MUTUAL CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT
This Confidentiality and Nondisclosure Agreement (this “Agreement”) is entered into with Online Fundraising Strategy.
WHEREAS, the Parties believe that a mutual exchange of information solely for the purpose of evaluating the Transaction (and if consummated, completing the Transaction) would be beneficial in assisting each of the Parties in this regard;
WHEREAS, the Parties desire that confidential and proprietary information exchanged pursuant to this Agreement be kept confidential by the Party receiving such confidential and proprietary information;
WHEREAS, the Parties hereto recognize that nothing in this Agreement obligates either Party to consummate the Transaction.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1. Each of the Parties possess valuable business and technical information, concepts, know-how, trade secrets plans, designs, forecasts, reports, data, papers, private placement memoranda and other similar information relating to their current, future and proposed products, business forecasts, plans, design, sales and technology relating to the foregoing (herein referred to as “Confidential Information”). The term Confidential Information shall include any information in any form emanating directly or indirectly from either Party, including the fact that the Parties are meeting with each other and the substance of those meetings. It shall not be limited to data compilations and analyses but shall also include conversations, discussions, and expressions of opinions and descriptions of events which are relevant to the proposed transaction, and shall include any compilation of otherwise public information in a form not publicly known. Each of the Parties shall only use the Confidential Information for the purpose of evaluating the Transaction.
2. In order to evaluate entering into the Transaction,
it is necessary and desirable that each Party exchange information, including disclosure of Confidential Information. The Party supplying the specific Confidential Information will be known as the “Disclosing Party”; and the Party receiving the specific Confidential Information will be known as the “Receiving Party”. To the extent possible, each Party will appropriately mark all tangible information which is confidential.
3. The Receiving Party shall not communicate Disclosing Party’s Confidential Information to any third party without the prior, written consent of Disclosing Party, and Receiving Party shall use its best efforts to prevent inadvertent disclosure of Disclosing Party’s Confidential Information to any third party; provided, however, that each Party may disclose on a need-to-know basis the Confidential Information to any of its directors, officers, employees, agents or consultants (collectively “Representatives”), it being understood that such Representatives shall be informed by each Party of the confidential nature of the Confidential Information and shall agree to be bound by the terms of this Agreement. In addition, without the prior, written consent of the other Party, each Party will not disclose to any person the fact that an evaluation is taking place, unless in the reasonable opinion of a Party’s counsel, such disclosure is required by applicable law.
4. The Receiving Party shall neither use the Disclosing Party’s Confidential Information nor circulate it within its own organization except to the extent necessary for:
(a) The evaluation of entering into the Transaction with Disclosing Party;
(b) Negotiation and preparation of proposals for submission to Disclosing Party; and (c) Any purpose Disclosing Party may hereafter authorize in writing.
5. The obligations of Paragraphs 3 and 4 of this Agreement shall terminate with respect to any particular portion of the Disclosing Party’s Confidential Information when the Receiving Party can document that:
(a) It was in the public domain at the time of the Disclosing Party’s communication thereof to the Receiving Party;
(b) It entered the public domain through no fault of Receiving Party subsequent to the time of Disclosing Party’s communication thereof to Receiving Party;
(c) It was in Receiving Party’s lawful possession free of any obligation of confidence at the time of Disclosing Party’s communication thereof to Receiving Party;
(d) It was lawfully communicated to Receiving Party free of any obligation of confidence subsequent to the time of Disclosing Party’s communication thereof to Receiving Party; or
(e) It was developed by employees or agents of Receiving Party independently of and without reference to any Disclosing Party information or other information that Disclosing Party has disclosed in confidence to any third party.
6. In the event that Receiving Party or any of its Representatives: (a) is requested or required (by oral question or request for information or documents and legal proceedings, interrogatories, subpoena, civil investigative demand or similar process) to disclose Confidential Information of the Disclosing Party or (b) if the Receiving Party is advised by its legal counsel in connection with any transaction involving it that it is legally required to disclose any of the Confidential Information; it is agreed that Receiving Party: (i) will provide the Disclosing Party prompt notice of any request or requirement; (ii) will provide Disclosing Party full and complete cooperation to seek an appropriate order or remedy; (iii) will cooperate with Disclosing Party in obtaining reliable assurances that confidential treatment will be accorded to the disclosure of Confidential Information; and (iv) will, if disclosure of said Confidential Information is required, disclose only that portion of the Confidential Information which is legally required to be disclosed. Receiving Party or its Representative shall not be liable for disclosure of Confidential Information hereunder under a regulation or to a tribunal compelling such disclosure, if Receiving Party has complied with the notice and cooperation provisions of this paragraph, unless such disclosure to such tribunal is caused by or resulted from a previous disclosure by Receiving Party or any of its Representatives not permitted by this Agreement.
7. All materials including, without limitation, business documents, drawings and lists furnished to Receiving Party by Disclosing Party and which are designated in writing to be the property of Disclosing Party shall remain the property of Disclosing Party and shall be returned to Disclosing Party promptly at its request with all copies made thereof. It is further agreed that Receiving Party will destroy any material it prepared based on its evaluation of the Confidential Information of Disclosing Party.
8. Each Party warrants that its communications to the other Party and the other Party’s Representatives shall not be in violation of the proprietary rights of any third party.
9. This Agreement shall govern all communications between the Parties, and between each of the Parties and third parties, that are made following the date of this Agreement; provided, however, that either Party may provide written notice to the other Party at any time that subsequently provided information shall not be so governed.
10. Each Party acknowledges that the disclosure of the Confidential Information does not (i) convey any right, title or license in the Confidential Information to the Receiving Party; or (ii) place either Party under an obligation to enter into any further negotiations or agreements expect as, in each Party’s judgment, it shall seem advisable.
11. Your organization hereby agrees that during the time period in which the Transaction is taking place and for 12 months after its completion, your organization will not solicit business or otherwise enter into any business relationship with business associates, including clients and suppliers, introduced by Online Fundraising Strategy to your organization, outside the parameters of the agreement, whether written or oral, between your organization and Online Fundraising Strategy regarding the Transaction. Your organization acknowledges the restriction set forth in this Section 11 is necessary and reasonable in light of the economic benefits accruing to your organization as a result of the Transaction.
12. Online Fundraising Strategy hereby agrees that during the time period in which the Transaction is taking place and for 12 months after its completion, Online Fundraising Strategy will not solicit business or otherwise enter into any business relationship with business associates, including suppliers and clients, introduced to Online Fundraising Strategy by your organization, outside the parameters of the agreement, whether written or oral, between your organization and Online Fundraising Strategy regarding the Transaction. Online Fundraising Strategy acknowledges the restriction set forth in this Section 12 is necessary and reasonable in light of the economic benefits accruing to Online Fundraising Strategy as a result of the Transaction.
13. It is further understood and agreed that no failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
14. The provisions of this Agreement shall survive the termination of the Transaction, if any.
THE PARTIES ACKNOWLEDGE their agreement to the foregoing by due execution of this Agreement by their respective authorized representatives.