CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT

THIS AGREEMENT, made and entered into as of today’s date, by and between PERSHING YOAKLEY & ASSOCIATES, P.C., a professional corporation (hereinafter referred to as “PYA”), and the entity identified in the Agency Name field of this electronic form (hereinafter referred to as the “Organization”).

W I T N E S S E T H:

WHEREAS, PYA is in the business of providing consulting services and public accounting services (the “Business”); and

WHEREAS, PYA has implemented a program (the “Program”) whereby it will offer the Organization a complimentary evaluation (the “Evaluation”) of its readiness for an assessment of the Organization’s implementation of ALTA Best Practices, in order to provide feedback on whether the Organization’s appears prepared for an assessment of its compliance with the ALTA Best Practices Framework; and

WHEREAS, the Organization is willing to participate in the Program, and PYA is willing to provide information concerning the Evaluation, and both parties are otherwise willing to exchange “Confidential Information” (as defined below) with each other, subject to the terms and conditions of this Agreement;

NOW, THEREFORE, for and in consideration of the above premises and the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which being hereby acknowledged, the parties hereto do hereby agree as follows

  1. Definitions.
    • (a) “Confidential Information” shall mean any and all data and information, including trade secrets, (i) relating to the Program or to the Evaluation, or (ii) otherwise relating to the Business or to PYA or the Organization itself, and disclosed by one party hereto to the other, which (A) has value to the disclosing party and is not generally known to its competitors, and (B) is treated by the disclosing party as confidential (whether or not such material or information is marked “confidential”), including, but not limited to, the existence of the Program and the Evaluation and discussions between PYA and the Organization; provided, however, that Confidential Information shall not include any information or documentation that is (i) in the lawful possession of PYA or the Organization prior to the disclosure to such party by the other party; (ii) independently developed by PYA or the Organization; (iii) publicly disclosed by PYA or the Organization, prior to disclosure to the other party hereto; (iv) rightfully received by PYA or the Organization from a third party without any restriction on disclosure or use; or (v) approved for release or disclosure by PYA or the Organization, as the disclosing party
    • (b) “Nondisclosure Period” shall mean the period beginning with the date of this Agreement and ending on the fourth (4th) anniversary of the date of this Agreement.
  2. Obligations of the Receiving Party. In consideration of the Organization’s participation in the Program and PYA’s provision of the Evaluation, as well as the disclosure of Confidential Information by each party hereto to the other, PYA and the Organization agree to treat such Confidential Information in strict and total confidence throughout the Nondisclosure Period and agree to undertake the following additional obligations with respect to the Confidential Information throughout the Nondisclosure Period:
    • (a) to use the Confidential Information for the sole purpose of participating in the Program and providing the Evaluation in good faith;
    • (b) not to copy, in whole or in part, the Confidential Information, except as authorized under this Agreement;
    • (c) not to disclose the Confidential Information to any person or organization outside of PYA or the Organization, other than to each party’s legal counsel and financial advisors; and
    • (d) to limit dissemination of the Confidential Information, within PYA and the Organization, to only those employees and agents of PYA and the Organization who have an absolute need to know such Confidential Information in order to conduct the activities contemplated by this Agreement, and then to disclose such Confidential Information only to the extent that such employees or agents need to know Confidential Information in order to do so.
  3. Scope of Evaluation. The Evaluation to be provided by PYA to the Organization will not be a comprehensive assessment of the Organization’s implementation of ALTA Best Practices Framework; rather, PYA will provide the Organization with feedback on whether its implementation, based on responses provided by the Organization, appears to address the minimum requirements of the ALTA Best Practices Framework. It is possible that, had a more comprehensive evaluation been performed, other deficiencies or omissions might have been identified. PYA’s feedback is intended for internal use only and should not be shared with others outside of the Organization. The Evaluation is not an ALTA Best Practices Certification nor is it an examination, review, or audit. PYA will not express an opinion or any other form of assurance with respect to any matters as a result of the Evaluation.
  4. The restrictions and obligations of this Agreement shall survive any expiration, termination or cancellation of this Agreement and shall continue to bind the parties hereto, and their lawful successors and assigns.
  5. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Tennessee.
  6. Equitable Relief. The parties acknowledge that a violation by either party of Paragraph 2 of this Agreement could cause irreparable injury to the other party hereto and that there is no adequate remedy at law for such violation. Accordingly, if either party shall breach or threaten to breach any of the provisions of this Agreement, the other party hereto, in addition to any other remedies it may have at law or in equity, shall be entitled to a restraining order, injunction or similar remedy in order to specifically enforce the provisions of this Agreement, without being required to post a bond therefor.
  7. In the event that any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision or provisions had never been contained herein.
  8. Entire Agreement; Amendments. This Agreement represents the entire agreement of the parties hereto with respect to the subject matter hereof, and supersedes all prior agreements with respect thereto. This Agreement shall not be amended or modified, except in writing signed by each of the parties hereto.

In Witness Whereof, the parties have executed this Agreement, as of today’s date.