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This NON-DISCLOSURE,
NON-CIRCUMVENTION and NON-COMPETITION AGREEMENT is effective as of
the date of the signature hereto (“Effective Date”) between ESX Family Office,
individually and/or collectively, and on behalf of any/all/other affiliated
companies, or approved agents and official representatives of the above organization,
current or prior, hereinafter the (“Company”), and the undersigned individual, corporation,
limited liability company, or other entity or person, hereinafter the (“Recipient”).
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The parties to this Agreement desire to engage in
discussions regarding present and/or potential future business relationships.
This Agreement combines a non-disclosure, a non-competition, and a noncircumvention agreement.
The parties intend to engage in substantive discussions and sharing of confidential information
regarding certain new and useful business opportunities, trade secrets, business strategies
and plans, as well as other sensitive information. In connection with these discussions,
it may be necessary and/or desirable for the Company to provide the Recipient with, or
allow access to, proprietary, technical, or business data, and/or other confidential
information of the Company (collectively the "Confidential Information"). Therefore,
the Recipient, individually and on behalf of those they represent, agree that they are
under an obligation of confidentiality. The Company believes, and the Recipient hereby agrees,
that the Company’s Confidential Information has significant commercial value that would be
diminished by unauthorized disclosure and/or use. Accordingly, the commitments of confidentiality
in this Agreement are a condition to the Recipient’s willingness to engage in the contemplated
business discussions and planning. The Recipient agrees that it shall not use any advantages
derivable from such information in its own business or affairs, unless the same is done pursuant
to a new agreement with all other signatories to this document. Each signing party shall be held
responsible and liable in case of a breach of this Agreement both in their professional and personal
capacity.
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Confidential Information means information of
the Company that derives economic or commercial value, actual or potential,
from not being known to, and not being readily ascertainable by proper means
by other persons who can obtain economic or commercial value from its disclosure or
use, and shall include, and shall be deemed to include, all information conveyed by
the Company to the Recipient orally, in writing, by demonstration, electronically,
or by other media. Confidential Information shall be considered as such at the time of transmittal.
Confidential Information may include, by way of example but without limitation, new and
useful business opportunities, designs, patents, files, products, product plans, technical
data, computer software and code, developments, technology, drawing, trade secrets, business
strategies, business plans, price lists, cost information, descriptions of inventions,
photographs, samples, reports, know-how, patent applications, processes and process
descriptions, any and all studies, plans, reports, surveys, code, analysis, sketches,
drawings, specifications, notes, records, memoranda, computer-generated data, algorithms,
or documents, all other non-public information relating to the activities of the Company
including, and without limitation, all methods, processes, techniques, equipment, research
data, code, experiments, marketing and sales information, personnel data, customer lists,
pricing data, employee lists, supplier lists, merchandising systems, financial data, trade
secrets, and the like whether presently known or revealed in the future.
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However, Confidential Information shall not include
information, which can clearly demonstrated to be:
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a. Generally known or available to the public,
through no act or omission on the part of the receiving party; or
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b. Provided to the receiving party by a third party
without any restriction on disclosure and without breach of any obligation of
confidentiality to a party to this Agreement; or independently developed by the
receiving party without use of the Confidential Information.
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The Recipient agrees that when receipt of any
Confidential Information has occurred:
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a. The Recipient shall not disclose or communicate
Confidential Information to any third party, except as herein provided. Recipient
shall protect such information from disclosure by reasonable means, including but not
limited to at least the same minimal level of security that Recipient uses for its most
crucial proprietary and trade secret information.
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b. Recipient shall reasonably protect the Confidential
Information with not less than the same degree of care exercised by its own personnel
to protect its own, or publication of its own, most valuable confidential and proprietary
information.
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c. The Company shall permit access to its Confidential
Information to the Recipient’s agents or employees or third parties only if such disclosure is
reasonably believed to be necessary to the purposes of the Recipient evaluating, contemplating,
recommending, or engaging in any program or service offered by the Company or for the purpose
of entering into a business relationship with the Company, and only if said agents, employees,
or third parties:
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1. reasonably require access to the Confidential
Information for purposes approved by this Agreement, and
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2. have been apprized of this Agreement and the Recipient’s
obligations to maintain the trade secret status of Confidential Information and to restrict
its use as provided by this Agreement.
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The non-competition provisions of this Agreement are an
essential and material part of the total agreement, by which the Recipient agrees it shall
not use any advantages derivable from such confidential information in its own business or
affairs, unless the same is done pursuant to a new agreement executed by all signatories
to this document.
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The Recipient hereby agrees for himself or herself, their officers,
directors, agents, associates and any related parties, that they will not, directly or indirectly,
contact, deal with or otherwise become involved with any entity or any other entities or parties
introduced, directly or indirectly, by or through the other party, its officers, directors,
agents or associates, for the purpose of avoiding the payment to the Company of profits, fees
or otherwise, or to share Confidential Information, without the specific written approval of
the Company.
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The Recipient understands that the Company makes no representation
or warranty as to the accuracy or completeness of the information it provides to the Recipient.
The Recipient agrees that neither the Company, nor any of its advisers, representatives, agents,
or employees shall be held liable for utilization of Confidential Information which results from
the Recipient’s use of said information.
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This Agreement shall, by mutual consent of the parties,
remain in force and affect for a period of five years from the date signed and executed
by all parties, with the effective date being the date on which the final signature is
affixed hereto, and will expire two years after both parties have ceased business
dealings together.
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The jurisdiction for this Agreement is global and worldwide.
Should the Company assert that a violation has occurred, the parties agree that the Company
shall be entitled to take action to remedy the violation in the locale and/or legal
jurisdiction in which the violation occurred, and/or in any other locale or jurisdiction(s)
which is appropriate, in the opinion of the Company and their counsel.
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As used in this Agreement, the following terms shall
have the following meanings:
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a. "Agents or employees" includes the directors,
officers and employees of any of the parties, it also includes the Recipient,
any corporation, partnership, association, business trust, contractual organization,
group, or other entity of which the Recipient is a member, officer, director, agent,
trustee, beneficiary, or has a position similar to the aforementioned.
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b. Except for the limited right to use granted in
section 3(c) herein, no right or license, either express or implied, under any patent,
copyright, trade secret or other intellectual property right is granted hereunder.
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c. No agency or partnership relationship is created
between the parties by this Agreement
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d. No party has an obligation under this Agreement
to purchase any service or item from any of the other parties, or to offer any
service or item for sale to any of the other parties and that any agreement to
have a business relationship between the parties will exist only when such agreement
is in writing and duly executed by all the parties hereto.
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e. ANY and ALL additions, modifications, and waivers
of this Agreement must be made in writing and signed by all parties. However, the
failure of a party to insist on full compliance with any provisions of this Agreement
in a particular instance shall not preclude it from requiring full compliance thereafter.
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f. This Agreement is made and shall be governed and
construed in accordance with the laws of Florida and India. The proper venue for
any action arising from or in connection to the interpretation or enforcement of
this Agreement shall be decided by the Company
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1. If any portion of this Agreement shall be held
invalid, such invalidity shall not affect the other provisions hereof, and to
this extent, the provisions of this Agreement are to be and shall be deemed
severable. If any party hereto incurs any legal fees, whether or not action
is instituted, to enforce the terms of this Agreement or to recover damages
or injunctive relief for breach of this Agreement, it is agreed that the
successful or prevailing parties shall be entitled to reasonable attorney
fees and other costs in addition to any other relief to which it or they
may be entitled.
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2. This Agreement constitutes the entire understanding
between all the parties and supersedes all previous understandings, agreements,
communications and representations, whether written or oral, concerning the discussions
by and between the parties hereto and the Confidential Information.
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To the extent that confidential information is
disseminated or exchanged by both parties, such information shall be confidential
as to both parties, the Company and the Recipient.
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IN WITNESS WHEREOF, the parties hereto have
individually and by their duly authorized representatives executed and delivered
this Agreement, to be effective as of the date first written above.
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By signing below, I confirm that I have reviewed and agree
to the contents of this document, and I agree to use electronic records and signatures.
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