A. This Agreement is executed for the purpose of protecting certain Confidential Information (defined below), which may be disclosed by DRGinvest to Recipient as is necessary for Recipient’s evaluation of a potential real estate transaction between Denver Realty Group or its affiliate and Recipient (the “Purpose”).
B. Recipient acknowledges that the Confidential Information contains commercially sensitive and proprietary information of DRGinvest, and that DRGinvest has concerns regarding (i) any potential disclosure of such information to any third parties not a party to this Agreement, and (ii) use of the Confidential Information for any other reason other than for the Purpose specifically set forth herein.
C. DRGinvest and Recipient agree and acknowledge that any disclosure of the Confidential Information provided by DRGinvest in connection with the Purpose could cause DRGinvest injury.
- All information disclosed to Recipient by DRGinvest that is related to the Purpose, including, but not limited to, any conversations, reports, development plans, financial pro formas, or any other documents (“Confidential Information”), shall be deemed CONFIDENTIAL and PROPRIETARY to DRGinvest.
- In furtherance thereof, Recipient agrees that:
- Recipient may use the Confidential Information only for the Purpose.
- Recipient shall use at least the degree of care to protect the Confidential Information from unauthorized use or disclosure that Recipient uses to protect its own proprietary or confidential information.
- All Confidential Information and all materials containing Confidential Information delivered to Recipient by DRGinvest under this Agreement are and remain the sole and exclusive property of DRGinvest. No implied license to the Confidential Information is granted to Recipient by DRGinvest, and that all tangible embodiments of information (i.e., data, reports, etc.) shall be returned upon request, and no copies of such information shall be retained.
- If Recipient or its representatives receive a request to disclose all or any part of the Confidential Information under the terms of a valid and effective subpoena or order issued by a court of competent jurisdiction or by a governmental body, Recipient agrees to:(a) Immediately notify DRGinvest of the existence, terms and circumstances surrounding such a request so that DRGinvest may seek an appropriate protective order and/or waive Recipient’s compliance with the provisions of this Agreement; and
(b) If disclosure of such Confidential Information is required in the opinion of Recipient’s counsel, to the maximum extent possible, cooperate with DRGinvest in an effort to obtain written agreement that confidential treatment will be accorded to any disclosed Confidential Information.
- Recipient agrees that upon the request of DRGinvest, Recipient shall take all reasonable steps necessary to recover any compromised Confidential Information, which may be revealed to a third party in contravention of this Agreement.
- The disclosure of any Confidential Information by DRGinvest to Recipient shall not constitute a waiver of any applicable attorney-client, attorney work-product, or other non-disclosure privilege, privacy right or similar protection against disclosure that may be applicable. Any failure or delay by DRGinvest in exercising any right, power or privilege hereunder will not operate as a waiver, abandonment or relinquishment thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof, or the exercise of any right, power or privilege hereunder.
- Recipient shall indemnify and defend DRGinvest against all damages, losses, costs, liabilities, and expenses (including reasonable attorneys’ fees and costs associated with enforcing this indemnity) arising out of or related to any unauthorized use or disclosure of the Confidential Information in violation of this Agreement by Recipient or any other person who was provided the Confidential Information by Recipient.
- Recipient acknowledges and agrees that DRGinvest makes no representations or warranties with respect to the Confidential Information, including without limitation the accuracy or completeness thereof.
- Notwithstanding the foregoing, Recipient shall have no obligation to protect any information that:
- was actually known to Recipient prior to the date of this Agreement;
- is or becomes available to the public through publication or other communicative source accessible to the public that is not a result of a breach of this Agreement by Recipient;
- subsequent to disclosure under this Agreement, is lawfully received from a third party possessing rights to such information without restriction upon the third party’s right to disseminate such information and without notice of any restriction against its further disclosure;
- is disclosed pursuant to governmental action or order of a court of competent jurisdiction and an appropriate protective order or its equivalent is not available.
- The Confidential Information is provided solely for the Purpose, and nothing herein is intended to create an obligation on the part of either party to enter into any transaction related to the Purpose or otherwise.
- Any signature of this Agreement by any party communicated to the other party via facsimile or other electronic means of transmission shall constitute execution of this Agreement. This Agreement may not be changed or modified by a subsequent agreement between the parties, except by written modification signed by an authorized representative for each party.
- Neither party may assign this Agreement, nor any rights or obligations arising hereunder, without the express written consent of the other party to this Agreement. Any such unapproved assignment shall be void.
- The obligations of the parties under this Agreement shall commence upon execution hereof and shall continue in perpetuity unless a lesser period of time is required by law.
- This Agreement and the rights of the parties hereto shall be interpreted according to the laws of the State of Colorado, excluding the choice of law provisions thereof. In addition to any other remedies, which [ ] may have at law or in equity, it shall have the right to obtain preliminary and permanent injunctive relief to secure specific performance and to prevent a breach or threatened breach of this Agreement.
5925 E Evans Ave #300
Denver, CO 80222