NON-DISCLOSURE AGREEMENT
This Non-Disclosure Agreement (the "Agreement") is made and entered into as of 02 June 2019 between Sincere Salutations LLC ("Company") and applicant ("CSP").
WHEREAS, CSP has been or will be assigned by Company to provide CSR Services under the terms of a Statement of Work ("SOW') executed by and between Arise Virtual Solutions Inc. ("Arise") and Company.
WHEREAS, Company and CSP (collectively referred to as the "parties" and individually referred to as a "party") desire to establish terms governing the use and protection of Confidential Information (as defined in Section 1 below).
NOW THEREFORE, in consideration of the foregoing and the mutual promises and covenants set forth herein, and other good and valuable consideration, the adequacy of which is hereby acknowledged, the parties agree as follows:
1. "Confidential Information" means all information, materials, documentation and data furnished and disclosed by Company, Arise or any third party client that receives customer care solutions through Arise pursuant to the terms of an agreement between such client and Arise (an "Arise Client" or "Client") to CSP, whether in oral, written, graphic or machine-readable form, including but not limited to, products and services, intellectual property, distribution channels, strategic alliances, marketing plans, software codes, designs, procedures, processing flowcharts, configurations, formulas, discoveries, inventions, improvements, concepts, ideas, customer lists, business plans, contacts and other business and technical information, except for such information and data as the parties agree in writing is not proprietary or confidential. Confidential Information shall also include information and materials in Company's possession, custody or control for any other person or entity that Company is obligated to treat as confidential or proprietary. Confidential Information shall also include credit/debit card numbers and other credit/debit card data of any person who provides such information to Company or any CSP, in connection with the provision of CSR Services. Confidential Information shall also include all information specific to any Arise Client's business processes, systems, and information about such Client's customers including but not limited to, information such as a Client customer's first name or initial and last name in combination with any potentially sensitive personally identifiable information such as the customer's (1) social security number, (2) driver's license number, (3) credit card number, (4) bank account number, (5) credit report information, (6) family members, (7) password or account code or (8) any other information Client's customer deems to be proprietary. The term "affiliate" means any person or entity directly or indirectly controlling, controlled by, or under common control with a Party.
2. CSP agrees to hold in confidence and not disclose, reproduce, distribute, transmit, reverse engineer, decompile, disassemble, or transfer, directly or indirectly, in any form, by any means, or for any purpose, the Confidential Information, or any portion thereof, without the prior written permission of the Company.
3. CSP shall use the Confidential Information received or otherwise obtained solely for the purpose of providing the CSR Services. Such Confidential Information shall not be used for any other personal or commercial purpose by the CSP, or otherwise in any manner detrimental to Company, Arise or any Arise Client or their businesses.
4. The restrictions of this Agreement on use and disclosure of Confidential Information shall not apply to information that:
(a) Was publicly available at the time received by CSP;
(b) Becomes publicly available through no fault of CSP subsequent to the time received by CSP; or
(c) Is identified by Company, Arise or any Arise Client, as applicable, as no longer proprietary or confidential.
5. In the event CSP is required by law, regulation or court order to disclose any Confidential Information, CSP will promptly notify Company in writing prior to making any such disclosure in order to facilitate Company seeking a protective order or other appropriate remedy from the proper authority. CSP agrees to cooperate with Company in seeking such order or other remedy. CSP further agrees that if Company is not successful in precluding the requesting legal body from requiring the disclosure of the Confidential Information, it will furnish only that portion of the Confidential Information, which is legally required and will exercise all reasonable efforts to obtain reliable assurances that confidential treatment will be accorded the Confidential Information.
6. All Confidential Information disclosed under this Agreement (including information in computer software held in electronic storage media) shall be and remain the property of the Company, Arise or the Arise Client, as applicable. All such information in tangible form shall be destroyed or returned to the Company promptly upon written request or the termination or expiration of this Agreement, and shall not thereafter be retained in any form by CSP. All Confidential Information in any computer memory or data storage apparatus shall be erased or destroyed.
7. This Agreement shall become effective as of the date first written above and shall automatically expire upon the termination of CSP's employment or association with Company. Notwithstanding the termination of this Agreement for any reason whatsoever, all of the CSP's non-disclosure obligations pursuant to this Agreement (and the Company's rights and remedies with respect thereto) shall survive with respect to any Confidential Information received prior to such expiration or termination.
8. The CSP acknowledges that Confidential Information is unique and valuable, and that disclosure in breach of this Agreement will result in irreparable injury to the Company for which monetary damages alone would not be an adequate remedy. Therefore, the CSP agrees that in the event of a breach or threatened breach of confidentiality, the Company shall be entitled to specific performance and injunctive relief as a remedy for any such breach or anticipated breach without the necessity of posting a bond. Any such relief shall be in addition to and not in lieu of any appropriate relief in the way of monetary damages.
9. Company and CSP agree that Arise and any Arise Client, as described in the SOW, are third party beneficiaries of this Agreement and that Arise or any Arise Client shall have the right to the remedies and to take any of the actions described in Section 8 herein above, against CSP to enforce the terms of this Agreement.
10. No failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
11. This Agreement: (a) is the complete agreement of the parties concerning the subject matter hereof and supersedes any prior agreements with respect to further disclosures concerning such subject matter; and (b) may not be amended or in any manner modified except by a written instrument signed by authorized representatives of both parties.
12. If any action is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any provision of this Agreement, the successful or prevailing party shall be entitled to recover reasonable attorney's fees, costs and all expenses even if not taxable as court costs (including, without limitation, all such fees, costs and expenses incident to appellate, and bankruptcy proceedings), incurred in that action, in addition to any other relief to which such party or parties may be entitled. Attorney's fees shall include, without limitation, paralegal fees, investigative fees, administrative costs, sales and use taxes and all other charges billed by the attorney to the prevailing party.
13. If any provision of this Agreement is found to be unenforceable, the remainder shall be enforced as fully as possible and the unenforceable provision shall be deemed modified to the limited extent required to permit its enforcement in a manner most closely representing the intention of the parties as expressed herein.
14. Any third party who supplied Confidential Information to the Company shall be deemed to be a third party beneficiary of this Agreement in the event of any breach of this Agreement by CSP with respect to such Confidential Information.
15. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.***
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed by its duly authorized representative.
***Company acknowledges and agrees that the signature on the application document shall serve as the counterpart signature to any other Non-Disclosure Agreement executed by a Client Support Professional affiliated with Company.
***Individual acknowledges and agrees that the signature on the this application document is also consent for document to be signed within the QASS, ACD, Sinsal Solutions, Arise and any other client platform on behalf of the individual during account sent up.
ACKNOWLEDGEMENT & WAIVER
NOW THEREFORE, in consideration of the foregoing and the mutual promises and covenants set forth herein, and other good and valuable consideration, the adequacy of which is hereby acknowledged, the parties agree as follows:
1. It is solely the responsibility of Company to compensate Individual and provide Individual with any benefits that may be required by federal, state or local law.
2. Individual is not an employee of Arise Virtual Solutions Inc. (" Arise") or any client of Arise.
3. Individual is not eligible to participate in any employee compensation or benefit programs or arrangements maintained by or on behalf of Arise or any client of Arise.
4. Individual is not eligible to receive any workers' compensation, unemployment or disability benefits or insurance payments, or any other similar benefits from Arise or any client of Arise.
5. Individual hereby irrevocably waives any right to assert a claim directly or indirectly (whether in a court of law, in arbitration, or through a governmental agency or similar entity) against Arise or any client of Arise with respect to the matters enumerated in paragraphs 1, 2, 3 and 4 above.
6. Individual acknowledges and understands that Company and Arise have entered into an agreement which provides for the resolution of any and all disputes or claims each may have against the other (and/or against any Arise client) by binding arbitration, and that Arise’ obligation to arbitrate disputes and claims under that agreement extends to disputes and claims that Arise may have against Individual. In consideration of Arise’ agreement to arbitrate disputes and claims it may have against Individual and for other good and valuable consideration, Individual agrees to arbitrate any and all disputes or claims that he or she may have against Arise or any client of Arise as set forth in Paragraphs 7 through 9 below.
7. Company and Individual hereby agree to resolve any and all disputes or claims they may have against the other, and Individual hereby agrees to resolve any and all disputes that he or she may have against Arise or any client of Arise (including but not limited to claims for wages or other remuneration due; claims for breach of any contract or covenant, express or implied; personal injury, defamation or other tort claims; claims for discrimination, including but not limited to discrimination based on race, sex, religion, national origin, age, marital status, sexual orientation, handicap, physical or mental disability or medical condition; claims for benefits; and claims for violation of any federal, state, local or other governmental constitution, law, statute, ordinance, regulation, public policy or provision of common law) by final and binding arbitration pursuant to the then-current rules established by the American Arbitration Association (the "AAA"). The AAA's rules are available for review at www.adr.org. The nature of the claims asserted shall determine which body of AAA rules will apply. In the event that there is a dispute regarding which AAA rules apply, the AAA shall decide that issue; provided, however, that consistent with Section 10 in no event shall the AAA's Supplementary Rules for Class Arbitration (or any analogue thereto) apply. Company and Individual agree that the arbitration shall be conducted by a single arbitrator in the AAA office nearest Individual (or such other location as is mutually agreed to by the parties), and therefore waive any objections or claims they might otherwise be able to rightfully assert based upon the inconvenience of the forum or improper jurisdiction. Unless otherwise mutually agreed, the arbitrator shall be a practicing attorney with at least 15 years of experience as an attorney and at least five years of experience as an arbitrator. In the event of a conflict between the terms of this agreement and the applicable arbitration rules, the terms of this agreement shall control.
8. All parties to this agreement expressly agree that the Federal Arbitration Act governs the enforceability of any and all of the arbitration provisions of this agreement and judgment upon the award rendered by the arbitrator may be entered by any court of competent jurisdiction. Questions of arbitrability (that is whether an issue is subject to arbitration under this agreement) shall be decided by the arbitrator. Procedural questions arising out of the dispute and bearing on its final disposition are also matters for the arbitrator to decide. Claims must be filed within the time set by the applicable statute(s) of limitations.
9. Either party may apply for injunctive relief until the arbitration award is rendered or the controversy is otherwise resolved pursuant to the Optional Rules for Emergency Measures of Protection of the AAA. Those Optional Rules are available for review at www.adr.org. Either party also, may without waiving any remedy under this agreement, seek from any court having jurisdiction any interim or provisional relief that is necessary to protect the property rights of that party, pending the establishment of the arbitral tribunal (or pending the arbitral tribunal's determination of the merits of the controversy).
10. CLASS ACTION WAIVER. By signing this agreement, all parties waive their right to commence, to become a party to, or to remain a participant in, any group, representative, class, collective, or hybrid action in any court against one or more other parties to this agreement or against Arise or against any client of Arise. Further, the parties waive any right to commence, to become a party to, or to remain a participant in, any group, representative, class, collective, or hybrid action claim in arbitration or any other forum against one or more other parties to this agreement or against Arise or against any client of Arise. The parties agree that any claim by or against any other party to this agreement, against Arise or against any client of Arise shall be heard in arbitration without consolidation of such claim with any other person or entity's claim. All parties agree that this agreement does not limit any party's right to initiate an action in court challenging the enforceability of the group, representative, class, collective, and hybrid action waiver set forth herein. If Individual chooses to exercise that right, Company will not retaliate against Individual for doing so. Company does, however, reserve the right to oppose any such challenge to enforcement of this agreement. The parties further agree that nothing in this agreement precludes any party from participating in proceedings to adjudicate unfair labor practice charges before the National Labor Relations Board, including without limitation charges addressing the enforcement of the group, representative, class, collective, and hybrid action waiver set forth herein.
11. If any part of this agreement, other than the waivers pursuant to Section 10 of the right to commence, to become a party to, or to remain a participant in, any group, representative, class, collective, or hybrid action in court, arbitration or any other forum, and of the right to consolidate claims in arbitration, is deemed or found to be unenforceable for any reason, the remaining provisions of this agreement shall be severable and remain enforceable. If the waiver of rights pursuant to Section 10 is deemed or found to be unenforceable for any reason in a case in which class action or similar allegations have been made, Sections 7, 8, and 9 hereof shall also be unenforceable and the parties' dispute shall be adjudicated in court.
12. Company and Individual acknowledge and agree that Arise and any client of Arise are intended third party beneficiaries of this agreement, and the rights and remedies hereunder, and any of them jointly or severally shall have the right to enforce this agreement.
13. This agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.***
14. BY SIGNING THIS AGREEMENT, EACH PARTY ACKNOWLEDGES THAT (A) IT CAN ACCESS THIS AGREEMENT COMPLETELY AND FULLY, (B) IT HAS BEEN ABLE TO READ THIS AGREEMENT; AND (C) THAT IT HAS SUCCESSFULLY PRINTED OR DOWNLOADED A COPY OF THIS AGREEMENT AND (D) THAT IT AGREES TO DO ANY AND ALL BUSINESS ELECTRONICALLY.
IN WITNESS WHEREOF, the undersigned have executed this agreement as of the date first above written.
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