This Confidentiality and Trade Secret Agreement ("Agreement") is made effective as of the date set forth below by and between Payment Logistics Limited, located at 6265 Greenwich Drive, Ste 110, San Diego, California, 92122 ("PLL") and the entity and/or individual whose name and address are set forth below in this user profile registration page ("PROSPECTIVE PARTNER").
WHEREAS, PLL provides merchant accounts and related technology and services that allow businesses to process credit, debit, stored value, loyalty and automated clearing house transactions (the "PLL Services") and PROSPECTIVE PARTNER wishes for PLL to provide it with access to confidential documentation and other written resources that may aid PROSPECTIVE PARTNER or PROSPECTIVE PARTNER's customers in utilizing all or some of the PLL Services. Whereas, PLL wishes to protect its confidential information and trade secrets and its business would be substantially harmed by competitors or malicious third parties knowing its confidential information and trade secrets; Therefore, for good and valuable consideration, which the parties agree and warrant is sufficient to support enforcement of this Agreement, PLL and PROSPECTIVE PARTNER hereby agree as follows:
1. In reliance upon this agreement, PLL may disclose to PROSPECTIVE PARTNER Confidential Information of PLL. PROSPECTIVE PARTNER hereby acknowledges and agrees that certain items of information currently in PROSPECTIVE PARTNER's possession or later to come into PROSPECTIVE PARTNER's possession presently constitute or shall constitute in the future valuable trade secrets or proprietary business information of PLL. Such items of information, which are herein collectively referred to as the "Confidential Information," shall include the following:
(i) THE CONTENTS OF ANY INTEGRATION DOCUMENTATION, SAMPLE CODE AND SOFTWARE PROGRAMS PROVIDED BY PLL TO PROSPECTIVE PARTNER OR ACCESSED BY PROSPECTIVE PARTNER VIA AN ONLINE SYSTEM PROVIDED BY PLL ARE CONFIDENTIAL INFORMATION AND SHALL NOT BE DISCLOSED IN ANY FORM BY PROSPECTIVE PARTNER TO ANY THIRD PARTY.
(ii) All other information of any type or description whatsoever which is protected by law as a trade secret or as proprietary information of PLL, or which has been designated to PROSPECTIVE PARTNER either orally or in writing as a trade secret or proprietary information of PLL. For purposes of the foregoing sentence, "trade secret" shall include,without limitation, any formula, device, agreement provided by PLL to PROSPECTIVE PARTNER for review, evaluation or execution, or any compilation of information not generally known in the industry which PLL uses in its business and which gives PLL an opportunity to obtain an advantage over competitors who do not know it.
(iii) All Confidential Information (as herein defined) of all customers, contractors, and others with whom PLL had, has or will have a business relationship learned or acquired by PROSPECTIVE PARTNER during the course of or as a result of PROSPECTIVE PARTNER's contractual relationship with PLL. All of the foregoing information shall be deemed "Confidential Information" until such time as it becomes generally known in the industry by means other than improper disclosures or other improper action or inaction of PROSPECTIVE PARTNER.
2. PROSPECTIVE PARTNER shall not, directly or indirectly, either during the term of its relationship with PLL or thereafter, disclose or use the Confidential Information other than in the business of or as directed by, PLL without the prior written consent of PLL.
3. PROSPECTIVE PARTNER shall at all times and forever safeguard and protect all of the Confidential Information of PLL to prevent its being exposed to, or taken by, unauthorized persons, and when entrusted to PROSPECTIVE PARTNER will exercise its best efforts to assure its safekeeping. Notwithstanding any provision of this Agreement to the contrary, in the event that PROSPECTIVE PARTNER is requested or required in a judicial, administrative or governmental proceeding or is otherwise required by law to disclose any Confidential Information, PROSPECTIVE PARTNER may disclose any such requested Confidential Information provided that PROSPECTIVE PARTNER will immediately provide PLL with written notice of same and all related proceedings so that PLL may seek an appropriate protective order.
4. Upon request of a PLL, PROSPECTIVE PARTNER will deliver to PLL, within three (3) days of receiving such request, all Confidential Information which is in the possession or control of the PROSPECTIVE PARTNER.
5. In any action at law or in equity to enforce or construe any of the provisions or rights under this Agreement, the unsuccessful party or parties to such litigation, as determined by the courts in a final judgment or decree, shall pay the successful party or parties all costs, expenses, and attorneys' fees incurred therein by such successful party or parties (including without limitation such costs, expenses, and fees on any appeals), and if such successful party or parties shall recover judgment in any such action or proceeding, such costs, expenses, and attorneys' fees shall be included in as part of such judgment. Any litigation concerning this agreement shall be venued in San Diego, California.
6. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way.
7. The provisions of this Agreement shall inure to the benefit of and are binding on PROSPECTIVE PARTNER's heirs, personal representatives, successors, and assigns, and the successors and assigns of PLL.
8. This Agreement and any question concerning its validity, construction, or performance shall be governed by the laws of the State of California, irrespective of the place of execution or the place or places of performance.
9. This Agreement sets forth the entire agreement and understanding of the parties hereto in respect of the subject matter contained herein, and supersedes all prior agreements, promises, covenants,arrangements, communications, representations or warranties, whether oral or written, by any officer, partner, employee or representative of any party hereto.
10. This Agreement may be accepted by PROSPECTIVE PARTNER via a "click to agree" website form. When PROSPECTIVE PARTNER indicates its acceptance of this Agreement by actively completing the web form and affirming it's acceptance based on the instructions provided online, this agreement shall be consider fully executed.