CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement (this “Agreement”) is made and entered into this [insert
date] by and between [insert the name of your company] whose address for the
purposes of this Agreement is (“Company”, “Receiving Party”) and [insert the name of
the Client] whose address for the purposes of this Agreement is [insert address]
(“Client”, “Disclosing Party”).
WHEREAS, the Company has developed an application (“App”) known as [insert the
name of the app] that does compliances for parcel delivery for the Client’s Day to day
business among other functions;
WHEREAS, through the App, Client furnishes Company with certain information in
connection with its day-to-day business operations; and
WHEREAS, in connection with the nature of engagement between them, the Company
will be receiving, reviewing, and analyzing certain information which is confidential,
proprietary or otherwise not generally available to the public with respect to the Client’s
(including its Affiliates) business operations and services, the marketing or promotion of
products and services, business policies and practices, technical, financial and strategic
information and other matters.
NOW, THEREFORE, for and in consideration of the premises and the agreements
herein contained, the sufficiency of which is hereby acknowledged, the parties do
hereby agree as follows:
1. Definitions. As used in this Agreement:
(a) “Affiliate” means a person, company or entity controlling, controlled by, under
common control, or working in concert, with a party; provided that this
definition does not include any person, who became such without obtaining
the consent to assignment required by Section 13 of this Agreement.
(b) “Confidential Information” means all information or materials furnished by the
Disclosing Party to the Receiving Party orally, or in written or electronic form,
which is confidential, proprietary, or otherwise not generally available to the
public. Notwithstanding the foregoing, the following will not constitute
Confidential Information for purposes of this Agreement: (i) information which
is or becomes generally available to the public other than as a result of a
disclosure by the Receiving Party or its Representatives in breach of this
Agreement; (ii) information which was known to the Receiving Party on a non-
confidential basis prior to being furnished to the Receiving Party by the
Disclosing Party; (iii) information which becomes available to the Receiving
Party on a non-confidential basis from a source other than the Disclosing
Party unless such source was known or could reasonably be determined to
be under a confidentiality obligation to the Disclosing Party, and (iv)
information that is independently developed by Representatives of the
Receiving Party who have not had access to the Confidential Information.
“Confidential Information” shall also include this Agreement, the fact that
information contemplated herein has been made available to either party, and
the fact that the parties are contemplating the Transaction.
(c) “Disclosing Party” means the party disclosing Confidential Information to the
other party, including any Affiliate of such other party.
(d) “Receiving Party” means the party receiving Confidential Information from the
other party, including any Affiliate of such other party.
(e) “Representatives” means a party (including an Affiliate of such party) and
their respective directors, officers, employees, attorneys, advisors,
consultants, funding sources and Sidewinder Drilling and its officers and
directors.
2. Nondisclosure of Confidential Information. The Receiving Party may disclose
Confidential Information only to the Receiving Party’s Representatives, but only if
such Representatives need to know the Confidential Information in connection
with the evaluation of the Transaction. The Receiving Party agrees that (a) such
Representatives will be informed by the Receiving Party of the confidential nature
of the Confidential Information, and (b) the Receiving Party will be responsible for
any breach of this Agreement by itself or any of its Representatives. The
Receiving Party shall not disclose the Confidential Information to any person
other than as permitted hereby, and shall safeguard the Confidential Information
from unauthorized disclosure. The Receiving Party will require its
Representatives to use at least the same degree of care to protect the Disclosing
Party’s Confidential Information as is used by the Receiving Party in protecting its
own proprietary and Confidential Information.
3. Restricted Use. The Confidential Information shall be used solely by the
Receiving Party and its Representatives to evaluate and implement the functions
of the application provided to the Client, and shall not otherwise be used in a
manner detrimental to the Disclosing Party.
4. Notice Preceding Compelled Disclosure. If the Receiving Party or its
Representatives are requested or required by legal process to disclose any
Confidential Information, the Receiving Party shall promptly notify the Disclosing
Party of such request or requirement so that the Disclosing Party may seek an
appropriate protective order or waive compliance with this Agreement. If, In the
absence of a protective order or the receipt of a waiver hereunder, the Receiving
Party or its Representatives are compelled to disclose the Confidential
Information, the Receiving Party and its Representatives may disclose only such
of the Confidential Information to the party compelling disclosure as is required
by law and, in connection with such compelled disclosure, the Receiving Party
shall use commercially reasonable efforts to obtain from the party to whom
disclosure is made written assurance that confidential treatment will be accorded
to such portion of the Confidential Information as is disclosed.
5. Return of Information. Upon the Disclosing Party’s request, the Receiving Party
and its Representatives shall promptly deliver to the Disclosing Party or destroy
(at the Disclosing Party’s election) all Confidential Information and all copies of
any analyses, compilations, studies or other documents prepared for use in
connection with the Receiving Party’s consideration of a Transaction containing
or including any Confidential Information, in each case without retaining, in whole
or in part, any copies, extracts or other reproductions (whatever the form or
storage medium) of such materials, except that the Receiving Party and its
Representatives (a) may retain any attorney work product created in connection
with the Receiving Party’s consideration of the Transaction, (b) may retain one
set of Confidential Information to the extent required to comply with law or
governmental regulations and (c) 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 or its Representatives’ security and/or
disaster recovery procedures; provided, however, that any such Confidential
Information retained under this Section shall continue to be subject to the terms
of this Agreement. Following such request, the Receiving Party will promptly
provide the Disclosing Party with written confirmation from an authorized officer
who has supervised the Receiving Party’s compliance with this paragraph that
confirms such compliance.
6. No Waiver. No failure or delay in exercising any right, power, or privilege
hereunder will operate as a waiver thereof nor will any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any other
right, power, or privilege hereunder.
7. Remedies. The Receiving Party acknowledges and agrees that money damages
would not be a sufficient remedy for any breach of this Agreement, and it further
acknowledges and agrees that the Disclosing Party will be entitled to seek
specific performance and injunctive relief as remedies for any such breach. Such
remedies will not be deemed to be the exclusive remedies for a breach of this
Agreement but will be in addition to all other remedies available at law or in
equity.
8. Termination. This Agreement shall terminate, and all provisions hereof shall be of
no further force or effect as long as the Client and the Company continue
engaging with regards to the App unless either party terminates it earlier by
providing a written termination notice to the other party; provided, however, that if
this Agreement is so terminated by either party, this Agreement will continue to
apply to any Confidential Information disclosed hereunder (including Confidential
Information returned or destroyed) prior to the other party’s receipt of the
termination notice until the end of the engagement period.
9. Nonsolicitation. The Receiving Party agrees that for a period of one year neither
it nor its Affiliates who receive confidential information shall directly or indirectly
initiate the solicitation of, without the consent of the Disclosing Party, (a) any
executive officer of the Disclosing Party or of any of its Affiliates or (b) any
employee of the Disclosing Party or any of its Affiliates actively engaged in the
review of the Transaction for employment, advisory or consulting work; provided,
however, neither party shall be prohibited from (x) employing or otherwise
working with any such person who contacts such party solely on his or her own
initiative and without direct or indirect solicitation by such party, (y) conducting
general solicitations for employees or general contractors (which solicitations are
not specifically targeted at the other party’s employees) through the use of media
advertisements, professional search firms or otherwise, or (z) employing
employees who are paid on an hourly basis.
10. Right to Disclose. The Disclosing Party represents and warrants to the Receiving
Party that it has the right to disclose the Confidential Information to the Receiving
Party.
11. No Obligation or Joint Venture. The parties hereto understand and agree that
unless and until a definitive agreement has been executed and delivered, no
contract or agreement providing for the Transaction between the parties shall be
deemed to exist between the parties, and neither party will be under any legal
obligation of any kind whatsoever with respect to such transaction by virtue of
this or any written or oral expression thereof, except, in the case of this
Agreement, for the matters specifically agreed to herein. For purposes of this
Agreement, the term “definitive agreement” does not include an executed letter of
intent or any other preliminary written agreement or offer, unless specifically so
designated in writing and executed by both parties.
12. No Warranty. BY EXECUTING THIS AGREEMENT, AND EXCEPT AS
PROVIDED IN SECTION 10 ABOVE, THE DISCLOSING PARTY MAKES NO
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
STATUTORY OR OTHERWISE, AS TO, OR IN ANY WAY WITH RESPECT OR
IN CONNECTION WITH ANY INFORMATION MADE AVAILABLE
HEREUNDER. ACCORDINGLY, THE RECEIVING PARTY WILL RELY SOLELY
UPON ITS INDEPENDENT EXAMINATION AND ASSESSMENT OF THE
CONFIDENTIAL INFORMATION IN EVALUATING THE TRANSACTION.
13. Assignment. Neither party may assign this Agreement, or any rights hereunder,
without the prior written consent of the other party, which consent may be
granted or withheld in the sole and absolute discretion of the non-assigning party.
14. Miscellaneous. This Agreement inures to the benefit of, and is binding upon, both
parties, and their successors and assigns, subject to the limitations on
assignment as set forth in Section 13 above. This Agreement constitutes the
entire agreement between the parties with respect to the subject matter hereof.
The headings of the Sections of this Agreement are inserted for convenience
only and do not constitute a part hereof or affect in any way the meaning or
interpretation of this Agreement. If any provision of this Agreement is found to be
invalid, illegal or unenforceable, such provision shall be modified or severed to
the extent necessary to reflect the fullest legal and enforceable expression of the
intent of the parties. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
[INSERT STATE] APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED WITHIN SUCH STATE WITHOUT REGARD TO THE CONFLICT
OF LAWS PRINCIPLES THEREOF. Each party hereto agrees that the prevailing
party in any action or proceeding arising out of or relating to this Agreement or
the transactions contemplated hereby shall be entitled to recover its reasonable
fees and expenses in connection therewith, including legal fees.
15. Counterparts. This Agreement may be executed in one or more counterparts
(including by means of telecopied signature pages or signature pages delivered
by electronic transmission in portable document format (pdf)), all of which taken
together shall constitute one and the same instrument. This Agreement to the
extent signed and delivered by means of a facsimile machine or electronic pdf
transmission, shall be treated in all manner and respects as an original
instrument and shall be considered to have the same binding legal effect as if it
were the original signed version thereof delivered in person. At the request of any
party hereto, the other party shall re-execute original forms thereof and deliver
them to such other party. No party hereto or to any such instrument shall raise
the use of a facsimile machine or electronic pdf transmission to deliver a
signature or the fact that any signature or instrument was transmitted or
communicated through the use of a facsimile machine or electronic pdf
transmission as a defense to the formation of a contract and each party forever
waives any such defense, except to the extent such defense relates to lack of
authenticity.
[Signatures on following page]
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first written above.
Signature
EXECUTED on behalf of [INSERT NAME OF
YOUR COMPANY]:
………………………………………….
[INSERT YOUR NAME]
EXECUTED by [INSERT NAME OF THE CLIENT]:
Signature
………………………………………….
[INSERT NAME OF CLIENT’S
REPRESENTATIVE]
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