Terms
Confidentiality and
Non-Disclosure Agreement
Last updated: December 2022
This Confidentiality and Non-Disclosure Agreement is only effective upon accepting these terms, by signature or other electronic method. To execute by signature, please reach out to your Pax8 contact.
1. Definitions.
“Affiliate” means, with respect to a Person, any Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with such Person.
“Business Purpose” means the evaluation or undertaking of a possible business relationship between the Parties.
“Confidential Information” includes all information, whether in oral, written, graphic or machine-readable form, or revealed by observation of facilities, equipment or devices, relating to any of the following: ideas (whether currently implemented or not); business plans and strategies; marketing plans and strategies; customer information and pricing; supplier information and pricing; standard operating procedures and operational methods; technology, technical data, calculations, specifications, software, developments, formulae, discoveries, inventions, and improvements; financial results, projections, and pro formas; trade secrets; know-how; or any other information that a reasonable person would deem to be confidential. Confidential Information will not include information that: (a) was already known to Receiving Party at the time that it was disclosed to Receiving Party; (b) is or becomes publicly known through no wrongful act of Receiving Party; (c) is received by Receiving Party from a third party not affiliated with Disclosing Party and which third party has the right to disseminate the information without restriction on disclosure; (d) is approved for release by written authorization of Disclosing Party; or (e) is independently developed by Receiving Party without access to, or use of, Disclosing Party Confidential Information. No portion of Confidential Information will be construed as coming within exceptions (a) through (e) solely on the basis that more generalized information embracing such portion of Confidential Information falls within any of the exceptions or on the basis that elements of such portion of the Confidential Information are independently within any of the exceptions.
“Control” means, with respect to a Person (a) the ownership of 50% or greater of the stock, partnership, member, voting or other equity interest in such Person or, in the case of a limited partnership, in the general partner of such Person, or (b) the power to direct or cause the direction of the management or policies of such Person.
“Disclosing Party” means a Party that discloses Confidential Information to the other Party.
“Document” means any writing, instrument, agreement, letter, memorandum, chart, graph, blueprint, photograph, financial statement or data, telex, facsimile, email, cable, tape, disk or other electronic, digital, magnetic, laser, or other recording or image in whatever form or medium.
“Party” means Pax8 or Second Party, individually; and “Parties” means Pax8 and Second Party, collectively.
“Person” means any natural person, corporation, company, limited liability company, partnership, joint venture, trust, proprietorship or other entity, organization or association of any kind.
“Receiving Party” means a Party that receives Confidential Information from Disclosing Party.
“Representatives” means directors, members, officers, employees, lenders, agents, principals, financial advisors, financing sources, consultants, attorneys, accountants and other representatives of a Party.
2. Duty of Receiving Party.
Receiving Party will: (a) hold the Disclosing Party Confidential Information in confidence and take all necessary precautions to protect the Disclosing Party Confidential Information from disclosure to any third party; (b) treat all Disclosing Party Confidential Information with at least the same degree of care as it treats its own Confidential Information, but in no case will the degree of care be less than reasonable care; (c) not disclose or permit the disclosure of any Disclosing Party Confidential Information or any information derived therefrom to any other Person; (d) not make any use whatsoever at any time of Disclosing Party Confidential Information except for the Business Purpose; (e) provide Disclosing Party Confidential Information only to such of its Representatives who have a bona fide need to have access to such Confidential Information in order for Receiving Party to carry out the Business Purposes and who are parties to a written agreement protecting third party confidential information; provided, however, that Receiving Party shall be responsible and liable for any use or disclosure of Disclosing Party Confidential Information by such parties in violation of this Agreement; (f) not copy, create derivative works of, modify or reverse engineer, disassemble, or otherwise attempt to derive the composition or underlying information, structure or ideas, of any Disclosing Party Confidential Information; and (g) promptly notify Disclosing Party upon discovery of any loss or unauthorized disclosure of any Disclosing Party Confidential Information. Notwithstanding anything herein to the contrary, Receiving Party will be allowed to disclose Disclosing Party Confidential Information to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body, in which case Receiving Party will notify Disclosing Party of such required disclosure promptly and in writing and cooperate with Disclosing Party in any lawful action to contest or limit the scope of such required disclosure.
3. Representations and Warranties.
Disclosing Party represents and warrants to Receiving Party that it has the full right, power and authority to disclose or make available the Confidential Information to Receiving Party as provided in this Agreement without the violation of any contractual, legal or other obligations to any Person. Disclosing Party specifically disclaims and makes no representation or warranty, express or implied, as to the quality, accuracy, completeness, usefulness or reliability of the Confidential Information or any portion thereof. The Parties acknowledge and agree that only the express representations and warranties relating to the quality, accuracy, completeness, usefulness or reliability of the Confidential Information as may be contained in a definitive agreement relating to any potential transaction relating to the Business Purposes shall be binding on the Parties, and then only if and when such an agreement has been duly authorized, executed and delivered by the Parties.
4. Disclaimer and Indemnity.
Receiving Party acknowledges and agrees that Disclosing Party Confidential Information is being provided solely for the purposes of assisting Receiving Party in conducting its own independent evaluation in connection with the Business Purposes, and Receiving Party shall satisfy itself fully as to the quality, accuracy, completeness, usefulness and reliability of Disclosing Party Confidential Information. Receiving Party’s access to Disclosing Party Confidential Information shall be at its sole risk and expense; and Receiving Party shall release Disclosing Party and its Affiliates and their respective Representatives from, and shall fully protect, indemnify and defend, and hold Disclosing Party and its Affiliates and their respective Representatives harmless from and against any and all costs, claims, damages and other liabilities of every kind, including without limitation reasonable attorneys’ fees and expenses arising out of or in connection with, directly or indirectly, any evaluation of Disclosing Party Confidential Information conducted by or on behalf of Receiving Party.
5. Return of Confidential Information.
Receiving Party will return or destroy all Documents containing Disclosing Party Confidential Information immediately upon: (a) the decision by either Party not to proceed with the Business Purpose, or (b) a request by Disclosing Party. Receiving Party will certify that it has returned or permanently destroyed all Documents containing Disclosing Party Confidential Information, including without limitation, all Documents prepared by Receiving Party or its Representatives utilizing or relating to any portion of Disclosing Party Confidential Information.
6. Equitable Relief.
Due to the unique nature of Confidential Information, there may be no adequate remedy at law for any breach or any unauthorized use or release of any Confidential Information because such breach or unauthorized use or release may allow Receiving Party or third parties to unfairly compete with Disclosing Party, resulting in irreparable harm to Disclosing Party. Upon any actual or threatened breach, unauthorized use or release, Disclosing Party will be entitled to appropriate equitable relief in addition to whatever remedies Disclosing Party might have at law. Any action brought for such relief may be brought by Disclosing Party upon ex parte application and without notice or posting of any bond.
7. Miscellaneous.
(a) This Agreement and any action or claim related to or arising out of this Agreement will be governed by the substantive laws of the State of Colorado without reference to the choice of law rules thereof. The parties agree that any action will be brought exclusively in the state courts located in El Paso County, Colorado, or the federal courts located in Denver, Colorado, as applicable. The parties hereby submit themselves to the personal jurisdiction and venue of such courts. To the extent that such courts refuse to exercise jurisdiction, the Parties agree that jurisdiction shall be proper in any court in which jurisdiction may be obtained. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
(b) In the event that any of the provisions of this Agreement are held by a court or other tribunal of competent jurisdiction to be illegal, invalid or unenforceable, such provisions will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect.
(c) No waiver or modification of this Agreement will be binding upon either Party unless made in a signed writing. No failure or delay in enforcing any right will be deemed a waiver.
(d) All notices required or permitted to be sent by this Agreement will be deemed given if sent to the address shown on the signature page to the attention of the Person who executed this Agreement with a copy sent to the same address and to the attention of the Party’s general counsel.
(e) This Agreement may be executed in counterparts (and evidenced by facsimile or .pdf signatures), each of which will be deemed an original and all of which together constitute one instrument.
(f) This Agreement constitutes the entire understanding between the Parties with respect to the subject matter hereof and supersedes all negotiations, prior discussions or prior agreements and understandings relating to such subject matter. Neither this Agreement nor the Parties’ performance hereunder shall be deemed to create any special relationship or obligations between the Parties other than those expressly set forth herein, and no implied covenants shall apply to this Agreement other than those of good faith and fair dealing. All duties, obligations, rights, powers and remedies provided for herein are cumulative and not exclusive of all others existing at law or in equity, and Disclosing Party shall be entitled to avail itself of all such other duties, obligations, rights, powers and remedies as may now or hereafter exist, including without limitation, the Uniform Trade Secrets Act and similar statutes and rules of law pertaining to trade secrets and confidential and proprietary information. Neither Party will have any obligation or duty to pursue any further agreement or understanding, or to proceed with respect to any potential transaction relating to the Business Purposes, unless and until a definitive agreement relating thereto has been duly authorized, executed and delivered by the Parties.