(hereinafter referred to as “You”, “Your” or “Yourself”) has requested that Client and Aon make the Report available to You in connection with Your evaluation of the Transaction. In exchange for Client and Aon permitting You access to the Report as well as other Confidential Information (as defined herein) You, on behalf of Yourself, Your parents, subsidiaries, affiliates, directors, officers, employees, agents and Representatives, hereby agree to the following:
1) “Confidential Information” for the purpose of this letter agreement shall, in addition to the Report, also mean any information obtained by You from, or disclosed to You by, Aon or Client pursuant to this letter agreement relating to the Transaction. The term “Confidential Information” shall also include the fact that the Confidential Information has been made available to You, the fact that discussions with respect to the Transaction are taking place or other facts with respect to these discussions, including the status thereof; notwithstanding the foregoing, Confidential Information does not include information which (i) is or has become generally available to the public other than by unauthorized disclosure by You or Your Representatives (as defined below), or (ii) is or becomes available to You on a non-confidential basis from a source that is not known by You to be prohibited from disclosing the same.
2) You hereby agree that You shall use the Confidential Information solely for the purpose of evaluating and or performing the Transaction, that Confidential Information shall not be disclosed to any third party, that the Confidential Information shall be kept confidential, and that You shall not disclose any of the Confidential Information in any manner, provided, however, that (a) Confidential Information may be disclosed to Your directors, officers, employees, attorneys and accountants (hereinafter collectively “Representatives”) who need to know such information for the purpose of Your evaluating and/or performing the Transaction (it being understood that prior to such disclosure, the Representatives shall be informed of the confidential nature of the Confidential Information and shall agree, in writing, to be bound by the provisions set forth herein), (b) disclosure of certain Confidential Information may be made if Client and Aon have each given their prior written consent, and (c) disclosure of Confidential Information may be made to the extent, and only to the extent, required by law or legal process, provided that, to the extent permitted, Client is given prompt notice in writing of the existence, terms and circumstances of any such requirement prior to You making any disclosure pursuant to this clause (d) and that You provide reasonable opportunity and assistance to Client, at Client’s expense, in any attempt by Client to prevent or limit such disclosure. In the absence of a protective order or other remedy or the receipt of a waiver by Client, You and/or Your Representatives shall disclose only that portion of the Confidential Information that is advised by counsel to be legally required and You shall cooperate with Client’s efforts, at Client’s expense, to preserve the confidentiality of the Confidential Information. You further agree that without prior written consent of Client, and Aon, You and Your Representatives will not disclose to any other person the fact that the Confidential Information has been made available to You, that discussions or negotiations are taking place concerning the Transaction, or any of the terms, conditions or other facts with respect thereto, unless in the opinion of Your counsel such disclosure is required by law, and then with only as much prior written notice to Client as is practicable under the circumstances.
3) If You decide not to proceed with the Transaction, You shall promptly inform Client of that decision. At such time (or at any time upon the request of Client or Aon prior to the consummation of a Transaction involving You), You shall either, at Your option, (i) promptly destroy all written Confidential Information in Your possession or (ii) return to Client or Aon all Confidential Information including without limitation, all memoranda, notes and information. You shall also provide Client and Aon with written verification certifying that all Confidential Information has been properly disposed of. You will continue to be bound by the obligations of confidentiality and other obligations hereunder. Notwithstanding the foregoing, You may retain, in Your confidential legal files, a single copy of the Confidential Information.
4) You understand and acknowledge that the Confidential Information is being provided to You without any representation or warranty, express or implied, as to its accuracy or completeness on the part of Client or Aon, nor as to its suitability for Your needs, and in no event shall Client or Aon be liable to You for any reason in connection with their provision of the Confidential Information to You. If, notwithstanding the terms of this letter, You do rely upon any of the Confidential Information for any purpose, You will do so entirely at Your own risk, and to the fullest extent permitted by law, Client and Aon owe no duty to You, whether in contract or tort or under statute or otherwise (including in negligence) with respect to or in connection with the Confidential Information or its provision to You. You also agree and acknowledge that (i) any reports, documents, or Confidential Information provided by Aon to Client were provided as of the date they were dated or delivered, (ii) were solely for the benefit of Client, and (iii) were not prepared for You. You agree that You will not rely on or quote any such reports, documents, or Confidential Information, and You acknowledge that neither Aon, nor Client, has or undertakes any obligation to advise You of facts, circumstances, events or developments which hereafter may be brought to their attention and which may alter, affect or modify any such reports, documents, or Confidential Information. You further agree that You will not bring any actions, proceedings or claims against Client or Aon where the action, proceeding or claim in any way relates to or concerns or is connected with the use of or reliance on the Confidential Information. To the fullest extent permitted by law, neither Client nor Aon has any liability to You whatsoever for any loss or damage suffered or costs incurred by You, arising out of or in connection with the Confidential Information or its use, however such loss or damage is caused. To the fullest extent permitted by law You agree to indemnify and hold harmless Client and Aon and any of their respective subsidiaries, affiliates, parents, successors, directors, officers, employees and agents, against any action, proceeding or claims brought or threatened against Client and/or Aon, and any and all loss, damage and expense (including legal expenses) relating thereto where such action, proceedings or claim has arisen out of or results from or is connected with the use of, or reliance upon, the Confidential Information or any part thereof by any person or entity receiving it where such actions, proceedings or claims would not have arisen but for Your failure or the failure of any of Your directors, officers, employees, affiliates and/or Representatives, to comply with the terms of this letter. If any payment is made by You under this paragraph, You will not seek recovery of that payment from Client and/or Aon at any time.
5) This agreement is for the benefit of Client and Aon, and their respective successors, agents and assigns.
Please confirm Your agreement to and acceptance of the provisions of this letter by signing, dating and returning to us a copy of this letter. We will then permit You access to the Confidential Information supplied by the client.
Please sign the acknowledgement below and fax this letter to us, attention Peter Cross via email: peter.g.cross@aon.com. If you have any questions or would like any additional information concerning the foregoing, please call Peter Cross at 214-205-5659.
Sincerely,