Accretecap.com (the “Website”) is a private, confidential website intended solely for the limited use for which you (and, if applicable, your organization) have been given access. By accessing the Website, you (i) acknowledge that you will have access to certain information that is non-public, confidential or proprietary in nature and (ii) agree to the terms of this confidentiality agreement (this “Agreement”). Accrete Management, LLC (“Accrete”) wishes to protect and preserve the confidentiality of such information. Accordingly, by accessing the Website, you agree with Accrete as follows:
Definitions. For purposes of this Agreement, the following terms have the following meanings:
“Affiliate” means with respect to any Person, any other Person that directly or indirectly controls, is controlled by, or is under common control with, such Person.
“Evaluation Material” means all information, pages, content data, documents, agreements, files and other materials, whether disclosed orally or disclosed or stored in written, electronic or other form or media, including any content, information or materials contained or described on the Website, which is obtained from or disclosed by Accrete or its Representatives before or after the date hereof regarding Accrete, its Affiliates, any Investment or any of their respective Affiliates or investments, including, without limitation, all diligence materials, analyses, compilations, reports, forecasts, studies, samples and other documents prepared by or for you that contain or otherwise reflect or are generated from such information, data, documents, agreements, files or other materials. The term “Evaluation Material” as used herein includes the fact that discussions are taking place among the parties hereto but does not include information that: (i) at the time of disclosure or thereafter is generally available to and known by the public (other than as a result of its disclosure directly or indirectly by you or your Representatives in violation of this Agreement); (ii) was available to you from a source other than Accrete or its Representatives, provided that such source, to your knowledge after reasonable inquiry, is not and was not bound by a confidentiality agreement with respect to such information; or (iii) has been independently acquired or developed by you without violating any of your obligations under this Agreement.
“Investments” means one or more possible investments sponsored by Accrete or its Affiliates, including but not limited to portfolio or operating companies, or funds or joint ventures related thereto.
“Person” means any individual, partnership (whether general or limited), limited liability company, corporation, association, trust, joint venture or other entity.
“Representatives” means with respect to any Person, such Person’s Affiliates, and its and their respective directors, officers, employees, managing members, general partners, agents and consultants (including attorneys, financial advisors and accountants).
Confidential Treatment; Permitted Use. You shall keep the Evaluation Material strictly confidential and shall not use the Evaluation Material for any purpose other than to evaluate, negotiate and consummate an Investment. You shall not disclose or permit your Representatives to disclose any Evaluation Material except: (a) if required by law, regulation or legal or regulatory process, but only in accordance with Section 5; or (b) to your Representatives, to the extent necessary to permit such Representatives to assist you in evaluating, negotiating and consummating an Investment; provided, that you shall require each such Representative to be bound by the terms of this Agreement to the same extent as if they were parties hereto and you shall be responsible for any breach of this Agreement by any of your Representatives.
Non-Disclosure. Except for such disclosure as is necessary not to be in violation of any applicable law, regulation, order or other similar requirement of any governmental, regulatory or supervisory authority, you shall not, and shall not permit any of your Representatives to, without the prior written consent of Accrete, disclose to any Person: (a) the fact that the Evaluation Material has been made available to you or that you have received or inspected any portion of the Evaluation Material; (b) the existence or contents of this Agreement; (c) the fact that investigations, discussions or negotiations are taking or have taken place concerning any Investment, including the status thereof; or (d) any terms, conditions or other matters relating to any Investment.
No Representations and Warranties. You understand and agree that neither Accrete nor any of its Affiliates or Representatives: (a) have made or make any representation or warranty hereunder, expressed or implied, as to the accuracy or completeness of the Evaluation Material; or (b) shall have any liability hereunder to you or your Affiliates or Representatives relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom. The parties agree that unless and until definitive documentation between Accrete and you has been executed and delivered with respect to an Investment, neither Accrete nor any of its Affiliates will be under any legal obligation of any kind whatsoever with respect to such Investment, including any obligation (i) to consummate such Investment, (ii) to conduct or continue discussions or negotiations, or (iii) to enter into or negotiate a definitive agreement.
Required Disclosure. If you or any of your Representatives is required to disclose any Evaluation Material, by law, regulation or legal or regulatory process, you shall: (a) take all reasonable steps to preserve the privileged nature and confidentiality of the Evaluation Material, including requesting that the Evaluation Material not be disclosed to non-parties or the public; (b) give Accrete prompt prior written notice of such request or requirement so that Accrete may seek, at its sole cost and expense, an appropriate protective order or other remedy; and (c) cooperate with Accrete, at Accrete’s sole cost and expense, to obtain such protective order. In the event that such protective order or other remedy is not obtained, you (or such other persons to whom such request is directed) will furnish only that portion of the Evaluation Material that, on the advice of your counsel, is legally required to be disclosed and, upon Accrete’s request, use commercially reasonable efforts to obtain assurances that confidential treatment will be accorded to such information.
Investor Status. You hereby represent and warrant that you are an “accredited investor” as defined in Regulation D of the Securities Act of 1933, as amended.
Non-Circumvention. Without the prior written consent of Accrete, which consent may be withheld in Accrete’s sole and absolute discretion, neither you nor any of your Representatives shall (a) contact the principals of any Investment or any of Accrete’s Affiliates or Representatives in connection with any matters relating to any Investment, (b) take any action to initiate, advise, assist, finance, solicit, receive, negotiate, encourage, engage in or accept any offer or inquiry with respect to, any transaction involving an Investment or (c) otherwise seek to disadvantage or circumvent Accrete in respect of its pursuit of an Investment.
Equitable Relief. The parties agree that money damages would not be a sufficient remedy for any breach or threatened breach of this Agreement by you and that in addition to all other remedies it may be entitled to, Accrete shall be entitled to seek specific performance and injunctive or other equitable relief as a remedy for any such breach without being required to post any bond or to prove any actual damages from such breach or threatened breach, in addition to any damages or any other remedy to which it may be entitled at law or in equity.
Governing Law. This Agreement shall be governed by the laws of the State of Delaware.
Entire Agreement. This Agreement sets forth the entire agreement regarding the Evaluation Material, and supersedes all prior negotiations, understandings and agreements. No provision of this Agreement may be modified, waived or changed except by a writing signed by the parties hereto.
Severability. If any provision of this Agreement, or the application thereof to any Person, place or circumstance, shall be held by a court of competent jurisdiction to be invalid, unenforceable or void, the remainder of this Agreement and such provision as applied to other Persons, places or circumstances shall remain in full force and effect.
Assignment. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by any party without the prior written consent of the non-assigning party. Any purported assignment without such consent shall be void and unenforceable.