MUTUAL NONDISCLOSURE AGREEMENT (NDA)
This Mutual Nondisclosure Agreement (this “Agreement”) is made and effective as initial login date into xCHANGE
(“Effective Date”), between Value Add Associate Supplier, (“Associate Supplier”), and DCR Workforce, Inc., a Florida corporation (“Company”).
Associate Supplier and Company would like to enter into discussions regarding a possible transaction between them (the “Transaction”).
In connection with those discussions, each party may receive valuable proprietary information relating to
the other party’s operations and business. The purpose of this Agreement is to protect the confidentiality of,
maintain each party’s rights in and prevent the unauthorized use and disclosure of its valuable confidential
information. This Agreement is made in consideration of each party’s participation in such discussions, and other
good and valuable consideration, the receipt of which is hereby acknowledged.
Thus, the parties agree:
For purposes of this Agreement, with respect to Associate Supplier or Company, “Affiliate” means any
entity that directly or indirectly controls, is controlled by or is under common control with that entity. As used in
this Agreement, “Confidential Information” means all nonpublic information disclosed by Associate Supplier, its
Affiliates, or any agents of any of them (on the one hand), or Company, its Affiliates or any agents of any of them
(on the other hand) (as applicable, such entities collectively, the “Disclosing Party”) to the other party, its Affiliates,
or any agents of any of them (collectively, the “Receiving Party”) that is designated as confidential in writing, or
that a reasonable person, familiar with the Disclosing Party’s business and the industry in which it operates, would
consider to be confidential or proprietary. Confidential Information includes, without limitation (i) nonpublic
information relating to the Disclosing Party’s technology, customers, business plans, promotional and marketing
activities, finances and other business affairs, (ii) third-party information that the Disclosing Party is obligated to
keep confidential, and (iii) the nature, content and existence of discussions or negotiations between the parties.
Confidential Information does not include any information that (i) is or becomes publicly available without
breach of this Agreement, (ii) can be shown by documentation to have been known to the Receiving Party at the
time of its receipt from the Disclosing Party, (iii) is received from a third party who did not acquire or disclose such
information by a wrongful or tortious act, or (iv) can be shown by documentation to have been independently
developed by the Receiving Party without reference to any Confidential Information.
3. Use and Disclosure of Confidential Information
The Receiving Party shall use Confidential Information only in connection with its discussions relating to
the Transaction, or as otherwise expressly agreed in advance in writing by the Disclosing Party. Except as expressly
provided in this Agreement, the Receiving Party will not disclose Confidential Information to anyone without the
Disclosing Party’s prior written consent. The Receiving Party will take all measures reasonably required to prevent
and prohibit disclosure, dissemination or unauthorized use of Confidential Information, including, at a minimum,
those measures it takes to protect its own most valuable confidential information.
4. Receiving Party Personnel; Affiliates
The Receiving Party will restrict the possession, knowledge and use of Confidential Information to its
employees, contractors, agents, and legal advisers (collectively, “Personnel”) who (i) have a need to know
Confidential Information in connection with the discussions relating to the Transaction, (ii) are informed of the
confidential nature of the Confidential Information, and (iii) who agree in writing to act in accordance with this
Agreement. The Receiving Party will ensure that its Affiliates comply with this Agreement.
5. Disclosures to Governmental Entities
The Receiving Party may disclose Confidential Information as required to comply with binding orders of
governmental entities that have jurisdiction over it or as otherwise required by law, provided that the Receiving
Party (i) gives the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order
or other appropriate remedy (except to the extent that the Receiving Party’s compliance with the foregoing would
cause it to violate a binding order of the governmental entity or other legal requirement), (ii) discloses only such
information as is required by the governmental entity or as otherwise required by law, and (iii) and uses
commercially reasonable efforts to obtain confidential treatment for any Confidential Information so disclosed.
6. Ownership of Confidential Information
All Confidential Information will remain the exclusive property of the Disclosing Party. The Disclosing
Party’s disclosure of Confidential Information will not constitute an express or implied grant to the Receiving Party
of any rights to or under the Disclosing Party’s patents, copyrights, trade secrets, trademarks or other intellectual
7. Notice of Unauthorized Use
The Receiving Party will notify the Disclosing Party immediately upon discovery of any unauthorized use
or disclosure of Confidential Information or any other breach of this Agreement by the Receiving Party. The
Receiving Party will cooperate with the Disclosing Party in every reasonable way to help the Disclosing Party regain
possession of such Confidential Information and prevent its further unauthorized use.
8. Return of Confidential Information
The Receiving Party will return or destroy all tangible materials embodying Confidential Information (in
any form and including, without limitation, all summaries, copies and excerpts of Confidential Information)
promptly following the Disclosing Party’s written request. At the Disclosing Party’s option, the Receiving Party
will provide written certification of its compliance with this Section.
9. Injunctive Relief
The Receiving Party acknowledges that a breach of its obligations under this Agreement could cause
irreparable harm to the Disclosing Party for which monetary damages may be difficult to ascertain or an inadequate
remedy. The Receiving Party therefore agrees that the Disclosing Party will have the right, in addition to its other
rights and remedies, to seek injunctive relief for any violation of this Agreement.
This Agreement shall remain in effect until the fifth anniversary of the Effective Date.
11. Independent Development
The Disclosing Party acknowledges that the Receiving Party may currently or in the future be developing
information internally, or receiving information from other parties, that is similar to the Confidential Information.
Accordingly, nothing in this Agreement will be construed as a representation or agreement that the Receiving Party
will not develop or have developed for it products, concepts, systems or techniques that are similar to or compete
with the products, concepts, systems or techniques contemplated by or embodied in the Confidential Information,
provided that the Receiving Party can demonstrate by credible evidence that it has not violated any of its obligations
under this Agreement in connection with such development.
12.1 This Agreement will not create a joint venture, partnership or other formal business relationship or
entity of any kind, or an obligation to form any such relationship or entity. Each party will act as an independent
contractor and not as an agent of the other party for any purpose, and neither will have the authority to bind the
12.2 The Receiving Party acknowledges that the Disclosing Party makes no representation or warranty
as to the accuracy or completeness of the Confidential Information furnished under this Agreement. Only those
representations and warranties which are made in a final definitive agreement relating to the Transaction will have
12.3 This Agreement constitutes the entire agreement between the parties relating to the matters
discussed herein and supersedes all prior oral or written communications and agreements between the parties hereto.
This Agreement may be amended or modified only with the mutual written consent of the parties hereto. Each
party’s obligations hereunder are in addition to, and not exclusive of, any and all of its other obligations and duties
to the other party, whether express, implied, in fact or in law. Subject to the limitations set forth in this Agreement,
this Agreement will inure to the benefit of and be binding upon the parties and their respective successors and
12.4 Any failure by either party to enforce the other party’s strict performance of any provision of this
Agreement will not constitute a waiver of its right to subsequently enforce such provision or any other provision of
12.5 If a provision of this Agreement is held invalid under any applicable law, such invalidity will not
affect any other provision of this Agreement that can be given effect without the invalid provision. Further, all
terms and conditions of this Agreement will be deemed enforceable to the fullest extent permissible under applicable
law, and, when necessary, the court is requested to reform any and all terms or conditions to give them such effect.
12.6 This Agreement will be governed by Florida. Exclusive jurisdiction over and venue of any suit
arising out of or relating to this Agreement will be in the state and federal courts located in Palm Beach County in
Florida. This Agreement may be executed by facsimile and in counterpart copies.
12.7 All notices hereunder will be given in writing, will refer to this Agreement and will be personally
delivered or sent by overnight courier, receipted facsimile transmission or registered or certified mail (return receipt
requested) to the address set forth below the parties’ signatures at the end this Agreement. Any party may from time
to time change such address by giving the other party notice of such change in accordance with this Section 12.7.
12.8 During the two-year period beginning on the Effective Date, each party agrees not to directly solicit
for employment any current employee of the other party without the prior written approval of the other party.
Notwithstanding the foregoing, each party shall be free to consider for employment, and/or hire, any employee of the
other party who responds to any advertisement, web job posting or other general recruitment communications not
specifically targeted to such employee.
The parties have executed this Agreement as of the Effective Date.