D1.dossiers: Confidentiality and Non-Disclosure Agreement

CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT

This Confidentiality and Non-disclosure Agreement (the “Agreement”) is made and entered by and between Rose Holdings, LLC d/b/a Drive & Company (“Furnishing Party”), a Kentucky limited liability company having a principal office address of 322 Meridian Ave., Louisville, KY 40207, and the purchaser (“Receiving Party”) (each a “Party” and collectively, the “Parties”).

RECITALS:

WHEREAS, Receiving Party has or will engage Furnishing Party to provide a “D1.Dossier” concerning potential administrative and/or directorial job opportunities and/or athletic programs in Division 1 intercollegiate athletics, which contains confidential, proprietary and other sensitive business information belonging to Furnishing Party, including but not limited to financial information, program information, employee information, and other similar school, program, business or corporate records (collectively “Confidential Information”); and

WHEREAS, each Party acknowledges and agrees that the Confidential Information is confidential and proprietary to Furnishing Party, and Furnishing Party would suffer severe and substantial damage if all or any portion of this Confidential Information were to be disclosed to any person or entity other than as permitted herein; or used for any other purpose than described herein;

THEREFORE, the Parties hereby agree as follows:

The Receiving Party hereby covenants and agrees: (a) to treat as confidential all “Confidential Information” (as hereinafter defined) that is and/or has ever been furnished to the Receiving Party or its authorized representatives by or on behalf of any Furnishing Party, whether prepared by such Furnishing Party or not and irrespective of the form of communication, in accordance with the provisions of this Agreement; (b) to refrain from disclosing to any person or entity, without the prior written consent of the Furnishing Party, the fact that Confidential Information has been made available to the Receiving Party or any aspect of any substantive information contained therein; (c) to exercise the same degree of care for the Furnishing Party’s Confidential Information as the Receiving Party normally exercises with respect to its own proprietary Confidential Information of a like nature, but no less than a reasonable degree of care; and (d) to take or refrain from taking certain other actions as hereinafter set forth.
The term “Confidential Information” shall mean any and all information provided by Furnishing Party and irrespective of whether or not such information specifically is marked “Confidential” or “Confidential Information,” that is not generally known by or available to the public or in the public domain. Confidential Information includes, without limitation: (a) information pertaining to the D1.Dossier and information contained therein, including without limitation financial data, employee data, program data, projections, outlooks, contact information and data compilations, business plans, policies, procedures and manuals, methods of operation and any other information contained in the D1.Dossier or otherwise provided by Furnishing Party; and/or (c) any market development plans and other business strategies provided by the Furnishing Party.
Receiving Party hereby covenants and agrees that it shall use the Confidential Information solely for purposes related to the investigation of potential job and/or business opportunities in Division 1 intercollegiate athletics, and shall not, in any manner or for any reason whatsoever, directly or indirectly, use (or permit the use by others of) all or any portion of the Confidential Information for any other purpose. Receiving Party further covenants and agrees that neither it nor its employees, agents, affiliates or other related persons or entities will disclose any of the Confidential Information in any manner whatsoever; provided, however, that the Receiving Party may disclose Confidential Information to consultants and advisors on a need-to-know basis for the purpose of assisting the Receiving Party in performing the activities contemplated hereunder, so long as the Receiving Party informs its said third-parties of the confidential nature of such information and directs them to treat such information confidentially as required of the Receiving Party herein. The Receiving Party is responsible for breaches of this Agreement by persons to whom it discloses Confidential Information received hereunder. If the Receiving Party is confronted with legal action to disclose Confidential Information received under this Agreement, unless prohibited by applicable law, the Receiving Party shall promptly provide written notice to the Furnishing Party advising of such requested disclosure and shall reasonably assist the Furnishing Party in obtaining a protective order to prevent or limit the requested disclosure. Receiving Party further covenants and agrees from and after the Effective Date it has treated the Confidential Information in a manner consistent with the promises and restrictions of this Agreement and Receiving Party has never shared or disclosed any Confidential Information as prohibited by this Agreement.
This Agreement shall continue and remain in full force and effect until terminated in writing by either Party. At any time upon the written request of the Furnishing Party, Receiving Party shall forthwith return all Confidential Information to the Furnishing Party or, at the Furnishing Party’s option, promptly destroy such Confidential Information; provided, however, that a copy of such Confidential Information may be retained in appropriately safeguarded legal files as may be necessary to fulfill present or future regulatory or other legal requirements. Notwithstanding the delivery or destruction of such Confidential Information, Receiving Party shall continue to be bound by the obligations of confidentiality and the other obligations established hereunder, which confidentiality and non-disclosure obligations shall survive the termination of this Agreement for any reason.
The Parties hereby acknowledge and agree that, by entering into this Agreement, they have established a relationship of trust and confidence with one another with respect to Confidential Information, and that the provisions herein are reasonable and necessary for the protection of the legitimate interests of all of the Parties. Receiving Party further understands and agrees that, in the event of a breach or threatened breach of any of the provisions of this Agreement by Receiving Party, the Furnishing Party would have no adequate remedy at law and would be irreparably harmed in the event that the provisions herein were not specifically enforced. Accordingly, Receiving Party hereby agrees that upon any breach or threatened breach of a provision hereof, the Furnishing Party shall be entitled to equitable relief, including an injunction and specific performance. All remedies provided to the Furnishing Party under this Agreement shall be cumulative with and in addition to, not exclusive nor in lieu of, any other remedies available hereunder, at law, in equity or under any other agreement between the Parties or otherwise, and without limiting the generality of the foregoing, Receiving Party hereby agrees that the obtaining of an equitable remedy by the Furnishing Party shall not preclude the Furnishing Party from instituting and maintaining any proceedings at law or otherwise to recover damages.
The Furnishing Party warrants it has the right to make the disclosures under this Agreement. No other warranties are made with respect to the Confidential Information, including warranties of merchantability, fitness for a particular purpose or noninfringement. Any information provided by the Furnishing Party under this Agreement is provided “AS IS.” The Furnishing Party shall have no liability to the Receiving Party relating to or arising from the Receiving Party’s use of the Confidential Information or from any errors or omissions in, or any business decisions made by the Receiving Party in reliance on any Confidential Information. Nor shall the Furnishing Party be liable for any expenses, losses, damages, or action incurred or undertaken by the Receiving Party as a result of its receipt of the Confidential Information. Furnishing Party does not warrant or guarantee any specific results or outcome relative to the Confidential Information provided to Receiving Party.
All rights, interests, and title in and to Confidential Information shall remain the exclusive property of the Furnishing Party. The Receiving Party agrees that no right or license is granted to the Receiving Party in relation to any part of the Furnishing Party’s Confidential Information. This Agreement does not grant any intellectual property rights or licenses (express or implied), including without limitation rights to patents, patent applications, trademarks, copyright, trade secrets other intellectual property or proprietary rights, to the Receiving Party.
This Agreement shall be governed by and construed and enforced in accordance with the laws of Commonwealth of Kentucky, without regard to conflicts of law principles. If any provision of this Agreement (including any sentence, clause, word or other part) is held to be contrary to law or invalid or unenforceable in any respect, then the remaining provisions hereof shall not be affected but shall remain in full force and effect.
This Agreement constitutes the entire agreement and understanding of the Parties with respect to the subject matter hereof and supersedes any and all other prior agreements or discussions, whether written or oral, relating to the subject matter hereof. Any changes, revisions or amendments to this Agreement are not valid unless in writing and signed by duly authorized representatives of all Parties. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective representatives, successors and permitted assigns; provided, however, that neither this Agreement nor any Party’s rights or obligations hereunder may be assigned or transferred to any other third party without the other Party’s prior written consent.
The Parties hereby covenant and agree to do and perform any and all acts, matters and things, and to make, execute, acknowledge and deliver any and all agreements, documents and instruments, as may from time to time be deemed necessary or expedient, in order to effectuate the intents and purposes of this Agreement.
This Agreement does not create any agency, partnership or joint venture relationship between the Parties.
The signatories below warrant that they are duly authorized to enter into this Agreement on behalf of their respective Parties. This Agreement shall become a binding agreement upon the signing below by duly authorized representatives of both Parties.
This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original as against any Party whose signature appears thereof, and all of which shall together constitute one and the same instrument. This Agreement shall become binding when one or more counterparts hereof, individually or taken together, shall bear the signatures of all of the Parties designated hereon as the signatories. Signatures delivered by facsimile transmission or by electronic scan shall be treated as original signatures for all purposes.
The waiver by a Party of a breach of any provision of this Agreement by the Party will not operate or be interpreted as a waiver of any other or subsequent breach. All waivers must be in writing and signed by a duly authorized representative of the waiving Party.
If any provision of this Agreement is held invalid under any applicable law, such invalidity will not affect any other provision of this Agreement that can be given effect without the invalid provision.
The Parties hereby waive any right to a trial by jury for any and all disputes arising out of or related to the matters contemplated by this Agreement, including without limitation the D1.Dossier and the Confidential Information.

INTENDING TO BE BOUND, the Parties have caused their duly authorized representatives to execute this Agreement on the purchase date.