CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
This Nondisclosure Agreement (this “Agreement”) is entered into as of the (the “Effective Date”), by LLUV Franchising, LLC (“Franchisor”) and (“Applicant”), each party hereto shall be referred to a “Party”, and collectively, the “Parties”).
BACKGROUND
WHEREAS, LLUV Franchising, LLC is a franchisor that offers franchises to qualified individuals to own and operate Laundry Luv Franchised Businesses under the Laundry Luv names and logos. Collectively, these are called the “Service Marks.”
WHEREAS, Franchisor has spent substantial time, effort and expense in creating its franchise system (“System”), and much of the information which comprises the System, including specifically its Franchise Disclosure Document, its Franchise Agreement, its Operations Manual, its Training index and materials, is proprietary, confidential and competitively sensitive; and
WHEREAS, the Applicant is considering purchasing a Laundry Luv franchise; and
WHEREAS, Franchisor requires that Applicant disclose certain personal financial, business and other information concerning Applicant’s background and experience, some of which is personal and proprietary to Applicant; and
WHEREAS, each of the parties desires to exchange with the other certain business, financial and other information upon the terms and conditions of this Agreement. When one Party makes a disclosure of Confidential Information (as defined below) to another Party, the Party making the disclosure shall be the “Disclosing Party” and the Party receiving the Confidential Information shall be the “Receiving Party.” The Parties wish to enter into this Agreement to provide for the protection of such information and materials and to restrict the use and disclosure of such information and materials by the Receiving Party.
TERMS AND CONDITIONS
1. Definition of Confidential Information. For purposes of this Agreement, “Confidential Information” means: (a) confidential and/or proprietary information and materials disclosed orally or in writing during the term of this Agreement; (b) Information regarding pending or existing strategic business relationships; (c) Financial information and reports, including estimates and forecasts; (d) Employee, customer and vendor data; (e) processes, charts, data and know-how; (e) any modifications or derivatives prepared by the Receiving Party that contain or are based upon any Confidential Information obtained from the Disclosing Party, including any analysis, reports, or summaries of the Confidential Information; and (f) the Laundry Luv Franchise Disclosure Document. The Disclosing Party shall bear the burden of proof, by written or other competent evidence, that a specific disclosure was actually made and that the Disclosing Party advised the Receiving Party or the Receiving Party should reasonably have understood, at the time of disclosure, that the information disclosed was to be held in confidence pursuant to this Agreement. The disclosing party may but shall not be required to furnish Confidential Information in documentary or tangible form marked as "Confidential". The failure to mark as “Confidential” any information disclosed in any form which is in fact Confidential Information hereunder shall not eliminate, reduce or otherwise alter the obligations of confidentiality hereunder with respect to that Confidential Information.
2. Limitations on Use. Unless the Disclosing Party expressly authorizes otherwise in writing in advance of such use, the Receiving Party must only use the Confidential Information in connection with evaluating and/or effectuating the possible franchise relationship contemplated herein.
3. Protection of Confidential Information. Receiving Party will protect the confidentiality of the Confidential Information with no less care than it protects the confidentiality of its own proprietary and confidential information and materials of like kind, but in no event will the Receiving Party protect the confidentiality of the
Confidential Information with less than a reasonable standard of care. Receiving Party will take (and will cause its employees and agents to take) any reasonable steps required to avoid inadvertent disclosure of materials in Receiving Party’s possession.
4. Access to Confidential Information. Access to the Confidential Information must be restricted to employees of Receiving Party on a need-to-know basis, who are engaged in the analysis and discussions concerning a possible transaction with the Disclosing Party as contemplated in the Background statement at the beginning of this Agreement. Furthermore, Receiving Party shall require all non-employee personnel and agents granted access to the Confidential Information (unless otherwise subject to legal requirements to protect the confidentiality of such Confidential Information), to execute a non-disclosure agreement binding such personnel to the confidentiality obligations set forth herein, to the same extent as the Receiving Party is bound to the Disclosing Party herein.
5. No Other License. Confidential Information disclosed by the Disclosing Party to the Receiving Party will at all times remain the property of the Disclosing Party. No other license to use any trademarks, patents, copyrights, or other rights is granted under this Agreement or by any disclosure of Confidential Information under this Agreement.
6. Return of Confidential Information. All Confidential Information made available under this Agreement, including copies of Confidential Information, must be returned to the Disclosing Party upon the first to occur of: (a) termination of discussions concerning a possible transaction between the Parties, or, (b) upon the request by the Disclosing Party. Any materials prepared by the Receiving Party which include any Confidential Information of the Disclosing Party, including summaries or extracts thereof, must be destroyed, and, if requested by the Disclosing Party, written certification of such destruction provided to the Disclosing Party, except that neither party will be obligated to send the other party notes or other personal works containing Confidential Information, provided that the parties shall comply with the provisions of Section 2 and Section 4 herein with respect to such notes or personal works.
7. Non-Confidential Information. Nothing in this Agreement will prohibit or limit Receiving Party’s use of information (including but not limited to intangible ideas, concepts, know-how, techniques, and methodologies) that is: (a) previously known to Receiving Party; (b) independently developed by the Receiving Party without the use of Confidential Information by any personnel, including but not limited to employees, agents, and independent contractors, that have not had access to the Confidential Information, as can be substantiated by reasonable evidence; (c) acquired by the Receiving Party from a third party which was not under an obligation to the Disclosing Party not to disclose such information; or (d) which is or becomes publicly available through no breach by the Receiving Party or the Receiving Party’s personnel. In the event the Receiving Party has any questions or concerns regarding whether something constitutes Confidential Information, the Receiving Party shall seek written clarification from Disclosing Party before disclosing or otherwise distributing said information.
8. Judicial Disclosures. If Receiving Party receives a subpoena or other validly issued administrative or judicial process demanding Confidential Information, Receiving Party must promptly notify Disclosing Party and tender to it/them the defense of that demand. Unless the demand has been timely limited, quashed or extended, Receiving Party will thereafter be entitled to comply with such demand to the extent permitted by law. If requested by the Disclosing Party, Receiving Party will cooperate (at the expense of the Disclosing Party) in the defense of a demand.
9. Successors and Assigns. This Agreement is and will be binding upon the Parties and each of their respective affiliates, and upon their respective heirs, successors, representatives, and assigns.
10. Injunctive Relief. The Parties recognize that serious injury could result to the Disclosing Party and their businesses if the Receiving Party breaches its obligations under this Agreement. Therefore, Receiving Party agrees that the Disclosing Party will be entitled to a restraining order, injunction or other equitable relief if Receiving Party breaches its obligations under this Agreement, in addition to any other remedies and damages that would be available at law or equity.
11. Advertising and Publicity. Neither Party may use the name of the other in connection with any advertising or publicity materials or activities concerning the Parties’ relationships without the prior written consent of the other Party.
12. Governing Law. The validity, performance, construction, and effect of this Agreement will be governed by the laws of the State of Florida, without regard to its conflicts of laws principles.
13. Entire Agreement. This Agreement constitutes the entire agreement between the Parties concerning the confidentiality and non-disclosure obligations discussed herein and may not be modified or amended other than by a written instrument executed by both Parties. As such, this Agreement shall remain in full force and effect regardless of whether the Parties enter into any other binding agreement to effectuate a business arrangement. The Parties represent that they have read this Agreement, understand it and agree to be bound by its terms and conditions. There are no understandings or representations, express or implied, which are not expressed herein. No provision herein is to be construed against or in favor of any Party on the basis of authorship.
14. Termination. This Agreement shall remain in effect until it is terminated by either Party with thirty (30) days prior written notice. The terms and conditions of this Agreement shall survive for a period of three (3) years any such termination with respect to Confidential Information that is disclosed prior to the effective date of termination.
15. Captions. The titles and captions contained in this Agreement are inserted herein only as a matter of convenience and for reference and in no way define, limit, extend, or describe the scope of this Agreement or the intent of any provision hereof.
16. Severability. Each provision of this Agreement is independent, and if any term, covenant, or condition in this Agreement shall, to any extent, be invalid or unenforceable, the remainder of this Agreement and the covenants herein contained shall not be affected thereby and the residue shall be valid and enforceable to the fullest extent permitted by law.
17. Facsimile Signature and Counterparts. The Parties hereby agree that signatures transmitted and received via facsimile are true and valid signatures for all purposes hereunder and shall bind the parties to the same extent as that of an original signature. The parties may also execute this Agreement in counterparts, each of which will constitute an original.
