Klimaterra LLC
Mutual Non-Disclosure Agreement
In connection with discussions between [_______________________________], a [________________] organized under the laws of the State of [_____________], with offices at [_______________________________________________] (the "Counterparty"), and Klimaterra LLC, a limited liability company organized under the laws of the State of Arizona, with offices at 2239 W Hidden Treasure Way, Anthem, AZ 85086 ("Klimaterra"), regarding potential business transactions (the "Transaction"), each party and its affiliates (as to information disclosed by it, the "Disclosing Party") may furnish the other party (as to information received by it, the "Receiving Party") with certain confidential and proprietary information under the terms and conditions of this Mutual Non-Disclosure Agreement (this "Agreement"). "Confidential Information" as used in this Agreement shall mean all such information relating to the Transaction that is or has been disclosed by one Party (as defined below) to the other orally, or in writing or by any email or other tangible electronic storage medium. All other information shall be deemed to be non-confidential. The parties to this Agreement may also be referred to individually as a "Party" or collectively as the "Parties."
1. The Receiving Party agrees, except as required by law (a) to protect the confidentiality of the other Party's Confidential Information in accordance with the provisions hereof; (b) to use the Confidential Information only for the purposes of evaluating the possible Transaction and the terms thereof; (c) to use the same degree of care as with its own confidential information to prevent disclosure of the Confidential Information, except that the Receiving Party shall be permitted to disclose the Confidential Information to its affiliates and its and their respective agents, advisors, employees, consultants, contractors, officers, directors and representatives, and existing and potential finance parties (collectively "Representatives"), in each case to the extent necessary to evaluate the Transaction (provided that each such Representative (i) is advised of the confidential nature of such Confidential Information and (ii) agrees to be bound by provisions consistent with the provisions of this Agreement or is bound by professional obligations of confidentiality) and to any regulatory agency or government authority as required in connection with the Transaction; and (d) not to disclose to persons (other than those described in (c) above) that the Confidential Information has been made available, that the Receiving Party is considering a possible Transaction, or that the Parties have had or are having discussions or negotiations with respect thereto. The Receiving Party further agrees that it shall be responsible for any breach of this Agreement by its Representatives. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement. Accordingly, in the event of any such breach, in addition to any other remedies at law or in equity that a Party may have, it shall be entitled to equitable relief, including injunctive relief or specific performance, or both (although neither Party shall be entitled to any special, consequential, indirect, punitive or exemplary damages as a result of a breach of this Agreement, whether a claim is asserted in contract, tort, or otherwise). Nothing herein is intended to limit or abridge the protection of trade secrets under applicable trade secrets law, and trade secrets shall be maintained as such until they fall into the public domain.
2. Confidential Information shall not include any information disclosed by a Disclosing Party hereunder if such information (a) is or becomes generally available to the public other than as a result of disclosure by the Receiving Party or its Representatives; (b) was available on a non-confidential basis prior to its disclosure to the Receiving Party; (c) is or becomes available to the Receiving Party or its Representatives on a non-confidential basis from a source other than the Disclosing Party when such source is not, to the best of the Receiving Party's knowledge, subject to a confidentiality obligation to the Disclosing Party; or (d) was independently developed by the Receiving Party or its Representatives, without reference to the Confidential Information.
3. If either Party decides not to proceed with the Transaction, it will promptly inform the other Party of that decision. In addition, a Disclosing Party may elect at any time by notice to the Receiving Party to terminate further access to and such Party's review of the Confidential Information. In any such case, or upon the expiration of this Agreement, the Receiving Party and its Representatives shall, if requested by the Disclosing Party, promptly return or destroy all Confidential Information disclosed to it. The provisions of this Article 3 shall not apply to Confidential Information that is (a) retained in the computer backup system of the Receiving Party if the Confidential Information will be destroyed in accordance with the regular ongoing records retention process of the Receiving Party; or (b) that must be retained under applicable law, including by stock exchange regulations or by governmental order, decree, regulation, or rule. Neither Party has any obligation to continue discussions with the other Party or to enter into any further agreement with the other Party. Neither Party shall be considered to have any obligation or right not specifically set out herein unless and until such Party enters into a separate written agreement setting out such obligation or right.
4. Each Party shall retain ownership of all Confidential Information and intellectual property it had prior to commencement of the discussions and evaluation referred to in this Agreement. Nothing in this Agreement shall be deemed to grant a license directly or by implication, estoppel, or otherwise, although the Parties may provide for such a license in an express written agreement. The Disclosing Party makes no representation or warranty as to the accuracy or completeness of the Confidential Information or any part thereof and shall have no liability for any errors or omissions for any damages, or otherwise in any manner, relating to any Confidential Information disclosed under this Agreement.
5. If either Party or any of their respective Representatives is requested or required (by interrogatories, subpoena, or similar legal process) to disclose any Confidential Information, such Party agrees to provide the Disclosing Party with prompt notice of each such request, to the extent practicable, so that the Disclosing Party may seek an appropriate protective order or waive compliance by the Receiving Party with the provisions of this Agreement, or both. If, absent the entry of a protective order or receipt of a waiver, the Receiving Party is, in the opinion of its counsel, legally compelled to disclose such Confidential Information, the Receiving Party may disclose such Confidential Information to the persons and to the extent required without liability under this Agreement.
6. This Agreement contains the entire understanding between the Parties relating to the subject matter contained herein, and supersedes all prior and collateral communication, reports, and understandings between the Parties relating thereto. This Agreement is not intended as a teaming, joint venture, or other such arrangement. No change, modification, or addition to or waiver of any provision of this Agreement shall be binding unless in writing and signed by authorized representatives of both Parties.
7. Neither this Agreement taken as a whole, nor any duty, obligation, or covenant contained herein, may be assigned by either Party without the prior express written consent of the other Party.
8. This Agreement shall (a) be binding upon the Parties and their respective legal successors, (b) be governed by and interpreted in accordance with the laws of the State of Arizona, excluding its conflict of laws rules, and (c) expire on the earlier of the third anniversary of the date hereof and the date the Parties enter into a definitive agreement concerning the Transaction. Each Party agrees that the exclusive venue and forum for any action brought in connection with this Agreement shall be initiated and maintained in any state or federal court located in Maricopa County, Arizona, and irrevocably waives any right such Party may have to object to such venue and forum.
9. Each Party hereby irrevocably waives, to the fullest extent permitted by law, any right to a trial by jury in any legal action or proceeding arising out of or relating to this Agreement.
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