Non-Disclosure Agreement

CONFIDENTIALITY AGREEMENT

 

By accepting this THIS CONFIDENTIALITY AGREEMENT (this “Agreement”) which is entered into and effective as of today’s date (the “Effective Date”) by you and your company (together with its subsidiaries and affiliates, if any, referred to individually and collectively, as appropriate, as “Receiving Party”) in the favor of Varsity Financial Group Holdings, Inc. and its subsidiaries and affiliates (collectively, “Varsity ”). For the purposes of this Agreement, undertakings by Receiving Party hereunder shall be deemed to include Receiving Party together with Receiving Party’s officers, agents, advisors, directors, principals, owners, partners, spouses, family members, trustees, representatives, consultants and employees (referred to collectively as “Representatives”) that have knowledge of any Confidential Information (as hereinafter defined) all of whom shall be bound hereby as if parties hereto.

 

WHEREAS, Receiving Party is a potential advisor, family office, institution, or investor in Varsity and has access to or would like access to certain Confidential Information of Varsity, its assets and/or its potential acquisitions that are currently under development (which Varsity may lawfully disclose), and

WHEREAS, Receiving Party and Varsity wish to protect and safeguard the Confidential Information in accordance with the terms of this Agreement.

NOW, THEREFORE, in consideration of the terms and conditions contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Receiving Party agrees as follows:

 

CONFIDENTIAL INFORMATION.

 

In connection with a request from Receiving Party, Varsity may disclose to or otherwise provide Receiving Party with access to information regarding the operations, businesses, properties, finances, contractual relationships, assets, potential acquisitions, trade secrets, loans, policies, procedures, practices and any other proprietary and/or confidential processes, methods, information or relationships of Varsity. Any and all such information disclosed by Varsity and/or its agents or advisors to Receiving Party or its Representatives, whether before or after the date of this Agreement and whether oral or written in whatever form provided (including, without limitation, whether or not marked as proprietary or confidential), is hereinafter referred to as “Confidential Information.” Such Confidential Information shall remain the sole property of Varsity and shall be used and handled by Receiving Party and its Representatives in accordance with the terms and conditions set forth in this Agreement. The Confidential Information does not purport to be all-inclusive or contain all the information that Receiving Party may require. Varsity makes no representations or warranties, expressed or implied, as to the accuracy or completeness of the Confidential Information, and no legal liability is assumed or implied with respect thereto.

The term Confidential Information shall not include any information that (i) is or becomes generally available to the public other than as a result of an unauthorized disclosure by Receiving Party, its Representatives or any other third party, (ii) was already known to Receiving Party without being subject to an obligation to maintain confidentiality thereof and has been reduced to writing by Receiving Party prior to disclosure thereof by Varsity, (iii) is learned by Receiving Party through legitimate means other than from Varsity and is not otherwise subject to confidentiality, or (iv) is independently developed by Receiving Party without the use of any Confidential Information and without participation of individuals who have had access to Confidential Information.

Not with standing anything contained in this Agreement to the contrary, without Varsity’s prior written consent, Receiving Party shall not, and shall cause its Representatives not to, disclose to any person or entity the fact that (i) Varsity has made any Confidential Information available to Receiving Party, and (ii) Receiving Party has entered into this Agreement.

 

PROHIBITION ON USE AND DISCLOSURE OF CONFIDENTIAL INFORMATION.

 

Receiving Party shall not, and shall not permit any of its Representatives to, use the Confidential Information for any purpose other than evaluating an investment or potential investment in Varsity and shall cause its Representatives to maintain the confidentiality of the Confidential Information in accordance with the terms hereof. As a material inducement to Varsity, Receiving Party hereby agrees that it shall be liable for any actions or omissions of any Representative that violates any terms or conditions of this Agreement. Without limiting the foregoing, Receiving Party shall:

not disclose, and shall cause its Representatives not to disclose, the Confidential Information, either implicitly or explicitly, to any other person, party, corporation or other entity of any kind, other than as expressly permitted herein;

advise all Representatives who receive the Confidential Information of the obligations of confidentiality under this Agreement and obtain the written agreement of such individuals to abide by the provisions of this Agreement, a copy of which written agreement shall be provided to Varsity upon the execution thereof;

use, and cause all of its Representatives to use all commercially reasonable efforts to protect the Confidential Information from being utilized or disseminated in violation of this Agreement, but in any even afford no less than the same degree of care to the protection of the Confidential Information as is used with Receiving Party’s and/or such Representatives’ confidential and proprietary information;

implement and maintain, and cause its Representatives to implement and maintain, appropriate procedures that are designed to (i) protect against unauthorized access to or use of Confidential Information and otherwise comply with all applicable state and federal laws regarding the privacy of such information, and (ii) immediately advise Varsity in writing of and remedy any unauthorized disclosure of Confidential Information in accordance with all applicable state and federal laws and regulations;

properly dispose of, and cause its Representatives to properly dispose of, any Confidential Information in accordance with all applicable state and federal laws and regulations, but subject to any written internal document retention policies of such Receiving Party and/or its Representatives; and

Unless expressly authorized by Varsity in writing, Receiving Party shall not, and shall not permit any of its Representatives to, copy or otherwise reproduce any of the Confidential Information in violation of this Agreement.

Upon Varsity’s written request, Receiving Party shall, and shall cause each of its Representatives to, return all tangible Confidential Information to Varsity, including copies, reproductions or information otherwise containing Confidential Information, within five (5) business days of such request. Upon Varsity’s written request, Receiving Party shall also, and shall cause each of its Representatives to, delete and destroy any Confidential Information received in electronic form and to delete and destroy any other documents, information or other materials in any form developed by Receiving Party or its Representatives that contain or were based on any Confidential Information within five (5) business days of such request in accordance with Section II(a)5 of this Agreement. At Varsity’s request, Receiving Party or an officer of Receiving Party shall promptly certify to Varsity in writing that Receiving Party and each of its Representatives have returned or destroyed, as applicable, all of the Confidential Information and otherwise performed in accordance with this Agreement, provided that, if Varsity has not made such request for a certification within five (5) business days of such request and the Receiving Party or any Representative has not returned or destroyed, as applicable, all of the Confidential Information and otherwise performed in accordance with this Agreement, Receiving Party shall advise Varsity of the reason therefor in writing.

 

AUTHORIZED DISCLOSURE OF CONFIDENTIAL INFORMATION.

 

Receiving Party may disclose any part or portion of the Confidential Information that Receiving Party is required to disclose pursuant to applicable law, rule, regulation, subpoena, or similar court process; provided that Receiving Party shall (i) to the extent permissible by law, notify Varsity in writing prior to any such disclosure so as to provide Varsity with a reasonable opportunity to seek to enjoin, prevent, stay or defer such disclosures, (ii) to the extent permissible under law, consult and cooperate with Varsity as to the content, nature, and timing of such disclosure, and (iii) in any event disclose only such part or portion of such Confidential Information as is reasonably required pursuant to such law, rule, regulation, subpoena, or other similar court process. Receiving Party and its Representatives shall cooperate with Varsity’s efforts to obtain reasonable assurance that confidential treatment will be accorded the Confidential Information so disclosed. In addition thereto, Receiving Party may disclose Confidential Information to such of its Representatives that “need to know” such Confidential Information in order for the Receiving Party to evaluate the investment in Varsity, provided that, such Representatives comply with the requirements herein, including, without limitation, the requirement in Section II(a)(2).

 

CHOICE OF LAW.

 

This Agreement shall be governed by and construed in accordance with the internal laws of the State of Texas without regard to conflicts of law or choice of law principles. Any proceeding arising between the parties in any manner pertaining to this Agreement shall be held in Dallas, TX and the Receiving Party hereby consents to such venue and personal jurisdiction in such venue.

 

ENTIRE AGREEMENT.

 

This Agreement constitutes the entire agreement relating to the subject matter hereof and supersedes all prior agreements relating thereto whether written or oral and may only be amended or modified with Varsity’s written consent.

If any provision of this Agreement shall be prohibited or invalid under any applicable law, then such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.

Receiving Party acknowledges that the remedies at law for the breach of its covenants, representations and warranties contained in this Agreement are inadequate and Receiving Party consents to and agrees that Varsity shall, in addition to and not in limitation of any other rights, remedies or damages available to the Varsity at law or in equity, be entitled to injunctive relief for any breach or threatened breach of this Agreement. Receiving Party agrees to waive, and to cause its Representatives to waive, any requirement for the securing or posting of any bond in connection with such remedy. Nothing contained herein shall be construed as limiting Varsity’s right to any other legal or equitable remedies including the recovery of damages. In the event that Varsity seeks to enforce its rights under this Agreement, Receiving Party shall be responsible for and hereby agrees to pay all of the Varsity’s costs, expenses and attorney’s fees incurred in connection therewith, including, without limitation, through all investigations, pre-trial, trial and appellate levels.

 

NON-CIRCUMVENTION. Receiving Party acknowledges and agrees that Varsity would suffer irreparable injury if Receiving Party or any of its Representatives were to circumvent any of Varsity’s relationships or business prospects, including, without limitation, any potential acquisitions, financing’s, investments or other business transactions. As a material inducement to Varsity to disclose the Confidential Information to Receiving Party, Receiving Party hereby covenants and agrees for itself and its Representatives that during the term hereof Receiving Party shall not directly or indirectly circumvent Varsity by participating in without Varsity, or divert away from Varsity, any potential acquisitions, financing’s, investments or other business transactions arising from Varsity related to anything described in the Confidential Information or participate, solicit, initiate or encourage dealings with any third party to engage without Varsity in, or divert away from Varsity, any potential acquisitions, financing’s, investments or other business transactions arising from or related to anything described in the Confidential Information.

The term of this Agreement shall begin as of the Effective Date and end five (5) years thereafter.

 

MISCELLANEOUS. This Agreement does not create any agency, partnership or any other fiduciary relationship between the parties. This Agreement will not be assignable or transferable by Receiving Party without the prior written consent of Varsity. Each Party agrees that facsimile, pdf or any other electronic signatures will have the same legal effect as originals signatures and may be used as evidence of execution. This Agreement shall be binding upon Receiving Party’s heirs, successors and assigns, and shall inure to the benefit of Varsity’s successors and assigns. No waiver of any provision of this Agreement shall be effective unless it is in writing and signed by the party against whom it is asserted, and any such written waiver shall only be applicable to the specific instance to which it relates and shall not be deemed to be a continuing or future waiver.

 

NOTICES. Any notice required or permitted to be delivered to any party to this Agreement in order to be effective shall be in writing and delivered by United States mail, postage prepaid, registered or certified, return receipt requested or by a recognized overnight courier, and addressed to: (i) Receiving Party at the address set forth below at the signature block and (ii) Varsity Financial Group Holdings, LLC at 870 S. Denton Tap Rd. #290, Coppell, TX 75019 or such other address as shall be specified by written notice delivered to the other party in accordance herewith. Any notice shall be deemed delivered upon the earlier of actual receipt or refusal thereof by the recipient.