A. The Seller and the Purchaser are contemplating a possible transaction (the “Transaction”) with
respect to: Marketing Services.
B. In connection with the Transaction (the “Permitted Purpose”), the Purchaser has requested
certain confidential information (the “Confidential Information”).
IN CONSIDERATION OF and as a condition of the Seller providing the Confidential Information to
the Purchaser in addition to other valuable consideration, the receipt and sufficiency of which
consideration is hereby acknowledged, the parties to this Agreement agree as follows:
1. All written and oral information and materials disclosed or provided by the Seller to the
Purchaser under this Agreement constitute Confidential Information regardless of whether such
information was provided before or after the date of this Agreement or how it was provided to
2. ‘Confidential Information’ means all data and information relating to the transaction and the
Seller, including but not limited to, the following:
a. ‘Customer Information’ which includes names of customers of the Seller, their
representatives, all customer contact information, contracts and their contents and parties,
customer services, data provided by customers and the type, quantity and specifications of
products and services purchased, leased, licensed or received by customers of the Seller;
b. ‘Intellectual Property’ which includes information relating to the Seller’s proprietary rights
prior to any public disclosure of such information, including but not limited to the nature
of the proprietary rights, production data, technical and engineering data, technical
concepts, test data and test results, simulation results, the status and details of research
and development of products and services, and information regarding acquiring,
protecting, enforcing and licensing proprietary rights (including patents, copyrights and
c. ‘Marketing and Development Information’ which includes marketing and development
plans of the Seller, price and cost data, price and fee amounts, pricing and billing policies,
quoting procedures, marketing techniques and methods of obtaining business, forecasts
and forecast assumptions and volumes, and future plans and potential strategies of the
Seller which have been or are being discussed;
d. ‘Business Operations’ which includes internal personnel and financial information of the
Seller, vendor names and other vendor information (including vendor characteristics,
services and agreements), purchasing and internal cost information, internal services and
operational manuals, external business contacts including those stored on social media
accounts or other similar platforms or databases operated by the Seller, and the manner
and methods of conducting the Seller’s business;
e. ‘Product Information’ which includes all specifications for products of the Seller as well as
work product resulting from or related to work or projects of the Seller, of any type or
form in any stage of actual or anticipated research and development;
f. ‘Production Processes’ which includes processes used in the creation, production and
manufacturing of the work product of the Seller, including but not limited to, formulas,
patterns, molds, models, methods, techniques, specifications, processes, procedures,
equipment, devices, programs, and designs;
g. ‘Service Information’ which includes all data and information relating to the services
provided by the Seller, including but not limited to, plans, schedules, manpower,
inspection, and training information;
h. ‘Proprietary Computer Code’ which includes all sets of statements, instructions or
programs of the Seller, whether in human readable or machine readable form, that are
expressed, fixed, embodied or stored in any manner and that can be used directly or
indirectly in a computer (‘Computer Programs’); any report format, design or drawing
created or produced by such Computer Programs; and all documentation, design
specifications and charts, and operating procedures which support the Computer
i. ‘Computer Technology’ which includes all scientific and technical information or material
of the Seller, pertaining to any machine, appliance or process, including but not limited to,
specifications, proposals, models, designs, formulas, test results and reports, analyses,
simulation results, tables of operating conditions, materials, components, industrial skills,
operating and testing procedures, shop practices, know-how and show-how;
j. ‘Accounting Information’ which includes, without limitation, all financial statements,
annual reports, balance sheets, company asset information, company liability information,
revenue and expense reporting, profit and loss reporting, cash flow reporting, accounts
receivable, accounts payable, inventory reporting, purchasing information and payroll
information of the Seller; and
k. Confidential Information will also include any information that has been disclosed by a
third party to the Seller and is protected by a non-disclosure agreement entered into
between the third party and the Seller.
3. Confidential Information will not include the following information:
a. Information that is generally known in the industry of the Seller;
b. Information that is now or subsequently becomes generally available to the public
through no wrongful act of the Purchaser;
c. Information rightly in the possession of the Purchaser prior to the disclosure to the
Purchaser by the Seller;
d. Information that is independently created by the Purchaser without direct or indirect use
of the Confidential Information; or
e. Information that the Purchaser rightfully obtains from a third party who has the right to
transfer or disclose it.
4. Except as otherwise provided in this Agreement, the Confidential Information will remain the
exclusive property of the Seller and will only be used by the Purchaser for the Permitted
Purpose. The Purchaser will not use the Confidential Information for any purpose that might be
directly or indirectly detrimental to the Seller or any associated affiliates or subsidiaries.
5. The obligations to ensure and protect the confidentiality of the Confidential Information imposed
on the Purchaser in this Agreement and any obligations to provide notice under this Agreement
will survive the expiration or termination, as the case may be, of this Agreement and those
obligations will last indefinitely.
6. The Purchaser may disclose any of the Confidential Information:
a. to such employees, agents, representatives and advisors of the Purchaser that have a need
to know for the Permitted Purpose provided that:
i. the Purchaser has informed such personnel of the confidential nature of the
ii. such personnel agree to be legally bound to the same burdens of non-disclosure
and non-use as the Purchaser;
iii. the Purchaser agrees to take all necessary steps to ensure that the terms of this
Agreement are not violated by such personnel; and
iv. the Purchaser agrees to be responsible for and indemnify the Seller for any breach
of this Agreement by their personnel.
b. to a third party where the Seller has consented in writing to such disclosure; and
c. to the extent required by law or by the request or requirement of any judicial, legislative,
administrative or other governmental body.
7. The Purchaser agrees to retain all Confidential Information at their usual place of business and to
store all Confidential Information separate from other information and documents held in the
same location. Further, the Confidential Information may not be used, reproduced, transformed,
or stored on a computer or device that is accessible to persons to whom disclosure may not be
made, as set out in this Agreement.
8. The Purchaser, their affiliates, subsidiaries and representatives will not, from the date of this
Agreement until January 28, 2022, directly or indirectly solicit for employment or employ any
person who is now employed or retained by the Seller or any affiliate of the Seller without the
prior written consent of the Seller.
Ownership and Title
9. Nothing contained in this Agreement will grant to or create in the Purchaser, either expressly or
impliedly, any right, title, interest or license in or to the intellectual property of the Seller.
10. The Purchaser agrees and acknowledges that the Confidential Information is of a proprietary and
confidential nature and that any disclosure of the Confidential Information to a third party in
breach of this Agreement cannot be reasonably or adequately compensated for in money
damages and would cause irreparable injury to the Seller. Accordingly, the Purchaser agrees that
the Seller is entitled to, in addition to all other rights and remedies available to it at law or in
equity, an injunction restraining the Purchaser and any agents of the Purchaser, from directly or
indirectly committing or engaging in any act restricted by this Agreement in relation to the
Return of Confidential Information
11. The Purchaser will keep track of all Confidential Information provided to them and the location
of such information. The Seller may at any time request the return of all Confidential
Information from the Purchaser. Upon the request of the Seller, or in the event that the Purchaser
ceases to require use of the Confidential Information, or upon the expiration or termination of
this Agreement, the Purchaser will:
a. return all Confidential Information to the Seller and will not retain any copies of this
b. destroy or have destroyed all memoranda, notes, reports and other works based on or
derived from the Purchaser’s review of the confidential information; and
c. provide a certificate to the Seller that such materials have been destroyed or returned, as
the case may be.
12. In the event that the Purchaser is required in a civil, criminal or regulatory proceeding to disclose
any part of the Confidential Information, the Purchaser will give to the Seller prompt written
notice of such request so the Seller may seek an appropriate remedy or alternatively to waive the
Purchaser’s compliance with the provisions of this Agreement in regards to the request.
13. If the Purchaser loses or makes unauthorized disclosure of any of the Confidential Information,
the Purchaser will immediately notify the Seller and take all reasonable steps necessary to
retrieve the lost or improperly disclosed Confidential Information.
14. Any notices or delivery required in this Agreement will be deemed completed when handdelivered, delivered by agent, or seven (7) days after being placed in the post, postage prepaid, to
the parties at the addresses contained in this Agreement or as the parties may later designate in
15. The addresses for any notice to be delivered to any of the parties to this Agreement are as
a. 3STEPS4WARD A Marketing Company
3001 Bishop Drive Suite 300 San Ramon California 94583
16. In providing the Confidential Information, the Seller makes no representations, either expressly
or impliedly as to its adequacy, sufficiency, completeness, correctness or its lack of defect of any
kind, including any patent or trademark infringement that may result from the use of such
17. Either party may terminate this Agreement by providing written notice to the other party. Except
as otherwise provided in this Agreement, all rights and obligations under this Agreement will
terminate at that time.
18. Except where a party has changed its corporate name or merged with another corporation, this
Agreement may not be assigned or otherwise transferred by either party in whole or part without
the prior written consent of the other party to this Agreement.
19. This Agreement may only be amended or modified by a written instrument executed by both the
Seller and the Purchaser.
20. This Agreement will be construed in accordance with and governed by the laws of the State of
21. Time is of the essence in this Agreement.
22. This Agreement may be executed in counterpart.
23. Headings are inserted for the convenience of the parties only and are not to be considered when
interpreting this Agreement. Words in the singular mean and include the plural and vice versa.
Words in the masculine mean and include the feminine and vice versa.
24. The clauses, paragraphs, and subparagraphs contained in this Agreement are intended to be read
and construed independently of each other. If any part of this Agreement is held to be invalid,
this invalidity will not affect the operation of any other part of this Agreement.
25. The Purchaser is liable for all costs, expenses and expenditures including, and without limitation,
the complete legal costs incurred by the Seller in enforcing this Agreement as a result of any
default of this Agreement by the Purchaser.
26. The Seller and the Purchaser acknowledge that this Agreement is reasonable, valid and
enforceable. However, if a court of competent jurisdiction finds any of the provisions of this
Agreement to be too broad to be enforceable, it is the intention of the Seller and the Purchaser
that such provision be reduced in scope by the court only to the extent deemed necessary by that
court to render the provision reasonable and enforceable, bearing in mind that it is the intention
of the Purchaser to give the Seller the broadest possible protection against disclosure of the
27. No failure or delay by the Seller in exercising any power, right or privilege provided in this
Agreement will operate as a waiver, nor will any single or partial exercise of such rights, powers
or privileges preclude any further exercise of them or the exercise of any other right, power or
privilege provided in this Agreement.
28. This Agreement will inure to the benefit of and be binding upon the respective heirs, executors,
administrators, successors and assigns, as the case may be, of the Seller and the Purchaser.
29. This Agreement constitutes the entire agreement between the parties and there are no further
items or provisions, either oral or otherwise