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NDA - Nick Tonery LDX Capital FZCO draft
BY MADDIE ROHAN
NT
MR
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NDA - NICK TONERY LDX CAPITAL FZCO DRAFT
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LDX Digital - Nick Tonery NDA.
This Confidentiality and Nondisclosure Agreement, is between LDX Capital FZCO,
with offices located at [Unit 112, Building A2, Dubai Digital Park, Dubai
Silicon Oasis, Dubai, United Arab Emirates], and
Nick Tonery, an individual with a physical address of
WHEREAS, Company desires to assure the protection and preservation of the
confidentiality of information, which may be disclosed or made available to
Recipient for the sole, limited purpose of the performance of marketing and
advertising services on behalf of Company, or any of their customers or clients,
by Recipient (the “Purpose”); and
WHEREAS, the Parties intend by this Agreement, among other things, to limit the
manner and extent to which the Recipient may use or disclose the Company’s
Confidential Information (as defined below);
NOW, THEREFORE, the Parties agree as follows:
1. Confidential Information.
1. Except as set forth below, “Confidential Information” includes, but is not
limited to: all non-public, proprietary, or other information of Company or
relating to any customer or client of Company, including all information
surrounding marketing and advertising campaigns for clients and customers
and the results of those campaigns, in oral, visual, written, electronic, or
other tangible or intangible form, whether or not marked or designated as
“confidential,”; Company’s product information, business and marketing
plans, advertising campaigns, financial/pricing information, employee or
contractor information, strategies, software, techniques, drawings, designs,
processes, specifications, technical data, research and development,
inventions, intellectual property, know-how, and Personal Information (as
defined below) and is considered confidential whether or not it is marked as
such; and, all notes, analyses, summaries, and other materials prepared by
Recipient or any of its Representatives (as defined below) that contain, are
based on, or otherwise reflect, to any degree, any of the foregoing
(“Notes”). Confidential Information also includes the facts that the Parties
are in discussions regarding the Purpose and that Confidential Information
has been disclosed and any terms, conditions, or arrangements discussed.
2. Confidential Information does not include information: * which at the time
of disclosure is generally known in the Company’s trade or public; * Setup
of social media platforms* Which Recipient can show by written records was
already in its possession at the time of disclosure and not subject to an
existing agreement of confidence between the Parties;* Which is received
from a third party, other than a current or former agent or representative
of the Company without restriction and without breach of this Agreement or
any other agreement; * Which is independently developed by Recipient as
evidenced by its written records; or,* which is disclosed pursuant to a
valid order of a court or regulatory agency or other governmental body or
any political subdivision thereof consistent with Section 3.
3. “Personal Information” includes, but is not limited to: any information that
can be used to distinguish or trace an individual’s identity, including an
individual’s name, email address, social security number, date and place of
birth, mother‘s maiden name, biometric records, and any other information
that is linked or linkable to an individual, such as medical, educational,
financial, and employment information.
4. If, when disclosing other types of information, the Company affixes or
incorporates into any written information it discloses, a statement
identifying the information as the Company's Confidential Information, such
as "Confidential Information" or words of like meaning, the information is
to be considered Confidential Information. If the information is orally
disclosed and the Company indicates the confidential nature of the
information at the time of disclosure, the information is to be considered
Confidential Information. Notwithstanding the foregoing, Confidential
Information shall be deemed to include information that would reasonably be
understood to be of a confidential nature, given the circumstances
surrounding the disclosure and nature of the information.
2. Recipient’s Obligations of Confidentiality and Nondisclosure. In connection
with the Purpose, Company may disclose to Recipient, or Recipient may otherwise
receive access to, Confidential Information. Recipient agrees that it:
1. Shall use the Confidential Information solely for the Purpose;
2. Shall provide services outlined in the Purpose in return for disclosure of
any information outlined herein, and receive otherwise agreed upon
compensation for those services for agreeing to these confidentiality
obligations;
3. Subject to Section 3, shall not disclose or permit access to Confidential
Information other than to its employees or subcontractors, as expressly
permitted by Company (collectively, “Representatives”), who:* need to know
such Confidential Information for the Purpose;* know of the existence and
terms of this Agreement; and,* are bound by written
confidentiality/nondisclosure agreements no less protective of the
Confidential Information than the terms contained herein;
4. shall be expressly prohibited from using any Confidential Information
relating to clients or customers for purposes of a case study;
5. shall safeguard the Confidential Information from unauthorized use, access,
or disclosure using at least the degree of care it uses to protect its most
sensitive information and no less than a reasonable degree of care;
6. has in place appropriate technical, administrative, and physical controls to
protect the Confidential Information against accidental or unlawful
destruction or accidental loss, alteration, unauthorized disclosure or
access, and which provide a level of security appropriate to the risk
represented by the processing and the nature of the Confidential Information
to be protected.
7. shall promptly notify Company of any unauthorized use or disclosure of
Confidential Information and cooperate with Company to prevent further use
or disclosure; and,
8. shall be responsible for any breach of this Agreement caused by its
Representatives.
3. Legally Required Disclosure.
1. In the event the Recipient or any of its Representatives is requested or
required by law (including by request for information or documents through
legal proceedings, subpoena or other similar process) to disclose any
Confidential Information of the Company, Recipient shall provide the Company
with prompt written notice of any such request or requirement so that the
Company has the opportunity to seek a protective order or other appropriate
remedy and/or waive compliance with the provisions of this Agreement, in the
Company’s sole discretion.
2. If, in the absence of a protective order or the receipt of a waiver by the
Company, the Recipient is nonetheless legally compelled to disclose such
Confidential Information, and provided that the Recipient has cooperated
fully with the Company’s efforts to preserve the confidentiality of the
Confidential Information, including the Company’s efforts to obtain an
appropriate protective order or other reliable assurance that confidential
treatment will be accorded to the Confidential Information, the Recipient,
without liability hereunder, shall only disclose that portion of the
Confidential Information that, in the written opinion of its legal counsel,
Recipient is required to disclose and only to the person(s) to whom such
disclosure is legally required.
4. Return or Destruction of Confidential Information. Upon termination of this
Agreement, and in any event, within five (5) days after being so requested by
the Company, Recipient shall, at Company’s option, either return to Company or
destroy all Confidential Information in its and its Representatives’ possession
other than Notes, and destroy all Notes, and certify in writing to Company the
destruction of such Confidential Information.
5. Disclaimer of Warranties. Company has no obligation under this Agreement to
(a) disclose any Confidential Information or (b) negotiate for, enter into, or
otherwise pursue the Purpose. Company provides all Confidential Information
without any representation or warranty, expressed or implied, as to the accuracy
or completeness thereof, and Company will have no liability to Recipient or any
other person relating to Recipient’s use of any of the Confidential Information
or any errors therein or omissions therefrom.
6. Ownership of Confidential Information. Company retains its entire right,
title, and interest in and to all Confidential Information, and no disclosure of
Confidential Information hereunder will be construed as a license, assignment,
or other transfer of any such right, title, and interest to Recipient, its
Representatives, or any other person.
7. No Solicitation. Recipient acknowledges and recognizes the highly competitive
nature of the business of Company and accordingly agree that: during Recipient’s
engagement with Company, and for one (1) year thereafter, Recipient shall not
directly or indirectly contact, communicate or work with, directly or
indirectly, any clients or customers of the Company;
hire or solicit, induce or influence, or attempt to induce or influence, or
assist in the hiring or solicitation of any person who, at any time during the
six (6) month period prior to such hiring or solicitation was an employee of
Company, or otherwise entice or encourage any such person either to leave
Company’s employ or to provide services to any Company competitor.
8. Term and Termination. The rights and obligations of the Parties under this
Agreement shall be effective on the date the Agreement is signed by the last
Party to sign it (the “Effective Date”), and shall expire twenty-five (25) years
after the Effective Date, unless terminated earlier by written notice from
Company to the Recipient; provided that with respect to Confidential Information
that is a trade secret under the laws of any jurisdiction, such rights and
obligations will survive such expiration until, if ever, such Confidential
Information loses its trade secret protection other than due to an act or
omission of Recipient or its Representatives.
9. Remedies. Recipient acknowledges and agrees that any breach of this Agreement
will cause injury and irreparable harm to Company for which money damages may be
an inadequate remedy and that, in addition to remedies at law, Company is
entitled to equitable relief as a remedy for any such breach. In the event of
any breach or threatened breach of this Agreement, irrespective of any recovery
of monetary damages (which may be difficult or impossible to calculate), the
Company shall be entitled, without the requirement of posting a bond or other
security, to enforce this Agreement in accordance with the terms hereof by
seeking immediate equitable relief, including specific performance and/or a
temporary, preliminary and permanent injunction from any court of competent
jurisdiction. The Company may pursue both monetary damages and equitable relief
concurrently or consecutively, in any order, as to any breach or threatened
breach of this Agreement, and the pursuit of any one of such remedies at any
time will not be deemed an election of remedies or waiver of the right to pursue
any other remedies, it being agreed that all rights and remedies under this
Agreement are cumulative and are in addition to and not in substitution for any
other rights and remedies available at law or in equity or otherwise.
10. Reasonable Restrictions. Recipient acknowledges and agrees that the
covenants and restrictions contained in this Agreement are reasonable in scope,
area and duration and are necessary to protect the Company’s business, good
will, trade secrets, and near permanent, permanent and/or long-standing
relationships with its customers.
11. Indemnification. Recipient hereby indemnifies and agrees to defend and hold
harmless the Company, its partners, directors, officers, affiliates, employees
and agents, from and against any damages, losses, costs and expenses (including,
without limitation, attorneys’ fees) suffered by either Party, as a result of a
breach of this Agreement by Recipient or its Representatives, or suffered as a
result of the enforcement by the Company of this Agreement against Recipient. If
the Company shall prevail in any action at law or in equity to enforce the
provisions of this Agreement against Recipient, Recipient shall pay the
Company’s costs and expenses (including, without limitation, attorneys’ fees)
incurred by the Company in enforcing this Agreement against Recipient.
12. Miscellaneous Provisions.
1. Entirety of Agreement. This Agreement constitutes the entire agreement of
the Parties hereto concerning the subject matter hereof and supersedes any
prior oral or written agreements pertaining to the subject matter of this
Agreement. This Agreement may not be modified, changed or discharged in
whole or in part, except in a separate agreement in writing signed by
Recipient and the Company.
2. Severability. If any provision of this Agreement (including any sentence,
clause or word), or the application thereof to any person, place or
circumstance, shall be determined by a court of competent jurisdiction to
be invalid or unenforceable for any reason, (a) the remaining provisions of
this Agreement shall continue in full force and effect, unaffected by such
determination, (b) the court making such determination shall have the power
to, and the Parties hereby request the court to, modify such provision (by
providing for or adjusting the scope and/or duration of any rights or
restrictions or otherwise) to the minimum extent necessary so that such
provision becomes legal, valid and enforceable to the maximum extent
permitted by law and (c) such determination shall apply only in the
jurisdiction of such court and shall not alter, modify or affect such
provision or any other provision in any other jurisdiction.
3. No Export of Confidential Information. The Recipient represents and
warrants to Company that it will not export, directly or indirectly,
Company’s Confidential Information or any portion thereof in violation of
any relevant law or regulation.
4. Governing Law. This Agreement and all matters relating hereto are governed
by, and construed in accordance with, the laws of the United Kingdom,
without regard to the conflict of laws provisions of either. Any legal
suit, action, or proceeding relating to this Agreement must be instituted
in the courts located in the City of London. Each Party irrevocably submits
to the exclusive jurisdiction of such courts in any such suit, action, or
proceeding.
5. Notices. All notices must be in writing and addressed to the relevant Party
at its address set out in the preamble (or to such other address such Party
specifies in accordance with this section) or by email, to such email
address such Party specifies in accordance with this section. All notices
must be sent by email (in which case such notices shall be effective upon
delivery), personally delivered (in which case such notices shall be
effective upon delivery) or sent prepaid by nationally recognised courier
or certified or registered mail, return receipt requested (in which case
such notices shall be effective five (5) business days after being sent).
6. Successors and Assigns. The Recipient may not assign or otherwise transfer
its rights, duties, or obligations under this Agreement to any other person
or entity, in whole or in part, without the prior written consent of
Company. This Agreement binds and inures to the benefit of the Parties and
their permitted successors and assigns.
7. Amendments and Modifications. No modification of or amendment to this
Agreement, nor any waiver of any rights under this Agreement, will be
binding upon either Party unless made in writing and signed by a duly
authorized representative of each Party.
8. Waiver. No waiver by either Party of any of the provisions hereof shall be
effective unless explicitly set forth in writing and signed by the Party so
waiving. No waiver by either Party shall operate or be construed as a
waiver in respect of any failure, breach, or default not expressly
identified by such written waiver, whether of a similar or different
character, and whether occurring before or after that waiver. No failure to
exercise, or delay in exercising, any right, remedy, power, or privilege
arising from this Agreement shall operate or be construed as a waiver
thereof; nor shall any single or partial exercise of any right, remedy,
power, or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, remedy, power, or privilege.
9. Limitation of Relationship. Nothing contained herein shall create a joint
venture between, or partnership among the Parties.
10. Headings. The headings in this Agreement are for reference only and shall
not affect the interpretation of the Agreement.
11. Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall be deemed to
be one and the same agreement. A signed copy of this Agreement delivered by
facsimile, email, or other means of electronic transmission shall be deemed
to have the same legal effect as delivery of an original signed copy of
this Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as later of
the two dates below, that date being the Effective Date.
Nick Tonery
Maddie Rohan
LDX Capital FZCO
Signature
Signature
06 / 20 / 2024
06 / 20 / 2024
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