• ESTASO LLC

    ESTASO LLC

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  • Mutual Non-Disclosure Agreement

    This Mutual Non-Disclosure Agreement (the “Agreement”) is made and entered into this date application was submitted (“Effective Date”) by and between Estaso LLC,  a Texas limited liability company, having a principal place of business at 8140 Walnut Hill Lane STE 820, Dallas, TX 75231 (“Estaso LLC”), and Applicant, having a principal office and place of business located at the address listed in application (the “Company”).  Estaso LLC and Company may hereinafter collectively be referred to as the “Parties” and individually as the “Party”.  Each of the Parties under this Agreement receiving Confidential Information shall be referred to as the “Recipient”.  Each of the Parties under this Agreement disclosing Confidential Information shall be referred to as the “Disclosing Party”.

    Background

    The Parties desire to discuss certain business transactions and the provision by Estaso LLC and Company to one another of certain information for the purpose of exploring a potential business relationship (“Purpose”).  In order to further the Purpose, and in order for the Parties to share or receive information under terms that will protect the confidential and proprietary nature of such information, the Parties desire to enter into this Agreement. 

    Agreement

    The Parties agree as follows:

    1.              The Parties may find it beneficial for each of them to disclose to the other Party to this Agreement certain non-public information (whether written, oral, graphic or any other form, relating to the business of the Disclosing Party) which may include, but is not limited to, Contacts (defined below in Section 2), trade secrets, discoveries, ideas, concepts, know-how, techniques, designs, specifications, drawings, maps, blueprints, diagrams, flow and other technical, financial or business information, as well as third party information furnished under an obligation of confidentiality (“Confidential Information”).  Information shall be deemed to be Confidential Information if it is marked confidential, if it is so identified orally by the Disclosing Party at the time of disclosure, or if, under the circumstances surrounding disclosure, it should reasonably be considered to be Confidential Information.   Additionally, the Disclosing Party may confirm, within three (3) days of providing any information, that such information is to be treated as Confidential Information.

    2.              Contacts Deemed Exclusive and Valuable.  Because of this Agreement, the Company involved in this transaction or series of transactions may learn from Estaso LLC, or from Estaso LLC’s principals, the names, telephone numbers, email addresses, and other contact information of clients, borrowers, investors, lenders, agents, brokers, lending corporations, banks, manufacturers, individuals and/or trusts, or buyers and sellers hereinafter referred to as “Contacts”.  Company hereby agrees and acknowledges that the identities of the Contacts shall be recognized by the Company as the exclusive and valuable Contacts of the Estaso LLC and shall remain so for the duration of this Agreement, including any renewal/roll-over period. 

    3.              Additional Confidentiality Obligations Regarding Contacts.  In addition to the other confidentiality obligations set forth herein, the Company shall keep strictly confidential the names and any other identifying information of any Contacts introduced or revealed to the Company by the Estaso LLC, and that the Company’s firm, company, associates, corporations, joint ventures, partnerships, divisions, subsidiaries, employees, agents, contractors, heirs, assigns, designees, or consultants will not contact, deal with, negotiate or participate in any transactions with any of the Contacts without first entering into a written agreement with the Estaso LLC who provided such contact to the Company, unless the Estaso LLC gives prior express written consent.  Such confidentiality of Contacts includes, but is not limited to any names, addresses, email addresses, telephone, telex, facsimile numbers, and/or other pertinent information disclosed or revealed to the Company.

    4.              Recipient agrees to hold such Confidential Information in confidence, with the same care Recipient uses for its own Confidential Information, which, in no event shall be less than a reasonable standard of care.  Confidential Information shall be used solely for the Purpose, and Recipient agrees that it shall limit disclosure of the Confidential Information and shall only disclose Confidential Information to its and its affiliates’ employees, directors, officers, counsel or consultants (the “Representatives”) who have a need to know such Confidential Information in furtherance of the Purpose and who are bound by an obligation of confidentiality similar to that set forth in this Agreement.  Prior to providing the Confidential Information to any consultant, Recipient shall ensure that an executed nondisclosure agreement is in place with each consultant with protections that are substantially similar to the protections in this Agreement.  Prior to providing any Confidential Information to any Representatives, Recipient shall notify such persons that such information is Confidential Information and must be kept in confidence as set forth in this Agreement.  Recipient shall be responsible for any breach of this agreement by its Representatives.  No representation or warranty, express or implied, is made or given under this Agreement as to the accuracy, completeness or current nature of any of the Confidential Information disclosed under this Agreement, or its usefulness or fitness for purpose for, or use with, or in relation to the Purpose.

    5.              The obligations of confidentiality under this Agreement shall not apply to any information that:  (a) was previously known to Recipient free of any obligation to keep it confidential; (b) is or has become publicly known, through no wrongful act of either of the Parties; (c) was rightfully received from a third party who is under no obligation of confidence to the Disclosing Party; (d) was independently developed by Recipient without use of Confidential Information that has been disclosed pursuant to this Agreement as evidenced by written record; or (e) was required to be disclosed in order to comply with applicable law or regulation (including without limitation for securities law purposes) or with any requirement imposed by any governmental or court order but only to the extent required.  Prior to making any disclosure under subsection (e) above, Recipient shall:  (i) to the extent legally permissible, immediately notify the Disclosing Party of the required disclosure upon receipt of a governmental or court order; and (ii) cooperate with the Disclosing Party in making, if available under applicable law, a good faith effort to obtain a protective order or other appropriate determination against or limiting disclosure or use of the Confidential Information, at no cost to the Recipient.

    6.              All Confidential Information shall remain the exclusive property of the Disclosing Party.  The disclosure of Confidential Information by the Disclosing Party shall not constitute an express or implied grant to Recipient, of any rights to or under the Disclosing Party’s patents, copyrights, trade secrets, trademarks or any other intellectual property rights.  Upon completion of the Purpose, the termination of this Agreement, or at the Disclosing Party’s request, all Confidential Information shall be either returned to the Disclosing Party or destroyed and certified in writing that such Confidential Information has been destroyed.  Recipient may also retain copies of Confidential Information if and to the extent that such retention is required by law and will retain only that portion of the Confidential Information which is legally required.  Notwithstanding the return, destruction or retention of the Confidential Information, Recipient will continue to be bound by its confidentiality and other obligations hereunder in accordance with the terms of this Agreement.    

    7.              Neither Party shall, directly or indirectly, in any way or in any form copy, make available, distribute, disclose, publicize, issue press releases, sell or advertise in any manner, including, but not limited to, making representations in court pleadings (except as required under law), the discussions that gave rise to this Agreement or the discussions or negotiations covered by this Agreement or the information provided pursuant to this Agreement, or that any conversations or discussions are occurring or have occurred between the Parties, nor shall either Party use the other Party’s trademarks, trade names or other proprietary marks in any manner, without first obtaining the prior written consent of such Party.

    8.              The Recipient shall notify the Disclosing Party immediately upon discovery of any breach of this Agreement by the Recipient, and will cooperate with the Disclosing Party in every reasonable way to help the Disclosing Party regain possession of the Confidential Information and prevent its further unauthorized use. The Recipient will use commercially-reasonable efforts to enforce the confidentiality obligations of this Agreement against its Representatives during and after the term of their engagement.

    9.              This Agreement shall continue for a period of three (3) years from the Effective Date or until such time as a definitive agreement(s) is entered into by the Parties with respect to the Purpose.  With respect to Confidential Information protected by a trade secret, obligations set forth herein will survive the expiration or termination of this Agreement until the later of (i) three years following expiration or termination of this Agreement and (ii) the date upon which such Confidential Information is no longer a trade secret; provided however, that the Party claiming such Confidential Information is a trade secret identifies it as such to the other Party in writing so that the receiving Party understands its obligations herein as it relates to a trade secret

    10.           This Agreement shall be governed in all respects solely and exclusively by the laws of the State of Delaware without regard to conflict of laws principles and the competent courts of the State of Delaware shall have exclusive jurisdiction to settle disputes hereunder.  Failure to enforce any provision of this Agreement shall not constitute a waiver of any other term hereof. Each Party irrevocably waives any right that it may have to a trial by jury in connection with any dispute arising out of or in connection with this Agreement.

    11.           The Company hereby expressly agrees, represents, covenants and warrants not to disclose, reveal, make available, or make use of any information during discussion or observation regarding methods, concepts, ideas, specifications, product, services, or proposed new products or services, nor to do business with any of the Contacts without the written consent of the Estaso LLC.  If Company breaches this Section 11, the Company hereby expressly agrees, represents, covenants, warrants and guarantees that they will pay a legal monetary penalty that is equal to three (3) times any amounts that the Estaso LLC should have realized in any such transactions, by the Company engaged on the circumvention for each occurrence.  Moreover, the Estaso LLC will be entitled to recover court costs, expert fees, its reasonable expenses, and reasonable attorney fees in enforcing this Section 11 against Company.

    12.           The Parties acknowledge that remedies at law may be inadequate to protect the Disclosing Party against any actual or threatened breach of this Agreement by Recipient or by its representatives and, without prejudice to any other rights and remedies otherwise available to the Disclosing Party, the Parties agree to allow the seeking of injunctive or other equitable relief in the Disclosing Party’s favor, without the requirement of providing proof of actual damages.

    13.           This Agreement contains the sole and entire agreement between the Parties related to the disclosure of Confidential Information with respect to the Purpose.  This Agreement may only be modified in a writing executed by both Parties.  Should any provision of this Agreement be deemed illegal or otherwise unenforceable, that provision shall be severed and the remainder of this Agreement shall remain in full force and effect.

    14.           This Agreement shall not create, nor will it create an obligation to form a joint venture, partnership or other formal business relationship of any kind nor will it prohibit either Party from engaging in similar discussions, relationships, or transactions with a similar Purpose, with any other third party.

    15.           Neither this Agreement, nor any rights hereunder, in whole or in part, shall be assignable or otherwise transferable by either Party.  This Agreement shall be binding upon and enure to the benefit of the Parties and their respective successors, heirs and permitted assigns.

    16.           If a legal action between the Parties arises from this Agreement or the conduct of Recipient with respect to any Confidential Information, the prevailing Party shall recover from the other Party its reasonable attorney fees and costs.  No waiver of any right under, or breach of, this Agreement shall be effective unless in writing and signed by an authorized representative of the Party against whom the waiver is sought to be enforced.

    17.           This Agreement may be executed in two or more identical counterparts, each of which shall be deemed to be an original and all of which taken together shall be deemed to constitute the Agreement when a duly authorized representative of each Party has signed a counterpart.  Delivery of an executed counterpart of this Agreement by facsimile, electronic mail or any other reliable means shall be effective for all purposes as delivery of a manually executed original counterpart.

    18.           Other than this Agreement, no contract or agreement providing for any relationship involving the Parties (whether relating to the Purpose or otherwise) will be deemed to exist between the Parties unless and until a final definitive agreement(s) has been executed and delivered by each of the Parties, and unless and until any such definitive agreement(s) has been executed an delivered, neither Party will be under any legal obligation of any kind or nature whatsoever, except for the terms and conditions set forth in this Agreement.

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    Signature Pages Follow



     

     

  • IN WITNESS HEREOF, the Parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date and year written above.

     

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