This MUTUAL NON-DISCLOSURE AGREEMENT (hereinafter referred to as the "Agreement") is effective as of the day entered into by the Party, by and between Boostopia, Inc, a Delaware C Corp, (each a "Party" and collectively referred to as the "Parties").
1. Definitions. For purposes of this Agreement, the following terms are defined as follows:
a. "Confidential Information" means any and all information which is possessed by or developed for Discloser and which relates to Discloser's existing or potential business or technology, which information is generally not known to the public and which information Discloser seeks to protect from disclosure to its existing or potential competitors or others, and includes, without limitation, for example: business plans, business strategies, business know-how and techniques, the identities and business preferences of Current or Prospective Customers or Vendors, existing or proposed bids, technical developments, customized software, marketing plans, computer programs, compositions, formulas, existing or proposed research projects, information related to Discloser's financial condition or results of operations, costs, revenue, pricing, Discloser employee compensation, communications between Discloser employees and attorneys representing Discloser, financial or business projections, investments, marketing plans, negotiation strategies, terms of Discloser contracts, training information and materials, information generated for customer engagements, and information stored or developed for use in or with computers. Confidential Information also includes information received by Discloser from others that Discloser has an obligation to treat as confidential.
b. "Current Customers" means any firm, partnership, corporation, and/or any other entity and/or person that purchased or purchases from Discloser any of its products or services.
c. "Discloser" includes both Parties and refers to whichever Party is disclosing Confidential Information and/or Trade Secrets to the other Party.
d. "Non-Party" means any competitor, supplier, customer, or any other person, firm, corporation, or other entity besides Parties and their employees, representatives, and authorized agents.
e. "Prospective Customers" means any firm, partnership, corporation and/or any other entity and/or person reasonably expected to purchase products or services from Discloser.
f. "Recipient" includes both Parties and refers to whichever Party is receiving Confidential Information and/or Trade Secrets from the other Party.
g. "Trade Secret" means all information possessed by or developed for Discloser, including, without limitation, a compilation, program, device, method, system, technique, formula, pattern, or process to which all of the following apply: (i) the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use and (ii) the information is the subject of efforts to maintain its secrecy that are reasonable under the circumstances.
h. "Vendor" means any individual or entity that provides goods or services to Discloser.
2. Non-Disclosure of Confidential Information and Trade Secrets. In light of prospective business opportunities or advantages, the Parties are executing this Agreement to protect any Confidential Information or Trade Secrets that they may exchange from time to time. In consideration for each Party's receipt of Confidential Information and Trade Secrets from the other Party, possible business relations between Parties, and/or the covenants and promises herein contained, the receipt and sufficiency of which is hereby acknowledged, each Party agrees as follows:
a. To not disclose Confidential Information or Trade Secrets provided by the other Party and to perform all covenants herein faithfully;
b. Except as expressly authorized by Discloser's prior written permission, as long as this Agreement survives and continues to bind Recipient, Recipient shall not disclose, directly or indirectly, any Confidential Information or Trade Secrets to a Non-Party or use any Confidential Information or Trade Secrets for any purpose other than that purpose for which Recipient was provided the information by Discloser and that benefits Discloser;
c. To at all times exercise the utmost diligence and Recipient's best efforts to guard and protect against unauthorized disclosure or misappropriation of Confidential Information and Trade Secrets to a Non-Party;
d. To not seek or accept any Confidential Information or Trade Secrets from any former, present, or future employee of Discloser except in the ordinary course of Recipient's business with Discloser;
e. To not disclose to the other Party, use in the other Party's business, or cause the other Party to use, any Confidential Information or Trade Secret belonging to a Non-Party;
f. To not copy, modify, or reproduce any Confidential Information or Trade Secret without the expressed prior-written permission of Discloser;
g. To promptly notify Discloser if Recipient becomes aware of any unauthorized use, disclosure, or misappropriation of Confidential Information or Trade Secrets; and
h. To not disclose Confidential Information or Trade Secrets to Recipient's employees, if any, unless absolutely required for an employee to perform his/her job duties; however, Recipient will have any such employees sign a non-disclosure agreement in substantially the same form as this Agreement prior to disclosing any Confidential Information or Trade Secrets and will provide a copy of all such agreements to Discloser immediately after they are executed.
3. Exceptions. This Agreement shall not prohibit any disclosure that is required by law or court order, provided that Recipient has not intentionally taken actions to trigger such required disclosure and, so long as not prohibited by any applicable law or regulation, Discloser is given reasonable prior notice and an opportunity to contest or minimize such disclosure. The same provisions shall not prevent Recipient's disclosure of Confidential Information or Trade Secrets in the event Discloser has given Recipient expressed prior-written permission to do so. This Agreement does not prohibit disclosure of Confidential Information or Trade Secrets after such has become generally known in the industry in which Discloser conducts its business. Furthermore, Recipient's use of general skills and know-how acquired during and prior to working with Discloser is not prohibited, as long as such use does not involve the disclosure of Confidential Information or Trade Secrets.
4. Irreparable Harm. Recipient acknowledges that Discloser engages in a competitive business and has or will expend significant sums of money and time to develop and use its Confidential Information and Trade Secrets. Recipient further acknowledges that Discloser would suffer irreparable harm, loss, and damage if its Confidential Information and Trade Secrets were disclosed to a Non-Party.
5. Discloser's Sole Property. All Confidential Information or Trade Secrets disclosed to Recipient shall remain Discloser's sole property at all times. Nothing in this Agreement shall be construed as granting or conferring upon Recipient any rights by license or otherwise in Confidential Information or Trade Secrets, except for uses not prohibited by this Agreement. This Agreement gives no intellectual property rights to Recipient in Confidential Information or Trade Secrets, including without limitation, copyright, patent, trademark, or trade name rights, regardless if Recipient contributed to or developed additional Confidential Information or Trade Secrets as a result of such disclosure.
6. Return of Discloser's Property. Immediately upon Recipient receiving a written request by Discloser for return of property or upon termination of this Agreement, Recipient will return to Discloser all of Discloser's papers, documents, and other property, including without limitation, keys, security cards, phones, computers, passes, credit cards, documents, and information stored for use in or with computers and software applicable to Discloser's business (and all copies thereof), which are in Recipient's possession or under Recipient's control, regardless whether such papers, documents, or other property do or do not contain Confidential Information or Trade Secrets. Recipient agrees to return all physical copies of Confidential Information and Trade Secrets in Recipient's possession or under Recipient's control, to irretrievably delete all such information Recipient possesses or controls in electronic form on any device, and to certify in a signed writing delivered to Discloser that these actions have been completed within 5 business days following written request by Discloser or the termination of this Agreement for any reason.
7. No Conflicts. To the extent that they exist, each Party will not disclose to the other Party any of its previous employers' or clients' Confidential Information or Trade Secrets. Each Party represents and warrants that it has not previously assumed any obligations inconsistent with those of this Agreement and that its execution of this Agreement does not conflict with any prior obligations to third parties.
8. No Undue Burden. Each Party acknowledges that: (i) this Agreement has been specifically bargained between Parties and reviewed thoroughly by each, (ii) each Party has had an opportunity to obtain legal counsel to review this Agreement, and (iii) the covenants made by and duties imposed upon each Party hereby are fair, reasonable, and minimally necessary to protect the legitimate business interests of Discloser, and such covenants and duties will not place an undue burden upon either Party in the event of termination of Parties' business relationship and the strict enforcement of the covenants contained herein.
9. No Guarantee of Continued Relationship. Nothing in this Agreement shall be construed as a guarantee of continuing or additional contractual relations between Parties after the effective date. Additionally, nothing in this Agreement shall require Parties to purchase goods or services from each other or to provide one another with Confidential Information or Trade Secrets in their respective possession. Recipient acknowledges that disclosure of Confidential Information and Trade Secrets under this Agreement is necessary for Discloser to form and plan its future business operations in light of the competitiveness of the industry and the inherent and potential value of its Confidential Information and Trade Secrets.
10. No Warranties. Confidential Information and Trade Secrets are provided to Recipient on an "As-Is" basis. DISCLOSER HEREBY DISCLAIMS ALL WARRANTIES EXPRESSED OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AS TO THE CONFIDENTIAL INFORMATION AND TRADE SECRETS PROVIDED TO RECIPIENT. Discloser makes no warranties of any kind as to the following: whether or not its Confidential Information and Trade Secrets are free from errors and defects, accurate, and complete; whether or not use of its Confidential Information or Trade Secrets may infringe on the intellectual property rights of a Non-Party; or how Discloser plans to use its Confidential Information and Trade Secrets in the future. Neither Discloser nor its employees and representatives shall have any liability as a result of the disclosure of Confidential Information or Trade Secrets to Recipient or its employees and representatives.
11. Third-Party Claims. Should either Party materially breach any part of this Agreement, that breaching Party shall indemnify, hold harmless, and defend the non-breaching Party, including its employees, agent, and other representatives against all third-party claims, liabilities, and expenses, including reasonable attorneys' fees and costs, that result from such material breach.
12. Survivability. The rights and obligations of Parties will survive for five (5) years from the effective date of this Agreement and will survive the termination, for any reason, of the Parties' relationship that may occur while this Agreement is in effect.
13. Entire Agreement. This Agreement represents the entire agreement between Parties and may not be modified, changed, or altered by any promise or statement of a Party other than in a signed writing by both Parties.
14. Severability. Parties have attempted to limit the non-disclosure provisions so that such provisions apply only to the extent necessary to protect legitimate business and property interests. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, that provision shall be considered removed from this Agreement; however, the remaining provisions shall continue to be valid and enforceable according to the intentions of Parties. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
15. Waiver. The waiver by Discloser of a breach of any provision of this Agreement by Recipient shall not be considered as a waiver of rights with respect to any subsequent breach by Recipient.
16. Successors and Assigns. This Agreement is not assignable by one Party without the expressed prior-written permission of the other Party. This Agreement binds and inures to the benefits the heirs, successors, and assignees of Parties.
17. Governing Law. Parties agree and acknowledge that all provisions of this Agreement shall be governed by and construed in accordance with the laws of the State of New York.
18. Equitable Relief and Remedies. Recipient acknowledges that any breach of this Agreement will cause substantial and irreparable harm to Discloser for which money damages would be an inadequate remedy. Accordingly, in such event Discloser shall be entitled to seek injunctive and other forms of equitable relief to prevent such breach, and the prevailing Party shall be entitled to recover from the other Party prevailing Party's losses, damages, and costs, including, without limitation, reasonable attorney's fees and costs, incurred in connection with enforcing this Agreement, in addition to any other rights or remedies available at law, in equity, or by statute.
19. Descriptive Headings. The descriptive headings used herein are for convenience of reference only and they are not intended to have any effect whatsoever in determining the rights or obligations of Parties.
20. Time of Essence. Time is of the essence in this Agreement.
21. Counterparts; Electronic Signature. This Agreement may be executed in counterparts, including by fax, email, or other facsimile, each an original but all considered part of one Agreement. Electronic signatures placed upon counterparts of this Agreement by a Party or its approved agent shall be considered valid representations of that Party's signature.
Each Party acknowledges that it has carefully read and understood the provisions of this Agreement, and each Party understands that it has the right to seek independent advice at its own expense or to propose modifications prior to signing the Agreement and has negotiated proposed modifications to the extent that Party deems necessary. Nothing contained in this Agreement creates a contractual right to a continued contract for a definite term. Each Party represents and warrants that it has entered into this Agreement voluntarily and after consulting an attorney or whomsoever it wishes.