Non-circumvent & Non-disclosure Agreement
This Non-Circumvent & Non-Disclosure Agreement (the “Agreement”) is made March 26, 2023 by and between Get Peyd, LLC and its agents and (collectively, the “Parties”). The Parties desire to continue and advance discussions regarding business transactions of mutual interest (the “Business Purpose”). In connection with such discussions, the Parties recognize that there is or might be a need to disclose to each other certain confidential information to be used only for the Business Purpose. The Parties further recognize that discussions regarding the Business Purpose have already begun, and to the extent those discussions have already involved the disclosure of Confidential Information (as defined below), the Parties agree that such Confidential Information will be subject to the terms of this Agreement. This Agreement is intended to protect the Confidential Information from unauthorized use and disclosure, to avoid circumvention, and enable the Parties to discuss mutually beneficial transactions or potential transactions with adequate protections in place. In consideration of the promises and covenants in this Agreement, the mutual disclosure of Confidential Information to each other, and for other valuable consideration, receipt of which is expressly acknowledged, the Parties further agree as follows:
1. CONFIDENTIAL INFORMATION.
A. For purposes of this Agreement, “Confidential Information” means any technical or business information disclosed by one party to the other party that: (i) if disclosed in writing, is marked “confidential” or “proprietary” at the time of such disclosure; (ii) if disclosed orally, is identified as “confidential” or “proprietary” at the time of such disclosure, and is summarized in a writing sent by the disclosing party to the receiving party within thirty (30) days after any such disclosure; or (iii) and even if not disclosed or marked “confidential” or “proprietary”, under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary.
B. Confidential Information may include non-public information about that party’s actual, potential, identified, or proposed suppliers; manufacturers; vendors, distributors, investors, and funding sources as well as potential, identified and/or proposed products, customers, sources, contracts, contacts, end-users, brokers, contractors, or lenders. Confidential Information shall also include all tangible materials containing Confidential Information, including but not limited to written or printed documents and digital means of storage (discs, flash drives, hard drives, file-sharing software, etc.). The Parties agree such information constitutes the other parties Trade Secrets and shall be treated as Confidential Information of the disclosing party (the “Disclosing Party”).
C. Confidential Information will not include information that:
(i) is now or thereafter becomes generally known or available to the public, through no act or omission on the part of the receiving party (the “Recipient”);
(ii) was known by the Recipient prior to receiving such information from the Disclosing Party and without restriction as to use or disclosure.
(iii) is acquired by the Recipient from a third party who, to the Recipient’s knowledge, has the right to disclose it without restriction as to use or disclosure; or
(iv) is independently developed by the Recipient without use of or reference to any Confidential Information of the Disclosing Party.
D. Each party agrees: (i) to maintain the other party’s Confidential Information in strict confidence; (ii) not to disclose such Confidential Information to any third parties, unless agreed to between the parties; and (iii) not to use any such Confidential Information for any purpose except for the Business Purpose. Each party may disclose the Confidential Information of the other party to its employees, consultants, advisers and other representatives who have a bona fide need to know such Confidential Information for the Business Purpose, but solely to the extent necessary to pursue the Business Purpose, or otherwise in connection with complying with applicable law or enforcing such party’s rights hereunder, and for no other purpose. Each party shall be responsible for any breach of this Agreement by any of its employees, consultants, advisers or other representatives as if such persons were party hereto. The provisions of this Section 3 will not restrict a party from disclosing the other party’s Confidential Information to the extent required by any law or regulation; provided that the party required to make such a disclosure uses reasonable efforts, to the extent it is legally permitted to do so, to give the other party reasonable, written notice in advance of such required disclosure in order to enable the other party to prevent or limit such disclosure.
E. All Confidential Information remains the sole and exclusive property of the Disclosing Party. Recipient shall not disclose any Confidential Information to third parties following the termination of this Agreement. Each party acknowledges and agrees that nothing in this Agreement will be construed as granting any rights to the receiving party, by license or otherwise, in or to any Confidential Information of the disclosing party, or any patent, copyright or other intellectual property or proprietary rights of the disclosing party. Recipient shall honor any request from the Disclosing Party to promptly return or destroy all copies of Confidential Information disclosed under this Agreement and all notes or other work product related to such Confidential Information.
2. NON-SOLICITATION; NON-CIRCUMVENTION.
A. The Parties, their agents, employees, assigns, servants, affiliates or designees will not at any time:
(1) intentionally solicit business, accept business, do business, contract to do business, initiate any contact, or have any contact, whether direct or indirect, through one or more intermediaries, with any business source, manufacturer, distributor, supplier, customer, lender, purchaser, end-user or other business contact of the other has identified or introduced to Recipient (each an “Contact”) unless the Disclosing Party shall have given its express prior written permission with respect thereto; provided that, this provision shall not apply or restrict the parties with respect to any Contact with whom Recipient (a) has a pre-existing relationship or (b) has an independent source secured by Recipient upon showing sufficient proof of same or is of common knowledge of the Parties; or
(2) attempt to circumvent the Disclosing Party with respect to any potential, identified and/or proposed opportunity the Disclosing Party is pursuing and made known to the Recipient, unless such potential, identified and/or proposed opportunity was already one of the Recipient’s pre-existing contacts, relationships, sources, customers, lenders, and/or investors before being made known to Recipient by the Disclosing Party.
B. For a period of two (2) years after the termination of this Agreement, the Parties hereby agree that neither of them nor any of their affiliates will solicit to employ or employ any of the current officers or employees or agents of the other without obtaining the prior written consent of the other, except for pre-existing contacts. Nothing contained herein shall be construed to restrict a party from any general forms of solicitation for employees not specifically directed toward employees or agents of the other through the use of media advertisements, professional search firms or otherwise.
3. NON-DISPARAGEMENT.
The Parties further agree neither party will disparage or defame the other party to this Agreement through negative statements, whether oral, written, in hard copy or electronic form. This prohibition includes, but is not limited to, statements made in person and/or through social media sites such as YouTube, Facebook, LinkedIn, MySpace and Twitter, etc.
4. REMEDIES AND ENFORCEMENT.
A. Injunctive and Other Relief. The Parties further recognize that if this Agreement is breached by a party, the remedy afforded by law may be inadequate; therefore, an injunction, specific performance, or other forms of equitable relief or money damages or any combination thereof shall be available. All rights, powers, and remedies provided for herein are cumulative and not exclusive of any and all rights, powers and remedies at law or in equity as may now or later exist.
B. Attorney’s Fees and Costs of Enforcement. In the event either Party must take legal action to enforce and/or seek redress for a breach of this Agreement, the prevailing party in any such legal proceeding shall be entitled to recover the costs and expenses, including reasonable attorney’s fees, incurred in enforcing this Agreement.
5. SEVERABILITY.
If any part of this Agreement is declared void or unenforceable, this Agreement shall be modified as minimally as necessary to remove the cause of the invalidity or unenforceability and/or limit it to a time period permissible under applicable law. If such a modification is not possible, the invalidity of any portion of this Agreement shall not affect the validity of the remaining part of this Agreement.
6. FORUM AND CHOICE OF LAW.
This Agreement and its enforcement, and any controversy arising out of or relating to the making or performance of this Agreement, shall be governed by and construed in accordance with the law of the State of New York, without regard to New York’s principles of conflicts of law. The Parties agree to submit to the exclusive jurisdiction of the State and Federal Courts located in New York for any dispute related to or arising under this Agreement. The Parties further agree that the State and Federal Courts located in Nassau County, NY shall be the exclusive forum for any dispute related to or arising under this Agreement, including, but not limited to the validity, breach, enforcement, or termination thereof.
7. MISCELLANEOUS
A. Both Parties acknowledge that they have been represented by their own independent counsel of their own choosing, and if not represented by counsel, have chosen not to be represented by counsel; and in construing and interpreting this Agreement it shall be deemed to have been drafted jointly by all the parties and the rule that ambiguity shall be construed against the drafter shall be inapplicable.
B. The terms of confidentiality under this Agreement shall not be construed to limit either party’s right to independently enter transactions and/or acquire products without use of the other party’s Confidential Information.
C. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. It shall not be modified except by a written agreement dated subsequent to the date of this Agreement and 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 Disclosing Party, its agents, or employees, but only by an instrument in writing signed by an authorized officer of Disclosing Party, its agents, or employees. 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.
D. Neither party will not assign its rights and under this Agreement without the prior written approval of the other party. Such approval will not release the assigning party from its obligations under the Agreement. This document may be signed in counterparts and deemed as one document. It may be signed by Facsimile and/or pdf format. All obligations created by this Agreement shall survive change or termination of the parties’ business relationship.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
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Signed by Pinchas Ackerman Signed On: September 8, 2020
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Document Name: Non-circumvent & Non-disclosure Agreement
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