NONDISCLOSURE AGREEMENT
This Agreement is dated effective the {sign date} and is entered into by and between (“Discloser, Pure Fitness Martial Arts/Legendary Fight Promotion”) and {full name} (together with all its affiliates, the “Recipient”) to record Recipient’s agreement to maintain the confidentiality of certain information provided and/or to be provided by Discloser to Recipient for its consideration in a possible transaction between the parties (the “Transaction”). In connection with this possible Transaction, Discloser wishes to disclose, and Recipient wishes to receive, certain information described herein. For this purpose, the parties hereto agree as follows:
1. Confidential Information. In connection with the Transaction, the Discloser is prepared
to make available to Recipient. Information regarding ideas, customers, pricing, purpose,
contracts, business practices, technical data, know-how, services, inventions, processes, designs,
and finances of the Discloser (“Information”). The term “Information” means all notes, analyses,
compilations, studies, interpretations or other documents prepared by Recipient which contain or
are based upon any Information furnished by the Discloser, including without limitation, products,
processes, services, research, development, inventions, manufacturing, purchasing, accounting,
engineering, marketing, client lists, merchandising, processes, labels and packaging, product
designs, account lists, pricing, suppliers, sourcing requirements, financial projections, business
plans, contracts and agreements and the like to the extent such information is directly related to the
Transaction. “Confidential Information” includes such information previously disclosed from one to
the other and information disclosed going forward. “Confidential Information” does not include
information which: (a) is or becomes generally available to the public other than as a result of a
disclosure by the receiving party; (b) was known by the receiving party prior to its being furnished
to the receiving party by or on behalf of the disclosing party: (c) is or becomes available to the
receiving party on a non-confidential basis from a source other than the disclosing party; or (e) is
generally disclosed by the disclosing party to third parties without a duty of confidentiality on the
part of third parties. All Confidential Information furnished under this Agreement is and shall remain
the property of the disclosing party. If any Information is reproduced, copied or incorporated into Recipient’s work product, any copyright, trademark or proprietary notices of Discloser shall be reproduced or copied and/or shall accompany such reproduction, copy or use. Any such reproduction, copy or work product shall, upon creation, be deemed Information owned by Discloser and subject to the terms and conditions of this Agreement.
2. Public Information. Information shall not include: (i) information which Recipient can
document was in the public domain at the time of disclosure; (ii) information which was within
Recipient’s possession prior to its being furnished by or on behalf of the Discloser pursuant hereto,
provided that the source of such information was not bound by a confidentiality agreement with, or
other contractual, legal or fiduciary obligation of confidentiality to, the Discloser and/or any other party with respect to such information; (iii) information which, although originally confidential, subsequently becomes part of the public domain other than through a breach by Recipient of its obligation of confidentiality; or (iv) information which is independently developed by Recipient without the use of the Information.
3. Agreement to Maintain Confidentiality. In consideration of Discloser’s disclosure to Recipient
of the Information, the Recipient agrees that it will keep the Information confidential and that the
Information will not, without prior written consent of Discloser, be disclosed by the Recipient in any
manner whatsoever, in whole or in part, including without limitation, any public statement or
announcement or other release to trade publications, press or otherwise. The Information shall not
be used, including reverse engineering, by the Recipient other than in connection with the Transaction. Recipient agrees to transmit the Information only to such of its Representatives who need to know the Information for the sole purpose of assisting the Recipient in evaluating the Transaction, and each such Representative shall be provided with a copy of this Agreement and shall agree in writing to be bound by the terms hereto as if a party hereto. The Recipient’s agreement to maintain the confidentiality of the Information continues even if the Transaction is not completed, does not come to fruition or is discontinued in any way.
4. Required Disclosure. If Recipient is requested or required (by oral questions, interrogatories,
or requests for information or documents in any legal proceedings, or by subpoena, civil investigative demand or other similar process) to disclose any of the Information, Recipient shall provide the Discloser with prompt written notice of any such request or requirement so that the Discloser may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Discloser, Recipient is nonetheless, in the written opinion of Recipient’s counsel, legally compelled to disclose Information to any tribunal or else stand liable for contempt or suffer other censure or penalty, Recipient may, without liability hereunder, disclose to such tribunal only that portion of the Information which such counsel advises is legally required to be disclosed, provided that Recipient shall exercise best efforts to preserve the confidentiality of the Information, including, without limitation, by cooperating with the Discloser to obtain any appropriate protective order or other reliable assurance that confidential treatment will be accorded the Information by such tribunal.
5. Return or Destruction of Information. Recipient shall not, without the specific written consent
of Discloser, retain any copies of the Information, and nothing in this Agreement shall be construed as giving Recipient any license or rights with respect to any Information which may be disclosed to
Recipient. The Recipient agrees that, at the conclusion of its review of the Information, or within three (3) business days of Discloser’s request, all copies of the Information in any form whatsoever will be delivered by the Recipient to Discloser. Notwithstanding the return or destruction of the Information, Recipient will continue to be bound by the obligations contained in this Agreement.
6. No Use. Recipient agrees for a period of three (3) years from the termination of this
Agreement not to engage in, either on its own behalf or on behalf of others, any business or endeavor that is similar to that of the Disclosure as disclosed to recipient.
7. Remedies. The Recipient acknowledges and agrees that, in the event of any breach of
this Agreement, Discloser would be irreparably and immediately harmed and could not be made whole by monetary damages. Accordingly, it is agreed that, in addition to any other remedy to which it may be entitled in law or equity, Discloser shall be entitled to an injunction or injunctions (without the posting of any bond and without proof of actual damages) to prevent breaches or threatened breaches of the Agreement and/or to compel specific performance of the Agreement, and that Recipient will not oppose the granting of such relief.
8. Indemnification. Recipient shall be responsible for the acts of its Representatives with
respect to the Information, whether or not the acts were authorized or approved by Recipient.
Recipient hereby agrees to indemnify and hold Discloser harmless from and against any loss, damage or expense arising out of any disclosure or misuse of the Information which Recipient has caused, permitted or failed to prevent.
9. No Representation or Warranty. Neither Discloser nor its directors, officers, employees,
agents or other representatives is making or has made any representation or warranty as to the
completeness or accuracy of any Information provided or to be provided by Discloser to Recipient,
and shall have no liability to Recipient for any errors or omissions in the Information except as may
otherwise be provided in any executed and delivered definitive agreement between Discloser and
Recipient for the Transaction.
10. No Binding Effect on Transaction. Neither Discloser nor the Recipient will be under any
legal obligation of any kind whatsoever to enter into the Transaction by virtue of this Agreement.
11. Modification. This Agreement may be modified or waived only by a separate writing signed
by Discloser and by the Recipient expressly so modifying or waiving such Agreement.
12. Waiver. No failure or delay by Discloser in exercising any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or
privilege preclude any other or further exercise thereof.
13. Choice of Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of Washington. This Agreement supplements and does not supersede Recipient’s
obligations under other law or agreements, including without limitation, under the Washington Uniform Trade Secrets Act.
14. Venue and Jurisdiction. The Recipient agrees that any action or proceeding arising out
of or related in any way to this Agreement shall be brought in Whatcom County, Washington.
15. Survival of Terms. The provisions of this Agreement are independent of any agreement
for the Transaction, and, notwithstanding the creation of any such agreement, shall remain in full force and effect unless terminated or modified by a writing signed by both Discloser and Recipient.
16. Reasonableness. The parties acknowledge and agree that in view of the scope and
nature of the business presently conducted by Discloser, it would be difficult, if not impossible, to
completely define and limit the scope for the application of the covenants contained in section 6 above, and therefore, Recipient expressly agrees to the reasonableness and applicability of the abovementioned time periods, scope and nature of the covenants. Recipient further agrees that the time periods and scope specified above designate the fair, appropriate, minimum and reasonable time and scope necessary to protect Discloser and the goodwill of the business being conducted by the Discloser. If any court finds that any provision within this Agreement is unreasonable, either in period of time, scope or otherwise, then the parties agree that these covenants shall be interpreted and enforced to the maximum extent the court deems reasonable.
17. Partial Invalidity. If any clause or other provision of this Agreement is or becomes illegal,
invalid or unenforceable, the intention of the parties is that all of the remaining portions of the
Agreement shall not be affected thereby and that all the portions of the Agreement not so affected
shall remain separately valid and in full force and effect.
18. Notices. To be effective, any notice hereunder shall be in writing, delivered in person or
mailed by certified or registered mail, postage prepaid, to the affected party or parties to the addresses set forth below their signatures hereto, or to such other address as the parties may hereinafter designate. The termination of this Agreement shall be deemed to have occurred when either party has sent a written letter of termination to the other.
19. Costs and Attorney’s Fees. In any legal action, arbitration or other proceeding related to or
arising out of this Agreement, the prevailing party or parties shall be entitled to recover from the other party reasonable attorney’s fees and other costs incurred.
20. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the respective
parties and their legal representatives, successors, assigns and heirs.
21. Interpretation and Fair Construction of Contract. This Agreement has been reviewed
and approved by each of the parties. In the event it should be determined that any provision of this
Agreement is uncertain or ambiguous, the language in all parts of this Agreement shall be in all cases construed as a whole according to its fair meaning and not strictly construed for nor against any party.
21. Counterparts. This Agreement may be signed in counterparts, and thereafter each
counterpart shall be deemed to be an original.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date and year first above written.
DISCLOSURER
Name: Brooke Pete
By Brooke Pete
Its Owner
Address 4201 Meridian St., Bellingham, WA 98225
Telephone 360-306-8478
Fax n/a
___________________________
RECIPIENT
By {name}
Its
Address {address}
Telephone {phone}
Fax
SIGNATURES
(owner)
Brooke Pete
(recipient)
Officers, Employees or Agents of the Recipient who will have access to the Information:
