CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement (this “Agreement”) is entered into as of the date “Recipient” signs below.
Background. Recipient is interested in discussing and evaluating a possible transaction involving DDSMATCH.COM, LLC, an Indiana limited liability company or one of its affiliates (the “Disclosing Party”), as agent for the seller (the “Seller”) of certain assets (“Possible Transaction”). In furtherance thereof, it is anticipated that certain confidential, financial, proprietary and other information, data, documents, agreements and materials concerning the Seller, including, without limitation, business plans and opportunities, client lists, trade secrets and pricing and supplier information (the “Confidential Information”) will be disclosed to or delivered by or on behalf of the Seller by the Disclosing Party to Recipient and to certain of its affiliates, general partners, managing members, directors, officers, employees or advisors (collectively, “Representatives”). Recipient hereby represents and warrants that Recipient is not acting as a broker for or representative of any other person or entity in connection with the Possible Transaction, and is considering the Possible Transaction only for its own account.
Confidential Information. As used in this Agreement, the term “Confidential Information” shall be deemed to include any notes, analyses, compilations, studies, interpretations, memoranda or other documents prepared by the Recipient or its Representatives which contain, reflect or are based upon, in whole or in part, any Confidential Information furnished to the Recipient or its Representatives, in whatever form or medium and whether or not marked as confidential or proprietary. Notwithstanding the foregoing, the term “Confidential Information” does not include information which (a) Recipient can demonstrate was in the possession of the Recipient prior to the time of disclosure to Recipient by or on behalf of the Disclosing Party, (b) was or becomes generally available to the public through no act or omission of the Recipient or its Representatives in violation of this Agreement, or (c) becomes available to the Recipient from a third party not known by Recipient (following reasonable inquiry) to be under any obligation of confidentiality to the Disclosing Party and the Seller with respect thereto or otherwise prohibited from disclosing such information by any legal, contractual or fiduciary obligation.
Use and Disclosure of Confidential Information. Recipient, and its Representatives who need to know the Confidential Information for purposes of advising Recipient in connection with the Possible Transaction, shall use the Confidential Information only for the purpose of evaluating, negotiating or advising in connection with the Possible Transaction. The Confidential Information shall not be used for any other purpose. The Recipient and such Representatives shall hold the Confidential Information in confidence, and shall not disclose any Confidential Information, except where such disclosure is requested or required by law or judicial process Recipient agrees to give the Disclosing Party prompt notice of any such request or requirement so that the Disclosing Party may seek a protective order or other appropriate remedy, and the Recipient shall exercise reasonable efforts to assist the Disclosing Party in obtaining such order or remedy. If, in the absence of a protective order, the Recipient is nonetheless, in the opinion of the Recipient's counsel, compelled to disclose the Confidential Information or else stand liable for contempt or suffer other censure or penalty, the Recipient may disclose such information without liability hereunder; provided, however, that Recipient gives the Disclosing Party notice of the information to be disclosed as far in advance of its disclosure as is practicable, uses all reasonable efforts to limit any such disclosure to the precise terms of such requirement, and uses reasonable efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to such information. Without limiting the above, Recipient shall take all reasonable action by instruction, agreement, or otherwise with respect to Recipient’s employees or other persons permitted access to the Confidential Information to cause them to comply with Recipient’s obligations under this Agreement, including with respect to the use, protection, and security of the Confidential Information. In any event, the Recipient shall be responsible for any breach of this Agreement by any of its Representatives (as if they were original parties and signatories hereto), and agrees, at its sole expense, to take reasonable measures to restrain its Representatives from prohibited or unauthorized disclosure or use of the Confidential Information.
Additional Non-Disclosure Obligations. Without the prior written consent of the Disclosing Party, Recipient will not, and will cause its Representatives not to, disclose to any person or entity (a) that the parties have entered into this Agreement or that Confidential Information has been made available to Recipient or its Representatives, (b) that discussions are taking place concerning a Possible Transaction, or (c) any terms or other facts with respect to the Possible Transaction, including the status thereof.
Ownership of Confidential Information; No Representations or Warranties. The Recipient agrees that the Seller is and shall remain the exclusive owner of Confidential Information and all patent, copyright, trade secret, trademark and other intellectual property rights therein. No license or conveyance of any such rights to the Recipient is granted or implied under this Agreement.
Return or Destruction of Confidential Information. The Disclosing Party may elect at any time to terminate further access by Recipient to the Confidential Information. At any time Recipient determines not to proceed with the Possible Transaction, Recipient will promptly notify the Disclosing Party in writing. The Recipient shall, upon the written request of the Disclosing Party or upon its determination not to proceed with the Possible Transaction, return or destroy all Confidential Information in the possession of the Recipient (and all copies and reproductions thereof). Any destruction of materials shall be confirmed by Recipient in writing. Any Confidential Information that cannot be returned or destroyed (such as oral Confidential Information) shall remain confidential, subject to the terms of this Agreement.
No Representations; Freedom to Conduct Process. Recipient understands and acknowledges that neither the Disclosing Party nor any of its representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information. Recipient agrees that neither the Disclosing Party nor any of its representatives shall have any liability to Recipient or any of Recipient’s Representatives relating to or resulting from Recipient’s or their use of the Confidential Information or any errors therein or omissions therefrom. Recipient further understands and agrees that (i) the Disclosing Party (a) shall be free to conduct the process for a Possible Transaction as it in its sole discretion shall determine (including changing or terminating such process, providing any information to any other person or entity, negotiating with any other person or entity, or entering into a definitive agreement with any other person or entity with respect to any transaction, in each case, at any time and without notice to Recipient or any other person or entity) and (b) shall be free at its sole discretion to at any time accept or reject any proposal relating to the Disclosing Party for any reason without notice to Recipient or any other person or entity, and (ii) Recipient shall have no claim against the Disclosing Party or any of its representatives in connection with any of the foregoing.
No Obligation to Consummate a Possible Transaction. This Agreement binds the parties only with respect to the matters expressly set forth herein. As such, unless and until a definitive written agreement regarding a Possible Transaction between the Disclosing Party or one of its members or affiliates and the Recipient has been executed, (a) neither the Disclosing Party, its members or affiliates, nor the Recipient will be under any legal obligation of any kind whatsoever to negotiate or consummate a Possible Transaction, and (b) Recipient will have no claim whatsoever against the Disclosing Party or its members or affiliates, or any of their respective directors, officers, members, shareholders or representatives arising out of or relating to any Possible Transaction.
Injunctive Relief. Recipient agrees that money damages would not be a sufficient remedy for any breach of this Agreement, and that the Disclosing Party shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach. The parties further agree to waive and to use their best efforts to cause their respective directors, officers, employees or agents to waive, any requirement for the securing or posting of any bond in connection with such remedy. The parties agree that the prevailing party in any enforcement action or proceeding regarding this Agreement shall be entitled to recover all reasonable attorney fees from the non-prevailing party. Such remedies shall not be deemed to be the exclusive remedies for breach of this Agreement, but shall be in addition to all other remedies available at law or in equity to the Disclosing Party.
No Waiver. No failure or delay by the Disclosing Party in exercising any right hereunder shall operate as a waiver thereof, nor shall any single or partial waiver thereof preclude any other or further exercise thereof or the exercise of any other right hereunder.
Miscellaneous. This Agreement (i) shall be governed by, and construed in accordance, with the laws of the State where the assets are located applicable to contracts entered into and to be performed wholly within said State, (ii) constitutes the entire agreement of the parties hereto with respect to the subject matter hereof, superseding all prior agreements, written or oral, (iii) may not be amended, except in writing, and (iv) may be executed in counterparts. If any provision of this Agreement, or the application thereof to any person, entity, place or circumstance, shall be held by a court of competent jurisdiction to be invalid, unenforceable or void, the remainder of this Agreement and such provision as applied to other persons, places or circumstances shall remain in full force and effect.
Assignment. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by any party without the prior written consent of the non-assigning party.
No Waiver of Privilege. To the extent that any Confidential Information includes materials subject to the attorney-client privilege, the Disclosing Party is not waiving, and shall not be deemed to have waived or diminished, its attorney work-product protections, attorney-client privileges or similar protections and privileges as a result of disclosing any Confidential Information to Recipient or any of its Representatives.
Conflict Waiver. To the extent that any Confidential Information includes materials subject to the attorney-client privilege, the Disclosing Party is not waiving, and shall not be deemed to have waived or diminished, its attorney work-product protections, attorney-client privileges or similar protections and privileges as a result of disclosing any Confidential Information to Recipient or any of its Representatives.
Term. This Agreement shall continue for a period of two (2) years after the Effective Date. Any provisions of this Agreement which by their nature extend beyond its termination shall survive and remain in effect with respect to disclosures made before the date of termination, and shall apply to both parties’ successors and assigns. Recipient has executed this Confidentiality Agreement on the Effective Date set forth below. In the event this Agreement has not been terminated on or prior to the end of the two (2) year term, then this Agreement shall automatically renew for an additional two (2) year period.
Effective Date: 2026-03-11
