Request For Quote

This Bilateral Non-Disclosure & Non-Circumvention Agreement (this “Agreement”) is between Elite Foundation, Inc. (the “Company”) and you (the “Undersigned”), individually or collectively, and on behalf of any/all/other affiliated companies, approved agents, and official representatives of both the Company and the company provided below the Undersigned’s signature (collectively the “Parties”) as of the Effective Date below. The Parties may disclose to each other certain proprietary and/or confidential information of the Company in connection with business relationship between the Parties (the “Business Purpose”), and, therefore, the Parties agree as follows:

1. Non-Disclosure of Confidential Information.

(a) Except as set forth below, the term “Confidential Information” means information concerning the either Party or its clients that is disclosed to the other that is not generally known by Competitors, including, but not limited to information concerning its business, new and useful business opportunities, contacts, trade secrets, business entity formation and structuring, and sales/buyer information, client lists, proprietary business data, business owner personal information, financial condition, programing, coding, software development, operations, assets and liabilities, intellectual property (patents, design patents, trademarks, trade dress, copyrights), strategies, or ventures or other business affairs or plans of either of the Parties and any other information which the Parties do not ordinarily disclose to third parties not in a relationship of confidence with them.
(b) Confidential Information does not include information: (i) which at the time of disclosure is generally known in the Parties’ trade or public; (ii) which the receiving Party can show by written records was already in its possession at the time of disclosure, including production from any current clients, and not subject to an existing agreement of confidence between the Parties; (iii) which is received from a third party, and without breach of this Agreement or any other agreement; (iv) which is independently developed by the receiving Party as evidenced by its written records; (v) which is disclosed pursuant to a valid order of a court or regulatory agency or other governmental body or any political subdivision thereof, provided, however, that Party will first have given notice to the other and made a reasonable effort to obtain a protective order requiring that the Confidential Information be used only for the purposes for which the order was issued.
(c) "Confidential Materials" include all documents, records and other tangible items of any kind in which Confidential Information is stored, maintained or recorded or from which a Party’s
Confidential Information may be readily ascertained or derived (whether in the form of documents, correspondence, memoranda, books, records, files, notes, plans, reports, programs, drawings, sketches, designs, graphics, photographs, prints, mats, films, negatives, recordings, magnetic media, software, disks, diskettes, charts, manuals, materials or any other medium), including copies or other reproductions of any of the foregoing, whether prepared by or for that Party or otherwise. All information, correspondence, and other documents and materials provided or communicated by one Party to the other marked “confidential” or “proprietary” will be considered to be “Confidential Information” for the purposes of this Agreement, subject to the above-recited exceptions.
(d) Neither Party may disclose Confidential Information of the other. At all times each Party will maintain in strict confidence, protect and safeguard the Confidential Information of the other, and, except as expressly provided in this Agreement, the receiving Party will not, directly or indirectly, (i) disclose, reveal or make available to anyone any Confidential Information, (ii) assist or enable anyone to access or use any Confidential Information of the other or (iii) use or exploit any Confidential Information for any purpose whatsoever.
(e) The receiving party shall reasonably protect the Confidential Information with not less than the same degree of care exercised by its own personnel to protect its own, or publication of its own, most valuable confidential and proprietary information.
(f) In the event that a Party decides not to pursue patent, copyright, or trademark protection for any discovery or creation or program or code made by that Party, and instead decides to protect the discovery or creation or program or code pursuant to the trade secret laws of any jurisdiction, such decision will not be construed as a waiver of the that Party’s rights pursuant to this Agreement. The Recipient will also take whatever steps are necessary to sustain the Disclosing Party’s claim to such trade secrets, including but not limited to: (i) maintaining the confidential nature of any such discoveries or creations or program or code; and (ii) testifying and providing other support and substantiation for the Disclosing Party’s claims with regard to the discovery or creation or program or code.

2. Non-Circumvention.

(a) Each Party hereby agrees, during the Term of this Agreement, not to circumvent the efforts of the other by pursuing commercial ventures that come to its attention by virtue of the
Confidential Information, absent an agreement for compensation, which does not include any sources of income by the individual Parties established prior to this Agreement. The parties agree that the Confidential Information has significant commercial value for each party. Accordingly, the commitments of confidentiality in this Agreement are a condition to the parties’ willingness to engage in the contemplated business discussions and transaction planning.
(b) Without limiting the scope of any of the other provisions of this Agreement, this noncircumvention provision is intended to preclude the Parties, and their agents, representatives, affiliates, and other related parties from pursuing commercial ventures or relationships based on Confidential Information, absent advance written approval of the other Party. The parties agree that neither shall use any advantages derivable from such information in its own business or affairs, except as agreed by the parties in writing.
(c) Neither Party will use the Confidential Information other than in relation to the Business Purpose. Nor will either Party directly or indirectly disclose, divulge, reveal or transfer the Confidential Information to any other person or entity (including affiliates) without the others' prior written consent. Specifically, the receiving party hereby agrees for themselves, their officers, directors, agents, associates, and any related parties, that they will not, directly or indirectly, contact, deal with or otherwise become involved with any associate or affiliate or buyer or seller or client or any other entities or parties introduced by or through the disclosing party, its officers, directors, agents or associates (“Associate”), for the purpose of avoiding the payment to the disclosing party of profits, fees or otherwise, without the specific written approval of the disclosing party.
(d) The receiving party agrees not to contact or initiate contact at any time for any purpose, either directly or indirectly, the disclosing party’s or Associate’s officers, directors, shareholders, consultants, attorneys, employees, agents or other affiliates of the disclosing party or Associate, or any other person or entity whose identity was revealed through the efforts of the disclosing party or an Associate, unless such approval is specifically granted in written form by the disclosing party on a case-by-case basis. The receiving party further agrees not to undertake any transaction or a series of transactions of any kind with the Associate or to collect or transfer any money in connection with the sale or purchase of products to or from the Associate without the express prior written agreement of the disclosing party.

3. Return of Materials.

In the event that the Parties cease the Business Purpose and within five (5) business days after being so requested by either Party, the other will redeliver all documents, or other items
furnished by the requesting Party, or acquired in connection with the Business Purpose and any copies made by it or its Representatives. Except if advised in writing by counsel that it is
prohibited by law, the Party of whom it is requested will also, to the extent possible, destroy all written material, memoranda, notes, and other writings or recordings whatsoever prepared by it or its Representatives based upon, containing or otherwise reflecting any information relating to the Confidential Information. If requested, each Party will supply the other with a written confirmation of a responsible representative that it has fulfilled its obligations under this Section. Any information relating to the Confidential Information that is not returned or destroyed, including, without limitation, any oral information, will remain subject to the confidentiality obligations set forth in this Agreement.

4. Non-solicitation

The non-solicitation provisions of this Agreement are an essential and material part of the total agreement. Specifically, the receiving party agrees that it will not contact or transact with any buyer and/or seller Associate that the disclosing party provides or discloses, without the written agreement of the disclosing party. The receiving party further agrees to notify the disclosing party immediately in the event that any buyer and/or seller associate that originated from an introduction or disclosure by the disclosing party communicates or attempts to communicate with the receiving party in any fashion, without the written approval and participation of the disclosing party.

5. Non-disparagement

Neither party will at any time make any statements, whether oral or in writing, that would tend to disparage or defame one another and their respective services, employees, directors, officers, staff, affiliates, and/or representatives.

6. General Terms.

(a) The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision of this Agreement. If a court of competent jurisdiction determines that any restriction in this Agreement is overbroad or unreasonable under the circumstances, such restriction will be modified or revised by such court to include the maximum reasonable restriction allowed by law.
(b) This Agreement constitutes the entire agreement of the Parties hereto concerning the subject matter hereof and supersedes any prior oral or written agreements pertaining to the subject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except in an agreement in writing signed by both Parties.
(c) This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The parties execute this Agreement individually and on behalf of any/all/other affiliated companies, or approved agents and official representatives of the company provided below the Undersigned’s signature. Delivery of this Agreement may be executed by signature affixed by electronic transmission, such as email or an e-signature platform.
(d) There are no representations or covenants, express or implied, other than those set forth herein.
(d) Neither Parties’ rights under this Agreement may be assigned or duties delegated without the other Party’s prior written consent and any attempted assignment without such consent will
be void.
(e) This Agreement will be binding upon the Parties hereto and their respective successors and assigns and will inure to the benefit of the parties hereto and their respective successors and assigns.
(f) Nothing contained herein will create a joint venture, partnership, or employment or agency relationship among the Parties.
(g) All Confidential Information and Confidential Materials, and any duplicates or transcriptions of such, will remain fully owned as the sole and exclusive property of the Party who disclosed such information or materials. At no time will either Party be granted any rights or licenses except to the extent provided in this Agreement, unless otherwise granted by the Parties in a signed writing. Nothing herein will be construed as a license to make, use, license, sell or copy any inventions, ideas, trade secrets, trademarks, copyrightable works, or other intellectual property, whether or not disclosed hereunder.
(h) No delay or omission by a Party in exercising any right under this Agreement will operate as a waiver of that or any other right. A waiver or consent given by either Party on any one occasion is effective only in that instance and will not be construed as a bar to or waiver of any right on any other occasion.
(i) The Recipient acknowledges that the Disclosing Party will be irreparably harmed if the Recipient violates or threaten to violate any of its obligations, undertakings and/or
representations under this Agreement. Therefore, it is expressly clarified that money damages would not be a sufficient remedy for any breach of this Agreement by the Recipient, thus, in
addition to all other rights and remedies, the Disclosing Party will be entitled to seek specific performance, injunctive and/or any other equitable relief, as a remedy for any such breach, and the Recipient agrees that it will not oppose the granting of such relief and that it will waive any requirement for the securing or posting of any bond in connection with such remedy. In case of circumvention, the circumventing party will be held liable for damages. Parties agree that a reasonable amount of damages would be equal to three (3) times the commission or fee that the circumvented party should have realized in such transactions.
(j) Any action instituted by either Party arising out of a breach of this Agreement will only be brought, tried, and resolved in the applicable federal or state courts having jurisdiction in Charlotte, North Carolina, and the Court in such action will apply Indiana substantive law. If a Party agrees that they have breached this Agreement or is found in breach of this Agreement by a court of law, then the breaching Party agrees to cover any damages, consequential or otherwise, to the extent permitted by law, as well as attorney’s fees or other costs associated with such breach.
(k) This Agreement shall, by mutual consent of the parties, remain in force and effect indefinitely. Any trade secrets shall, by mutual consent of the parties, remain in force and effect indefinitely. All non-disclosure provisions shall, by mutual consent of the parties, remain in force and effect indefinitely. All non-circumvention provisions shall, by mutual consent of the parties, remain in force and effect indefinitely. All non-solicitation provisions shall, by mutual consent of the parties, remain in force and effect indefinitely. All non-disparagement provisions shall, by mutual consent of the parties, remain in force and effect indefinitely. If a court holds that any restrictive covenants are not enforceable for an indefinite period, then this Agreement shall, by mutual consent of the parties, remain in force and effect for a period of five (5) years from the date signed and executed by all parties, with the effective date being the date on which the final signature is affixed hereto.