This Confidentiality and Non-Disclosure Agreement (the "Agreement") is made as of the date stated on the signature page herein (the “Effective Date”), by and between Webistics Holdings Ltd, doing business as VPNWholesaler.com, (“Company” or “Disclosing Party”) a New Jersey corporation with an address of 2 University Plaza, Suite 100, Hackensack NJ 07601 ("Company" or “Disclosing Party”), and the Party as stated on the signature page herein (the “Receiving Party”). The Disclosing Party and the Receiving Party may collectively be referred to herein as the “Parties” and individually as a “Party”.
Company and Receiving Party wish to explore a possible business opportunity of mutual interest regarding Company’s VPN services (the "Purpose") in connection with which Disclosing Party has disclosed and may further disclose its Confidential Information (as defined below) to the Receiving Party. This Agreement is intended to allow the Parties to discuss and evaluate the Purpose while protecting the Disclosing Party’s Confidential Information (including Confidential Information previously disclosed to the Receiving Party) against unauthorized use or disclosure.
Definition of Confidential Information
For the purposes of this Agreement, “Confidential Information” shall mean any nonpublic information concerning the business or property of the Disclosing Party, whether such information is disclosed directly or indirectly, in writing, orally or visually, including: (i) information relating to the Disclosing Party’s business, products and services, including, without limitation, technical data, trade secrets, know-how, product or service plans, ideas or concepts, software, inventions, techniques, processes, procedures, developments, product specifications, algorithms, data, formulas, designs, schematics, drawings, research, concepts, samples, intellectual property, inventions, manufacturing processes, and engineering information, and (ii) information relating to the Disclosing Party’s operations, business, financial plans or strategies, including, but not limited to, sales data and plans, marketing materials, contractual arrangements, customers, customer lists, vendors, suppliers, markets, financial statements, projections, pricing information, distribution methods, and financial and other strategic business plans or information, (iii) the terms of any agreement, including this Agreement, and the discussions, negotiations and proposals related to any agreement, and (iv) any information which is marked or identified by the Disclosing Party as confidential and proprietary. All Confidential Information shall remain the property of the Disclosing Party. This Agreement shall not require either Party to disclose any of its Confidential Information.
Standard of Care; Restrictions on Use and Disclosure
The Receiving Party shall maintain the Confidential Information in strict confidence and shall protect Confidential Information received pursuant to this Agreement by using the same standard of care which it uses to protect and safeguard its own Confidential Information of a like nature, but no less than a reasonable degree of care, to prevent the unauthorized use, disclosure, dissemination, or publication of the Confidential Information. If the Receiving Party discovers that any of the Disclosing Party’s Confidential Information has been used, disseminated or published in violation of this Agreement, it will immediately notify the Disclosing Party, take commercially reasonable actions to minimize the impact of the use, dissemination or publication, and take any necessary steps to prevent any further breach of this Agreement.
Non-disclosure of Confidential Information
The Receiving Party agrees not to use any Confidential Information disclosed to it by the Disclosing Party for its own use or for any purpose other than to carry out discussions concerning, and the undertaking of, the Purpose. Without the prior written consent of the Disclosing Party, Receiving Party shall not disclose or permit disclosure of any Confidential Information of the Disclosing Party to third parties or to employees of the Receiving Party, other than directors, officers, employees, consultants, contractors and agents who are required to have the information in order to carry out the discussions regarding the Purpose. Receiving Party has had or will have its directors, officers, employees, consultants, contractors and agents who have access to Confidential Information of the Disclosing Party sign a non-disclosure agreement in content substantially similar to this Agreement. The Receiving Party is responsible for breaches of this Agreement by persons to whom it discloses Confidential Information received hereunder. Receiving Party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of the Disclosing Party in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized under this Agreement to have any such information.
Notwithstanding the above, Receiving Party shall have liability to the other with regard to any Confidential Information of the Disclosing Party which the Receiving Party can prove: was in the public domain at the time it was disclosed or has entered the public domain through no fault of the Receiving Party; was known to or in the possession of the Receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence, or other competent evidence, at the time of disclosure; is disclosed with the prior written approval of the Disclosing Party; was independently developed by the Receiving Party without any use of the Confidential Information of the Disclosing Party and by employees of the Receiving Party who have not had access to the Confidential Information, as demonstrated by files created at the time of such independent development or other competent evidence; or becomes known to the Receiving Party, without restriction, from a source other than the Disclosing Party without breach of this Agreement by the Receiving Party and otherwise not in violation of the Disclosing Party's rights.
In the event that Receiving Party is requested or required by legal action (including oral question, interrogatories, requests for information or documents, subpoenas, civil investigation or similar process) to disclose any of the Disclosing Party’s Confidential Information received under this Agreement, the Receiving Party will, unless prohibited by applicable law, provide the Disclosing Party with prompt written notice of such request so that the Disclosing Party may seek a protective order or other appropriate relief, and the Receiving Party will reasonably assist the Disclosing Party in such efforts. In the event that such protective order or other remedy is not obtained, the Receiving Party shall furnish only that portion of the Confidential Information which it is legally required to provide.
Return of Materials
Any materials or documents that have been furnished by the Disclosing Party to the Receiving Party in connection with the Purpose shall be promptly returned by the Receiving Party, accompanied by all copies of such documentation, within fifteen (15) days after (a) the Purpose has been rejected or concluded or (b) the written request of the Disclosing Party.
No Rights Granted
As between the Parties, all Confidential Information will remain the exclusive property of the Disclosing Party. Nothing in this Agreement shall be construed as granting any rights or licenses under any patent, copyright or other intellectual property right of Disclosing Party, nor shall this Agreement grant 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 Purpose.
The foregoing commitments of Receiving Party shall survive any termination of the Purpose between the Parties and upon termination for any reason shall continue in perpetuity or until Confidential Information is no longer a trade secret, whichever is earlier in time.
The Disclosing Party warrants that it has the right to make the disclosures under this Agreement. NO OTHER WARRANTIES ARE MADE BY DISCLOSING PARTY UNDER THIS AGREEMENT WITH RESPECT TO THE CONFIDENTIAL INFORMATION, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. ANY INFORMATION EXCHANGED UNDER THIS AGREEMENT IS PROVIDED "AS IS." The Disclosing Party shall have no liability whatsoever to the Receiving Party relating to or arising from the Receiving Party’s use of the Confidential Information or from any errors or omissions in the Confidential Information, or from any business decisions made by the Receiving Party in reliance on any Confidential Information.
During the Term of this Agreement and for a period of twenty four (24) months following the expiration or early termination of this Agreement, Receiving Party shall not, on its own behalf or on behalf of any person, firm or corporation, or in any capacity whatsoever, either directly or indirectly induce, suggest, persuade or recommend to any customers of the Disclosing Party that they terminate, alter or refrain from entering into, renewing or extending their relationship with the Disclosing Party. Additionally, during the Term of this Agreement and for a period of twenty four (24) months following the expiration or early termination of this Agreement Receiving Party shall not, on its own behalf or on behalf of any person, firm or corporation, or in any capacity whatsoever, recruit for employment, hire or induce any employee or contractor to terminate employment with the Disclosing Party The foregoing restrictions shall not apply to any solicitation by means of a general public advertisement or recruitment not specifically targeted at the Disclosing Party’s customers or employees or contractors, as the case may be.
To the extent permitted by law, during and upon the expiration or earlier termination of this Agreement, and for a period of five (5) years thereafter, Receiving Party shall not engage, own, manage, control, operate, be employed by, participate in, or be connected with the ownership, management, operation, or control of a business substantially similar to or offering to the commercial market substantially similar services or products of the Disclosing Party. If Receiving Party breaches or threatens to breach this section, the Disclosing Party will be entitled to a preliminary restraining order and injunction preventing the Receiving Party from violating its provisions. Nothing in this agreement prohibits Disclosing Party from pursuing any other available remedies for a breach or threatened breach, including the recovery of damages. Notwithstanding the forgoing, nothing herein shall prohibit Receiving Party from being a passive owner of not more than five percent (5%) of the equity securities of a competitor that is publicly traded, so long such party has no active participation in the business of such competitor
Receiving Party will not make any attempt, or use any artifice, scheme, or device, including the use of any agent, representative, associate, advisor, relative or business entity, to circumvent the purposes of the restrictive covenants contained in this Agreement.
Term of Agreement
This Agreement shall remain in effect until terminated by either Party upon fifteen (15) days written notice to the other Party. Upon expiration or termination of this Agreement, Receiving Party shall immediately cease all use of Disclosing Party's Confidential Information.
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 Confidential Information of the Disclosing Party may not be assigned without the prior written consent of the Disclosing Party. Any assignment made in violation of this provision shall be null and void. 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.
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 (c) the balance of the Agreement shall be enforceable in accordance with its terms.
Independent Contractors; No Obligation
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. No Party shall incur any debts or make any commitments for the other under this Agreement. Nothing contained in this Agreement shall be construed as obligating either Party to enter into any agreement or transact any business with the other Party, or to purchase, transfer or otherwise dispose of any technology, services or products as a result of the execution of this Agreement.
Governing Law; Jurisdiction
This Agreement shall be governed by the laws of the State of New Jersey, without reference to conflict of law principles. The Parties agree that the venue for any matter arising out of or pertaining to Agreement shall be held in the state and federal courts located in the State of New Jersey.
WAIVER OF JURY TRIAL
THE PARTIES EACH IRREVOCABLY WAIVE TRIAL BY JURY IN AN ANY ACTION, PROCEEDING OR COUNTERCLAIM, WHETHER AT LAW OR IN EQUITY, ARISING OUT OF OR RELATED TO THIS AGREEMENT.
In the event that any dispute between the Parties should result in litigation, the prevailing Party in such dispute shall be entitled to recover from the other Party all reasonable fees, costs and expenses of enforcing any right of the prevailing Party, including without limitation, reasonable attorneys' fees and expenses, all of which shall be deemed to have accrued upon the commencement of such action and shall be paid whether or not such action is prosecuted to judgment. Any judgment or order entered in such action shall contain a specific provision providing for the recovery of attorney fees and costs incurred in enforcing such judgment and an award of prejudgment interest from the date of the breach at the maximum rate allowed by law. For the purposes of this Section: (a) attorney fees shall include, without limitation, fees incurred in the following: (1) post judgment motions, (2) contempt proceedings, (3) garnishment, levy, and debtor and third party examinations, (4) discovery, and (5) bankruptcy litigation; and (b) “Prevailing Party” shall mean the Party who is determined in the proceeding to have prevailed or who prevails by dismissal, default or otherwise.
Receiving Party agrees that its obligations set forth in this Agreement are necessary and reasonable in order to protect the Disclosing Party and its business. Receiving Party agrees that due to the unique nature of the Disclosing 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 acknowledge 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 (a) to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by the Receiving Party, without the necessity of proving actual damages, and (b) to be indemnified by the Receiving Party 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 the Receiving Party's obligations under this Agreement or the unauthorized use or disclosure of the Disclosing Party's Confidential Information.
Amendment and Waiver
The terms of this Agreement may only be amended in writing signed by authorized representatives 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. The waiver by a Party of a breach of any provision of this Agreement by the other Party will not operate or be interpreted as a waiver of any other or subsequent breach. All waivers must be in writing and signed by the waiving Party.
This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including .pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com), or other transmission method and any counterpart so delivered will be deemed to have been duly and validly delivered and be valid and effective for all purposes.
The paragraph headings of this Agreement are inserted for convenience only and shall not constitute a part of this Agreement for the purposes of construing or interpreting any provision hereof. Whenever the context requires, words used in the singular shall be construed to include the plural and vice versa, and pronouns of any gender shall be deemed to include and designate the masculine, feminine or neutral gender.
This Agreement is the product of both 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 transactions contemplated herein. Any and all other written or oral agreements existing between the Parties hereto regarding such transactions are expressly canceled.