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NON-DISCLOSURE AGREEMENT
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THIS AGREEMENT (the “Agreement”) is entered into on this ____ day of ___________ by and between Fuel Venture Capital, (the “Disclosing Party”), and ___________________________ (the “Receiving Party”).
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The Receiving Party hereto desires to participate in discussions regarding Fuel Venture Capital investment offering(s) (the “Fund”). During these discussions, Disclosing Party may share certain proprietary information with the Receiving Party. Therefore, in consideration of the mutual promises and covenants contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
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1. Definition of Confidential Information.
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(a) For purposes of this Agreement, “Confidential Information” means any data or information that is\nproprietary to the Disclosing Party and not generally known to the public, whether in tangible or\nintangible form, in whatever medium provided, whether unmodified or modified by Receiving Party or its\nRepresentatives (as defined herein), whenever and however disclosed, including, but not limited to: (i)\nany marketing strategies, plans, financial information, or projections, operations, sales estimates, business\nplans, investment methodologies, and performance results relating to the past, present or future business\nactivities of such party, its affiliates, subsidiaries and affiliated companies; (ii) plans for products or\nservices, and customer or supplier lists; (iii) any scientific or technical information, invention, design,\nprocess, procedure, formula, improvement, technology or method; (iv) portfolio companies, potential\nportfolio companies, business prospects, any concepts, reports, data, know-how, works-in-progress,\ndesigns, development tools, specifications, computer software, source code, object code, flow charts,\ndatabases, inventions, information and trade secrets; (v) any other information that should reasonably be\nrecognized as confidential information of the Disclosing Party; and (vi) any information generated by the\nReceiving Party or by its Representatives that contains, reflects, or is derived from any of the foregoing.\nConfidential Information need not be novel, unique, patentable, copyrightable or constitute a trade secret\nin order to be designated Confidential Information. The Receiving Party acknowledges that the\nConfidential Information is proprietary to the Disclosing Party, has been developed and obtained through\ngreat efforts by the Disclosing Party and that Disclosing Party regards all of its Confidential Information\nas trade secrets.
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(b) Notwithstanding anything in the foregoing to the contrary, Confidential Information shall not include\ninformation which: a) was lawfully possessed, as evidenced by the Receiving Party’s records, by the\nReceiving Party prior to receiving the Confidential Information from the Disclosing Party; (b) becomes\nrightfully known by the Receiving Party from a third-party source not under an obligation to Disclosing\nParty to maintain confidentiality; (c) is generally known by the public through no fault of or failure to act\nby the Receiving Party inconsistent with its obligations under this Agreement; (d) is required to be\ndisclosed in a judicial or administrative proceeding, or is otherwise requested or required to be disclosed\nby law or regulation, although the requirements of paragraph 4 hereof shall apply prior to any disclosure\nbeing made; and (e) is or has been independently developed by employees, consultants or agents of the\nReceiving Party without violation of the terms of this Agreement, as evidenced by the Receiving Party’s\nrecords, and without reference or access to any Confidential Information.
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2. Disclosure of Confidential Information.
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From time to time, the Disclosing Party including all its officers, affiliates, employees or representatives\nmay disclose Confidential Information to the Receiving Party. The Receiving Party will: (a) limit \ndisclosure of any Confidential Information to its acquaintances, relatives, directors, officers, employees,\nor agents (collectively “Representatives”) who have a need to know such Confidential Information in\nconnection with the current or contemplated business relationship between the parties to which this\nAgreement relates, and only for that purpose; (b) advise its Representatives of the proprietary nature of\nthe Confidential Information and of the obligations set forth in this Agreement, require such\nRepresentatives to be bound by written confidentiality restrictions no less stringent than those contained\nherein, and assume full liability for acts or omissions by its Representatives that are inconsistent with its\nobligations under this Agreement; (c) keep all Confidential Information strictly confidential by using a\nreasonable degree of care, but not less than the degree of care used by it in safeguarding its own\nconfidential information; and (d) not disclose any Confidential Information received by it to any third\nparties (except as otherwise provided for herein).
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3. Use of Confidential Information.
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The Receiving Party agrees to use the Confidential Information solely in connection with the current or\ncontemplated business relationship between the parties and not for any purpose other than as authorized\nby this Agreement without the prior written consent of an authorized representative of the Disclosing\nParty. No other right or license, whether expressed or implied, in the Confidential Information is granted\nto the Receiving Party hereunder. Title to the Confidential Information will remain solely in the\nDisclosing Party. All use of Confidential Information by the Receiving Party shall be for the benefit of\nthe Disclosing Party and any modifications and improvements thereof by the Receiving Party shall be the\nsole property of the Disclosing Party.
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4. Compelled Disclosure of Confidential Information.
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Notwithstanding anything in the foregoing to the contrary, the Receiving Party may disclose Confidential\nInformation pursuant to any governmental, judicial, or administrative order, subpoena, discovery request,\nregulatory request or similar method, provided that the Receiving Party promptly notifies, to the extent\npracticable, the Disclosing Party in writing of such demand for disclosure so that the Disclosing Party, at\nits sole expense, may seek to make such disclosure subject to a protective order or other appropriate\nremedy to preserve the confidentiality of the Confidential Information; provided that the Receiving Party\nwill disclose only that portion of the requested Confidential Information that, in the written opinion of its\nlegal counsel, it is required to disclose. The Receiving Party agrees that it shall not oppose and shall\ncooperate with efforts by, to the extent practicable, the Disclosing Party with respect to any such request\nfor a protective order or other relief. Notwithstanding the foregoing, if the Disclosing Party is unable to\nobtain or does not seek a protective order and the Receiving Party is legally requested or required to\ndisclose such Confidential Information, disclosure of such Confidential Information may be made without\nliability.
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5. Term.
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Notwithstanding the foregoing, the Receiving Party’s duty to hold in confidence Confidential Information\nthat was disclosed during term shall remain in effect for 10 years from the date hereof, unless Disclosing Party\nexpressly provides in writing permission to share specific Confidential Information per occurrence.\nPermission to use Confidential Information is a one-time permission for a selected period of time and is\nnot a permission indefinitely. Additional usage of already permitted Confidential Information is not\npermitted without additional written permission per occurrence. All items that logically ought to survive\nthe term of this Agreement shall survive.
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6. Remedies.
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Both parties acknowledge that the Confidential Information to be disclosed hereunder is of a unique and\nvaluable character, and that the unauthorized dissemination of the Confidential Information would destroy\nor diminish the value of such information. The damages to Disclosing Party that would result from the\nunauthorized dissemination of the Confidential Information would be impossible to calculate. Therefore,\nboth parties hereby agree that the Disclosing Party shall be entitled to injunctive relief preventing the\ndissemination of any Confidential Information in violation of the terms hereof. Such injunctive relief shall\nbe in addition to any other remedies available hereunder, whether at law or in equity. Disclosing Party\nshall be entitled to recover its costs and fees, including reasonable attorneys’ fees, incurred in obtaining\nany such relief. Further, in the event of litigation relating to this Agreement, the prevailing party shall be\nentitled to recover its reasonable attorney’s fees and expenses.
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7. Return of Confidential Information.
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Receiving Party shall immediately return and redeliver to Disclosing Party all tangible material\nembodying any Confidential Information provided hereunder and all notes, summaries, memoranda,\ndrawings, manuals, records, excerpts or derivative information deriving therefrom, and all other\ndocuments or materials (“Notes”) (and all copies of any of the foregoing, including “copies” that have\nbeen converted to computerized media in the form of image, data, word processing, or other types of files\neither manually or by image capture) based on or including any Confidential Information, in whatever\nform of storage or retrieval, upon the earlier of (i) the completion or termination of the dealings between\nthe parties contemplated hereunder; (ii) the termination of this Agreement; or (iii) at such time as the\nDisclosing Party may so request. Alternatively, the Receiving Party, with the written consent of the\nDisclosing Party shall immediately destroy any of the foregoing embodying Confidential Information\nand, upon request, certify in writing such destruction by an authorized officer of the Receiving Party\nsupervising the destruction.
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8. Notice of Breach.
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Receiving Party shall notify the Disclosing Party immediately upon discovery of, or suspicion of, (1) any\nunauthorized use or disclosure of Confidential Information by Receiving Party or its Representatives; or\n(2) any actions by Receiving Party or its Representatives inconsistent with their respective obligations\nunder this Agreement, Receiving Party shall cooperate with any and all efforts of the Disclosing Party to\nhelp the Disclosing Party regain possession of Confidential Information and prevent its further\nunauthorized use.
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9. No Binding Agreement for Transaction.
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The parties agree that neither party will be under any legal obligation of any kind whatsoever with respect\nto a Transaction by virtue of this Agreement, except for the matters agreed to herein. The parties further\nacknowledge and agree that they each reserve the right, in their sole and absolute discretion, to reject any\nand all proposals and to terminate discussions and negotiations with respect to a Transaction at any time.\nThis Agreement does not create a joint venture or partnership between the parties.
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10. Miscellaneous.
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(a) This Agreement constitutes the entire understanding between the parties and supersedes any and all\nprior or contemporaneous understandings and agreements, whether oral or written, between the parties, \nwith respect to the subject matter hereof. This Agreement can only be modified by a written amendment\nsigned by the party against whom enforcement of such modification is sought.
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(b) The validity, construction and performance of this Agreement shall be governed and construed in\naccordance with the laws of Florida applicable to contracts made and to be wholly performed within such\nstate, without giving effect to any conflict of law’s provisions thereof. The Federal and state courts\nlocated in Florida have sole and exclusive jurisdiction over any disputes arising under, or in any way\nconnected with or related to, the terms of this Agreement and Receiving Party: (i) consents to personal\njurisdiction therein; and (ii) waives the right to raise forum non conveniens or any similar objection
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(c) Any failure by either party to enforce the other party’s strict performance of any provision of this\nAgreement will not constitute a waiver of its right to subsequently enforce such provision or any other\nprovision of this Agreement.
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(d) Although the restrictions contained in this Agreement are considered by the parties to be reasonable\nfor the purpose of protecting the Confidential Information, if any such restriction is found by a court of\ncompetent jurisdiction to be unenforceable, such provision will be modified, rewritten or interpreted to\ninclude as much of its nature and scope as will render it enforceable. If it cannot be so modified, rewritten\nor interpreted to be enforceable in any respect, it will not be given effect, and the remainder of the\nAgreement will be enforced as if such provision was not included.
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(e) Any notices or communications required or permitted to be given hereunder may be delivered by\nhand, deposited with a nationally recognized overnight carrier, electronic-mail, or mailed by certified\nmail, return receipt requested, postage prepaid, in each case, to the address of the other party first\nindicated above (or such other addressee as may be furnished by a party in accordance with this\nparagraph). All such notices or communications shall be deemed to have been given and received (a) in\nthe case of personal delivery or electronic-mail, on the date of such delivery, (b) in the case of delivery by\na nationally recognized overnight carrier, on the third business day following dispatch and (c) in the case\nof mailing, on the seventh business day following such mailing.
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(f) This Agreement is personal in nature, and neither party may directly or indirectly assign or transfer it\nby operation of law or otherwise without the prior written consent of the other party, which consent will\nnot be unreasonably withheld. All obligations contained in this Agreement shall extend to and be binding\nupon the parties to this Agreement and their respective successors, assigns and designees.
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(g) Paragraph headings used in this Agreement are for reference only and shall not be used or relied upon\nin the interpretation of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above\nwritten.
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