This Confidentiality Agreement (“Agreement”) is entered into on this day (“Effective Date”), by and between ACI Fund 2, LLC, a Delaware limited liability company and its affiliates ("TableFunder"), and you, the undersigned and any affiliates (“Company”). TableFunder and Company shall hereinafter be referred to sometimes individually as “Party” and collectively as “Parties”.
WHEREAS, either Party may disclose, from time to time, Confidential Information (as defined hereunder), to the other Party, pertaining to their respective activities, whether financial, technological or other, for the purpose of examining a potential business engagement between the Parties in connection with TableFunder’s products and/or services (“Purpose”), and other information deemed by either Party as being Confidential Information; and
WHEREAS, the Parties would like to protect the confidentiality of, maintain their respective rights in, and prevent the unauthorized use and disclosure of such Confidential Information.
NOW, THEREFORE, the Parties hereby agree as follows:
1. Confidential Information. The Parties agree that all information disclosed by the disclosing Party to the receiving Party, whether in oral form, visual form or in writing, including but not limited to, all specifications, formulas, prototypes, computer programs and any and all records, data, ideas, methods, techniques, processes and projections, plans, marketing information, materials, financial statements, memoranda, analyses, notes, legal documents and other data and information (in whatever form), as well as improvements, patents (whether pending or duly registered), trade secrets and any know-how related thereto, relating to the disclosing Party, and information learned by the receiving Party from the disclosing Party through the inspection of the disclosing Party’s property, that relates to disclosing Party’s products, designs, business plans, business opportunities, finances, research, development, know-how, personnel or third-party confidential information, will be considered and referred to collectively in this Agreement as “Confidential Information”. Confidential Information shall not include information that: (i) is now or subsequently becomes generally available in the public domain through no fault or breach on the part of receiving Party; (ii) the receiving Party can demonstrate in its records to have had rightfully in its possession prior to disclosure of the Confidential Information by the disclosing Party; (iii) the receiving Party rightfully obtains from a third party who has the right to transfer or disclose it, without default or breach of this Agreement; or (iv) the receiving Party can demonstrate in its records to have independently developed, without breach of this Agreement and/or any use of the Confidential Information. Notwithstanding the above, Confidential Information may be disclosed pursuant to the order or requirement of a court, administrative agency or other governmental body; provided, however, that the receiving Party shall provide prompt written notice of such court order or requirement to the disclosing Party to enable the disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure.
2. Non-disclosure and Non-use of Confidential Information. The receiving Party agrees to accept and use Confidential Information solely for the Purpose. The receiving Party will not disclose, publish or disseminate Confidential Information to a third party other than those of its employees and consultants with a need to know such in connection with the Purpose. The receiving Party further agrees to take reasonable precautions to prevent any unauthorized use, disclosure, publication or dissemination of Confidential Information, ensure that such receiving Party’s employees and consultants fully perform the duties and obligations hereunder and, in any event, the receiving Party shall remain liable at all times for any acts and/or omissions of its employees and consultants with respect to the disclosing Party’s Confidential Information. The receiving Party will immediately notify the disclosing Party in the event of any loss or unauthorized disclosure of any Confidential Information. The receiving Party agrees not to use Confidential Information otherwise for its own or any third party’s benefit without the prior written approval of an authorized representative of the disclosing Party in each instance. The receiving Party shall not reverse engineer, decompile or disassemble any Confidential Information disclosed to it by the disclosing Party. In performing its duties and obligations hereunder, the receiving Party agrees to use at least the same degree of care as it does with respect to its own confidential information of like importance but, in any event, at least reasonable care. Further, the receiving Party agrees that it shall not make any copies of the Confidential Information on any type of media, without the prior express written permission of the authorized representative of the disclosing Party.
3. No License. All Confidential Information, and any derivatives thereof is and shall remain the property of the disclosing Party and no license or other rights to Confidential Information is granted or implied hereby to have been granted to the receiving Party, now or in the future.
4. No Representation or Warranty. THE CONFIDENTIAL INFORMATION AND ANY OTHER INFORMATION IS PROVIDED BY THE DISCLOSING PARTY “AS IS”, WITHOUT ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS OR IMPLIED, AS TO ITS ACCURACY OR COMPLETENESS, OPERABILITY, USE, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
5. Return of Confidential Information. Upon the expiration or termination of this Agreement, or upon the disclosing Party’s written request, the receiving Party must cease all use of Confidential Information received hereunder and return or destroy all such Confidential Information, as directed by the disclosing Party, including all copies thereof (irrespective of whether such copies were furnished by the disclosing Party or were prepared by the receiving Party), and, if destroyed, furnish the disclosing Party with written certification of destruction.
6. No Obligation or Joint Venture. Neither this Agreement nor the disclosure or receipt of Confidential Information shall constitute or imply any obligation or intention by either Party to make any purchase or sale or otherwise enter into any other business relationship with the other Party. Further, this Agreement is not a joint venture or other such business arrangement, and any agreement, if at all, between the Parties will be set forth in subsequent written agreements, at the absolute discretion of the Parties. For the avoidance of doubt, it is hereby clarified that disclosure of Confidential Information shall be at the sole discretion of the disclosing Party.
7. Equitable Relief. The receiving Party hereby acknowledges that unauthorized disclosure or use of Confidential Information could cause irreparable harm and significant injury to the disclosing Party that may be difficult to ascertain. Accordingly, the receiving Party agrees that the disclosing Party, in addition to any other right or remedy that it may have available to it at law or in equity, will have the right to seek equitable relief, including immediate injunctive relief and specific performance to enforce obligations under this Agreement without the necessity of proving actual damages, posting bond or making any undertaking in connection therewith.
8. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the state of Texas and the obligations, rights and remedies of the Parties shall be determined in accordance with such laws without regard to the conflict of laws principles thereof. Each Party hereto hereby expressly and irrevocably submits to the exclusive jurisdiction of the federal and state courts of the state of Texas for purposes of all legal proceedings arising out of or relating to this Agreement or the services performed hereunder. Each Party irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of the venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum. Each Party hereto hereby consents to process being served in any suit, action or proceeding with respect to this Agreement, or any document delivered pursuant hereto by the mailing of a copy thereof by registered or certified mail, postage prepaid, return receipt requested, to its respective address specified at the time for notices under this Agreement.
9. Entire Agreement. This Agreement constitutes the entire agreement with respect to the Confidential Information disclosed herein and supersedes all prior or contemporaneous oral or written agreements concerning such Confidential Information. This Agreement may not be amended, modified, supplemented, or terminated except by the written agreement signed by authorized representatives of both Parties.
10. Term. This Agreement shall govern the communications relating to Confidential Information between the Parties during the period of 1 year as of the Effective Date, unless terminated earlier by either Party upon a 30-day written notice to the other Party. The obligations set forth in this Agreement shall bind the Parties for a period of 5 years from the date of termination or expiration of this Agreement.
11. Assignment. This Agreement shall not be assignable by either Party without the prior written consent of the other Party, and any purported assignment not permitted hereunder shall be construed null and void.
12. Miscellaneous. No failure or delay in exercising any right, power, or privilege hereunder shall operate as a waiver thereof. This Agreement shall inure to the benefit of TableFunder’s successors and assigns. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original of which, taken together, shall be deemed to be one and the same instrument. TableFunder reserves the right, in its sole discretion, to reject any and all proposals made by Company related to the Purpose. It is understood and agreed that no contract or agreement providing for any business transaction involving TableFunder and Company shall be deemed to exist until a definitive agreement has been executed and delivered, and Company hereby waives, in advance, any claims (including, without limitation, breach of contract) in connection with any business transaction unless and until Company and TableFunder shall have entered into a final definitive agreement regarding any such business transaction(s). This Agreement and the provision of Confidential Information shall not be construed as creating any obligation of TableFunder to provide any Confidential Information or other information, and TableFunder shall not be obligated to disclose any information that, in its sole discretion, it determines not to disclose. TableFunder reserves the right, in its sole discretion, to terminate discussions with Company at any time.