TERMS AND CONDITIONS
1. Recitals. All the foregoing Recitals are true and correct and are incorporated as part of these Terms and Conditions.
2. Definition of Confidential Information. For purposes of this Agreement, “Confidential Information” includes all non-public, confidential, and proprietary information disclosed by the Disclosing Party to the Receiving Party, including but not limited to specifications, requirements, financial information, intellectual property, trade secrets, Personally Identifiable Data, business plans, and other information related to the Disclosing Party and the Limited Purpose. This includes all analyses, consultations, and other documents prepared by or on behalf of the Disclosing Party or its Representatives (collectively, “Representatives”) that contain or reflect such information. “Personally Identifiable Data” means any information that: (a) directly or indirectly identifies an individual (e.g., names, signatures, addresses, telephone numbers, email addresses, and other unique identifiers); (b) can be used to authenticate an individual (e.g., employee identification numbers, government-issued identification numbers, passwords or PINs, user identification and account access credentials, financial account numbers, credit report information, biometrics, answers to security questions, and other personal identifiers); or (c) is defined as such or protected under applicable data protection laws, including sensitive personal data or employee personal data. The Confidential Information, together with all intellectual property rights embodied therein, is the sole and exclusive property of the Disclosing Party, and the Disclosing Party retains all right and title to such proprietary rights.
3. Website Access as Precondition to Confidential Information. The execution of this Agreement by the Receiving Party is an express precondition to accessing the Disclosing Party’s website, the information contained thereon, and any Confidential Information. No access shall be granted until this Agreement is fully executed by both Parties. The Receiving Party acknowledges that by executing this Agreement, it agrees to be bound by all terms and conditions herein regarding the access, use, protection, and non-disclosure of the Confidential Information and website.
4. Authorized Use. The Receiving Party shall use the Disclosing Party’s website and Confidential Information solely for the Limited Purpose of evaluating a potential investment in the Disclosing Party. The Receiving Party shall not use the website or Confidential Information for any other purpose without the prior written consent of the Disclosing Party. Acceptance and review of the website or Confidential Information shall not grant the Receiving Party any license or right to use the website or Confidential Information for any purpose other than the Limited Purpose until a formal written contract is executed with the Disclosing Party.
5. Prohibited Activities. The Receiving Party shall not, and shall cause its Representatives not to:
- alter, maintain, enhance, or otherwise modify any Confidential Information or any software, code, or digital assets included within the website or Confidential Information;
- disassemble, decompile, or reverse-engineer any software, code, or digital assets included within the website or Confidential Information;
- download, copy, or extract information from the website except as strictly necessary for the Limited Purpose;
- share access credentials with any unauthorized third party; or,
- otherwise take action to discover the equivalent of any Confidential Information contained on the website or otherwise provided.
6. Security Measures. The Receiving Party shall implement and maintain appropriate technical, organizational, and physical safeguards to protect the security and integrity of the website and the Confidential Information, including protection against unauthorized access, disclosure, alteration, or destruction. The Receiving Party shall immediately notify the Disclosing Party of any actual or suspected unauthorized access or security breach related to the website or Confidential Information. The Receiving Party shall use its best efforts to maintain information security protocols to secure and protect the confidentiality of the website and Confidential Information in its or its Representatives’ possession or control.
7. Intellectual Property Rights. All content on the website, and Confidential Information, including but not limited to text, graphics, logos, images, audio clips, digital downloads, data compilations, and software, is the property of the Disclosing Party and is protected by United States and international copyright, trademark, and other intellectual property laws. Nothing in this Agreement shall be construed as granting the Receiving Party any license, right, title, or interest in any intellectual property displayed on or accessible through the website or to the Confidential Information.
8. Confidentiality Obligations. All content on the website and Confidential Information shall be held in the strictest confidence, used solely for the Limited Purpose, and shall not be disclosed by the Receiving Party or its Representatives to any person or entity other than those directly or indirectly involved in the evaluation for the Limited Purpose, and only if such Representatives agree in writing to be bound by the terms of this Agreement. The Receiving Party shall be responsible for any breach of this Agreement by its Representatives.
9. Compelled Disclosure. If the Receiving Party or its Representatives (the “Compelled Party”) become legally compelled to disclose any content on the website, or Confidential Information, the Compelled Party shall, to the extent permitted by applicable law, provide the Disclosing Party with prompt written notice sufficient to permit the Disclosing Party to seek a protective order or other remedy. If such protective order or remedy is not obtained, or if the Disclosing Party waives compliance, the Compelled Party shall disclose only the portion of content on the website or Confidential Information legally required, as advised by written opinion of counsel, and shall exercise best efforts to obtain assurance that confidential treatment will be accorded such Confidential Information.
10. Non-Circumvention. During the term of this Agreement, the Receiving Party shall not make any effort to circumvent the terms of this Agreement to gain the benefits of the content of the website or Confidential Information provided by the Disclosing Party.
11. Representations and Warranties. The Receiving Party represents, warrants, and covenants that:
- it complies, and will require its Representatives to comply, with all applicable federal, state, foreign, or other laws, including privacy and data protection laws, in connection with the receipt and use of the Confidential Information and the website;
- performance of its obligations herein does not violate any other contract or obligation;
- it is not legally or contractually prohibited from discussing, receiving information about, or entering into a potential relationship with the Disclosing Party; and
- it has implemented and will maintain information security protocols to protect the confidentiality of all content of the website and Confidential Information.
12. Termination of Access. The Disclosing Party reserves the right, in its sole discretion, to suspend or terminate the Receiving Party’s access to the website at any time, with or without cause and without prior notice. Upon termination of this Agreement or at the Disclosing Party’s request, the Receiving Party’s right to access the website shall immediately cease, and the Receiving Party shall promptly destroy or return all Confidential Information in accordance with Section 14. The obligations of confidentiality and non-use shall survive any termination of access.
13. Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, without giving effect to any choice of law or conflict of law provisions. Any dispute arising out of or relating to this Agreement shall be brought exclusively in the state or federal courts located in Broward County, Florida. The Parties irrevocably submit to the personal jurisdiction of such courts and waive any objection to jurisdiction, venue, or forum non conveniens. In the event of litigation, if a court determines in a final, nonappealable order that this Agreement has been breached, the breaching Party shall reimburse the other Party for its costs and expenses, including legal fees, incurred in connection with such litigation.
14. Return or Destruction of Confidential Information. Upon termination of this Agreement or at the Disclosing Party’s request, the Receiving Party shall either: (a) promptly destroy all copies of the content of the website and Confidential Information (including in written, electronic, or other tangible form) in its or its Representatives’ possession and confirm such destruction in writing; or (b) promptly deliver to the Disclosing Party, at the Receiving Party’s expense, all copies of the content of the website and Confidential Information. The Receiving Party shall not retain any copies, notes, or other writings based on the content of the website or Confidential Information. The obligations of confidentiality and non-use shall continue: (i) for trade secrets, as long as they remain trade secrets under applicable law; or (ii) for other Confidential Information, for a term of five years from the date of termination.
15. No Warranties. The information contained on the website and all Confidential Information is provided “as is,” and the Disclosing Party makes no representations or warranties, express or implied, including warranties of merchantability, fitness for a particular purpose, non-infringement, or those arising from a course of performance, dealing, or trade usage. The Disclosing Party shall have no liability for any reliance on the information contained on the website Confidential Information by the Receiving Party or its Representatives. 16. Injunctive Relief. In the event of a breach or threatened breach of this Agreement, the Disclosing Party shall be entitled to seek injunctive relief, including temporary restraining orders or preliminary or permanent injunctions, as well as all other remedies available in law and equity, without the need to plead irreparable harm, lack of adequate remedy at law, or post any bond.
17. No Implied Obligations. Nothing in this Agreement shall be construed as granting the Receiving Party any right, title, or interest in the content of the website or Confidential Information or any license to use, sell, exploit, copy, or further develop it, except for the Limited Purpose. Unless a final definitive agreement regarding the Limited Purpose is executed, neither Party shall have any legal obligation with respect thereto, except as provided herein. Each Party reserves the right to reject any proposals and terminate discussions at any time.
18. Non-Exclusivity. Nothing herein requires either Party to proceed with any proposed transaction or relationship. Each Party may terminate discussions at any time, provided that the restrictions herein survive indefinitely. Each Party may engage in discussions with third parties concerning the subject matter of this Agreement, provided such discussions comply with the obligations herein.
19. Miscellaneous.
- Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter and supersedes all prior agreements and communications.
- Non-Assignability. This Agreement is personal to the Parties and shall not be assigned or transferred without the prior written consent of the other Party.
- Severability. If any provision is held invalid, illegal, or unenforceable, the remaining provisions shall remain in full force and effect.
- Waiver. No failure or delay in exercising any right hereunder shall operate as a waiver, nor shall any single or partial exercise preclude further exercise of any right.
- Counterparts. This Agreement may be executed in counterparts, each deemed an original, and delivery by facsimile, email, or other electronic means shall have the same legal effect as an original signed copy.
- Publicity. Without prior written consent, neither Party shall refer to the other Party or attribute information to the other Party in external communications, including press releases, websites, or conversations with third parties.
- Jury Trial Waiver. The Parties knowingly, voluntarily, and intentionally waive any right to a trial by jury with respect to any litigation arising out of or in connection with this Agreement and consent to a non-jury trial.
- Notices. All notices under this Agreement shall be in writing and delivered to the addresses below by: (a) certified mail, return receipt requested; (b) nationally recognized overnight courier; or (c) email with confirmation of receipt. Notices shall be deemed received upon: (i) receipt when delivered personally; (ii) the next business day when sent by overnight courier; or (iii) three business days after deposit in the mail when sent by certified mail.