This Non-Disclosure Agreement (the “Agreement”) is made and entered into this _____ day of ________, 20__(the the “Effective Date”), by and between:
The Recipient (hereinafter referred to as “Recipient”, which expression shall, unless repugnant to the context or meaning thereof, be deemed to mean and include its representatives, agents, successors, and assigns):
of the following address:
the Discloser (hereinafter referred to as “Discloser”, which expression shall, unless repugnant to the context or meaning thereof, be deemed to mean and include its representatives, agents, successors, and assigns):
of the following address:
In order to facilitate meeting, discussions and the conduct of business between the Parties with respect to the Purpose (as hereinafter defined) it may be necessary for the Discloser to disclose Confidential Information (as hereinafter defined) to the Recipient. The Parties have entered into this Agreement to ensure that the Confidential Information remains strictly confidential so long as this Agreement survives in accordance with its terms. Any Party receiving Confidential Information shall receive it on a confidential basis and for a limited purpose.
IN CONSIDERATION OF the matter described above and of the mutual benefits and obligations contained hereinafter, the sufficiency and adequacy are hereby acknowledged, intending to be legally bound, the Recipient and the Discloser (individually the “Party” and collectively the “Parties” to this Agreement) agree as follows:
1. DEFINITIONS AND INTERPRETATION
In this Agreement unless the context otherwise requires the following terms shall have the following meanings:
“Affiliate” means any Person who directly or indirectly controls, is controlled by, or is under common control of any party, provided, however, with respect to any natural person or individual, Affiliate shall also mean his relatives. The term “control” means the possession by aPerson or a group of Persons acting in concert, directly or indirectly, of the right to direct orcause the direction of the management and policies or decisions of another Person whetherthrough the board of directors or ownership of voting rights, or by the organizational documents, contract or otherwise.
“Confidential lnformation” means all and any information which is not in the public domain andwhich relates to the Business of the Covenantee and the Transferred Rights (includinginformation relating to the services rendered through the Website, processes and operations,customer lists, contractual arrangements, market opportunities, plans and intentions, developments, data, results, inventions (whether patentable or not), lntellectual Property,knowhow, showhow, trade secrets, forecasts, analyses, evaluations, research methodologies, technical or business information, personnel information and other matters concerning thebusiness, trading or financial or other affairs of, or relating to, the Transferred Rights, includingcustomers or other persons having dealings with it), whether such information is oral, in writing,electronic or in any other form, whether tangible or otherwise or marked in writing as”confidential” or not, and all and any information which has been or may be derived or obtainedfrom any such information. For the avoidance of doubt, Confidential lnformation includes anyand all information which is not in the public domain which relates to the Transferred Rights andthe services associated with the Website;
“Person” shall mean an individual, a corporation, a company, a partnership, a limited liabilitycompany, a trust, an unincorporated association, a Governmental Entity or any agency or anyother entity, body or artificialjuridical person;
“Purpose” means the consideration and evaluation of the possibility of the Recipient entering into a business relationship with the Discloser.
1.2. In this Agreement (unless the context requires otherwise):
1.2.1. The meaning assigned to each term defined herein equally applies to both the singular and the plural forms of such term and vice versa, and words denoting one gender includes the other genders as the context requires. Where a word or phrase is defined herein, each of its other grammatical forms has a corresponding meaning.
1.2.2. The words “hereof,” “herein” and “herewith” and words of similar import shall, unless otherwise stated, refer to this Agreement as a whole and not to any particular provision of this Agreement.
1.2.3. The words “include,” “includes,” and “including” when used in this Agreement is deemed to be followed by the words “without limitation,” unless otherwise specified.
1.2.4. Reference to any law means such law as amended, modified, codified, replaced or re-enacted, and all rules and regulations promulgated thereunder.
1.2.5. The Parties have participated jointly in the negotiation and drafting of this Agreement. Any rule of construction or interpretation otherwise requiring this Agreement to be construed or interpreted against any Party by virtue of the authorship of this Agreement does not apply to the construction and interpretation hereof and thereof.
2. NON-DISCLOSURE RESTRICTIVE COVENANT
2.1. The Recipient shall not, and shall cause their Affiliates not to, either directly or indirectly, now and for three (3) years from Effective Date, for one’s own benefit or for the benefit of any third party, use, divulge, disclose, or communicate to any third party, any Confidential information in any manner whatsoever unless the Discloser otherwise consents to the disclosure or use of any such Confidential information in writing prior to such disclosure or use.
2.2. The Covenantors may disclose, or permit the disclosure of, Confidential lnformation
2.2.1 if such disclosure is reasonably required in connection with the preparation or execution of this Agreement and fulfilment of the obligations thereunder to the person to whom information is disclosed being bound by confidentiality obligations contained herein; or
2.2.2. is as of the time of its disclosure, or thereafter becomes, part of the public domain through a source other than Recipient; or
2.2.3 is required by law or any securities exchange, regulatory or governmental authority or taxation authority to which either Party is subject or pursuant to any order of any judicial body, governmental authority or taxation authority.
2.3. ln the event any Confidential information is required to be disclosed as a result of a court order or government authority, the Recipient shall give the Covenantee prompt written notice prior to such disclosure so that the Discloser may intervene in the proceedings, seek a protective order, or other appropriate remedy to protect the confidential nature of the Confidential information.
2.4. The Recipient agree that all Confidential information of the Discloser is and at all times shall be exclusively the property of the Discloser, to be used by the Recipient only for the purposes expressly contemplated by this Agreement. At the request of the Discloser, the Recipient shall promptly return any Confidential information in the possession of the Recipient and not retain any copies thereof.
3. NON-COMPETITION RESTRICTIVE COVENANT
3.1. The Recipient shall not, and shall cause their respective Affiliates not to, from the Effective Date and for a period of three (3) years following the Effective Date, either directly or indirectly, individually, or in association or combination with any other Person, whether as proprietor or owner, or officer, or as a member or manager of any limited liability company, or as an employee, agent, independent contractor, consultant, advisor, joint venturer, trustee, licensee, licensor, principal, founder, partner or otherwise, for monetary benefit to all locations where the Business is conducted or where customers or clients are located, engage in a business that competes with the Business (in whole or part) of the Discloser.
4. EMPLOYEE SOLICITATION, HIRING AND NON-DISPARAGEMENT RESTRICTIVE COVENANT
4.1. The Recipient shall not, and shall cause their respective Affiliates not to, from the Effective Date and for a period of three (3) years following the Effective Date, either directly or indirectly, anywhere in the world, individually, or in association or in combination with any other Person, whether as proprietor or owner, or officer, director or shareholder of any corporation, or as a member or manager of any limited liability company, or as an employee, agent, independent contractor, consultant, advisor, joint venturer, trustee, licensee, licensor, principal, founder, partner or otherwise, whether or not for monetary benefit: (a) solicit, encourage, persuade, induce or entice any employee of the Discloser to terminate or modify such person’s employment, engagement or business relationship with the Discloser; or (b) hire, whether as an employee or independent contractor, any person who is, or that at any time in the twenty four (24) month period prior to the time of such hire had been, employed by the Discloser,
4.2. The Recipient shall not, and shall cause their Affiliates not to, disparage, discredit or degrade the Discloser, its Business or any director, officer or employee of the Discloser.
5. COSTS AND EXPENSES
5.1. Unless otherwise expressly provided in this Agreement, each Party shall bear its own costs and expenses incurred in relation to the negotiation, preparation, execution and implementation of this Agreement.
6. FURTHER ASSURANCES
6.1. Without prejudice and in addition to the other provisions of this Agreement (whether express or implied by law), the Recipient shall, from time to time and at their own expense, promptly do (or procure to be done) all such other things and/or execute and deliver (or procure to be executed and delivered) all such other documents as the Discloser may reasonably require and in a manner or form reasonably satisfactory to the Discloser to give full effect to and to secure to the Discloser the full benefit of the rights and remedies conferred on it by this Agreement.
7. ENTIRE AGREEMENT
7.1. This Agreement (together with the preamble and recitals hereto) constitute the entire agreement and understanding between the Parties in respect of the subject matter of this Agreement.
8.1. The term of this Agreement shall be for a period of 3 years unless sooner terminated upon written notice by the Discloser to the Recipient or otherwise extended by further written agreement signed by both Parties.
9.1. lf any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, that shall not affect or impair:
9.1.1. the legality, validity or enforceability in that jurisdiction of any other provision of this Agreement or
9.1.2. the legality, validity or enforceability under the law of any other jurisdiction of that or any other provision of this Agreement.
9.2. lf any illegal, invalid or unenforceable provision of this Agreement would be legal, valid or enforceable if some part or parts of it were deleted or modified, including time periods reduced by an arbitrator as may be mutually appointed by the Parties or a competent court having jurisdiction, such provision shall apply with the minimum deletion(s), modification(s) and/or reduction(s) necessary to make it legal, valid or enforceable.
11.1. No variation or modification of this Agreement shallbe valid unless it is in writing and signed by each ofthe Parties.
11. INDEMNIFICATION AND EQUITABLE RELIEF
11.1 The Recipient agree and acknowledge that he shall be liable to indemnify the Discloser for any breach of the covenants contained under this Agreement. Notwithstanding the aforesaid, the Recipient acknowledge and agree that Discloser’s remedies at law for breach of any of the provisions of this Agreement may be inadequate and cause Discloser irreparable harm and, in recognition of this fact, the Recipient agree that, in the event of such breach or, in addition to any remedies at law the Discloser may have, the Discloser, without posting any bond, shall be entitled to seek equitable relief in the form of specific performance, a temporary restraining order, a temporary or permanent injunction or any other equitable remedy that may be available. The remedies of the Discloser are cumulative and not exclusive, and except as otherwise expressly provided in this Agreement to the contrary, the Discloser shall have all rights and remedies available under this Agreement, at law or in equity.
12. WAIVER AND CUMULATIVE REMEDIES
12.1. The rights and remedies of each Party under or in respect of this Agreement may be waived only by express notice signed by the Party so waiving the right or remedy. Any waiver shall apply only to the person to whom it is addressed and in the instance and for the purpose for which it is given.
12.2. No right or remedy under or in respect of this Agreement shall be precluded, waived or impaired by: (i) any failure to exercise or delay in exercising it; (ii) any single or partial exercise of it; (iii) any earlier waiver of it, whether in whole or in part; or (iv) any failure to exercise, delay in exercising, single or partial exercise of or waiver of any other such right or remedy.
12.3. Unless otherwise expressly provided in this Agreement, the rights and remedies under this Agreement are in addition to, and do not exclude, any rights or remedies provided by law or inequity.
13. ACKNOWLEDGEMENT AND ASSIGNMENT
13.1. The Recipient acknowledge and agree that the covenants and agreements contained in this Agreement have been negotiated in good faith by the Parties, are reasonable and are not more restrictive or broader than necessary to protect the interests of the Parties thereto.
13.2. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their successors and assigns.
14.1. This Agreement may be executed in any number of counterparts, and by the Parties on separate counterparts, but shall not be effective until each party has executed at least one (1) counterpart.
14.2. Each counterpart shall constitute an original of this Agreement, but all the counterparts shall together constitute one (1) and the same agreement.
All notices, requests, approvals, consents and other communications required to be made under or pursuant to this Agreement shall be in writing and shall be delivered to or sent by fax or emailto the addresses of the Parties mentioned herein below
If to the Recipient
If to the Discloser
16. GOVERNING IAW AND DISPUTE RESOLUTION
This Agreement shall be interpreted in accordance with and governed by the laws of ________. Each party irrevocably and unconditionally submits to the jurisdiction of the courts located in __________ and any courts which have jurisdiction to hear appeals from any of those courts and waives any right to object to any proceedings being brought in those courts.
lN WITNESS WHEREOF, this Agreement has been executed and delivered as a deed on the date first written above.
Name of the Recipient
Signature of the Recipient
Name of the Discloser
Signature of the Discloser
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