SBCC GP, LLC and its affiliates (collectively, “SBCC”) and the company and/or individual accessing this web site (“Recipient”) have expressed a mutual interest in determining whether the Recipient desires to and is qualified to purchase limited partnership interests in Small Business Community Capital II, LP (the “Fund”) and, if such interests are purchased, in sharing certain information about the Fund over the course of the Fund’s life (such activities collectively referred to as the “Business Relationship”).

 

In order to establish and maintain the Business Relationship between the parties, it may be necessary for SBCC to disclose to Recipient certain information which SBCC considers to be confidential and/or proprietary (in writing, verbally, electronically, visually or otherwise) including, but not limited to, research, business, engineering and technical information, product information, formulations, ideas, clinical data and samples, financial data, projects, business plans and strategies, business alliances, trade secrets, research, products, services, customers, suppliers, markets, formulas, software, hardware, developments, inventories, processes, designs, drawings, marketing and any other information pertaining to the business and operations of SBCC (including the Fund) and the Fund’s portfolio companies (collectively the “Information”).  This Agreement sets forth the terms and conditions under which SBCC will make its Information available to Recipient solely in connection with establishing and maintaining the Business Relationship.  Recipient hereby agrees to treat such Information in accordance with the terms of this Agreement.  Accordingly, SBCC and Recipient agree as follows:

 

1. The disclosure of Information by SBCC in connection with the Business Relationship will commence on the date Recipient clicks “Accepted” below (“Effective Date”) and will continue for as long as SBCC makes disclosures to Recipient (“Disclosure Period”), unless the Disclosure Period is earlier terminated as provided in this Agreement.  This Agreement will apply to all Information provided to Recipient during the Disclosure Period.  It is hereby acknowledged that the Information may be disclosed by SBCC or on behalf of SBCC by its designated related parties and/or consultants or collaboration partners and all such Information will be considered confidential Information of SBCC under this Agreement.  Either party may terminate the Disclosure Period and cease disclosure of Information hereunder upon one (1) month prior written notice to the other party.  SBCC will not be obligated to disclose Information under this Agreement, and the amount and type of Information provided under this Agreement will be completely within the discretion of SBCC.  Notwithstanding the termination of the Disclosure Period and the providing of Information hereunder, the parties will remain bound by the provisions contained in this Agreement with respect to all Information perpetually.  For the avoidance of doubt, this Agreement is intended to cover only SBCC’s disclosures of Information as SBCC does not wish to obtain or receive any Information from Recipient via this web site, which Recipient considers confidential.

 

2. Unless otherwise authorized by SBCC in writing, Recipient agrees not to (i) disclose the Information to any third party or (ii) use such Information for its own benefit or the benefit of any third party or for any purpose except as reasonably required solely in connection with the Business Relationship.

 

3. Recipient agrees that it will only disclose Information internally to those of its representatives (including officers, employees, affiliates and employees of affiliates and certain related parties) who are legally obligated to protect and treat such Information as confidential in the manner and to the extent provided in this Agreement; and further agrees that it will remain responsible for the performance of such representatives while employed by Recipient or its affiliates.  Notwithstanding the foregoing, under no circumstances will any disclosure be made to any person that is employed by, or an independent contractor of, a competitor of SBCC, the Fund or the Fund’s portfolio companies.

 

4. Upon written request of SBCC, Recipient agrees to promptly return all Information, including but not limited to copies thereof, derivative works containing such Information, or, at the request of SBCC, Recipient agrees to destroy that Information in a manner reasonably acceptable to SBCC.

 

5. The obligations of confidentiality and restricted use set forth above will not apply to any Information which and to the extent that such is:

 

(a) in the public domain at the time of its first disclosure hereunder, or thereafter enters into the public domain other than by a breach of this Agreement by Recipient; or

 

(b) at the time of its first disclosure hereunder, is in the possession of Recipient as evidenced by competent proof; but the foregoing exclusion will not apply to any Information in Recipient’s possession due to a prior confidential disclosure by SBCC or any of its representatives, affiliates or predecessors or named related parties; or

 

(c) subsequent to its first disclosure hereunder, is disclosed to Recipient by a third party in lawful possession of the same who has the right to make such disclosure and who is not under any obligation of secrecy or restricted use with respect to such Information; or

 

(d) independently developed by representatives or on behalf of Recipient without the Information or access thereto, directly or indirectly, as demonstrated by competent evidence.

 

Specific Information disclosed by SBCC will not be deemed within the exceptions set forth in this Section 5 merely because it is embraced by more general information to which one or more of those exceptions may apply.  In addition, any combination of features will not be deemed to be within the above exceptions merely because individual features are in the public domain or in Recipient’s possession, but only if the combination itself and its principle of operation are in the public domain or in Recipient’s possession.  Even though Information is within one of the above exceptions, Recipient will not disclose to third parties that the excepted Information was provided by SBCC.

 

6. Nothing contained in this Agreement will be construed to grant either party any right or license with respect to any intellectual property of the other.  The disclosure of the Information by SBCC to Recipient will not result in any obligation on the part of either party to enter into any future agreement or arrangement.

 

7. Disclosure by a Recipient that is required in a judicial, administrative or governmental proceeding will not constitute a breach of this Agreement, provided that Recipient timely notifies SBCC of that requirement so that SBCC is afforded a reasonable opportunity to oppose such requirement or otherwise seek an appropriate protective order.  In any event, Recipient will disclose only that portion of the Information that it is legally required to disclose in connection with such judicial, administrative or governmental proceeding, and will request confidential treatment of such Information prior to disclosure.  Notwithstanding the foregoing, the fact that such disclosure took place as a result of a lawful requirement or by operation of law, does not mean that any part of the Information disclosed is no longer considered Information for purposes of this Agreement.

 

8. The parties acknowledge that in the event of breach of this Agreement by Recipient of any obligations in respect of the Information, SBCC will be irreparably and immediately harmed and unable to be made whole by monetary damages.  Recipient therefore agrees that, in addition to any legal or equitable remedies to which SBCC may be entitled, SBCC will be entitled to seek a restraining order, injunction, or other appropriate equitable relief to remedy any breach of this Agreement and/or to compel specific performance of this Agreement.  Recipient agrees to reimburse SBCC for all costs incurred in connection with SBCC’s attempt to enforce the obligations of Recipient or its representatives hereunder.  Recipient agrees to promptly: (i) notify SBCC of any breach of this Agreement of which it becomes aware and, (ii) provide SBCC with all information known to Recipient regarding such breach.

 

9. The validity, interpretation and effect of this Agreement will be governed by and construed under the laws of the State of Delaware without regard to conflicts of law principles.  Each party hereby consents and submits to the jurisdiction and venue of the State and Federal Courts, situated in Delaware for adjudicating any issue with respect to this Agreement, including without limitation, its validity, interpretation and effect.

 

10. This Agreement may not be assigned by the Recipient without SBCC’s prior written consent.  SBCC has the right to freely assign this Agreement.

 

11. All additions or modifications to this Agreement must be made in writing and must be signed by authorized legal representatives of both parties.  This Agreement will be construed as if it were negotiated and drafted jointly by the parties, and will not be construed in favor of or against either party by reason of one party being deemed the principal drafter hereof.

 

12. Certain provisions contained herein (including but not limited to the provisions of Section 9) will, by their nature, survive a termination of this Agreement.  Expiration or termination of this Agreement will be without prejudice to any rights and liabilities accrued prior to such expiration or termination, including those rights and liabilities in respect of any breach of this Agreement.

 

13. Recipient will adhere to the US Export Administration Laws and Regulations and will not export or re-export any technical data or products received from SBCC or the direct products of such technical data to any proscribed country listed in the US Export Administration Regulations unless properly authorized by the US Government.