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======= CONFIDENTIALITY DISCLAIMER =======

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Information contained herein is the sole and exclusive property of BYC, LLC. The information and documents within this protected portion of the website are confidential; they shall not be disclosed to a third party or used for any reason except for the purposes of providing clarity in pursuit of agreement with BYC, LLC. Your retention, possession or use of this information constitutes your acceptance of these terms.  If you have already signed a hard copy Confidentiality Agreement, BYC, LLC acknowledges that the signed hard copy superscedes the Agreement on this site:

MUTUAL CONFIDENTIALITY and NON-COMPETE AGREEMENT

THIS CONFIDENTIALITY AGREEMENT is agreed to by and between you and your company (“Company”), and BYC, LLC ("BYC") .

W I T N E S S E T H :

WHEREAS, in connection with a possible transaction between Company and BYC, BYC may make available to Company and Company may make available to BYC certain nonpublic confidential information pertaining to an assisted-living / memory care project located in Texas ("Project"); and

WHEREAS, in consideration for the disclosure of such information, each party has agreed to maintain the confidentiality of such information upon the terms contained herein and to abide by the other covenants and agreements set forth below.

WHEREAS, you understand that you have been given a username and a password ("Credentials") with which to access this site and its corresponding information contained here in.

NOW THEREFORE, the parties hereto agree as follows:

1.     TERM.  This Agreement and the restrictions contained herein shall terminate three (3) years following the date and time of the most recent use of Credentials.

2.     TERMINATION BY MUTUAL CONSENT. The agreement shall be deemed terminated upon expiration of the Term or by written consent of both parties.

3.      BYC CONFIDENTIAL INFORMATION.  All information concerning BYC, it's subsidiaries, partnerships and Project(s), furnished to Company, orally or in writing, or otherwise obtained by or made available to Company regarding BYC and its efforts, including, without limitation to, financial statements and other financial and accounting data, trade secrets, BYC prepared materials, executive summaries, project information memorandum, contracts, assets, related property details, customers, prospective customers, supplier lists, service providers, marketing plans and strategies, feasibility studies, market demand studies, marketing studies, appraisals, architected plans, personnel information, know-how, inventory control procedures, manufacturer relationships and any and all other private, non-public or other confidential proprietary information relating to BYC or it's Project(s) ("BYC Confidential Information"); excluding, however, information which (i) is or becomes generally available to the public, other than as a result of a disclosure by Company, (ii) was provided to or otherwise made available to Company, its affiliates, agents or representatives by BYC, its affiliates, agents or representatives on a non-confidential basis prior to first use of Credentials, or (iii) is or has been provided to or otherwise made available to Company, its affiliates, agents or representatives on a non-confidential basis from a source other than BYC, its affiliates, agents or representatives, provided such source is not bound by a confidentiality agreement with BYC or otherwise prohibited from transmitting such information by reason of a contractual, legal or fiduciary relationship with BYC. The confidentiality covenants contained herein shall include and be binding upon Company and any corporation, limited liability company, partnership, proprietorship or other entity in which it has an ownership interest or is employed or engaged in any capacity with, and their respective subsidiaries, affiliates, agents, directors, officers, employees and representatives.

4.      COMPANY CONFIDENTIAL INFORMATION. The term "Company Confidential Information", as used herein, shall mean all information concerning Company furnished to BYC, orally or in writing, or otherwise obtained by or made available to BYC regarding Company, including, without limitation, financial statements and other financial and accounting data and information, trade secrets, information regarding Company contracts, assets and properties, customer and supplier lists, marketing plans and strategies, personnel information, know-how, inventory control procedures, manufacturer relationships, and any and all other private, non-public or other confidential proprietary information relating to Company; excluding, however, information which (i) is or becomes generally available to the public, other than as a result of a disclosure by BYC, (ii) was provided to or otherwise made available to BYC, its affiliates, agents or representatives by Company, its affiliates, agents or representatives on a non-confidential basis prior to the date hereof, or (iii) is or has been provided to or otherwise made available to BYC, its affiliates, agents or representatives on a non-confidential basis from a source other than Company, its affiliates, agents or representatives, provided such source is not bound by a confidentiality agreement with Company or otherwise prohibited from transmitting such information by reason of a contractual, legal or fiduciary relationship with Company. The term "Company Confidential Information" shall also include all analyses, compilations, studies, notes and other materials prepared by BYC, containing or based in whole or in part on Company Confidential Information. The confidentiality covenants contained herein shall include and be binding upon BYC and any corporation, limited liability company, partnership, proprietorship or other entity in which it has an ownership interest or is employed or engaged in any capacity with, and their respective subsidiaries, affiliates, agents, directors, officers, employees and representatives.

5.     CONFIDENTIALITY.

a)     Company agrees that (i) all BYC Confidential Information will be kept strictly confidential by Company, (ii) it will give such BYC Confidential Information at least the same degree of confidential treatment that an ordinary prudent business person would afford to his own confidential proprietary information and trade secrets, and (iii) it will use BYC Confidential Information solely for the purpose of evaluating a strategic alliance, joint venture, or transaction with BYC and for no other purpose. Except as otherwise provided herein, or as required by applicable law, Company will not, directly or indirectly, disclose to any third party not already bound by Confidentiality with BYC any BYC Confidential Information in any manner whatsoever without BYC's prior written consent.  In any event, Company shall be responsible for any disclosure by its affiliates, directors, officers, employees, agents or representatives of any BYC Confidential Information otherwise than as authorized pursuant to this agreement.  Company may, however, disclose such information to authorized agents and representatives of Company strictly on a need to know basis for purposes of evaluating a strategic alliance, joint venture, or transaction, provided Company informs such persons of the terms of this Confidentiality Agreement and obtains their agreement, for the benefit of BYC, that they will keep such information strictly confidential and will otherwise abide by the terms of this agreement as applicable to Company.  Should Company desire to share any Project information or BYC Confidential Information with a third party, authorized agents or representatives of Company, Company agrees to either in order of preference: a) refer third party, agent or representative contact directly to BYC to obtain Credentials from BYC for direct access, b) extract relevant information from provided BYC Confidential Information and materials to build it's own Company developed third party specific materials, messaging and summaries, sharing all copies and versions with BYC for written concurrence by BYC before third party review, c) refer third party contacts to the publicly available portions of websites to accomodate the level of comfort appropriate for and chosen by Company and third party, or d) work directly with BYC to discuss and execute a more efficient and mutually agreed exchange of BYC Confidential Information.

b)     Company agrees that except (i) as otherwise provided herein, or (ii) as required by applicable law, it will not, without the prior written consent of BYC, disclose to any third party, the fact that BYC Confidential Information has been provided to Company or that discussions or negotiations are taking place concerning a possible transaction with BYC, or any of the terms of such possible transaction, including the status thereof.

c)     BYC agrees that (i) all Company Confidential Information will be kept strictly confidential by BYC, (ii) it will give such Company Confidential Information at least the same degree of confidential treatment that an ordinary prudent business person would afford to his own confidential proprietary information and trade secrets, and (iii) it will use Company Confidential Information solely for the purpose of evaluating a strategic alliance, joint venture, or transaction with Company and for no other purpose. Except as otherwise provided herein, or as required by applicable law, BYC will not, directly or indirectly, disclose to any third party not already bound by Confidentiality with Company any Company Confidential Information in any manner whatsoever without Company's prior written consent. BYC may, however, disclose such information to authorized agents and representatives of BYC strictly on a need to know basis for purposes of evaluating a strategic alliance, joint venture, or transaction, provided BYC informs such persons of the terms of this Confidentiality Agreement and obtains their agreement, for the benefit of Company, that they will keep such information strictly confidential and will otherwise abide by the terms of this agreement as applicable to BYC. In any event, BYC shall be responsible for any disclosure by its affiliates, directors, officers, employees, agents or representatives of any Company Confidential Information otherwise than as authorized pursuant to this agreement.

d)     BYC agrees that except (i) as otherwise provided herein, or (ii) as required by applicable law, it will not, without the prior written consent of Company, disclose to any third party, the fact that Company Confidential Information has been provided to BYC or that discussions or negotiations are taking place concerning a possible transaction with Company, or any of the terms of such possible transaction, including the status thereof.

6.     RETURN OF INFORMATION AND DELETION.

a)     At any time, upon the request of BYC, Company agrees to promptly deliver to BYC all written BYC Confidential Information in the possession of or under the control of Company as well as any copies made thereof and Company agrees that upon request, it shall delete, shred or otherwise securely discard all recieved BYC Confidential Information so that it does not fall into the hands of any other party.

b)     At any time, upon the request of Company, BYC agrees to promptly deliver to Company all written Company Confidential Information in the possession of or under the control of BYC as well as any copies made thereof.

7.      REQUIRED DISCLOSURE.

a)     In the event that Company is requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process) to disclose any BYC Confidential Information, Company agrees (i) to provide BYC with prompt notice of such request(s) and the information or documents requested thereby so as to enable BYC to timely consider seeking to obtain an appropriate protective order, and (ii) to consult with BYC on the advisability of taking legally available steps to resist or narrow such request. Company further agrees that if, in the absence of a protective order or the receipt of a waiver hereunder, it is nonetheless, in the written opinion of its counsel, compelled to disclose BYC Confidential Information to any court or governmental administrative authority or else stand liable for contempt or suffer other material censure or penalty, such information may be disclosed to such court or governmental authority without liability hereunder; provided, however, that Company shall give to BYC written notice of the information to be so disclosed as soon as reasonably practical.
 

b)     In the event that BYC is requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process) to disclose any Company Confidential Information, BYC agrees (i) to provide Company with prompt notice of such request(s) and the information or documents requested thereby so as to enable Company to timely consider seeking to obtain an appropriate protective order, and (ii) to consult with Company on the advisability of taking legally available steps to resist or narrow such request. BYC further agrees that if, in the absence of a protective order or the receipt of a waiver hereunder, it is nonetheless, in the written opinion of its counsel, compelled to disclose Company Confidential Information to any court or governmental administrative authority or else stand liable for contempt or suffer other material censure or penalty, such information may be disclosed to such court or governmental authority without liability hereunder; provided, however, that BYC shall give to Company written notice of the information to be so disclosed as soon as reasonably practical.

8.     ACCURACY OF INFORMATION. Company and BYC acknowledge and agree that, (i) each makes no representation or warranty, express or implied, in connection with this agreement regarding the accuracy or completeness of the information, and that (ii) each shall have no liability resulting from the use of information, except and to the extent express representations or warranties are made with respect thereto in a definitive written agreement, when and if executed and delivered by the parties.

9.     COMPETITIVE ACTIVITY.  Company agrees that it shall not use  BYC Confidential Information to engage in any future: planning, purchase, development, financing, operation or management of an assisted living  / memory care facility competitive with BYC ("Competitive Activity") within the primary market area disclosed in the Confidential Information, unless BYC has provided express written consent to use the BYC Confidential Information, Company can prove that any action taken in contravention of this section was done without the use in any way of BYC Confidential Information or Company discloses to BYC Competitive Activity before BYC discloses further Confidential Information.

10.   NON-SOLICITATION.  During the term of this Agreement and for a period of 12 months following the termination of this Agreement, (i) BYC and Company shall not, directly or indirectly, attempt to influence, persuade or induce, or assist any other person or entity in so influencing, persuading or inducing, any employee of either party to terminate or not to commence employment or a contractual business relationship with either party, or (ii) directly or indirectly solicit, hire, recommend the hiring or manage (or assist another in soliciting, recommending, hiring or managing) for employment or other personal service engagement any employee of either party.

11.   NO OBLIGATION.  The parties agree that unless and until a definitive agreement between the Company and BYC has been executed and delivered with respect to the potential transaction, neither party will be under any legal obligation of any kind whatsoever with respect to the potential transaction, including any obligation to (i) consummate a potential transaction, (ii) conduct or continue discussions or negotiations, or (iii) enter into or negotiate a definitive agreement.

12.   EQUITABLE RELIEF.

a)     Company understands and agrees that in the event of a breach of this agreement by Company or its affiliates, agents or representatives, BYC shall be entitled to equitable relief, including an injunction and specific performance as a remedy for any such breach, in addition to, and not exclusive of, any and all other remedies available at law or in equity, including recovery of damages.

b)     BYC understands and agrees that in the event of a breach of this agreement by BYC or its affiliates, agents or representatives, Company shall be entitled to equitable relief, including an injunction and specific performance as a remedy for any such breach, in addition to, and not exclusive of, any and all other remedies available at law or in equity, including recovery of damages.

13.   MISCELLANEOUS.

a)     Validity. Each party represents to the other that this agreement constitutes the legal, valid and binding obligation of such party, duly enforceable against such party in accordance with the terms hereof.

b)     Severability. In the event any portion of this agreement is held invalid or unenforceable, such determination shall not affect the remaining terms and provisions hereof that may be given effect without such invalid or unenforceable provisions, and to this end the provisions of this agreement are declared to be severable.

c)     Entire Agreement. This agreement constitutes the entire agreement of the parties with respect to the subject matter contained herein and supersedes any and all other prior agreements in respect thereof, oral or written.

d)     Modification/Waiver. No term or provision contained herein may be modified, amended or waived except by written agreement or consent signed by the party to be bound thereby. No waiver of a breach or violation of any provision of this agreement shall operate or be construed as a waiver of any subsequent breach or limit or restrict any right or remedy otherwise available. Any consent or waiver provided for herein may be given or withheld in the sole and absolute discretion of the party having the right to grant or withhold such consent.

e)     Binding Effect and Benefit. This agreement shall inure to the benefit of, and shall be binding upon, the parties hereto, and their respective successors and assigns.

f)      Governing Law. This agreement shall be subject to, and construed in accordance with the laws of the State of Texas.

g)     Assignment. This agreement may not be assigned or otherwise transferred without the prior written consent of the other party.

h)     Rights and Remedies Cumulative. The rights and remedies expressed herein are cumulative and not exclusive of any rights and remedies otherwise available.

i)      Captions. Headings and captions used herein are for convenience purposes only and shall have no effect upon the interpretation of this agreement.

IN WITNESS WHEREOF, by clicking ACCEPT, you understand that this MUTUAL CONFIDENTIALITY and NON-COMPETE AGREEMENT is fully executed as of the date and time stamp which occur upon your use of the Credentials.

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