Form Mutual Non-Disclosure Agreement - Purchase and Sale of LLC Membership Interest

This Mutual Non-Disclosure Agreement (“Agreement”) is entered into as of __________________, 2022,  by and among __________________ (“___________"), on the one hand, and __________________ , on the other (collectively, the “Parties”) in connection with the potential purchase and sale of the membership interest currently possessed by __________________ ("__________'s Interest") in a certain limited liability company organized and existing under the laws of the State of New York, with a principal place of business in ______________, New York/Connecticut, known as "_______________________"  ("_____________________"), in consideration of the mutual promises and covenants contained in this Agreement and the mutual disclosure of Confidential Information (as defined herein) by each party (the “Disclosing Party”) to the other party (the “Receiving Party”), the Parties hereto agree as follows:

1.  Confidential Information.  “Confidential Information” shall mean any and all proprietary information and documents provided by the Disclosing Party to the Receiving Party, either directly or indirectly, in writing, electronically, orally, by inspection, or otherwise unless such information has been explicitly designated by the Disclosing Party as not being Confidential Information.  “Confidential Information” includes, without limitation, technical data, trade secrets, plans for development, products or services, customer lists, customer information marketing plans, potential or existing partnerships, financial documents or data, processes, technology and designs.  The Receiving Party shall not use or disclose any Confidential Information other than in connection with the potential purchase and sale of ___________ Interest, and shall use the same care as the Receiving Party uses to maintain the confidentiality of its confidential information.  The Receiving Party may disclose Confidential Information only to its employees, potential sources of financing, consultants, agents or advisors to whom such disclosure is necessary to evaluate, and engage in discussions concerning, the potential transaction.  The Receiving Party acknowledges that the remedy at law for any breach of the foregoing provisions of this paragraph may be inadequate and that the Disclosing Party shall be entitled to seek injunctive relief against any such breach or threatened breach, without posting any bond, in addition to any other remedy available to it.  

2.  Exclusion.  “Confidential Information” shall not include information that (a) at the time of use or disclosure by the Receiving Party is in the public domain through no fault of, action or failure to act by the Receiving Party; (b) becomes known to the Receiving Party from a third-party source whom the Receiving Party does not know to be subject to any obligation to the Disclosing Party of confidentiality; (c) was known by the Receiving Party prior to disclosure of such information by the Disclosing Party to the Receiving Party; or (d) was independently developed by the Receiving Party without any use of Confidential Information.

3.  Return of Confidential Information.  The Receiving Party shall immediately destroy or return all tangible and, to the extent practicable, intangible material in its possession or control embodying the Disclosing Party's Confidential Information (in any form and including, without limitation, all summaries, copies and excerpts of Confidential Information) promptly after the Disclosing Party makes a written request therefor and shall not thereafter be retained in any form by Receiving Part.  

4. Non-waiver.  Any failure by the Disclosing Party to enforce the Receiving Party's strict performance, or any waiver by the Disclosing Party, of any provision of this Agreement shall not constitute a waiver of the Disclosing Party's right to subsequently enforce such provision or any other provision of this Agreement.

5.  No Obligation.  Nothing in this Agreement shall impose any obligation upon either Party to consummate any transaction with the other, or upon either Party to enter into discussions or negotiations with respect thereto.

6.  Term.  The obligations of each Receiving Party hereunder shall survive until the earlier of (a) six months from the date of this Agreement, or (b) such time as all Confidential Information disclosed hereunder is in the public domain through no fault of, action or failure to act by the Receiving Party.

7.  Miscellaneous.

(a)  This Agreement shall be governed by and construed in accordance with the laws of the State of New York/Connecticut without regard to the conflicts of law principles of such State.  

(b)  Each Party acknowledges and agrees that, as of the date hereof, this Agreement is the only agreement between the Parties with respect to confidentiality obligations.  No provision of this Agreement shall be deemed waived, amended or modified by either Party unless such waiver, amendment or modification be in writing signed by the Party against whom enforcement of such waiver, amendment or modification is sought.

(c)  In the event that any one or more of the provisions of this Agreement shall be held invalid, illegal or unenforceable in any respect, or the validity, legality and enforceability of any one or more of the provisions contained herein shall be held to be excessively broad as to duration, activity or subject, such provision shall be construed by limiting and reducing such provision so as to be enforceable to the maximum extent compatible with applicable law.

(d)  This Agreement shall inure to the benefit of, and be binding upon, the Parties and their respective successors and/or assigns.  

(e)  This Agreement may be executed in counterparts which, when taken together, shall constitute one and the same agreement.  Execution and delivery hereof may be evidenced by facsimile transmission or email with a .pdf copy hereof.

IN WITNESS WHEREOF, the Parties hereto have executed this Mutual Non-Disclosure Agreement as of the date first set forth above.

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