This Mutual Non-Disclosure Agreement (the “Agreement”) is effective as of the date in which the corresponding “Real Estate Pilot Project – Mutual NDA Form” is submitted (the “Effective Date”), between Greg Unruh, DBA “Unruh Enterprises” operating in the State of Missouri and the party submitting (“Submitting Party”) this form (each a “Party” and collectively the “Parties”).
In connection with the Parties’ discussions with respect to a potential business transaction or series of business transactions (the “Transaction”), each of the Parties may be supplied with confidential materials and information (“Confidential Information”) concerning the other Party. The Party receiving Confidential Information is referred to herein as the “Recipient” and the Party providing such Confidential Information is the “Discloser.”
In consideration of each Party furnishing any Confidential Information to the other Party, each Party agrees as follows:
1. Confidential Information.
(a) “Confidential Information” consists of all materials and information concerning Discloser, including its directors, officers, employees, shareholders, affiliates and/or subsidiaries (collectively, “Affiliates”), and the Transaction which is non-public, confidential and/or proprietary in nature, whether disclosed before or after the date hereof, that is conveyed from Discloser to Recipient orally or in written, electronic or tangible form, or otherwise obtained by Recipient through observation or examination of Discloser’s operations or Confidential Information. Confidential Information includes, but is not limited to, information about Discloser’s financial condition and projections; business, marketing or strategic plans; customer lists; customer data and related information; price lists; databases; trade secrets; product prototypes and designs; techniques, formulae, algorithms and other non-public process information; and software (including source code, object code and machine code) relating to the foregoing. For purposes of clarity, the Parties acknowledge that any client data or other client information provided or disclosed to Recipient in connection with the Transaction shall be deemed to be Confidential Information for all purposes under this Agreement.
(b) Confidential Information does not include information that: (i) is part of the public domain through no act or omission of Recipient in violation of this Agreement; (ii) is or was disclosed to Recipient by a third party that is not under a contractual or similar obligation of confidentiality to Discloser; (iii) is or was developed independently by Recipient without use of Confidential Information, as evidenced by Recipient’s written records; (iv) is approved for release by written authorization of Discloser; (v) is in Recipient’s possession, not in violation of this Agreement, prior to receipt from Discloser.
2. Obligations Regarding Confidential Information.
Recipient agrees that it will take all reasonable measures to maintain in confidence and safeguard all Confidential Information, exercising at least the same degree of care as Recipient exercises with regard to its own confidential and proprietary information of a similar nature, but in no event less than a reasonable degree of care. Recipient agrees not to disclose to any other third party any of the Confidential Information of Discloser without Discloser’s prior written consent; provided, however, that Recipient may disclose such Confidential Information to its (x) Affiliates and (y) accountants, attorneys and other confidential advisors (collectively, “Representatives”), in each case who have a need to know of such Confidential Information for the purpose of assisting or advising Recipient in connection with the Transaction. Recipient shall remain liable to Discloser for actions of its Representatives in connection with their use of the Confidential Information.
3. Obligations Regarding the Transaction.
Neither Party nor its Representatives will disclose to any person (i) that discussions or negotiations are taking place concerning the Transaction or that Confidential Information has be exchanged or (ii) any terms, conditions or other facts with respect to the Transaction. This Agreement does not constitute a commitment or any other obligation by either Party to provide or arrange financing or any other financial services or accommodations, with respect to the Transaction.
4. Compliance with Applicable Law.
In the event that a Recipient or its Representatives are requested pursuant to, or required by, applicable law, regulation or legal process to disclose Confidential Information, such Recipient or its Representatives will, to the extent permitted by applicable law, rule, regulation or legal process, notify Discloser promptly so that Discloser may seek a protective order or other appropriate remedy (and in such event, Recipient agrees that it will, and will instruct its Representatives to, provide assistance to Discloser in such regard) or, in Discloser’s sole discretion, waive compliance with the terms of this Agreement. In the event that no such protective order or other remedy is obtained prior to the date such Confidential Information is so requested to be disclosed, or that Discloser waives compliance with the terms of this Agreement, Recipient or its Affiliates or Advisors may, without violating this Agreement, furnish Confidential Information pursuant to such request; provided that Recipient shall furnish only that portion of the Confidential Information that Recipient or its Affiliates or Advisors are advised in writing by counsel is legally required to comply with applicable law, regulation or legal process; and provided further that Recipient or its Affiliates or Advisors shall give Discloser written notice of the Confidential Information to be disclosed as far in advance of its disclosure as is practicable.
5. Return or Destruction of Confidential Information.
In the event Recipient determines not to proceed with the Transaction, upon expiration or termination of this Agreement, Recipient (a) will return all Confidential Information in whatever form, that was furnished to Recipient and all notes, memoranda, reports, or other items in any tangible medium that incorporate or refer to Confidential Information, to Discloser along with all copies and portions thereof, or (b) shall certify in writing that all such Confidential Information has been destroyed Notwithstanding anything herein to the contrary, Recipient shall be entitled to retain one copy of the Confidential Information for legal, regulatory, or internal compliance purposes, which shall remain subject to the confidentiality obligations set forth in this Agreement.
6. No License, Etc.
All proprietary and intellectual property rights in and to Confidential Information shall remain the sole property of Discloser, and nothing in this Agreement shall be construed in any way to grant to Recipient or its Affiliates or Advisors any express or implied option, license or other right, title or interest in or to Confidential Information provided by Discloser.
7. No Waiver of Rights.
It is understood and agreed that no failure or delay by Discloser in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power, or privilege hereunder.
8. Representations and Warranties.
Recipient understands and acknowledges that any and all information contained in the Confidential Information furnished by Discloser is being provided “AS IS” and that Discloser is not making any representation or warranty, expressed or implied, as to the accuracy or completeness of the Confidential Information and Discloser shall not be liable to Recipient or to any other person resulting from the use of the Confidential Information.
9. Amendment; Termination.
This Agreement may be modified or waived only by an instrument signed by the Parties hereto. This Agreement will expire upon the earlier of (a) the third anniversary of the date hereof and (b) the execution by both Parties hereto of any other agreement in connection with the Transaction which contains a confidentiality undertaking by
both such Parties. A Recipient’s obligations with respect to Confidential Information disclosed to Recipient during the term of this Agreement will survive any termination of this Agreement until such time as such Confidential Information may have become part of the public domain consistent with Section 1(a) hereof. This Agreement may not be assigned by any Party hereto without the express prior written consent of the other Party hereto except that this Agreement may be assigned without the consent of the other Party pursuant to a merger, reorganization, or sale of all or substantially all of the assets of the business to which this Agreement relates.
10. Non-Circumvention.
Submitting Party hereby irrevocably agrees not to circumvent, avoid, bypass, or obviate, directly or indirectly, the intent of this Agreement
11. Governing Law.
This Agreement shall be governed in all respects by the laws of the United States of America and by the laws of the State of Missouri; as such laws are applied to agreements entered into and to be performed entirely within Missouri between Missouri residents.
12. Equitable Relief.
Each Party acknowledges that, in the event of any breach of this agreement by either Party, the other Party would be irreparably and immediately harmed and could not be made whole by monetary damages. It is accordingly agreed that each Party, in addition to any other remedy to which it may be entitled, may be entitled to seek injunctive relief and such other equitable relief as a court of competent jurisdiction may order to prevent breaches of, and to compel specific performance of, this Agreement.
13. Severability.
If any term or provision of this Agreement or any application hereof shall be invalid and unenforceable, the remainder of this Agreement and any other application of such term or provision shall not be affected thereby.
14. Entire Agreement.
This Agreement supersedes all previous communications, representations, and understandings between the Parties with respect to the Confidential Information subject to this Agreement, contains the complete and final agreement between the Parties, and may be modified only by a written instrument signed by each Party.