Confidentiality and Non-Circumvention Agreement
Effective upon the Candidate’s acknowledgment
This Confidentiality and Non-Circumvention Agreement (this “Agreement”) is entered into by and between Lago LLC, a Utah limited liability company (“Lago”), and the individual acknowledging this Agreement (“Candidate”).
In connection with the recruitment and placement of Candidate through Lago (the “Purpose”), Lago may disclose to Candidate, or Candidate may otherwise receive access to, Confidential Information (as defined in Section 2) and may introduce Candidate to certain of Lago’s business contacts (each, an “Introduced Party”).
1. Use and Protection of Confidential Information
Candidate shall use the Confidential Information solely for the Purpose and, subject to Section 3, shall not disclose or permit access to Confidential Information other than to its attorneys, accountants, and financial advisors (collectively, “Representatives”) who:
(a) need access to such Confidential Information for the Purpose;
(b) are informed of its confidential nature; and
(c) are bound by written confidentiality obligations no less protective of the Confidential Information than the terms contained herein.
Candidate shall safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its own most sensitive information, and no less than a commercially reasonable degree of care. Candidate shall promptly notify Lago of any unauthorized use or disclosure of Confidential Information and take all reasonable steps and cooperate with Lago to prevent further use or disclosure. Candidate shall be responsible for any breach of this Agreement caused by its Representatives.
2. Definition of Confidential Information
“Confidential Information” means all non-public, proprietary, or confidential information disclosed before, on, or after the Effective Date, including but not limited to any trade secrets and the identities and contact information of Introduced Parties, relating to Lago’s business, in oral, visual, written, electronic, or other tangible or intangible form, whether or not marked or designated as “confidential,” and all notes, analyses, summaries, and other materials prepared by Candidate or any of its Representatives that contain, are based on, or otherwise reflect, to any degree, any of the foregoing (“Notes”).
Confidential Information does not include any information that:
(a) is or becomes generally available to the public other than as a result of Candidate’s or its Representatives’ act or omission;
(b) is obtained by Candidate or its Representatives on a non-confidential basis from a third party that was not legally or contractually restricted from disclosing such information;
(c) Candidate establishes by documentary evidence was in Candidate’s or its Representatives’ possession before Lago’s disclosure hereunder; or
(d) Candidate establishes by documentary evidence was or is independently developed by Candidate or its Representatives without using any Confidential Information.
Confidential Information also includes:
(x) the fact that the parties are in discussions regarding the Purpose (or, without limitation, any termination of such discussions) and that Confidential Information has been disclosed; and
(y) any terms, conditions, or arrangements discussed.
3. Compelled Disclosure
If Candidate or any of its Representatives is required by applicable law or a valid legal order to disclose any Confidential Information, Candidate shall, before such disclosure, notify Lago in writing of such requirements so that Lago may seek a protective order or other remedy, and Candidate shall reasonably assist Lago therewith. If Candidate remains legally compelled to make such disclosure, it shall:
(a) only disclose that portion of the Confidential Information that, in the written opinion of its legal counsel, Candidate is required to disclose; and
(b) use reasonable efforts to ensure that such Confidential Information is afforded confidential treatment.
4. Return or Destruction of Materials
On the expiration or termination of this Agreement, or otherwise at Lago’s written request, Candidate shall, at Lago’s discretion, promptly return to Lago or destroy all Confidential Information in its and its Representatives’ possession other than Notes, and destroy all Notes, and certify in writing the destruction of such Confidential Information.
5. No Obligation; No Warranty
Lago has no obligation under this Agreement to:
(a) disclose any Confidential Information; or
(b) negotiate for, enter into, or otherwise pursue the Purpose.
Lago makes no representation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information, and shall not be liable to Candidate or any other person relating to Candidate’s use of any Confidential Information or any errors therein or omissions therefrom.
6. Ownership and Rights
Lago retains its entire right, title, and interest, including all intellectual property rights, in and to all Confidential Information, and no disclosure of Confidential Information hereunder will be construed as a license, assignment, or other transfer of any such right, title, or interest to Candidate or any other person.
7. Non-Circumvention
Candidate shall not, directly or indirectly, except in collaboration with or with the express written consent of Lago:
(a) enter into any employment, consulting, contracting, or other professional or commercial relationship with the Introduced Party that would, or could reasonably be expected to, deprive Lago of the benefit of its services in connection with the Purpose or under this Agreement;
(b) solicit the Introduced Party to enter into any such relationship with Candidate; or
(c) induce, solicit, procure, or otherwise encourage its Representatives or any other third party to engage in any of the foregoing.
8. Term of Obligations
The rights and obligations of the parties under this Agreement expire two years after the Effective Date or one year after the termination of this Agreement, whichever is later; provided that with respect to Confidential Information that constitutes a trade secret under applicable law, such rights and obligations will survive such expiration until, if ever, such Confidential Information loses its trade secret protection other than due to an act or omission of Candidate or its Representatives; provided further, for the avoidance of doubt, that Candidate’s non-circumvention obligations set forth in Section 7 shall expire two years after the Effective Date or one year after the termination of this Agreement, whichever is later.
9. Equitable Relief
Candidate acknowledges and agrees that any breach of this Agreement will cause irreparable harm and injury to Lago for which money damages would be an inadequate remedy and that, in addition to remedies at law, Lago is entitled to equitable relief as a remedy for any such breach. Candidate waives any claim or defense that Lago has an adequate remedy at law in any such proceeding. Nothing herein shall limit the equitable or available remedies at law for Lago.
10. Governing Law and Jurisdiction
This Agreement and all matters relating hereto or relating to the relationship among the parties are governed by, and construed in accordance with, the laws of the State of Utah, without regard to the conflict of laws provisions of such State. Any legal suit, action, or proceeding relating to this Agreement or the relationship among the parties must be instituted in the federal or state courts located in Salt Lake City, Salt Lake County, Utah. Each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. In any such action or proceeding, the prevailing party shall be entitled to recover its costs and fees, including its reasonable attorney fees, from the other party.
11. Notices
All notices must be in writing and addressed to the relevant party. All notices must be personally delivered or sent prepaid by nationally recognized overnight courier, email (with confirmation of transmission), or certified or registered mail, (in each case, return receipt requested, postage prepaid), and are effective on actual receipt.
12. Entire Agreement
This Agreement constitutes the entire agreement of the parties regarding its subject matter and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, whether written or oral, with respect to such subject matter. This Agreement may only be amended, modified, waived, or supplemented by an agreement in writing signed by both parties. Each party represents and warrants that it has had the opportunity to consult with its legal counsel of its choosing to review and advise on this Agreement. This Agreement shall be construed as if both parties drafted it equally, with no ambiguity being construed against either party.
By continuing with the recruitment and placement process, the Candidate acknowledges having read, understood, and agreed to all terms of this Confidentiality and Non-Circumvention Agreement.