NON-CIRCUMVENTION & NON-DISCLOSURE AGREEMENT
This agreement, entered into this [Insert Date] , by and between [Name] and [Name] (I/C # : ), do hereby covenant and agree as following:
WHEREAS PGA and YL Seow are each respectively engaged in the business of exporting and/or selling and Importing and/or purchasing certain latex/NBR gloves, hereafter referred to as the “ Product(s).
WHEREAS YL Seow has customers and contacts (“collectively referred to as “Customer”) that regularly purchases said products and PGA possesses and / or regularly has access to available supplies of inventory of product to export to the worldwide for sale.
NOW, THEREFORE, by and for the consideration of the mutual covenants, promises, and benefits of this contract and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged the parties further agree as follows:
1. PGA, As used herein, shall also include its parent company, their affiliates, subsidiaries, successors in interest, assigns, heirs, partners, agents, employees, employers, directors, officers, suppliers, sales persons, whether employed directly or as independent contractors, or any other associated person or associated company, and / or any company which has as its partners, associates, affiliates, officers, directors, agents or shareholders, any person or company affiliated in any way with PGA and / or its partners, officers, directors, parent company, affiliates, subsidiaries, successors in interest, assigns, heirs, agents, employees, employers, or any other associated person or associated company, or shareholders, low existing or hereafter created, and / or any person or company introduced by or through any of the above persons or companies.
2. YL Seow as used herein, shall also include its parent company, affiliates, subsidiaries, successors in interest, assigns, heirs, partners, agents, employees, employers, directors, officers, or any other associated person or associated company, and / or any company which has as its partners, associates, affiliates, officers, directors or shareholders, any person or company affiliated in any way with YL Seow and / or its partners, officers, directors, parent company, affiliates, subsidiaries, successors in interest, assigns, heirs, agents, employees, employers, or any other associated person or associated company, or shareholders, now existing or hereafter created, and / or any person or company introduced by or through any of the above persons or companies.
3. This agreement is for a period of 5 years with an option of extension for additional 5 years completing on [Insert Date].
4. YL Seow maintains its customer identification and lists as part of confidential trade secrets; and desires to continue to maintain customer identification and lists as confidential trade secrets. Each and all of the parties agree that YL Seow’s customer identification and lists including customer’s parent company, affiliates, subsidiaries, successors in interest, assigns, heirs, partners, agents, employees, directors, officers, or any other associated person or associated company, and / or any company which has as its partners, associates, affiliates, officers, directors or shareholders any person or company affiliated in any way PGA and / or its partners, officers, directors, parent company, affiliates, subsidiaries, successors in interest, assigns, heirs , agents, employees, employers, or any other associated person or associated company, or shareholders, now existing or hereafter created, and / or any person or company introduced by or through any of the above persons or companies, and / or purchasing agents, brokers, wholesalers, retailers, and end users, and documentation identifying same, such documentation which are used by the parties in their businesses and which are not generally available, constitute YL Seow’s trade secrets and are significant and valuable assets of YL Seow’s business, and each and all parties agree that such trade secrets will remain the exclusive property of YL Seow, and that this agreement does not in any way transfer to any person or company any right, title or interest in said property by or from YL Seow.
5. The parties agree to the sales of PGA products to YL Seow customer on the terms and conditions contained herein. YL Seow will provide to PGA certain of its confidential trade secrets including YL Seow’s confidential customer identification and lists, attached hereto as Appendix A for the express and sole purpose of arranging, facilitating and / or completing the sales of PGA product to said YL Seow’s customers.
6. In acting to accomplish the above sales as described above, the parties agree that PGA shall be acting as a fiduciary for YL Seow in regard to PGA’s receipt of and / or use of any part and / or all of YL Seow’s confidential trade secrets, whether receipt, and / or use is direct or indirect, and in regard to any sales to YL Seow’s customer, for sales as described above.
7. The parties further agree that YL Seow’s trade secrets including, but not limited to its confidential customer identification and lists will continue to remain YL Seow’s confidential trade secrets, and remain the sole and exclusive property of YL Seow. PGA agrees that it shall now use or disclose any of YL Seow’s trades secrets revealed pursuant to this agreement without the express written permission of YL Seow. The limited disclosure of YL Seow’s trade secrets will no constitute any waiver of YL Seow’s property rights.
8. PGA agrees that terms and conditions of this contract are fully applicable and blinding to itself, and each and all of the above mentioned persons and / or companies, and irrevocably bind each and all of themselves not to deal directly or indirectly with said customer disclosed pursuant to this contract for a period of five (5) years plus additional five ( 5 ) after the last invoice and shipment of any product to YL Seow’s and / or such YL Seow’s customer through, by or connected to PGA, without the knowledge of, and express written consent of YL Seow. PGA agrees to deal with YL Seow and its customer in good faith, and that it will not interfere with the normal flow of goods to YL Seow and its customer. PGA agree not to circumvent, avoid or bypass YL Seow in any manner.
9. The parties hereto further bind themselves, their employees, shareholders, owners, associates or partners to keep confidential and not disclose confidential and / or privileged information, without the specific written consent of YL Seow.
10. It is further agreed between the parties hereto that PGA will invoice YL Seow’s customers directly. PGA agrees that if it receives any purchase orders from said YL Seow’s customers, it will immediately transmit such purchase order to YL Seow.
11. It is further agreed between the parties hereto that the terms of this agreement cover all rollovers, extensions, renewal, overages, parallel agreements, and / or transfers of contracts, involving sales of product by PGA to YL Seow and / or said customer as provided for in this contract. Such rollovers, extensions, renewals, overages, parallel agreements, and / or transfers of contracts, involving sales of product by PGA to YL Seow and / or its customer will not be made without the express written permission of YL Seow.
12. This Agreement, and any dispute governing its terms shall be governed by Malaysian Law.
13. A breach of this agreement is defined to include, but is not limited to, each and / or any individual, unauthorized sales by, on behalf of, or in any way connected to PGA as herein above defined, whether directly, or indirectly, to said YL Seow’s customers.
14. The parties hereby agree that PGA will pay YL Seow as damages for any and all gross sales of by PGA of product to said YL Seow customer which sales circumvents YL Seow and / or is not reported by PGA to YL Seow in the agreed amount of 20% of each and all such sales and / or circumvention, such 20% constituting an agreed reasonable lost profits for each such sale/ circumvention.
15. YL Seow has the right to audit’s books and records upon 10 days written notice relating to information contained therein of sales to YL Seow’s customer and related persons/ companies. YL Seow may not request such information more than four times in any six month period, provided that such requests do not reveal any unreported or otherwise improper sales to YL Seow’s customer and related person/ companies.
16. In addition, injunctive relief, the prevailing party shall be entitled to recover all court costs, attorney fees, discovery costs, and all other reasonable costs of litigation, whether such costs and/ or attorneys fees arise pre-litigation, after the filling of a lawsuit, upon, a trial, or on appeal.
17. The parties, by their respective signatures hereto, acknowledge that each read this agreement; that each has had the opportunity to discuss the matter with legal counsel of its choice, if so desired; and that the parties freely consent and agree to be bound by the terms hereof. This contract may not be modified or amended except in writing and signed by all parties hereto.
18. If any covenant or other provision of this agreement is invalid, illegal or incapable of being enforced, by reason of any rules of law, administrative order, judicial decision or public policy, all other conditions and provisions of this agreement shall, nevertheless, remain in full force and effect, and no covenant or provision shall be deemed dependent upon any other covenant or provision unless so expressed herein.
19. The parties expressly agree that the judicial rule of construction that a document should be more strictly construed against the draftsman thereof shall no apply to any provision.
20. This agreement contains the entire agreement of the parties, and no representations, inducements, promises, or agreements, oral or otherwise, between the parties not embodied herein shall be of any force or effect. No failure of the parties to exercise any right given to them hereunder, or to insist upon strict compliance by the other party with any obligation hereunder, and no custom or practice of the parties at variance with the terms hereof shall constitute a waiver of the other party’s rights to demand exact compliance with the terms hereon. Waiver by the parties of any particular default by the other party shall not affect or impair the other’s rights in respect to any subsequent default of the same or of a different nature, nor shall any delay or omission of the other to exercise any rights arising from such default affect or impair the other’s rights as to such default or any subsequent default.
21. The agreed commission scale for each customer will be computed on a monthly basis and remitted to the bank account of YL Seow on or before the 10th of each month.
DATE : [Insert Date] DATE : [Insert Date]
BY : ____________________ BY : ____________________
[Name] [Name]
General Manager of Sales and Marketing (I/C # 🙂
[Company Name]
