Flow’s Standard NDA Language
I am being granted access to the information contained in this site (“Data Room”) in order to review certain information of El Capitan Fund Management (the “Firm”), for the purpose of evaluating the purchase of an interest in a one or more private funds (the “Fund” or “Funds” managed by the Firm (“the Purpose”). As a condition of access to the site and in consideration of the mutual covenants and agreements below, by clicking on the “I Accept” button, I acknowledge and agree with the Firm to the following “Conditions of Access”:
Authorization. To the extent I am acting on behalf of an entity, I represent and warrant that I am duly authorized to act on behalf of, and to legally bind, such entity. I agree that such entity shall be legally responsible for any breach of these Conditions of Access by any Authorized User. By clicking on the “I Accept” button below, these Conditions of Access shall bind such entity to the same extent that they bind me.
Confidentiality. All data, materials, and information in the Data Room as well as all other information whether electronic, written or oral communications or information derived from the foregoing (collectively, the “Information”) provided to me or to any of my affiliates, or the respective directors, partners, representatives, members, officers, employees, agents, advisors, accountants, internal or external auditors or legal counsel of the foregoing (collectively, “Authorized Users”) shall be deemed proprietary and highly confidential information regarding the business, prospects, operations and financial condition of the Fund(s), the Firm and other investors in or any current or prospective portfolio companies of the Firm. The Information is for use solely by Authorized Users who have a need to know for the Purpose. I shall maintain the Information in strict confidence using the same degree of care that I use to protect my own most highly confidential information, but in no case less than a reasonable degree of care.
Use. I will use (and will ensure all Authorized Users use) the Information solely in furtherance of the Purpose and not for any other purposes, and will not, without the prior express written consent of the Firm, reproduce or disclose the Information, in whole or in part, in any manner to any person other than an Authorized User that has a need to know such Information for the Purpose and is bound by the terms of these Conditions of Access. I will not reverse engineer any Information. I will not attempt to download, scan, copy, print or otherwise capture any of the Information, except that I may print Information for which the print capability has been enabled as indicated by the site index. I will not attempt to circumvent any of the security features of the site, and will not enable or allow others to access the site using my authorization to the site. I agree to immediately comply with any request by the Firm to promptly return or destroy all copies of the Information, and all copies, extracts, summaries, derivations and any other objects or items in which the Information may be contained or embodied as well as all data, information, records and materials developed therefrom. Any restrictions contained herein shall not apply to any Information that I can show by clear and convincing documentation either is currently or subsequently becomes generally publicly known or readily publicly available without any act, omission, or breach of these Conditions of Access by me. Notwithstanding the foregoing, I may make disclosures of Information required by court order or applicable law provided that I (to the extent legally permissible): (i) give the Fund(s) prior written notice of any required disclosure; (ii) use diligent efforts to limit disclosure to only such portion of the Information that is legally required to be disclosed and to obtain confidential treatment or a protective order for such Information; and (iii) allow the Firm to participate in the proceeding.
Disclosure. I am not subject to any legal, contractual or other obligations to disclose Information that would cause a breach of these Conditions of Access. I will promptly notify the Firm of any unauthorized access, release, disclosure or use of the Information. I will also promptly notify the Firm of any request to disclose any Information prior to such disclosure. I agree to take appropriate measures to protect the Information provided to me and any related Authorized User from unauthorized disclosure or use of any Information and will be responsible for any breaches of these Conditions of Access by me and any related Authorized Users.
Disclaimer. Access to and all Information presented in the Data Room is provided “as is” without any warranties, express or implied. The Firm hereby disclaims all representations and warranties of any kind, including without limitation the implied warranties of non-infringement, merchantability and fitness for a particular purpose. The Firm will not be liable to me, any Authorized User, or any other person for damages arising from any use of the Information. I understand and agree that the Firm may modify or restrict the Information presented in the Data Room without prior notice to me. The Firm may elect, in its sole and absolute discretion, to cease providing me with Information at any time. Any Information provided to me does not create an obligation on the part of the Firm to continue delivery of additional Information or to enter into any agreement with me. Certain statements provided with the Information that are not historical facts may contain forward-looking statements regarding the Firm future plans, objectives and predicted performance. Any such forward-looking statements are based on assumptions that the Firm believes are reasonable, but are subject to a wide range of risks and uncertainties and, therefore, the Firm provides no promises or assurances that actual results will not differ from those expressed or implied by such forward-looking statements. Any Information provided with respect to an entity in the process of formation shall be qualified in its entirety to the definitive organizational documents and other agreements concerning such entity.
Miscellaneous. These Conditions of Access are governed by the laws of the State of Illinois. Any modification or waiver of these terms must be in writing signed by both me and the Firm. If any provision is found to be invalid or unenforceable, such provision will be limited or deleted to the minimum extent necessary so that the remaining terms remain in full force and effect. The obligations hereunder shall be continuing and shall survive termination of these Conditions of Access and any other agreement between me and the Firm, if any. To the extent I become an investor in the Fund(s), my confidentiality obligations regarding the Information will be governed by the Fund(s)’s respective governing documents to the extent that such Information is addressed by the confidentiality obligations in such governing documents.
By clicking on the “I Accept” button below, I acknowledge that I have read, understand, and agree to the above terms and conditions.