MUTUAL CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
THIS MUTUAL CONFIDENTIALITY AND NON- DISCLOSURE AND NON-CIRCUMVENTION AGREEMENT dated as of October , 2009 by and between Innovative Learning Center LLC having its principal place of business at 5621 Strand Blvd – Suite 109, Naples FL 34110, and you and their respective affiliates, successors and assigns, are each herein called a "Party" and are collectively called the "Parties."
In connection with discussions and negotiations concerning a potential business transaction, Board membership and/or consulting work between the Parties (collectively, called the "Transaction"), each Party may obtain (whether before or after the date hereof) proprietary and confidential information (whether written or oral) concerning the business and affairs of the other Party. Such information may also include confidential information that a Party is required by a third party to keep confidential.
In consideration of and as a condition to each Party furnishing the other Party and its directors, officers, partners, employees, agents, advisors, and potential financing sources (collectively, "Representatives") proprietary and confidential information that has not heretofore been made generally available on a nonconfidential basis, each Party agrees to treat such information furnished to it by or on behalf of the other Party or its Representatives and all analyses, compilations, forecasts, studies and other material prepared by it or its Representatives containing or based in whole or in part on any such information furnished by or on behalf of the other Party or any of its Representatives (collectively, the "Confidential Information"), as follows:
Each Party recognizes and acknowledges the competitive value and confidential and proprietary nature of the other Party’s Confidential Information and the damage that could result to the other Party if information contained therein were disclosed to any third party.
Each Party agrees that the Confidential Information of the other Party will be used solely for the purpose of evaluating the Transaction and agrees that it will not exploit such Confidential Information for its own benefit or the benefit of another without the prior written consent of the other Party, which consent may be withheld in the other Party’s sole discretion. Each Party also agrees that it will not disclose any of the Confidential Information of the other Party to any third party without the prior written consent of the other Party (which consent may be withheld in the other Party’s sole discretion); provided, however, that any such information may be disclosed to Representatives of such Party who need to know such information for the purpose of evaluating the Transaction and who agree in writing (i) to keep such information confidential and (ii) to be bound by this Agreement to the same extent as if they were parties hereto. Each Party agrees to be legally responsible for any disclosure of such information by any of its Representatives and to identify to the other Party promptly upon request the identities of any Representatives to whom such information has been disclosed. Confidential Information shall include, but not be limited to, the identities of potential business partners.
In addition to keeping such identities confidential, the receiving Party shall not circumvent or attempt to circumvent the disclosing Party in any way with respect to going to market or other such potential business partners.
Each of the Parties will protect the other Party’s Confidential Information by using the same degree of care, but not less than reasonable degree of care, to prevent the unauthorized use, dissemination, publication of, or access to, the other Party’s Confidential Information as it uses to protect its own Confidential Information.
Confidential Information will remain the property of the disclosing Party notwithstanding disclosure hereunder. Disclosure of Confidential Information hereunder will not be deemed to constitute a grant, by implication or otherwise, of a right or license to the Confidential Information or in any patents or patent applications of the disclosing Party.
In the event that either Party or its Representatives are requested in any proceeding or required by law, court order or regulation (including any rule of a stock exchange on which the stock of a Party is listed) to disclose any Confidential Information of the other Party, such Party will give the other Party prompt notice of such request or requirement so that the other Party may seek an appropriate protective order. If, in the absence of a protective order, the receiving Party or its Representatives are nonetheless compelled to disclose such Confidential Information, such Party or its Representatives, as the case may be, may disclose such portion of the Confidential Information which such Party is advised in a written opinion by outside counsel is legally required; provided, however, that such Party gives the other Party written notice of the information to be disclosed as far in advance of its disclosure as is practicable and uses its best efforts to obtain assurances that confidential treatment will be accorded to such information.
Without the prior written consent of the other Party, neither Party nor its Representatives will disclose to any person any of the following: (i) the fact that the Confidential Information of the other Party exists as such and is being made available for the purposes indicated; (ii) the fact that the other Party may entertain or consider a Transaction proposal; or (iii) the fact that discussions or negotiations are taking place concerning a possible Transaction with the other Party or any of the terms, conditions or other facts with respect to the Transaction including the status thereof or the subject matter of this Agreement; provided, that a Party may make such disclosure if it gives the other Party advance notice in writing of its intention and need to do so and such Party has received the written opinion of its outside counsel that such disclosure must be made by it in order not to commit a violation of law.
Each of the Parties will, upon the written request of the other Party, return to the other Party all Confidential Information from the other Party received or developed pursuant to this Agreement (and all copies and reproductions thereof); provided that any portion of the Confidential Information that consists solely of analyses, compilations, forecasts, studies and other material prepared by such Party or its Representatives, in lieu of being returned to the other Party, may be destroyed by such Party, in which event one of its authorized officers shall provide certification that such materials have in fact been so destroyed. Notwithstanding the return or destruction of any such Confidential Information, the provisions of this Agreement will continue in full force and effect in accordance with the terms and conditions of this Agreement.
Neither Party nor its Representatives will have any obligation hereunder with respect to any information in the other Party’s Confidential Information to the extent that the Party can demonstrate that such information (a) has been made public other than by acts by it or its Representatives in violation of this Agreement or (b) becomes available to it on a nonconfidential basis from a source that is not prohibited from disclosing such Confidential Information by a legal, contractual or fiduciary obligation.
Each Party understands that the other Party makes no representation or warranty as to the accuracy or completeness of the Confidential Information. Only the representations and warranties, if any, set forth in a definitive agreement, when, as and if it is executed and delivered (and subject to the restrictions and conditions specified therein) will have any legal effect.
Each Party agrees that money damages would not be sufficient remedy for any breach of this Agreement by it or its Representatives, and that, in addition to all other remedies, each Party will be entitled, as a matter of right and without the need to prove irreparable injury, to specific performance and injunctive or other equitable relief as a remedy for any such breach, and further waives, and agrees to use its best efforts to cause its Representatives to waive, any requirement for the securing or posting of any bond in connection with such remedy. Each Party agrees to be legally responsible for any breach of this Agreement by any of its Representatives. Each Party further agrees to pay the costs and expenses, including attorneys’ fees, of the other Party if a court of competent jurisdiction determines that such Party or its Representatives has breached this Agreement.
No failure or delay by either Party in exercising any right, power or privilege under this Agreement will operate as a waiver thereof nor will any single or partial exercise thereof preclude any other or further exercise of any right, power or privilege hereunder. No provision of this Agreement may be waived or amended or any consent given except by a writing signed by a duly authorized representative of the Party, which specifically refers to this Agreement and the provision so amended or for which such waiver or consent is given. No request or proposal to amend, modify or waive any provisions of this Agreement will be made or solicited except in a non-public and confidential manner.
In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not in any way be affected or impaired thereby.
This Agreement will be construed according to the laws of the State of Florida. Each Party hereto agrees to accept the non-exclusive jurisdiction of the courts of the State of Florida, and those of the United States of America situated in the State of Florida, for the adjudication of any dispute arising out of this Agreement. Each Party hereto hereby irrevocably: (1) agrees that any suit, action, or other legal proceeding arising out of this Agreement may be brought in any Florida or United States Federal Court located in the State of Florida; (2) consents to the jurisdiction of each such court in any such suit, action, or legal proceeding; (3) waives any objection which it may have to the laying of venue of any such suit, action, or legal proceeding in any of such courts; and (4) agrees that Florida is a convenient forum for litigation of any such suit, action, or legal proceeding.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective the day and year first above written.
