By clicking “Join the syndicate” at the website www.tolokа.vc (the "Site") and checking the checkbox “I agree” you agree to the terms of this Non-Disclosure Agreement (the “Agreement”) is executed at the date when clicked “Join the syndicate” and you are potential investor in Toloka.VC projects (the “Investor” or “Receiving party”) and Toloka LLC, a Delaware company (the “Company” or “Disclosing party”). The Company and the Investor are collectively referred to as the “Parties” and individually as a “Party.”
a. The Parties desire to exchange certain information in order to enable them to evaluate the possibility of entering into a negotiated business transaction (the “Transaction”).
b. During the course of any discussions or negotiations regarding the Transaction, the Investor and the Company will from time to time each provide the other with confidential information.
c. Each of the Parties acknowledges and agrees that the confidential information provided by the other Party, before or after the execution of this Agreement, is proprietary and highly confidential and that the unrestricted disclosure of such confidential information by one Party would result in substantial and irreparable harm to the other Party, which harm would be extremely difficult to quantify.
“Disclosing Party” will mean a Party to this Agreement that provides or discloses its Evaluation Material to a Receiving Party.
“Evaluation Material” means any and all information, in any form or medium, written or oral, concerning or relating to the Disclosing Party (whether prepared by the Disclosing Party, its Representatives or otherwise, and irrespective of the form or means of communication provided that, in each case, it is labeled or otherwise identified as confidential) that is furnished to or on behalf of the Receiving Party by or on behalf of the Disclosing Party. The term “Evaluation Material” will not include information that: (a) is or becomes available to the public generally, other than as a result of disclosure by the Receiving Party or one of its Representatives in breach of the terms of this Agreement; (b) becomes available to the Receiving Party from a source other than the Disclosing Party or one of its Representatives; or (c) has been independently acquired or developed by the Receiving Party.
“Receiving Party” will mean a Party that receives Evaluation Material from the other Party pursuant to this Agreement or related to the Transaction.
“Representatives” means the directors, officers, partners, managers, members, employees, advisors, agents, affiliates and other representatives of a Party, including without limitation attorneys, accountants, consultants, financial advisors and sources of financing.
(а) The Parties agree that the Receiving Party will not, and will not permit any of its Representatives to, disclose any Evaluation Material in any manner whatsoever; provided however that the Receiving Party and its Representatives may disclose Evaluation Material, upon receipt of the written consent of the Disclosing Party, as follows:
(i) to such of its Representatives who need such information for the purpose of evaluating and negotiating the possible Transaction; it is being understood that such Representatives will be informed by the Receiving Party of the confidential nature of such information;
(ii) as expressly contemplated by this Agreement; or
(iii) if the Disclosing Party gives its consent to such disclosure.
(b) If the Receiving Party is requested or required to disclose any Evaluation Material by oral questions, interrogatories, requests for information or other documents in legal proceedings, subpoena, under request of the state authorities, such Party will provide the Disclosing Party if such is not legally prohibited with prompt notice of any such request or requirement so that the Disclosing Party has an opportunity to seek a protective order or other appropriate remedy at its sole expense or waive compliance with the provisions of this Agreement. If the Disclosing Party has not secured a protective order or other appropriate remedy, and the Receiving Party or one of its Representatives is nonetheless then legally compelled to disclose any Evaluation Material, the Receiving Party or such Representative may, without liability hereunder, disclose that portion of the Evaluation Material that it reasonably believes is necessary to be disclosed.
(с) Upon the written request of the Disclosing Party, the Receiving Party will promptly return or destroy (as requested by the Disclosing Party) all Evaluation Material furnished to it or to any of its Representatives, together with all copies of such Evaluation Material in the possession or control of the Receiving Party. Notwithstanding the destruction of the Evaluation Material as contemplated by this subsection, the Receiving Party will continue to be bound by the terms of this Agreement with respect thereto, including all obligations of confidentiality.
(d) Nothing in this Agreement will be deemed to limit or restrict the Receiving Party from disclosing any information in any action or proceeding by the Receiving Party to enforce any rights that the Receiving Party may have against the Disclosing Party.
(е) Notwithstanding anything in this Agreement to the contrary, the Parties agree that each Party (and each employee, representative, and other agent of such Party) may disclose, upon receipt of the written consent of the Disclosing Party, to any and all persons, without limitation of any kind, the tax treatment and tax structure of the Transaction and all materials of any kind (including opinions or other tax analyses) that are provided to such Party or such person relating to such tax treatment and tax structure, except to the extent necessary to comply with any applicable laws
(а) Each Party understands and acknowledges that the other Party will not be committed or liable in any way with respect to any Transaction or to any matters discussed or negotiated unless and until a formal written agreement with respect to a Transaction is executed by an authorized officer of each Party, and that neither Party will have any liability to the other Party in the event that, for any reason whatsoever, no such formal written agreement is executed, except for any breach of the terms of this Agreement. Neither Party will have any obligation to commence or continue discussions or negotiations, to provide or receive any Evaluation Material, to reach or execute any agreement or to refrain from entering into or continuing any discussions, negotiations and/or agreements at any time with any third party, unless and until a formal written agreement is executed by the Parties, and only to the extent provided in such written agreement. Except as set forth in any formal written agreement executed by the Parties, the Receiving Party will not be entitled to rely on any statement, promise, agreement or understanding, whether written or oral, or any custom, usage of trade, course of dealing or conduct. In addition, each Party understands and acknowledges that, except as may be set forth in a separate written agreement entered into after the date hereof, neither the Disclosing Party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of any Evaluation Material, and that neither the Disclosing Party nor any of its Representatives will have any liability whatsoever to the Receiving Party or to any of its Representatives relating to or resulting from the Evaluation Material or any errors in such materials or omissions from such materials.
(b) With respect to any information that is subject to the provisions of the Evaluation Material, each Party may disclose such Evaluation Material to its Representatives who have a need to know Evaluation Material and who either agree to be bound by the Agreement or have an existing fiduciary, contractual or other duty to the applicable Party to maintain the confidentiality of the Evaluation Material in a manner consistent with the Agreement.
(c) The Company acknowledges that the Investor is in the business of evaluating, making and managing investments in businesses that may be in competition with the Company, and the Company agrees that this Agreement in no way limits or restricts the Investor’s right or ability, now or in the future, with respect to evaluating, making or managing such investments.
(d) To the extent this Agreement purports to be binding upon the Investor’s affiliates, the Company agrees that any non-wholly owned company in which the Investor may now or in the future have an investment will not be deemed subject to or bound by this Agreement unless and only to the extent such Investor has been provided Evaluation Material by the Company.
(e) No Indirect or Consequential Damages.
Neither party shall be liable to the other for any indirect, incidental, consequential, special, exemplary, or punitive damages, including but not limited to loss of profits, loss of revenue, loss of business opportunities, or loss of data, arising out of or relating to this Agreement or the use or disclosure of Evaluation Material, even if advised of the possibility of such damages. The total aggregate liability of either party arising out of or relating to this Agreement, whether in contract, tort, or otherwise, shall not exceed the value of the investment the Investor made based on the relevant Evaluation Material for a specific investment to which the alleged breach of confidentiality pertains, as agreed upon by both parties or as documented prior to disclosure.
The Parties agree that money damages would not be a sufficient remedy for any breach of this Agreement by any Party and that the non-breaching Party be entitled to equitable relief, including injunction and specific performance, as a remedy of such breach. Such remedies will not be deemed to be the exclusive remedies for a breach of this Agreement but will be in addition to all other remedies available at law or equity to the non- breaching Party
No failure or delay by either Party in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other exercise thereof or the exercise of any other right, power or privilege hereunder. No alteration, amendment, change or supplement to this Agreement will be binding or effective unless the same is set forth in writing signed by a duly authorized representative of each Party. No provision hereof or right hereunder may be waived except in writing.
All notices, demands or other communications to be given or delivered under or by reason of the provisions of this Agreement will be in writing and will be deemed to have been given when delivered.
(i) via email (with return receipt);
(ii) personally to the recipient, one business day after being sent to the recipient by reputable overnight courier service (charges prepaid); or
(iii) five business days after being mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid. Such notices, demands and other communications will be sent to each Party at the address indicated on the signature page to this Agreement or to such other address or to the attention of such other person as the recipient Party has specified by prior written notice to the sending Party.
Consent to Jurisdiction; Waiver of Jury Trial.
The validity, interpretation, performance and enforcement of this Agreement will be governed by the laws of the State of Delaware without regard to the conflicts of laws principles thereof that would give rise to the application of the domestic substantive law of any other jurisdiction. Each Party hereby irrevocably and unconditionally consents to the exclusive jurisdiction of the federal and state courts sitting in the State of Delaware for any action, suit or proceeding arising out of or related to this Agreement. Each Party further hereby irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in the federal and state courts sitting in the State of Delaware, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in any inconvenient forum Non- prevailing party shall compensate all reasonable attorney, arbitration and other related expenses incurred by the prevailing party in connection with any controversy or claim settled in accordance herein. EACH PARTY HEREBY KNOWINGLY AND VOLUNTARILY WAIVES TRIAL BY JURY IN ANY ACTION RELATING TO THIS AGREEMENT.
The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the Parties and no presumption or burden of proof will arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. Any reference to any federal, state, local or foreign statute or law will be deemed also to refer to all rules and regulations promulgated under laws, unless the context requires otherwise.
For the convenience of the Parties, any number of counterparts of this Agreement may be executed by the Parties. Each such counterpart will be, and will be deemed to be, an original instrument, but all such counterparts taken together will constitute one and the same Agreement. A facsimile copy of this Agreement or any signatures hereon will be considered as originals for all purposes. The present Contract is made up in two copies, one copy for each Party, in both English and Ukraine. Each text is authentic and has equal legal force. In case of disagreement between the English and Ukrainian versions of the Contract, the preference will be given to English version.
This Agreement embodies the entire agreement and understanding of the Parties and supersedes any and all prior agreements, arrangements and understandings, written or oral, relating to the matters provided for in this Agreement.
Unless a shorter period is specified elsewhere in this Agreement, all obligations of the Parties will expire five (5) years from the date first written above.
IN WITNESS WHEREOF, the Parties have executed or caused this Nondisclosure Agreement to be executed by their duly authorized representatives as of the day and year written below.
DATE: the day Investor clicked “Join the syndicate” at the Site and checked the checkbox “I agree” at the Site.
Disclosing party:
Tolokа LLC
Адреса: 16192 Coastal Highway, Lewes, Delaware, 1995
Name: Igor Shoifot
Title: General Partner
Receiving party:
Name: provided via the Site
Adress: provided via the Site
Signature: signed by clickig “Join the syndicate” at the Site and checking the checkbox “I agree” at the Site.