NON-DISCLOSURE AGREEMENT
THIS NON-DISCLOSURE AGREEMENT (the “Agreement”) is made and entered into as of November 9th , 2023, by and between 49PFR PARTNERS, LLC, a California limited liability company (“First Party”), and PARAMOUNT SPECIALTY FINANCE LLC a Delaware Company (“Second Party”).
RECITALS
WHEREAS, in connection with discussions whereby the parties may enter into a potential business relationship regarding the Build to Suit (for Amazon) e-commerce center in Tuolumne County, California (“Business Relationship”), each party is prepared to make available to the other party certain information concerning the business of such party, including strategies, operations, products, clients, and customers; and
WHEREAS, as a condition to such information being furnished to each party and its respective directors, officers, employees, agents and consultants (collectively, “Representatives”), the parties will agree to treat such information in accordance with the provisions of Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth herein, and intending to be legally bound hereby, the parties hereto agree as follows:
1. The parties acknowledge that in the course of discussions and pursuant to any subsequent agreement between them, each party may make Confidential Information available to the other Party or may otherwise learn of trade secrets or other confidential information of the other party (collectively, hereinafter “Confidential Information”). The term “Confidential Information” means all nonpublic, confidential or proprietary information provided by either party to the other party.. “Confidential Information” includes, but is not limited to, information, data or materials relating to each party’s current or future business, including, without limitation, such party’s strategies, operations, products, business practices, financial results, management, officers, employees, customers, suppliers, proprietary technology, research and plans, and/or any information, data and material which could reasonably be understood to be confidential, as well as the intention to engage in the discussions contemplated by this Agreement, the occurrence of such discussions and the terms and conditions relating to such discussions, whether marked or not marked, or which is identified by a party as “Confidential”, that is provided on this date or may hereafter be furnished to a party or its Representatives by or on behalf of either party, as the case may be, including, without limitation, all information disclosed orally, in printed form, oral or stored in digital or analog form, whether on electronic and magnetic media, and pictures thereof stored on film or tape or electronically stored. “Confidential Information” also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents prepared by a receiving party or its Representatives in whatever form which contain, reflect or are based upon, in whole or in part, the information furnished to such party or its Representatives pursuant hereto; provided, however, that the foregoing shall not require a party to reveal or disclose to the other party in any manner any such notes, analyses, compilations, studies, interpretations or other documents prepared by such party. The term
“Confidential Information” does not include information which (i) is or becomes generally known other than as a result of a disclosure by the receiving party or its Representatives in violation of this Agreement, (ii) was within the receiving party’s possession on a non-confidential basis prior to its being furnished to such receiving party by or on behalf of the disclosing party or (iii) becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party or any of its Representatives, provided that such source, to the receiving party’s knowledge, is not bound by a confidentiality agreement, or other contractual, legal or fiduciary obligation of confidentiality with respect to such information.
2. Each party acknowledges that all Confidential Information furnished by the other party is considered a proprietary trade secret and is a matter of strict confidentiality. Each party agrees that without the written consent of the disclosing party (i) such party and its Representatives shall use the Confidential Information solely for the purpose of considering or carrying out the Business Relationship and they shall not use such information for their benefit nor in a manner adverse to the interests of the disclosing party, and (ii) the Confidential Information will be kept confidential and that such party and its Representatives will not disclose any of the Confidential Information in any manner whatsoever; provided, however, that any of such information may be disclosed to any of the receiving party’s Representatives who need to know such information for the sole purpose of considering or carrying out the Business Relationship and who are governed by established internal confidentiality restrictions. Such Representatives shall be informed of the confidential nature of the Confidential Information and shall be directed to abide by the agree to be bound by the terms of this Agreement. Each party shall be responsible for any breach of this Agreement by any of its Representatives.
3. Each party further agrees that if such party is legally compelled by oral questions, interrogatory, request for information or documents, subpoena, civil investigative demand or similar process under applicable law or the order or request of any regulatory agency to disclose the Confidential Information, such party will, unless prohibited by applicable law, provide the disclosing party with prompt written notice so that the disclosing party may, at its own expense, seek a protective or other appropriate remedy and/or waive compliance with the provisions of this Agreement, in which case the parties agree to cooperate in obtaining such order or remedy. In the event that such protective order or other remedy is not obtained, or the parties waive compliance with the provisions of this Agreement, the receiving party will furnish only that portion of the Confidential Information which is legally required, according to advice of legal counsel, and will exercise its best efforts to obtain reliable assurance that confidential treatment will be accorded the Confidential
4. Each party agrees that all Confidential Information received from the other party shall at all times remain the sole property of that party. If any party decides that it does not wish to proceed with or terminates the Business Relationship or discussion thereof, such party will promptly inform the other party of that decision. In that case, or at any time upon the request of a party for any reason, such party will promptly delivery to the disclosing party,
or alternatively destroy, all Confidential Information (and all copies thereof) furnished to such receiving party and its Representatives by or on behalf of the disclosing party pursuant hereto and will certify to the disclosing party that all such Confidential Information in the receiving party’s files. Notwithstanding the foregoing, Receiving Party and its Representatives may maintain copies of such Confidential Information (a) pursuant to its and their respective automatic back-up and archiving systems or the ordinary operation of electronic devices and (b) in order to comply with any legal, regulatory or compliance policies or procedures provided that, in each instance, any Confidential Information retained continues to be held confidential in accordance with the terms of this Agreement.
5. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS.” EACH PARTY MAKES NO WARRANTIES, EXPRESS, IMPLIED, OR OTHERWISE, REGARDING THE ACCURACY, COMPLETENESS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF ITS CONFIDENTIAL INFORMATION.
6. RESERVED
7. It is understood and agreed that money damages would not be a sufficient remedy for any breach of this Agreement by either party hereto or its Representatives and that the injured party, in addition to its other legal remedies available at law or equity, shall be entitled to equitable relief, including injunctions and specific performance, without the necessity of posting bond, as a remedy for any such breach.
8. RESERVED
9. This Agreement shall be governed by the laws of the state of Michigan (without reference to any principles of the conflicts of laws). The parties hereby consent to the jurisdiction of any federal or state court located within Tuolumne County, California and waives any objection which such party may have based on improper venue or forum non conveniens to the conduct of any action or proceeding in any such court and waives personal services of any and all process upon it. The parties agree that in the case of any proceeding with respect to. this Agreement, the prevailing party shall be entitled to recover its costs,
disbursements, and reasonable attorney’s fees following a final judgment from the non- prevailing party.
10. RESERVED
11. The disclosure or receipt of information hereunder in no way obligates either party to enter into any Business Relationship with the other party and does not preclude either party from entering into discussions or agreements of any kind whatsoever with any other party, provided that such discussions or agreements do not violate any provisions of this Agreement or any other agreement between the parties.
12. This Agreement is effective on the date first written above or on the date when Confidential Information is first disclosed, whichever occurs first.
13. The obligations of each party in this Agreement shall survive the termination of this Agreement and the return of any Confidential Information for a period of two years following termination of this Agreement.
14. If any provision of this Agreement shall be held by a court of competent jurisdiction to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired by such holding.
15. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed by their respective authorized representatives thereunto duly authorized, all as of the date first written above.