Meir Ezra
A different slant on business and life

 

NON-DISCLOSURE AND NON-CIRCUMVENTION AGREEMENT

This Agreement dated as of January __, 2014, by and between Empower, LLC, a Florida limited liability company, with an address of 2110 Drew Street, Suite 200, Clearwater, Florida 33765 (the “Disclosing Party”) and ___________________________________________, with an address of ______________________________________________ (the “Receiving Party”).  The Disclosing Party and Receiving Party are sometimes referred to as a “party” or collectively as the “parties.”

1.   The parties intend to engage in discussions concerning a method of _______________________ and potentially the establishment of a business relationship between them.  In the course of discussions regarding the methodology / business relationship, and any subsequently established business relationship, it is anticipated that the Disclosing Party may disclose to Receiving Party certain Confidential Information (as defined below).  The Receiving Party agrees to hold all Confidential Information in confidence pursuant to this Agreement.   

2.   For purposes of this Agreement, “Confidential Information” shall include any and all confidential, proprietary or sensitive information of Disclosing Party, and any information not generally known in Disclosing Party’s industry which gives Disclosing Party a competitive advantage in the industry, heretofore or hereafter acquired, discovered, developed, used or prepared by Disclosing Party, whether tangible or intangible, oral or written, including but not limited to:  Trade secrets of Disclosing Party or any customer of Disclosing Party; business ideas and methodologies; information relating to existing or contemplated products and/or services; technology; information relating to business plans, sales or marketing methods, projections, finances, methods of doing business; customer and/or mailing lists, agreements, contracts, manuals or other documents embodying Confidential Information (whether in written, digital or other media format) of Disclosing Party or any customer of Disclosing Party or any company or business with whom Disclosing Party is in the process of negotiations; and any of the above received by Disclosing Party from any third party under an obligation of confidentiality. 

3.   Disclosing Party may provide certain materials or information to Receiving Party for review or analysis, which materials shall remain the property of Disclosing Party unless otherwise agreed to by the parties.   Any such materials provided by Disclosing Party to Receiving Party in connection with this Agreement shall be treated by Receiving Party as confidential and shall not be used commercially in any manner without the consent and approval of Disclosing Party.

4.   Confidential Information shall not, however, include (a) publicly available information; (b) information developed independently by the Receiving Party without use of any Confidential Information; or (c) information received by the Receiving Party without breach of a confidentiality obligation.

5.   For purposes of this Agreement, the term “Disclosing Party” also includes all affiliates of the Disclosing Party and the term “Receiving Party” also includes all affiliates of the Receiving Party.  An affiliate means any person, partnership, joint venture, corporation or other form of enterprise, domestic or foreign, including but not limited to subsidiaries and parent companies that directly or indirectly control, are controlled by, or are under common control with a party.

6.   The Receiving Party shall not use, summarize, publish, disseminate or otherwise disclose, either directly or indirectly, any Confidential Information obtained in connection with this Agreement, except as directed by Disclosing Party. 

7.      For the duration of the parties’ discussions and/or business relationship (which shall be deemed to continue until one party provides written notice of termination to the other party) and for three years thereafter (the “Restricted Period”), the Receiving Party agrees to be bound by the restrictions set forth in this section.

a.    The Receiving Party shall not disclose the Confidential Information to any third party nor use the Confidential Information in connection with any activities competitive to Disclosing Party.

b.   The Receiving Party shall not use any Confidential Information, directly or indirectly, in any manner that bypasses, circumvents, compromises or undermines the rights of the Disclosing Party, including but not limited to any use of the ideas presented to Receiving Party without the express written consent of the Disclosing Party.

c.    The Receiving Party shall not directly or indirectly solicit, induce, or influence any of Disclosing Party’s customers, clients, or business partners, or solicit, hire or engage the services of, any employee or agent of Disclosing Party.

d.   The Receiving Party shall not interfere with, disrupt or attempt to disrupt any past, present or prospective relationship, contractual or otherwise, between Disclosing Party and Disclosing Party’s existing or potential clients, customers, employees or agents. 

e.    Receiving Party shall not, directly or indirectly, disparage Disclosing Party, its affiliates or agents, or the business of or any of the services provided by any of the foregoing entities or persons.

 

8.      The Receiving Party may disclose the Confidential Information of the Disclosing Party to those of its employees and agents with a need to know in order to assist in the business relationship, provided it has written confidentiality agreements with each of such employees and agents that require them to keep confidential the Confidential Information. The Receiving Party agrees that it will prosecute an action against any of its employees that violate the confidentiality of Disclosing Party’s Confidential Information.   

9.      If the Receiving Party is required to disclose any Confidential Information by law or legal process, the Receiving Party shall (a) give the Disclosing Party reasonable notice prior to disclosure to permit the Disclosing Party to intercede with respect to such disclosure and (b) inform the receiving party of the confidential nature of the information.

10.  The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of the Confidential Information or any other breach of this Agreement by Receiving Party or its employees or consultants, and will cooperate with Disclosing Party in every reasonable way to help Disclosing Party regain possession of the Confidential Information and prevent its further unauthorized use or disclosure.

11.  The Receiving Party shall, upon Disclosing Party’s request, promptly and in no event later than two weeks thereafter, return to the Disclosing Party all of its Confidential Information, including all tangible materials and devices, all correspondence, notes, reports, data and any other documents of any kind concerning the Confidential Information in its care, control or possession. 

12.  The Receiving Party acknowledges that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information and the Disclosing Party shall be entitled, without waiving any other rights or remedies, to the remedies of unilateral injunctive relief or specific performance or other equitable relief as may be deemed proper by a court of competent jurisdiction (without the requirement to post a bond).  Such remedy shall be in addition to and not in lieu or limitation of other remedies available at law or in equity.

13.  Neither Disclosing Party nor any of its representatives, affiliates, agents or advisers makes any representation or warranty, express or implied, to the Receiving Party concerning the accuracy, completeness or fitness for a particular use of any of the Confidential Information.

14.  This Agreement is the complete and exclusive statement of the matters set forth herein between the Parties.  It shall not be amended or modified except by a written agreement, signed by both parties.  None of the provisions of this Agreement shall be deemed to have been waived by any act or acquiescence on the part of the Disclosing Party, but only by an instrument in writing signed by an authorized employee of Disclosing Party and the Receiving Party.  No waiver of any provision of this Agreement shall constitute a waiver of any other provision(s) or of the same provision on another occasion. The provisions of this Agreement shall be severable.  If any provision or its application to any specific situation is held to be invalid or unenforceable for any reason, such invalidity or unenforceability shall not affect any other provision or its application to any other situation.

15.  If either party employs an attorney(s) to enforce any rights arising out of or relating to this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs. 

16.  This Agreement shall be construed and controlled by the laws of the State of Florida.  Each party hereby irrevocably submits to the jurisdiction of the Superior Court of Pinellas County, Florida or any federal court sitting in Pinellas or Hillsborough County, Florida for the purposes of any suit, action or other proceeding arising out of this Agreement which is brought by or against either party. 

17.  This Agreement shall be binding upon and inure to the benefit of each party’s respective successors and lawful assigns, provided, however, any attempted assignment of this Agreement by Receiving Party shall be void. 

18.  This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each party and delivered to the other party, it being understood that all parties need not sign the same counterpart.  This Agreement may be executed by facsimile, and a facsimile signature shall have the same force and effect as an original signature on this Agreement.

IN WITNESS WHEREOF, the Parties hereto have signed this Agreement as of the date indicated.

EMPOWER, LLC                                 RECEIVING PARTY

 

By: ___________________                By: ______________________________

     Meir Ezra, Manager                                    Company Name: ___________________

                                                            Print Name: _______________________

                                                            Title: _____________________________