Spark Factory NDA
MUTUAL NONDISCLOSURE AGREEMENT
This Mutual Nondisclosure Agreement (the “Agreement”) is effective as of (“Effective Date”) listed below by and between Pilates Web Co, DBA Spark Factory et al, located at 4445 Corporation Lane Suite 275 Virginia Beach, VA 23462 and and located at herein referred to as "parties." The Parties are considering a potential business transaction (the “Opportunity”), and are entering into this Agreement so that they can share confidential information pertinent to the Opportunity with confidence that the other Party will use such confidential information only to evaluate the Opportunity and will not disclose that confidential information, except in accordance with the terms of this Agreement.
The parties wish to explore a potential business opportunity of mutual interest (the “Relationship”). This Agreement is intended to allow the parties to discuss and evaluate the Relationship while protecting the parties’ Confidential Information (as defined below) against unauthorized use or disclosure, and if a business Relationship is created, to protect the parties’ Confidential Information throughout that Relationship and thereafter.
2) Confidential Information.
“Confidential Information” means all information concerning or related to the business, vendors, costs, operations, results of operations, assets and affairs of a Disclosing Party, including, but not limited to, financial and accounting information, budgets, projections, forecasts, business plans, operating methods, business strategies, product and service information, product plans, product specifications, product designs, processes, plans, drawings, concepts, research and development data and materials, systems, techniques, trade secrets, intellectual property, software programs and works of authorship, know-how, marketing and distribution plans, planning data, marketing strategies, price lists, market studies, employee lists, supplier lists, customer and prospect lists, and supplier and other customer information and data that the Disclosing Party or its Representatives discloses (or has, prior to the date of this Agreement, disclosed) to the Recipient or its Representatives in connection with the Opportunity.
Each Party in its capacity as a Recipient agrees to use the Confidential Information provided by the other Party solely for the purpose of evaluating the Opportunity, and for no other purpose, and further agrees to keep confidential and not disclose to any third party any Confidential Information.
The parties acknowledge and agree that some or all of the property that constitutes parties confidential information may not be a trade secret or qualify for protection under copyright or patent law. The parties nevertheless acknowledge the property rights of all parties and Confidential information without regard to whether the Confidential information is or may be subject to protection under any copyright, patent, trade secret or other laws, it being the specific intent of the parties that the provisions of this Agreement are to be in addition to any protection, right or remedy otherwise provided by law or available in equity.
The term of this Agreement shall be three (3) years commencing on the date of mutual execution and will continue if such business relationship continues.
5) Confidentiality Covenants.
a) The party disclosing the confidential information shall hereinafter be referred to as the “Disclosing Party” and the party receiving the confidential information shall hereinafter be referred to as the “Receiving Party”. Either party may be a Disclosing Party, Receiving Party, or both depending on the confidential information being exchanged.
b) The Receiving Party, and each of its Affiliates, including the agents, partners, directors and officers thereof shall not, without prior written consent of the Disclosing Party, at any time, in any fashion, form or manner, either intentionally or otherwise, directly or indirectly, divulge, disclose or communicate any of the Disclosing Party’s Confidential information to any third person, partnership, joint venture, company, corporation, entity or other organization or use the Disclosing Party’s Confidential information other than in connection with the Relationship. The following categories shall not constitute the Disclosing Party’s Confidential Information:
1) Information already known to or otherwise in the possession of the Receiving Party or any of its Affiliates prior to the time of disclosure by the Disclosing Party;
2) Information which is independently and lawfully discovered after the date hereof by the Receiving Party or its Affiliates without the aid, application or use of the Confidential Information;
3) Information publicly available or otherwise in the public domain through no fault or action by the Receiving Party;
4) Information rightfully obtained after the date hereof by the Receiving Party or its Affiliates from any third party which is lawfully in possession of such information and to the Receiving Party’s actual knowledge which is provided by such third party without violating any contractual or legal obligation of such third party to the Disclosing Party or to any of the Disclosing Party’s Affiliates with respect to such information; or
5) Information disclosed without restriction pursuant to judicial action or governmental regulation provided the Receiving Party has notified the Disclosing Party prior to such disclosure and reasonably cooperates with the Disclosing Party in the event the Disclosing Party elects to legally contest and avoid such disclosure.
c) The Receiving Party shall disclose or give access to the Disclosing Party’s Confidential information only to partners, principals, agents, Clients or employees of the Receiving Party having a need to know in connection with the investigation of and, where applicable, carrying out the Relationship and only for use in connection therewith. The Receiving Party’s personnel having access to the Disclosing Party’s Confidential information shall advise such personnel of the confidential and proprietary nature thereof and shall treat such confidential information as its own proprietary information that the Receiving Party’s personnel will maintain the confidentiality of the Disclosing Party’s Confidential information in accordance with the terms of this Agreement.
d) Each Party’s obligations hereunder shall survive the termination of this agreement indefinitely in connection with trade secrets disclosed during the course of the Relationship.
6) No Circumvention Covenants.
The Receiving Party shall not at any time, for a period of three (3) years from the date of execution of this Agreement, without the prior written consent of the Disclosing Party, which consent may be withheld in the Disclosing Party's sole discretion, by-pass, compete, avoid, circumvent, or attempt to circumvent the Disclosing Party in any manner to deal directly with any of the Disclosing Party's customers, vendors or contacts in any way, in an attempt to obtain them as their own.
7) Specific Enforcement.
The parties each agree that its obligations set forth in this Agreement are necessary and reasonable in order to protect the Disclosing Party and its business. The parties each expressly agree that due to the unique nature of the party's confidential information, monetary damages may be inadequate to compensate the Disclosing Party for any breach by the Receiving Party of its covenants and agreements set forth in this Agreement. Accordingly, the Receiving Party agrees and acknowledges that any such violation or threatened violation may cause irreparable injury to the Disclosing Party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the Disclosing Party shall be entitled to obtain injunctive relief.
8) No Waiver.
No action taken by either party in connection with this Agreement, including any investigation by or on behalf of such party, shall be deemed to constitute a waiver of compliance with any representation, warranty, covenant or agreement contained herein, or in any document delivered by the Disclosing Party in connection with the activities contemplated by this Agreement. The waiver by either party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach.
9) No Rights Granted.
Nothing in this Agreement shall be construed as granting any rights under any patent, copyright, trademark or other intellectual property right of the Disclosing Party, nor shall this Agreement grant the Receiving Party any rights in or to the Disclosing Party’s Confidential information other than the limited right to review such Confidential Information, solely for the purpose of determining whether to enter into the Relationship.
Wherever possible, each provision of this Agreement shall be interpreted in such a manner as to be valid of full force and effect, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions of this Agreement.
11) Jurisdiction; Governing Law.
The parties expressly agree that exclusive jurisdiction for any claim or dispute relating in any way to this Agreement resides in the courts of the jurisdiction of the State of Virginia, City of Virginia Beach, and agree and expressly consent to the exercise of personal jurisdiction of said Courts.
This Agreement may be executed in one or more counterparts, including by means of facsimile (or similar electronic transmission method) signature pages, each of which shall be deemed to be an original and together which shall constitute one and the same instrument.