Mutual Confidentiality and Non-Disclosure Agreement
If your firm or company has i) an existing nondisclosure agreement, or ii) a services agreement with eMoney that contains confidentiality provisions, then such agreement shall supersede this Mutual Confidentiality and Non-Disclosure Agreement.
This Mutual Confidentiality and Non-Disclosure Agreement (this “Agreement”), is made effective as of this day of , 2019 (the “Effective Date”), by and between eMoney Advisor, LLC, a Delaware limited liability company (“eMoney”), and (“Company”). eMoney Advisor and Company shall collectively be referred to herein as the “Parties” and when referred to individually as a “Party” in connection with the consideration of a possible business transaction (the “Stated Purpose”), during which consideration each Party may disclose certain of its proprietary and confidential information to the other Party in order to facilitate discussion and analyses.
As a condition to the furnishing by one Party (in such capacity, the “Disclosing Party”) of such proprietary and confidential information as the Disclosing Party, in its sole and absolute discretion, may determine to furnish to the other Party (in such capacity, the “Recipient”), the Parties hereto agree to comply with the terms and conditions set forth below.
NOW, THEREFORE, in consideration of and reliance on the respective representations, warranties and covenants contained herein and intending to be legally bound hereby, the Parties agree as follows:
- Definition of Confidential Information. The term “Confidential Information” means all information or material whether in oral, written, graphic or machine-readable form which is disclosed by Disclosing Party or any of its respective directors, managers, officers, consultants, employees and advisors (collectively “Representatives”) or its Affiliates (including, with respect to eMoney, Affiliates of FMR, LLC) to Recipient or any of its Representatives in connection with the Stated Purpose or in the course of the Parties’ evaluation and negotiation of the Stated Purpose, or which: (a) gives the Disclosing Party some competitive business advantage or the opportunity of obtaining such advantage or the disclosure of which could be detrimental to the interests of the Disclosing Party; (b) might directly or indirectly aid a competitor or potential competitor of the Disclosing Party in making inferences regarding the business activities of the Disclosing Party that might allow such a competitor to compete more effectively with the Disclosing Party; (c) is either (i) marked “Confidential,” “Restricted,” or “Proprietary Information” or other similar marking, (ii) known by Recipient to be considered confidential and proprietary, or (iii) from all the relevant circumstances should reasonably be known to be confidential and proprietary; or (d) together with all communications, data, reports, analyses, compilations, studies, interpretations, records, notes, lists, financial statements or other materials or information prepared by Recipient or any of its Representatives that contain or otherwise reflect or are based upon, in whole or in part, any Confidential Information of Disclosing Party or that reflect the review of, interest in, or evaluation of all or any portion of the Stated Purpose or Disclosing Party’s business.
- Restrictions on Use. The Recipient shall not use, without the prior written consent of the Disclosing Party, any portion of the Disclosing Party’s Confidential Information for any purpose other than the Stated Purpose. Each Party agrees that:
- it will hold Confidential Information of the Disclosing Party in the strictest confidence;
- it will exercise no less care with respect to the Disclosing Party’s Confidential Information than the level of care exercised with respect to its own Confidential Information
but in no event shall the Recipient use less than a reasonable degree of care to protect the Disclosing Party’s Confidential Information;
- it will not, without the Disclosing Party’s prior written consent, copy or disclose to any third party any portion thereof;
- it will notify immediately the Disclosing Party of any unauthorized disclosure or use, and will cooperate with the other to protect all proprietary rights in and ownership of its Confidential Information;
- it will restrict dissemination of Confidential Information of the Disclosing Party to only those Representatives and Affiliate(s) within or related to its organization whose use or access is necessary to affect the purpose for which Confidential Information is being disclosed, and who are bound by terms substantially similar to the terms set forth herein; and
- it will not disclose to any person or entity (other than to their respective Representatives as authorized under this Agreement) the fact that Confidential Information has been made available, that discussions or negotiations are taking place or have taken place concerning a possible transaction or other arrangement involving it and the other Party, or any of the terms, conditions or other facts with respect to any such possible transaction(s), including the status thereof, except as required by law.
As used herein, “Affiliate” means any entity controlled by, controlling or under common control with a Party.
- Exceptions. The foregoing shall not prohibit or limit the Recipient’s use, disclosure, reproduction or dissemination of the Disclosing Party’s Confidential Information which:
- prior to disclosure, is known to the public; after disclosure, becomes known to the public or otherwise ceases to be a trade secret, through no act or omission of the Recipient or its Representatives in breach of this Agreement;
- is already rightfully in the Recipient's possession on a non-confidential basis at the time of disclosure, as evidenced by written records;
- is independently developed by or for the Recipient, as evidenced by written records; provided that the individual(s) involved in the development had no access to the Confidential Information;
- is received by the Recipient from another person or entity whom the Recipient reasonably believes is not obligated to the Disclosing Party to keep the same confidential; or
- is requested of the Recipient by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process, or is required by law or the rules of any stock exchange on which the Recipient’s securities are traded to disclose any part of the Confidential Information. In such case, the Recipient shall notify the Disclosing Party promptly of such request(s) and requirement(s), and (if applicable) the documents requested thereby, so that the Disclosing Party may seek an appropriate protective order and/or waive in writing the Recipient's obligation not to disclose the Confidential Information. The Recipient further agrees that, if in the absence of a protective order or the receipt of a waiver hereunder, the Recipient is nonetheless compelled to disclose all or part of the Confidential Information or else stand liable for contempt or suffer other censure or penalty from any tribunal or governmental or similar authority or the aforementioned security exchange, the Recipient may disclose such Confidential Information without liability hereunder; provided, however, that the Recipient shall deliver to the Disclosing Party written notice of the Confidential Information to be disclosed as far in advance of its disclosure as is practicable, and shall use reasonable efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information that is required to be disclosed.
- Term. This Agreement will commence upon the Effective Date and continue for a period of two (2) years.
- Duties Upon Termination. Upon termination of the business relationship between the Parties, or at any time upon the written request of the other Party to this Agreement, each Party will:
- Immediately cease, and cause its Representatives to immediately cease, using all Confidential Information; and
- promptly destroy or return to the Disclosing Party all Confidential Information of the Disclosing Party, in whatever medium, including any and all copies thereof, and confirm in writing such return (or, if authorized, destruction of Confidential Information) by the Recipient to the Disclosing Party.
Notwithstanding the foregoing, Recipient and its Representatives shall be entitled to retain under the terms of this Agreement, but not use in any manner, the Confidential Information to the extent necessary to comply with applicable law, regulation or bona fide document retention policies.
- Equitable Relief. Each Party agrees that it would be impossible or inadequate to measure and calculate the other Party's damages from any breach of the covenants set forth in this Agreement. Accordingly, the Parties agree that if either Party breaches or threatens to breach any of such covenants, the non-breaching Party will have available, in addition to any other right or remedy available, the right to seek an injunction from a court of competent jurisdiction restraining such breach or threatened breach and to specific performance of any such provision of this Agreement. The Parties further agree that no bond or other security shall be required in obtaining such equitable relief. In the event of litigation, the non-prevailing party as determined by a court of competent jurisdiction in a final non-appealable order shall be liable and pay to the prevailing party the reasonable legal fees incurred in connection with such litigation.
- No Representation of Accuracy of Confidential Information. Each Party understands and acknowledges that the Disclosing Party is not making any representation or warranty as to the accuracy or completeness of any Confidential Information furnished by or on behalf of the Disclosing Party (except to the extent and only to such effect as shall be expressly set forth in an executed and delivered definitive agreement between the Parties to affect the Stated Purpose (the “Definitive Agreement”). Neither the Disclosing Party, its Affiliates nor any of their respective officers, directors, employees or agents shall have any liability to the Recipient or any of its Representatives relating to or arising from the Recipient’s use of the Confidential Information under the terms of this Agreement.
- No Joint Venture. The Parties agree that this Agreement is for the purpose of protecting information only. This Agreement is not a joint venture or other such business arrangement. Except as set forth in this Agreement, neither Party shall have any liability or obligation of any nature whatsoever to the other Party, nor any obligation to enter into a Definitive Agreement, negotiate to enter into a Definitive Agreement, or refrain from negotiating similar agreements with other parties.
- Amendments. This Agreement may not be amended except by an instrument signed by the Party against whom enforcement is sought.
- Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the Commonwealth of Pennsylvania, United States of America, without giving effect to any conflict of law principles of any jurisdiction.
- Execution and Severability. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original as against any Party whose signature appears thereon, but all of which together shall constitute but one and the same instrument. If any part, term or provision of this Agreement shall be held illegal, unenforceable, or in conflict with any law of a federal, state, or local government having jurisdiction over this Agreement, the validity of the remaining portions or provisions shall not be affected thereby.
- Electronic Signatures. The Parties acknowledge their ability and option to execute this Agreement with an electronic signature. The Parties further agree that an electronic signature shares the legal equivalency, validity and enforceability of a manual signature upon a written document and therefore, their election to use an electronic signature shall constitute their consent to be bound by the terms and conditions of this Agreement.
- Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the Stated Purpose and constitutes and supersedes all prior agreements, representations and understandings of the Parties relating to its subject matter, written or oral.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed effective as of the date first above written.