This NON-DISCLOSURE AGREEMENT (“Agreement”) is made and entered into effective as , 2008 between Barrister Corporation with an office located at ADDRESS ("Barrister Corporation"), and , having an office located at ("Recipient"). For the purposes of this Agreement, the term “Barrister Corporation” shall be deemed to include all entities affiliated with any third parties, and any agencies, law firms and other parties for which Barrister Corporation, or its affiliates, provides services.
Recipient wishes to receive information from Barrister Corporation in order to assess a possible business relationship involving the processing of Recipient’s client transactions by Barrister Corporation (the “Business Opportunity”). In the course of discussions related to the Business Opportunity, it is anticipated that Barrister Corporation will disclose confidential and proprietary information to Recipient. Recipient agrees that the disclosure of Barrister information in connection with the Business Opportunity shall be governed by this Agreement.
NOW, THEREFORE, for good and valuable consideration, Recipient agrees as follows:
1. “Confidential Information” shall mean nonpublic information revealed by Barrister Corporation (whether in writing, orally or by any other means) to Recipient including, without limitation, (a) all forms and types of financial, business, scientific, technical, economic, or engineering information including patterns, plans, compilations, program devices, formulae, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and regardless of how stored, compiled, or memorialized, whether physically, electronically, graphically, photographically, in writing or by some other means, (b) information traditionally recognized as proprietary trade secrets, (c) all data and information about Barrister Corporation customers (current, former or prospective) and officers, directors and employees (including the customers and officers, directors and employees of Barrister Corporation affiliates), (d) Nonpublic Personal Information (as defined below) and (e) all copies of any of the foregoing or any analyses, studies or reports that contain, are based on, or reflect any of the foregoing. Confidential Information and all applicable intellectual property rights embodied in the Confidential Information shall remain the property of Barrister Corporation. For avoidance of doubt, the term Confidential Information shall include any and all information related to or contained within Barrister Corporations software system and any and all business processes, procedures, techniques, etc. employed by Barrister Corporation (including its affiliates and clients) regarding the management or settlement of consumers’ debts.
2. Recipient shall treat the Confidential Information with at least the same degree of care that it uses to protect its own confidential and proprietary information of a similar nature but with no less than a reasonable degree of care. Recipient shall not disclose, duplicate, copy, transmit or otherwise disseminate in any manner whatsoever the Confidential Information, except to the Recipient’s officers, directors and employees (collectively “Employees”), and employees of other contractors or consultants retained by the Recipient (including those retained by the Recipient’s affiliates). All such persons receiving Confidential Information shall: (a) if not Employees of Recipient, be subject to a written confidentiality agreement consistent with the terms of this Agreement; (b) have a need to know such Confidential Information for its performance in connection with the Business Opportunity; and (c) have been informed of the confidential nature of the Confidential Information. Recipient shall cause its Employees and any contractor, consultant or other third party to whom it is authorized to disclose the Confidential Information to adhere to the terms of this Agreement, and Recipient shall be liable to Barrister Corporation in the event that any of its Employees or such third parties breach these obligations. Recipient will promptly report to Barrister Corporation any breaches in security that may materially affect Barrister Corporation and will specify the corrective action to be taken. Recipient will not commingle Barrister Corporation’s Confidential Information with the information of any other person or entity. (ii) Notwithstanding anything in this Agreement to the contrary, Recipient shall comply with all US privacy and data protection laws, rules and regulations which are or which may in the future be applicable to the terms of this Agreement. Without limiting the generality of the preceding sentence, Recipient agrees that it will not use nor disclose to any other party any Nonpublic Personal Information, which it receives from a Financial Institution in connection with this Agreement, except in accordance with this Agreement. For purposes of this subparagraph (ii), the terms "Nonpublic Personal Information" and "Financial Institution" shall have the meanings set forth in Section 509 of the Gramm-Leach-Bliley Act (P.L. 106-102) (15 U.S.C. Section 6809) and implementing regulations thereof, as may be amended from time to time.
3. Recipient shall not use the Confidential Information of Barrister Corporation: (a) for its own benefit or that of any third party; (b) to Barrister Corporation’s detriment; or (c) in any manner other than to execute the Business Opportunity.
4. The obligations under Sections 2 and 3 above do not apply to information that Recipient can show: (a) was in Recipient’s possession prior to the date of the disclosure by Barrister Corporation; (b) was obtained by Recipient after the date of this Agreement from a third party who is not known by Recipient to be under any obligation of confidentiality with respect to such information; (c) became generally available to the trade, or to the public, based on existing records or through sources other than Recipient;
or (d) was developed at any time by Recipient independent of information or materials disclosed by Barrister Corporation to Recipient.
5. In the event that Recipient is requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process) to disclose any Confidential Information of Barrister Corporation, then Recipient will, to the extent permitted by law, provide Barrister Corporation with prompt notice of such request or requirement so that Barrister Corporation may seek an appropriate protective order or waive compliance by Recipient with the provisions of this Agreement. If, in the absence of a protective order or the receipt of a waiver hereunder, Recipient is nonetheless, in the opinion of Recipient’s counsel, legally required to disclose such Confidential Information forwarded by Barrister Corporation or else stand liable for contempt or suffer other censure or penalty, Recipient may disclose such information without liability hereunder, provided, however, that Recipient shall disclose only that portion of such Confidential Information which it is legally required to disclose.
6. This Agreement grants no patent rights, copyrights, trade secrets or licenses, expressed or implied, to Recipient except to the extent necessary for Recipient to perform the Business Opportunity contemplated by this Agreement.
7. Recipient agrees not to export Barrister Corporation’s Confidential Information, or articles incorporating such Confidential Information, to any prohibited country, as designated by the U.S. Department of Commerce, without the appropriate written authorization. Recipient further agrees to comply with all applicable laws and regulations, which pertain to the subject matter of this Agreement or the use of the Confidential Information obtained under this Agreement.
8. Barrister Corporation and Recipient agree that unless and until a an agreement between them with respect to the Business Opportunity has been consummated, neither party will be under any legal obligation of any kind with respect to such possible business relationship, except for the matters specifically agreed to in this Agreement. Either party may terminate the Business Opportunity with notice. All expenses, costs, liabilities, obligations or losses incurred by either party pursuant to this Agreement and the discussions and related effort regarding the Business Opportunity shall be borne by the party incurring such charges.
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED. 9. Barrister Corporation and Recipient each warrant that it has the right to enter into this Agreement. No warranty, express or implied, regarding the Confidential Information disclosed is granted by this Agreement, and THE WARRANTIES OF
10. Barrister Corporation and Recipient agree that the conditions in this Agreement and the Confidential Information disclosed pursuant to this Agreement are of a special, unique, and extraordinary character, Barrister Corporation would be irreparably harmed by any disclosure of the Confidential Information in violation of this Agreement, and that the use of the Confidential Information for the business purposes of Recipient, or any third party, other than in connection with the Business Opportunity, would enable Recipient or such third party to compete unfairly with Barrister Corporation. For these reasons, Recipient waives any claim or defense that Barrister Corporation has an adequate remedy at law, and Barrister Corporation and Recipient agree that Barrister Corporation shall be entitled to seek equitable relief to prevent further use and/or disclosure in addition to all other remedies available to Barrister Corporation at law or in equity for any breach of this Agreement.
11. Recipient’s obligations and restrictions with respect to Confidential Information shall survive the termination of this Agreement. Recipient further acknowledges that: (i) its obligations under this Agreement with respect to Nonpublic Personal Information shall remain in effect for as long as such information shall remain Nonpublic Personal Information under applicable law, and (ii) its obligations under this Agreement with respect to trade secrets shall remain in effect for as long as such information shall remain a trade secret under applicable law.
12. Neither this Agreement nor any rights or obligations under this Agreement may be assigned by Recipient without the prior written consent of Barrister Corporation. This Agreement shall inure to the benefit of and be binding upon Barrister Corporation and Recipient and their respective successors and assigns.
13. No delay or omission by Barrister Corporation to exercise any right or power occurring upon any noncompliance or default by Recipient with respect to any of the terms of this Agreement shall impair any such right or power or be construed to be a waiver thereof. A waiver by Barrister Corporation of any of the covenants, conditions, or agreements to be performed by Recipient shall not be construed to be a waiver of any succeeding breach thereof or of any covenant, condition, or agreement herein contained. Unless stated otherwise, all remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to Barrister at law, in equity, or otherwise.
14. If any term or provision of this Agreement is declared invalid by a court of competent jurisdiction, the remaining terms and provisions of this Agreement shall remain unimpaired and in full force and effect.
15. Upon termination of this Agreement, or upon Barrister Corporation’s earlier request, Recipient shall promptly return to Barrister Corporation, destroy or render unusable, and discontinue the use of, any Confidential Information then in Recipient’s possession, including all copies and archived versions. Recipient shall retain no part or copy of any of Barrister Corporation’s Confidential Information and, if requested in writing, Recipient shall certify its compliance with the foregoing provision.
16. No public announcement of any prospective business arrangement is to be made by Barrister or Recipient unless such announcement is agreed upon in writing by the parties. Neither party shall furnish the name, trademark or proprietary indicia of the other as a reference, or utilize the name, trademark or proprietary indicia of such other party in any advertising, announcement, press release or promotional materials, including but not limited to testimonials, quotations, case studies, and other endorsements.
17. This Agreement may be signed in counterparts, each of which shall be deemed an original and both of which taken together shall constitute one and the same instrument.
18. This Agreement may not be amended, modified or waived in any manner, except in writing signed by both parties. This Agreement embodies the entire understanding between the parties pertaining to the subject of this Agreement and supersedes all prior agreements pertaining to such subject.
19. All notices required to be given under this Agreement shall be in writing and delivered to the addresses set forth below in this Agreement. Notice shall be sent by overnight delivery or registered or certified mail, return receipt requested, and shall be considered delivered and effective three days after mailing.
If to Barrister Corporation:
Barrister Corporation.
If to Recipient:
________________________________________________________________________
Attention:
20. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflicts of law rules. Any action brought in connection with this Agreement shall be brought in either the state or federal courts of California and each party hereby irrevocably consents to the exclusive jurisdiction and venue of such courts. Furthermore, each party agrees not to assert the doctrine of forum non conveniens in any action in state or federal court in California.
IN WITNESS WHEREOF, Barrister Corporation and Recipient have caused this Agreement to be executed by their duly authorized representatives who represent they have the authority to bind the respective party to this Agreement.
By: By:
(Signature) (Signature)
Name Printed
Title: President Title:
Barrister Corporation
Date: , 2009 Date: , 200*
Criminal History and Background Check Authorization
I, the undersigned individual, have made application to Barrister Corporation and “ ” to establish a relationship with it as an Independent Debt Settlement Agent. Pursuant to that application I hereby authorize Barrister Corporation to employ a “Consumer Reporting Agency” (as that term is defined by the Fair Credit Reporting Act) to perform a Criminal History and Background Check as part of the due diligence process for employing me as an independent debt settlement agent (independent contractor). The Consumer Reporting Agency may conduct an investigation to verify the social security number, obtain information regarding past employment, and perform a criminal background check. It may provide information concerning my creditworthiness and the existence of liens or lawsuits that have been filed against me. The Consumer Reporting Agency may track counties of residence to search for criminal records.
I understand that, as provided by the Fair Credit Reporting Act, before I am ever denied a relationship based on information obtained in the report I will receive a copy of the report and a written description of my rights under the Fair Credit Reporting Act. I understand that if I disagree with the accuracy of any information in the report, I must notify the designee* listed below within three (3) business days of receipt of the report, and, in that event, I will have a reasonable opportunity to address the information contained in the report.
I understand and consent to the information contained in the Criminal History and Background Check being made available to those persons involved in deciding whether to enter into agreements with me or not and those performing the background investigation, and further understand that it will be used in deciding whether or not to employ me as an independent contractor.
I authorize and consent to the Criminal History and Background Check as described above.
Signature
Name (please print)
Date
Social Security Number (required)
Date of Birth (month, day, year)
