1. Purpose
The Parties wish to exchange confidential and proprietary information for the sole purpose of evaluating the Prospective Member’s potential participation in NMIA and the feasibility, formation, capitalization, and operation of a captive insurance program serving marina owners (the “Permitted Purpose”).
2. Definition of Confidential Information
“Confidential Information” means any non-public, proprietary, or confidential information disclosed by either Party to the other, whether in written, oral, electronic, or other form, that is designated as confidential at the time of disclosure or that a reasonable person would understand to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information does not include information that:
was already lawfully known to the receiving Party without an obligation of confidentiality before disclosure by the disclosing Party;
is or becomes publicly available through no fault or breach of this Agreement by the receiving Party;
is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information, as shown by contemporaneous written records; or
is rightfully received by the receiving Party from a third party without breach of any confidentiality obligation owed to the disclosing Party.
3. Mutual Confidentiality Obligations
Each Party agrees to protect Confidential Information received from the other Party with at least the same degree of care it uses to protect its own confidential information of similar importance, and in no event less than reasonable care. Without limiting the foregoing:
(a) Prospective Member Information. NMIA shall keep strictly confidential all non-public information provided by the Prospective Member, including insurance policies, premiums, deductibles, limits, claims history, loss runs, financial statements, operational data, and any other underwriting or exposure information, and shall not disclose such information to any third party except to NMIA’s attorneys, actuaries, accountants, captive consultants, reinsurance advisors, or other professional advisors who have a need to know and are bound by confidentiality obligations at least as protective as those contained herein.
(b) NMIA Information. The Prospective Member shall keep strictly confidential all non-public information provided by NMIA, including feasibility studies, actuarial analyses, financial models, business plans, program design and structuring materials, reinsurance proposals, membership information, governance documents, strategic plans, and any other proprietary or confidential materials, and shall not disclose such information to any third party except to its attorneys, accountants, insurance advisors, or other professional advisors who have a need to know and are bound by confidentiality obligations at least as protective as those contained herein.
4. Use Restriction and Non-Circumvention
Each Party shall use the other Party’s Confidential Information solely for the Permitted Purpose and for no other purpose. Without limiting the foregoing, the Prospective Member shall not use NMIA’s Confidential Information, including its captive program design, structure, feasibility analysis, actuarial approach, or governance model, to:
(a) develop, sponsor, join, or promote any competing group captive or similar risk-sharing program for marina owners;
(b) solicit any NMIA member or prospective member to participate in a competing program; or
(c) otherwise compete with, circumvent, or disadvantage NMIA with respect to the Permitted Purpose. Neither Party shall use the other Party’s Confidential Information to compete with, solicit customers or members from, or otherwise disadvantage the other Party.
5. No License; No Transfer of Intellectual Property
All Confidential Information, and all intellectual property rights therein, shall remain the sole property of the disclosing Party. Nothing in this Agreement shall be construed as granting any license, right, title, or interest in or to any Confidential Information, patent, trademark, trade secret, copyright, program design, business method, or other intellectual property of the disclosing Party, whether by implication, estoppel, or otherwise. In particular, all program concepts, structuring materials, feasibility studies, actuarial models, and governance frameworks developed by or on behalf of NMIA in connection with the captive program are and shall remain the exclusive property of NMIA.
6. Term
The obligations of confidentiality and restricted use set forth in this Agreement shall remain in effect for three (3) years from the date of the last signature below, except that any trade secrets shall be protected for so long as they remain trade secrets under applicable law. Section 4 (Use Restriction and Non-Circumvention), Section 5 (No License), and Section 10 (Remedies) shall survive termination or expiration of this Agreement.
7. Return or Destruction of Confidential Information
Upon the disclosing Party’s written request, or upon termination of discussions regarding the Permitted Purpose, the receiving Party shall promptly, and in no event later than fifteen (15) days after such request, return or destroy all Confidential Information in its possession, including all copies, notes, and derivative materials, and certify such destruction in writing if requested, provided that a Party’s standard, non-recoverable archival or backup copies retained solely for legal or compliance purposes shall not be subject to this requirement so long as they remain subject to the confidentiality obligations of this Agreement.
8. No Obligation
This Agreement is solely for the protection of Confidential Information. Nothing in this Agreement obligates either Party to join NMIA, participate in any insurance program, make any capital contribution, or enter into any further agreement.
9. Compelled Disclosure
If a receiving Party is required by law, regulation, subpoena, or other legal process to disclose any Confidential Information, it shall, to the extent legally permitted, give the disclosing Party prompt written notice of such requirement before disclosure so that the disclosing Party may seek a protective order or other appropriate remedy, and shall disclose only the portion of Confidential Information legally required.
10. Remedies
Each Party acknowledges that unauthorized use or disclosure of the other Party’s Confidential Information may cause immediate and irreparable harm for which monetary damages alone would be an inadequate remedy. Accordingly, in addition to any other remedies available at law or in equity, the non-breaching Party shall be entitled to seek injunctive relief and specific performance to prevent or restrain any breach or threatened breach of this Agreement, without the necessity of posting a bond and without proof of actual damages.
11. No Publicity
Neither Party shall use the other Party’s name, logo, or the existence or substance of this Agreement or the discussions contemplated hereunder in any public statement, press release, marketing material, or third-party solicitation without the prior written consent of the other Party.
12. General Provisions
(a) Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Arkansas, without regard to its conflict-of-laws rules. Each Party irrevocably consents to the exclusive jurisdiction and venue of the state and federal courts located in Arkansas for any dispute arising out of or relating to this Agreement, and each Party waives any objection to such jurisdiction or venue, including on the basis of inconvenient forum.
(b) Entire Agreement. This Agreement constitutes the entire agreement between the Parties regarding its subject matter and supersedes all prior or contemporaneous understandings, whether written or oral, regarding such subject matter.
(c) Severability. If any provision of this Agreement is held invalid or unenforceable, the remaining provisions shall continue in full force and effect, and the invalid or unenforceable provision shall be modified to the minimum extent necessary to make it enforceable.
(d) Assignment. Neither Party may assign this Agreement, whether by operation of law or otherwise, without the prior written consent of the other Party, except that NMIA may assign this Agreement to a successor captive entity or association formed to carry out the Permitted Purpose upon written notice to the Prospective Member.
(e) No Waiver. No failure or delay by either Party in exercising any right under this Agreement shall operate as a waiver of that right.
(f) Counterparts. This Agreement may be executed in counterparts, including by electronic signature, each of which shall be deemed an original and all of which together shall constitute one instrument.
(g) Authority; Successor Entity. Dana Swing represents that he has the authority to execute this Agreement on behalf of NMIA in his capacity as Founder, Sponsor, and Executive Director. Upon NMIA’s formal legal formation (whether as a corporation, association, risk retention group, or other entity), this Agreement and all rights and obligations of NMIA hereunder shall automatically inure to the benefit of, and be binding upon, that successor entity without need for further amendment, and NMIA will provide the Prospective Member written notice of such formation.