CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
This CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT (“Agreement”) between Lucky’s 4 Prater 85, LLC (“Lucky’s”), and by the receiving party identified by its electronic signature below (“Recipient”) is made and shall be effective as of the date executed by Recipient(“Effective Date”). Lucky’s and Recipient are referred to herein as a “party” and collectively as the “parties”.
RECITALS: WHEREAS, Lucky’s and Recipient mutually desire to commence discussions concerning the property further referenced as the sale of a tavern located in Sparks, NV, Logic Listing ID #014 (the “Purpose”); and WHEREAS, in order to pursue these discussions, Lucky’s may provide to Recipient and its subsidiaries and affiliates (collectively and individually, “Recipient”) and their agents, representatives, officers, directors, managers, shareholders, employees, investment bankers, attorneys, trustees or any representative of any of the foregoing (collectively, “Representatives”) certain data and other information, which is of a proprietary and confidential nature and are referred to herein as “Confidential Information” (as defined in paragraph 1 below). NOW, THEREFORE, in order to assure that the Confidential Information provided by Lucky’s to Recipient will not be disclosed or misused, the parties agree and do hereby confirm that:- 1. Confidential Information. For purposes of this Agreement, the term “Confidential Information” shall mean any facts, opinions, conclusions, projections, data, information, trade secrets or know-how relating to any business operations, prospects, financial condition, intellectual property, research project, work in process, future development, engineering, manufacturing, marketing, financial or personnel matter relating to Lucky’s, its present or future products, technology, sales, customers, employees, investors, prospects, markets or business, as well as information derived therefrom, whether communicated orally or in writing or obtained by Recipient through observation or examination of Lucky’s facilities, technology or procedures and whether or not such information is identified as confidential and regardless of the manner or form in which any such information is furnished or stored.
- 2. Non-Disclosure. Recipient acknowledges that irreparable injury and damage will result from Recipient’s disclosure of Confidential Information to third parties, or utilization of Confidential Information for reasons other than those connected with the Purpose. Recipient shall not, without the prior written consent of Lucky’s, disclose any Confidential Information to anyone other than authorized Representatives of Recipient who have a need to know such Confidential Information, and neither Recipient nor any of its Representatives shall use any such Confidential Information except in connection with the Purpose; provided, however, that Recipient shall not have any liability to Lucky’s under this Agreement with respect to the disclosure and/or use of any such Confidential Information as Recipient can establish: (a) has become publicly known without breach of this Agreement or other action by Recipient or its Representatives; (b) can be documented as having already been in Recipient’s possession prior to receipt under this Agreement, without any contractual, fiduciary or other obligation to keep it confidential; or (c) was received by Recipient, subsequent to the provision of such information pursuant to this Agreement, in good faith from a third party lawfully in possession thereof and having no contractual, fiduciary or other obligation to keep such information confidential.
- 3. Use of Confidential Information. Recipient shall keep and hold as confidential, and shall require its Representatives to keep and hold as confidential, any and all Confidential Information received pursuant to this Agreement, with the same care and discretion, but in no event less than a reasonable degree of care and discretion, to avoid disclosure, publication or dissemination, as it uses with its own similar information that it does not wish to disclose, publish or disseminate. Recipient shall inform each of its Representatives receiving the Confidential Information of the confidential nature of the Confidential Information and shall direct such Representatives to treat the Confidential Information confidentially in accordance with each of the terms and conditions of this Agreement, and Recipient shall be responsible for any use or disclosure of the Confidential Information by its Representatives inconsistent with this Agreement. Recipient shall not make or use any copies, synopses or summaries of oral or written material, photographs or any other documentation or information made available or supplied by Lucky’s except such as are necessary for Recipient’s internal communications in connection with the Purpose. Recipient shall take all security precautions to protect from disclosure and keep confidential the Confidential Information as may be necessary, including without limitation, protection of documents from theft, unauthorized duplication and discovery of contents, and restrictions on access by other persons to such Confidential Information. Recipient further agrees to indemnify Lucky’s against any loss or liability resulting from, or arising in connection with, unauthorized use or disclosure of Confidential Information by Recipient or its Representatives.
- 4. Return of Confidential Information. Recipient shall promptly deliver to Lucky’s, at its request at any time, for any reason and in any manner whatsoever, any documents or media containing Confidential Information and any copies thereof which Recipient may have.
- 5. Retention of Legal Rights. Lucky’s retains all rights and remedies with respect to its Confidential Information afforded it under the patent, copyright and other intellectual property and other laws of the United States and the States thereof, including without limitation, any laws designed to protect proprietary, trade secret or confidential information.
- 6. Public Announcement. All public announcements or other statements to third parties related to the Purpose or this Agreement by either of the parties shall be subject to prior, written approval by the other party, except for such statements as may be necessary, in the opinion of their respective counsel, to comply with the requirements of any law, governmental order, or regulation.
- 7. Material Non-Public Information. Recipient acknowledges and agrees that it is aware (and that its Representatives are aware) that (i) the Confidential Information being furnished to it or its Representatives (if any) contains material, non-public information regarding Lucky’s and its affiliates or subsidiaries and (ii) the United States securities laws prohibit any persons who have material, nonpublic information concerning the matters which are the subject of this Agreement, including the Confidential Information, from purchasing or selling securities of a company that may be a party to a transaction of the type contemplated by this Agreement or from communicating such information to any person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities in reliance upon such information.
- 8. No Creation of Ownership Rights. Nothing in this Agreement, nor any action taken by either party, including without limitation, any payment of moneys by one party to another party, shall be construed to convey to Recipient any right, title or interest in any Confidential Information or any license to use, sell, exploit, copy or further develop in any way any Confidential Information. No license is hereby granted or implied under any patent, copyright or trademark, any application for any of the foregoing, or any trade name, trade secret or other proprietary information, in which Lucky’s has any right, title or interest.
- 9. No Warranty. Although Lucky’s will endeavor to include in the Confidential Information that information that Lucky’s believes to be relevant, Recipient understands that Lucky’s does not make any representation or warranty as to the accuracy or completeness of the Confidential Information. Recipient agrees that neither Lucky’s nor its sources, affiliates or agents shall have any liability to Recipient or its Representatives resulting from the use of the Confidential Information supplied hereunder.
- 10. Protective Order. If Recipient or any of its Representatives are required pursuant to legal process to disclose any Confidential Information or the existence or nature of this Agreement or discussions between the parties, Recipient will promptly notify Lucky’s to permit it to seek a protective order or take other appropriate action. Recipient will cooperate in Lucky’s efforts to obtain a protective order or other reasonable assurance that confidential treatment will be accorded the Confidential Information and discussions between the parties. If, in the absence of a protective order, Recipient or any of its Representatives is, in the written opinion of counsel, compelled as a matter of law to disclose the Confidential Information or the existence of discussions between the parties, Recipient may disclose to the person compelling disclosure only that part of the Confidential Information or the discussions as are required by law to be disclosed.
- 11. Loss of Confidentiality. Recipient will notify Lucky’s in writing if any information comes to the attention of Recipient or any of its Representatives that may indicate there was or is likely to be a loss of confidentiality of any portion of the Confidential Information. Recipient shall use reasonable efforts to retrieve the lost or wrongfully disclosed Confidential Information and to prevent further unauthorized disclosure or loss of any Confidential Information.
- 12. Term. This agreement shall become effective upon its execution by the recipient and shall be for a term of two (2) years from said Effective Date.
- 13. No Obligation for Future Agreements. Nothing herein shall obligate either party to purchase or provide any services or products of any kind from the other party or any of its affiliates, or to enter into any future transactions, agreements or business arrangements of any kind with the other party or any of its affiliates.
- 14. Injunctive Relief; Indemnification; Attorneys’ Fees. Recipient expressly acknowledges and agrees that its or any of its Representatives’ failure to comply with the provisions of this Agreement may cause irreparable harm and damage to Lucky’s for which Lucky’s may not have an adequate remedy at law. The parties agree that Lucky’s may seek to obtain injunctive and other equitable relief to enforce Recipient’s and its Representatives’ obligations under this Agreement; provided that by seeking injunctive and other equitable relief Lucky’s does not waive any other or further relief to which it may be entitled under applicable law, in addition to any legal remedies. If Lucky’s brings any action to enforce or protect any of its rights under this Agreement, it shall be entitled to recover from Recipient, in addition to its damages, its reasonable attorneys’ fees, and court costs.
- 15. Applicable Law. This Agreement shall be governed for all purposes by the law of the State of Nevada as it applies to contracts made and to be performed entirely within the State.
- 16. No Waiver. No implied waiver by Lucky’s shall arise in the absence of a waiver in writing signed by Lucky’s. No failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof prelude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
- 17. Entire Agreement, Amendments, Prior Discussions. This Agreement constitutes the final, exclusive and complete statement of the parties’ agreement respecting the subject matter addressed herein. This Agreement may not subsequently be amended or modified except by a writing signed by both parties hereto. Recipient hereby confirms that any information disclosed to it and any discussions held with Lucky’s, prior to the date of this Agreement, shall be subject to the terms of this Agreement.
- 18. Successors and Assigns; Survival. This Agreement shall be binding on, and shall inure to the benefit of, the parties and their respective legal representatives, successors and assigns. This Agreement shall survive the cessation of any discussions between the parties with regard to the Purpose. Notwithstanding, Recipient may at any time give written notice to Lucky’s that it does not desire to receive any additional Confidential Information.
- 19. Counterparts; Electronic Signatures. This Agreement may be signed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. This Agreement may be executed and delivered by facsimile signature or by other electronic means, which shall be accepted as if they were original execution signatures.