2022 AFTERMARKET JACKPOT CONVENTION
RELEASE AND LIABILITY WAIVER
CONFIDENTIALITY AGREEMENT AND LIABILITY RELEASE
THIS CONFIDENTIALITY AGEEMENT AND LIABILITY RELEASE (this “Agreement”) is entered into for the benefit of AFTERMARKET AUTO PARTS ALLIANCE, INC., a New Jersey corporation (the “Alliance”) and ALLIANCE PARTS WAREHOUSE, LLC, an Arkansas limited liability company (“APW”), by each of the ATTENDEES of the Alliance 2022 Aftermarket Jackpot Convention – High Stakes (the “Convention”) who consent to this Agreement online (“Attendee”),
WHEREAS, Attendees have access to certain Confidential Information (as defined below) of the Alliance and APW; and
WHEREAS, in consideration for the continued access to Confidential Information by Attendees and for the benefit and protection of the Alliance, APW and their other respective owners, Attendees desires to set forth herein the rights, duties and obligations of Attendees with respect to the Confidential Information.
NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Attendee hereby agrees on behalf of himself or herself and the company which Attendee is representing (the “Company”) as follows:
- Confidential Information. Attendee acknowledges that any and all information and documentation, whether written or oral, which the Alliance or APW, either directly or through an agent, discloses to Attendee, either directly or through the Company’s Representatives (as defined below), including all such information and documentation relating to the Alliance’s or APW’s organization, assets, liabilities, sales, costs, operating results, product pricing, unit sales volume, suppliers, customers, methods of doing business, marketing plans, market research, Intellectual Property (as defined below), contracts and any notes, analyses, compilations, studies, reports or any other type of information that is not generally known or readily ascertainable by a third-party who was not a part of generating such information and by which competitors of the Alliance, APW or any of their affiliates could gain potential advantage, economic or otherwise, shall be deemed to be proprietary and confidential information in the nature of trade secrets which the Alliance and APW desire to protect from any unauthorized use or disclosure (collectively, “Confidential Information”). Notwithstanding the foregoing, the term “Confidential Information” shall at all times exclude any information which (a) was a matter of public knowledge at the time it was communicated to Attendee, (b) becomes a matter of public knowledge subsequent to the time it was communicated to Attendee through no fault of Attendee, or (c) was developed by employees or agents of Attendee independently of, without access to and without reference to any of the Confidential Information for its own behalf and not for the benefit of the Alliance or APW. Attendee acknowledges that any information received from third parties, such as vendors or service providers, for example, in connection the purchasing or marketing programs provided by the Alliance or APW is included within the term “Confidential Information”.
- Use of Confidential Information. Attendee shall review, examine, evaluate and utilize the Confidential Information solely for purposes relating to Attendee’s participation in the purchasing and marketing programs of the Alliance or APW and for no other purpose whatsoever without the prior written consent of the Alliance. In no event shall Attendee use any of the Confidential Information in any manner adverse to the interest of the Alliance, APW or their respective business operations.
- Attendee acknowledges and agrees that Attendee will receive and hold the Confidential Information in trust and in strictest confidence, and Attendee shall not, except as hereinafter provided, disclose any of the Confidential Information to any other person except to those employees, directors, officers, agents or advisors of the Company (each, a “Representative” and, collectively, “Representatives”) (a) who have a specific need to review, examine, evaluate and utilize the Confidential Information for the purpose set forth in Section 2 above, and (b) who have been made aware of this Agreement and have agreed to be bound by the confidentiality obligations of Attendee and the Company hereunder. Attendee and the Company shall be responsible for any violation of this Agreement by any of the Company’s Representatives. Attendee agrees that it will otherwise take all reasonable measures to protect the confidentiality of the Confidential Information, which measures shall be at least equal to those with which it protects its own confidential and proprietary information. If Attendee or the Company receives a request or becomes legally compelled (by deposition, interrogatory, request for documents, subpoena, investigation, demand, order or similar process or by securities laws or the rules of any stock exchange) to disclose any of the Confidential Information, then before any such disclosure is made, Attendee or a Representative shall (x) promptly notify the Alliance thereof, (y) consult with the Alliance on the advisability of taking steps to resist or narrow such request, and (z) cooperate with the Alliance at Company’s expense in any attempt to obtain a protective order or other appropriate remedy or assurance that the Confidential Information will be afforded confidential treatment. In the event that such protective order or other remedy or assurance is not obtained, Attendee or the Company, as the case may be, may furnish that portion (and only that portion) of the Confidential Information that it is legally compelled to disclose.
- Intellectual Property. Attendee agrees not to use, license, sublicense, or otherwise permit others to use, or convey, transfer or assign, or otherwise benefit from any trademarks, service marks, trade names, trade secrets, drawings, designs, sketches, logos, inventions, business or any other types of processes, computer software, computer source codes or any other intellectual property (collectively, “Intellectual Property”) that is developed by or for the Alliance or APW, except that the Company and its permitted licensees may use and sublicense the Intellectual Property if and only if Company is licensed by the Alliance under the Trademark License and Marketing Agreement (“TLMA”) to do so, and if so, then only to the extent the Company is so licensed. Attendee further agrees not to register or attempt to register any aspect of the Intellectual Property as a trademark, copyright or patent. No licenses or immunity are granted under this Agreement by either party to the other, directly or by implication, estoppel, or otherwise, with respect to any patents, copyrights, trademarks, service marks, or trade secrets, except as otherwise provided for in writing.
- Return of Materials. All tangible materials containing or otherwise embodying any Confidential Information, including, without limitation, all memoranda, letters, lists or other documents, record-bearing media or information storage devices, shall remain the property of the Alliance at all times. If the Company is not a Shareholder of the Alliance (“Shareholder”), then the Company shall return all such Confidential Information to the If the Company is a Shareholder of the Alliance, then upon termination of the Company’s rights under the Shareholder Agreement and the TLMA (“Shareholder Termination”), Shareholder agrees to return all such tangible materials, including all copies or extracts thereof which have been made by the Shareholder for internal circulation and review, to the Alliance, or such other person as the Alliance may direct, within ten (10) days following the receipt of such written request. Upon Shareholder Termination, all electronic or digital records in the Shareholder’s possession containing Confidential Information shall be deleted. Nothing contained herein shall be construed to require Shareholder to destroy or return any business records essential to its financial or tax record keeping; provided however, that any Confidential Information contained within such records shall continue to be kept confidential under the terms of this Agreement, both prior and subsequent to Shareholder Termination.
- Relief and other Remedies. The Company agrees that it bears full responsibility for all actions taken or not taken by its owners, managers, directors, officers, employees, agents, licensees, or any other Representatives, whether in connection with this Agreement or otherwise, and covenants that such parties shall abide by the terms of this Agreement, the same as if they were named in this Agreement and were signatories to it. Any violations of this Agreement by any such parties shall be deemed to be violations by the The Company acknowledges and agrees that strict compliance with the terms of this Agreement is essential to protect the value of the Confidential Information, and that any breach or threatened breach of any of the terms, representations, warranties and covenants of this Agreement would result in damages for which the Alliance or APW may have no adequate remedy at law. In recognition of the foregoing, the Company hereby consents to the issuance of an injunction or such other injunctive or equitable relief as may be determined appropriate by any court of competent jurisdiction in favor of the Alliance or APW enjoining any such breach or threatened breach of the terms of this Agreement by the Company or any of its Representatives or licensees. In addition, if the Company is also a Shareholder, and it defaults under the terms of this Agreement, the Alliance may, at its discretion, immediately terminate the Shareholder’s rights under the Shareholders Agreement and the TLMA and redeem Shareholder’s share of stock in the Alliance and may redeem Shareholder’s equity interest, if any, in APW. The foregoing remedies are without prejudice to any other rights or remedies to which the Alliance or APW may otherwise be entitled under the Shareholders Agreement, the TLMA, the APW Operating Agreement then currently in force, or which the Alliance or APW may have under any other agreement or at law or in equity.
- Survival/Exceptions. If the Company is a Shareholder, the Shareholder’s obligations hereunder with respect to the use and disclosure of Confidential Information shall survive Shareholder Termination and the redemption of Shareholder’s stock in the Alliance and Shareholder’s equity interest in APW, if any.
- No Representations. The Company and the Attendee acknowledges that the Alliance and APW make no representations or warranties, express or implied, as to the accuracy or completeness of any Confidential Information that may be disclosed by the Alliance or APW to the Company or the
- Liability Release. The Attendee, on behalf of the Attendee, the Company and the Representatives, releases, waives, and discharges the Alliance and APW and all of their respective affiliates, subsidiaries, advertising/promotional agencies, and the employees, officers, directors, and agents of any of the above organizations from any and all liability for any and all loss or damage of any nature whatsoever, and any claim or demand for the same caused in whole or in part, directly or indirectly, by participation in the Convention and any related activities. Furthermore, Attendee’s decision to attend the Convention is voluntary. Attendee acknowledges that there are risks involved in attending in-person Conventions, including travel related to the Convention, which risks can result in significant illness, bodily injury, and/or death to any Attendee. Attendee and the Company forever releases and absolves Alliance, APW and all of their respective employees, officers, directors, shareholders, members, partners, trustees, receivers, parents, affiliates, subsidiaries, predecessors, successors, attorneys, representatives, agents, representatives and assigns and contractors (individually, an “Indemnified Party” and together, “Indemnified Parties”) from and against any and all manner of action or actions, cause or causes of action, in law or in equity, suits, security interests, debts, liens, claims, demands, damages, losses, costs and expenses of any nature whatsoever, known or unknown, suspected or unsuspected, fixed or contingent (collectively referred to as the “Claim” or “Claims”) whether caused by Attendee, other Attendees at the Convention, an Indemnified Party or otherwise, which is or might be brought against any of the Indemnified Parties by reason of any matter, cause, fact, thing, act or omission arising out of, based upon or relating to any false or inaccurate statement or representation contained herein or otherwise made to any of the Indemnified Parties or arising out of, based upon or relating to any other act or omission of the Attendee, others in the Convention, or any of the other Indemnified Parties in connection with the Convention or due to the presence of Attendee or others at the Convention or during travel to or from the Convention, and hereby releases, waives, and discharges all Indemnified Parties from any and all liability for any and all loss or damage of any nature whatsoever, and any claim or demand for the same. Attendee covenants not to sue any Indemnified Parties for any such Claim.
- Photographic Images. Attendee grants the right to the Alliance to record, videotape, and photograph Attendee while in attendance at the Convention (“Images”). These Images will be owned by the Alliance. The Alliance and each of its designees shall have the right to use, edit, adapt, post, stream, copy, and exploit such Images, and all elements embodied therein, including any names, likenesses, voice, conversation, and any other attributes of Attendee, individually or with others, together with his/her name, address, as well as any statements made by the Attendee regarding the Convention (provided they are true) in whole or in part, in conjunction with other material, if any, in any and all media now known or hereafter devised, for the purpose of trade, advertising, promotion, or any other lawful purpose whatsoever, in perpetuity, throughout the world, without additional compensation, consideration, notification, or permission, except where prohibited by law.
- Attendee and the Company each forever indemnifies and agrees to hold harmless the Indemnified Parties from and against any and all Claims caused by Attendee, which is or might be brought against any of the Indemnified Parties by reason of any matter, cause, fact, thing, act or omission arising out of, based upon or relating to any false or inaccurate statement or representation or covenant contained herein or otherwise made to any of the Indemnified Parties or arising out of, based upon or relating to any other act or omission of the Attendee in connection with the Convention or due to the presence of Attendee at the Convention or during travel to or from the Convention. Attendee and the Company each assumes full responsibility for any risk of bodily injury, death, or property damage due to the negligence of Attendee, or otherwise, while Attendee is at the Convention, or traveling to or from the Convention, including but not limited to bodily injury, death, or property damage arising out of participation in the Convention or traveling in connection therewith. Attendee and the Company will take all appropriate steps to minimize dangers to Attendee and to others, including but not limited to wearing appropriate protective gear, including but not limited to wearing masks over the mouth and nose, and obeying safety warnings and procedures suggested by any Indemnified Party.
- This Agreement shall be construed in accordance with the laws of the State of Texas, without giving effect to principles of conflict of laws. Litigation arising out of or in connection with this Agreement shall be initiated and maintained in the State and Federal courts located in Bexar County, Texas. TO THE MAXIMUM EXTENT ALLOWED BY LAW, the Attendee and Company each HEREBY KNOWINGLY AND VOLUNTARILY WAIVES THE RIGHT TO A TRIAL BY JURY. This Agreement shall be binding upon the Company, the Representatives, and their respective successors, assigns and legal representatives. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby. In such event, the Company agrees on behalf of itself and the Representatives that, to the extent practicable, any such invalid provision shall otherwise be deemed modified and reformed to read as providing for the valid and enforceable provision which most closely approximates the intent and effect of the invalid provision. This Agreement may not be cancelled or amended except by a writing signed by the Company and the Alliance. The failure of the Alliance or APW to enforce, at any time, or for any period of time, any of the provisions of this Agreement shall not be construed as a waiver of such provision or as a waiver of the right of the Alliance or APW to thereafter enforce each and every provision hereof. To the extent that any Confidential Information pertains to APW, the Alliance may act on behalf of APW in enforcing all APW’s rights under this Agreement, or APW may act on its own behalf.
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