Whereas, Bucket Pay has developed a proprietary system of providing a service to facilitate the servicing of certain payroll deductions;
Whereas, Bucket Pay wishes to disclose to Party B certain proprietary, confidential, and trade secret information including, but not limited to intellectual property, slide presentations and marketing materials for the purpose of doing business together or for such any other purposes as may be discussed by the parties, both before or after the date of the Agreement (“Business Purpose”); and
Whereas, each party acknowledges and agrees (a) that any information disclosed to it hereunder will be used only for the Business Purpose and (b) to protect such information from unauthorized use and disclosure to any person or entity not a party hereto.
NOW, THEREFORE, in consideration of the mutual promises herein and other good and valuable consideration, the receipt and adequacy of which each party acknowledges, the parties to this Agreement agree as follows.
- Definition of Confidential Information
The term “Confidential Information,” as used in this Agreement, means all Bucket Pay’s data, documents and information that is nonpublic and valuable to Bucket Pay including, but not limited to: business plans; Bucket Pay’s vendor and agent sheets; Bucket Pay’s private network, including, but not limited to, the internal computer systems and any cloud based enterprise system(s); commission rates; client information; Bucket Pay customer lists; client contracts; Bucket Pay customer contact information; business contact information; business arrangements; Bucket Pay customer records, including, but not limited to social security numbers, private information, address and credit card information; discussions in Bucket Pay meetings; Bucket Pay employee information, including, but not limited to payroll; Bucket Pay internal documents, including, but not limited to policies and procedures, corporate documents, tax forms and accounting data; Bucket Pay security procedures; Bucket Pay agent information, including, but not limited to agent commissions; internal forms created by Bucket Pay; internal job descriptions; Bucket Pay operating and agent manuals; marketing agreements with other companies; referral and lead sources; strategic plans; business models; growth and development plans; sales and profit data; advertising programs and methods (including efforts utilizing radio, television, internet and any other media known and not yet known); sales and marketing materials, tools, and strategies; training videos, training books, and other training material; internet presence (blogs, flash, etc.); information regarding Bucket Pay’s daily operations; financial and management information; and volume logs. “Confidential Information” shall also include any identities of entities and persons with whom Bucket Pay has business relationships or the reasonable expectation of establishing business relationships (including, without limitation, vendors, unions, distributors and suppliers), the names and qualifications of the Bucket Pay’s employees and contractors, and any information that is not mentioned above but is designated (either orally or in writing) by the Bucket Pay as “confidential,” “proprietary,” or some such similar label. “Confidential Information” includes all such information that was previously disclosed, presently exists and all such information that will exist in the future.
“Confidential Information” shall not include any information that is now publicly known or that subsequently becomes generally publicly known, unless the information becomes public as a result of a breach of duty of confidentiality, loyalty, law, or contract, by any person or entity.
- Non-Disclosure of Confidential Information
Party B recognizes and acknowledges that Bucket Pay considers the Confidential Information to be confidential and that the improper disclosure or use of the Confidential Information by Party B or others, directly or indirectly, as a result of Party B’s action or inaction, would cause irreparable injury to Bucket Pay by jeopardizing, compromising, and perhaps eliminating the competitive advantage Bucket Pay holds or may hold because of the existence and secrecy of the Confidential Information.
Party B agrees to treat all Confidential Information in a secret and confidential manner at all times during and after Party B’s service to Bucket Pay. Party B agrees to use the Confidential Information solely for the purpose of performing the Business Purpose. Party B agrees not to make use of or disclose any Confidential Information, directly or indirectly, for any purpose whatsoever, to any person or entity outside of Bucket Pay without specific written authorization from Bucket Pay, both during and after Party B’s relationship with Bucket Pay. Party B agrees not to transfer or download confidential information outside of Bucket Pay in either written or electronic form, such as onto Party B’s personal computer or thumb drive or cloud storage service. Party B agrees and acknowledges that the Confidential Information is only for Bucket Pay’s benefit. Party B shall not disclose or allow the disclosure of any Confidential Information to others except as necessary to accomplish authorized tasks for the benefit of Bucket Pay. Party B acknowledges and agrees that any additions or improvements to Bucket Pay’s Confidential Information resulting from Party B’s work or work of others under or with Party B shall be part of the Confidential Information. Party B shall take all necessary precautions to insure the privacy and secrecy of the Confidential Information that comes into Party B’s custody or possession.
Upon termination of Party B’s relationship with Bucket Pay, Party B shall return to Bucket Pay all Confidential Information in Party B’s possession (originals and copies) and permanently delete or destroy any written or electronic versions of such information.
Party B agrees (a) to hold in most strict confidence all Confidential Information at all times during the term of this Agreement and until such time as all Confidential Information disclosed to Party B becomes publicly known and made generally available through no action or inaction of Party B, but in no event more than five years after the last disclosure of Confidential Information to Party B, and (b) not to use, except for the exclusive benefit of Bucket Pay, or to disclose to any person, firm or corporation without written authorization of Bucket Pay, any Confidential Information of Bucket Pay.
Further, Party B will keep confidential any information of Bucket Pay that constitutes a trade secret for so long as such information remains a trade secret.
Party B acknowledges that Party B will derive significant value from Bucket Pay’s providing Party B with Confidential Information to enable Party B to optimize the performance of Party B’s duties to Bucket Pay. Party B further acknowledges that Party B’s fulfillment of the obligations contained in this Agreement, including, but not limited to, Party B’s obligation neither to disclose nor to use Bucket Pay’s Confidential Information other than for Bucket Pay’s exclusive benefit, is necessary to protect Bucket Pay’s Confidential Information and, consequently, to preserve the value and goodwill of Bucket Pay.
The obligations of Party B under this Section 2 shall survive termination or expiration of this Agreement.
3. Party B shall not to remove any of Bucket Pay’s Confidential Information from the premises of Bucket Pay without the Bucket Pay’s prior written approval. Party B agrees to exercise extreme care in protecting the confidentiality of any Confidential Information that is removed from the Bucket Pay’s premises. Party B agrees to comply with any and all terms and conditions that the Bucket Pay may impose upon any such removal, such as conditions that the removed Confidential Information and all copies must be returned by a certain date and that no copies are to be made off of the premises.
4. Upon the Bucket Pay’s request, the Party B will promptly return to Bucket Pay all tangible items containing or consisting of the Bucket Pay’s Confidential Information and any and all copies thereof.
5. Each party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to Party B, by license or otherwise, to any of Bucket Pay’s Confidential Information except as specified in this Agreement.
6. Choice of Law.
a. Jury Waiver. In any trial between the Parties that in any way relates to or arises out of this Agreement or any of the dealings of the Parties, the Parties waive their rights to a jury trial and instead have such action tried by a judge.
b. Class Action Waiver. Party B agrees that any claim Party B may have against Bucket Pay shall be brought individually and that Party B shall not join with claims of any other person or entity or bring, join or participate in a class action against Bucket Pay.
d. Governing Law, Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, excluding its choice of law provisions. The Parties hereby consent to the jurisdiction and venue of the courts of the Commonwealth of Virginia, specifically the courts of the City of Virginia Beach, Virginia, and to the jurisdiction and venue of the United States District Court for the Eastern District of Virginia, Norfolk Division in connection with any action, suit, or proceeding arising out of or relating to this Agreement, and further waive and agree not to assert in any action, suit, or proceeding brought in the City of Virginia Beach, Virginia, or the Eastern District of Virginia, Norfolk division, that the Parties are not personally subject to the jurisdiction of the courts, that the action, suit, or proceeding is brought in an inconvenient forum, or that venue is improper.
7. Enforcement of Covenants.
Party B understands that a breach of the covenants in this Agreement is a material breach and will cause Bucket Pay great and irreparable harm. Consequently, if Party B breaches or threatens to breach any of the provisions of this Agreement:
a. Equitable Relief. Bucket Pay shall be entitled to a preliminary and permanent injunction. Party B waives the posting of bond by Bucket Pay on any preliminary injunction obtained against Party B for breach of this Agreement.
b. Monetary Damages. In addition to equitable relief and any other damages suffered by Bucket Pay or allowable by law, notwithstanding any other provision of this Agreement, Party B agrees that, in the event that Bucket Pay should lose a client due to Party B’s breach of this Agreement, Party B will pay to Bucket Pay an amount equal to 100% of the gross revenues and/or profit that would have been paid to Bucket Pay were it not for Party B’s breach.
c. Attorney Fees and Costs. Party B agrees to reimburse Bucket Pay for all costs and attorney fees incurred by Bucket Pay in connection with enforcement of its rights under this Agreement, whether or not litigation is commenced. Such costs and attorney fees shall include, but not be limited to, all court costs, witness fees, costs associated with discovery or investigating Party B’s breach of this Agreement, all costs associated with non-judicial remedies, such as arbitration and/or mediation, and all attorney fees and costs incurred in connection with enforcement of Bucket Pay’s rights under this Agreement.
Disclosure Authorization. In order to protect Bucket Pay’s interests under this Agreement, Party B authorizes Bucket Pay to disclose the existence of this Agreement and its terms to any third party with whom Party B may have, or with whom Party B may consider establishing, an employment or business relationship, and Bucket Pay shall bear no liability for such disclosure.
Claim of Breach by Bucket Pay A claim or cause of action by Party B against Bucket Pay, whether based on this Agreement or otherwise, shall not constitute a defense to Bucket Pay’s enforcement of any or all of the covenants under this Agreement.
Assignment. This Agreement shall inure to the benefit of the Parties and their successors and permitted assigns. Party B may not assign this Agreement, and this Agreement is binding on Party B and Party B’s heirs, executors, and legal and/or personal representatives.
Ambiguities. Each Party and/or its counsel have participated fully in the review and revision of this Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not apply in interpreting this Agreement. The language in this Agreement shall be interpreted as to its fair meaning and not strictly for or against either Party.
Not an Employment Contract. Party B understands and agrees that this Agreement is not an employment contract.
Severability. The provisions of this Agreement shall be deemed severable, and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision or clause of this Agreement, or portion thereof, shall be held by any court or other tribunal of competent jurisdiction to be illegal, void, or unenforceable in such jurisdiction, the remainder of such provision shall not be thereby affected and shall be given full effect, without regard to the invalid portion.
Waiver. Any term or provision of this Agreement may be waived by a written instrument at any time by the Party entitled to the benefit thereof. The failure by any Party to enforce any term or provision of this Agreement shall not affect the validity or enforceability of that term or provision.
Construction of Terms. Wherever the context requires, the singular includes the plural (and vice versa), and the use of one gender includes all others.
Headings. Headings are used in this Agreement for convenience only and shall not be used to interpret this Agreement or any part of it.
No Third-Party Rights. Nothing expressed or referred to in this Agreement shall be construed to give any party other than the Parties any legal or equitable right, remedy, or claim under or with respect to this Agreement or any provision of this Agreement. This Agreement and all of its provisions and conditions are for the sole and exclusive benefit of the Parties and their successors and permitted assigns.
Time of the Essence. Time is of the essence in respect to all provisions of this Agreement that specify a time for performance.
Complete Understanding. This Agreement represents the entire agreement of the Parties as to its subject matter, and any prior agreements, promises, negotiations, or representations, whether oral or written, not expressly set forth in this Agreement are of no force and effect. This Agreement may be modified only by a writing signed by both Parties.