MUTUAL NON-DISCLOSURE AGREEMENT
This MUTUAL NON-DISCLOSURE AGREEMENT (the “Agreement”) is made and entered into by and among RQR Advisors, LLC, a Delaware limited liability company (“RQR”), and the Person that is the subject of the Intake Application Questionnaire (as defined below) (“Applicant”). RQR and Applicant may be referred to in this Agreement individually as a “Party” and collectively as the “Parties.”
RQR, by providing the Services as described on the RQR website or in any applicable terms of service, and Applicant, by completing and submitting the Intake Application Questionnaire (as defined below) and clicking the box to accept this Agreement on the application page or when otherwise prompted, desire to exchange certain information that is non-public, confidential or proprietary in nature to facilitate the evaluation of an investment by RQR or a third-party in Applicant (the “Purpose”).
NOW, THEREFORE, in consideration of the mutual promises and covenants herein set forth and other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Definitions. As used in this Agreement, the terms defined above have their assigned meanings and the following terms have the meanings stated:
1.1 “Confidential Information” means all nonpublic information disclosed, either prior to or after the date of this Agreement, by the Disclosing Party or its agents to the Recipient or its agents that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. Confidential Information includes, without limitation (a) nonpublic information relating to the Disclosing Party’s business, and (b) third-party information that the Disclosing Party is obligated to keep confidential. Confidential Information shall also include any information submitted by Applicant to RQR in connection with the Intake Application Questionnaire (defined below), as well as all memoranda, financial information, notes, reports, lists, documents, and other media, whether oral, in written, electronic or any other form, to the extent that the foregoing contain or are related in any way to any Confidential Information.; provided, however, that “Confidential Information” does not include Non-protected Information.
1.2 “Disclosing Party” means, as to any Confidential Information, the Party that provides that Confidential Information to the other Party.
1.3 “Intake Application Questionnaire” means the form made available to Applicant to facilitate its submission of an application to RQR for consideration for a potential investment by RQR or a third party, or in order to otherwise allow the parties to evaluate a business relationship with one another.
1.4 “Non-protected Information” means any information that (a) is or becomes publicly available in the format provided to the other party without breach of this Agreement, (b) can be shown by documentation to have been known to the Recipient at the time of its receipt from the Disclosing Party, (c) becomes available to the Recipient on a non-confidential basis from asource other than the Disclosing Party that is not prohibited from disclosing such information to the Recipient by a legal, contractual or fiduciary obligation to the Disclosing Party, or (d) can be shown by documentation to have been independently developed by the Recipient without reference to any Confidential Information.
1.5 “Person” means an individual, a corporation, a partnership, a limited liability company, an association, a trust, or any other entity or organization of any kind, including, without limitation, a governmental authority or agency.
1.6 “Personnel” means affiliates, directors, officers, employees, managers, members, partners, contractors, representatives, professional advisors, or agents, including, without limitation, attorneys, consultants, and financial advisors.
1.7 “Recipient” means, as to any Confidential Information, the Party that receives that Confidential Information from the other party.
2. Permitted Use; Non-Disclosure of Confidential Information. Subject to Sections 3–5, Recipient shall only use Confidential Information for the Purpose and shall treat all Confidential Information disclosed to it by Disclosing Party as secret and confidential and will protect and safeguard such Confidential Information from any disclosure, dissemination, or unauthorized use using at least the same degree of care as Recipient uses to protect and safeguard its own confidential and proprietary information (and, in any event, not less than a reasonable degree of care). Recipient agrees not to disclose any Confidential Information, except as specifically provided for in this Agreement. Except as provided in Sections 3–5, Recipient further agrees not to disclose any Confidential Information without the prior written consent of Disclosing Party. All Confidential Information shall remain the exclusive property of the Disclosing Party. The Disclosing Party’s disclosure of Confidential Information shall not constitute an express or implied grant to the Recipient of any rights to or under the Disclosing Party’s patents, copyrights, trade secrets, trademarks or other intellectual property rights.
3. Permitted Disclosure. Recipient may disclose the Confidential Information to its Personnel who (a) need to know such information in connection with the Purpose; (b) are informed of the confidential nature of the Confidential Information; and (c) agree to, or by the nature of their engagement are obligated to, maintain the confidentiality of the Confidential Information. The Recipient shall be fully responsible for any breach of this Agreement by its Personnel.
4. Disclosure to Potential Investors. RQR may disclose Confidential Information to any Person for the purpose of allowing that Person to evaluate a potential investment in Applicant so long as (a) RQR informs the Person of the confidential nature of the Confidential Information; and (b) the Person agrees to maintain the confidentiality of the Confidential Information.
5. Compelled Disclosure. The Recipient may disclose Confidential Information as required to comply with legal process or binding orders of governmental entities that have jurisdiction over it, provided that the Recipient (a) gives the Disclosing Party reasonable notice (which, to the extent permitted by law, shall be prior notice) to allow the Disclosing Party to seek a protective order or other appropriate remedy, (b) discloses only such information as is required by the governmental entity, and (c) uses commercially reasonable efforts to obtain confidential treatment for any Confidential Information so disclosed.
6. Term of this Agreement. This Agreement and all obligations under this Agreement shall terminate on the first anniversary of the date the Applicant accepted this Agreement unless terminated earlier by either Party upon written notice to the other Party; provided, however, that, notwithstanding any such completion or termination of the discussions, each Party’s obligations under this Agreement with respect to the other Party’s Confidential Information shall survive for three (3) years after the effective date; provided, further, that the covenants with respect to trade secrets will continue in full force and effect until such time as the applicable Confidential Information is no longer a trade secret..
7. Return or Destruction of Confidential Information. The Recipient shall return or destroy all tangible materials embodying Confidential Information (in any form and including, without limitation, all summaries, copies and excerpts of Confidential Information) promptly following the Disclosing Party’s written request. Notwithstanding the foregoing, (a) each Recipient and its Personnel shall be permitted to retain Confidential Information for audit and/or compliance and evidentiary purposes or that is necessary or appropriate to comply with any law or regulation; and (b) neither the Recipient nor its Representatives shall be required to destroy any electronic copies of such Confidential Information created by archival or back-up systems, provided that any Information that is not returned or destroyed, including without limitation any oral Information, shall remain subject to the confidentiality obligations set forth in this Agreement.
8. Evaluation of Other Persons; No Obligation. Applicant expressly acknowledges that RQR may evaluate other Persons that are similar to Applicant or that compete with Applicant and that any information received from those other Persons shall not be considered Applicant’s Confidential Information under this Agreement. Nothing in this Agreement shall prevent RQR from receiving information from those other Persons and nothing in this Agreement shall limit RQR’s use of information received from those other Persons, regardless of whether that information is the same as or similar to Confidential Information of Applicant. Nothing herein shall be construed as a representation or agreement that RQR will not develop or invest in products, concepts, systems, or techniques that are similar to or compete with Applicant’s products, concepts, systems, or techniques, or any such embodied in the Confidential Information. Nothing herein shall obligate the parties to proceed with any transaction between them, and each party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement concerning the Purpose.
9. Disclaimer. ALL CONFIDENTIAL INFORMATION IS PROVIDED BY DISCLOSING PARTY “AS IS” AND WITHOUT ANY WARRANTY, EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES REGARDING ITS ACCURACY, COMPLETENESS, PERFORMANCE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
10. Integration. This Agreement contains and constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior negotiations, agreements and understandings, whether written or oral, of the parties hereto. While the Website Terms and Conditions and Privacy Policy shall remain in full effect, where there is a conflict between this Agreement and the Terms and Conditions, this Agreement shall control.
11. Injunctive Relief. The Recipient acknowledges that disclosure or use of Confidential Information in violation of this Agreement could cause irreparable harm to the Disclosing Party for which monetary damages may be difficult to ascertain or an inadequate remedy. The Recipient therefore agrees that the Disclosing Party shall have the right, in addition to its other rights and remedies, to seek injunctive relief for any violation of this Agreement without posting bond or security.
12. Waiver. No failure or delay by Disclosing Party in exercising any right, power or privilege under this Agreement will operate as a waiver of the right, power or privilege. A single or partial exercise of any right, power or privilege will not preclude any other or further exercise of the right, power or privilege or the exercise of any other right, power or privilege. The rights and remedies provided in this Agreement will be cumulative and not exclusive of any rights or remedies provided by law.
13. Governing Law & Savings Clause. This Agreement will be governed by, and construed in accordance with, the laws of the State of Minnesota, without reference to conflicts of laws provisions. Venue for any action involving this Agreement shall be proper only in Minnesota. The parties hereto expressly waive the jurisdiction of any foreign court. If any provision of the Agreement is declared void or otherwise unenforceable, such provision shall be deemed to have been severed from this Agreement, which shall otherwise remain in full force and effect.
14. Successors and Assigns. No Party may assign any of its rights, interests or obligations under this Agreement without the prior written consent of the other Parties. Subject to the preceding sentence, this Agreement will apply to, be binding in all respects upon, and inure to the benefit of the successors and permitted assigns of the Parties.
15. Authorized Submission. The individual person who clicks to accept this Agreement and/or submits the Intake Application Questionnaire represents and warrants to RQR: (a) that such individual is authorized by Applicant to submit the Intake Application Questionnaire, and all related information, to RQR on Applicant’s behalf; (b) is authorized to enter into this Agreement on Applicant’s behalf and bind Applicant to the terms and conditions herein; and (c) has not made, and will not make, any misrepresentations regarding such individual’s identity, relationship to Applicant, or relationship to RQR.