Mutual confidentiality and Non-Disclosure Agreement

This mutual confidentiality and Non-Disclosure Agreement (this “Agreement”), dated and effective as of [DATE OF SIGNATURE], is made and entered into by and between [SIGNATORY NAME] (the “Attendee”), and Commerce Venture Management a  Limited Liability Company organized under the laws of the State of Delaware with a place of business at 604 Mission Street, Suite 600, San Francisco, CA ( “Commerce Ventures”).

Whereas, Commerce Ventures recognizes that Attendee is assisting Commerce Ventures by attending its annual investor meeting (the “Meeting”) to be held on October 1, 2020, (the “Business Purpose”) and Commerce Ventures wishes to permit Attendee to participate in the confidential portions of the Meeting, Commerce Ventures (“Disclosing Party”) may disclose certain of its and its affiliates confidential and proprietary information to the Attendee (“Receiving Party”); and

Whereas, the parties wish to provide for the protection of their respective Confidential Information (as defined in Section 1 below);

Now, Therefore, in consideration of the premises and the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:

 

  1. Definition of Confidential Information. As used herein, “Confidential Information” means any and all non-public, confidential and/or proprietary information disclosed by the Disclosing Party or any of its Representatives (as defined below) to the Receiving Party or its Representatives.  Without limiting the generality of the foregoing, Confidential Information may include, but is not limited to, information that relates to or concerns a party’s trade secrets, research, experimental work, business plans, product plans, products, developments, know-how, inventions, processes, design details, engineering, software (including source and object code), algorithms, customers, financial information and projections, business forecasts, sales and marketing plans and third party reports and analysis (including any documents or memoranda that include part or all of this information). The existence of any business negotiations, discussions, consultations, or agreements in progress between the parties shall be considered Confidential Information.  As used in this Agreement the term “Representative” means, as to each party, such party’s affiliates and its or their directors, officers, employees, agents and advisors (including, without limitation, financial advisors, legal counsel and accountants).
  2. Obligations of the Parties. Unless otherwise agreed to in writing by the Disclosing Party, the Receiving Party agrees: (i) to keep all Confidential Information in the strictest of confidence and not to disclose or reveal any Confidential Information to any person (other than such Representatives of the Receiving Party who are actively and directly involved in the discussions or evaluation of the Business Purpose and who have a need to know such Confidential Information for the purpose of evaluating the Business Purpose and who have agreed to keep such Confidential Information confidential in accordance with the terms and provisions of this Agreement); (ii) not to use the Confidential Information for any purpose other than in connection with the Business Purpose; and (iii) not to disclose to any person (other than such Representatives of the Receiving Party who are actively and directly involved in the discussions or evaluation of the Business Purpose and who have a need to know for the purpose of evaluating the Business Purpose and who are have agreed to maintain in confidence the information disclosed hereunder in accordance with the terms and provisions of this Agreement), the fact that discussions are taking place with respect to the Business Purpose (including the status and terms of such discussions) or the fact that Confidential Information has been or may be made available to the Receiving Party and/or its Representatives.  The Receiving Party shall treat all Confidential Information with the same degree of care, but no less than a reasonable degree of care, as it accords its own Confidential Information.  The parties agree to cause their Representatives who receive Confidential Information to observe the requirements applicable to the Receiving Party pursuant to this Agreement with respect to such information, including, but not limited to, the restrictions on use and disclosure of such information set forth in this Section 2.
  3. Exceptions. The obligations of the parties set forth herein shall not apply to any information that: (i) is in the public domain at or after the time it was disclosed by the Disclosing Party to the Receiving Party through no fault of the Receiving Party; (ii) was rightfully in the Receiving Party’s possession free of any obligation of confidentiality at the time it was communicated to by the Disclosing Party; (iii) is disclosed with the prior written approval of the Disclosing Party; (iv) is independently developed by the Receiving Party without reference to or use of the Confidential Information; (v) is or becomes available to the Receiving Party from a person other than the Disclosing Party or any of its Representatives who is not bound by an obligation to maintain the confidentiality of such information; (vi) is necessary to disclose to establish the rights of either party under this Agreement; or (vii) is required to be disclosed pursuant to an order or requirement of a court, administrative agency or governmental body, provided that the Receiving Party shall promptly notify the Disclosing Party of the facts thereof to enable the Disclosing Party to seek a protective order or otherwise prevent or restrict disclosure of such information, and upon request of the Disclosing Party, shall reasonably cooperate with the Disclosing Party (at the Disclosing Party’s sole cost and expense) to obtain such protective order or other appropriate remedy.  In the event that no such protective order or other remedy is obtained, or the Disclosing Party waives compliance (in whole or in part) with the terms and conditions of this Agreement, the Receiving Party shall disclose only that portion of the Confidential Information that is required to be disclosed and shall use all reasonable efforts to ensure that all Confidential Information that is disclosed shall be accorded confidential treatment.
  4. Return or Destruction of Materials. Any materials or documents, and all copies thereof, which have been furnished to the Receiving Party and its Representatives by the Disclosing Party shall be promptly returned to the Disclosing Party or destroyed within ten (10) days after receipt by the Receiving Party of a written notice by Disclosing Party requesting such return or destruction.
  5. Relationship of the Parties. As between the parties, all Confidential Information disclosed to, delivered to, or accessed by a Receiving Party from a Disclosing Party hereunder shall be and remain the sole and exclusive property of the Disclosing Party and nothing contained herein shall be construed as granting to or conferring upon any Receiving Party any rights, by license or otherwise, in any Confidential Information or any intellectual property rights embodied therein (including, without limitation, any patent, copyright or trade secret) of the Disclosing Party. Each party hereto agrees that until a definitive agreement regarding the Business Purpose has been executed by the parties, no party is under any legal obligation and shall have no liability to any other party of any nature whatsoever with respect to the Business Purpose by virtue of this Agreement (other than with respect to the confidentiality and other matters expressly set forth herein). Nothing in this Agreement shall be deemed to create any agency, partnership or joint venture between the parties.
  6. Continuing Obligation. Whether or not the Business Purposes is consummated, the terms and obligations pertaining to confidentiality in this Agreement shall nevertheless remain in full force and effect for a period of four (4) years from the last disclosure of Confidential Information from one party to the other hereunder, unless the Disclosing Party expressly agrees in writing to release all or part of its Confidential Information from the restrictions imposed by this Agreement before such period has elapsed.
  7. Injunctive Relief. Each party acknowledges and agrees that the Confidential Information is of a special and unique character which gives it a peculiar value, and that any breach by the Receiving Party of its obligations under this Agreement cannot be adequately compensated by damages in an action at law and may cause the Disclosing Party irreparable harm and injury.  Accordingly, the Disclosing Party shall be entitled to the remedies of injunction, specific performance and other equitable relief to redress any breach or threatened breach of the Receiving Party’s or its Representatives obligations under this Agreement and neither proof of special damages nor any bond or security shall be necessary to seek such relief.  Nothing contained in this Section 7 shall, however, be construed as a waiver by either party of any other rights or remedies available to such party, including, without limitation, rights to damages.
  8. No Warranty. Each party agrees that it is not entitled to rely on the accuracy or completeness of the Confidential Information.  Accordingly, each party acknowledges that neither party nor any of their respective Representatives makes any express or implied representation or warranty as to the accuracy, completeness, fitness for a particular purpose, title or non-infringement of any Confidential Information and each party agrees that none of such persons shall have any liability to it or any of its Representatives (i) for any errors therein or omissions therefrom or (ii) relating to or arising from use of any Confidential Information by such party or any of its Representatives.
  9. Waiver. No failure or delay by a party hereto in exercising any right, power or privilege hereunder shall operate as a waiver hereof, nor shall any single or partial exercise thereof preclude any other further exercise thereof or the exercise of any right, power or privilege hereunder. The waiver of any breach or default hereunder shall not constitute the waiver of any subsequent breach or default.
  10. Governing Law. This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of California applicable to agreements executed and to be performed entirely in such state.
  11. Successors and Assigns. This Agreement, and any and all of rights and obligations hereunder, may not be assigned or otherwise transferred (whether by contract, acquisition, reorganization, bankruptcy, merger, operation of law or otherwise), in whole or in part, by the Attendee or Commerce Ventures without the other party’s prior written consent. Subject to the immediately preceding sentence, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns
  12. Entire Agreement. This Agreement constitutes the complete and entire understanding and agreement, and supersedes all prior and contemporaneous understandings and agreements (whether written or oral), between the parties with respect to the subject matter hereof and may not be modified or amended except by written instrument duly executed by each of the parties.
  13.  The section headings of this Agreement are for convenience of reference only and shall not be deemed to alter or affect any provision hereof.
  14. Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and together shall constitute one and the same instrument.

By The Attendee Selecting The Checkbox At Registration And Commerce Ventures Admitting the Attendee to the event , the parties have caused this Agreement to be executed as of the date set forth above.

 

ATTENDEE: ___________________________

 

By: ____________________

 

 

 

 

COMMERCE VENTURES MANAGEMENT, LLC

 

By: ______________________

Name: Dan Rosen

Title: Managing Member