NON-CIRCUMVENTION AND NON-DISCLOSURE AGREEMENT
This Agreement is made the as of the 14th day of July, 2005,
BETWEEN:
Essentially Yours Industries, Inc.,
a Nevada corporation, having a business located at
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX, Xxxxxx, X0X 0X0
("EYI")
OF THE FIRST PART
AND:
Metals & Arsenic Removal Technology, Inc.,
a North Carolina corporation, having a business located at
0000 Xxxxxxxx Xxxx.
Xxxxxxx, Xxxxx Xxxxxxxx 00000
("XXXXX")
OF THE SECOND PART
WHEREAS:
X. XXXXX is engaged in the manufacture and sale of water treatment products,
which include water filtration cartridges and systems exclusively designed
and manufactured by XXXXX for EYI, for the exclusive distribution and
resale by EYI, worldwide;
B. EYI and XXXXX (individually, the "Party", and collectively, the "Parties")
have entered into a distribution agreement, titled "Reseller Agreement",
made as of May 11, 2005, amended by an amendment agreement made as of July
14, 2005;
C. The Parties wish to execute this Agreement to protect them on a world-wide
basis against the circumvention of one by the other through unauthorized
contacts with a party's business sources during the period covered by the
Agreement, and;
D. The Parties wish to execute this Agreement for their joint protection
against the communication of information that is proprietary in nature,
and/or that is intrinsically valuable or is potentially harmful to the
business of either of the parties, if divulged to another.
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NOW THEREFORE THIS AGREEMENT witnesses that in exchange for the information the
Parties give each other, and for good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. Each Party covenants with the other Party to refrain from soliciting business
and contacts from sources not their own, which have been made available or
introduced are in the future made available or introduced to them via this
Agreement or by the other Party ("Protected Business Contacts"), whether such
solicitation is direct or indirect, without first obtaining the express written
permission of the Party who made the original introduction. Each Party also
agrees to refrain from doing business with such Protected Business Contacts
without first obtaining the express written permission of the Party who made the
original introduction.
2. The Parties agree to keep confidential the names of any Protected Business
Contacts, including purchasers, suppliers, business prospects, customers, banks,
corporations, organizations, individuals, licensors, licensees, or agents of any
of the above, introduced by either of the Parties or by the agent of a Party, to
the other. The identities of these individuals shall remain confidential during
the term specified in this Agreement. Information such as telephone, telex, or
facsimile numbers, e-mail addresses, mailing lists, addresses, computer
databases and technical / commercial / financial data, as well as any matter
which could reasonably be expected to cause technical / commercial / financial
damages, directly or indirectly, to either of the parties, shall be accorded
confidentiality under this Agreement. All such information is herein referred to
as "Confidential Information".
3. Each Party acknowledges to the other that any information to be furnished is,
in all respects, confidential in nature, and that any disclosure or use of same
by the Party, except as provided for in this Agreement, may cause serious harm
or damage to the other Party and its owners, directors, officers, employees,
agents and representatives. Therefore, each Party covenants that it will not use
the Confidential Information for any purpose other than as stated above, and
agrees that it will not either directly or indirectly by agent, employee or
representative, disclose the Confidential Information either in whole or in part
to any third party, without the prior written consent of the other Party,
provided however, that the Confidential Information furnished may be disclosed
only to its legal or financial advisors who require such Confidential
Information for the purposes of evaluating any possible transaction (it being
understood that those advisors shall be bound under the terms contained herein,
and shall be informed by the Party of the confidential nature of such
Confidential Information and the terms of this Agreement, and will be directed
by the Party to treat the Confidential Information as set out herein).
4. The aforesaid obligations do not apply to any Confidential Information that
is:
(a) publicly known; or
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(b) is given to the Party by someone else who is not obligated to
maintain confidentiality; or
(c) is required in an SEC filing.
5. Any violation of this Agreement shall entitle the wronged party to
compensation for such damage as may be reasonably shown to have resulted from
the violation. In the event that any action is brought to enforce this
Agreement, the prevailing party will be entitled to recover its costs of
enforcement including, without limitation, reasonable legal fees and court
costs.
6. The Parties acknowledge and agree that the extent of damage to EYI in the
event of a breach by XXXXX of any of the covenants contained in the Agreement
will be difficult or impossible to ascertain and that there will be no adequate
remedy in law available to EYI of such breach. Consequently, XXXXX agrees that
in the event of such breach, EYI, in addition to receiving damages, will be
entitled to enforce any and all covenants contained in this Agreement by
injunctive or other equitable relief.
7. The Parties acknowledge and agree that the extent of damage to XXXXX in the
event of a breach by EYI of any of the covenants contained in the Agreement will
be difficult or impossible to ascertain and that there will be no adequate
remedy in law available to XXXXX of such breach. Consequently, EYI agrees that
in the event of such breach, XXXXX, in addition to receiving damages, will be
entitled to enforce any and all covenants contained in this Agreement by
injunctive or other equitable relief.
8. This Agreement shall be in effect for a period that is the longer of Five (5)
Years from the date of execution of this Agreement, and the duration of the
Reseller Agreement and any extensions thereof, and shall apply to all
transactions executed or initiated during that period. It shall apply to
principals and agents and shall include follow-up contacts, repeats, roll-overs,
extensions and renegotiated contracts or the equivalent.
9. All notices, demands or consents required or permitted under this Agreement
will be in writing and will be delivered personally or sent by facsimile or
registered mail to the respective parties at the addresses as set out herein or
at such other addresses as may be given by either party to the other in writing.
10. No waiver, amendment or modification of any provisions of this Agreement
will be effective unless in writing and signed by the party against whom such
waiver, amendment or modification is sought to be enforced. No failure or delay
by either party in exercising any right, power or remedy under this Agreement
accept as specifically provided in this Agreement will operate as a waiver of
any such right, power or remedy.
11. If any provision of this Agreement is held by a court of competent
jurisdiction to be invalid, they are to that extent deemed to be omitted and the
remaining provisions of this Agreement will remain in full force and effect.
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12. This instrument contains the entire Agreement of parties and replaces all
previous communications, representations, understandings and agreements whether
verbal or written. This Agreement shall be construed under the laws of the
Province of British Columbia, Canada, without reference to its conflict of laws
rules, and controversies and claims arising from this agreement shall be brought
only in the courts of British Columbia, Canada.
13. Nothing in this agreement affects any previous agreements or understandings
of the parties. XXXXX has granted to EYI the following:
(a) certain specialty formulated XXXXX products for EYI private label.
(b) all other rights assigned in the agreement dated May 11, 2005.
IN WITNESS WHEREOF the parties have executed this Agreement on the date written
above.
ESSENTIALLY YOURS INDUSTRIES, INC.
Per:
/s/ Xxxx X'Xxxxx
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Xxxx X'Xxxxx
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Name
Executive VP and COO
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Title
METAL AND ARSENIC REMOVAL TECHNOLOGY, INC.
Per:
/s/ Xxxxxx Xxxx
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Xxxxxx Xxxx
------------------------------------------
Name
Chief Executive Officer
------------------------------------------
Title
