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This CONFIDENTIALITY AND NON-DISCLOSURE CONSENT (the “Agreement”) is agreed upon on or any time after February 23, 2023, between YOU and COAST FUNDING SERVICES LLC, a Delaware limited liability company, with a business address at 4365 Executive Drive, Suite 230, San Diego, CA, 92121, hereinafter collectively referred to as the “Parties”.
RECITALS
WHEREAS, the parties to this Agreement anticipate entering into discussions concerning one or more possible business projects, relationships or transactions (each a “Transaction”).
WHEREAS, during the course of the discussions the parties anticipate furnishing or otherwise providing each other (each party, to the extent receiving or gaining access to information during the discussions hereinafter referred to as a “Recipient”) and its Representatives (as defined below) access to certain Evaluation Material (as defined below) and the parties desire to make their respective disclosures subject to the terms and conditions set forth below.
SUBSTANTIVE PROVISIONS
NOW THEREFORE, in consideration of the promises and the mutual agreements contained herein, the parties agree as follows:
1. Non-Disclosure of Evaluation Material. Except as otherwise expressly provided in this Agreement, without the prior written consent of the other party hereto, Recipient shall treat and shall cause its Representative to treat all Evaluation Material in strict confidence. Without limiting the generality of the foregoing, Recipient shall not, and shall cause its Representatives not to disclose any Evaluation Material to any person other than on a “need to know” basis to those Representatives of Recipient who are essential to Recipient’s evaluation of a Transaction. “Person” means any corporation, limited liability company, partnership, venture or other incorporated or unincorporated form business enterprise, governmental agency or body, entity, group or individual.
2. Non-Use of Evaluation Material. Except as otherwise expressly provided in this Agreement, without the prior written consent of the other party hereto, Recipient shall not and shall cause its Representatives not to use any Evaluation Material for any purpose whatsoever other than in connection with consideration of a Transaction. Recipient shall additionally take all commercially reasonable precautions to ensure the secrecy of the Evaluation Material and to ensure that Recipient’s Representatives comply with all of the terms of this Agreement. Recipient shall be liable for any and all breaches of the terms hereof by its Representatives.
Each party acknowledges that the other (i) may now market or have under development products, services or utilize distribution channels which are competitive with products, services or distribution channels now utilized or offered, or which may be utilized or offered by the other, (ii) may now have or have in the future discussions with others concerning subject matters similar to the potential business transaction discussed hereunder, or (iii) may receive information from others similar to the Evaluation Material. Subject to the express obligations set forth in this Agreement, neither this Agreement nor discussions and/or communications between the parties hereto will impair the right of either party to pursue potential customers or acquisition opportunities or to develop, make, use, procure, and/or market any products, services or distribution channels, alone or with others, now or in the future, including those which may be competitive, directly or indirectly, with those offered by the other party.
3. Definition of Evaluation Material. “Evaluation Material” means any and all information, analysis, documents, proprietary concepts, (including, without limitation, concepts embodied in patent applications), materials and data (regardless of form or medium, including without limitation, computer data files and other electronically stored formats, and however communicated or obtained, including without limitation orally, through visual observation, in writing, or by electronic transmission) provided or made available to Recipient or its Representatives by the other party hereto or its Representatives during the course of the parties’ discussions. Evaluation material includes Derivative Materials, which means any and all notes, analysis, models, summaries, excerpts, copies, reproductions, or other embodiments made by Recipient or its Representatives reflecting, based upon, or containing any Evaluation Material. Evaluation Material also includes all information regarding a Transaction and the parties’ discussions with respect thereto, including without limitation, the fact that such discussions are taking place and the status thereof, the fact that the parties have executed this Agreement and have exchanged Evaluation Material, and the terms and conditions of any Transaction under consideration. Notwithstanding the foregoing, the term “Evaluation Material” shall not include any information, analysis, documents, proprietary concepts, materials or data: (a) which was in the possession of Recipient or its Representatives prior to the execution hereof on an unrestricted, non-confidential basis; (b) which is subsequently obtained by Recipient or its Representatives from a source other than the other party hereto or its Representatives who, insofar as is known to Recipient after reasonable inquiry, is not restricted in any way as to the disclosure or use thereof by any contractual, legal or fiduciary obligation: (c) which is currently, or subsequently becomes generally available to the public other than as a result of a disclosure by Recipient or its Representatives in violation of the provisions of this Agreement; or (d) which Recipient or its Representatives independently develop subsequent to the date hereof without any reference whatsoever to any Evaluation Material.
4. Definition of Representative. “Representative(s)” of any party means the subsidiaries and affiliates (as such term is used in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of such party and the respective shareholders or other owners, directors, members, officers, employees, representatives, agents, lenders, and legal and financial advisors of such party and of such subsidiaries and affiliates.
5. Return of Evaluation Material. Recipient and its Representatives will, at the request of the other party hereto, use commercially reasonable efforts to promptly account for and return to the other party all Evaluation Material in tangible form (whether in written form, electronically stored or otherwise) provided or made available to Recipient or its Representatives, or, in the alternative, will promptly destroy such Evaluation Material and provide the other party hereto with an officer’s certificate attesting to such destruction. Recipient and its Representatives will promptly destroy all Derivative Material at the request of the other party to this Agreement and provide such other party with an officer’s certificate attesting to such destruction.
6. Legally Compelled Disclosure. If Recipient or any of its Representatives becomes legally compelled to disclose any Evaluation Material pursuant to any law, regulation, subpoena, court order, or similar judicial or regulatory process, the effected party shall use commercially reasonable efforts to promptly provide the other party to this Agreement with written notice of the disclosure obligation so that such other party may seek an appropriate protective order or other appropriate remedy or waive compliance with the provisions of this Agreement. If such order or other remedy is not obtained or such other party waives compliance with the provisions of this Agreement, Recipient may disclose only such Evaluation Material as Recipient’s legal counsel advises such party in writing that Recipient is legally required to disclose, and Recipient shall cooperate with the other party to this Agreement and otherwise use commercially efforts to obtain reliable assurance that confidential treatment will be accorded the information so disclosed.
7. Scope of Evaluation Material. This Agreement notwithstanding, neither party to this Agreement shall have any obligation to provide the other party with any specific Evaluation Material or other information, and the parties may each elect to withhold from the other party hereto Evaluation Material which they in their sole discretion determine not to disclose. Except as may otherwise be expressly provided in a definitive agreement between the parties, the parties acknowledge that neither party represents or warranties, either expressly or impliedly, the accuracy or completeness of any Evaluation Material, and the parties agree that neither of the parties nor their Representatives shall have any liability to the other party hereto or any of its Representatives (on any basis or theory of liability, including, without limitation, in contract, tort, under federal or state securities laws, or otherwise) as a result of any of the parties’ discussions regarding a Transaction, the provision of Evaluation Material hereunder, or either party’s review or other use thereof or reliance thereon.
8. No Obligation Relative to Transaction. No party shall have any obligation of any kind whatsoever with respect to any Transaction by virtue of this Agreement or any other written or oral expression with respect to a Transaction (except, in the case of this Agreement, for the matters specifically agreed to herein) unless and until the parties execute and deliver a definitive agreement providing therefore, in which case the parties’ rights and obligations shall be solely those set forth therein and, to the extent not superseded in such definitive agreement, herein. For purposes of this section, offer letters, letters of intent, term sheets and other negotiating materials, as well as preliminary agreements, offer documents and expressions of interest, do not constitute definitive agreements within the contemplation of this section.
9. Federal Securities Law. The parties shall, and shall cause each of its Representatives to refrain from using any Evaluation Material in connection with any transaction involving any securities of the other party to this Agreement, which violates any provision of the Federal, or state securities laws, or any regulations or interpretations thereunder.
10. Injunctive Relief. The parties acknowledge the inadequacy of all remedies at law to compensate for any breach of the terms of this Agreement and the parties hereby stipulate, without prejudice, to any rights to judicial relief that may otherwise be available to redress any breach hereof, to the seeking of equitable relief, including injunction, in favor of the party affected by any such breach without any requirement for the securing or posting of a bond in connection therewith.
11. Severability. If any term or provision of this Agreement, or any application thereof to any circumstances, shall, to any extent and for any reason, be held to be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to circumstances other than those to which it is held invalid or enforceable, shall not be affected thereby and shall be construed as if such invalid or unenforceable provision had never been contained herein and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
12. Prevailing Party Attorney’s Fees. If either party to this Agreement initiates any suit or other formal legal proceeding to preserve or enforce its rights hereunder, then the prevailing party in such proceeding (as determined by the court or other adjudicating authority) shall be entitled to receive from the other party to such proceeding all reasonable fees and costs incurred in connection therewith including reasonable attorneys’ fees.
13. Miscellaneous. This Agreement constitutes the entire agreement between the parties with regard to the subject matter hereof. No modification, amendment or waiver shall be binding without the written consent of both parties. This Agreement shall inure to the benefit of and be binding upon each of the parties and their respective successors and assigns; provided, however, that neither this Agreement nor any of the rights, interest or obligations hereunder shall be assigned by either of the parties hereto without the prior written consent of the other party, and no assignment of any right, interest or obligation shall release any such assigning party from its obligations hereunder unless that other party consents to such release in writing. No failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single of partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.
14. Choice of Law. This Agreement and the parties’ rights and obligations hereunder shall be governed by and construed in accordance with the laws of the State of California, without regard to the conflict of law principles thereof.
15. Termination. This Agreement and the parties’ rights and obligations hereunder shall terminate one year from the effective date hereof.
16. Counterparts. This Agreement may be executed in one or more counterparts and signature pages may be exchanged by facsimile; each counterpart shall be deemed to be an original, and all counterparts together shall constitute the same agreement.