This
Agreement made this
, at
between TELEcomputers
Services and XPhosting.Net (Hereinafter called
"the Host") and Company or Individual submitting
this electronic form (Hereinafter called "the
Reseller").
WHEREAS
the Host is in ownership and possession of certain Confidential
Information (Hereinafter called "the Confidential
Information").
AND
WHEREAS the Reseller and the Host wish to investigate the
possibility of entering into a future business relationship for
the purpose of financing, marketing, selling, or otherwise
commercially exploiting the Confidential Information.
NOW
THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the
Host disclosing the Confidential Information to the Reseller and
the mutual covenants and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the
Reseller hereto covenants, undertakes and agrees with the Host as
follows:
1.
Definition
(a)
Agreement
Any
reference herein to an Agreement, means this Agreement.
(b)
The Confidential Information
In
this Agreement, "the Confidential Information" means
information relating to the products, services, ideas,
business, personnel, trademarks, copyrights, intellectual
property or commercial activities of the Host, including but
not limited to formulas, systems, presentations, compilation,
devices, concepts, techniques, marketing and commercial
strategies, processes, data which individually may, or may not
be confidential, which information is not generally known to
the public and either derives economic value, actual or
potential, from not being generally known, or has character
such that the Host has a legitimate interest in maintaining
its secrecy. In addition, the Reseller agrees as follows:
(i)
All documents given by the Host to the Reseller will be
considered the Confidential Information, whether or not
market with any proprietary notice or legend when the
disclosure takes place.
(ii)
To avoid any engaging in any "design around"
activities regarding the Confidential Information.
(c)
Parties to the Agreement
The
Host and the Reseller are each a Party to this Agreement and
may be collectively referred to as Parties to this Agreement.
Also, the singular reference to each party is intended to
encompass the plural version where there may be more than one
Host or more than one Reseller who is a party to this
Agreement.
2.
Exclusive Dealing
The
Reseller agrees to exclusively deal with the Host in all matters
dealing with the financing, marketing, selling, or otherwise
commercially exploiting the Confidential Information.
3.
Employees
The
Reseller shall not disclose the Confidential Information to its
employees. If such disclosure is necessary, or about to be made
for whatever reason, the Reseller shall seek the written
permission of the Host, and allow the Host the opportunity to
enter into a non-disclosure agreement, substantially identical to
this Agreement, with the employee.
4.
Third Parties
The
Reseller shall disclose the Confidential Information to third
parties. If such third party disclosure is necessary, or about to
be made for whatever reason, the Reseller shall seek the written
permission of the Host, and allow the Host the opportunity to
enter into a non-disclosure agreement, substantially identical to
this Agreement, with the third party.
5.
Acknowledgment of Ownership and Confidentiality
The
Reseller acknowledges and agrees that the Confidential Information
that is disclosed to it by the Host, or that it acquires, sees, or
learns of as a direct or indirect consequence of the discussions
contemplated herein, and all dealings and transactions that follow
or result from such discussion(s), are the exclusive property of
the Host, and the Reseller will keep that information strictly
confidential, as a fiduciary.
6.
No Transfer of Rights
The
Reseller acknowledges and agrees that it shall not acquire any
right or interest in the Confidential Information and that the
Host shall remain the sole owner of the Confidential Information
including, but not limited to all patent, copyright, trademark,
trade secret, trade name, contract, industrial design, and other
property rights pertaining thereto, anywhere in the world.
Reseller shall not manufacture, use, sell, or distribute the
Confidential Information without the written permission of the
Host.
7.
No Offer for Sale
The
Parties acknowledge and agree that the disclosure of the
Confidential Information by the Host to the Reseller does not
constitute an offer by the Host for the sale, license or other
transfer of the Confidential Information. Except as may be
expressly set forth herein, neither Party shall have any financial
or other obligation to each other respecting the Confidential
Information. Any offer for sale, license, or other transfer of the
Confidential Information shall be made pursuant to a separate
agreement.
8.
Rights of Derivatives
Should
the Reseller or any of its employees, agents, or representatives
conceive any invention, innovation, discovery, computer program,
process, technique or the like, as a result of observing or having
access to the Confidential Information, the Reseller agrees to
assign or to have assigned, said invention, innovation, discovery,
computer program, technique or the like, to the Host.
9.
Return of Information
The
Reseller will return to the Host any material in the Reviewer’s
possession or control, that bears, embodies or refers to the
Confidential Information of the Host promptly, when requested to
do so by the Host.
10.
Remedies
Each
Party agrees that in the event of any such breech of this
Agreement by it, that, in addition to all other remedies available
to the other Party at law or in equity, the other Party shall be
entitled as a matter of right to apply to a Court of competent
jurisdiction for such relief by way of restraining order,
compliance with the provisions of this agreement.
11.
Severability
If
any covenant or provision of the Agreement is determined to be
void or unenforceable in whole or part, then such void or
unenforceable covenant or provision shall be deleted from this
Agreement and shall not affect or impair the enforceability or
validity of any other covenant or provision of this Agreement or
any part thereof.
12.
Modification
The
parties can modify any covenant or provision of this Agreement
only by a writing signed by both parties.
13.
Litigation
This
Agreement represents the entire understanding between the parties
and supersedes all other agreements express or implied between the
parties regarding disclosure of the Confidential Information.
14.
Successors
This
Agreement shall be binding upon and insure to the benefit of both
Parties and their respective heirs, successors, assigns and
representatives.
15.
Waiver
No
waiver, delay, indulgence or failure to act by either party
regarding any particular default of omission by the other shall
affect or impair any rights or remedies regarding that or any
subsequent default or omission that are expressly waived in
writing.
16.
Governing Law
This
Agreement shall be construed and interpreted in accordance with
the laws of the State of New York and any action arising out of
this Agreement shall be brought in the Superior Court of New York
in Nassau County and or the United States District Court for the
New York Metropolitan Area.
17.
Commencing Proceedings
The
parties to this Agreement agree that the process of any suit,
action, or proceeding before any court signing in the State of New
York may be commenced by service delivered personally to the
opposing Party to this Agreement or to an appropriate agent for
service.
18.
Continuing Obligation
Any
rights and obligations under this Agreement that by their nature
extend beyond the terms of this Agreement shall survive any
expiration or termination of this Agreement and shall remain in
effect until complete performance thereof has occurred.
19.
Attorney’s Fees
If
any litigation arises out of this Agreement, the prevailing Party
shall be entitled to reasonable attorney’s fees, costs and
expenses in addition to any other relief to which that Party may
be entitled.
20.
Captions
All
indexes, titles, subject headings, section titles, and similar
items are provide for the purpose of reference and convenience and
are not intended to be inclusive, definitive, or to affect the
meaning or scope of this Agreement.
21.
Execution Authority
The
person who submits this electronic form certifies that they are
authorized to enter this Agreement on behalf of the Reseller for
whom they submit this form.
