This Agreement sets forth the terms that will apply to the treatment of certain confidential and/or proprietary information that Solar Smart LLC (“SSL”) and the “User” and each a “Party” may provide to the other Party preliminary to and for the purpose of evaluating its participation in a possible transaction in connection with the development of commercial solar systems for various transactions (the “Transaction”). The Party providing or disclosing Confidential Information may be referred to herein as the “Disclosing Party” and the Party receiving the Confidential Information may be referred to herein as the “Receiving Party”. In consideration of the mutual promises contained herein the Parties agree as follows:
- “Representatives” means, with respect to any person, its affiliates and the directors, officers, employees, agents, advisors, counsel and auditors of such person and of such person’s affiliates.
- “Confidential Information” means all oral and written information and material relating to the Transaction or the Disclosing Party, including, without limitation, information concerning the business, financial condition, business projections, operations, customers, and transactions, certain proprietary “know-how”, and methodologies and any notes, compilations or other material containing such information prepared by a Receiving Party, provided however, Confidential Information does not include (i) information that was, is or becomes generally available to the public other than as a result of a disclosure by the Receiving Party or any of its Representatives in breach of this Agreement and (ii) information that was within the possession of the Receiving Party or any of its Representatives prior to being furnished to the Receiving Party or its Representatives pursuant hereto or is lawfully obtained by the Receiving Party or any of its Representatives thereafter from a source that, in each case, as far as the Receiving Party or such Representatives are aware, is not, by virtue of such disclosure, in breach of any obligation of confidentiality of such source with respect to such information.
- Restrictions on Use and Disclosure. The Receiving Party, except as otherwise set forth in this Agreement, shall (i) accept Confidential Information for the purpose of evaluating its or an affiliate’s possible participation in the Transaction (the “Permitted Purpose”) and not use Confidential Information for any unlawful purpose and (ii) keep confidential and not disclose the Confidential Information to any person and to use reasonable care in protecting the confidentiality of the Confidential Information and (iii) not disclose the identity of the Disclosing Party, the Receiving Party’s possible participation in such Transaction or any of the terms or conditions of such possible participation.
- Trade Secrets Key Introductions. In General, as of the date of all Parties’ execution of this Agreement, a confidential relationship shall arise and exist between the Parties. All Parties shall hold in the strictest and highest confidence for the term of this Agreement (and shall require its agents, contractors, employees and representatives to hold in confidence) the Trade Secret(s) disclosed by the parties and/or Key Introduction(s). Without limiting the generality of the foregoing, all Parties shall be under a continuing non-delegable duty, not to disclose, directly or indirectly, or permit the disclosure, directly or indirectly, of such Trade Secret(s) to any third party, and not to knowingly use or permit the use of such Trade Secret(s) other than for sole purpose of the furtherance of a business relationship between the parties. Notwithstanding anything to the contrary, neither Trade Secrets nor Key Introductions shall include information or contacts that the recipient thereof can prove was directly or indirectly known and actively, concretely and demonstrably pursued prior to disclosure, and Trade Secrets shall not include information that is (i) publicly known without breach of this Agreement, (ii) received by a Party from a third party that rightfully discloses it without restriction on its subsequent disclosure and without breach of this Agreement or (iii) shown by reasonable evidence to have been independently developed by the Party receiving the information without access to, or use of, the relevant Trade Secret(s).
- Circumvent. Each Party agrees that it will not circumvent, or attempt to circumvent the other nor enter into any agreement or arrangement with any financial partner introduced to the Parties by the other without the prior written consent.
- Non-Compete. The User warrants and guarantees that for the twelve month period following the receipt of a Solar Smart project and related information the User and or representative(s) shall not directly or indirectly engage in any similar business (Solar Development, real estate development, leasing or purchasing of properties) with current SSL clients or representatives or SSL former clients or representatives. Nor shall the User solicit any client(s) or representative(s) of SSL for the benefit of a third party that is engaged in a similar business to that of SSL or hire any employee(s) or staff or former employee(s) or staff of SSL.
- Permitted Disclosure. The Receiving Party may disclose Confidential Information (i) to its Representatives for the Permitted Purpose, provided that the Receiving Party shall inform such Representatives of the confidential nature of Confidential Information, direct them to treat Confidential Information in accordance with the terms of this Agreement and the Receiving Party shall be responsible for any breach of this Agreement that results from the actions or omissions of such Representatives, (ii) to any prospective assignee, participant or counterparty to any derivative transaction related to the Transaction; provided that, prior to the delivery of such Confidential Information, such persons shall have executed and delivered to the Receiving Party an agreement that is substantially similar in form and substance to this Agreement, and (iii) to the extent required by law, subpoena or other legal process or as otherwise requested by any governmental agency, regulatory authority (including, any self-regulatory organization claiming to have jurisdiction) or any bank examiner or for evidentiary purposes in any action, proceeding or arbitration related to the Transaction or the Confidential Information to which Receiving Party or its Representatives is a party; provided that if the Receiving Party discloses or intends to disclose any Confidential Information to a person pursuant to this subparagraph (iii), then the Receiving Party will inform such person of the confidential nature of such information and, to the extent not prohibited by any law, notify the Disclosing Party of such disclosure promptly and upon request of the Disclosing Party, shall seek to obtain confidential treatment of such Confidential Information by the persons to whom it is disclosed; provided, however, that the Recipient shall not be required to inform such person or give such notification to the Disclosing Party if the disclosure was made to a bank examiner, regulatory examiner or self-regulatory examiner in the course of such examiner’s examination or inspection of the Receiving Party.
- Return of Confidential Information. If Receiving Party or any of its Representatives has received Confidential Information and chooses not to participate in the Transaction, the Receiving Party shall upon request of the Disclosing Party return to the Disclosing Party or destroy as soon as practical all related Confidential Information, without retaining any copies thereof unless such copies are retained by the Receiving Party or its Representatives to comply with their respective internal compliance policies only or in accordance with applicable law or regulation. The Receiving Party and such Representatives shall hold any such retained information in accordance with the terms of this Agreement.
- Money damages may not be a sufficient remedy for a breach of this Agreement and that in addition to all other remedies available at law or in equity, the Disclosing Party shall be entitled to seek equitable relief, including injunction and specific performance, without proof of actual damages.
- No Responsibility. The Disclosing Party bears no responsibility for the accuracy or completeness of the Confidential Information. A definitive agreement with respect to the Transaction may provide for or assign responsibility for information provided to the Receiving Party in connection with the Transaction.
- No Fiduciary Relationship. Neither this Agreement, nor any exchange of Confidential Information under it, will be construed as creating any fiduciary, advisory or other relationship or obligation of any kind between the parties beyond the terms of this Agreement.
- No Commitment to Transaction. This Agreement does not obligate either Party or any of their respective affiliates to enter into the Transaction or any other transaction or to provide any product or service to the other Party.
- SSL’s Other Business. This Agreement is not intended to limit or preclude SSL or any of its affiliates (i) from carrying on any business with, or from providing banking or other financial services to, any person, including without limitation, any competitor, supplier or customer of the User, or any other person which may have interests different than or adverse to the User or (ii) from carrying on its business as currently conducted or as such business may be conducted in the future.
- The Parties’ obligations hereunder shall terminate with respect to all Confidential Information on the earlier of the date that the Transaction is consummated and/or two years after the date of this Agreement subject to Section 4 and 5 of this agreement.
- Entire Agreement. This Agreement embodies the entire understanding between the Parties with respect to the Confidential Information and supersedes any prior agreements relating thereto. This Agreement may only be modified in writing by the Parties hereto.
This agreement and any claim, controversy or dispute arising under or related to or in connection with this agreement, the relationship of the parties, and/or the interpretation and enforcement of the rights and duties of the parties will be governed by the laws of the State of SOUTH CAROLINA without regard to any conflicts of law.