Confidentiality Agreement

Confidentiality Agreement

This Confidentiality Agreement (“Agreement”) by and between 365 Operating Company LLC, a Delaware limited liability company with offices at 1400 65th Street, Suite 230 Emeryville, CA 94608 (dba 365 DataCenters, “365″) and ______________________________(“Company”) is entered into for good and valuable consideration the adequacy of which is acknowledged by the parties.

  1. Definition of Confidential Information. For the purposes of this Agreement, “Confidential Information” means that information disclosed by one party to the other, including but not limited to the terms and conditions of this Agreement, the existence of the discussions between the parties, trade secrets of the parties, any non-public information relating to a party’s plans, designs, ideas, concepts, costs, prices, finances, marketing plans, business opportunities, personnel, research, development or know-how and any other non-public technical or business information of a party, or that a party identifies in writing as confidential before or within thirty days after disclosure to the other party or is otherwise reasonably determined to be of value and is treated as confidential. Confidential Information does not, however, include information that: (a) is now or subsequently becomes generally available to the public through no fault or breach on the part of the receiving party; (b) the receiving party can demonstrate to have had rightfully in its possession prior to disclosure hereunder provided that receiving party’s source was reasonably believed by the receiving party to have the right to transfer or disclose it; (c) is independently developed by the receiving party or its Representatives (as defined below) without the use of any Confidential Information of disclosing party as evidenced by written records or documentation; or (d) the receiving party rightfully obtains from a third party who was reasonably believed by the receiving party to have the right to transfer or disclose it.
  2. Non-Disclosure and Non-Use of Confidential Information. The Confidential Information is provided for the purpose of discussions regarding ______________________________________ between 365 and Company or its affiliates (the “Business Purpose”). Where relevant, the receiving party, will not, without the prior written consent of the disclosing party, disclose, publish or disseminate Confidential Information to anyone other than the receiving party’s affiliates and its and their respective directors, officers, employees, members, agents, potential financing sources or advisors (including, without limitation, financial and legal advisors, consultants and accountants) (the “Representatives”) who need to know for the Business Purpose, and the receiving party will take reasonable precautions to prevent any unauthorized use, disclosure, publication or dissemination of Confidential Information. The receiving party shall be responsible for any breach of this Agreement by any of its Representatives. The receiving party accepts Confidential Information for the Business Purpose and in connection with the business discussions regarding the Business Purpose hereunder. The receiving party will not use Confidential Information other than in connection with the Business Purpose for its own or any third party’s benefit without the prior written approval of an authorized representative of the other party.
  3. No Warranty. All Confidential Information is provided “AS IS” and without any warranty, express, implied or otherwise, including but not limited to any warranties regarding its accuracy, completeness, performance or non-infringement of third party rights or its merchantability or fitness for a particular purpose; provided, however, the foregoing shall not limit any party’s rights or remedies with respect to fraud or willful misrepresentation.
  4. Return of Documents. Within ten (10) business days of receipt of a written request by the disclosing party, receiving party shall promptly at its option either return to disclosing party, or destroy, all copies of Confidential Information that are documents in receiving party’s possession or under its control; provided, that, copies embodied in electronic form or created in the ordinary course of receiving party’s data management back-up or archiving operations need not be returned or destroyed in accordance with the preceding sentence so long as they are not readily accessible to the average user and are not used for any purpose inconsistent with this Agreement. Notwithstanding anything to the contrary herein, the receiving party and its Representatives may retain copies of Confidential Information as necessary to comply with applicable law, court order or regulation or to comply with such person’s respective internal document retention policies; provided, that, any Confidential Information not so destroyed (or returned) will remain subject to this Agreement. For purposes of this Section 4, “documents” means all information fixed in any tangible medium of expression in whatever form or format.
  5. No Lease. The parties acknowledge and agree that nothing contained in this Agreement will be construed as granting the receiving party or its Representatives any rights, by lease or otherwise, to any of the disclosing party’s Confidential Information except as expressly set forth in this Agreement.
  6. Independent Development. The disclosing party understands that the receiving party may currently or in the future be developing information internally, or receiving information from other parties that may be similar to the disclosing party’s information. Accordingly, nothing in this Agreement will be construed as a representation or inference that the receiving party will not pursue business interests or develop products, or have products developed for it, that, without violation of this Agreement, compete with the business, products or systems contemplated by the disclosing party’s Confidential Information. Further, the parties acknowledge that in the ordinary course of business, the disclosing party or its affiliates may now or in the future evaluate, invest in or do business with customers, suppliers, competitors or acquisition targets or potential customers, suppliers, competitors or acquisition targets of the receiving party or its affiliates and that neither the execution of this Agreement nor receipt of the Confidential Information restricts or precludes such activities nor shall be deemed a breach of any provision of this Agreement provided that neither party nor its affiliates breach any of the obligations respecting nonuse and confidentiality of Confidential Information in such activities.
  7. Equitable Relief. The receiving party acknowledges that all of the Confidential Information is owned solely by the disclosing party and that the unauthorized disclosure or use of such Confidential Information may cause irreparable harm and significant injury, the degree of which may be difficult to ascertain. Accordingly, the parties agree each will have the right to seek an immediate injunction enjoining any breach of this Agreement, as well as the right to pursue any and all other rights and remedies available at law or in equity for such a breach.
  8. General. This Agreement constitutes the entire agreement with respect to the Confidential Information disclosed hereunder and supersedes all prior or contemporaneous oral or written agreements concerning such Confidential Information. This Agreement may not be amended except by the written agreement signed by authorized representatives of both parties. This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to or application of choice-of-law rules or principles and the parties submit to that jurisdiction. The parties may not assign this Agreement or transfer any benefits hereunder or Confidential Information, directly or indirectly (through acquisition, merger or otherwise), and any attempt to do so will be void without the prior written consent of the other party. The relationship of the parties is that of independent contractors, and not of agency, partners, joint ventures or the like. If the receiving party or its Representatives receives notice that it may be required or ordered by law, or in any judicial or governmental entity, administrative or other legal proceedings, or pursuant to subpoena, civil investigative demand or other compulsory process to disclose Confidential Information of the disclosing party, it may disclose Confidential Information in connection therewith, provided that it will take all reasonable necessary steps, to the extent it may legally do so, to give the disclosing party sufficient prior notice in order for the disclosing party, at its sole costs and expense, to contest such requirement or order.
  9. Term of Obligations. This Agreement will remain in effect for three (3) years from the date of this Agreement at which time it will terminate and be of no further force or effect.
  10. Counterparts. This Agreement may be executed and delivered by PDF, facsimile signature or other similar electronic transmission, and in any number of counterparts, each of which shall for all purposes be deemed original, and all such counterparts shall together constitute one and the same instrument.

The duly authorized representatives of 365 and Company having executed this Agreement as of the latter of the signature dates set forth below:

365 Operating Company LLC: Company:

________________________ 
Signature

________________________ 
Print name

________________________ 
Title

________________________
Date

________________________ 
Signature

________________________ 
Print name

________________________ 
Title

________________________
Date