CONFIDENTIALITY AND NON-SOLICITATION AGREEMENT
This Confidentiality and Non-Solicitation Agreement (the “Agreement”), is made and entered into this Sunday, February 05, 2012 by and between AdCommunal Inc. (“AdC”) and the Advertiser.(the “Company”).
WHEREAS, AdC will be providing Company with certain products and/or services, which may include any one or more of the following products and/or services: online advertising, dedicated or opt-in e-mail rental, newsletters sponsorship, direct mail list rental, and co-registration;
WHEREAS, Company may be provided certain confidential, proprietary and trade secret information of AdC, including but not limited to information relating to affiliates and partners with whom AdC does business or plans to do business, and the Company may also have personal contact with AdC’s employees and said affiliates or partners;
WHEREAS, AdC has a legitimate business interest in maintaining its business and employee relationships and protecting its confidential, proprietary and trade secret information from disclosure, and Company acknowledges AdC’s interests in protecting such relationships and information;
NOW, THEREFORE, in consideration of the ongoing business relationship between AdC and the Company, and in order to preserve the value and competitive advantages of AdC’s business and maintain the confidentiality of AdC’s confidential, proprietary and trade secret information, the parties agree as follows:
1. Confidentiality. The Company acknowledges and agrees that, in the course of AdC providing certain products and/or services to the Company, the Company may be provided or exposed to data and information concerning AdC’s business, which information is proprietary and confidential, including but not limited to data and information relating to AdC’s products or services; potential products or services; business plans; personnel; marketing; affiliates or partners with whom AdC does business or plans to do business; sales; systems; processes; trade secrets; methods; know-how; and/or data and plans (collectively, “Confidential Information”).
The Company acknowledges and agrees that all Confidential Information is owned by, proprietary to, and a trade secret of AdC and, as such, is a valuable, special and unique asset of AdC, and that any disclosure or unauthorized use of any such Confidential Information by the Company will cause irreparable harm and loss to AdC. The Company understands and acknowledges that each and every component of the Confidential Information (a) has been developed by AdC at significant effort and expense and is sufficiently secret to derive economic value from not being generally known to other parties, and (b) constitutes a protectable business interest of AdC. The Company further acknowledges that nothing in this Agreement shall be construed as granting the Company rights, by license or otherwise, to any of the Confidential Information.
Throughout AdC’s business relationship with the Company and at all times thereafter: (a) the Company will hold all Confidential Information in the strictest confidence and take all reasonable precautions to prevent its advertent disclosure to any unauthorized person; (b) the Company not, directly or indirectly, disclose or make available to any other person or entity, any of the Confidentiality Information; (c) the Company will not, directly or indirectly, disclose or make available any of the Confidential Information to any of its employees without the written consent of AdC and, even upon receiving said written consent, without the Company first advising such employees of the confidentiality obligations set forth in this Agreement and taking reasonable steps to ensure that such employees adhere to those obligations; and (d) the Company will not use the Confidential Information to unfairly complete with AdC or to do business with or attempt to do business with affiliates or partners with whom AdC does business or plans to do business. The Company understands that its obligations under this Paragraph 1 will terminate only at such time (if any) as the Confidential Information in questions becomes generally known to the public other than through a breach of the Company’s obligations under this Agreement.
2. Non-Solicitation of Affiliates. Throughout AdC’s business relationship with the Company and for a period of six (6) months thereafter, the Company agrees that it will not, directly or indirectly, do business with or solicit business from any affiliate or partner with whom AdC does business or plans to do business and who becomes known to the Company as a result of its business relationship with AdC. The Company further agrees that, in the event any such affiliate or partner contacts the Company for the purpose of doing business with the Company, the Company will direct said affiliate or partner to contact AdC with instructions that any business with the Company must be conducted through AdC.
3. Non-Solicitation of Employees. Throughout AdC’s business relationship with the Company and for a period of twelve (12) months thereafter, the Company agrees that it will not employ, retain, solicit for employment or retention, knowingly assist in the employment or retention of, or seek to influence or induce to leave AdC’s employment or service, any person who is employed or otherwise engaged by AdC at any time during the one-year period ending on the last day of AdC’s business relationship with the Company. Company acknowledges and agrees that AdC’s personnel have been acquired and trained by AdC at a considerable expense. Company, therefore, agrees that if Company or any affiliate of Company (including any company that is under common ownership and/or control of Company) should employ any AdC employee , within one year after such employees leaving AdC’s employ, then company agrees to pay AdC, within 10 days of demand, a placement fee of 150% of the former employee’s projected first year earnings (including projected bonuses and commissions) from Client. Client acknowledges and agrees that AdC will not provide any support or services to or through this former employee.
4. Enforcement. The Company agrees that given the nature of AdC’s business, the scope and duration of the restrictions contained in Paragraphs 1 through 3 of this Agreement are reasonable and necessary to protect the legitimate business interests of AdC. The Company recognizes and agrees that any breach or threatened or anticipated breach of any part of Paragraphs 1 through 3 of this Agreement will result in irreparable harm and continuing damage to AdC, and that the remedy at law for any such breach or threatened or anticipated breach will be inadequate. Accordingly, in addition to any other legal or equitable remedies that may be available to AdC, the Company agrees that AdC shall be entitled to seek and obtain an injunction or injunctions, without bond or other security, to prevent any breach or threatened or anticipated breach of any such section. The Company agrees to reimburse AdC for all costs and expenses, including reasonable attorney’s fees and costs, incurred by AdC in connection with the enforcement of its rights under this Agreement.
If any part of this Agreement is held void, illegal, or unenforceable, or in conflict with any applicable law, every other term of this Agreement shall remain valid and fully enforceable. If any court refuses to enforce any part of this Agreement as written, the court shall modify that part to the minimum extent necessary to make it enforceable under applicable law, and shall enforce it as so modified.
5. Entire Agreement. This Agreement constitutes the entire Agreement and understanding between the parties with respect to the subject matter hereof and supersedes and preempts any prior understandings, agreements or representations by or between the parties, written or oral, which may have related in any manner to the subject matter hereof. No other agreement or amendment to this Agreement shall be binding upon either party including, without limitation, any agreement or amendment made hereafter unless in writing, signed by both parties.
6. Successors and Assigns. This Agreement shall be enforceable by AdC and its successors and assigns.
7. Governing Law and Jurisdiction. This Agreement shall be governed by and construed and enforced in accordance with the laws of Ontario Canada without regard to principles of conflict of laws. The state courts of Ontario, Canada and the shall have the exclusive jurisdiction over any and all claims, lawsuits and litigation relating to or arising out of this Agreement.
8. Waivers. The failure of AdC at any time or times to enforce any of its rights under this Agreement shall in no manner affect its right at a later time to enforce the same. No waiver by AdC of any provision or of any breach of any covenant in this Agreement shall be effective unless in writing signed by the Chief Executive Officer of AdC. No waiver by AdC of any provision or breach of this Agreement in any one or more instances shall be deemed to be a further or continuing waiver of any such provision or breach in other instances or a waiver of any other provision or breach of any other part of this Agreement.