THIS AGREEMENT (the “Agreement”) is made and entered into as of the date the last party executes this Agreement (the “Effective Date”), by and between Noel Events Holding, LLC, a Florida limited liability company (“Disclosing Party”) and the undersigned receiving party (“Receiving Party”).
Whereas, Disclosing Party and Receiving Party wish to engage in discussions relating to a potential business relationship between them (the “Relationship”);
Whereas, in connection with such discussions, it will be necessary for Disclosing Party to provide certain of its Confidential Information (as defined below) to Receiving Party; and
Whereas, Disclosing Party would not disclose such Confidential Information or discuss or consider the Relationship but for Receiving Party’s agreement not to use or disclose its Confidential Information.
Now, therefore, in consideration of the foregoing premises and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged:
- Incorporation of Recitals. The foregoing recitals are true and correct and expressly incorporated in this Agreement.
- Confidential Information. All information and documents provided to or made available to Receiving Party by Disclosing Party or pursuant to the efforts of Disclosing Party are hereinafter referred to as “Confidential Information.” Confidential Information shall include, without limitation, organizational documents, deck, business plans, investment memoranda and other information, all methods and systems, software (whether source or object code), databases, names and addresses of actual or potential customers, suppliers, members and shareholders, prices, license agreements, technical memoranda, designs and specifications, new product and service developments, trademarks or service marks, comparative analyses of competitive products, services and operating procedures and other information, data, documents, technology, know-how, processes, trade secrets, contracts, proprietary information, historical and projected financial information, operating data and organizational and cost structures, now or hereafter existing or previously developed or acquired, whether any such information, data or documents qualify as “trade secrets” under applicable law. Notwithstanding anything to the contrary set forth herein, Recipient shall not reverse engineer, disassemble or decompile any software or other tangible or intangible objects which embody or incorporate Disclosing Party’s Confidential Information. Further, and without limiting the foregoing, Recipient shall not share any access codes, user names, passwords, screen shots or any other means or methods of accessing Disclosing Party’s Confidential Information with any other person or party without receiving prior express written consent of Disclosing Party.
- The Confidential Information Shall Only be Used to Evaluate the Relationship. Receiving Party hereby covenants and agrees that any Confidential Information which Disclosing Party discloses or has previously disclosed to Receiving Party (a) shall only be used by Receiving Party for the sole purpose of evaluating the Relationship, and shall not be used or disclosed by Receiving Party for any other reason, including, without limitation for the commercial benefit of Receiving Party or any third party or for any purpose other than in connection with the Relationship, (b) shall be kept in strict confidence by Receiving Party, using the same degree of care that Receiving Party uses for Receiving Party’s own confidential information, but in no event less than a reasonable degree of care, and (c) shall not be disclosed by Receiving Party to any other person or entity other without Disclosing Party’s prior written consent, which may be withheld in Disclosing Party’s sole discretion, provided that Receiving Party may disclose Confidential Information to Receiving Party’s attorney(s) or financial advisor(s) (x) to the extent necessary to assist Receiving Party in evaluating the Relationship, (y) each such party is under a written or legal obligation not to use or disclose the Confidential Information consistent with Receiving Party’s obligations under this Agreement, and (z) Receiving Party shall be liable for any unauthorized use or disclosure, or other breach of this Agreement by any attorney or financial advisor to whom it discloses Confidential Information.
- Disclosing Party’s Ownership of the Confidential Information. Receiving Party acknowledges and agrees that the Confidential Information, all copies and manifestations of the same and all intellectual property and other rights with respect thereto, are, and shall remain at all times, the exclusive property of Disclosing Party or its third party licensors Except for the limited right to review the Confidential Information for the sole purpose of evaluating the Relationship granted in this Agreement, Disclosing Party does not grant, transfer or assign to Receiving Party any right, title or interest in or license to such Confidential Information or any intellectual property rights thereto. DISCLOSING PARTY MAKES NO REPRESENTATION OR WARRANTY, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE CONFIDENTIAL INFORMATiON. Disclosing Party does not represent or warrant that any product or business plans disclosed as part of the Confidential Information will be marketed or carried out as disclosed, or at all. Any actions taken by the Receiving Party in connection with the Confidential Information or the Relationship shall be solely at the risk of Receiving Party.
- Acknowledgement of Value of the Confidential Information. Receiving Party acknowledges and agrees that the Confidential Information is a special and unique asset of Disclosing Party, created and/or obtained by Disclosing Party at time and expense, from which Disclosing Party may or does derive independent economic value from the Confidential Information not being public information.
- Return of the Confidential Information. If either party hereto terminates the discussions regarding the Relationship for any reason or no reason, Receiving Party shall immediately return to Disclosing Party: (a) all copies and manifestations of, and other documents containing or derived from the Confidential Information in Receiving Party’s possession or control; and (b) all documents, other materials and equipment provided by Disclosing Party (collectively, the “Disclosing Party Property”). Receiving Party acknowledges and agrees that Disclosing Party Property is, and shall remain at all times, the exclusive property of Disclosing Party. Further, if requested by Disclosing Party, Receiving Party shall execute and deliver a certificate signed by an authorized officer of Receiving Party (or if Receiving Party is an individual, that individual) that all such information has been returned, and that none of the Confidential Information has been retained by Receiving Party in any form.
- Disclosing Party May Seek Equitable Remedies. Receiving Party acknowledges and agrees that Disclosing Party cannot be made whole or have its interests completely protected solely by a monetary award of damages in the event of any breach of this Agreement by Receiving Party. Accordingly, Receiving Party agrees that if it breaches or threatens to breach any of the terms of this Agreement, Receiving Party will consent to the issuance of a temporary and/or permanent injunction by any court of competent jurisdiction (without demonstration of actual damages or the posting of a bond or other type of security) enjoining Receiving Party from such breach of the terms of this Agreement. This remedy is in addition to any other rights or remedies available to Disclosing Party.
- Indemnity. Receiving Party agrees to indemnify and hold harmless Disclosing Party from and against any and all loss, liability, cost or expense based upon, arising out of or otherwise in respect of any breach or violation of this Agreement.
- Survival. Receiving Party’s obligations of confidentiality under this Agreement shall survive the termination of discussions regarding the Relationship for any reason or no reason and shall survive for a period of five (5) years from the Effective Date; provided, however, that non-disclosure and non-use obligations with respect to Disclosing Party’s Confidential Information shall not terminate for any trade secret until such time as such trade secret is no longer a trade secret under applicable law, and the obligation not to reverse engineer, disassemble or decompile any software or other tangible or intangible objects of Disclosing Party shall survive indefinitely.
- Non-Circumvention. Receiving Party agrees that for a period of three (3) years from the Effective Date, it will not, directly or indirectly (a) solicit, negotiate, contract or enter into any business transactions, agreements or undertakings with any third parties that have been introduced or otherwise referred by Disclosing Party, (b) seek to by-pass, avoid or circumvent Disclosing Party in any business dealings originated or initiated by Disclosing Party with respect to a client, prospective client, business opportunity or business contact or by otherwise exploiting or deriving any benefit from the Confidential Information, or (c) solicit or hire employees or officers of Disclosing Party to work for Receiving Party or any other person or entity that is then in competition with Disclosing Party.
- Governing Law. This Agreement and all transactions contemplated by this Agreement shall be governed by, and construed and enforced in accordance with, the internal laws of the state of Florida without regard to principles of conflicts of laws.
- Jurisdiction and Venue. The parties hereto acknowledge that a substantial portion of the negotiations, anticipated performance and execution of this Agreement occurred or shall occur in Miami-Dade County, Florida. ANY CIVIL ACTION OR LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE BROUGHT EXCLUSIVELY IN THE COURTS OF RECORD OF THE STATE OF FLORIDA IN MIAMI-DADE COUNTY OR THE UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF FLORIDA. THE PARTIES HERETO CONSENT TO THE EXCLUSIVE JURISDICTION OF SUCH FLORIDA COURT IN ANY SUCH CIVIL ACTION OR LEGAL PROCEEDING AND WAIVES ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUCH CIVIL ACTION OR LEGAL PROCEEDING IN SUCH FLORIDA COURT. Service of any court paper may be effected on the parties by mail, as provided in this Agreement, or in such other manner as may be provided under applicable laws, rules of procedure or local rules.
- Enforcement Costs. If any civil action, arbitration or other legal proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any provision of this Agreement, the successful or prevailing party or parties shall be entitled to recover reasonable attorneys’ fees, court costs, sales and use taxes and all expenses even if not taxable as court costs (including, without limitation, all such fees, taxes, costs and expenses incident to arbitration, appellate, bankruptcy and post judgment proceedings), incurred in that proceeding, in addition to any other relief to which such party or parties may be entitled. Attorneys’ fees shall include, without limitation, paralegal fees, investigative fees, administrative costs, sales and use taxes and all other charges billed by the attorney to the prevailing party (including any fees and costs associated with collecting such amounts).
- No Construction Against Draftsmen. The parties hereto acknowledge that this is a negotiated agreement, and that in no event shall the terms of this Agreement be construed against one party on the basis that such party, or its counsel, drafted this Agreement.
- Entire Agreement. This Agreement and all exhibits and schedules attached to this Agreement, if any, represent the entire understanding and agreement between the parties with respect to the subject matter of this Agreement, and supersedes all other negotiations, understandings and representations (if any), whether oral or written, made by and between such parties. There have been no representations, express or implied, other than as set forth in this Agreement. No party has been induced to enter into this Agreement by any representation not expressed herein.
- Amendments. The provisions of this Agreement may not be amended, supplemented, waived or changed orally, but only by a written instrument specifically referencing this Agreement and signed by all parties hereto.
- Assignment. Receiving Party may not assign this Agreement to any third party without the consent of Disclosing Party. The terms and conditions contained in this Agreement shall inure to the benefit of, and be binding upon, the successors and permitted assigns of the parties.
- No Waiver. No delay or omission by Disclosing Party to exercise any right or power occurring upon any noncompliance or default by Receiving Party with respect to any of the terms of this Agreement shall impair any such right or power or be construed to be a waiver thereof. A waiver by Disclosing Party hereto of any of the covenants, conditions, or agreements to be performed by Receiving Party shall not be construed to be a waiver of any succeeding breach thereof or of any covenant, condition, or agreement herein contained.
- Titles and Subtitles. The titles of the sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement.
- Singular and Plural Usages. Whenever used in this Agreement, the singular number includes the plural, the plural number includes the singular and the use of any gender includes all genders.
- Counterparts. This Agreement may be executed in counterparts and copies and/or facsimile or emailed transmittal signature pages may be used in the place of the originals. The executed counterparts shall be construed as and constitute one Agreement that will be binding on the Parties hereto.
- Further Assurances. Receiving Party agrees to execute such other documents and to take such other action as may reasonably be necessary to accomplish the purpose of this Agreement, and such action shall not be unreasonably delayed or withheld.
- Severability. If any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions of this Agreement nor the legality, validity or enforceability of such provision under the law of any other jurisdiction shall in any way be affected or impaired thereby. If any provision of this Agreement may be construed in two or more ways, one of which would render the provision invalid or otherwise voidable or unenforceable and another of which would render the provision valid and enforceable, such provision shall have the meaning which renders it valid and enforceable.
- Remedies Cumulative. Except as otherwise expressly provided in this Agreement, no remedy in this Agreement conferred upon Disclosing Party is intended to be exclusive of any other remedy, and each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or now or hereafter existing at law or in equity or by statute or otherwise. No single or partial exercise by Disclosing Party of any right, power or remedy under this Agreement shall preclude any other or further exercise thereof.