CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
THIS CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT is effective as of the date of electronic acceptance below, and made by and between the following parties:
1. MOJAVE MINING COMPANY, LLC, as well as their respective principals, agents, officers, directors, shareholders, servants, representatives, employees, partners, subsidiaries, affiliated companies, parent companies, subsidiaries, predecessors, successors in interest, dba’s, assigns, joint venturers, related corporations and entities, associates, trustees, beneficiaries, administrators, attorneys, and each of them, jointly and severally [hereinafter collectively “MOJAVE”]; and
2. The individual or legal entity identified in this application, as well as its respective principals, agents, officers, directors, shareholders, servants, representatives, employees, partners, subsidiaries, affiliated companies, parent companies, subsidiaries, predecessors, successors in interest, dba’s, assigns, joint venturers, related corporations and entities, associates, trustees, beneficiaries, administrators, attorneys, and each of them, jointly and severally [referred to as “Investor”].
MOJAVE has entered into discussions with Investor for purpose of bringing opportunities in the investment in certain mining, energy, refining, real estate and natural resource opportunities [“the Project”] related to the financing of, as well as potential investments and properties in San Bernardino County, California, including but not limited to the viability of such opportunities related to the Projects, Properties or Business Opportunities.
The purpose of this Agreement is to ensure that Investor does not disclose any information provided by MOJAVE and which is defined as being Confidential Information (with the limitations set forth in Section 13 of this Agreement), that Investor will treat it in the strictest of confidence and will not disclose this information or permit any other person to disclose this information to any person or entity without prior written permission by MOJAVE, except to Investor’s legal, financial planning and accounting counsel [who shall agree to likewise be bound hereunder prior to any such discussions] for purposes of evaluating any proposed, potential or possible investment or participation in the Project. Investor understands that the confidentiality obligations under this Agreement shall be valid for a period of three (3) years from the date of this Agreement. The Confidential Information shall include the names of the companies and persons involved in the transaction as well as the information about the companies themselves.
As such, MOJAVE and Investor agree that the Confidential Information shall be disclosed to the Investor on the terms and conditions set out hereinafter.
NOW THEREFORE, in consideration of the foregoing and mutual covenants and agreements as between the parties hereto, Investor hereby agrees as follows:
1. Investor acknowledges that the Confidential Information regarding the Projects in San Bernardino County, California is being provided to Investor in accordance with the strictest standards of confidentiality and shall not be disclosed to any employee, officer, agent, legal and financial advisors of the Investor, except on a strict need to know basis. Except with the prior written consent of MOJAVE, the Investor shall not disclose any of the Confidential Information so disclosed to Investor to any person who is not directly employed by Investor. Investor understands that the direct and indirect disclosure of any such Confidential Information to existing or potential Investors will place MOJAVE in a position of liability, at a competitive disadvantage, will result in MOJAVE losing and being denied the Business Opportunity presented as part of this Confidential Information and would do damage, monetary or otherwise, to MOJAVE and MOJAVE's business; and the engaging by Investor in any of the activities prohibited by this Agreement may constitute improper appropriation and/or use of such Confidential Information.
2. Investor expressly acknowledges that the Confidential Information constitutes a protectable or defendable business interest of MOJAVE.
3. From and after the Effective Date of this Agreement, defined as the date of electronic acceptance below, Investor shall not, directly or indirectly, whether individually, as a director, stockholder, owner, partner, employee, principal or agent of any business, or in any other capacity, make known, disclose, furnish, make available or utilize any of the Confidential Information of MOJAVE other than in the proper performance of the duties contemplated herein within Investor’s company, or as required by a court of competent jurisdiction or other administrative or legislative body; PROVIDED THAT, prior to disclosing any of the Confidential Information to a court or other administrative or legislative body, Investor shall promptly notify MOJAVE so that MOJAVE may seek a protective order or other appropriate remedy. Investor agrees to return all Confidential Information, including all photocopies, extracts and summaries thereof, and any such information stored electronically on tapes, computer disks or in any other manner to MOJAVE at any time upon request by MOJAVE.
4. Investor agrees to use the Confidential Information solely (a) for the purpose of evaluating and analyzing a potential investment and viability and interest of Investor for said Project(s), assets and properties as defined herein; and (b) in anticipation of bona fide negotiations to engage in business transactions by MOJAVE and/or Investor. Investor will not make any use whatsoever of any of such Confidential Information, except in connection with any negotiations or evaluations of MOJAVE or otherwise in connection with the purpose for which MOJAVE has provided Investor with the Confidential Information. No party shall have any right to information or knowledge as to any other person(s) or entities who have previously and/or are concurrently reviewing the Confidential Information. Confidential Information disclosed hereunder shall remain the exclusive property of the disclosing party and shall not under any circumstances be transmitted and/or used for any purpose other than as expressly set forth hereunder without the prior written consent of the disclosing party.
5. Investor will not copy or otherwise reproduce any of the Confidential Information unless Investor first obtains the specific prior written approval of MOJAVE with respect to the data to be reproduced, in whole or in part. Investor will not process, reprocess, format, reformat, or otherwise transform the Confidential Information unless such activities are necessary to perform Investor’s duties on behalf of MOJAVE.
6. Investor will return to MOJAVE all of the Confidential Information and all reproductions made thereof promptly if requested in writing by MOJAVE at any time.
7. Investor and MOJAVE understand and agree that MOJAVE is not merely bringing Confidential Information regarding the Subject Property but is actually bringing a Business Opportunity which is confidential, secret, not publicly known, not subject to public disclosure and is unique to MOJAVE. Thus the Subject Property, Project and Business Opportunity are subject to the strictest of confidential protections and require exclusivity as between Investor to MOJAVE. From the Effective Date and for a period of three (3) years from the date of this Agreement (the "Non-Circumvention Period"), Investor shall not, directly or indirectly, including through any past, present or future director, officer, partner, member, manager or employee of Investor, attempt in any manner to circumvent the provision of this Agreement or to conduct any business with any person other than MOJAVE regarding the Subject Property, Project or Business Opportunity set forth herein or to engage or participate in any business opportunity which competes or infringes on the Project or Business Opportunity of MOJAVE. Investor hereby guarantees that Investor, its agents, employees, clients and associates shall neither evade, impede nor circumvent MOJAVE in its activities to acquire the Subject Property and shall not, directly or indirectly, contact any person, entity or agency related to the Project or Business Opportunity at any time or in any way, except with the prior written consent of MOJAVE.
8. Except as otherwise set forth herein, without the prior written consent of MOJAVE, Investor will have no discussions, correspondence, or other contact with any employee, representative or agent of the other persons or companies involved in the marketing or ownership of the Subject Property, Projects or Business Opportunity, and will direct all inquiries related to the Transaction to MOJAVE. Investor shall not allow any representative, affiliates, related parties or clients to violate this provision. The terms “Transaction,” “Subject Property,” “Business Opportunity,” or “Project,” for purposes of this provision, shall be broadly construed to avoid any circumvention of the provisions of this Agreement.
9. Investor agrees that it will not share any of the Confidential Information with any person or entity, including any funding associates, individual companies or venture partners, without MOJAVE’s consent. Investor further agrees that any and all funding associate companies or venture partners shall also sign an identical version of this Agreement before being allowed to review any of the information therein.
10. Investor, as well as its officers, directors, principals, members, managers, employees, and agents, shall not disclose to any person the fact that the Confidential Information has been made available to Investor, that discussions or negotiations are taking place concerning the Subject Property, Project or Business Opportunity, or any of the terms, conditions, or other facts with respect thereto, except as provided herein. Nothing herein shall prevent, preclude or impair Investor’s obligations under this Agreement to notify MOJAVE of any information regarding the Subject Property, Project or Business Opportunity which comes or has come to Investor independent of the disclosures under this Agreement or of any solicitation, employment or inquiry made by any party regarding the Subject Property, Project or Business Opportunity.
11. Because Investor may at times act as a funding broker or lender, Investor agrees that it will not share any of the Confidential Information with any person or entity, including Investor’s funding associate(s) or individual companies, without MOJAVE’s consent. Investor further agrees that any and all funding associate(s) or individual companies shall also sign an identical version of this Agreement before being allowed to review any of the information therein.
12. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS.” THE DISCLOSING PARTY MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE, AND EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND/OR NONINFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES.
13. Investor and MOJAVE understand that it is customary to have limitations on confidential information; however many of the customary limitations and waivers are not present in this Agreement. Any Confidential Information that (i) has entered into the public domain through no wrongful act or breach of any obligation of confidentiality on Investor’s part or (ii) was in the lawful knowledge and possession or control of, or was independently developed by, Investor prior to the time it was disclosed to Investor, as evidenced by written records kept in the ordinary course of business by Investor or by written or other documentary proof of actual use by Investor, shall not be confidential. HOWEVER, it is agreed by and between Investor and MOJAVE that, upon the execution of this Agreement, Investor shall immediately, within five (5) business days, disclose to MOJAVE any and all prior information obtained by Investor and which Investor asserts to not be confidential. It is further understood and agreed that Investor shall as soon as may be possible notify MOJAVE of any other information which comes into Investor’s possession as part of the public domain. In the case of any disclosure required to be disclosed by law, regulatory order, or court order, Investor shall: (a) notify MOJAVE in writing as soon as possible, but in no event less than ten (10) days prior to any such disclosure; (b) cooperate with MOJAVE to preserve the confidentiality of the Confidential Information consistent with applicable law; (c) use its best efforts to limit any such disclosure to the minimum disclosure necessary to comply with such law or order; and (d) allow MOJAVE to proceed for a protective order to protect the confidential nature of the disclosures.
14. Investor acknowledges and agrees that the purpose of this Confidentiality Agreement is to protect MOJAVE and MOJAVE’s relationship with the Subject Property, Projects or Business Opportunity herein, and that MOJAVE will or may be irreparably harmed by an unauthorized disclosure of the Confidential Information. As such MOJAVE shall be entitled to injunctive and equitable relief for any unauthorized disclosure, and such right shall be cumulative and in addition to any other remedies available at law or in equity. In addition to any other remedies available to MOJAVE at law or equity, MOJAVE may (i) enjoin Investor, as well as its officers, directors, principals, members, managers, employees, and agents, from any sums or other value received by Investor (or any of its representatives, affiliates, related parties or clients) arising from a breach of this Agreement. In connection with any action by MOJAVE or member thereof to enforce rights under this Agreement or in any actions arising therefrom, MOJAVE shall be entitled to recover its attorneys' fees and costs from Investor.
15. This Agreement sets forth the entire agreement between the parties with respect to its subject matter and merges and supersedes all prior discussions, agreements and understandings of every kind and nature between any of them and neither party shall be bound by any term or condition other than as expressly set forth or provided for in this Agreement. This Agreement may not be changed or modified nor may any of its provisions be waived, except by prior agreement in writing, signed by the parties hereto.
16. Notwithstanding anything in this Agreement to the contrary, Investor agrees to pay all costs and expenses incurred by MOJAVE in connection with the enforcement of MOJAVE's rights and entitlements under this Agreement should Investor be found to have violated the terms and conditions of this Agreement and will indemnify and hold harmless MOJAVE from and against any damages, liabilities and expenses (including without limitation fees and expenses of counsel) incurred by MOJAVE in connection with any litigation or threatened litigation, including any regulatory proceedings arising out of the making of this Agreement or the enforcement of MOJAVE's rights under this Agreement.
17. The failure of any party to this Agreement to enforce any of its terms, provisions or covenants shall not be construed as a waiver of the same or of the right of such party to enforce the same. Waiver by any party hereto of any breach or default by any other party of any term or provision of this Agreement shall not operate as a waiver of any other breach or default.
18. In the event that any one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remainder of the Agreement shall not in any way be affected or impaired thereby. Moreover, if any one or more of the provisions contained in this Agreement shall be held to be excessively broad as to duration, activity or subject, such provisions shall be construed by limiting and reducing them so as to be enforceable to the maximum extent allowed by applicable law.
19. Any notice given hereunder shall be in writing and shall be deemed to have been given when delivered by messenger or courier service (against appropriate receipt), or mailed by registered or certified mail (return receipt requested), addressed as follows.
If to MOJAVE: Paul Barnes, MOJAVE MINING COMPANY LLC, 7223 Linden Avenue, Las Vegas, Nevada 89110-4211.
With Copy to: R. Christopher Reade, Esq., READE & ASSOCIATES, 1333 North Buffalo Drive, Suite 210, Las Vegas, Nevada 89128. Fax: (702) 794-4421.
If to Investor: at the name, entity, and email address submitted in this application, or at such other address as shall be indicated to either party in writing. Notice of change of address shall be effective only upon receipt.
20. This Agreement shall be governed by and construed in accordance with the laws of the State of Nevada without regard to conflicts of law principles.
21. This Agreement may be executed in counterparts, including by electronic acceptance on this page, each of which shall be deemed an original for all purposes but which, together, shall constitute one and the same instrument. A typed name and checked acceptance box constitute Investor’s electronic signature under applicable electronic-signature law, including the federal E-SIGN Act and the Nevada Uniform Electronic Transactions Act.
