WHEREAS, in connection with a potential business relationship involving raising and introducing capital funding sources (the "Relationship") between Disclosing Party and Receiving Party (each a "Party" and collectively, the "Parties"), Disclosing Party has disclosed and/or may wish to disclose certain information to the Receiving Party hereto on a confidential basis; and
WHEREAS, as a condition to Disclosing Party disclosing to the Receiving Party such proprietary information, the Parties desire to enter into this Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual promises hereinafter contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto hereby agree as follows:
- Definitions:
(a) "Confidential Information" shall mean the proprietary and confidential data or information of Disclosing Party, other than "Trade Secrets" (as defined below), which is provided to Receiving Party and its affiliates, and it and its affiliates’ partners, limited liability company members, directors, officers, employees, professional advisors, auditors, consultants or agents (collectively, the “Representatives”) by or on behalf of Disclosing Party in connection with the Relationship and is of tangible or intangible value to the Disclosing Party and is not public information or is not generally known or available to that Party's competitors but is known only to the Disclosing Party and its Representatives to whom it must be confided in order to apply it to the uses intended, including, without limitation, information regarding the Disclosing Party's customers or prospective customers, marketing, business plans, products, services, methods, technologies and/or developments. In addition, the definition of "Confidential Information" shall include those items specifically identified as "Trade Secrets" in Section l(c), if it is judicially determined that any such items are not trade secrets, as defined by applicable law, and such items otherwise meet the definition of "Confidential Information" as contained in this Section l(a).
Non-Circumvention
The Parties agree herein that neither party shall seek to circumvent the validity, integrity or intent of the negotiations process between the Parties and will not without prior written consent from the Receiving Party, attempt to circumvent any relationships between the Receiving Party and any of its Confidential Business Relationships including but not limited to: any of its contractors, vendors, clients, agents, brokers, buyers, sellers, financiers, investors, lenders, funding sources, employees, introduced to Disclosing Party by Receiving Party together with their members, associates, affiliates, subsidiaries and related or contracted parties.
- Liquidated Damages. In case of circumvention, the Buyer and the Seller agree and guarantee that they will pay a legal monetary penalty that is equal to three (3) times the fee Rhizo Sciences should have realized in such transactions, by the person(s) or entity(ies) engaged on the circumvention for each occurrence.
- Additional Covenants; Specific Acknowledgements.
(a) Existence of this Agreement. The existence and terms of this Agreement and the fact and substance of a potential Relationship shall be considered Proprietary.
(b) No Implied License. Disclosing Party retains the right, in its sole discretion, to determine whether to disclose its Proprietary Information to the Receiving Party, and disclosure of information of any nature shall not obligate the Disclosing Party to disclose any further information nor shall it imply any license or grant of rights with respect thereto.
(c) No Warranty. The Receiving Party (i) acknowledges and agrees that, except to the extent set forth in a definitive agreement, the Disclosing Party makes no representation or warranty (express or implied) as to the accuracy or completeness of any of the Disclosing Party's Proprietary Information, and (ii) except to the extent set forth in a definitive agreement, agrees to assume full responsibility for all conclusions it may derive from the Disclosing Party's information. The Receiving Party acknowledges and agrees that neither the Disclosing Party nor any of its Representatives shall be under any obligation to update or correct any inaccuracy in the Proprietary Information or any other information supplied by the Disclosing Party or them or be otherwise liable to the Receiving Party, the Receiving Party’s Representatives, or any other person in respect of the Proprietary Information or any such other information. The Receiving Party and the Disclosing Party, each acknowledge and agree that neither party, nor any Representatives will have any duty of care or liability to the other party or any Representative of the other party or any other person for any direct, indirect or consequential loss or damage suffered by any party as a result of relying on any statement contained in or omitted from the Proprietary Information. The Receiving Party acknowledges and agrees that no right, title or interest in the Proprietary Information shall be deemed to be granted to the Receiving Party as a result of disclosure of the Proprietary Information by the Disclosing Party and that all Proprietary Information shall remain the exclusive property of the Disclosing or the third party which owns it. Each party acknowledges and agrees that prior to entering into a transaction, engagement or contract or other agreement, if any, in connection with the Relationship, it will determine, without reliance on the other party or any Representative of the other party, the economic risks and merits (and independently determine that it is able to assume these risks) as well as the legal, tax, regulatory capital (if applicable) and accounting characterizations and treatment of entering into such transaction, engagement, contract or agreement.
(d) Required Disclosures. If the Receiving Party or its Representatives are required or requested pursuant to Law to disclose any of the Disclosing Party's Proprietary Information, to the extent permitted by Law and except in connection with routine investigations, examinations or inquiries not specifically targeting the Disclosing Party, the Receiving Party shall provide the Disclosing Party with prompt written notice so that the Disclosing Party can work with the Receiving Party to limit the disclosure to the greatest extent possible consistent with legal obligations, or the Disclosing Party may seek a protective order or other appropriate remedy at the Disclosing Party’s sole expense. In the event that the Disclosing Party is unable to obtain a protective order or other appropriate remedy, or if the Disclosing Party so directs, the Receiving Party shall, and shall cause its Representatives to, exercise its reasonable best efforts to obtain a protective order or other appropriate remedy at the Disclosing Party's reasonable expense. Failing the entry of a protective order or other appropriate remedy or receipt of a waiver hereunder, the Receiving Party shall furnish only that portion of the Disclosing Party's Proprietary Information that the Receiving Party is advised by its counsel it is legally required to furnish and shall exercise its reasonable best efforts to obtain reliable assurance that confidential treatment shall be accorded such Proprietary Information.
(e) Notices to Representatives. The Receiving Party shall notify its Representatives as to the confidential nature of the Disclosing Party's Proprietary Information and shall direct such persons to treat such information confidentially in accordance with the confidentiality and limited use provisions this Agreement expressly applicable to Representatives. Each Party shall be responsible for any breach of this Agreement by its respective Representatives (including Representatives who, subsequent to the date hereof, become former Representatives) and shall take all reasonably necessary measures to restrain its Representatives (or former Representatives) from unauthorized disclosure or use of the Disclosing Party's Proprietary Information, provided that each such person (or such person’s employer) either (i) signs a confidentiality agreement with the Receiving Party with respect to the Confidential Information that is in substance similar to this Agreement, (ii) acknowledges to the Receiving Party in writing that such person will comply with the provisions of this Agreement as if such person was also a party to it or (iii) is otherwise subject to confidentiality obligations that are in substance similar to this Agreement.
- Remedies. The Receiving Party acknowledges and agrees that the Disclosing Party may suffer irreparable loss and damage if the Receiving Party should breach or violate any of the covenants and agreements contained in this Agreement. The Receiving Party further acknowledges and agrees that each of such covenants is reasonably necessary to protect and preserve the business and the assets of the Disclosing Party. The Receiving Party therefore agrees and consents that in addition to any other remedies available to the Disclosing Party, the Disclosing Party shall be entitled to seek an injunction to prevent a breach or contemplated breach by the Receiving Party of any of the covenants or agreements contained in this Agreement. Nothing contained in this Agreement shall limit, abridge or modify the rights of the Parties under applicable trade secret, copyright or patent law or under the laws of unfair competition.
- Miscellaneous.
(a) Binding Agreement. This Agreement shall inure to the benefit of and shall be binding upon the successors and assigns of each of the Parties.
(b) Severable Provisions. The provisions of this Agreement are severable and if any one or more provisions may be determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions and any enforceable provisions to the extent enforceable in any jurisdiction shall nevertheless be binding and enforceable.
(c) Waiver. The waiver by one Party of a breach of any provision of this Agreement by the other Party shall not operate or be construed as a waiver of any subsequent breach of the same or any other provision by the other Party.
(d) Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all which together shall constitute one and the same instrument.
(e) Notices. All notices, requests, demands, claims or other communications hereunder will be in writing and shall be personally delivered, sent by a recognized international overnight delivery service which guarantees next day delivery ("Overnight Delivery"). The Parties hereby agree that notices or other communications that are given in accordance herewith (i) by personal delivery or facsimile will be deemed effective on the day delivered or on the first banking business day thereafter if not delivered on a business day, and (ii) by Overnight Delivery, will be deemed effective on the first banking business day immediately following the date sent.
(f) Not an Offer. Neither this Agreement, nor the disclosure of any information by either Party to the other (including, without limitation, the disclosure of any Proprietary Information), nor the ongoing discussions and correspondence by the Parties concerning a potential Relationship or any other matter, shall constitute or imply any promise or intention by either Party to enter into a Relationship or any other business relationship with the other Party.
(i) Term. This Agreement shall terminate on year 3 from the date hereof.
(j) Controlling Law. This Agreement and all questions relating to its validity, interpretation, performance, remediation and enforcement (including, without limitation, provisions concerning limitations of actions) shall be governed by and construed in accordance with the domestic laws of the State of Washington
