and EQUIPMENT FIRST, LLC to ensure the protection of the confidential nature of certain non-public, confidential and proprietary information to be disclosed or made available to each other.
Equipment First, LLC and _______________________hereinafter may be individually referred to as a “Party” and jointly referred to as the “Parties
1. Purpose. The Parties wish to explore a potential business relationship in connection with strategic advisory services, including but not limited to identifying potential buyers or investors, facilitating debt restructuring, and securing capital infusion opportunities (the “Transaction”) and in connection with this opportunity, each party may disclose to the other certain Confidential Information that the disclosing party desires the receiving party to treat as confidential.
2. Definition of Confidential Information. Subject to the exceptions set forth in Section 3, “Confidential Information” means any non-public, confidential and/or proprietary information or data disclosed by either party to the other, either directly or indirectly, that is clearly identified in writing at the time of disclosure as confidential as well as any non-public, confidential and/or proprietary information that, based on the circumstances under which it was disclosed, a reasonable person would believe to be confidential, whether such Confidential Information is disclosed orally or in writing.
3. Exceptions. The term "Confidential Information" shall not be deemed to include information that: i.) is or becomes publicly known and generally available in the public domain through no act or omission of the receiving party; ii.) is known by the receiving party, without confidentiality restrictions, at the time of receiving such information as evidenced by its contemporaneous written records; iii.) is lawfully disclosed to the receiving party by a third party without restriction on use or disclosure; iv.) is independently developed by or for the receiving party without use of or reference to the other party’s Confidential Information as evidenced by its contemporaneous written records; or v.) is required by law, regulation or a valid ordr of a court or other governmental authority to be disclosed; provided, however, that a party who has been subpoenaed or otherwise compelled by a valid law, regulation or court order to disclose Confidential Information shall first have given prompt written notice to the other party of the receipt of any subpoena or other request for such disclosure (to the extent legally permitted to do so); and shall have made a reasonable effort to obtain a protective order requiring that the Confidential Information so disclosed be used only for the purposes for which the order was issued.
4. Mutual Obligations. Each party shall maintain the other party’s Confidential Information in confidence and shall not disclose any of the other party’s Confidential Information, or the existence of any discussions relating to a possible Transaction, to any third party (other than its Representatives) or use any Confidential Information for any unauthorized purpose. Each party may use such Confidential Information only in connection with the evaluation of the Transaction. The receiving party shall not reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the other party’s Confidential Information and which are provided to the receiving party hereunder.
5. Disclosure to Representatives. Each party shall advise its “Representatives” (as defined below) who may have access to Confidential Information of the other party of the confidential nature thereof and of their duty to protect such Confidential Information from improper disclosure and agrees that it will be responsible for the actions of such Representatives. The parties agree not to disclose any Confidential Information to any Representative who does not have a need for such information. For the purposes of this Section 5, the term "Representatives" shall mean employees, directors, officers, consultants, legal counsel, advisors and other agents of the receiving party only to the extent such persons are actually provided with access to the Confidential Information, by or at the receiving party’s request. Each party shall cause all of its Representatives to comply with the provisions of this Agreement as fully as if they were a party hereto.
6. Return of Materials. All Confidential Information shall remain the property of the disclosing party and shall be promptly destroyed or returned to the disclosing party upon request of the disclosing party, and in any event, upon completion or termination of this Agreement; provided, however, that the receiving party i.) may retain any attorney work produced created in connection with a potential Transaction, ii.) will not be obligated to erase any Confidential Information that is contained in an archived computer system backup in accordance with the receiving party’s security and/or disaster recovery procedures, and iii.) may retain one copy of all Confidential Information for archival or record retention purposes, provided that such retained copies shall remain subject to the terms of this Agreement.
7. Remedies. Each party hereby acknowledges and agrees that in the event of any breach of this Agreement by the other party, including, without limitation, the actual or threatened disclosure or unauthorized use of a disclosing party's Confidential Information without the prior express written consent of the disclosing party, the disclosing party may su^er an irreparable injury, such that no remedy at law may afford it adequate protection against, or appropriate compensation for, such injury. Accordingly, each party hereby agrees that the other party shall be entitled to seek specific performance of the receiving party’s obligations under this Agreement and attorneys’ fees and costs in any action successfully brought to enforce this Agreement, as well as such further relief as may be granted by a court of competent jurisdiction.
8. Severability. If any provision of this Agreement is found by a proper authority to be unenforceable, that provision shall be severed, and the remainder of this Agreement will continue in full force and effect.
9. Governing Law. This Agreement shall be governed by the laws of the State of Arizona, without reference to conflict of laws principles.
10. Notices. Any notices required or permitted hereunder shall be given to the appropriate representative of a party at the address specified below or at such other address as the party shall specify in writing. Such notice shall be deemed given upon the personal delivery, or sent by certified or registered mail, postage prepaid, three (3) days after the date of mailing.
11. Accuracy; Ownership. ALL CONFIDENTIAL INFORMATION IS PROVIDED BY THE DISCLOSING PARTY ON AN “AS IS” BASIS INCLUDING AND DEFECTS, ERRORS, OR DEFICIENCIES, AND WITHOUT ANY REPRESENTATION OR WARRANTY AS TO COMPLETENESS OR ACCURACY. A party disclosing Confidential Information shall not be deemed to have made, and disclaims and excludes, any representation or warranty as to the accuracy or completeness of such Confidential Information. All rights to and ownership of Confidential Information shall remain with the disclosing party and no title, interest or license is conveyed hereby.
12. Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties relative to the subject matter hereof and supersedes all prior and contemporaneous understandings and agreements relating to its subject matter.
13. No Obligation. Nothing in this Agreement shall be construed to obligate either Party to disclose any particular Confidential Information, to engage in negotiations, or to enter into or consummate any transaction with the other Party. Moreover, this Agreement and any disclosures made hereunder shall not be deemed to create a joint venture, partnership, agency, or any other form of business relationship between the Parties. Any such relationship or commitment shall arise only through a separate written agreement duly executed by both Parties.
14. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one agreement. Signatures delivered by facsimile, email, or other electronic means shall have the same legal effect as original signatures.
15. Cross Border Compliance. Each Party represents and warrants that it shall comply with all applicable laws, rules, and regulations of the jurisdiction/country in which it operates in connection with the use, handling, storage, and disclosure of Confidential Information received under this Agreement.
16. Miscellaneous. This Agreement may not be assigned by either party without the prior written consent of the non-assigning party such consent not to be unreasonably withheld or delayed; provided, however, that either party may assign its rights under this Agreement to any successor to the business of such party without the necessity of consent from the other party. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision hereof. This Agreement may not be changed, modified, amended or supplemented except by a written instrument signed by both parties.