Non Disclosure and Confidentiality Agreement
THIS NONDISCLOSURE AND CONFIDENTIALITY AGREEMENT (this “Agreement”) is made and entered into on the date listed on the signature page between Impact Health Ltd, a Colorado limited liability company, on behalf of itself and its affiliates (the “Disclosing Party”), on the one hand, and the named person on the signature page (the “Receiving Party”), on the other hand. Disclosing Party and Receiving Party shall sometimes be referred to individually as a “Party” and collectively as the “Parties.”
Now, therefore, the parties hereto agree as follows:
- Purpose. The Parties wish to explore, in strict confidence, the opportunity for Receiving Party to enter into a potential transaction with Disclosing Party (the “Opportunity”), and in connection with the Opportunity, Disclosing Party has agreed to provide to Receiving Party certain nonpublic, confidential or proprietary business, financial, technical, and scientific information or data that Disclosing Party desires Receiving Party to treat as confidential. The Receiving Party will be responsible for any breach of this Agreement by any of its members, managers, partners, affiliates, directors, officers, employees, advisors, representatives, lenders and potential co-investors (collectively, “Representatives”).
- “Confidential Information” means (a) any information disclosed by Disclosing Party to Receiving Party, either directly or indirectly, in writing, orally, or by inspection of tangible objects, including, without limitation, algorithms, business plans, clinical trials, compilations, concepts, customer data, customer lists, customer names, data, design documents, development plans, drafts, drawings, engineering information, financial analyses, financing strategies, forecasts, formulas, feasibility studies, hardware configuration information, know-how, ideas, inventions, investor presentations, market information, marketing plans, memoranda, methods, notes, patents, photographs, prices, processes, products, product plans, projections, records, reports, research, scientific data, specifications, software, source code, strategies, studies, technical information, test results, timelines, trade secrets, or any other information whether or not the same is designated as “confidential” or “proprietary” or words of similar effect (collectively, the “Disclosed Materials”) and (b) any information otherwise obtained, directly or indirectly, by the Receiving Party through inspection, review, or analysis of the Disclosed Materials. Confidential Information may also include information of a third party that is in the possession of Disclosing Party and is disclosed to Receiving Party under this Agreement. Confidential Information shall not, however, include any information that: (i) becomes publicly known and made generally available in the public domain prior to or after the time of disclosure by Disclosing Party through no action or inaction of Receiving Party; (ii) is obtained by Receiving Party from a third party lawfully in possession of such information and without a breach of such third party’s obligations of confidentiality; (iii) is independently developed by Receiving Party without use of or reference to Disclosing Party’s Confidential Information, as shown by documents and other competent evidence in Receiving Party’s possession; or (iv) is lawfully in Receiving Party’s possession prior to the date hereof and is not subject to any duty of confidentiality . Receiving Party and its Representatives further expressly acknowledge and agree that the fact that the Parties are engaging in discussions regarding the Opportunity itself constitutes Confidential Information. Except as expressly authorized under this Agreement, Receiving Party shall not disclose to the press, any investor or stockholder of Disclosing Party, any lender or any other unauthorized third party, that such discussions are taking or have taken place. Receiving Party shall not make any unilateral public disclosure, whether “on” or “off” the record, concerning the substance of such discussions and/or concerning the fact that such discussions have occurred, regardless of whether or not any business arrangement or agreement is achieved by the Parties. Any public disclosure must be approved in writing by Disclosing Party prior to release or publication. The Receiving Party acknowledges and agrees that the Disclosing Party is the owner of all of its Confidential Information, any and all copies thereof, and any and all copyrights, trade secrets, patents, trademarks, design rights and other intellectual or industrial property rights therein or associated therewith. The Receiving Party further acknowledges and agrees that all Confidential Information disclosed by the Disclosing Party to the Receiving Party is and shall remain the Disclosing Party’s property.
- Non-use and Non-disclosure. Receiving Party agrees not to use the Confidential Information for any purpose except to evaluate the Opportunity. Receiving Party shall not disclose the Confidential Information without the prior written consent of Disclosing Party and shall maintain the secrecy and confidentiality of the Confidential Information. Receiving Party shall not, without the prior written consent of the Disclosing Party, use the Confidential Information for personal gain, personal benefit or any purpose other than to evaluate and engage in discussions with the Disclosing Party regarding the Opportunity; provided, however, that Receiving Party may disclose the Confidential Information to its Representatives who have: (i) a bona fide and articulable need to have the information in order for Receiving Party to evaluate or engage in discussions concerning the Opportunity; (ii) been expressly informed by Receiving Party of the confidential nature of the Confidential Information; and (iii) agreed in writing to be bound by this Agreement or who are otherwise legally bound in writing to protect Confidential Information as provided in this Agreement. Receiving Party shall not: (i) reverse engineer, disassemble or decompile any prototypes, software or other tangible objects that embody the Confidential Information and that are provided to, inspected by or worked on by the Receiving Party under this Agreement; (ii) attempt to or assist others to develop, produce, market or sell any product or provide any service based on or utilizing, in whole or in part, any such Confidential Information; or (iii) make copies, excerpts or summaries of any Confidential Information without first requesting and receiving the Disclosing Party’s prior written consent to such action. If Receiving Party receives notice of a request enforceable by law requiring that it disclose or produce any Confidential Information to a court, other governmental agency, private litigant or the like, Receiving Party and its Representatives shall, if legally permitted, provide Disclosing Party with prompt written notice of such requirement sufficiently in advance of such required disclosure to allow Disclosing Party an opportunity to seek a protective order or other appropriate relief prohibiting or limiting such disclosure, and the Receiving Party shall provide such assistance as Disclosing Party may reasonably request in obtaining such order or other relief. Subject to compliance with the foregoing sentence, the Receiving Party may furnish that portion (and only that portion) of the Confidential Information that the Receiving Party is legally compelled or is otherwise legally required to disclose.
- Maintenance of Confidentiality. Receiving Party agrees that it shall protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the foregoing, Receiving Party shall take at least those measures to protect the Confidential Information as it takes to protect its own confidential information of a similar nature, but in no case less than reasonable care. Receiving Party shall ensure that any Representatives who have access to the Confidential Information have signed a non-use and non-disclosure agreement in content no less restrictive than the provisions of this Agreement or are otherwise legally obligated not to disclose such Confidential Information, prior to any disclosure of Confidential Information to such potential investors or employees. Receiving Party shall not make any copies of the Confidential Information except upon Disclosing Party’s prior written approval. Receiving Party shall reproduce Disclosing Party’s proprietary rights notices on any such authorized copies, in the same manner in which such notices were set forth in or on the original. Receiving Party shall immediately notify Disclosing Party of any use or disclosure of the Confidential Information in violation of this Agreement of which Receiving Party becomes aware.
- No Obligation. Nothing in this Agreement shall obligate either Party to proceed with any transaction between them, and each Party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement concerning the Opportunity, provided, that this Agreement shall continue in full force and effect in perpetuity notwithstanding the termination of such discussions.
- No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS.” THE DISCLOSING PARTY MAKES NO WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED OR OTHERWISE, REGARDING THE PROVISION OF THE CONFIDENTIAL INFORMATION, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR OF MERCHANTABILITY.
- Return or Destruction of Confidential Information. All documents and other tangible objects containing or representing the Confidential Information, and all copies or extracts thereof, that are in the possession of Receiving Party, shall be and remain the property of Disclosing Party. Within five (5) calendar days following delivery by the Disclosing Party to the Receiving Party of a written request that all or specified portions of the Confidential Information be returned to the Disclosing Party, the Receiving Party shall assemble and return to the Disclosing Party (or alternatively, with the consent of the Disclosing Party, shall destroy) all such Confidential Information, including all copies, excerpts and/or summaries thereof, that remains in the Receiving Party’s possession, custody or control at that time. Within five (5) calendar days following either Party’s election not to continue discussions regarding the Opportunity or not to proceed with or continue any transaction or relationship between the Parties, the Receiving Party shall assemble and return to the Disclosing Party (or alternatively, with the consent of the Disclosing Party, shall destroy) all Confidential Information, including all copies, excerpts and/or summaries thereof, that remains in the Receiving Party’s possession, custody or control at that time. In either case, an officer of the Receiving Party shall certify in writing to the Disclosing Party that the specified Confidential Information has been returned or destroyed, as the case may be.
- No License. Nothing contained in this Agreement is intended as or may be deemed or construed to constitute the grant of a license or other right by the Disclosing Party to the Receiving Party in any Confidential Information or in any patents, copyrights, trademarks, trade secret rights or other proprietary rights of the Disclosing Party under any intellectual property principles or laws.
- Export Laws. The Parties acknowledge that the export laws of the United States may apply to the export of information disclosed hereunder outside of the United States, and each Party shall be solely responsible for compliance therewith.
- Availability of Equitable Relief. Receiving Party understands and agrees that its breach or threatened breach of this Agreement will cause irreparable injury to Disclosing Party and that money damages will not provide an adequate remedy for such breach or threatened breach, and Receiving Party hereby agrees that, in the event of such a breach or threatened breach, Disclosing Party will be entitled, without the requirement of posting a bond or other security, to obtain equitable relief, including injunctive relief and specific performance. Disclosing Party’s rights under this Agreement are cumulative, and Disclosing Party’s exercise of one right shall not waive Disclosing Party’s right to assert any other legal remedy. Disclosing Party shall be entitled to recover all of its direct, indirect, and consequential damages (including attorneys’ fees) from Receiving Party for any breach or threatened breach of this Agreement.
- Counterparts and Facsimiles. The Parties may execute this Agreement in counterparts, each of which is deemed an original, but all of which together constitute one and the same agreement. This Agreement may be delivered by facsimile or electronic transmission, including by e-mail as a PDF, and facsimile or PDF copies of executed signature pages shall be binding as originals.
- Miscellaneous. If any provision of this Agreement is found to be illegal or unenforceable, the other provisions shall remain effective and enforceable to the greatest extent permitted by law. This Agreement shall benefit and bind Receiving Party and its Representatives and their respective successors, heirs, legal representatives and permitted assigns. This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of Colorado. The Parties and their respective Representatives accordingly agree that exclusive jurisdiction of any dispute which may arise hereunder shall lie in the state or Federal courts located in the State of Colorado. The prevailing Party in any legal action arising under or relating to this Agreement shall be entitled to recover costs, expenses and reasonable attorneys’ fees (including on appeal) from the non-prevailing Party. This Agreement constitutes the entire agreement between the Parties and their respective Representatives and supersedes all prior written and oral agreements between the Parties and their respective Representatives regarding the subject matter of this Agreement. Receiving Party shall not assign, transfer or delegate the rights and obligations created by this Agreement without the express prior written consent of Disclosing Party. No provision of this Agreement may be waived except by a writing executed by the Party against whom the waiver is to be effective. A Party’s failure to enforce any provision of this Agreement shall neither be construed as a waiver of the provision nor prevent the Party from enforcing any other provision of this Agreement. No provision of this Agreement may be amended or otherwise modified except by a writing signed by the Parties to this Agreement. The Parties and their respective Representatives agree that each of them and/or their respective counsel has reviewed and had the opportunity to revise this Agreement and, therefore, the Agreement shall not be construed against the Party preparing it, but shall be construed as if all Parties jointly prepared this Agreement and any uncertainty and ambiguity shall not be interpreted against any one Party.
IN WITNESS WHEREOF, the Receiving Party hereto has executed this Agreement as of the day, month, and year below.
Impact Health Ltd
4833 Front Street
Castle Rock, CO 80109
Receiving Party Information to be filled in below: