THIS NONDISCLOSURE AGREEMENT (this “Agreement”) effective as of the date included at the bottom of this page, 2020 (the “Effective Date”), is made by and between Scentsy, Inc., an Idaho corporation with offices at 2701 E. Pine Avenue, Meridian, Idaho 83642 (“Company”), and the name of the temporary worker included at the bottom of this page, with an address of address included at the bottom of this page (“Temporary Employee”). Company and Temporary Employee are sometimes herein referred to individually as a “Party” and collectively as the “Parties.”
To facilitate the services and the disclosure and receipt of Confidential Information (defined below), the Parties desire to enter into this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Definitions. For purposes of this Agreement, the following terms shall have the following meanings:
1.1 “Confidential Information” shall mean the relationship between the Parties and any and all discoveries, developments, designs, improvements, inventions, concepts, works of authorship, derivative works, blueprints, structures, software, processes, computer programs, know-how, data, techniques, formulas, marketing and business plans and outlines, strategies, budgets, forecasts, projections, financial statements, costs, fee schedules, customer and consultant lists and information or data, client and supplier lists, client and prospective client databases, access codes and similar security information and procedures, techniques, methodologies and performance strategies, and all patents, copyrights, mask works, trade secrets and other proprietary rights thereto.
1.2 “Recipient Employees” shall mean any person employed by Employee, including directors, and officers, but shall not include independent contractors, brokers, attorneys, financial advisors, analysts, and independent accountants.
1.3 “Related Party” or “Related Parties” shall mean any entity related to or affiliated with Temporary Employee or any of Temporary Employee’s trustees, directors, officers, share holders, employees, agents or representatives, including without limitation independent Contractors, attorneys, financial advisers, brokers, analysts and independent accountants, and any or all of them, to the extent such entities or persons receive Confidential Information.
2. No Disclosure or Use of Confidential Information.
2.1 Temporary Employee shall keep in strictest confidence and trust all Confidential Information received from Company and shall not disclose any Confidential Information to any other entity or person or use, disseminate, or other wise distribute any Confidential Information for its own benefit or for the benefit of another, except for the limited purpose of facilitating the business relationship with Company.
2.2 Temporary Employee shall not use any Confidential Information for the purpose of competing in any of the activities with Company or for any other purpose that is detrimental to or disadvantageous to Company.
2.3 Temporary Employee shall not, nor shall it permit any Related Party to, photocopy, transcribe or otherwise reproduce any of the Confidential Information, for NONDISCLOSURE AGREEMENT - 2NDA_TEMPORARY EMPLOYEE_LEGAL_20120711 purposes outside the scope of the Parties’ business relationship, without the express written consent of Company. Temporary Employee shall take all reasonable safeguards to prevent disclosure of the Confidential Information and shall disclose the Confidential Information to Recipient Employees on a “need to know” basis only. Temporary Employee shall inform all Recipient Employees who have access to the Confidential Information that such Confidential Information is confidential and proprietary to Company. Temporary Employee shall: (i) notify Company immediately of any unauthorized possession, use, or knowledge of the Confidential Information; (ii) promptly furnish full details of such possession, use, or knowledge to Company; and (iii) cooperate with Company in any effort or litigation against third parties as may be deemed necessary by Company to protect its proprietary rights in the Confidential Information.
2.4 The obligations of Temporary Employee in the preceding paragraphs of thisSection 2 shall not apply to Confidential Information that: (i) is publicly known at the time of its disclosure; (ii) after disclosure, has become publicly known other than through breach of this Agreement; (iii) Temporary Employee can show by tangible evidence was known to Temporary Employee prior to disclosure by Company; (iv) Temporary Employee can show by tangible evidence was developed independently by Temporary Employee without reference to the Confidential Information disclosed by Company; or (v) is required to be disclosed by the Temporary Employee or by a Related Party by law, regulation, court order or other legal process; provided, however, that in such event Temporary Employee shall legally resist disclosing the Confidential Information and shall notify Company of such disclosure in writing not less than thirty (30) days in advance of any disclosure or planned disclosure.
3. Return of Confidential Information. All Confidential Information shall remain the exclusive property of the Company. The Temporary Employee shall return, and shall cause the Recipient Employees and any Related Parties to return, all copies, transcriptions or other reproductions of, and any notes related to, the Confidential Information to Company upon either: (i) the accomplishment of the purpose for which the Confidential Information was provided; or (ii) receipt of a written notice from the Company requesting return of the Confidential Information.
4. Works for Hire; Assignment. The Services, the Confidential Information and all concepts for methods of apparatus (including concepts for devices, techniques, systems software, products, and improvements thereof), together with all associated proprietary rights, whether or not patentable or registrable under patent, copyright or similar statutes, that result from tasks performed by Temporary Employee for the Company, will be the exclusive property of the Company and Temporary Employee will deliver all of same to the Company. To the fullest extent permitted by applicable law, all work product of the Services, including but not limited to all copyrights, will be “supplementary works” or “works for hire”, as defined in Title17 of the United States Code, and if any such works are deemed not to be a supplementary work or work for hire, then Temporary Employee hereby assigns and agrees to assign the entire right, title, and interest in the copyright to such works to the Company. Temporary Employee agrees to perform, during and after the term of this Agreement, all acts deemed necessary or desirable by Company to permit and assist it in evidencing, perfecting, obtaining, maintaining, defending and enforcing Company’s rights and/or Temporary Employee’s assignment with respect to such assigned rights in any and all countries. Such acts may include, but are not limited to, execution of documents and assistance or cooperation in legal proceedings.
5. Non Solicitation. For a period of one (1) year from the date of this Agreement, Temporary Employee will not in any manner solicit, induce or encourage, or cause any Related Party to solicit, induce or encourage any employees of the Company to terminate their employment with the Company unless that NONDISCLOSURE AGREEMENT - 3NDA_TEMPORARY EMPLOYEE_LEGAL_20120711 person had ceased to be an employee of Company for at least six (6) months.
6. Term of Agreement. Unless expressly terminated by the Parties hereto in writing, the term of this Agreement shall continue and bind the Parties in perpetuity.
7. No License or Other Rights. Nothing in this Agreement is intended to or shall grant to the Temporary Employee or any Related Party any license or other right of any nature to the use of any of the Confidential Information except for the limited purpose of furthering the business relationship between Company and Temporary Employee.
8. No Joint Venture. Nothing in this Agreement shall constitute or imply any promise or commitment between the Parties to enter into a cooperation, joint venture, or any other agreement or business relationship.
9. Accuracy and Completeness of Confidential Information. The Company shall not be deemed to have made any representation or warranty to the Temporary Employee concerning the accuracy or completeness of any Confidential Information, except to the extent that such representation or warranty may be expressly set forth in a definitive agreement concerning any subsequent business relationship between the Parties.
10. Remedies. Temporary Employee acknowledges and agrees that Company would be irreparably harmed if any of its Confidential Information were to be disclosed by Temporary Employee to third parties, or if any use were to be made of the Confidential Information other than that specified in this Agreement. Temporary Employee further agrees that Company shall have the right to seek and obtain injunctive relief, without the requirement of posting a bond, upon any violation or threatened violation of the terms of this Agreement, in addition to all other rights and remedies available to Company at law or inequity.
11. Entire Agreement. This Agreement contains the entire agreement among the Parties with respect to the matters set forth herein and expressly supersedes any prior arrangements and any other confidentiality arrangements, whether written or oral, between Company and Temporary Employee.
12. Amendments. No amendment or waiver of any term of this Agreement shall be effective unless such amendment or waiver is in writing and signed by each of the Parties. No oral waiver, amendment or modification of this Agreement shall be effective under any circumstances. The waiver by Company of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any other or subsequent breach of this Agreement by Temporary Employee.
13. Severability. In the event any provision or portion of a provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, such void or unenforceable provision or portions thereof shall be deemed modified to the extent necessary to render the provision reasonable and enforceable or, if necessary, severed, which act shall not affect the validity of any other provision or the remaining portion of a provision of this Agreement.
14. Survivability. The obligations not to disclose confidential information shall survive any term of this agreement and Confidential Information shall not be disclosed at any time as long as it remains confidential.
15. Attorneys’ Fees. If any Party shall commence any action or proceeding against the other in order to enforce the provisions of this Agreement, or to recover damages as the result of the alleged breach of any of the provisions of this Agreement, the prevailing Party therein shall be entitled to recover all reasonable costs incurred in connection therewith against the Party commencing such action or the Party who has breached this Agreement, as the case may be, including reasonable attorneys’ fees.
16. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the state of Idaho, without regard to conflict of laws principles. Any suit to enforce any provision of this Agreement, or arising out of or based upon this Agreement, shall be brought in the courts of Ada County, Idaho. Each Party submits to personal jurisdiction and venue of such courts.
17. Counterparts; Facsimile. This Agreement may be executed in separate counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument. This Agreement may be executed by facsimile and any facsimile signatures shall be deemed original counterparts.
18. Binding Effect and Assignment. This Agreement is binding upon and for the benefit of the Parties, their respective officers, directors, employees, partners, principals, successors, and assigns. The right to receive Confidential Information may not be assigned. Failure to enforce any provision of this Agreement shall not constitute a waiver of any term hereof.
EXECUTED as of the date first set forth above.