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Non-Disclosure Agreement

Non-Disclosure Agreement

WHEREAS, myODIE.com, LLC (Receiving Party and Disclosing Party) has been and/or will be engaged in the performance of work relating to Information Technology Managed Service Provider (MSP) and Technical Support Services; and in connection therewith will be given access to certain confidential and proprietary information; and

WHEREAS, “CLIENT” (Receiving Party and Disclosing Party) wish to evidence by this Non-Disclosure Agreement the manner in which said confidential and proprietary material will be treated.

NOW, THEREFORE, it is agreed as follows:

  1. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION

    Both Parties understand and agree that each Party may have access to the confidential information of the other party. For the purposes of this Non-Disclosure Agreement, “Confidential | Proprietary Information” means proprietary and confidential information about the Disclosing Party’s (or it’s suppliers’) business or activities. Such information includes all business, financial, technical, and other information marked or designated by such Party as “confidential” or “proprietary.” Confidential | Proprietary Information also includes information which, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as confidential. For the purposes of this Non-Disclosure Agreement, Confidential | Proprietary Information does not include:

    1. Information that is currently in the public domain or that enters the public domain after the signing of this Non-Disclosure Agreement;
    2. Information a Party lawfully receives from a third Party without restriction on disclosure and without breach of a non-disclosure obligation;
    3. Information that the Receiving Party knew prior to receiving any Confidential | Proprietary Information from the Disclosing Party;
    4. Information that the Receiving Party independently develops without reliance on any Confidential | Proprietary Information from the Disclosing Party.

    Each Party agrees that it will not disclose to any third Party or use any Confidential | Proprietary Information disclosed to it by the other Party except when expressly permitted in writing by the other Party. Each Party also agrees that it will take all reasonable measures to maintain the confidentiality of all Confidential | Proprietary Information of the other Party in its possession or control.

  2. TERM

    The term of this Non-Disclosure Agreement is valid for the duration of the relationship between both parties. Further, the obligation not to disclose shall not be affected by bankruptcy, receivership, assignment, attachment or seizure procedures, whether initiated by or against “CLIENT”, nor by the rejection of any agreement between myODIE.com, LLC and “CLIENT”, by a trustee of “CLIENT” in bankruptcy, or by the “CLIENT” as a debtor-in-possession or the equivalent of any of the foregoing under local law.

  3. DISCLAIMER

    Nothing contained in this Non-Disclosure Agreement or in any Confidential Agreement constitutes any express or implied warranty of any kind. All representations or warranties, whether express or implied, including fitness for a particular purpose, merchantability, title, and non-infringement, are hereby disclaimed. Neither this Non-Disclosure Agreement nor any Confidential Agreement shall create, nor shall be deemed to create, a legally binding or enforceable Non-Disclosure Agreement or offer to enter into any business relationship.

  4. TITLE

    The Receiving Party agrees that all Confidential | Proprietary Information furnished by the Disclosing Party shall remain the sole property of the Disclosing Party.

  5. EXCLUSIONS

    Confidential | Proprietary Information does not include information that “CLIENT” can demonstrate:

    1. was in “CLIENT’S” possession prior to its being furnished to “CLIENT” under the terms of this Non-Disclosure Agreement, provided the source of that information was not known by “CLIENT” to be bound by a Non-Disclosure Agreement with or other continual, legal or fiduciary obligation of confidentiality to myODIE.com, LLC;
    2. is now, or hereafter becomes, through no act or failure to act on the part of “CLIENT”, generally known to the public;
    3. is rightfully obtained by “CLIENT” from a third party, without breach of any obligation to myODIE.com, LLC; or
    4. is independently developed by “CLIENT” without use of or reference to the Confidential | Proprietary Information.

  6. REQUIRED DISCLOSURES

    “CLIENT” may disclose myODIE.com, LLC's Confidential | Proprietary Information if and to the extent that such disclosure is required by court order, provided that “CLIENT” provides myODIE.com, LLC a reasonable opportunity to review the disclosure before it is made and to interpose its own objection to the disclosure.

  7. COPIES

    Any copies or reproductions of the Confidential | Proprietary Information shall bear the copyright or proprietary notices contained in the original.

  8. UNAUTHORIZED USE

    Receiving Party shall promptly advise Disclosing Party in writing if it learns of any unauthorized use or disclosure of Proprietary Information by any Receiving Party Personnel or former Receiving Party Personnel.

  9. PRIOR UNDERSTANDINGS

    This Non-Disclosure Agreement contains the entire agreement between the parties to this Non-Disclosure Agreement with respect to the subject matter of the Non-Disclosure Agreement, is intended as a final expression of such parties' agreement with respect to such terms as are included in this Non-Disclosure Agreement is intended as a complete and exclusive statement of the terms of such agreement, and supersedes all negotiations, stipulations, understanding, agreements, representations and warranties. If any, with respect to such subject matter, which precede or accompany the execution of this Non-Disclosure Agreement.

  10. NO ADDITIONAL AGREEMENTS

    Neither the holding of discussions nor the exchange of material or information shall be construed as an obligation of myODIE.com, LLC to enter into any other agreement with “CLIENT” or prohibit myODIE.com, LLC from providing the same or similar information to other parties and entering into agreements with other parties. myODIE.com, LLC reserves the right, in its sole discretion, to reject any and all proposals made by “CLIENT” or its Representatives with regard to a transaction between “CLIENT” and myODIE.com, LLC and to terminate discussions and negotiations with “CLIENT” at any time. Additional agreements of the parties, if any, shall be in writing signed by myODIE.com, LLC and “CLIENT”.

  11. NO LICENSE GRANTED

    Nothing contained herein shall be construed as granting or conferring any rights by license or otherwise in any Confidential | Proprietary Information. It is understood and agreed that neither party solicits any change in the organization, business practice, service or products of the other party, and that the disclosure of Confidential | Proprietary Information shall not be construed as evidencing any intent by a party to purchase any products or services of the other party nor as an encouragement to expend funds in development or research efforts. Confidential | Proprietary Information may pertain to prospective or unannounced products. “CLIENT” agrees not to use any Confidential | Proprietary Information as a basis upon which to develop or have a third party develop a competing or similar product.

  12. WAIVER

    Any waiver of a default under this Non-Disclosure Agreement must be made in writing and shall not be a waiver of any other default concerning the same or any other provision of this Non-Disclosure Agreement. No delay or omission in the exercise of any right or remedy shall impair such right or remedy or be constructed as a waiver. A consent to or approval of any act shall not be deemed to waive or render unnecessary consent to or approval of any other or subsequent act.

  13. NO PUBLICITY

    “CLIENT” agrees not to disclose its participation in this undertaking, the existence or terms and conditions of the Non-Disclosure Agreement, or the fact that discussions are being held with myODIE.com, LLC.

  14. COMPLIANCE WITH LAW

    The Receiving Party agrees to abide by all federal, state, and local laws, ordinances and regulations.

  15. INJUNCTIVE RELIEF

    Receiving Party acknowledges that the use or disclosure of the Proprietary Information in a manner inconsistent with this Non-Disclosure Agreement will cause Disclosing Party irreparable damage, and that Disclosing Party shall have the right to equitable and injunctive relief to prevent the unauthorized use or disclosure, and to such damages as are occasioned by such unauthorized use or disclosure.

  16. IRREPARABLE HARM

    “CLIENT” understands and acknowledges that any disclosure or misappropriation of any of the Confidential | Proprietary Information in violation of this Non-Disclosure Agreement may cause myODIE.com, LLC irreparable harm, the amount of which may be difficult to ascertain, and therefore agrees that myODIE.com, LLC shall have the right to apply to a court of competent jurisdiction for specific performance and/or an order restraining and enjoining any such further disclosure or breach and for such other relief as myODIE.com, LLC shall deem appropriate. Such right of myODIE.com, LLC is to be in addition to the remedies otherwise available to myODIE.com, LLC at law or in equity.

  17. GOVERNING LAW AND EQUITABLE RELIEF

    This Non-Disclosure Agreement shall be governed and construed in accordance with the laws of the United States of America and the State of Colorado and “CLIENT” consents to the exclusive jurisdiction of the state courts and federal courts located there for any dispute arising out of this Non-Disclosure Agreement. “CLIENT” agrees that in the event of any breach or threatened breach by “CLIENT”, myODIE.com, LLC may obtain, in addition to any other legal remedies which may be available, such equitable relief as may be necessary to protect myODIE.com, LLC against any such breach or threatened breach.

  18. ATTORNEY'S FEES

    If any action at law or in equity is brought to enforce or interpret the provisions of this Non-Disclosure Agreement, the prevailing party in such action shall be awarded its attorneys' fees and costs incurred.

  19. FINAL AGREEMENT

    This Non-Disclosure Agreement terminates and supersedes all prior understandings or agreements on the subject matter hereof. This Non-Disclosure Agreement may be modified only by a further writing that is duly executed by both parties.

  20. SURVIVAL

    This Non-Disclosure Agreement shall continue in full force and effect at all times.

  21. SUCCESSORS AND ASSIGNS

    This Non-Disclosure Agreement and each party's obligations hereunder shall be binding on the representatives, assigns, and successors of such party and shall inure to the benefit of the assigns and successors of such party; provided, however, that the rights and obligations of “CLIENT” hereunder are not assignable.

  22. SEVERABILITY

    If any term of this Non-Disclosure Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Non-Disclosure Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.

  23. NOTICES

    Any notice required by this Non-Disclosure Agreement or given in connection with it, shall be in writing and shall be given to the appropriate party by personal delivery or by certified mail, postage prepaid, or recognized overnight delivery services.

    To:
    myODIE.com, LLC (D.B.A myODIE.com)
    ATTN: Chad S. Clark (Owner) | Michael C. Fisher (Owner)
    17577 Pine Ln, APT 3101
    Parker, Douglas County, Colorado, 80134-6531
    United States of America
    +1 720-439-3838 – Phone
    +1 720-439-3839 – Fax
    sales@myodie.com – E-mail

  24. NO IMPLIED WAIVER

    Either party's failure to insist in any one or more instances upon strict performance by the other party of any of the terms of this Non-Disclosure Agreement shall not be construed as a waiver of any continuing or subsequent failure to perform or delay in performance of any term hereof.

  25. HEADINGS

    Headings used in this Non-Disclosure Agreement are provided for convenience only and shall not be used to construe meaning or intent.

  26. COUNTERPARTS AND RIGHT

    This Non-Disclosure Agreement may be signed in counterparts, which together shall constitute one agreement. The person signing on behalf of “CLIENT” represents that he or she has the right and power to execute this Non-Disclosure Agreement.

  27. ENTIRE AGREEMENT

    This Non-Disclosure Agreement expresses the full and complete understanding of the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous proposals, agreements, representations and understandings, whether written or oral, with respect to the subject matter. This Non-Disclosure Agreement is not, however, to limit any rights that myODIE.com, LLC may have under trade secret, copyright, patent or other laws that may be available to myODIE.com, LLC. This Non-Disclosure Agreement may not be amended or modified except in writing signed by each of the parties to the Non-Disclosure Agreement. This Non-Disclosure Agreement shall be construed as to its fair meaning and not strictly for or against either party. The headings hereof are descriptive only and not to be construed in interpreting the provisions hereof.