Terms and Conditions
This Confidentiality Agreement ("Agreement"), dated , is entered into by and between Encalarde Consultants, LLC (“EC”), having its principal place of business in , , and ’s Authorized Agent, a Parish resident (“Provider”), individually and on behalf of company .
NOW, THEREFORE, in consideration of the promises and the mutual agreements herein contained, and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties hereto agree as follows:
1. The Provider acknowledges that in the course of discussions and pursuant to any service agreement between them, ENCALARDE CONSULTANTS will make Confidential Data available to the other party ("Confidential Data"). Confidential Data includes all information not generally nown or used by others and which gives, or may give, a party an advantage over its competitors or which could cause injury, embarrassment, or loss of reputation or goodwill if disclosed. Such information includes, but is not necessarily limited to, data which identify or concern past, current or potential customers, information about business practices, financial, research, development, systems and plans; and/or certain information and material by a party as "Confidential"; and/or data one party furnishes to the other party from its database or third party vendors; and/or data received from one party and enhanced by the other party. Confidential Data may be written, oral, recorded, or on tapes, disks or other electronic media. Because of the sensitive nature of the information that the parties and their respective personnel may become aware of as a result of this Agreement, the intent of the parties is that these provisions be interpreted as broadly as possible to protect Confidential Data.
2. Provider acknowledges that all Confidential Data furnished by the other party is considered a proprietary trade secret and is a matter of strict confidentiality. Provider also acknowledges that the unauthorized use or disclosure of any Confidential Data of the other party will cause irreparable harm to ENCALARDE CONSULTANTS, or other contractually interested parties. Accordingly, Provider agrees that ENCALARDE CONSULTANTS shall be entitled to seek equitable relief, including injunction and specific performance without the necessity of posting a bond, in addition to all other remedies available at law or in equity for any threatened or actual breach of this Agreement.
3. Provider agrees that he will employ the same security measures to Confidential Data received from the other party that it would apply to its own confidential information (but in no event less than a reasonable degree of care in handling Confidential Data). Without limiting the generality of the foregoing, Provider agrees that it will not distribute, disclose or convey to third parties any Confidential Data, except as specifically permitted in this Agreement.
4. Provider further agrees that: a) only its employees, accountants, consultants, or legal representatives with a defined need to know shall be granted access to Confidential Data and only after they have been informed of the confidential nature of the Confidential Data; b) no copies or reproductions shall be made of any Confidential Data of the other party except to effectuate the purpose of these discussions or with the written consent of the other party; c) it shall not make use of any Confidential Data for its own benefit or for the benefit of any third party.
5. Provider further agrees that: a) only its employees, accountants, consultants, or legal representatives with a defined need to know shall be granted access to Confidential Data and only after they have been informed of the confidential nature of the Confidential Data; b) no copies or reproductions shall be made of any Confidential Data of the other party except to effectuate the purpose of these discussions or with the written consent of the other party; c) it shall not make use of any Confidential Data for its own benefit or for the benefit of any third party.
6. Provider agrees that, should third parties request the party or its consultants or subcontractors to submit Confidential Data of ENCALARDE CONSULTANTS or any of the information contained in the appeals submitted by the residents pursuant to subpoena, summons, search warrant or governmental order, he will notify ENCALARDE CONSULTANTS immediately upon receipt of such request. Notice shall be forwarded via overnight courier by Provider to ENCALARDE CONSULTANTS no later than three (3) business days after receipt by receiving party. If ENCALARDE CONSULTANTS objects to the release of the Confidential Data, Provider will permit counsel chosen by ENCALARDE CONSULTANTS to represent it in order to resist release of the Confidential Data.
7. The obligations set forth in paragraphs 1 through 5 above shall not apply to: a) Confidential Data: 1) which has become well known in the trade; 2) which was disclosed to a party by a third party not under an obligation of confidentiality to the other party; 3) which was independently developed by a party not otherwise in violation or breach of this Agreement or any other confidentiality obligation to the other party; 4) which was rightfully known to a party prior to entering into this Agreement; or b) any disclosure specifically authorized in writing by a party.
8. Provider agrees that all Confidential Data received from ENCALARDE CONSULTANTS shall at all times remain the sole property of ENCALARDE CONSULTANTS and shall be returned immediately upon demand or upon termination of any business relationship between the parties. No rights or licenses, express or implied, are granted by one party to the other under any patents, copyrights, trade secrets or other proprietary rights as a result of or related to this Agreement.
9. Provider agrees that without ENCALARDE CONSULTANTS's written consent, he will not use the name, service marks, or trademarks of ENCALARDE CONSULTANTS or any of its affiliated companies or reveal the existence of this Agreement or the terms or conditions thereof.
10. The disclosure or receipt of information hereunder in no way obligates either party to enter into any business relationship with the other party and does not preclude either party from entering into discussions or agreements of any kind whatsoever with any other party, provided such discussions or agreements do not violate any provisions of this Agreement or any other agreement between the parties.
11. Non-Circumvention/Solicitation. It is understood Provider will not, without prior knowledge and consent of the other party, circumvent, approach, contact, solicit, negotiate, or discuss any other business projects, contracts, agreements, or transactions, which relate to or may relate to the proposed relationship between the parties (the Purpose), with any of the ENCALARDE CONSULTANTS’s employees, vendors, clients, potential contacted clients, affiliates, or such introduced person(s) or entity whereby any such agreement, contract, intent undertaking, or act by which a profit, commission, income, royalty, back-in reversionary interest, or other benefit would result or accrue. If this clause is violated the violating party agrees to pay direct and indirect treble the actual damages and gains that were achieved as a result of such violating conduct, plus attorneys fees and costs, and interest at highest allowable rate from the date of violation.
12. No term or provision hereof shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute consent to, waiver of, or excuse for any different or subsequent breach.
13. This Agreement shall be governed by the internal laws of the State of Louisiana, without regard for conflict of laws principles. In the event that either party pursues legal action against the other to enforce or protect its rights under this Agreement, the parties agree that the federal or state courts of St. Orleans Parish, Louisiana, shall have sole and exclusive jurisdiction over the matter. The parties agree that the prevailing party herein shall be entitled to recover its costs, disbursements, and reasonable attorney's fees following a final judgment from the non-prevailing party.
14. This Agreement is effective upon the date first written above or upon the date when Confidential Data is first disclosed, whichever occurs first.
15. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof. Any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
16. The obligations of each party set out in paragraphs 1 through 13 above shall survive the termination of this Agreement and the return of any Confidential Data.
17. Each party acknowledges that any business relationship or agreement which may arise out of discussions or the exchange of Confidential Data under this Agreement shall be for the convenience and mutual benefit of the parties and that either party may provide the same or similar products or services directly to its customers as may be the subject of any such resulting agreement.
18. Provider agrees that ENCALARDE CONSULTANTS has made no guaranties to provide a business opportunity to Provider. Accordingly, Provider waives any right to claim that he is entitled to damages by way of contract, negligent misrepresentation, fraudulent inducement or unjust enrichment. ENCALARDE CONSULTANTS is in no way liable for compensation of any kind without a separate contract or agreement for services and/or employment.
19. The parties agree that this agreement will be governed by the laws of Louisiana and that proper jurisdiction is the Civil District Court for Orleans Parish or United States District Court for the Eastern District of Louisiana. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the day and year first above written.
