Non-Compete/Non-Disclosure Agreement
This reciprocal non-compete/non-disclosure agreement document (“Agreement”) is made between OptimalChange LLC (“Company”) and _____________________ (“Agent”). Company and Agent are parties to this Agreement. The Effective Date of this Agreement is ____________, 20__.
RECITALS
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Company and Agent are participating in mutual discussions (“Discussions”) regarding a business venture involving Company’s proprietary information, intellectual property, or other trade secret information.
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In connection with these Discussions, Company and Agent will each provide to each other certain Confidential Information (as defined in this Agreement).
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Company and Agent wish to provide the Confidential Information to each other on the terms and conditions set forth herein.
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Furthermore, in consideration of the Confidential Information, Company and Agent agree to the non-compete/non-disclosure agreement set forth herein.
In consideration of the receipt by the parties of the Confidential Information, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:
1. Confidential Information. For purposes of this Agreement, “Confidential Information” shall mean any information or material that is proprietary to a party or designated as Confidential Information by a party and not generally known by non-party personnel, including but not limited to, all confidential and proprietary information relating to the business of the parties, and includes (but is not limited to) business plans, marketing plans, financial projections and other financial information, intellectual property matters, web site content and development, trade secrets, contracts, customer lists, Agents and employee matters. The term “Confidential Information” includes information in both oral and written form, or contained in any other type of storage medium. Information relating to the providing party’s consultants, employees, customers, Agents, research and development, software, or marketing plans is also considered Confidential Information.
2. Agents & Employees. All Confidential Information disclosed by the disclosing party (the “Owner”) to the receiving party (the “Recipient”) shall be treated by the Recipient and by its partners and employees, as confidential and shall be maintained by the Recipient and its partners and employees in confidence and shall not be disclosed to anyone in any form without the prior written consent of the Owner. The Confidential Information shall not be used by the Recipient or its partners or employees other than in connection with the Discussions.
3. Communication of Confidential Information. The Recipient shall transmit the Confidential Information for the purposes of the Discussions only to those persons who are informed by the Recipient of the confidential nature of the Confidential Information or who shall reasonably be aware of the confidential nature of the Confidential Information, who shall have previously agreed to be bound by the terms and conditions of this Agreement and who are required to see the Confidential Information in connection with the Discussions. In any event, the Recipient shall be responsible for any breach of this Agreement by any of its partners or employees as if liable under respondent superior.
4. Exclusions. The following shall not be deemed to constitute Confidential Information and shall not be subject to the restrictions set forth in this Agreement.
A. Information that is now or later becomes generally known in the industry through no fault of the Recipient, is later distributed or generally disclosed to the public by the Owner, or is obtained from a third party by the Recipient and the Recipient believes that the third party has a legal right to transmit the information.
B. Information that is otherwise lawfully developed by the Recipient, or lawfully acquired by the Recipient from a third party. “Lawfully developed” shall mean information that is independently developed as shown by the books and records of the developer. “Lawfully acquired” shall mean acquired from a third party without restrictions on further disclosure when the third party had the right to provide the information to the party receiving the information.
5. Return or Destruction. The Confidential Information, including the analyses, compilations, studies or other documents, tapes or software prepared or delivered by the Owner will be returned to the Owner or destroyed immediately upon the request of the Owner, and the Recipient shall not retain any copies thereof.
6. Accurateness. Although each providing party has endeavored to include in the Confidential Information certain information which it considers to be relevant for the purpose of the Discussions, the parties acknowledge that each providing party makes no representation or warranty as to the accuracy or completeness of the Confidential Information. Each receiving party agrees that neither the providing party nor any of its directors, officers, employees, affiliates, agents, advisers or representatives shall have any liability to the receiving party or to any of its representatives resulting from the use of the Confidential Information, except in accordance with representations and warranties that may be made in any definitive agreement entered into by the parties with respect to the Discussions.
7. Discussions. The parties understand and agree that no agreement with respect to the Discussions shall be deemed to exist unless and until a mutually acceptable and final definitive written agreement has been executed by the parties. Company and Recipient each reserve the right, at any time and without any liability, to
A. Reject any proposals from the other party,
B. Terminate negotiations with the other party regarding the Discussions, or
C .Enter into a transaction similar to the Discussions with a third party without notice to the other party; provided that no such event will relieve either party from its obligations under this Agreement.
8. Term. The term of this Agreement (the "Term") will commence as of the Effective Date and continue for two years.
9. Termination. This Agreement will be subject to early termination if both parties agree in writing to the termination of this agreement.
10. Arbitration Clause. Any claim, dispute or controversy between the Parties or claim by either Party against the other Party arising from or relating to this Agreement or the relationships which result from this Agreement, no matter against whom made, including the applicability of this arbitration clause and the validity of the entire Agreement, shall be resolved by neutral binding arbitration by the National Arbitration Forum, under the Code of Procedure then in effect. The Parties understand that they would have had a right or opportunity to litigate disputes through a court and to have a judge or jury decide their case, but they choose to have any disputes decided through arbitration.
11. Representations and Warranties of Agent. Agent represents and warrants to Company that the following statements will be followed:
A. Employ or otherwise contract for services with all Agent personnel.
B. Follow and cause all personnel to follow all protocols established by Company.
C. Comply with all applicable laws and regulations in connection with this Agreement performed by Agent.
D. Electronic content created by Agent for the Company is the exclusive ownership of the Company.
E. Provide notice to Company upon the occurrence of any event which may have a material adverse effect Agent’s ability to fulfill its obligations under this Agreement, including any:
F. Change in the license or certification or any denial, suspension, revocation, termination or relinquishment of any license of any Agent personnel.
G. Event that may affect Agent’s ability to perform its obligations under this Agreement.
H. Failure or inability of Agent to comply with the terms of this Agreement.
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Disclaimer. Company disclaims any liability of the Representations and Warranties by Agent.
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General Provisions.
A. Severability. If any provision of this Agreement is or becomes invalid under any provision of federal, state or local law, such invalidity shall not affect the validity and enforceability of any other provision hereof.
B. Integration and Amendments. This Agreement sets forth the complete and exclusive understanding of the Parties with respect to the subject matter hereof, and no amendment, change or modification shall be effective unless in writing and signed by both Parties hereto. This Agreement constitutes the final expression of the understanding of the Parties.
C. Applicable Law. This is made under and shall be governed by and construed in accordance with the laws of the State of Virginia. The venue for any action to interpret or enforce this Agreement shall be in the County of Fairfax in the State of Virginia.
D. Assignment. Neither party may assign this Agreement. Any attempt to assign this Agreement shall be void.
E. Waiver. The waiver of a breach of any provision of this Agreement by either Party shall not operate or be construed as a waiver of any subsequent breach.
F. Headings. The headings used in this Agreement are included for purposes of convenience of reference only, and shall not affect the construction or interpretation of any of its terms.
G. Construction. Throughout this Agreement, the singular shall include the plural and the plural shall include the singular, all genders shall be deemed to include other genders, wherever the context so requires, and the terms “including,” “include” or derivatives thereof, unless otherwise specified, shall be interpreted in as broad a sense as possible to mean “including, but not limited to,” or “including, by way of example and not limitation.”
H. Further Acts. Upon reasonable request from either Party, from time to time, each Party shall execute and deliver such additional documents and instruments and take such other actions as may be reasonably necessary to effectively modify this Agreement. Any such modification must be made with the agreement of both Parties in writing and shall constitute a modification to this Agreement unless Parties agree to enter into a new contract. Sufficient additional consideration shall be considered necessary for modification under the pre-existing duty rule.
I. Attorneys’ Fees. In the event of any litigation or arbitration proceedings between the parties hereto concerning the subject matter of this Agreement, the prevailing party in such litigation or proceeding shall be awarded, in addition to the amount of any judgment or other award entered therein, the costs and expenses, including reasonable attorneys’ fees, incurred by the prevailing Party in the litigation or proceeding.
J. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
THE PARTIES have duly executed this Agreement to be effective as of the Effective Date, notwithstanding the actual date of execution.
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