ON-DISCLOSURE/CONFIDENTIALITY AGREEMENT
, located at , (hereinafter “Receiving Party”) and Seller disclosing the information , a LLC (hereinafter the “Disclosing Party”), agree to enter into business discussions for the purpose of evaluating the feasibility of pursuing a business relationship for the assets located at the locations described on Exhibit A (“Transaction”). In order to achieve this purpose, the Receiving Party may acquire confidential and proprietary information from the Disclosing Party, including but not limited to the information regarding the Transaction.
In consideration of the foregoing, it is hereby agreed that:
- Except as otherwise provided in Section 5 below, “Confidential Information” shall mean all written, electronic or oral information, including but not limited to financial information, profit and loss statements, cash flow statements, balance sheets, which has been or is in the future disclosed directly or indirectly to Receiving Party by Disclosing Party concerning the subject matter of this Agreement. All Confidential Information shall be subject to the confidentiality, nondisclosure and non-use requirements of this Agreement.
- Receiving Party acknowledges that the information supplied by the Disclosing Party is confidential and proprietary to Disclosing Party. Receiving Party shall not, without Disclosing Party’s express prior written permission in each instance, use the Confidential Information or any part thereof, either directly or indirectly, for any purpose whatsoever other than for the purpose expressly stated herein. This Section 2 shall survive the termination and/or expiration of this Agreement and shall continue for so long as the information remains Confidential Information as that term is defined in Section 5 below.
- Receiving Party shall maintain all Confidential Information which it may already have received or will in the future receive from the Disclosing Party in strict confidence and shall take all precautions to prevent disclosure of it or any part thereof to any third parties or to its employees, agents and advisors or those of its affiliates except those employees, agents and advisors who are approved by Disclosing Party in writing and have a legitimate need to know and who agree to keep such information confidential. To the extent Receiving Party retains any Confidential Information pursuant to Section 4 below, then this Section 3 shall survive the termination and/or expiration of this Agreement and shall continue for so long as the information remains Confidential Information as that term is defined in Section 5 below.
- Except as subsequently may be otherwise agreed in writing, Receiving Party shall return immediately at Disclosing Party’s written request all of the original Confidential Information furnished to Receiving Party directly or indirectly by Disclosing Party and shall destroy all other material containing Confidential Information which is prepared by Receiving Party or on its behalf, as well as that portion of notes, summaries and other materials which incorporates any Confidential Information; provided, however, Receiving Party may retain copies of the Confidential Information, subject to the terms of this Agreement, as required by applicable law or regulation. In the event Receiving Party retains copies of any Confidential Information in any way, Receiving Party shall promptly notify Disclosing Party in writing of the following: (1) that Receiving Party has or will retain copies of certain Confidential Information, (2) identify with specificity the Confidential Information the Receiving Party has or will retain, and (3) what law or an regulation the Receiving Party requires the Receiving Party to retain such Confidential Information. Receiving Party may object to any such retention and the Parties will work together in good faith to resolving Receiving Party’s objections. If the Parties cannot resolve Receiving Party’s objections, the Dispute Resolution provisions herein will apply.
- Confidential Information shall not mean:
a. Information which prior to the disclosure to Receiving Party or Receiving Party’s employees was already rightfully in Receiving Party’s possession, and was not obtained directly or indirectly from Disclosing Party;
b. Information which after the disclosure to Receiving Party or Receiving Party’s employees was developed by Receiving Party without the use of any Confidential Information;
c. Information disclosed to Receiving Party by third parties who are not known to the Receiving Party to be bound by a confidentiality agreement with the Disclosing Party; or
d. Information, which is, or hereafter becomes generally available to the public in printed publications of general circulation through no act or omission on Receiving Party’s part or on the part of its employees.
Specific Confidential Information disclosed under this Agreement shall not be deemed to be within the foregoing exceptions merely because such information is embraced by more general information generally available to the public or in Receiving Party’s possession.
- Notwithstanding any other provision of this Agreement, Receiving Party shall be permitted to disclose the Confidential Information in order to comply with any applicable statute, regulation, court order, or administrative agency rule or order or any request or demad of any regulatory agency or authority having jurisdiction over Receiving Party to the extent required by law. In the event that Receiving Party is legally compelled by deposition, subpoena or other legal process to disclose any part or all of the Confidential Information, Receiving Party shall, unless otherwise prohibited by applicable law, promptly notify Disclosing Party and Receiving Party shall cooperate with Disclosing Party, at Disclosing Party’s sole expense, should Disclosing Party seek to obtain a protective order or other appropriate remedy to maintain the confidential nature of the Confidential Information; provided that if Receiving Party is so compelled to disclose any part of the Confidential Information in compliance with this Paragraph 6, Receiving Party shall disclose only that portion of the Confidential Information which is legally required to be disclosed.
- Receiving Party admits and acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement and, accordingly, Disclosing Party shall be entitled to a restraint, injunction or injunctions to prevent any breach of this Agreement. The remedies herein shall be in addition to, and not in limitation of, any other remedy available to Disclosing Party at law or in equity.
- If any of the provisions, or portions thereof, of this Agreement are found to be illegal or unenforceable, they are deemed to be omitted, but only to the extent of such unenforceability, and the remaining provisions of this Agreement shall remain in full force and effect and may be enforced to protect and reflect the original intent of the parties.
- All notices and other communications, including notice of a change of the following addresses, shall be deemed to have been duly given if the same shall be in writing and shall be delivered by national recognized overnight delivery service or first-class U.S. mail, charges prepaid, or electronic mail, and addressed as set forth below:
- This Agreement shall be personal to the parties hereto and may not be assigned or otherwise transferred by either party without the prior written consent of the other party.
- This Agreement shall remain in full force and effect until the earlier of (i) five (5) years from the date hereof or(ii) the date on which Receiving Party and Disclosing Party enter into a definitive agreement that specifically incorporates and discloses all the information in the Transaction, which is the subject of the discussions between them. Any information that is not incorporated or disclosed in the definitive agreement or any Transaction incorporated therein shall remain subject to the terms of this Agreement and this Agreement remain in full force and effect for the five (5) years referred to above.
- This Agreement will be governed and construed in accordance with the laws of the State of Utah, and to the extent the conflicts of laws provisions of the State of Utah would require the application of the relevant law of another jurisdiction, the relevant law of the State of Utah will nonetheless apply. Any legal proceeding to enforce or interpret the provisions of this Agreement shall be brought solely and exclusively in the state or federal courts located in Salt Lake County, Utah.
- Dispute Resolution. In the event a dispute arises between the Parties regarding the interpretation or enforcement of this this Agreement (the “Dispute”), the Parties agree to the following:
a. Mediation. The Parties will mediate in good faith to resolve the dispute utilizing a retired judge or experienced attorney as the mediator.
b. Arbitration. In the event that Parties cannot resolve the Dispute in mediation, the Parties will submit the dispute to a single arbitrator. Except as otherwise set forth herein, the AAA Commercial Arbitration Rules will control.
i. Unless the Parties agree otherwise, the Arbitrator shall apply and follow Rule 26 of Utah Rules of Civil Procedure for fact and expert discovery for a Tier 2 case.
c. In the event a dispute arises regarding the interpretation or enforcement of this Agreement, the prevailing party shall be entitled to recover its attorney fees and costs, expert fees and costs, and arbitration fees and costs.
- Availability of Equitable Relief. The foregoing Arbitration requirement notwithstanding, the Receiving Party understands and agrees that its breach or threatened breach of this Agreement will cause irreparable injury to the Disclosing Party and that money damages will not provide an adequate remedy for such breach or threatened breach, and both Parties hereby agree that, in the event of such a breach or threatened breach, the Disclosing Party will also be entitled, without the requirement of posting a bond or other security, to bring suit seeking injunctive relief pending the resolution of the arbitration. The Parties’ rights under this Agreement are cumulative, and a Party’s exercise of one right shall not waive the Party’s right to assert any other legal remedy.
- The Disclosing Party believes that the Confidential Information is materially correct, but makes no representations or warranties, express or implied, as to the accuracy or completeness of such Confidential Information. Any reliance by a Receiving Party upon this Confidential Information shall be undertaken with a full release and waiver of all claims for liability against the Disclosing Party.
IN WITNESS THEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives as set forth below:
By Receiving Party: By Disclosing Party:
Gas Stations Located in Box Elder County, UT; Salt Lake County, UT; Weber County, UT;
Uinta County, WY; Bannock County, ID
Full Addresses will be provided upon execution of this agreement.
