This data room (the “Data Room”) and all information in it are furnished by CMRD Consulting LLC, a Florida limited liability company (“CMRD”), to EnterpriseDB Corporation, a Delaware corporation, and its Affiliates (collectively, “EDB”) in connection with the Mutual Non-Disclosure Agreement between CMRD and EDB (the “NDA”). Capitalized terms used but not defined below have the meanings given in the NDA. By accessing the Data Room, EDB and each of its directors, officers, employees, agents and professional advisors who access it (“Representatives”) acknowledge and agree to the following terms, which supplement the NDA. If these terms conflict with the NDA as executed by both parties, the NDA controls to the extent of the conflict unless it provides otherwise.
Confidential Information
All information in the Data Room is CMRD's Confidential Information, whether or not it is marked, legended or otherwise identified as confidential, and whether it is disclosed in written, oral, electronic, visual or any other form. This includes, without limitation, information about CMRD's formation, ownership and capitalization; its customers, contracts, deliverables, revenue and forecasts; and its personnel, including resumes, skills, tenure, hourly rates, rate history, earnings and bonuses; together with all notes, analyses, compilations, summaries and other materials prepared by or for EDB or its Representatives that contain or reflect any of that information.
Permitted purpose
EDB and its Representatives may use CMRD's Confidential Information solely to evaluate and, if the parties so agree, to negotiate and consummate a potential acquisition of, investment in or other business combination with CMRD (the “Transaction”), and for no other purpose. Without limiting the foregoing, CMRD's Confidential Information may not be used for any competitive, pricing, procurement, recruiting or hiring purpose, or in connection with EDB's existing commercial relationship with CMRD.
Personnel and compensation information
Compensation, rate, bonus, contact and other personal information about identified individuals may be disclosed only to those Representatives who need it to evaluate the Transaction, and must be handled in accordance with all applicable data protection and privacy laws, including, where applicable, the EU General Data Protection Regulation with respect to individuals located in Poland.
Anonymized customers
Customers other than EDB are identified in the Data Room as Customer A, Company B and Company C. EDB and its Representatives shall not attempt to determine the identity of any such customer, and shall not contact any customer, contractor or employee of CMRD regarding CMRD, the Data Room or the Transaction, without CMRD's prior written consent.
Duration
The obligations in these terms continue for three (3) years from the date each item of Confidential Information is first made available in the Data Room, except that any Confidential Information that constitutes a trade secret under applicable law shall remain protected for so long as it qualifies as a trade secret, and the obligations in section 7 continue for the period stated there.
Return and destruction
Within ten (10) business days after the earlier of (a) CMRD's written request or (b) either party's written notice that it is ending discussions regarding the Transaction, EDB shall, and shall cause its Representatives to, return to CMRD or permanently destroy all of CMRD's Confidential Information in their possession or control, including all copies, extracts, downloads, screenshots, notes and analyses, in every form and medium, and shall permanently delete it from all computers, devices, email accounts, file-sharing and cloud storage services, and other electronic systems. Within the same period, an officer of EDB shall certify in writing to CMRD that EDB and its Representatives have complied with this section. Copies retained in automatic electronic backup or archival systems that cannot reasonably be deleted may be retained only until overwritten in the ordinary course, shall not be restored or accessed for any purpose, and remain subject to these terms for as long as they are retained, regardless of the period in section 5.
Non-solicitation
For twelve (12) months after EDB's last access to the Data Room, EDB shall not, and shall cause its Affiliates not to, directly or indirectly, solicit for employment or engagement, hire, or engage as an employee, contractor or consultant, any individual identified in the Data Room or any other person who is then, or was during the preceding six (6) months, an employee or contractor of CMRD, without CMRD's prior written consent. General solicitations, such as public job postings, that are not directed specifically at any such person do not by themselves breach this section.
Access controls
Access to the Data Room is personal to EDB and its Representatives who need it for the permitted purpose and who are bound by confidentiality obligations no less protective than these terms. EDB shall not forward, publish, reproduce or make available the Data Room, its link or any of its contents to any other person, and shall notify CMRD in writing promptly upon becoming aware of any unauthorized access, use or disclosure. EDB is responsible for any breach of these terms by its Representatives.
No obligation, license or warranty
Neither party is obligated to proceed with the Transaction unless and until a definitive written agreement is executed by both parties, and then only on its terms. No license or other right in CMRD's Confidential Information is granted except as expressly stated here. All Confidential Information is provided “as is.” Forecasts, estimates and other forward-looking information reflect CMRD's good-faith expectations as of the date shown and are not guarantees of future results. CMRD makes no representation or warranty as to the accuracy or completeness of the Confidential Information, except as may be expressly set out in a definitive agreement.
Remedies
Any breach or threatened breach of these terms may cause CMRD irreparable harm for which monetary damages would not be an adequate remedy. CMRD shall be entitled to seek injunctive relief, specific performance and other equitable relief, without the necessity of posting a bond, in addition to any other remedy available at law or in equity.
Governing law and venue
These terms, and any dispute arising out of or relating to them or to the Data Room, are governed by the laws of the State of Florida, without regard to its conflict-of-laws rules. Each party irrevocably submits to the exclusive jurisdiction of the state and federal courts located in Orange County, Florida, and waives any objection to venue in those courts, except that CMRD may seek injunctive or other equitable relief in any court of competent jurisdiction.