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THIS MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement”)is made as of ____________ ____, 20__ (the “Effective Date”) between Inspirato LLC (“Inspirato”) and the “Company” set forth in the Notice section below:
1. Purpose. The parties wish to disclose certain Confidential Information (as defined below) in connection with a potential business opportunity, as well as any ensuing business relationship, if any (the “Purpose”). This Agreement describes the terms under which Confidential Information may be disclosed by the parties. Each party may separately transmit and receive Confidential Information. If a party transmits Confidential Information, the party is referred to as the “Disclosing Party.” If a party received Confidential Information from the Disclosing Party, the party is referred to as the “Receiving Party.”
2. Definition of Confidential Information. “Confidential Information” means all technical and non-technical information or material disclosed by the Disclosing Party that should appear to a reasonable receiving party (because of legends or other markings, the circumstances of disclosure, or the nature of the information itself) to be confidential or proprietary and/or intended by the Disclosing Party to be Confidential Information under this Agreement, and includes information relating to the Disclosing Party’s business, including, without limitation, product information, plans and pricing, forecasts, financials, marketing plans, business strategies, customer and prospect information and lists, personnel data, Personal Information, properties, research and development, methods of operation, software (including source code) and hardware, APIs, specifications, works-in-process, designs, trade secrets, inventions, discoveries, know-how, proprietary formulae, proprietary algorithms, internal and external IP addressing, firewall routes and rule, network switch configuration and IP rules, and other intellectual property. Confidential Information may be disclosed in written or other tangible form (including as recorded on magnetic, optical or other storage media) or by electronic, oral, visual or other means. Confidential Information shall also include the existence and terms of this Agreement and the fact that discussions have taken, are taking, or may take place about this confidential business relationship.
3. Special Terms Concerning Personal Information. Notwithstanding anything to the contrary herein, the Receiving Party shall only use information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly with a particular individual (“Personal Information”) provided by the Disclosing Party or otherwise made available to the Receiving Party in connection with this Agreement for the purposes of conducting an evaluation of the Receiving Party’s services for the Disclosing Party’s benefit. The Receiving Party agrees that it shall not collect, retain, use, or disclose any Personal information except as necessary to conduct the evaluation. The Receiving Party further agrees that, upon the Disclosing Party’s instruction, it will delete any Personal Information provided by the Disclosing Party or otherwise made available to the Receiving Party in connection with this Agreement.
4. Privacy. The Parties will follow and comply with all applicable standards and laws, e.g. California Consumer Privacy Act of 2018 (“CCPA”) or the European Economic Area’s General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”)and Payment Card Industry Data Security Standards, regarding any Personally Identifiable Information (“PII”), personal information or personal data provided to The Receiving Party. PII includes, but is not limited to: first and last name; Social Security number; driver’s license number; bank account number; credit card number; passport number; email address, phone number, address, birth date, etc.
5. Obligation of Nondisclosure. The Receiving Party agrees to hold the Disclosing Party's Confidential Information in strict confidence and to use it solely for the Purpose. Confidential Information may not be used for any other purpose and must not be disclosed to any third party without the prior written consent of the Disclosing Party. The Receiving Party will apply the same level of confidential treatment to the Disclosing Party’s Confidential Information as it does to its own Confidential Information, but in no event, less than a reasonable degree of care. The Receiving Party will restrict access to the Confidential Information to only those of its directors, officers, employees, representatives or advisors (including without limitation legal counsel, accountants, auditors, consultants, or financial advisors) (collectively, “Representatives”) who require access in order to carry out the Purpose and who have previously agreed (e.g., as a condition to their employment or agency) to be bound by terms respecting the protection of confidential information which are substantially similar to those of this Agreement and which would extend to the Disclosing Party's Confidential Information. The Receiving party will not modify, reverse engineer, decompile, create other works from, or disassemble any such Confidential Information unless otherwise specified in writing by the Disclosing Party. The Receiving Party must notify the Disclosing Party inwriting of any actual or threatened misuse or misappropriation of the Confidential Information of which the Receiving Party may become aware. The Company acknowledges that it is and that its Representatives who are informed as to the matters that are the subject of this Agreement will be made aware that the United States securities laws would place restrictions on any person who has material non-public information about a company from purchasing or selling securities of such company, or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. Company agrees that it will not use or permit any third party to use, and that it will direct its Representatives not to use or permit any third party to use, any Confidential Information in contravention of the United States securities laws.
6. Exceptions. The Receiving Party’s obligations under this Agreement do not extend to information that: (i) is publicly known at the time of disclosure, (ii) subsequently becomes publicly known without breach of this Agreement by, and/or through no fault of the Receiving Party; (iii) was known or created by the Receiving Party prior to disclosure by the Disclosing Party as evidenced by the Receiving Party’s written records; (iv) was lawfully received by the Receiving Party through legitimate means other than from the Disclosing Party; (v) was independently developed by the Receiving Party without breach of this Agreement; (vi) was generally made available to third parties by the Disclosing Party prior to disclosure to the Receiving Party; or (vii) is required to be disclosed by the Receiving Party pursuant to applicable law, court order or governmental regulatory agency rules and regulations, provided that the Receiving Party will provide prompt written notice of such order to the Disclosing Party, furnish only that portion of the Confidential Information that it believes in good faith after consultation with counsel it is legally required to disclose, and comply with any protective order imposed on such disclosure.
7. No Publicity. Company agrees that it shall not make any public disclosures relating to the existence of this Agreement or the Purpose without the prior written consent of Inspirato.
8. Return of Materials. All Confidential Information, including all copies, must be promptly returned or certified as destroyed by the Receiving Party within five days of (i) the Disclosing Party’s request; or (ii) expiration or termination of this Agreement.
9. Voluntary Disclosure. Neither party is required to disclose any particular information to the other and any disclosure pursuant to this Agreement is entirely voluntary and does not, in itself create warranties or representations of any kind. Further, all Confidential Information is provided “AS IS” and neither party makes and representations or warranties (express or implied) regarding the accuracy or completeness of its Confidential Information.
10. Term; Termination. This Agreement begins on the Effective Date and will remain in effect for one year thereafter. The Receiving Party’s duty of confidentiality will survive for two years after the effective date of termination or expiration. Subject to the Receiving Party’s obligations of confidentiality, either party may terminate this Agreement upon 30 days written notice to the other party.
11. Injunctive Relief. The parties agree that the Disclosing Party may suffer irreparable harm if the Receiving Party breaches this Agreement and monetary damages may be substantial. If the Receiving Party breaches, or threatens to breach this Agreement, the Disclosing Party will be entitled to seek injunctive or other relief as necessary to restrain the Receiving Party, without proving actual damages and without posting a bond.
12. No Obligation to Enter Into Transaction. Neither this Agreement nor any action taken in connection with this Agreement by either party will give rise to any obligation on the part of either party to (i) engage in any discussions or negotiations with the other party or any of the other party’s representatives beyond the exchange of Confidential Information, or (ii) pursue or enter into any transaction or ensuing business relationship of any nature with the other party.
13. General Provisions.
(a) Notice. Any notice, demand or communication which either party may desire or be required to give to the other party shall be in writing and shall be deemed sufficiently given or rendered if delivered via electronic mail or sent via overnight mail delivery, addressed as follows:
If to Inspirato:
Inspirato LLC
1544 Wazee Street Denver, CO 80202 Attn: Legal Department Email: legal@inspirato.com
If to Company:
Attn:
Email:
(b) Governing Law; Jurisdiction and Venue. This Agreement is governed by Colorado law, without regard to its conflicts of laws principles. Exclusive jurisdiction and venue for any legal action under this Agreement is the Denver County Colorado District Court or the U.S. District Court for the District of Colorado. The parties waive their rights to trial by jury in any legal action under this Agreement.
(c) Remedies Cumulative. The rights and remedies in this Agreement are cumulative and are in addition to all rights and remedies available under law (unless waived in this Agreement). By exercising any right or remedy a party does not waive any other available right or remedy.
(d) Relationship of Parties. Nothing in this Agreement creates a partnership, joint venture, or similar relationship between the parties. Neither party may bind the/any other party or hold itself out as having authority to bind the other party.
(e) Counterparts. This Agreement may be executed in counterparts and delivered by facsimile or other electronic method, which taken together form the Agreement and will be binding as if the original signatures are on one document.