WHEREAS, the Parties intend to enter into an agreement between them, pursuant to which the Accepting Party shall perform certain services in connection with a Proposed Transaction involving the 5.46 acre site located at the northeast corner of Hamill Road and Eastex Freeway in Houston, Texas (the “Proposed Transaction”);
WHEREAS, in connection with these discussions, the Company may disclose certain confidential and proprietary information to Accepting Party. This Agreement sets forth the terms and conditions under which Accepting Party agrees to protect and maintain the confidentiality of the Confidential Information.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto agree as follows:
As used in this Agreement, the term “Confidential Information” shall mean any and all information and materials (including without limitation all information contained in any materials) provided by or on behalf of Transwestern to Accepting Party (i) in any form whatsoever, whether disclosed orally or in writing by Transwestern and whether or not marked, designated, other otherwise identified as “confidential” or (ii) that should be reasonably understood as Confidential Information based on the nature of the information or circumstances of the disclosure, prior to or at the time any such confidential or proprietary information or materials are disclosed by Transwestern to Accepting Party. In addition, the term “Confidential Information” shall be deemed to include: (a) any notes, analyses, compilations, studies, interpretations, memoranda or other documents prepared by Accepting Party which contain, reflect or are based upon, in whole or in part, any Confidential Information furnished to Accepting Party pursuant hereto; and (b) the existence or status of, and any information concerning, the discussions between the Parties concerning the possible establishment of a business relationship. Except for the sole purpose of Accepting Party’s evaluation of the Proposed Transaction, Accepting Party shall not use, duplicate or disclose any of the Confidential Information without the prior written consent of Transwestern.
At any time Transwestern so requests or at the expiration or termination of this Agreement, whichever occurs earlier, Accepting Party shall promptly surrender or destroy all Confidential Information furnished to it, whether furnished before or after the date of this Agreement, including all copies thereof in Accepting Party’s possession or control. Thereafter, Accepting Party shall not retain any copies, summaries, or other compilations of the Confidential Information, and shall destroy all documents, analyses, memoranda, notes, or other writings and electronic media prepared by or on behalf of Accepting Party and based in whole or in part upon any Confidential Information.
In the event that Accepting Party becomes legally compelled to disclose all or any part of the Confidential Information, Accepting Party shall immediately provide Transwestern with written notice thereof so that Transwestern may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. In the event that such protective order or other remedy is not obtained, or that compliance with the provisions of the Agreement is waived, Accepting Party shall furnish only that portion of the Confidential Information which is legally required and will exercise best efforts to obtain reliable assurance that confidential treatment will be accorded to the Confidential Information after its disclosure.
Accepting Party acknowledges that its breach of this Agreement could damage Transwestern, and that the dollar amount of such damages could be substantial; moreover, Accepting Party acknowledges that remedies at law may be inadequate to compensate for violation of this Agreement. Accordingly, Accepting Party hereby agrees in advance to the granting of injunctive relief in Transwestern’s favor without proof of actual damages, in addition to any other remedies available at law or in equity. Accepting Party shall reimburse Transwestern for all costs and expenses, including reasonable attorney’s fees, incurred by them in successfully enforcing the obligations of Accepting Party under this Agreement.
Accepting Party acknowledges and agrees that Transwestern makes no representations or warranties as to the accuracy or completeness of the Confidential Information or that actual results will conform to any projections; Transwestern expressly disclaims any and all liability for representations or warranties, express or implied, contained in the Confidential Information, or in any other written or oral communication transmitted or made available to Accepting Party by Transwestern.
This Agreement shall expire five (5) years from the date hereof. The obligation of confidentiality set forth herein as to any Confidential Information disclosed during the term of this Agreement shall survive termination or expiration of this Agreement.
Nothing contained in this Agreement shall require any of the Parties to enter into any agreement in connection with the Proposed Transaction or otherwise, or preclude any of the Parties from entering into any agreement, or obligate any of the Parties to the other, except as expressly provided herein or in any other written agreement existing or entered into by the Parties.
This Agreement is not intended to create, and does not create, any agency, partnership, joint venture or employment relationship between the Parties and neither Party is authorized to bind or represent the other Party in any respect whatsoever.
The Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs, successors and assigns. The terms of this Agreement shall be independent of, and unless otherwise expressly agreed, this Agreement shall survive the execution of any further documents or agreements between the Parties. Neither this Agreement nor any of the rights or obligations hereunder may be assigned or delegated by Accepting Party without the prior written consent of the Transwestern. Any attempted assignment in violation of this Agreement shall be void.
If any provision of this Agreement is deemed void, invalid, or unenforceable by any court or tribunal of competent jurisdiction, such provision shall be stricken from this Agreement without effect on the remaining provisions of the Agreement as a whole.
No failure or delay in exercising any right, power, or privilege hereunder shall operate as a waiver thereof or preclude the exercise of any other or further right, power, or privilege hereunder.
This Agreement shall be governed by and construed in accordance with the laws of the State of Texas.
For the convenience of the Parties, this Agreement may be executed by facsimile and in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one agreement binding on both parties.