• Cc: Rapid Connect Medical, LLC – Channel Sales

    Re: Confidentiality and Non-Disclosure Agreement (this “Letter Agreement”)

    Prospective Purchase of (the “Potential Transaction”)

  • Dear Recipient,

    In connection with our discussion regarding a Potential Transaction between Rapid Connect Medical, LLC or its assigns or affiliates (the “Company”), and {form_title}, individually, and {form_title}and/or assigns, on behalf of herself / itself, its subsidiaries and affiliated entities and all principals, individually and any affiliated entities (hereinafter collectively referred to as the “you” or “your”). The Company and you (each, a “Disclosing Party”) is prepared to make available to the other party (each, the “Receiving Party”) certain confidential and proprietary information concerning the Disclosing Party’s products, businesses, strategies, technologies, operations, marketing, pricing, capitalization, revenues, expenses, assets, and liabilities; including, but not limited to, technology, data, trade secrets; or know-how, formulations, research, patents, plans, products, services, clientele, rolodex, vendors, agents, contractors, marketing, partners, lenders, or other business information (collectively, the “Confidential Information”). As a condition to Disclosing Party furnishing such Confidential Information under this Letter Agreement, the Receiving Party hereby agrees as follows:

    1. Confidential Information. The term “Confidential Information” shall be deemed to include all notes, analyses, compilations, studies, interpretations, or other documents prepared by the Receiving Party or its directors, managers, officers, employees, members, agents, or advisors (including, without limitation, attorneys, accountants, consultants, bankers, and financial advisors) (collectively, the “Representatives”) that contain, reflect, or are based upon, in whole or in part, the Confidential Information. The term Confidential Information shall be deemed not to include information that (A) was publicly known and made publicly available other than as a result of an unauthorized disclosure by the Receiving Party of any of its Representatives, or, to the Receiving Party’s knowledge, by any third party bound by confidentially obligations to the Disclosing Party; or (B) becomes available to the Receiving Party from a third party as evidenced by contemporaneous writings without obligation of secrecy to the Disclosing Party and which said third party is legally entitled to disclose; or (C) was within the possession of the Receiving Party prior to its receipt from or on behalf of the Disclosing Party as evidenced by prior written records of the Receiving Party. All telecommunications and online communications between the parties will be historically recorded and date-stamped and considered confidential.

    2. Potential Transaction. The Receiving Party agrees that it and its Representatives shall use the Confidential Information solely for the purpose of evaluating the Potential Transaction, that the Confidential Information will be kept confidential, and that the Receiving Party and its Representatives will not make use of, reproduce, disseminate, or in any way disclose any of the Confidential Information in any manner whatsoever; provided, however, that (A) the Receiving Party may make any disclosure of the Confidential Information to which the Disclosing Party gives its prior written consent; and (B) any of the Confidential Information may be disclosed to the Receiving Party’s Representatives who need to know such information for the sole purpose of evaluating the Potential Transaction (it being understood that, prior to any such disclosure, such Representatives have agreed to be bound by confidentiality terms and conditions substantially similar to, and no less restrictive with respect to limitations on use and disclosure than, those of this Letter Agreement). In any event, the Receiving Party shall be responsible for any breach of this Letter Agreement by any of its Representatives as if such breach were such party’s own, and the Receiving Party agrees, at its sole expense, to take all reasonable measures (including, but not limited to, court proceedings) to restrain its Representatives from prohibited or unauthorized disclosure or use of the Confidential Information.

    3. Non-Circumvention. During the Term of this Agreement, the parties may introduce prospective clients, business relationships, suppliers, alliance partners, and active clients to one another. For providing access to prospective clients, business relationships, suppliers, alliance partners, and active clients with whom each party has developed relationships or introductions, both parties hereby acknowledge and agree not to pursue or finalize with those key individuals or their respective companies any financial and/or business transaction during the Term of this Agreement or the following Sixty (60) months after the Term of this Agreement ends. Any contrary agreement or exceptions to this provision must be approved by the Company in an executed writing prior to any such transaction taking place.

    4. External Distribution. The Receiving Party agrees that, without the prior written consent of the Disclosing Party, neither it nor its Representatives will disclose to any third party the fact that the Confidential Information has been made available to it, that discussions or negotiations are taking place concerning the Potential Transaction, or any of the terms, conditions, or other facts with respect thereto (including the status thereof).

    5. Events Requiring Notice. In the event that the Receiving Party or any of its Representative requested or required (by deposition, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of the Confidential Information, the Receiving Party shall provide the Disclosing Party with prompt written notice of any such request or requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Letter Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Disclosing Party, the Receiving Party or any of its Representatives are nonetheless, in the opinion of its counsel, legally compelled to disclose the Confidential Information to any tribunal or else stand liable for contempt or suffer other censure or penalty, the Receiving Party or its Representative may, without liability hereunder, disclose to such tribunal only that portion of such Confidential Information that such counsel advises in good faith is legally required to be disclosed, provided that the Receiving Party exercises its best efforts to preserve the confidentiality of such Confidential Information, including, without limitation, by cooperating with the Disclosing Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded such Confidential Information by such tribunal.

    6. No Representations or Warranties. The Receiving Party understands and acknowledges that neither the Disclosing Party nor any of its Representatives makes any representation or warranty, expressed or implied, as to the accuracy or completeness of the Confidential Information. The Receiving Party agrees that neither the Disclosing Party nor any of its Representatives shall have any liability to the Receiving Party or to any of its Representatives relating to or resulting from the use of the Confidential Information. Only those representations or warranties that are made in a final definitive Letter Agreement regarding the Potential Transaction contemplated hereby, when, as, and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.

    7. Term of Agreement. The term of this Letter Agreement shall commence on the date of signing and shall continue until the earliest of the following to occur: (A) the abandonment or conclusion of discussions by the parties with respect to the Potential Transaction where no commercial relationship has been formed between the parties; (B) in the event that the parties establish or continue a commercial relationship, on the date such commercial relationship ends; or (C) either party hereto provides written notice to the other of the termination of this Letter Agreement. Notwithstanding the foregoing, the Receiving Party’s obligations with respect to any item of the Confidential Information shall survive any termination of this Letter Agreement and shall continue until the date that is Five (5) years after the termination date of this Letter Agreement; provided, however, that any Confidential Information that meets the definition of “trade secret” under applicable law shall remain confidential as long as such information continues to meet the definition of “trade secret.” Upon any such termination of this Letter Agreement or at any time upon the request of the Disclosing Party, the Receiving Party shall promptly return or destroy (at the Disclosing Party’s option) all documents and any tangible material or medium containing or representing the Confidential Information and all copies, extracts or reproductions thereof in its possession, in whole or in part, of such information or material, whether in the form of materials supplied by the Disclosing Party, or in the form of notes, reports, or other materials prepared by the Receiving Party or its Representatives from information provided by the Disclosing Party. If requested by the Disclosing Party, an authorized officer of the Receiving Party supervising such destruction will certify destruction of the Confidential Information.

    8. Degree of Care. Each Receiving Party shall use at a minimum the same degree of care with respect to its obligations under this Letter Agreement as it employs with respect to its own Confidential Information and represents that it exercises at least reasonable care to protect its own Confidential Information.

    9. No Definitive Agreement. The Receiving Party agrees that unless and until a definitive agreement regarding the Potential Transaction between the parties has been executed and delivered, the Disclosing Party will not be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Letter Agreement, except for the matters specifically agreed to herein.

    10. Entire Agreement. This Letter Agreement constitutes the entire agreement and understanding between the parties relating to the subject matter hereof, and supersedes any other prior or contemporaneous agreements or understanding, whether written or oral. Any amendments to this Letter Agreement must be in writing and executed by authorized officers of the parties hereto. This Letter Agreement shall be governed and construed in accordance with the laws of the State of Colorado, without regard to conflicts of laws. If any provision of the Letter Agreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity shall not affect the other provisions of this Letter Agreement and this Letter Agreement shall be construed as if such unenforceable or invalid provision had never been contained herein.

    11. Modification and Amendment. All modifications, waivers of, and amendments to this Letter Agreement must be in writing and signed by each party. It is further understood and agreed that no failure or delay by either party in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege hereunder.

    12. Successors and Assigns. This Letter Agreement shall be binding upon the successors and assigns of each party and shall inure to the benefit of, and be enforceable by, each party and its successors and assigns. The Receiving Party shall not assign or transfer this Letter Agreement, or any rights or obligations hereunder, without the prior written consent of the Disclosing Party.

    13. Equitable Relief. The Receiving Party agree that any breach or threatened breach of this Letter Agreement (including the unauthorized disclosure or use of any Confidential Information) by the Receiving Party or its Representatives will cause irreparable harm and significant injury to the Disclosing Party, which may be difficult to ascertain, and that monetary damages may be inadequate and an insufficient remedy to compensate the Disclosing Party in such event. Therefore, the Receiving Party agrees that the Disclosing Party shall be entitled to obtain equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Letter Agreement. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Letter Agreement, but shall be in addition to all other legal remedies available to it at law or equity. The Receiving Party expressly waives the defense that a remedy in damages will be adequate and any requirement for the posting of a bond in an action for specific performance or injunction.

    14. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Colorado in the United States. By executing this Agreement, All Parties irrevocably agrees that any controversy, claim, or dispute arising out of or relating to any part or the whole of this agreement or breach thereof is to be exclusively and finally settled by a court of competent jurisdiction within the city and county of Denver, Colorado. In the event of litigation relating to this Letter Agreement, if a court of competent jurisdiction determines that one party or its Representatives has breached any provision of this Letter Agreement, such breaching party shall be liable and pay to the non-breaching party the reasonable legal fees incurred by non-breaching party in connection with such litigation, including any appeal therefrom.

    15. Delivery of Correspondence. All notices or reports permitted or required under this Letter Agreement shall be in writing and shall be by personal delivery, nationally recognized overnight courier service, facsimile transmission or by certified or registered mail, return receipt requested, and shall be deemed given upon the earlier of actual receipt of one (1) day after deposit with the courier service, five (5) days after deposit in the mail, or receipt by sender of confirmation of electronic transmission. Notices shall be sent to the addresses set forth at the end of this Letter Agreement or such other address as either party may specify in writing.

    16. Counterparts. This Letter Agreement may be executed in two or more counterparts, in original form or by electronic facsimile, all of which shall be considered one and the same Letter Agreement, and all of which signatures shall be treated as original signatures. You may feel free to contact the undersigned person with any questions regarding this Letter Agreement or the Potential Transaction, by Phone: 303-919-4616 or E-mail: [email protected]

    Please confirm your agreement with the foregoing by signing and returning one copy of this document to the undersigned, whereupon this Letter Agreement shall become a binding between you and the Company.

    IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of {date} (the “Effective Date”) by their respective officers thereunto duly authorized.

  • Rapid Connect Medical, LLC

    • By : Rapid Connect Medical

      Name : Ross Hardin

      Title : Chief Financial Officer

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