MUTUAL NON-DISCLOSURE AGREEMENT

 

This MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”) is made and entered into as of ________________ (the “Effective Date”), by and between Integrity Square LLC (“ISQ”), and ______________ (the “Company”). ISQ and the Company are collectively referred to herein as the “Parties.”

WHEREAS, ISQ and the Company intend to disclose to each other certain confidential information for the purpose of determining whether to enter into one or more business transactions related to __________________________.

WHEREAS, the Parties wish to set forth herein the terms and conditions governing the exchange of such confidential information.
NOW, THEREFORE, in consideration of the premises and the mutual promises and covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, agree as follows:

1. Certain Definitions. For the purposes of this Agreement, the Party disclosing confidential information shall be referred to as the “Disclosing Party,” and the Party receiving such information shall be referred to as the “Recipient.” The term “Confidential Information” shall mean all information and materials, in whatever form, and whether disclosed orally, in writing or otherwise, pertaining to a Party’s (or such Party’s affiliate’s) business, finances, technology, research and development activities, engineering, manufacturing, marketing and/or current or proposed products or services, that is identified or would reasonably be understood by the Recipient as being proprietary or confidential including, without limitation, ideas, concepts, designs, drawings, formulas, recipes, know-how, trade secrets, patent rights, inventions, developments, discoveries, improvements, works of authorship, schematics, systems, processes, methods, techniques, programs, programs, mask works, code, software, databases, tools, research information, test data, specifications, equipment, devices, models, prototypes, analyses, forecasts, projections, strategic plans, accounting and financial data, costs, budgets, profit margins, pricing, marketing materials and programs, client and customer lists, supplier lists, employee information, product roadmaps, and any information concerning the design, testing, operation, performance or utilization of a Party’s products or services, as well as any discussions, communications and/or negotiations concerning the contemplated transaction and the fact that any such discussions, communications and/or negotiations are taking place. Such term shall include all whole and partial copies thereof, and all documents and other materials (including any notes, memoranda, extracts, summaries or analyses), whether in written or electronic form, that disclose or embody such Confidential Information.

2. Exceptions. For purposes of this Agreement, Confidential Information shall not include, and the obligations herein shall not apply to, information that Recipient can demonstrate: (a) is now or subsequently has become generally available to the public through no act or omission of Recipient; (b) was rightfully in Recipient’s possession without confidentiality restriction prior to disclosure to Recipient by the Disclosing Party; (c) was independently developed by Recipient without the use of any Confidential Information provided by the Disclosing Party; or (d) was rightfully obtained by Recipient from a third party who has the right, without obligation to the Disclosing Party, to transfer or disclose such information.

3. Protection of Confidential Information. Recipient acknowledges the confidential and proprietary nature of the Disclosing Party’s Confidential Information and agrees to hold the Disclosing Party’s Confidential Information in confidence and not to disclose, divulge, publish or otherwise make available such Confidential Information to any third party without the prior written consent of the Disclosing Party. Recipient shall take all reasonable precautions to protect the confidentiality of the Confidential Information it receives from the Disclosing Party (including, without limitation, all precautions Recipient uses in its own business to protect its own Confidential Information). The Parties further agree to strictly maintain the confidentiality of the discussions and negotiations concerning the contemplated transaction, including the fact that such discussions and negotiations are taking place, and the Parties shall not disclose, communicate or otherwise reveal any information concerning the discussions and negotiations concerning the contemplated transaction to any third parties or any employees or agents of the Company.

4. Permitted Purpose. The Parties may use the Confidential Information for the sole purpose of exploring a potential business transaction (the “Permitted Purpose”).

5. Provision of Confidential Information to Representatives: Reproduction; Proprietary Rights Legends. Recipient may provide the Confidential Information it receives from the Disclosing Party only to those of its Representatives (as defined below) who: (i) have a need to know such Confidential Information in order to enable Recipient to use such Confidential Information for the Permitted Purpose; and (ii) are legally bound to maintain the confidentiality of the Confidential Information and to limit their use thereof in accordance with the terms and conditions of this Agreement. Recipient acknowledges and agrees that by providing Confidential Information to a Representative in accordance with this Section 5, Recipient is obliged to cause such Representative to act in accordance with this Agreement and that Recipient is responsible to the Disclosing Party for any breach of this Agreement by the Representative. A Party’s “Representatives” shall be deemed to include each person that is or becomes: (a) a subsidiary or other affiliate of such Party; and/or (b) an officer, director, manager, member, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any such Party’s subsidiaries or other affiliates. Recipient agrees not to reproduce or copy by any means Confidential Information, except as reasonably required to accomplish the purposes of this Agreement, and further agrees not to remove any proprietary rights legend from such Confidential Information or copies thereof made in accordance with this Agreement.

6. Judicial Order. This Agreement shall not be construed to prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or valid order of a court or other governmental authority; provided, however, that Recipient shall first have given prompt written notice of such order to the Disclosing Party and shall have taken reasonable steps to assist the Disclosing Party in contesting such order or in otherwise protecting the Disclosing Party’s rights prior to disclosure.

7. Ownership and Return of Confidential Information. The Confidential Information shall be deemed the property of the Disclosing Party. Upon written notification by the Disclosing Party, Recipient’s right to use Confidential Information shall immediately cease. In addition, upon such notification, or upon demand by the Disclosing Party at any time, or upon expiration of this Agreement, Recipient shall: (a) immediately cease using, and return to the Disclosing Party or destroy, at the Disclosing Party’s option, all documents and other materials, that disclose or embody Confidential Information; and (b) certify in writing to the Disclosing Party that Recipient has complied with the obligations set forth in this Section 7.

8. Injunctive Relief. The Parties agree that an impending or existing violation of any provision of this Agreement would cause the Disclosing Party irreparable injury for which it would have no adequate remedy at law, and agree that the Disclosing Party shall be entitled to seek immediate injunctive relief prohibiting such violation, in addition to any other rights and remedies available to it.

9. No Implied License: No Representations or Warranties. No patent, copyright, trademark or other proprietary or intellectual property right is licensed, granted or otherwise transferred by this Agreement or any disclosure hereunder, by implication, estoppel or otherwise, except for the limited right to use the Confidential Information for the Permitted Purpose in accordance with this Agreement. No representations or warranties of any kind (whether express or implied, statutory or otherwise) are given with respect to Confidential Information disclosed under this Agreement or any use thereof and each Recipient and Representative expressly disclaim any and all liability that may be based on Confidential Information provided in good faith and any errors therein or omissions therefrom.

10. No Obligation to Pursue a Transaction. Entering into this Agreement or disclosing or receiving Confidential Information hereunder shall not constitute or imply any promise or commitment of either Party to make any investment in or payment to the other Party or in the business of the other Party, or to enter into any other business arrangement of any nature whatsoever with the other Party, or create or imply any obligation of commitment on or by either Party to purchase, sell or market any products or services of the other Party. Unless the Parties enter into a definitive transaction agreement, no agreement providing for a transaction involving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any such agreement or transaction with the other Party. Each Party recognizes that, except as expressly provided in any binding written agreement between the Parties that is executed after the date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested Party; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party.

11. Terms of Agreement. The terms of this Agreement and the existence of a potential business relationship between the Parties shall be considered Confidential Information of the Parties hereunder.

12. Term. The term of this Agreement commences on the Effective Date and shall continue until with respect to a Recipient until such Recipient no longer has possession of, or access to, Confidential Information.

13. Non-Solicitation. Without the other Party’s prior written consent, no Party will, either directly or indirectly, solicit for employment or employ any person who is employed by the other Party or any of such Party’s affiliates or associated companies, provided, however, that it shall not constitute a breach of this Section 13 if any such employee is employed by a Party following an application for employment by such employee in response to a published search advertisement.

14. General.
(a) This Agreement shall be governed by and construed in accordance with the laws of the State of New York, excluding its choice of law principles.
(b) Without limiting the obligations otherwise imposed upon Recipient hereunder, Recipient agrees not to export, directly or indirectly, the Confidential Information or any U.S. source technical data acquired from the Disclosing Party or any products utilizing such data.
(c) No failure of either Party to exercise any power given to it hereunder or to insist upon strict compliance by the other with any obligation or provision hereunder, and no custom or practice of the Parties at variance with the terms hereunder shall constitute a waiver of the right to demand exact compliance with the terms hereof. Waiver by a non-defaulting Party of any right arising from a default of the other Party shall not affect or impair the rights of the non-defaulting Party with respect to any subsequent default by the other Party of the same or of a different nature.
(d) If any provisions of this Agreement, or portion thereof, is held invalid by any law, rule, order or regulation of any government or by the final determination of any court of competent jurisdiction, such invalidity shall not affect the enforceability of any of the other provisions of this Agreement, and such other provisions shall be interpreted so as to best accomplish the objectives of such invalid provision within the limits of applicable law or applicable court decision.
(e) Neither this Agreement nor any rights granted hereunder may be sold, assigned or transferred by a Party (by operation of law or otherwise) without the prior written consent of the other Party.
(f) This Agreement constitutes the complete and final agreement between the Parties, and supersedes all prior or contemporaneous agreements, representations or understandings, written or oral, concerning the subject, matter hereof. No modification, alteration or waiver of any provision hereof shall be binding upon the Parties unless evidenced in writing and signed by both Parties.
(g) This Agreement may be signed in two or more counterparts and the signatures delivered by facsimile, each of which counterparts shall be deemed an original, but all of which together shall constitute one and the same agreement, with the same effect as if the signatures were upon the same instrument and delivered in person.

IN WITNESS WHEREOF, the Parties have executed this Agreement by their duly authorized representatives under seal as of the Effective Date.