This Confidentiality and Non-Disclosure Agreement (this “Agreement”) is entered into by and between ResMan, LLC, a Utah limited liability company (“ResMan”), and the party identified on the acknowledgement block where the party accepted the terms of the Agreement (“Company”) to be effective on the date Company accepted this Agreement (the “Effective Date”).
The parties anticipate ResMan disclosing confidential and proprietary information to Company for the purpose of discussing a potential business relationship (the “Purpose”) and desire to make their disclosure of such information subject to the terms and conditions of this Agreement.
NOW, THEREFORE, the parties agree as follows:
- Confidential Information. As used in this Agreement, “Confidential Information” means any and all confidential or proprietary information belonging to ResMan, including all technical, business, financial, marketing and other non-public information relating in any way to ResMan or one or more of its affiliates, or its customers, or to any of its products, services and/or businesses, which is disclosed or made available by ResMan (the “Disclosing Party”) to Company (the “Receiving Party”) or to which the Receiving Party gains access, whether such information is disclosed or made available online, digitally, orally, visually, or in written form or other tangible medium, including, without limitation: (a) the fact that discussions are taking place concerning the Purpose; (b) all information relating to and identified with customers and prospective customers, pricing information, software and software documentation, and information concerning business plans or strategies; (c) third party confidential information; (d) all intellectual property rights in any of the foregoing; and (e) all notes, analyses, compilations, studies or other documents prepared by the Receiving Party or its Representatives (defined below) based upon, containing or otherwise reflecting such information of the Disclosing Party.
- Exclusions. Confidential Information does not include any information that: (i) is or becomes (through no improper action or inaction by the Receiving Party or its Representatives in violation of this Agreement) generally available to the public; (ii) the Receiving Party can demonstrate was properly in its or its Representatives’ possession or properly known by it or them, without restriction, prior to receipt from the Disclosing Party; (iii) is disclosed to the Receiving Party or its Representatives by a third party without restriction on disclosure and which, to the Receiving Party’s knowledge, is not in breach of a nondisclosure obligation to the Disclosing Party; or (iv) the Receiving Party can demonstrate was independently developed by the Receiving Party or its Representatives without reference to or use of the Disclosing Party’s Confidential Information.
- Confidentiality Obligations. Except as otherwise permitted herein, the Receiving Party shall: (a) hold the Disclosing Party’s Confidential Information in strict confidence and take all commercially reasonable precautions, including implementation of security procedures, to protect the Confidential Information (including all precautions the Receiving Party employs to protect its confidential materials of a similar nature); (b) not disclose the Confidential Information to any third party; (c) not use the Confidential Information except for the Purpose; (d) not copy (except as necessary to share with its Representatives), alter, modify, reverse engineer, or attempt to derive the composition or underlying information, structure or ideas of the Confidential Information; and (e) not export the Confidential Information to any prohibited country as designated by the U.S. Department of Commerce. Notwithstanding the foregoing, Confidential Information may be disclosed to the Receiving Party’s affiliates, and its respective officers, directors, employees, agents, potential financing sources, auditors and professional advisors (collectively, the “Representatives”) who need to know such information only to the extent necessary for the Purpose, provided that (i) each Representative is directed to comply with the provisions hereof, and is bound by its professional duties and ethics or otherwise bound to confidentiality obligations at least as restrictive as the terms of this Agreement, and (ii) the Receiving Party is responsible for any breach of this Agreement by its Representatives.
- Required Disclosures. In the event the Receiving Party or its Representatives are requested or required (by law, interrogatories, requests for information or documents, subpoenas, civil investigative demand or similar process, or by regulatory oversight, investigation, or examination) to disclose the Conformation Information of the Disclosing Party, the Receiving Party shall, to the extent permitted by law, provide the Disclosing Party with prompt written notice of such request or requirement so that the Disclosing Party may seek an appropriate protective order or waive compliance by the Receiving Party with the provisions of this Agreement. The Receiving Party shall reasonably cooperate with the Disclosing Party in such efforts. If, in the absence of a protective order or the receipt of a waiver, the Receiving Party is nonetheless advised by its counsel that it is required to disclose Confidential Information of the Disclosing Party, the Receiving Party may disclose only that portion of the Confidential Information that the Receiving Party is advised by its counsel that it is required to disclose. The Receiving Party shall exercise its best efforts to obtain assurance that confidential treatment will be accorded such Confidential Information so disclosed.
- Ownership. Receiving party acknowledges and agrees that: (a) as between the parties, the Confidential Information is and will remain the sole and exclusive property of the Disclosing Party; (b) no patent, copyright, trademark, trade secret or other proprietary right is licensed, granted or otherwise transferred by this Agreement or any disclosure hereunder except for the right to use such Confidential Information in accordance herewith; and (c) any Confidential Information is provided by the Disclosing Party wholly on an “AS IS” basis and no warranties as to accuracy or completeness or any other kind are given with respect to any Confidential Information disclosed hereunder or any use thereof.
- Term and Termination; Survival. This Agreement commences on the Effective Date and continues for a period of three years. Either party may terminate this Agreement for any reason by giving 30 days prior written notice to the other party; provided, however, if any subsequent agreement between the parties incorporates the terms of this Agreement by reference, this Agreement will continue in effect until the expiration or termination of that subsequent agreement. The parties intend for this Agreement to apply to all Confidential Information disclosed by or on behalf of the Disclosing Party to the Receiving Party prior to the Effective Date hereof. Notwithstanding the foregoing, the Receiving Party acknowledges that its obligations under this Agreement with respect to trade secrets of the Disclosing Party remain in effect for the term prescribed by applicable law for any such information.
- Return of Information. Upon the written request by the Disclosing Party at any time, the Receiving Party shall immediately cease all use of, and shall promptly, at the election of the Disclosing Party, either destroy or return to the Disclosing Party all of its Confidential Information and all documents or media containing any such Confidential Information and any and all copies or extracts thereof. Notwithstanding the foregoing, neither the Receiving Party nor its Representatives will be obligated to destroy any Confidential Information that is contained in an archived computer system backup in accordance with their respective security, compliance, and/or disaster recovery procedures or to the extent relevant to demonstrate compliance with any legal, fiduciary, professional, or contractual obligation or document retention policy, provided that any such information so retained will continue to be subject to the provisions of this Agreement.
- Relationship of Parties. The Receiving Party understands that nothing herein: (a) requires the disclosure of any Confidential Information of the Disclosing Party, which information may be disclosed, if at all, solely at the option of the Disclosing Party; (b) requires the Disclosing Party to proceed with any proposed transaction or business relationship in connection with which Confidential Information may be disclosed; or (c) is deemed to create any principal/agent, joint venture or other business relationship between the parties hereto.
- Injunctive Relief. The Receiving Party acknowledges and agrees that due to the unique nature of the Disclosing Party’s Confidential Information, there may be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow the Receiving Party or third parties to unfairly compete with the Disclosing Party which may result in irreparable harm to the Disclosing Party, and that therefore, upon any such breach or any threat thereof, the Disclosing Party is entitled to seek appropriate equitable relief, including, without limitation, specific performance and injunctive relief, in addition to all other rights and remedies available at law or in equity. The Receiving Party shall immediately notify the Disclosing Party in writing upon the occurrence of any actual or suspected unauthorized release, misuse or other breach of which it is aware.
- Assignment. This Agreement may not be assigned by either party, by operation of law or otherwise, without the prior written consent of the other party. No permitted assignment will relieve the Receiving Party of its obligations hereunder with respect to Confidential Information disclosed to it prior to such assignment. Any attempted assignment in violation of this Section is void. Subject to the foregoing, this Agreement is binding upon the parties hereto and their respective successors and permitted assigns.
- Governing Law and Venue. This Agreement is governed by and must be construed and enforced in accordance with the laws of the State of Texas without regard to its conflicts of law provisions. Any action arising out of this Agreement must be brought in the state and federal courts located in Collin County, Texas, and Company irrevocably submits to the exclusive jurisdiction and venue of such courts. Company further agrees not to assert or claim that such action or proceeding was brought in an inconvenient court.
- Notice. Any notice or other communication under this Agreement must be in writing and properly addressed to the party to receive notice at its address set forth on the signature page hereto and will be deemed given and received (i) upon receipt if delivered personally; (ii) on the next business day following delivery to a nationally-recognized overnight courier service for next day delivery; and (iii) on the third business day following deposit in the United States mail, registered or certified, return receipt requested. Either party may change its address by giving notice to the other party in the manner required herein.
(a) In the event that any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, such provision will be limited or severed from this Agreement to the minimum extent necessary so that this Agreement otherwise continues in full force and effect.
(b) This Agreement supersedes and replaces all prior discussions and writings related to the subject matter of this Agreement, and constitutes the entire agreement between the parties with respect to the subject matter hereof.
(c) The prevailing party in any action to enforce this Agreement is entitled to recover from the other party, in addition to its damages, its costs and reasonable attorneys’ fees.
(d) No waiver or modification of this Agreement is binding on either party unless made in writing and signed by a duly authorized representative of such party, and no failure or delay by either party in enforcing any right under this Agreement will be deemed a waiver of such right.
(e) This Agreement may be executed by exchange of signature pages by facsimile, portable document format or other means of electronic transmission and in any number of counterparts, each of which is deemed an original and all of which together constitute one and the same instrument.