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Confidentiality and non-disclosure agreement

CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT (this “Agreement”), dated as of September —, 2023, between Triciti Coverage LLC (“Company”) and —————(the “Interested Party”).

WHEREAS, the parties desire to enter into discussions regarding a possible business opportunity of mutual interest (the “Possible Opportunity”); and

WHEREAS, the parties desire to protect and preserve the confidentiality of certain non-public, confidential and/or proprietary information of the parties that may be disclosed or made available to the parties and their Representatives (as defined below) in connection with such discussions.

NOW, THEREFORE, in consideration of the foregoing and the rights and obligations set forth herein, the parties hereby agree as follows:

    1. Certain Definitions.  As used herein:
      1. Disclosing Party” means the party disclosing or furnishing Confidential Information hereunder.
      2. Confidential Information” means all information, documents, prototypes, samples, illustrations and other materials, whether written, oral, electronic or by (visual) inspection, that a Disclosing Party or its Representatives discloses or furnishes to a Receiving Party or its Representatives before, on or after the date hereof in connection with the Possible Opportunity, including, but not limited to, information concerning a Disclosing Party’s businesses, operations, products and product specifications, intellectual property, projects, equipment, processes, technical data, know how, documents, designs and strategies, financial information, customer lists, pricing and costs, marketing plans, business opportunities and financial projections, together with all reports, analyses, compilations, forecasts, studies, summaries and other documents prepared by a Receiving Party or its Representatives in connection with their review of a Possible Opportunity to the extent that they contain or otherwise reflect any such information, documents or other materials.  Confidential Information also includes (i) the fact that discussions or negotiations are taking (or have taken or are scheduled to take) place concerning a Possible Opportunity, (ii) the fact that any Confidential Information has been (or is intended to be) made available, (iii) the proposed terms and conditions of a Possible Opportunity (including any financial terms) and (iv) the existence, context and scope of this Agreement.
      3. Person” shall be interpreted broadly to include any natural person, legal entity or governmental authority.
      4. Receiving Party” means the party receiving Confidential Information hereunder.
      5. Representatives” means, as to each party, such party’s affiliates and its and their respective directors, officers, managers, employees, agents and advisors (including, without limitation, attorneys, accountants and financial advisors). 
    2. Information Not Deemed Confidential Information.  For purposes of this Agreement, the term “Confidential Information” shall not include information that (a) is on the date hereof or hereafter becomes generally available to the public other than as a result of a disclosure by the Receiving Party or any of its Representatives in violation of this Agreement; (b) is or becomes available to the Receiving Party or any of its Representatives on a non-confidential basis from a source other than the Disclosing Party or any of its Representatives, provided that such source is not known by the Receiving Party to be bound by a legal or contractual obligation of confidentiality to the Disclosing Party; (c) is or was already in the possession of, or known to, the Receiving Party or any of its Representatives prior to disclosure by the Disclosing Party or any of its Representatives; or (d) is independently developed by the Receiving Party or any of its Representatives without violating any of the Receiving Party’s or its Representatives’ obligations under this Agreement.
    3. Non-Disclosure of Confidential Information.  The Receiving Party (a) shall keep, and shall instruct its Representatives to keep, the Confidential Information confidential in accordance with the terms hereof; (b) except as required by applicable law, regulation or legal or regulatory process, and in that case only after compliance with Section 4 below, shall not disclose or publish, and shall instruct its Representatives not to disclose or publish, in any manner whatsoever, either in whole or in part, any Confidential Information, other than to those of its Representatives (i) who are assisting the Receiving Party in its evaluation (and, if applicable, negotiation and consummation) of a Possible Opportunity and (ii) who are informed of the terms of this Agreement; and (c) shall use, and shall instruct its Representatives to use, the Confidential Information solely for the purpose of evaluating (and, if applicable, negotiating and consummating) a Possible Opportunity.  The Receiving Party shall be responsible for any breach of this Agreement by it or any of its Representatives.
    4. Legally Required Disclosure.  If the Receiving Party or any of its Representatives is requested pursuant to, or required by, applicable law, regulation or legal or regulatory process (including, but not limited, a subpoena, interrogatories, deposition) to disclose any of the Disclosing Party’s Confidential Information, the Receiving Party shall, to the extent permitted by applicable law, regulation or legal or regulatory process, notify the Disclosing Party in writing promptly so that the Disclosing Party may, at its sole cost and expense, seek a protective order or other appropriate remedy and/or waive the Receiving Party’s compliance with the terms of this Agreement.  If such protective order or other remedy is not obtained or the Disclosing Party does not waive compliance with the terms of this Agreement, the Receiving Party or any of its Representatives, as the case may be, (a) shall furnish only that portion of the Confidential Information that it is advised by its legal counsel (which may include in-house counsel) is legally required, (b) shall, to the extent permitted by applicable law, regulation or legal or regulatory process, give the Disclosing Party written notice of the Confidential Information to be disclosed as far in advance as reasonably practicable and (c) shall, at the Disclosing Party’s request and sole cost and expense, exercise commercially reasonable efforts to assist the Disclosing Party in its efforts to obtain reliable assurance that confidential treatment will be accorded the Confidential Information so disclosed.
    5. Degree of Care.  The Receiving Party shall use, and shall cause its Representatives to use, the same degree of care (but in no event less than a reasonable standard of care) that it uses to protect its own confidential or proprietary information to protect the confidentiality, and avoid the unauthorized disclosure or use, of the Disclosing Party’s Confidential Information.
    6. Ownership of Confidential Information.  The Receiving Party agrees, on behalf of itself and its Representatives, that all Confidential Information acquired by or disclosed to the Receiving Party and its Representatives shall be and remain the sole and exclusive property of the Disclosing Party.  Nothing herein shall be construed as granting any rights, by license or otherwise, to the Receiving Party or its Representatives with respect to any of the Disclosing Party’s Confidential Information disclosed pursuant hereto.
    7. Return of Confidential Information.  In the event that the parties determine to terminate their discussions as to a Business Opportunity or at any time upon the written request of the Disclosing Party, the Receiving Party (a) shall promptly return to the Disclosing Party or destroy, and shall cause its Representatives to return to the Disclosing Party or destroy, the Confidential Information without retaining any copies or other reproductions or extracts thereof; (b) shall destroy, and shall cause its Representatives to destroy, all memoranda, notes, reports and documents, and all copies and other reproductions and extracts thereof, prepared by the Receiving Party or its Representatives in connection with their review of the Confidential Information and the Possible Opportunity, and (c) shall confirm such return and/or destruction to the Disclosing Party in writing.  Notwithstanding the foregoing, (i) nothing herein shall require the Receiving Party or its Representatives to alter, modify, delete or destroy any back-up, archival or electronic tapes, metadata or latent data made in the ordinary course of business and (ii) the Receiving Party shall be permitted to retain one copy of the Confidential Information to comply with its bona fide record retention policy and with any applicable laws, rules or regulations, in each case provided that such Confidential Information shall remain subject to the confidentiality obligations and restrictions on use set forth herein in accordance with the terms hereof.
    8. Non-Solicitation of Employees.  The Interested Party agrees that for a period of twenty-four (24) months from and after the date hereof, neither the Interested Party nor any of its Representatives acting on the Interested Party’s behalf will, directly or indirectly, solicit for employment any officer, director or employee of Triciti; provided, however, that the foregoing limitations shall not apply to (i) any general solicitations for employment (such as any newspaper, periodical or Internet help wanted advertisement or any search firm engagement) that are not targeted directly at employees of Triciti, or (ii) any employee who has been terminated by Triciti prior to commencement of employment discussions between the Interested Party or its applicable Representatives and such employee. 
    9. No Representations or Warranties.  The Receiving Party acknowledges that neither the Disclosing Party nor any of its Representatives has made or makes any express or implied representations or warranties as to the accuracy or completeness of the Confidential Information, except for any representations and warranties that may be expressly made to a party in a definitive agreement relating to the Possible Opportunity, if, as and when executed and subject to the terms and conditions set forth in any such definitive agreement.
    10. No Liability.  Except for the matters specifically agreed to herein, the parties agree that unless and until a definitive agreement between the parties with respect to a Possible Opportunity has been executed and delivered, neither party shall be under any legal obligation of any kind whatsoever with respect to a Possible Opportunity, including any obligation to (a) conduct or continue discussions or negotiations, (b) negotiate or enter into a definitive agreement or (c) consummate a Possible Opportunity.
    11. Specific Performance.  In the event of any breach or threatened breach of this Agreement by any party or any of its Representatives, the non-breaching party shall be entitled, in addition to all other rights and remedies that may be available at law or in equity, to seek injunctive or other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in any court of competent jurisdiction, without the necessity of posting a bond or other security or of proving actual damages.  In the event that a Disclosing Party is successful in any action against Receiving Party for a breach of this Agreement, Receiving Party shall be responsible for the reasonable legal fees of Disclosing Party.
    12. Governing Law; Jurisdiction.  This Agreement shall be governed by, and construed in accordance with, the substantive laws of the State of California, without regard to its principles of choice of law or conflicts of law. 
    13. Counterparts.  This Agreement may be executed and delivered (including by facsimile or other electronic transmission) in counterparts, each of which shall be deemed to be an original and both of which together shall constitute one and the same agreement.
    14. Amendments and Waivers.  This Agreement may not be amended, modified or waived except by an instrument in writing signed by an authorized representative of each party.  No failure or delay by any 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 other right, power or privilege.
    15. Assignment; No Third Party Beneficiaries.  Neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned, in whole or in part, by operation of law or otherwise, by either party without the prior written consent of the other party, and any purported assignment without such consent shall be void and unenforceable.  Subject to the preceding sentence, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the parties and their respective successors and permitted assigns, if any.  Nothing in this Agreement shall confer any rights, remedies or claims upon any Person not a party or a permitted assignee of a party to this Agreement.
    16. Severability.  If any term or provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, such term or provision shall be ineffective to the extent, but only to the extent, of such invalidity, illegality or unenforceability without invalidating the remainder of such term or provision or any other terms or provisions hereof, unless such a construction would be unreasonable.  Upon such a determination, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.
    17. Headings; Interpretation.  The headings of Sections in this Agreement have been inserted for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement.  If an ambiguity or a question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.
    18. Term.  This Agreement shall terminate and be of no force and effect two (2) years from the date hereof; provided, however, that as to any Confidential Information that constitutes a trade secret under applicable law, the protections of this Agreement shall remain in effect for so long as such items constitute trade secrets.
    19. Entire Agreement.  This Agreement contains the entire agreement and understanding, and supersedes all prior and contemporaneous agreements and understandings, whether oral or written, between the parties with respect to the subject matter hereof. 

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IN WITNESS WHEREOF, the parties have executed and delivered this Confidentiality and Non-Disclosure Agreement effective as of the date first written above.