Prospective Commercial Tenancy — Financial and Business Information

This Mutual Confidentiality and Non-Disclosure Agreement (this “Agreement”) is entered into by and between the parties identified below and is effective as of the date on which the last party affixes its electronic signature hereto (the “Effective Date”). The parties acknowledge that this Agreement is executed through an electronic signature platform, and that the platform’s recorded date and time of the final signature shall conclusively establish the Effective Date.

Thrivepoint North, LLC, a Tennessee limited liability company, together with its affiliates, subsidiaries, parent entities, and related operating brands including Hyperbaric Health International, OxyEdge™, HyperbaricHealth.io, and Hyperbaric4Sale, with a principal address at 141 New Shackle Island Rd, Hendersonville, TN 37075 (“Thrivepoint”); and

 , together with its affiliates, property managers, and authorized leasing agents, with a principal address at   (“Landlord”).

Thrivepoint and Landlord are each referred to as a “Party” and collectively as the “Parties.”

Recitals

A.  The Parties are evaluating a prospective commercial lease of Suite 126 at 110 Taylor Industrial Blvd, Hendersonville, TN 37075, or such other premises as the Parties may identify (the “Opportunity”).

B.  In connection with the Opportunity, Landlord has requested that Thrivepoint disclose non-public financial statements and related business information for the purpose of assessing Thrivepoint’s creditworthiness as a prospective tenant, and each Party may disclose other non-public information to the other.

C.  The Parties wish to define the terms under which such information is disclosed, used, and protected.

NOW, THEREFORE, in consideration of the mutual covenants set forth below and other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the Parties agree as follows:

1. Definitions

1. “Disclosing Party” means the Party disclosing Confidential Information. “Receiving Party” means the Party receiving it. Either Party may act in either capacity.
2. “Representatives” means a Party’s officers, members, managers, directors, employees, attorneys, accountants, and other professional advisors who have a demonstrable need to know the Confidential Information for the Purpose and who are bound by confidentiality obligations no less protective than those in this Agreement.
3. “Purpose” means solely the evaluation, negotiation, and documentation of the Opportunity, including Landlord’s assessment of Thrivepoint’s financial capacity to perform under a lease.

2. Confidential Information

“Confidential Information” means all non-public information concerning or related to the business, finances, operations, assets, and affairs of a Disclosing Party that is furnished to the Receiving Party or its Representatives in connection with the Purpose, whether furnished before or after the Effective Date, and whether disclosed orally, in writing, electronically, or by inspection, and regardless of whether it is marked or identified as confidential.

Confidential Information includes, without limitation: financial statements, balance sheets, profit and loss statements, tax returns, bank and credit information, revenue and margin data, budgets, projections and forecasts; business plans and strategies; costs, pricing, and discount structures; vendor, supplier, manufacturing, and distribution information; customer and prospect lists; product designs, specifications, drawings, processes, firmware, software, and research and development data; trade secrets and know-how; personnel information; and the existence, status, and terms of the Parties’ negotiations regarding the Opportunity.

The Receiving Party acknowledges that Confidential Information may include material that does not qualify as a trade secret or for protection under copyright or patent law. The Receiving Party nonetheless acknowledges the Disclosing Party’s rights in such material, it being the intent of the Parties that the protections of this Agreement are in addition to, and not in substitution for, any protection, right, or remedy otherwise available at law or in equity.

3. Exclusions

Confidential Information does not include information that the Receiving Party can demonstrate by contemporaneous written records:

1. was already known to or in the lawful possession of the Receiving Party without a duty of confidentiality prior to disclosure by the Disclosing Party;
2. was independently developed by the Receiving Party without use of or reference to the Confidential Information;
3. is or becomes publicly available through no act or omission of the Receiving Party or its Representatives; or
4. was rightfully obtained by the Receiving Party from a third party lawfully in possession of it and, to the Receiving Party’s actual knowledge, not subject to any confidentiality obligation to the Disclosing Party.

4. Obligations of the Receiving Party

1. The Receiving Party shall use the Confidential Information solely for the Purpose and for no other purpose whatsoever.
2. The Receiving Party shall not disclose Confidential Information to any third party without the Disclosing Party’s prior written consent, except as expressly permitted in Section 5.
3. The Receiving Party shall protect the Confidential Information using at least the same degree of care it uses to protect its own confidential information of like importance, and in no event less than a reasonable degree of care.
4. The Receiving Party shall limit access to those Representatives with a need to know for the Purpose, shall advise each such Representative of the confidential nature of the information, and shall be responsible for any breach of this Agreement by its Representatives.
5. Landlord shall not use Thrivepoint’s financial information for any purpose other than tenant creditworthiness evaluation, and specifically shall not use it to set, adjust, or justify rental rates, security deposit amounts, guaranty requirements, or other economic lease terms.
6. Neither Party shall issue any press release or public statement regarding the Opportunity, or use the other Party’s name, trademarks, or logos in any marketing or promotional material, without the other Party’s prior written consent.

5. Permitted Disclosures

1. Landlord may disclose Thrivepoint’s Confidential Information to its existing mortgage lender or a bona fide prospective purchaser or lender in connection with the Property, provided such recipient is advised of the confidential nature of the information and agrees in writing to be bound by confidentiality obligations no less protective than those in this Agreement.
2. If a Receiving Party is required to disclose Confidential Information by subpoena, court order, regulatory demand, or other operation of law, it shall, to the extent legally permitted, give the Disclosing Party prompt written notice sufficient to permit the Disclosing Party to seek a protective order, shall reasonably cooperate with any such effort at the Disclosing Party’s expense, and shall disclose only that portion legally required.

6. Brokers and Agents

Landlord represents that any broker, agent, or property manager acting on Landlord’s behalf in connection with the Opportunity is bound by the terms of this Agreement as a Representative of Landlord. Landlord shall be responsible for any breach of this Agreement by such broker, agent, or property manager as if committed by Landlord directly.

7. Return or Destruction

Upon the earlier of (a) the Disclosing Party’s written request, or (b) fifteen (15) days after either Party notifies the other in writing that it is discontinuing pursuit of the Opportunity, the Receiving Party shall promptly return or destroy all Confidential Information in its possession or control, including all copies, extracts, notes, and derivative materials, and shall confirm such return or destruction in writing upon request. The Receiving Party may retain one archival copy solely to the extent required by law, regulation, or bona fide internal document-retention policy, which copy shall remain subject to this Agreement for so long as it is retained.

8. Term

This Agreement takes effect on the Effective Date and continues for three (3) years thereafter, provided that: (a) if the Parties execute a lease, the confidentiality obligations herein shall continue through the lease term and for two (2) years following its expiration or earlier termination; and (b) obligations with respect to information constituting a trade secret under applicable law shall survive for so long as such information remains a trade secret.

9. No Rights Granted; No Warranty

Nothing in this Agreement grants the Receiving Party any license or right under any patent, copyright, trademark, trade secret, or other intellectual property of the Disclosing Party, other than the limited right to review the Confidential Information for the Purpose. All Confidential Information remains the property of the Disclosing Party. Confidential Information is provided “as is,” and neither Party makes any representation or warranty as to its accuracy or completeness except as may be set forth in a definitive written agreement between the Parties.

10. No Obligation to Proceed

This Agreement does not obligate either Party to proceed with the Opportunity, to enter into a lease or any other transaction, or to continue negotiations. No lease, tenancy, option, right of first refusal, joint venture, partnership, agency, or other relationship is created by this Agreement. Any binding obligation with respect to the Opportunity shall arise only upon execution and delivery of a definitive written lease agreement signed by both Parties.

11. Remedies; Specific Enforcement

The Parties acknowledge that monetary damages may be an inadequate remedy for a breach of this Agreement and that a breach or threatened breach may cause irreparable injury to the Disclosing Party. Accordingly, in addition to any other remedies available at law or in equity, the Disclosing Party shall be entitled to seek injunctive relief and specific performance without the necessity of posting bond or proving actual damages. The prevailing Party in any action to enforce this Agreement shall be entitled to recover its reasonable attorneys’ fees and costs.

12. No Waiver

No failure or delay by either Party in exercising any right under this Agreement operates as a waiver of that right, nor does any single or partial exercise preclude any further exercise. No waiver of any breach shall be construed as a waiver of any subsequent breach. No investigation conducted by or on behalf of a Party shall be deemed a waiver of compliance with any representation, warranty, covenant, or agreement contained herein.

13. Severability

Each provision of this Agreement shall be interpreted so as to be valid and enforceable to the fullest extent permitted by applicable law. If any provision is held prohibited or unenforceable, it shall be ineffective only to the extent of such prohibition or unenforceability, and shall be modified to the minimum extent necessary to render it enforceable, without invalidating the remainder of this Agreement.

14. Governing Law; Jurisdiction

This Agreement shall be governed by and construed in accordance with the laws of the State of Tennessee, without regard to its conflict-of-laws principles. The Parties consent to the exclusive jurisdiction and venue of the state and federal courts located in Sumner County, Tennessee, and waive any objection based on forum non conveniens.

15. Notices

All notices under this Agreement shall be in writing and delivered by personal delivery, nationally recognized overnight courier, certified mail return receipt requested, or electronic mail with confirmation of receipt, addressed to the Party at the address set forth above or to such other address as a Party may designate in writing. Notice is effective upon receipt.

16. Entire Agreement; Amendment; Assignment

This Agreement constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all prior or contemporaneous understandings, whether written or oral. It may be amended only by a written instrument signed by both Parties. Neither Party may assign this Agreement without the other’s prior written consent, except that Landlord may assign it to a successor owner of the Property upon written notice to Thrivepoint.

17. Counterparts; Electronic Signature

This Agreement may be executed in one or more counterparts, each of which is deemed an original and all of which together constitute one instrument. The Parties consent to the use of electronic records and electronic signatures pursuant to the federal Electronic Signatures in Global and National Commerce Act (E-SIGN) and the Tennessee Uniform Electronic Transactions Act. Signatures delivered through an electronic signature platform shall have the same legal force and effect as original handwritten signatures, and neither Party shall contest the validity or enforceability of this Agreement on the basis that it was signed electronically. Each signatory represents that he or she is duly authorized to execute this Agreement on behalf of the Party for which he or she signs.