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CONFIDENTIALITY, NON-DISCLOSURE, NON-COMPETITION
and NON-CIRCUMVENTION AGREEMENT
This Confidentiality, Non-Disclosure and Non-Circumvention Agreement ("Agreement") is entered into as of (date of Subscriber Sign Up)(the "Effective Date"), by and between Surplus List Inc., a California Corporation having its principal place of business atLaguna, CA(collectively "SURPLUS List") and (Subscriber' Full Name), having its principal place of business at (collectively, "Counterparty").
R E C I T A L S
SURPLUS LIST and COUNTER PARTY desire to enter into discussions regarding the possibility of establishing a mutually beneficial business relationship including: real estate services, real estate services, tax lien services, real estate education classes, surplus fund classes and mortgage surplus fund services (the "Collaboration").
For purposes of exploring the Collaboration, COUNTER PARTY desires from SURPLUS LIST certain information, data, terms, concepts, ideas, strategies, contacts, introductions and relationships that each party deems confidential.
SURPLUS LIST is willing to disclose and/or cause to be disclosed to each other certain information, data, terms, concepts, ideas, strategies, contacts, introductions and relationships that it deems confidential; provided, however, that such disclosure is subject to the terms and conditions hereof.
A G R E E M E N T
NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the parties hereto agree as follows:
1. The term "Confidential Information" as used herein shall mean (a) any and all information that is conspicuously marked as being of a confidential, proprietary or of a secret nature received by one party hereto (the "Recipient Party") from SURPLUS LIST hereto (the "Disclosing Party") regarding the Collaboration, and (b) any and all information gathered by either party in the course of discussing and/or implementing the Collaboration, whether written or oral, and if written, however produced, that is conspicuously marked, or would logically be considered, confidential, proprietary or of a secret nature and the subject matter of this Agreement, and which information shall include, without limitation, (i) all ideas, concepts, strategies, corporate and financing structures, data, summaries, reports, drawings, charts, specifications, forms, materials, term sheets, agreements and contracts (including this Agreement) relating in any way to the Collaboration, and (ii) all information of any nature concerning either party's financial contacts and resources, distribution contacts and resources, technical information and know-how, business dealings and negotiations with third parties, potential mergers and acquisitions, shareholders, members, clients, employees, consultants and affiliates.
2. The term "Confidential Information" does not include information which (a) is publicly available or becomes generally available to the public other than as a result of a disclosure by the Recipient Party, (b) becomes available to the Recipient Party on a non-confidential basis from a source other than the Disclosing Party, provided that the Receiving Party reasonably believes the source to have rightfully and lawfully obtained such information and such source is not bound by a confidentiality agreement or other obligation of secrecy with the Disclosing Party, (c) is independently developed by the Recipient Party, or (d) the Disclosing Party agrees in writing may be disclosed as set forth in Section 4 herein.
3. The provisions of this Agreement prohibiting disclosure of Confidential Information shall not apply to Confidential Information that the Recipient Party is lawfully required to disclose pursuant to an order of a court of competent jurisdiction, provided that before making such disclosure the Recipient Party shall promptly notify the Disclosing Party of such disclosure order and given the Disclosing Party a reasonable opportunity to quash such order and to obtain a protective order requiring that the information and/or documents that are the subject of such order be held in confidence by such court or agency or, if disclosed, be used only for the purposes for which the order was issued, provided, further, that if a disclosure order is not quashed or a protective order is not obtained, the Confidential Information disclosed in a response to such court or governmental order shall be limited to that Confidential Information which are legally required to be disclosed in such response to such court or governmental order.
4. Each party hereto agrees that it shall not, at any time, disclose, in whole or in part, the Confidential Information to any third party, without first obtaining express written permission from the Disclosing Party. Each party further and specifically agrees not to disclose, in whole or in part, the Confidential Information (including without limitation, the provisions of any term sheets or letters of intent) to any third parties with whom SURPLUS LIST and COUNER PARTY may be in negotiations regarding the Collaboration. Neither party may reveal Confidential Information to any affiliates, persons or other entities except those who are deemed by the Recipient Party to be necessary for the purpose of discussing or evaluating the Collaboration, and provided that the Confidential Information will be used by such affiliates, persons or other entities (including attorneys and accountants) solely in connection with the Collaboration. The Recipient Party shall take all necessary and appropriate precautions to avoid the unauthorized disclosure of Confidential Information. All references to Group or Company in this Agreement shall include all affiliates of Group or Company, respectively, specifically including (named affiliates). As used in this agreement, "affiliates" shall include but shall not be limited to (a) any entities of which either respective party is an employee, officer, director, partner, member, ten percent or greater shareholder, and any subsidiaries, partnerships or any other entities controlled by such entities, (b) all officers, directors, agents, employees, partners, ten percent or greater shareholders, consultants and advisors of each respective party, and (c) any entity newly formed by either party subsequent hereto under the same or a similar name.
5. If at any time the Disclosing Party requests in writing, the Recipient Party shall immediately return to the Disclosing Party or, with the Disclosing Party's consent destroy, all written and tangible Confidential Information originating with the Disclosing Party (including without limitation, all documents, business plans, booklets, proposals, confidential memoranda, term sheets, letters, memos, drawings, charts, specifications, discs, magnetic tapes, electronic files and data bases) and any and all copies thereof. Such return or destruction of Confidential Information shall be certified in writing by the Recipient Party.
6. Confidential Information shall remain the sole and exclusive property of the Disclosing Party. The Recipient Party shall make no commercial use whatsoever, in whole or in part, of the Confidential Information, shall not use the Confidential Information to establish or operate or assist anyone in the establishment or operation of a business, product or service similar or in competition, directly or indirectly, with the business of the Disclosing Party anywhere in the world. Further, the Recipient Party shall not mechanically copy or otherwise reproduce the Confidential Information, except as may be necessary to evaluate and/or implement the Collaboration. Nothing herein shall be construed as to grant the Recipient Party any right or license under any patent, copyright, trademark or any other right relating to the Confidential Information. Each party understands and agrees that any and all contracts prepared by the other party hereto (not including the form of this Agreement) are protected by copyright and/or by this Agreement and the Recipient Party may not copy or use in any manner, all or any portion of, such contracts for any purpose other than in connection with the Collaboration.
7. The parties hereto acknowledge that the Confidential Information protected hereunder is of an extraordinary nature and value and cannot, in the event of any unauthorized disclosure or use by the Recipient Party, be adequately or reasonably compensated for in damages awarded in an action at law. Each party therefore agrees that in the event of such unauthorized disclosure or use by the Recipient Party, the Disclosing Party shall be entitled to require of the Recipient Party specific performance of all acts and undertakings so required hereunder and to obtain injunctive and other equitable relief to prevent any further violation of any provisions herein. In any action taken by the Disclosing Party to enforce its rights under this Agreement, the Disclosing Party shall be entitled to recover its costs of enforcement, including reasonable attorney's fees. In no event shall injunctive relief be considered the Disclosing Party's exclusive remedy for any breach or violation by the Recipient Party of its obligations under this Agreement.
8. The Recipient Party will not, in any manner, circumvent, or attempt to circumvent, the Disclosing Party by entering into any direct or indirect negotiations, communications, or transactions, or solicit or accept any business from or for, any parties, contacts or sources introduced ("Introduced Party") to the Recipient Party by the Disclosing Party, without the express prior written consent of the Disclosing Party. Notwithstanding of the Recipient Party's potential knowledge of the Introduced Party prior to the Disclosing Party's introduction, any of the parties, contacts and sources introduced is subject to the appropriate provisions set forth in this Agreement as Introduced Party.
9. The Recipient Party shall not offer competing services of any kind in the State of California, regarding any services included in the Collaboration for a period of 3 years from the Effective Date of this agreement.
10. The Recipient Party will not disclose to any third parties any names, addresses, telephone numbers, fax numbers, or email addresses of any Introduced Party other than in connection with the Collaboration subject to the provisions in Section 4, and the Recipient Party recognizes that such information about any Introduced Party is the exclusive and valuable property of the Disclosing Party.
11. Should the parties desire to singularly or jointly work on a project with either party's clients in the future, a separate agreement that contains but not limited to, the terms of each party's fee and duty with a fair and mutual consideration for both parties will be agreed to and entered into by the parties in writing prior to commencing work with each such party's client.
12. If any service fees are paid, directly or indirectly, by or for the Introduced Party to or for the benefit of the Recipient Party, or vice versa, in violation of the non-circumvention or non-competition provisions in this Agreement during a period of three (3) consecutive calendar years commencing on the Effective Date, then, in each and every such occurrence, the Recipient Party shall pay the Disclosing Party or Parties a fee ("Fee") in an amount equal to twenty percent (20%) of the total value of all such payments or $100,000.00 whichever is greater. In each every such occurrence, the Fee shall be due and payable within seven (7) calendar days of the consummation, transfer, delivery, payment and/or receipt of benefit of any of the aforementioned payments other consideration at the Disclosing Party's instruction. However, the Fee due and payable to the Disclosing Party does not constitute the recovery and/or repayment of the Disclosing Party's damage in whole unless agreed by the parties in writing.
13. Each party hereby warrants, represents and covenants to the other that (a) each respective party has the right to enter into this Agreement and to perform fully all of its obligations herein, and (b) each respective party is not a party to any other agreement or under any other obligation to any third party which would prevent it from entering into this Agreement and complying with the terms and conditions set forth herein.
14. The obligations of each party set forth in this Agreement shall remain in full force and effect for a period of two (2) calendar year following the Effective Date.
15. This Agreement shall not be assigned by any of the parties hereto.
16. This Agreement contains the full and complete understanding between the parties with regard to the subject matter hereof and cannot be modified or amended except by a written instrument signed by each party. This Agreement supersedes all prior agreements, whether written or oral, between the parties with regard to the subject matter hereof. Each party hereto acknowledges that no representation or promise not expressly contained in this Agreement has been made by the other party.
17. This Agreement may be executed in several counterparts, each of which shall be an original as against any party who signed it. This Agreement shall not be binding on any party until each party hereto has executed this Agreement or a counterpart hereof and delivered such executed Agreement or counterpart, whether by facsimile or otherwise, to the other parties hereto or to their respective representatives. In the event that any provision contained in this Agreement shall be (i) held by any court or arbitration tribunal to be unenforceable, illegal, void or contrary to public policy, or (ii) in conflict with any applicable statute, law, regulation or applicable collective bargaining agreement, then such provision shall be of no force or effect; provided, however, that in such event the provision of this Agreement so affected shall be curtailed and limited only to the minimum extent necessary to permit compliance with the minimum required, and no other provisions of this Agreement shall be affected thereby and all such other provisions shall continue in full force and effect. No waiver by either party of any rights hereunder nor the failure of either party to enforce against the other any provision, covenant or condition of this Agreement shall be deemed to be a waiver of any preceding or succeeding breach of the same or any other provision, covenant or condition. All remedies, rights, undertakings, obligations and agreements contained in this Agreement shall be cumulative. If more than one person or entity executes this Agreement on behalf of any party hereto, all obligations and benefits hereunder shall apply jointly and severally. This Agreement shall inure to the benefit of the parties hereto and to their respective successors, heirs and assigns, subject to any restrictions on assignment contained elsewhere herein. Any rules of interpretation that ambiguities are to be construed against the drafting party shall not apply. Time is of the essence of every obligation under this Agreement that involves a time deadline for performance. In the event of any dispute, the parties shall be subject exclusively to binding arbitration subject to the rules and regulations of the American Arbitration Association Commercial Part to be conducted in English in Orange County, California and decided according to California Law.