NON-CIRCUMVENTION AGREEMENT

 

 

This Non-Circumvention Agreement (the “Agreement”) is effective [DATE],

 

 

BETWEEN: [YOUR COMPANY NAME] (the "Disclosing Party"), a corporation organized and existing under the laws of the [State/Province] of [STATE/PROVINCE], with its head office located at:

 

[YOUR COMPLETE ADDRESS]

 

AND: [NAME OF THE RECEIVING PARTY] (the "Recipient"), an individual with his main address located at OR a corporation organized and existing under the laws of the [State/Province] of [STATE/PROVINCE], with its head office located at:

 

[COMPLETE ADDRESS]

 

 

WHEREAS [NAME OF DISCLOSING PARTY] has a business opportunity to share with [NAME OF THE RECIPIENT] and any and all other opportunities relating to or derived from such opportunity, and;

WHEREAS all Parties have protective and actual relationships with clients and others which they hold to be essential to the conduct and profitability of its enterprise, and;

WHEREAS all Parties recognize that mutual benefit may be derived when one Party is introduced to or becomes acquainted with a third party, identified to it by the other Party, and;

WHEREAS, all Parties recognize that any such identification or location or introduction is a trade secret and is the exclusive and sole property of the disclosing Party, and;

WHEREAS, all Parties desire to be bound legally as to the requirement for maintaining the privacy and security of the aforementioned relationships, and;

WHEREAS, the Disclosing Party and Recipient have agreed to engage in a potential business opportunity which involves the following: [INSERT DETAILS OF BUSINESS OPPORTUNITY].

 

NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained and other good and valuable consideration, it is mutually agreed as follows:

 

 

NON-CIRCUMVENTION

 

 

During the term of this Agreement, the Recipient agrees not to contact, initiate contact, or attempt to do business with, at any time for any purpose, either directly or indirectly, any officers, directors, shareholders, consultants, attorneys, employees, agents or other affiliates of the business opportunity, or otherwise referred by the Disclosing Party to the Recipient for the purpose of circumventing, the result of which shall be to prevent the Disclosing Party from realizing a profit, fees, or otherwise, without the specific written approval of the Disclosing Party;

such approval will be specifically granted in written form by the Disclosing Party on a case-by-case basis. If such circumvention shall occur, the Disclosing Party shall be entitled to any commissions due pursuant to this Agreement or relating to such transaction.

 

 

 

TERM OF THIS AGREEMENT

 

 

The obligations of non-circumvention shall survive [LENGTH OF AGREEMENT]. Either

P

arty may terminate this Agreement at any time upon written notice to the other

P

arty. Termination shall not affect confidentiality obligations with respect to any confidential information or business contacts that were obtained prior to the effective date of termination.

 

 

BREACH OF THIS AGREEMENT

 

In case of breach of this Agreement, the Recipient will pay a monetary penalty that is equal to the commission or fee the Disclosing Party should have realized in such a transaction. The fee or commission agreement may vary surrounding each business transaction that takes place due to this

A

greement.

 

 

TRADE SECRETS

 

All information that is exchanged or becomes known through the course of the business transaction between the Disclosing Party and Recipient shall be deemed trade secrets. Trade secrets can include, but are not limited to, prepared information packages, financials, related documents, names of potential acquisitions, intermediaries, contacts and deal sources, deal structures, and financial considerations.

Both the Recipient and

Disclosing Party agree to preserve and protect the confidentiality of such information and shall not disclose this information without written permission from the other.

 

 

CONFIDENTIAL INFORMATION

 

 

The Disclosing Party and the Recipient

will keep confidential the names and other personal information of any contacts introduced or disclosed to the other

P

arty, and their corporations, partnerships, divisions, associates, firm, employees, contractors, agents, joint ventures, assigns,

or

consultants will

not contact, participate or negotiate in any transactions with any of the contacts without first signing a written agreement with the

P

arty who provided such contact unless that

P

arty gives prior written consent.

 

 

 

 

UNAUTHORIZED DISCLOSURE OF CONFIDENTIAL INFORMATION – INJUNCTION

 

 

If it appears that

the Recipient

has disclosed (or has threatened to disclose) confidential information in violation of this Agreement,

the Disclosing Party

shall be entitled to obtain an injunction to restrain

the Recipient

from disclosing the confidential information in whole or in part.

The

Disclosing Party shall not be prohibited by this provision from pursuing other remedies, including a claim for losses and damages.

 

 

APPLICABILITY OF THIS AGREEMENT

 

 

Both

P

arties agree that the provisions of this Agreement extend to the employees, officers, and representatives of their respective companies/businesses.

 

 

RETURN OF CONFIDENTIAL INFORMATION

 

 

8.1 Upon the written request of the Disclosing Party, the Recipient shall return all materials containing confidential information. The Recipient shall also deliver to the Disclosing Party written statements signed by the Recipient certifying that all materials have been returned within five (5) days of receipt of the request.

 

SEVERABILITY AND CONSTRUCTION

 

 

Except as expressly provided to the contrary herein, each article, term, condition and provision of this Agreement shall be considered severable, and if, for any reason whatsoever, any such article, term, condition or provision herein is deemed to be invalid, illegal or incapable of being enforced as being contrary to, or in conflict with any existing or future law or regulation by any court or agency having valid jurisdiction, such shall not impair the operation or have any other effect upon such other articles, terms, conditions and provisions of this Agreement, and the latter shall continue to be given full force and effect by the Parties hereto, and shall be construed as if such invalid, illegal or unenforceable article, term, condition or provision were omitted.

 

All captions, titles, headings and article numbers herein have been inserted and are intended solely for the convenience of the

P

arties, and none such shall be construed or deemed to affect the meaning or construction of any provisions hereof, nor to limit the scope of the provision to which they refer.

 

All references herein to the masculine gender shall include the feminine and

neuter

genders, and all references herein to the singular shall include the plural, where applicable.

 

This Agreement constitutes the entire, full and complete Agreement between the

Parties

concerning the subject matter hereof, and shall supersede all prior agreements, no other representations having induced the

Disclosing Party

to execute this Agreement. No representation, inducement, promises or agreements, oral or otherwise, between the

P

arties not included herein or attached hereto, unless of subsequent date, have been made by either

P

arty and none such shall be of any force or effect with reference to this Agreement or otherwise. No amendment change or variance of this Agreement shall be binding upon either

P

arty, unless mutually agreed to by the

P

arties and executed by them, or by their respective authorized employees, officers, or agents in writing.

 

 

RELATIONSHIP

 

 

Neither

P

arty has an obligation under this Agreement to purchase any service or item from the other

P

arty, or commercially offer any products using or incorporating the

c

onfidential

i

nformation. This Agreement does not create any agency, partnership, or joint venture.

 

 

NO WARRANTY

 

 

The Recipient acknowledges and agrees that the confidential information is provided on an “as is” basis.

T

he

D

isclosing

P

arty makes no warranties, express or implied, with respect to the confidential information and hereby expressly disclaims any and all implied warranties of merchantability and fitness for a particular purpose.

I

n no event shall the

D

isclosing

P

arty be liable for any direct, indirect, special, or consequential damages in connection with or arising out of the performance or use of any portion of the confidential information. The Disclosing Party does not represent or warrant that any product or business plans disclosed to the Recipient will be marketed or carried out as disclosed, or at all. Any actions taken by the Recipient in response to the disclosure of the confidential information shall be solely at the risk of the Recipient.

 

 

WAIVER

 

 

No failure, delay, waiver, forbearance or omission by either of the Parties hereto of the conditions or of the breach of any term, provision, covenant or warranty contained herein, whether by conduct or otherwise, and no custom or practice of the Parties not in accordance with the terms and conditions hereof, shall constitute or be deemed to be or be construed as being a further or continuing waiver of any such condition or breach, or the waiver of any other condition or of the breach of any other term, provision, covenant or warranty of this Agreement.

 

 

NOTICES

 

 

Any and all notices required or submitted under this Agreement shall be given in writing and shall be personally delivered or mailed by registered mail, postage prepaid and return receipt requested, except in the event of a postal disruption, to the respective [PARTY NAME]

at the following addresses, unless and until a different address has been designated by notice in writing to the other

P

arty:

 

To the DISCLOSING PARTY

[YOUR COMPANY NAME]

[YOUR COMPLETE ADDRESS]

 

To the RECIPIENT

[NAME]

[COMPLETE ADDRESS]

 

 

 

 

 

 

LANGUAGE AND GOVERNING

LAW

 

 

This Non

-Circumvention

Agreement shall be governed by and construed and enforced in accordance with the

laws

of

[STATE/PROVINCE]

, which

law

shall prevail in the event of any conflict of

the

P

arties

.

 

The

P

arties

hereto acknowledge that they requested that this Agreement and all related documents be drafted in English, that any notice to be given hereunder be given in English, and that any proceedings between the

P

arties relating to this Agreement be drafted in English.

 

 

ALTERNATIVE DISPUTE RESOLUTION

 

 

The Parties to this

A

greement agree to attempt in good faith to resolve any conflicts

,

disputes, or claims arising out of this Agreement by negotiation between senior executives or official

s

. If applicable, Parties agree to consider the utilization of Alternative Dispute Resolution (ADR) procedures in situations concerning disputes between the Parties. 

 

 

FORCE MAJEURE

 

 

If the performance of this Agreement or any obligation under this Agreement is prevented, restricted, or interfered with by causes beyond either

P

arty’s reasonable control (“Force Majeure”), and if the

P

arty unable to carry out its obligations gives the other

P

arty reasonably timely written notice of such event, then the obligations of the

P

arty invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work stoppages, other labour disputes, or supplier failures. The excused

P

arty shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a

P

arty if committed, omitted, or caused by such

P

arty, or its employees, officers, agents, or affiliates.

 

 

ASSIGNMENT OF AGREEMENT

 

 

This

A

greement may not be assigned or otherwise transferred by any

P

arty in whole or in part without the express prior written consent of the other

P

arties. In the event any Party shall change its corporate name or merge with another corporation, assignment shall be mutually agreed upon by all Parties.

 

 

 

IN WITNESS WHEREOF, the Parties have executed this Agreement on [DATE].

 

 

DISCLOSING PARTY RECIPIENT

 

 

Authorized Signature Authorized Signature

 

 

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