THIS MUTUAL NON-DISCLOSURE AGREEMENT (this " Agreement ") is made and effective this [INSERT DATE], by and between Loop HQ Inc. located at 2 Brighton Avenue, Passaic, New Jersey 07055 (" Company " or " Loop "), and {COMPANY NAME}, located at {COMPANY ADDRESS} ("{COMPANY SHORTNAME}"). Loop and {COMPANY SHORTNAME} are sometimes in this Agreement referred to individually as a "Party" and collectively as the "Parties".
WHEREAS, Company and {COMPANY SHORTNAME} wish to exchange, disclose and receive information of a proprietary nature in connection with a potential business relationship between them (such disclosing Party, a " Disclosing Party " and such receiving Party, a " Receiving Party "); and
WHEREAS, the Disclosing Party considers the Proprietary Information proprietary and confidential, but is willing to provide such information on a confidential basis for the purposes of discussions with respect to such potential business relationship (the " Potential Transaction ");
NOW THEREFORE, Company and Curvature agree as follows:
For purposes of this Agreement, the term " Proprietary Information " shall, subject to the provisions of Section 6 below, mean all information including without limitation Personal Information (as defined herein) received from the Disclosing Party or the Representatives (as defined below) of the Disclosing Party under this Agreement whether in written, graphic, recorded, photographic, electronic, machine readable, or oral form. Proprietary Information shall also include information that the Receiving Party knows, or has reason to know, is confidential, trade secret or proprietary information of the Disclosing Party. " Personal Information " means personally identifiable information about potential borrowers (including its principals), clients or customers of the Disclosing Party, including but not limited to name, address, social security number, employer identification number, telephone number, account number, or the fact that a client or customer does business with the Disclosing Party. Personal Information also includes any list, description or other grouping of clients or customers that is derived using any Personal Information.
Except as otherwise stated in this Agreement, the Receiving Party agrees that all Proprietary Information will be kept in strict confidence and, without the prior express written consent of the Disclosing Party, will not (a) be made available through any medium where it is foreseeable that the Proprietary Information could be accessed by any person other than the Receiving Party or its Representatives; and (b) be disclosed in whole or in part, in any manner whatsoever other than (i) disclosure to those of its Representatives who need to know such Proprietary Information and who are bound by an obligation of confidentiality to the Receiving Party, or (ii) pursuant to Section 8 below. As used in this Agreement the " Representatives " of any person means the affiliates, officers, directors, employees, attorneys, accountants, funding sources, potential funding sources, financial advisors and other agents and other representatives of such person.
The Receiving Party hereby acknowledges that all intellectual property rights in, title to or other rights in Proprietary Information are the property of the Disclosing Party and that the Receiving Party does not obtain any license, right, title or interest in Proprietary Information by virtue of its being furnished pursuant to this Agreement. Furthermore, this Agreement shall not be construed as creating a partnership, joint venture, license or similar business relationship or obligate either Party to enter into any Potential Transaction or any other further business relationship or agreement, which relationship or agreement, if agreed upon, shall be separately documented.
The Receiving Party covenants and agrees that it will use Proprietary Information it receives only for its internal uses consistent with this Agreement and shall not copy or reproduce such Proprietary Information or disclose it to any person or persons outside of its Representatives except as permitted pursuant to Section 8 of this Agreement. The Receiving Party shall be liable for any breach of this Agreement by its Representatives; provided that Receiving Party shall not be responsible for any breach of this Agreement by its Representatives who (a) have entered into a separate confidentiality agreement in substantially the same form as this Agreement with Disclosing Party, or (b) have executed and provided to Disclosing Party a joinder to this Agreement in substantially the same form as Exhibit A hereto. Each Receiving Party shall safeguard and secure any Personal Information disclosed hereunder in a manner compliant with (i) the Gramm-Leach-Bliley Act of 1999 and regulations promulgated thereunder, and (ii) the safeguarding and security rules of the Federal Trade Commission set forth in 16 C.F.R. Part 314, and any successors to any of the foregoing laws and regulations. No Receiving Party will use or disclose Personal Information provided hereunder except as expressly permitted hereby and except as such use or disclosure is consistent with applicable law, the terms of this Agreement and the respective privacy policies of the Parties.
If either Party determines that it does not wish to proceed with the purpose of the disclosure, such Party shall promptly advise the other Party in writing of that decision. In that case, all use by the Receiving Party of Proprietary Information received shall cease, and upon written request from the Disclosing Party, the Receiving Party shall promptly destroy or return to the Disclosing Party all documents and/or materials containing any Proprietary Information (as well as all copies thereof), and shall cause all summaries, synopses or extracts thereof to be either delivered to the Disclosing Party or destroyed (at the option of the Disclosing Party), except as required by applicable law or internal compliance policies. Such destruction shall be confirmed in writing by the Receiving Party to the Disclosing Party if so requested by the Disclosing Party. Any documents and/or materials containing Proprietary Information that are retained as required by applicable law or internal compliance policies shall be and remain subject to the confidentiality and non-disclosure provisions of this Agreement.
It is expressly understood that Proprietary Information shall not include any information if the same:
This Agreement contains the entire agreement between the Parties as to its subject matter and supersedes any previous or contemporaneous understandings, commitments, or agreements, oral or written, as to such subject matter. This Agreement may be amended or modified only with the written consent of both Parties. Neither this Agreement nor any right granted hereunder shall be assignable or otherwise transferable.
If the Receiving Party or any of its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents, subpoenas, civil investigative demand or similar process) to disclose any of the Proprietary Information, to the extent permitted by law, it will provide the Disclosing Party with prompt notice so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance by the Receiving Party with the provisions of this Agreement. If such protective order or other remedy is not obtained, or the Disclosing Party waives the Receiving Party's compliance with the provisions of this Agreement, the Receiving Party will furnish only that portion of the Proprietary Information that is legally required to be furnished, in the opinion of counsel, and will exercise commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded the Proprietary Information at the expense of the Disclosing Party. Notwithstanding the foregoing, the Disclosing Party acknowledges and agrees that the Receiving Party may disclose Proprietary Information, without notice to or the consent of the Disclosing Party, to any governmental agency or regulatory body having jurisdiction over it.
In the event that a court of competent jurisdiction determines that any portion of this Agreement is unreasonable because of its term or scope, or for any other reason, the Parties agree that such court may reform such provision so that it is reasonable under the circumstances and that such provision, as reformed, shall be enforceable. In any event, the remainder of the Agreement shall remain in full force and effect.
This Agreement shall terminate two years following the date hereof.
The Receiving Party acknowledges that if the Receiving Party fails to comply with any of its obligations hereunder, the Disclosing Party may suffer immediate, irreparable harm for which monetary damages may not be adequate. The Receiving Party agrees that, in addition to all other remedies provided at law or in equity, the Disclosing Party shall be entitled, upon a proper showing, to seek an injunction from a court of competent jurisdiction restraining such breach or threatened breach, as well as an order from such court compelling the breaching Party to specific performance of any relevant provision of this Agreement. The Parties further agree that no bond or other security shall be required in obtaining such equitable relief and that the prevailing Party shall recover from the other Party the prevailing Party's reasonable attorneys' fees and expenses.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York, applicable to agreements made and to be performed in New York. Any action relating to or arising out of this Agreement shall be brought in the courts of the State of New York, County of New York.
PROPRIETARY INFORMATION IS PROVIDED "AS IS". IN NO EVENT SHALL THE DISCLOSING PARTY BE LIABLE FOR THE ACCURACY OR COMPLETENESS OF ANY PROPRIETARY INFORMATION. None of the Proprietary Information disclosed by the Parties constitutes any representation, warranty, assurance, guarantee, or inducement by either Party to the other with respect to the infringement of trademarks, patents, copyrights, or any right of third persons. Notwithstanding the foregoing, each Party represents and warrants to the other Party that it has the right and authority to disclose its Proprietary Information to the Receiving Party pursuant to this Agreement and that such disclosure will not conflict with, result in a breach of or otherwise violate any understanding, contract, agreement, commitment or other obligation of the Disclosing Party to any other individual or entity.
For a period of twenty four (24) months after the date hereof, without the Disclosing Party's prior written consent, the Receiving Party and its Representatives shall not directly or indirectly, solicit, initiate, provide or encourage any inquiry, proposal, offer or contact from any person or entity relating to the retention or hiring of any employee, officer, partner or shareholder of the Disclosing Party or its affiliates, or hire any such employee, officer, partner or shareholder.
The Receiving Party is aware that it may receive material non-public information in connection with the sharing of Proprietary Information under this Agreement, and that (and will so advise any person, including its Representatives, to whom it provides Proprietary Information) the United States and other securities laws as may be applicable impose restrictions on trading in securities when in possession of such information and such laws prohibit the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.
