Vendor Form - Astoria Company

MUTUAL NONDISCLOSURE & NON COMPETE AGREEMENT

The Parties desire to pursue certain discussions (the “Discussions”) regarding their respective businesses. In the course of those discussions, either party may disclose (the “Disclosing Party”) to the other (the “Receiving Party”) certain information that is confidential or proprietary to such party or others. Each Party desires to protect confidential or proprietary information delivered to the other Party.

Whenever used in this Agreement, the term “Confidential Information” means all information related to any aspect of the Disclosing Party’s business which is either information not known by its actual or potential competitors or is otherwise proprietary information of the Disclosing Party, whether of a technical nature or otherwise. “Confidential Information” includes the Disclosing Party’s inventions, ideas, designs, trade secrets, works of authorship, developmental or experimental work, processes, techniques, improvements, computer programs, source code, know-how, new product ideas, pricing policies, business plans, customer lists, financial information or other information. Notwithstanding the foregoing, the term “Confidential Information” will not include any information which the Receiving Party can conclusively prove (a) was known by the Receiving Party prior to receiving the same directly or indirectly from the Disclosing Party, (b) is lawfully and independently developed or acquired by the Receiving Party without use of the Confidential Information, (c) was, or at any time becomes, available in the public domain other than through a violation of this Agreement or (d) is required to be disclosed by any law or by any applicable judgment, order, subpoena or decree of any court or governmental body or agency provided that in such circumstances the Party subject to such requirement shall provide prompt notice of the requirement to the other Party and shall cooperate with such other Party (at such other Party’s expense) as it may reasonably request in any attempts to prevent or minimize the extent of required disclosure.
Each Party acknowledges that any Confidential Information received from the other Party is a valuable trade secret, and confidential and proprietary information of the Disclosing Party.
The Receiving Party agrees to maintain the confidentiality and secrecy of the Confidential Information of the Disclosing Party, and to prevent the unauthorized use, disclosure, dissemination or publication thereof, with the same degree of care as the Receiving Party uses to treat its own information of a similar sensitive nature, provided that the Receiving Party shall use no less than commercially reasonable efforts to safeguard the Confidential Information. However, the Receiving Party shall be permitted to make legally required disclosures of the Confidential Information to the extent required by law and may disclose Confidential Information to the Receiving Party’s officers, directors, employees, attorneys, accountants, investment bankers or other professional advisors regarding the Discussions (collectively, “Representatives”) who or which (i) have a need to know the Confidential Information to evaluate or carry out the Discussions; (ii) are informed or otherwise know of the confidential nature of the Confidential Information, and (iii) agree to be bound by the terms of this Agreement (in the case of Representatives satisfying all three requirements, the “Permitted Representatives”).
Nothing in this Agreement shall be construed as granting any rights to Receiving Party under any patent, copyright, trade secret or other intellectual property right nor shall this Agreement grant the Receiving Party any rights in or to the Confidential Information except as expressly stated in this Agreement. Neither Party will remove, obscure or alter any notice of patent, copyright, trade secret or other proprietary right from the other Party’s Confidential Information without the other Party’s prior written authorization. Further, it is expressly acknowledged and agreed that nothing in this Agreement shall obligate either Party to consummate an agreement or transaction with the other Party or to enter into any exclusive negotiations or any negotiations with respect thereto. Neither Party is under any obligation to disclose Confidential Information to the other Party or to continue to disclose Confidential Information.
Upon completion of a particular project or agreement emanating from the Discussions or termination of the Discussions described above or upon the earlier request of a Disclosing Party, each Party will return to the other Party or destroy all Confidential Information received from the other Party and all copies thereof, including summaries, reports or notes based thereon, unless otherwise agreed by the Parties in writing. The obligations under this Agreement with respect to Confidential Information exchanged by the Parties shall continue so long as a Party is in possession of any Confidential Information of the other Party.
The Receiving Party acknowledges and agrees that any actual or threatened breach of this Agreement may cause irreparable harm to the Disclosing Party for which money damages are not an adequate remedy. In view of the foregoing, the Disclosing Party shall be entitled to seek specific performance or other equitable relief as a remedy for any actual or threatened breach of this Agreement by the Receiving Party or any of its Representatives. Such remedy shall not be deemed to be the exclusive remedy for the breach or threatened breach of this Agreement but shall be in addition to all other remedies available to the Disclosing Party at law or in equity. The Receiving Party agrees that the provisions of this Agreement shall be deemed to apply, with equal force and effect, to any of its Representatives and that the Receiving Party shall be responsible for any breach of the provisions of this Agreement by any of its Representatives.
Any and all notices, requests, consents, demands or other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given (i) when delivered, if sent by United States registered or certified mail (return receipt requested), or if delivered personally by commercial courier, (ii) on the second following business day, if sent by United States Express Mail or overnight courier or (iii) upon the date reflected on a fax confirmation from the transmitting fax machine, if sent by facsimile transmission, in each case to the parties at the following addresses or facsimile numbers (or at such other addresses or facsimile numbers as shall be specified by like notice) with applicable postage or delivery charges prepaid:If to ASTORIA, then to: Astoria Company, at 6387 Camp Bowie Blvd, Ste B #631 Fort Worth, TX 76116 Attn: Scott Thompson, Chief Executive Officer, Email: admin@astoriacompany.com If to INDEPENDENT CONTRACTOR, then to: Astoria with its principal office located at
Neither Party may assign its rights or delegate its obligations hereunder without the prior written consent of the other Party. With respect to the matters contemplated hereunder, this Agreement constitutes the entire understanding and fully integrated agreement between the Parties with respect to the use and treatment of the Confidential Information of each Disclosing Party, and this Agreement supersedes all prior or contemporaneous oral or written communications, negotiations, understandings and agreements between the Parties with respect to the subjects addressed herein. This Agreement may only be amended, modified, revised or terminated, or any condition or obligation hereunder waived, by a separate, express written instrument executed by both Parties or the Party against whom enforcement is sought. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power or privilege.
INDEPENDENT CONTRACTOR specifically agrees that it shall not for 2 (2) years after execution of the Agreement (the “Non-Circumvention Period”), directly or indirectly, contact, solicit or enter into any business relationship for any purpose relating to ASTORIA’s business for, or related entity. The parties agree that a breach of this Section will cause ASTORIA to suffer irreparable harm and that monetary damages would be inadequate to compensate for such damage. As such, the parties agree that in such event, ASTORIA will, in addition to all other remedies including without limitation Section 6, be entitled to injunctive relief (including costs and attorneys’ fees) to independently prevent a breach or threatened breach of this Section without the necessity of proving actual damages or posting a bond.
This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Delaware, without regard to principles of conflicts of law. In the event that any provision in this Agreement shall be found in the disposition of a legal action (including a binding arbitration) to be invalid, illegal or unenforceable, such provision shall be construed and enforced as if it had been narrowly drawn so as not to be invalid, illegal or unenforceable or shall be omitted, and the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute the same agreement.
Mutual Non-Compete and Non-Circumvention Policy. INDEPENDENT CONTRACTOR recognizes that ASTORIA has a proprietary relationships with the organizations, companies, technologies, processes and individuals that facilitate selling and/or promoting of ASTORIA’s services, websites and products. INDEPENDENT CONTRACTOR agrees not to circumvent ASTORIA’s relationship with such organizations and individuals, advertisers and/or third-parties, or otherwise make direct deals (i.e. circumventing) ASTORIA. This policy refers only to individuals and organizations that ASTORIA has approached first (i.e. introduced to the INDEPENDENT CONTRACTOR).ASTORIA recognizes that INDEPENDENT CONTRACTOR has a proprietary relationships with the organizations, companies, technologies, processes and individuals that facilitate selling and/or promoting of INDEPENDENT CONTRACTORs services, websites and products. ASTORIA agrees not to circumvent INDEPENDENT CONTRACTORs relationship with such organizations and individuals, advertisers and/or third-parties, or otherwise make direct deals (i.e. circumventing) the INDEPENDENT CONTRACTOR. This policy refers only to individuals and organizations that INDEPENDENT CONTRACTOR has approached first (i.e. introduced to ASTORIA).
During the term of this Agreement the INDEPENDENT CONTRACTOR shall not compete directly or indirectly in any manner whatsoever whether as employee, agent, consultant or through participations and the like with operations or businesses in which ASTORIA is engaged, in particular, without limitation, the INDEPENDENT CONTRACTOR shall not engage in the field of lead generation, buying lead data, or selling lead data, or the automation of such. The only permissible exception would be when generating leads for INDEPENDENT CONTRACTORS primary business use.
The INDEPENDENT CONTRACTOR is bound to ASTORIA’s best interests during the term of this Agreement. INDEPENDENT CONTRACTOR shall notify ASTORIA of any possible or potential conflict of interest which may result from INDEPENDENT CONTRACTOR’s other activities, and shall commence such other activities only after written approval of ASTORIA which may not be unreasonably withheld.

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