TERMS AND CONDITIONS
This Agreement (“Agreement”) is entered into as of May 16, 2012 by and between Synergy IP Group, LLC (“SIG”) and the individual and/or entity representative (“Recipient”) viewing the information on the website located at: www.spinfryer.com (“Website Content”). SIG and Recipient are collectively referred to herein as the “parties”.
WHEREAS, the parties wish to enter into this Agreement for the purpose of binding Recipient to honor non-circumvention, non-compete, non-disclosure and confidentiality commitments with regard to viewing the Website Content and any and all discussions and/or business transactions resulting therefrom. WHEREAS, conditioned on Recipient’s acceptance of the terms and conditions contained herein, SIG agrees to allow Recipient to view the Website Content and explore a potential working relationship premised on mutual trust and confidence that will contribute to the common benefits of the parties herein, including their partners, employers, affiliates, subsidiaries, parent companies, nominees, representatives, employees, successors, clients and associated organizations (hereinafter referred to as “Associates”).
WHEREAS, Recipient recognizes that by viewing the Website Content and resulting discussions with SIG, Recipient will learn confidential information including, but not limited to, the Website Content itself, information which relates to business plans, agreements with third parties, services, trademarks, patents, patent applications, research, product plans, product developments, inventions, processes, designs, drawings, engineering formulae, markets, software (including source and object code), hardware configuration, computer programs or algorithms and the identities, company addresses, e-mail addresses, telephone and facsimile numbers (hereinafter referred to as “Confidential Information”) of clients, partners, vendors, customers, engineers, manufacturers, technology owners, suppliers, sellers, buyers, agents, brokers, financial institutions and distributors (hereinafter referred to as “Confidential Sources”) which SIG has acquired through years of invested time, expense and efforts and are therefore recognized as proprietary and exclusive to SIG.
NOW THEREFORE, in consideration of the mutual promises, assertions and covenants set forth herein, the parties herein mentioned hereby agree to abide by the following terms and conditions:
1. Term: The promises and commitments of each party hereunder shall continue for five (5) years from the date first written above.
2. Non-Circumvention and Non-Compete:
a) The Recipient, including its Associates, will not, directly or indirectly, circumvent or attempt to circumvent SIG in any pending or future transaction as related to SIG’s Confidential Sources and or Confidential Information.
b) The Recipient or its Associates will not, directly or indirectly, solicit nor accept any business at any time from Confidential Sources made available by SIG without the expressed written or verbal permission of SIG. It is understood that a Confidential Source introduced by SIG to a business transaction may have been already known to the Recipient even before the introduction of the transaction at hand (“Known Confidential Sources”). Succeeding transactions with Known Confidential Sources will not be deemed a breach of this Agreement. However, should it be established that the Confidential Source is completely unknown to the Recipient prior to the introduction of the transaction at hand, any succeeding unauthorized business transactions between the Recipient and the Confidential Source shall be considered a material breach of this Agreement.
c) During the Term of this Agreement, the Recipient shall not utilize the Confidential Information or Confidential Sources of SIG to develop any form of consumer and or commercial product that directly competes with SIG.
3. Confidential Sources: The Recipient and/or it’s Associates will maintain complete confidentiality regarding SIG’s Confidential Sources and the Recipient will not disclose Confidential Sources to third parties without the expressed written or verbal permission of SIG.
4. Confidential Information:
a) The Recipient agrees: (i) that it will maintain and preserve the confidentiality of such Confidential Information, including, without limitation, taking such steps to preserve the confidentiality of the Confidential Information as it takes to preserve the confidentiality of its own confidential information; (ii) that it will disclose such Confidential Information to its own employees on a “need-to-know'' basis, only, and only to such employees who have agreed to maintain the confidentiality thereof; (iii) that it will not disclose such Confidential Information to any third party (including subcontractors and consultants) without the express written consent of SIG; and (iv) that it will use such Confidential Information solely in its consideration of whether to enter into a business arrangement with SIG, and that it will not otherwise use Confidential Information for its benefit or the benefit of any third party.
b) The obligations in clause 4(a), above, will not apply to, and Confidential Information, as defined hereunder, will not include information or materials which (i) are already known to the Recipient at the time that they are disclosed by SIG; or (ii) are publicly known at the time of disclosure to the Recipient by SIG. However, the obligations in clause 4(a), above will cease as to particular Confidential Information from and after the date that the particular Confidential Information: (i) becomes publicly known through no fault of the Recipient; (ii) is received by the Recipient properly and lawfully from a third party without restriction on disclosure and without knowledge or reasonable suspicion that the third party's disclosure is in breach of any obligations to SIG; (iii) has been developed by the Recipient completely independent of the delivery of Confidential Information hereunder; or (iv) has been approved for public release by written authorization of SIG.
5. No Duplication; Return of Materials. Recipient agrees, except as otherwise expressly authorized by SIG, not to make any copies or duplicates of any Confidential Information. Any materials or documents that have been furnished by SIG to Recipient shall be promptly returned by Recipient, accompanied by all copies of such documentation, within ten (10) days after the written request of SIG.
6. No Rights Granted: Nothing in this Agreement shall be construed as granting any rights under any patent, copyright or other intellectual property right of SIG, nor shall this Agreement grant Recipient any rights in or to SIG’s Confidential Information other than the limited right to review such Confidential Information solely for the purpose of determining whether to enter into a business transaction.
7. Successors and Assigns: The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties, provided that SIG’s Confidential Information may not be assigned without the prior written consent of SIG. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.
8. Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then: (a) such provision shall be excluded from this Agreement; (b) the balance of the Agreement shall be interpreted as if such provision were so excluded; and © the balance of the Agreement shall be enforceable in accordance with its terms.
9. Independent Contractors. The parties are independent contractors, and nothing contained in this Agreement shall be construed to constitute the parties as partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking.
10. Governing Law; Jurisdiction: This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of California, without giving effect to principles of conflicts of law. Each of the parties hereto consents to the sole and exclusive jurisdiction and venue of the state and federal courts of Los Angeles County, California.
11. Remedies; Indemnification: The parties each agree that the obligations of each party set forth in this Agreement are necessary and reasonable in order to protect SIG and its business. The parties each expressly agree that due to the unique nature of SIG’s Confidential Information and Confidential Sources, monetary damages would be inadequate to compensate SIG for any breach by Recipient of its covenants and agreements set forth in this Agreement. Accordingly, the parties each agree and acknowledge that any such violation or threatened violation shall cause irreparable injury to SIG and that, in addition to any other remedies that may be available, in law, in equity or otherwise, SIG shall be entitled to: (a) obtain injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by Recipient, without the necessity or proving actual damages; and (b) to be indemnified by Recipient from any loss or harm, including but not limited to attorney's fees, arising out of or in connection with any breach or enforcement of SIG’s obligations under this Agreement or the unauthorized use or disclosure of SIG’s Confidential Information or Confidential Sources.
12. Amendment and Waiver: Any term of this Agreement may be amended with the written consent of both parties. Any amendment or waiver effected in accordance with this Section shall be binding upon the parties and their respective successors and assigns. Failure to enforce any provision of this Agreement by a party shall not constitute a waiver of any term hereof by such party.
13. Entire Agreement: This Agreement is the product of the parties hereto, and constitutes the entire agreement between such parties pertaining to the subject matter hereof, and merges all prior negotiations and drafts of the parties with regard to the matters contemplated herein. Any and all other written or oral agreements existing between the parties hereto regarding such matters are expressly canceled.
14. No Publicity: Recipient shall not, without the prior written consent of SIG, disclose to any other person the fact that Confidential Information of SIG has been and/or may be disclosed under this Agreement, that discussion or negotiations are taking place between the parties, or any of the terms, conditions, status or other facts with respect thereto, except as required by law and then only with prior notice as soon as possible to SIG.
15. Acceptance: These terms and conditions contained herein form the agreement between the Parties. Your completion of the requested information below and accessing the Website Content confirms your complete understanding, agreement to and acceptance of the full terms and conditions contained herein.