This CONFIDENTIALITY AGREEMENT (hereinafter the “Agreement”) is made and entered into as of ____________, by and between Select Advisors Institute, LLC, with its principal place of business at 120 Newport Center Drive, Newport Beach, CA 92660 (hereinafter the “Company”), and ______________ firm, with an address ________________, hereinafter the “Recipient”). The Company and the Recipient shall collectively be called the “Parties.”
The purpose of this Agreement is for the Parties to not disclose on another’s Confidential Information subject to the terms herein.
(a) “Confidential Information” means all information conveyed by the one Party to the other whether orally, in writing, by demonstration, or by other media pertaining to existing and/or potential business venture(s). Confidential Information means any data or information that is proprietary and not generally known to the public, whether in tangible or intangible form, whenever and however disclosed, including, but not limited to: (i) any marketing strategies, plans, financial information, or projections, operations, sales estimates, business plans and performance results relating to the past, present or future business activities of such party, its affiliates, subsidiaries and affiliated companies; (ii) plans for products or services, and customer or supplier lists; (iii) any scientific or technical information, invention, design, process, procedure, formula, improvement, technology or method; (iv) any concepts, reports, data, know-how, works-in-progress, designs, development tools, specifications, computer software, source code, object code, flow charts, databases, inventions, information and trade secrets; and (v) any other information that should reasonably be recognized as confidential information. Confidential Information need not be novel, unique, patentable, copyrightable or constitute a trade secret in order to be designated Confidential Information.
(b) Confidential Information does not include information, technical data or know-how which (i) is in the possession of the receiving party at the time of disclosure as shown by the receiving party’s files and records immediately prior to the time of disclosure; or (ii) prior or after the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action of the receiving party, (iii) is approved for release by the disclosing party, or (iv) is independently developed by the receiving party without the use of any Confidential Information of the other party.
3. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION
The Company and Recipient each agree not to use the Confidential Information disclosed to it by the other party for its own use or for any unpermitted purpose. The recipient of Confidential Information will not disclose such Confidential Information to anyone, including to their employees and independent contractors; however, the recipient of Confidential Information may disclose such information to certain employees and/or independent contractors who are required to have such information to carry out the contemplated business. Each party has had, or will have employees and/or independent contractors, to whom Confidential Information of the other is disclosed, sign a Non-Disclosure Agreement which is substantially similar to this Agreement. Each agrees that it will take all reasonable steps to protect the secrecy of and avoid disclosure or use of Confidential Information of the other in order to prevent it from falling into the public domain or the possession of unauthorized persons. Each agrees to notify the other in writing of any misuse or misappropriation of Confidential Information of the other that may come to its attention.
Notwithstanding any other provision of the Agreement, disclosure of Confidential Information shall not be precluded if such disclosure:
(a) is in response to a valid order of a court or other governmental body of the United States or any political subdivision thereof;
(b) is otherwise required by law; or,
(c) is otherwise necessary to establish rights or enforce obligations under this Agreement, but only to the extent that any such disclosure is necessary.
In the event that the receiving party is requested in any proceedings before a court or any other governmental body to disclose Confidential Information, it shall give the disclosing party prompt notice of such request so that the disclosing party may seek an appropriate protective order. If in the absence of a protective order, the receiving party is nonetheless compelled to disclose Confidential Information, the receiving party may disclose such information without liability hereunder; provided, however, that such party gives the disclosing party advance written notice of the information to be disclosed and upon the request and at the expense of the disclosing party, uses its best efforts to obtain assurances that confidential treatment will be accorded to such information.
All Confidential Information shall remain the exclusive property of disclosing party, and recipient shall have no right to use Confidential Information except as provided herein. No patent, copyright, trademark or other proprietary right or license is conveyed by this Agreement with respect to Confidential Information.
5. RETURN OF MATERIALS
Any materials or documents which have been furnished by one party to the other will be promptly returned, accompanied by all copies of such documentation, after the purpose of disclosure has been achieved. The receiving party further agrees to destroy all notes and copies thereof made by its officers and employees containing or based on any Confidential Information and to cause its agents and representatives to whom or which Confidential Information has been disclosed to destroy all notes and copies in their possession that contain Confidential Information upon the request of the disclosing party.
6. INTELLECTUAL PROPERTY RIGHTS
Nothing in this Agreement is intended to grant any rights under any patent or copyright of either party, nor shall this Agreement grant either party any rights in or to the other party’s Confidential Information, except the limited right to review such Confidential Information solely for the permitted purposes. The disclosing party warrants that it has the right to disclose its Confidential Information to the receiving party. Otherwise, all information is provided “as is” and without any warranty, express, implied or otherwise, regarding its accuracy or performance.
The confidentiality obligations of this Agreement shall remain in effect indefinitely.
This Agreement shall be binding upon and for the benefit of the undersigned Parties, their successors and assigns, provided that Confidential Information may not be assigned without consent of the disclosing party. This Agreement contains the final, complete, and exclusive agreement of the Parties relative to the subject matter hereof and supersedes any prior agreement of the Parties, whether written or oral. This Agreement may not be changed, modified, amended, or supplemented except by a written instrument signed by both Parties. Failure to enforce any provision of this Agreement shall not constitute a waiver of any term hereof. No agency or partnership relationship is created between the parties by this Agreement.
Each party agrees that its obligations hereunder are necessary and reasonable in order to protect the other party and the other party’s business, and expressly agrees that monetary damages would be inadequate to compensate the other party for any breach of any covenant or agreement set forth herein. Accordingly, each party agrees and acknowledges that any such violation or threatened violation will cause irreparable injury to the other party and that, in addition to any other remedies that may be available, in law, at equity or otherwise, the other party shall be entitled to obtain injunctive relief against the threatened breach of the Agreement or the continuation of any such breach, without the necessity of proving actual damages. In such a case, the prevailing Party may request and be awarded attorney’s fees and costs.
All notices hereunder shall be sent to either party at the address specified above, or such other address or contact person as the respective party may specify from time to time in accordance with the provisions of this Agreement.
This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which, taken together, shall be deemed one instrument. A copy or electronic or facsimile copy of a signed original of this Agreement shall be sufficient to bind the parties whose signatures appear hereon.
IN WITNESS WHEREOF, each of the Parties has signed this Confidentiality Agreement as of the date first above written.
Select Advisors Institute, LLC
CEO of Firm