This CONFIDENTIALITY, NON DISCLOSURE AGREEMENT (“Agreement”) is made on May 5, 2020 by and between [SELLER] (“Company”) and [POTENTIAL BUYER] (“Disclosee”)
SECTION 1. DEFINITION OF CONFIDENTIAL INFORMATION
As used in this Agreement, the term “Confidential Information” means: 1) proprietary information of the Company System; 2) information marked or designated by Company as confidential; 3) information, whether or not in written form and whether or not designated as confidential, which is known to me as being treated by Company as confidential; and (4) information provided to Disclosee by Company which Disclosee is obligated to keep confidential. Confidential Information includes, but is not limited to: ideas; designs; specifications; techniques; data; programs; documentation; processes; know how; guest lists; marketing plans; and financial and technical information.
SECTION 2. OWNERSHIP
I acknowledge that all Confidential Information is and shall continue to be the exclusive property of Company, whether or not disclosed or entrusted to me in connection with my services for Company.
SECTION 3. ACKNOWLEDGMENT OF RECEIPT OF CONFIDENTIAL INFORMATION
I acknowledge that by virtue of my relationship with Company, I will have access to Confidential Information, and I agree, in addition to the specific covenants contained in this Agreement, to comply with all policies and procedures for the protection of Confidential Information.
SECTION 4. ACKNOWLEDGMENT OF IRREPARABLE HARM
I acknowledge that any unauthorized disclosure of Confidential Information will cause irreparable harm to Company. I agree not to disclose Confidential Information directly or indirectly, under any circumstances or by any means, to any third person, without the express written consent of Disclosee and Company.
SECTION 5. COVENANT OF NON USE
I agree that I will not copy, transmit, reproduce, summarize, quote, or make any commercial or other use whatsoever of Confidential Information, except as may be necessary to perform my duties for Company.
SECTION 6. SAFEGUARDING OF CONFIDENTIAL INFORMATION
I agree to exercise the highest degree of care in safeguarding Confidential Information against loss, theft, or other inadvertent disclosure, and agree generally to take all steps necessary to ensure the maintenance of the confidentiality.
SECTION 7. EXCLUSIONS
This Agreement shall not apply to any information now or hereafter voluntarily disseminated by Company to the public, or which otherwise becomes part of the public domain through lawful means.
SECTION 8. RETURN OF CONFIDENTIAL INFORMATION
Upon termination of my relationship with Company, I will deliver promptly to Company as requested all Confidential Information, in whatever form this may be in my possession or under my control.
SECTION 9. DURATION
The obligations set forth above in this Agreement will continue beyond the term of my service to Company for a period of 2 years following the time of disclosure.
SECTION 10. NO DEFENSE
The existence of any claim or cause of action I may have against the Company and/or Disclosee predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by the Company and/or Disclosee of this Agreement. Any failure to object to any conduct I may take in violation of this Agreement shall not be deemed a waiver. Company and/or Disclosee may, specifically waive any part or all of this Agreement to the extent that such waiver is set forth in writing.
SECTION 11. INVALIDITY
If all or any portion of the foregoing covenant not to compete set forth in Section 11, is held unreasonable, void, vague, or illegal by any court or agency having valid jurisdic¬tion in any unappealed final decision to which Disclosee or Company is a party, the court or agency shall be empowered to revise and/or construe said covenant so as to cause same to fall within permissible legal limits and shall not invalidate the entire covenant. I expressly agree to be bound by any lesser covenant subsumed within the terms of this Agreement, as if the resulting covenant were separately stated in and made a part hereof.
SECTION 12. NO HARDSHIP
I acknowledge and confirm that the length of the term and geographical restrictions contained in Section 11 are fair and reasonable and not the result of overreaching, duress or coercion of any kind. I further acknowledge and confirm my full, uninhibited and faithful observance of each of the covenants contained in this Agreement will not cause any undue hardship, financial or otherwise, and that the enforcement of each of the covenants contained in this Agreement will not impair my ability to obtain employment or otherwise to obtain income required for my comfort-able support and that of my family, and the satisfaction of the needs of my creditors. I acknowledge and confirm that my special knowledge of the business would cause the Company and Disclosee serious injury and loss if I (or anyone acquiring such knowledge through me) were to use such ability and knowledge to the benefit of a competitor or were to compete with the Company and Disclosee.
SECTION 13. TOLLING
In the event of any legal action or other proceeding for the enforcement of this Agreement, the time for calculating the term of the restrictions therein shall not include the period of time commencing with the filing of legal action or other proceeding to enforce the terms of this Agreement hereof through the date of final judgment or final resolution, including all appeals, if any, of such legal action or other proceeding.
SECTION 14. BENEFIT
I agree and acknowledge that Company shall be a third party beneficiary of my obligations hereunder and Company shall be entitled to all rights and remedies conferred upon the Disclosee hereunder, which Company may enforce directly against me with or without the consent or joinder of Disclosee.
SECTION 15. BINDING EFFECT
All of theterms of this Agreement shall be binding upon, inure to the benefit of, and be enforceable by me, Disclosee and Company and their respective legal representatives, heirs, successors and assigns.
SECTION 16. GOVERNING LAW, JURISDICTION, AND VENUE
This Agreement shall be governed by the laws of the State of [STATE] without regard to principles of conflicts of laws. Without limiting the jurisdiction or venue of any other federal or state courts, I irrevocably and unconditionally: (a) agree that any legal proceeding relating to this Agreement may be brought in the state courts in [COUNTY] or the District Court of the United States (b) consent to the jurisdiction of each such court; (c) waive any objection to the laying of venue of any proceeding in any of such courts; and (d) agree that service of any court paper may be effected on me by mail, or in such other manner as may be provided under applica¬ble laws in [STATE].
SECTION 17. REMEDIES
If I fail to abide by this Agreement, Company will be entitled to specific performance, including immediate issuance of a temporary restraining order or prelimi¬nary injunction enforcing this Agreement, to judgment for damages caused by my breach, to any other remedies provided by applicable law and to payment of all of its costs and expenses in pursuing such remedies, including its attorneys’ fees, at all trial and appellate levels.