretion, Receiving Party shall (a) promptly return to Disclosing Party any written, electronic, digital or other physical manifestation of Confidential Information, and all copies, reproductions, summaries, analyses, extracts, files or other documents or records based upon, derived from or otherwise reflecting Confidential Information, in its possession or in the possession of any of its Representatives; or (b) destroy or cause each of its Representatives to destroy each and every copy of any such materials or the parts thereof embodying, containing or relating to such Confidential Information. Any destruction pursuant to clause (b) in the preceding sentence shall be promptly confirmed in writing.
(c) Restricted Use. Except as contemplated, by this Agreement or otherwise in writing by the parties, Receiving Party and its Representatives shall not use Confidential Information in any manner that will, or is likely to, directly or indirectly, (i) benefit Receiving Party or its Representatives or Affiliates, (ii) benefit any other person, or (iii) cause a detriment to or impairment of Disclosing Party’s assets or business, including without limitation any diversion of any business, customer or revenue away from Disclosing Party.
(d) Legal Compliance. To the extent that the Confidential Information is subject to any federal or state laws (including without limitation financial privacy laws), Receiving Party agrees to comply with such laws in connection with its use and receipt of such Confidential Information.
3. Permitted Disclosure. Receiving Party shall immediately notify Disclosing Party of any court order or subpoena requiring disclosure of Confidential Information, and shall cooperate with legal counsel for Disclosing Party in the appeal or challenge of any such order or subpoena. Receiving Party may disclose Confidential Information required to be disclosed pursuant to court order or subpoena, but only after Disclosing Party has exhausted any lawful and timely appeal or challenge that Disclosing Party elects to file or make in connection with such court order or subpoena.
4. Further Commitment. Receiving Party acknowledges that certain Confidential Information may be so sensitive as to require special handling procedures and obligations in addition to those set forth in this Agreement. In such event, the parties may execute from time to time supplements to this Agreement identifying such Confidential Information and the special procedures and obligations relating to the its disclosure.
5. Remedies f o r Breach. Receiving Party shall indemnify, defend and hold harmless Disclosing Party and its Representatives and Affiliates, and the respective Representatives of such Affiliates, from and against any and all losses, damages, costs, expenses and liabilities of whatever nature (including, without limitation, reasonable attorneys’ fees and claims by third parties for brokerage commissions or fees) directly or indirectly resulting from or arising out of any breach or threatened breach of any terms of this Agreement by Receiving Party or its Affiliates or Representatives. Receiving Party further agrees that: (i) in addition to any other rights and remedies that may be available, injunctive relief is a proper remedy for enforcement of this Agreement; (ii) a breach or threatened breach of this Agreement would cause irreparable harm to Disclosing Party and Disclosing Party shall be entitled to equitable relief in such situation; and (iii) no forbearance, failure or delay in exercising any such right, power or remedy shall operate as a waiver thereof or preclude its further exercise.
If any legal action or other proceeding of any kind is brought for the enforcement of this Agreement or because of any alleged breach, default or any other dispute in connection with any provision of this Agreement, the successful or prevailing party shall be entitled to recover all reasonable attorneys’ fees and other costs incurred in such action or proceedings, in addition to any relief to which it may be entitled.
6. Severability. Should any provision or clause of this Agreement be held to be void, invalid, or unenforceable, the remaining provisions of this Agreement shall not be affected and shall continue in effect and the invalid provision shall be deemed modified to the least degree necessary to remedy such invalidity.
7. Assignability. This Agreement and the rights and obligations of the parties shall bind and inure to the benefit of each of the parties hereto. Neither this Agreement nor any rights or benefits hereunder may be assigned by either party without the prior written consent of the other party.
8. Notice. Any notice required or permitted to be given hereunder shall be effective when received and shall be sufficient if in writing and if personally delivered or sent by prepaid express delivery service, to the party to receive such notice at its address set forth on the signature page below or at such other address as a party may by notice specify to the other.
9. No Conflicting Obligations. Each party represents and warrants that it is under no obligation or restriction, nor will it assume any such obligation or restriction, that does or would in any way violate, interfere, or conflict with the performance by such party to be rendered under this Agreement.
10. No Waiver. Failure by either party to enforce any provision of this Agreement shall not be deemed a waiver of future enforcement of that or any other provision.
11. No Partnership. This Agreement does not create a partnership or joint venture. No party shall have the authority to act as an agent of the other party by virtue of this Agreement.
12. Term. This Agreement shall be effective for the greater of (i) two (2) years from the date hereof or (ii) the maximum period of time permitted by law.
13. Governing Law; Venue; Waiver of Jury Trial. The law of the state of Delaware shall govern this Agreement. The Parties irrevocably consent to and submit exclusively to the jurisdiction of the Courts of Delaware, United States of America. EACH PARTY HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT. EACH PARTY HERETO ALSO WAIVES ANY BOND OR SURETY OR SECURITY UPON SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF SUCH PARTY. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSINIG OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AN STATUTORY CLAIMS. EACH PARTY FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
14. Counterparts. This Agreement may be executed in any number of counterparts, including counterparts transmitted by telecopier, PDF, e-mail or Fax, any one of which shall constitute an original of this Agreement. When counterparts or facsimile copies have been executed by all Signature parties, they shall have the same effect as if the signatures to each counterpart or copy were upon the same document and copies of such documents shall be deemed valid as originals. The parties agree that all such signatures may be transferred to a single document upon the request of any party.
IN WITNESS WHEREOF, each of the undersigned parties has executed, as of the date first above written, this CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT.
COMPANY
DEBEX, INC.
By: ___________________________ Dated: ___________________________
Name: Ivan Korotaev
Title: CEO
CLIENT
___________________________ [Client company name]
By: ___________________________ Dated: ___________________________
Name: ___________________________
Title: ___________________________
of