NONDISCLOSURE AND CONFIDENTIALITY AGREEMENT
This Nondisclosure Agreement (the “Agreement”) is entered into by and between Starks Enterprises LLC, with its principal offices located at 8 The Green, Suite #13562, Dover, DE 19901 (“Disclosing Party”) and the individual(s) completing this survey as designated by IP address (“Receiving Party”) for the purpose of preventing the unauthorized disclosure of Confidential Information as defined below. The parties agree to enter into a confidential relationship with respect to the disclosure of certain proprietary and confidential information (“Confidential Information”).
1. DEFINITION OF CONFIDENTIAL INFORMATION. For purposes of this Agreement, “Confidential Information” includes all information or material that has or could have commercial value or other utility in any business in which Disclosing Party, or its owners, members, or shareholders, is engaged, and personal or sensitive information about its owners, members, shareholders, or employees, and which is not generally known to the public. All non-public written, digital, or oral information disclosed by the Disclosing Party to Receiving Party is Confidential Information, including but not limited to, the following:
a. ‘Customer Information’ which includes names of customers of the Disclosing Party, their representatives, all customer contact information, contracts and their contents and parties, customer services, data provided by customers and the type, quantity and specifications of products and services purchased, leased, licensed or received by customers of the Disclosing Party;
b. ‘Intellectual Property’ which includes information relating to the Disclosing Party's proprietary rights prior to any public disclosure of such information, including but not limited to the nature of the proprietary rights, production data, technical and engineering data, technical concepts, test data and test results, simulation results, the status and details of research and development of products and services, and information regarding acquiring, protecting, enforcing and licensing proprietary rights (including patents, copyrights and trade secrets);
c. ‘Marketing and Development Information’ which includes marketing and development plans of the Disclosing Party, price and cost data, price and fee amounts, pricing and billing policies, quoting procedures, marketing techniques and methods of obtaining business, forecasts and forecast assumptions and volumes, and future plans and potential strategies of the Disclosing Party which have been or are being discussed;
d. ‘Business Operations’ which includes internal personnel and financial information of the Disclosing Party, vendor names and other vendor information (including vendor characteristics, services and agreements), purchasing and internal cost information, internal services and operational manuals, external business contacts including those stored on social media accounts or other similar platforms or databases operated by the Disclosing Party, and the manner and methods of conducting the Disclosing Party's business;
e. ‘Product Information’ which includes all specifications for products of the Disclosing Party as well as work product resulting from or related to work or projects performed or to be performed for the Disclosing Party or for clients of the Disclosing Party, of any type or form in any stage of actual or anticipated research and development;
f. ‘Production Processes’ which includes processes used in the creation, production and manufacturing of the work product of the Disclosing Party, including but not limited to, formulas, patterns, molds, models, methods, techniques, specifications, processes, procedures, equipment, devices, programs, and designs;
g. ‘Service Information’ which includes all data and information relating to the services provided by the Disclosing Party, including but not limited to, plans, schedules, manpower, inspection, and training information;
h. ‘Proprietary Computer Code’ which includes all sets of statements, instructions or programs of the Disclosing Party, whether in human readable or machine readable form, that are expressed, fixed, embodied or stored in any manner and that can be used directly or indirectly in a computer ('Computer Programs'); any report format, design or drawing created or produced by such Computer Programs; and all documentation, design specifications and charts, and operating procedures which support the Computer Programs;
i. ‘Computer Technology’ which includes all scientific and technical information or material of the Disclosing Party, pertaining to any machine, appliance or process, including but not limited to, specifications, proposals, models, designs, formulas, test results and reports, analyses, simulation results, tables of operating conditions, materials, components, industrial skills, operating and testing procedures, shop practices, know-how and show-how;
j. ‘Accounting Information’ which includes, without limitation, all financial statements, annual reports, balance sheets, company asset information, company liability information, revenue and expense reporting, profit and loss reporting, cash flow reporting, accounts receivable, accounts payable, inventory reporting, purchasing information and payroll information of the Disclosing Party; and
k. ‘Confidential Information’ will also include any information that has been disclosed by a third party to the Disclosing Party and is protected by a non-disclosure agreement entered into between the third party and the Disclosing Party.
2. CONFIDENTIAL INFORMATION WILL NOT INCLUDE THE FOLLOWING INFORMATION. The following information is not included in the definition of Confidential Information under this agreement, and Receiving Party is not required to keep it secret:
a. Information that is already publicly known at the time Receiving Party receives it from Disclosing Party, or later becomes publicly known through no wrongful act of the Receiving Party;
b. Information that is discovered or created by the Receiving Party before Receiving Party receives it from Disclosing Party;
c. Information that is learned by the Receiving Party through legitimate means other than from Disclosing Party or its representatives; or
d. Information that Disclosing Party gives Receiving Party prior written approval to disclose.
3. OBLIGATIONS OF RECEIVING PARTY. As consideration for access to
Confidential Information, and other good and valid consideration, Receiving Party agrees to hold and maintain the Confidential Information in the strictest confidence for the sole and exclusive benefit of Disclosing Party. Except as otherwise provided in this Agreement, the Confidential Information will remain the exclusive property of the Disclosing Party and will only be used by the Receiving Party for the Permitted Purpose. The Receiving Party will not use the Confidential Information for any purpose that might be directly or indirectly detrimental to the Disclosing Party or any associated affiliates or subsidiaries. Receiving Party may disclose Confidential Information:
a. to such employees, agents, representatives and advisors of the Disclosing Party that have a need to know for the Permitted Purpose provided that:
i. the Receiving Party has informed such personnel of the confidential nature of the Confidential Information;
ii. such personnel agree to be legally bound to the same burdens of non-disclosure and non-use as the Receiving Party;
iii. the Receiving Party agrees to take all necessary steps to ensure that the terms of this Agreement are not violated by such personnel; and
iv. the Receiving Party agrees to be responsible for and indemnify the Disclosing Party for any breach of this Agreement by its personnel.
b. to a third party where Disclosing Party has consented in writing to such disclosure; and
c. to the extent required by law or by the request or requirement of any judicial, legislative administrative or other governmental body.
4. TERM. The obligations to ensure and protect the confidentiality of the Confidential Information imposed on the Receiving Party in this Agreement and any obligations to provide notice under this Agreement will survive the expiration or termination of this Agreement and Receiving Party’s duty to hold Confidential Information shall remain in effect until the Confidential Information no longer qualifies as a trade secret or until Disclosing Party sends Receiving Party written notice releasing Receiving Party from this Agreement, whichever occurs first.
5. RELATIONSHIP. Nothing contained in this Agreement shall be deemed to constitute either party a partner, joint venture or employee of the other party for any purpose.
6. NO OBLIGATION. Nothing herein shall obligate either party to proceed with any transaction between them, and each party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement concerning the Opportunity.
7. OWNERSHIP AND TITLE. The Receiving Party acknowledges and agrees that all rights, title and interest in any Confidential Information will remain the exclusive property of the Disclosing Party. Accordingly, the Receiving Party specifically agrees and acknowledges that the Receiving Party will have no interest in the Confidential Information, including, without limitation, no interest in know-how, copyright, trademarks or trade names, notwithstanding the fact that the Receiving Party may have created or contributed to the creation of that Confidential Information.
a. The Receiving Party does hereby waive any moral rights that the Receiving Party may have with respect to the Confidential Information.
b. The Confidential Information will not include anything developed or produced by the Receiving Party during the term of this Agreement, including but not limited to intellectual property, process, design, development, creation, research, invention, know-how, trade name, trademarks or copyright that:
i. was developed without the use of any equipment, supplies, facility or Confidential Information of the Disclosing Party;
ii. was developed entirely on the Receiving Party’s own time;
iii. does not relate to the actual business or reasonably anticipated business of the Disclosing Party;
iv. does not relate to the actual or demonstrably anticipated processes, research or development of the Disclosing Party; and
v. does not result from any work performed by the Receiving Party for the Disclosing Party.
c. The Receiving Party agrees to immediately disclose to the Disclosing Party all Confidential Information developed in whole or in part by the Receiving Party during the term of this Agreement and to assign to the Disclosing Party any right, title or interest the Receiving Party may have in the Confidential Information. The Receiving Party agrees to execute any instruments and to do all other things reasonably requested by the Disclosing Party (both during and after the term of the Agreement) in order to vest more fully in the Disclosing Party all ownership rights in those items transferred by the Receiving Party to the Disclosing Party.
8. REMEDIES. The Receiving Party agrees and acknowledges that the Confidential Information is of a proprietary and confidential nature and that any disclosure of the Confidential Information to a third party in breach of this Agreement cannot be reasonably or adequately compensated for in money damages and would cause irreparable injury to the Disclosing Party. Accordingly, the Receiving Party agrees that the Disclosing Party is entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction. Such remedies shall not be deemed to be the exclusive remedy for any breach of this Agreement but shall be in addition to all other remedies available at law or in equity.
9. RETURN OF CONFIDENTIAL INFORMATION. The Receiving Party agrees that, upon request of the Disclosing Party, or in the event that the Receiving Party ceases to require use of the Confidential Information, or upon expiration or termination of this Agreement, the Receiving Party will turn over to the Disclosing Party all documents, disks or other computer media, or other material in the possession or control of the Receiving Party that:
a. may contain or be derived from ideas, concepts, creations, or trade secrets and other proprietary and Confidential Information as defined in this Agreement; or
b. is connected with or derived from the Receiving Party’s services to the Disclosing Party.
10. NOTICES. In the event that the Receiving Party is required in a civil, criminal or regulatory proceeding to disclose any part of the Confidential Information, the Receiving Party will give to the Disclosing Party prompt written notice of such request so the Disclosing Party may seek an appropriate remedy or alternatively to waive the Receiving Party’s compliance with the provisions of this Agreement in regards to the request.
a. If the Receiving Party loses or makes unauthorized disclosure of any of the Confidential Information, Receiving Party will immediately notify the Disclosing Party and take all reasonable steps necessary to retrieve the lost or improperly disclosed Confidential Information.
b. Any notices or delivery required in this Agreement will be deemed completed when hand-delivered, delivered by agent, or seven (7) days after being placed in the post, postage prepaid, to the parties at the addresses contained in this Agreement or as the parties may later designate in writing.
c. The addresses for any notice to be delivered to any of the parties to this Agreement are as follows:
i. Disclosing Party
8 The Green, Suite B, Dover DE 19901
ii. Receiving Party
The Receiving Party’s email address will be used to send notices and obtain a mailing address for further correspondence.
11. REPRESENTATIONS. In providing the Confidential Information, the Disclosing Party makes no representations, either expressly or impliedly as to its adequacy, sufficiency, completeness, correctness or its lack of defect of any kind, including any patent or trademark infringement that may result from the use of such information.
12. TERMINATION. This Agreement will automatically terminate on the date that the Disclosing Party and Receiving Party’s retainer agreement or other contractual relationship terminates or expires, as the case may be. Except as otherwise provided in this Agreement, all rights and obligations under this Agreement will terminate at that time.
13. ASSIGNMENT. Except where a party has changed its corporate name or merged with another corporation, this Agreement may not be assigned or otherwise transferred by either party in whole or part without the prior written consent of the other party to this Agreement.
14. AMENDMENTS. This Agreement may only be amended or modified by a written instrument executed by both the Disclosing Party and the Receiving Party.
15. GOVERNING LAW. This Agreement will be construed in accordance with and governed by the laws of State of Delaware, United States of America.
16. ATTORNEYS’ FEES. The prevailing party shall have the right to collect from the other party its reasonable costs and necessary disbursements and attorneys’ fees incurred in enforcing this agreement.
17. GENERAL PROVISIONS.
a. Time is of the essence in this Agreement.
b. This Agreement may be executed in counterpart.
c. Headings are inserted for the convenience of the parties only and are not to be considered when interpreting this Agreement. Words in the singular mean and include the plural and vice versa. Words in the masculine mean and include the feminine and vice versa.
d. The clauses, paragraphs, and subparagraphs contained in this Agreement are intended to be read and construed independently of each other. If any part of this Agreement is held to be invalid, this invalidity will not affect the operation of any other part of this Agreement.
e. The Receiving Party is liable for all costs, expenses and expenditures including, and without limitation, the complete legal costs incurred by the Disclosing Party in enforcing this Agreement as a result of any default of this Agreement by the Receiving Party.
f. The Disclosing Party and the Receiving Party acknowledge that this Agreement is reasonable, valid and enforceable. However, if a court of competent jurisdiction finds any of the provisions of this Agreement to be too broad to be enforceable, it is the intention of the Disclosing Party and the Receiving Party that such provision be reduced in scope by the court only to the extent deemed necessary by that court to render the provision reasonable and enforceable, bearing in mind that it is the intention of the Receiving Party to give the Disclosing Party the broadest possible protection against disclosure of the Confidential Information.
g. No failure or delay by the Receiving Party in exercising any power, right or privilege provided in this Agreement will operate as a waiver, nor will any single or partial exercise of such rights, powers or privileges preclude any further exercise of them or the exercise of any other right, power or privilege provided in this Agreement.
h. This Agreement will inure to the benefit of and be binding upon the respective heirs, executors, administrators, successors and assigns, as the case may be, of the Disclosing Party and the Receiving Party.
i. This Agreement constitutes the entire agreement between the parties and there are no further items or provisions, either oral or otherwise.
DISCLOSING PARTY
Tiara Starks, Founder, Starks Enterprises LLC 2/25/2022
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Print Name Date
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Signature
RECEIVING PARTY
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Print Name Date
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Signature