NON-DISCLOSURE AND THIRD PARTY USAGE AGREEMENT
THIS AGREEMENT entered into as of 08/02/2017 by and between Bondassage & Jaeleen Bennis (collectively, “Discloser”), and Liana Gailand (“Recipient”).
WHEREAS, in the course of dealings between Discloser and Recipient, Discloser may disclose to Recipient certain proprietary information and, as a condition to receiving such information, Recipient agrees to be bound by the terms and conditions of this Agreement;
NOW THEREFORE, the parties agree as follows:
1. Confidential Information. For purposes of this Agreement, the term “Confidential Information” shall be deemed to include all information conveyed by Discloser to Recipient related to the Bondassage method & techniques, whether orally, in writing, by demonstration, electronically or otherwise. Confidential Information may include, by way of example but without limitation, the Bondassage sequence of steps, technique, tools, supporting Bondassage course material, informational products, verbal information and ideas, business plans, designs, specifications, instructions, samples, schedules, test market and national volumes, product and package designs and sizes, pricing, inventions, ideas, manufacturing and marketing plans and other data, and related technical and commercial information relating to either of Discloser or their business. Confidential Information does not include information that Recipient can demonstrate to be: (i) generally available to the public through no act or omission on the part of Recipient; (ii) known to Recipient prior to its receipt of the Confidential Information from Discloser, as evidenced by Recipient’s written records predating receipt and was not originally learned by or disclosed to Recipient in its dealing with Discloser; (iii) disclosed to Recipient at any time by a third party without violation of any obligation of confidentiality; or (v) independently developed by Recipient as evidenced by Recipient’s written records.
2. Obligations of Confidentiality and Nonuse. Recipient shall (a) receive and hold the
Confidential Information in strict confidence; (b) take such steps as may be reasonably necessary to prevent the disclosure of Confidential Information to others with not less than the same degree of care which Recipient uses to prevent the unauthorized use, dissemination or publication of its own most valuable confidential and proprietary information (but with at least the same degree of care used by a reasonably prudent business person); (c) not disclose such Confidential Information to any third party for any purpose whatsoever without the prior written approval of Discloser; (d) acknowledge that the Confidential Information is and will at all times remain the property of Discloser; and (e) not use the Confidential Information for any personal or professional benefit or gain. Recipient shall notify Discloser in writing immediately upon the occurrence of any unauthorized release or other breach of which it is aware with respect to any Confidential Information.
Recipient shall not use the Bondassage technique without written permission from Discloser and shall not teach the Bondassage course without authorization from Discloser, or represent themselves or any service they provide as affiliated with Bondassage without express permission from Discloser. Recipient acknowledges they have taken the Bondassage training course and will be authorized to use it privately or in professional practice with clients; provided Discloser has approved such advertising in writing they will also be allowed to advertise that they offer the Bondassage method.
3. Return of Materials. Upon request of Discloser, Recipient shall return to Discloser or destroy all documents and other writings supplied by the Discloser, together with all copies of any such documents or other writings, and an officer of Recipient shall certify to the return or destruction of all tangible Confidential Information and references thereto and the destruction of any references thereto on electronic or other intangible media.
4. Duration. Except as the Discloser may otherwise direct in writing, Recipient’s obligations hereunder shall remain in effect with respect to any individual item of Confidential Information until such time as the item enters the public domain through no fault of the Recipient.
5. Injunctive Relief. Recipient acknowledges that a breach by it of any one or more of the terms of this Agreement will cause irreparable harm to Discloser and that damages would be difficult to determine. Accordingly, in the event of a default, Discloser shall be entitled to, in addition to all other legal remedies available to the Discloser, (i) $1000 per breach or threatened breach and (ii) injunctive relief restraining Recipient from any further or continued breach of its obligations hereunder. Discloser shall have no obligation to post bond prior to obtaining such injunctive relief. In addition, Discloser shall be entitled to reasonable attorneys’ fees and costs incurred by it in enforcing any remedies available to Discloser hereunder.
6. No Grant of Rights. No license or intellectual property right is conveyed by this Agreement. Any information, ideas, discoveries, works of authorship, designs or inventions, whether patentable or unpatentable, that result from the discussions under this Agreement and related to the purpose of this Agreement will remain the property of Discloser. This Section shall survive termination of this Agreement.
7. Disclaimers. This Agreement shall not be construed or interpreted as obligating either party to enter into a further agreement or contractual arrangement with the other party in any way. No rights or obligation other than those expressly recited herein are to be implied from this Agreement. In particular, unless expressly recited herein, no right or license is hereby granted to the Recipient, directly or indirectly, to use any patent, trade secret, trademark, copyright or technology now owned, controlled or held by, or which may be obtained by, or which is or may be licensable by Discloser. Discloser makes no representation or warranty regarding the accuracy or completeness of the Confidential Information.
8. Governing Law and Jurisdiction. The parties agree that any dispute arising out of or relating to this Agreement shall be governed in accordance with the laws of the State of California without regard to the conflict of laws provisions thereof, and all disputes shall be venued exclusively in the state or federal courts sitting in the State of California.
9. Waiver. Any failure on the part of Discloser to insist upon the performance of this Agreement or any part thereof, shall not constitute a waiver of any right under this Agreement.
10. No Assignment. Recipient shall not assign this Agreement or any of its rights or obligations hereunder without obtaining prior written consent of Discloser.
11. Entire Agreement; Amendments. This Agreement represents the entire Agreement between the parties regarding its subject matter and supersedes all prior discussions, agreements and understandings of every kind and nature between them regarding the same. This Agreement shall not be amended except by an agreement in writing executed by the parties hereto.
12. Severability. Should any individual provisions of this Agreement be or become invalid, this shall not affect a validity of the Agreement as a whole. Any invalid provision shall be replaced by such valid provisions as comes closest to the economic intentions of the parties.
13. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, and all of which together shall be deemed to be one and the same instrument. Signature pages delivered by facsimile or email to this Agreement or any document delivered her under shall be binding to the same extent as an original.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.