Terms & NDA
This Agreement is made and effective today by and between Northwest Advisory Group, an Oregon limited liability company with a principal place of business at P.O. Box 2421, Beaverton, OR 97075 (the “Disclosing Party”), and you (The Receiving Party). Disclosing Party and Receiving Party are collectively referred to as the “parties” herein.
WHEREAS, the Disclosing Party is engaged in the business of developing and selling payment processing solutions.
WHEREAS, the Receiving Party wishes to receive from the Disclosing Party certain information deemed “Proprietary” or “Confidential” as defined below; and the Receiving Party wishes to receive this information for the purpose of evaluating a business opportunity with the Disclosing Party and/or for the use in the subsequent sale of payment processing solutions.
WHEREAS, the parties hereto recognize and do hereby acknowledge, that the maintenance of confidentiality and non-disclosure of the “Confidential Information” is absolutely essential, and is of the utmost importance to the business affairs, value, effectiveness and continuing viable business status of the Disclosing Party.
SECTION ONE – CONFIDENTIAL INFORMATION
The Disclosing Party will provide to the Receiving Party certain confidential and proprietary information only in accordance with the following terms and conditions:
1.01. Definition and Ownership. For purposes of this Agreement, “Confidential Information” shall mean the information received by the Receiving Party from the Disclosing Party whether initially furnished orally or designated as “Confidential” and/or “Proprietary” or which would logically be considered “Confidential” and/or “Proprietary” in view of its relationship to the whole disclosure or the nature of its content. All tangible information, including but not limited to, contracts, trade secrets, system designs, technology, reports, charts, marketing, customer lists, financial statements, technology, data bases, software, whether owned by or licensed to the Disclosing Party, or knowledge gained through review of the Disclosing Party’s products, shall be deemed “Confidential” or “Proprietary” and shall remain the property of the Disclosing Party. The term “Confidential Information” does not include, and the obligations and undertakings set out in this Agreement do not apply to: (a) Information which now is in the public domain or publicly known at the time of disclosure or hereafter comes into the public domain or generally known through no fault of the Receiving Party, otherwise than by reason of breach of this Agreement; (b) Information the disclosure of which is requested or required by law, regulation, court order or a regulatory agency provided that, prompt notice of such requested disclosure shall be given to the Disclosing Party, if legally permitted, so that Disclosing Party may seek appropriate remedy to prevent such disclosure or waive compliance with the provisions of this Agreement and the Receiving Party, its directors, officers, employees, agents and advisers shall reasonably co-operate with the Disclosing Party at the Disclosing Party’s sole cost and expense if the Disclosing Party elects to challenge the validity of such requirement and/or take such steps as the Disclosing Party may reasonably require to avoid or limit such disclosure; (c)
Information that was previously known to the Receiving Party free of any obligation of confidentiality; (d) Information that is independently developed by the Receiving Party without reference to or use of the Confidential Information; or (e) Any information that is disclosed to the Receiving Party by a third party not under or in violation of, as the case may be, confidentiality obligations undertaken to the Disclosing Party. Subsections (a) through (e) of this paragraph, notwithstanding, the parties agree that the technology behind and in any way related to Northwest Advisory Group’s process and solutions is Confidential Information and is a trade secret of Disclosing Party. In the event of a Subsection (b) disclosure. the parties agree that the release of confidentiality as it applies to the subject Confidential Information shall be narrow and apply only to that proceeding and that the information shall remain Confidential Information otherwise. 1.02. Protection and Purpose. All Confidential Information shall be maintained in confidence by the Receiving Party, and shall not be utilized otherwise by Receiving Party nor disclosed to any third party, except to Receiving Party’s affiliates and its and its affiliates’ directors, officers, employees, advisers, investors, lenders, potential co-investors or agents (“Designated Persons”), without the written consent of the Disclosing Party. The Receiving Party will ensure that the provisions of this Agreement are brought to the attention of each of its Designated Persons that the Receiving Party shares Confidential Information with and will take reasonable verifiable actions to ensure that each such Designated Person complies with the provisions of this Agreement as if personally bound by them. The Receiving Party shall be responsible for any violation of this Agreement committed by its Designated Persons. Receiving Party shall not use or exploit such Confidential Information or use the Confidential Information in any way which could be deemed detrimental to the Disclosing Party. 1.03. Rights and Licenses. This Agreement and the furnishing of “Confidential Information” as provided herein shall not be construed as establishing, either expressly or by implication, any grant of rights or licenses from the Disclosing Party to the Receiving Party or any other relationship between the parties.
SECTION TWO – DEFAULT AND REMEDIES 2.01. Remedies.
The parties agree that the breach of this Agreement is not readily compensable by money damages and that money damages could be difficult to calculate and therefore agree that the non-breaching party can enforce this Agreement by seeking immediate equitable relief, specific performance and procuring any provable damages and/or liquidated damages in the amount of $10,000 per violation. Other breaches of this Agreement are compensable as stated under law unless modified or limited specifically by this Agreement. No remedy referred to herein is intended to be exclusive, but shall be cumulative and in addition to any of the remedies otherwise available to either party at law or in equity, including, but not limited to consequential damages and loss of profits, costs, expenses and liabilities. The exercise of any one remedy shall not be deemed to be an election of remedy or preclude the exercise of any other remedy. No failure on either party’s part to exercise or delay or forbear in exercising any right or remedy shall operate as waiver thereof.
2.02. Governing Law. Venue.
This Agreement shall be construed, interpreted, and governed in accordance with the laws of Oregon. The parties agree to jurisdiction of Oregon courts over them and that venue shall be exclusive to the state and federal courts located in Oregon. 2.03 Attorneys’ Fees. If any action at law or in equity is commenced to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees, expenses, and court costs, which may be incurred by the prevailing party in addition to any other relief to which it may be entitled under the law.
SECTION THREE – TERM AND TERMINATION
3.01. Term of Agreement. If either party elects not to pursue any further relationship or to terminate the relationship or this Agreement, written notice of the election shall be provided to the other party.
3.02. Longevity of Confidential Information. Receiving Party’s obligations under this Agreement with respect to any Confidential Information shall not terminate and shall survive the termination of this Agreement until such time as the Confidential Information ceases to be defined as such as set forth in subsections (a) through (e) of Paragraph 1.01.
3.03. Return of Confidential Information. Upon termination, the Receiving Party shall promptly return to the Disclosing Party all “Confidential” or “Proprietary” tangible information wherever located, whether written, on disk, electronically stored, accessed or formatted, and all copies thereof, relating to “Confidential Information” as defined above.
SECTION FOUR – MISCELLANEOUS PROVISIONS
4.01. Authority. Each party signing this Agreement hereby represents and certifies that he/she has full power and is authorized to enter into this Agreement.
4.02. Waiver of Breach. The waiver by the Disclosing Party of a breach of any provision of this Agreement by the Receiving Party shall not operate or be construed as a waiver by the Disclosing Party of any subsequent breach by the Receiving Party.
4.03. Assignability. The rights and obligations of the Disclosing Party under the terms of this Agreement are assignable.
4.04. Binding Effect. This Agreement is intended to benefit and shall be binding on the parties hereto and their legal representatives, successors, and permitted assigns.
4.05. Severability, Entire Agreement. If any term or provision of this Agreement or the application thereof to any circumstance or party hereto, shall to any extent be deemed invalid, void, or unenforceable by a court of competent jurisdiction, the remaining terms and provisions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired, or invalidated. This Agreement represents the entire agreement between the parties with respect to the subject matter covered by this Agreement. This Agreement supersedes any and all prior agreements or understandings, oral or written, between the parties, hereto pertaining to the subject matter covered by this Agreement and may be modified or changed only in a written agreement signed by both parties.
Northwest Advisory Group
Northwest Advisory Group is a payment solutions provider committed to helping businesses streamline their payment processing systems while providing the most responsive customer service in the industry.
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