The following terms apply to all Xclaim Brokerage Agreements and Xclaim Claim Listing Agreements unless otherwise specified.
These CONFIDENTIALITY TERMS are incorporated by reference to that certain Brokerage Agreement or Claim Listing Agreement dated as of the Effective Date between Claim Holder and Xclaim (the “Agreement”). All capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Agreement.
1. Purpose. Claim Holder has engaged Xclaim on an exclusive basis to help identify one or more third parties willing to purchase the Claim and seeks to use Xclaim Services to facilitate a potential transaction or transactions related thereto on terms agreeable to Claim Holder through a competitive process (the “Purpose”).
2. Confidential Information. “Confidential Information” means any and all information provided directly by Claim Holder to Xclaim, whether in graphic, written, electronic or oral form, and not previously disclosed to Xclaim by a third party or existing in the public domain. Confidential Information may also include information of a third party that is disclosed to Xclaim by Claim Holder or such third party at Claim Holder’s direction.
3. Non-use and Non-disclosure. Xclaim agrees to use the Confidential Information only for the Purpose. Xclaim agrees that at all times and notwithstanding any termination or expiration of this Agreement it will hold in strict confidence and not disclose to any third party any Confidential Information or exploit such Confidential Information for its own benefit or the benefit of another except as approved in writing in advance by Claim Holder. Without limiting the foregoing, Xclaim shall permit access to Confidential Information only to those of Xclaim’s subsidiaries, directors, officers, employees, affiliates, consultants, independent contractors, agents or advisors (including without limitation attorneys, accountants, bankers, financial advisors and members of advisory boards) (collectively, “Representatives”) having a need to know such information and who have signed, prior to the disclosure of Confidential Information to such Representative, confidentiality agreements or are otherwise bound by confidentiality obligations at least as restrictive as those contained herein. Xclaim shall be responsible for the breach of this Agreement by its Representatives as if such breach were by Xclaim itself. Xclaim shall take, at its own expense, all reasonable steps to keep the Confidential Information strictly confidential and to prevent its Representatives from prohibited or unauthorized disclosure or use of the Confidential Information. Xclaim shall immediately notify Claim Holder upon discovery of any actual or suspected loss or unauthorized disclosure of the Confidential Information and shall take all reasonable steps requested by Claim Holder to prevent, control, or remedy any such loss or disclosure. Notwithstanding the foregoing, Xclaim may disclose the Confidential Information to Buyers who need to know such information as part of their due diligence investigations in connection with the Purpose, provided each such Buyer is made aware of this Agreement and agrees to be bound at the time of disclosure to a non-disclosure agreement with Xclaim and Claim Holder that has protections for Confidential Information substantially similar to those of this Agreement.
4. Limitation on Obligations. The non-use and non-disclosure restrictions regarding Confidential Information set forth in this Agreement shall not apply to information that Xclaim can establish by competent proof (i) was publicly known and made generally available in the public domain prior to the time of disclosure to Xclaim by Claim Holder; (ii) becomes publicly known and made generally available after disclosure to Xclaim by Claim Holder other than as a result of a breach of this Agreement; (iii) is in the possession of Xclaim, without confidentiality restrictions, at the time of disclosure by Claim Holder as shown by Xclaim’s files and records immediately prior to the time of disclosure; or (iv) is obtained by Xclaim from a third party not under confidentiality obligations and without a breach of any obligations of confidentiality as shown by Xclaim’s files and records immediately prior to the time of disclosure. If Xclaim becomes compelled by law, regulation, court order, or other governmental authority to disclose the Confidential Information, Xclaim shall, to the extent possible and permissible under applicable law, first give Claim Holder prompt notice. Xclaim will cooperate reasonably with Claim Holder in any proceeding to obtain a protective order or other remedy. If such protective order or other remedy is not obtained, Xclaim shall only disclose that portion of such Confidential Information required to be disclosed, in the opinion of Xclaim’s legal counsel. Xclaim shall request that confidential treatment be accorded such Confidential Information, where available. Compulsory disclosures made pursuant to this section shall not relieve Xclaim of its obligations of confidentiality and non-use with respect to non-compulsory disclosures.
5. Restrictions on Use. Xclaim and its Representatives may not reproduce Confidential Information in any form except as required to accomplish the Purpose. Any reproduction of any Confidential Information by Xclaim shall remain the property of Claim Holder and, to the extent practicable, shall contain any and all confidential or proprietary notices or legends which appear on the original. Any notes that Xclaim or its Representatives creates regarding the Confidential Information shall also be deemed Confidential Information.
6. Injunctive Relief. Xclaim acknowledges that release of Confidential Information in violation of this Agreement may cause irreparable harm for which Claim Holder may not be fully or adequately compensated by recovery of monetary damages. Accordingly, in the event of any violation or threatened violation by Xclaim, Claim Holder shall be entitled to injunctive relief from a court of competent jurisdiction in addition to any other remedy that may be available at law or in equity, without the necessity of posting bond or proving actual damages.
7. Term; Return of Materials. Xclaim’s obligations under this Agreement shall survive for two (2) years following the Effective Date. Upon the written request of Claim Holder at any time, Xclaim shall promptly return to Claim Holder or at Xclaim’s option destroy (with such destruction to be confirmed in writing upon request of Claim Holder), all documents and other tangible materials representing the Confidential Information and all copies thereof. Notwithstanding the foregoing, Xclaim may retain a single archival copy of any tangible or electronic Confidential Information provided by Claim Holder under this Agreement, which copy shall only be used by Xclaim and its legal advisors in connection with the review of its obligations under this Agreement.
8. Xclaim Information. Claim Holder does not wish to receive any confidential information from Xclaim, and Claim Holder assumes no obligation, either express or implied, with respect to any information disclosed by Xclaim.