Welcome to the website of Adeptus USA, Inc., a Virginia stock corporation (the “Company”, “we” or “us”), (Company and “you” each defined as a “Party” collectively, the “Parties”). The following terms and conditions, together with any documents, agreements, or Contracts (as defined below) they expressly incorporate by reference herein (the Contract and these Vendor Terms of Purchase and Performance are defined collectively and referred to herein as the/this “Agreement”) govern, and as applicable hereby amend, the Contract terms of purchase, shipping, and performance between you and the Company relating to the purchase of the goods described in any and all goods purchase orders or Contracts entered into by and between you and the Company, and each Party’s respective duties of performance thereunder, each such purchase order incorporated herein by reference (each of the foregoing described purchase orders is individually and collectively defined herein as a/the “Contract”).
NOW, THEREFORE, in consideration of the terms and conditions of this Agreement, the Parties’ continued performance hereof and of any Contract, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by each Party, the Parties hereby agree to and shall perform the following:
1. Information. To assist the Company in performing its duties and exercising its rights under the Agreement, you acknowledge you will access Company’s confidential and proprietary information relating to and concerning its Business (as defined below). For purposes of this Agreement, “Information” shall mean, without limitation, the identity and terms of the transactions between the Parties, all intellectual property, strategic information, financial statements or projections, business plans, prototypes, drawings, data, trade secrets, business records, customer lists, supplier agreements, partnership or joint venture agreements, license agreements, marketing plans, employee lists, policies and procedures, information relating to processes, technologies or theory and any or all
other information relating to the Company and its Business, which may be disclosed by the Company to you in furtherance of the Parties’ performance of the Agreement.
2. Non-Disclosure of Information. You acknowledge the competitive value and confidential nature of the Information and the damages that would result to the Company if any such information were disclosed or misappropriated, therefore the Information shall be kept confidential by you and shall not be disclosed by you in any manner whatsoever, in whole or in part, except that:
a. You may disclose the Information to your directors, officers, employees, agents, and legal and financial advisers (collectively, the “Agents”) solely for the purposes of performing this Agreement; provided you shall transmit the Information only to Agents who need to know the Information in connection with your performance of this Agreement; and provided, further, you shall notify each of the Agents that the Information is to be held by them in confidence and not disclosed to others, or permit others to use for their benefit or to the detriment of the Company, any of the Information; and
b. You shall have no non-disclosure obligation hereunder with respect to any Information which was or becomes independently known or available to you, on a non-confidential basis, from a source other than the Company and which is not subject to any restrictions or disclosure. Further, without limiting the foregoing, you shall use the same degree of care to avoid disclosure of the Information as you employ with respect to your own information which you do not desire to disclose, but at all times shall use at least your best efforts.
3. Restrictions on Use/Non-Circumvention. You shall not use the Information, directly or indirectly, for any purpose other than in the performance of the terms and conditions of the Agreement, and such permitted use shall absolutely cease if and when the Parties subject to the Agreement have completed the transactions underlying the same or this Agreement is terminated in accordance with its terms and conditions hereof. Without limiting the generality of the foregoing: (i) except as provided in Section 4 below, you shall not use the Information in any judicial or administrative proceeding, and (ii) you shall not use any of the Information to perform, manufacture, distribute, deliver, use or sell products or services embodying any such Information, or otherwise compete with, circumvent, or act to the detriment of the Company. You shall keep a record of the location of the Information and shall notify the Company promptly of any loss, misuse or misappropriation of the Information. You hereby agree to indemnify Company against all losses, damages, claims or expenses (including reasonable attorneys’ fees) incurred or suffered by Company as a result of your breach of this Agreement. You agree that no license, whether expressed or implied, is hereby created or granted to you by Company to use any of the Information other than solely for the purpose of performing the terms and conditions of the Agreement. Title to the Information shall remain solely owned by and vested in the Company.
4. Response to Legal Process. In the event you (or anyone to whom you transmit the Information, whether in compliance with this Agreement) are requested, pursuant to subpoena or other legal process, to disclose any of the Information, you shall provide Company with immediate notice so that Company may seek a protective order or other
appropriate remedy and/or waive compliance with the provisions of this Agreement. In the event that such protective order or other remedy is not obtained, or Company waives compliance with the provisions of this Agreement, you (or such other person) shall furnish only that portion of the Information which is legally required and shall exercise your best efforts to obtain a protective order or other assurance satisfactory in form and substance to Company that confidential treatment will be afforded the Information in accordance with this Agreement.
5. Non-Competition; Non-Solicitation of Customers, Employees, or Contractors. a. You shall not, during the Term (as defined below) here of and for a period of eighteen (18) months following the expiration, completion, or termination of the Term, for any or no reason whatsoever, in the geographic territories of the United States of America and its territories, and Canada (the foregoing collectively defined as the “Geographic Area”), either as an officer, stockholder or member, director, employee, representative, partner, sole proprietor, broker, agent, or independent contractor, solicit, accept or otherwise perform or facilitate the sale or distribution of same or similar pine or other wood products that are the same as, or similar to, the pine or other wood products that are both: (i) sold or distributed by the Company in the Geographic Area; and (ii) purchased, ordered, or otherwise subject to the terms or conditions of any Contract entered into by and between you and the Company.
b. You shall not, during the Term hereof and for a period of eighteen (18) months following the expiration, completion, or termination of the Term, for any or no reason whatsoever, in the Geographic Area, either as an officer, stockholder or member, director, employee, representative, partner, sole proprietor, broker, agent, or independent contractor, solicit, accept, or otherwise perform or facilitate the sale or distribution of wood products that are the same or commercially similar to the products that are sold or distributed by the Company in the Geographic Area.
c. You shall not, during the Term hereof and for a period of eighteen (18) months following the expiration, completion, or termination of the Term, for any or no reason whatsoever, either as an officer, stockholder or member, director, employee, representative, partner, sole proprietor, broker, agent, or independent contractor, solicit, accept or otherwise perform business that is the same as the Company’s business of selling and distributing pine or other wood products in the Geographic Area directly for, on behalf of, or at the request of any of the “Company’s customers or clients”, or Company vendors or contractors, who are serviced or engaged during the Term of this Agreement, or were serviced or engaged during the twelve (12) month period preceding the expiration, completion, or termination of this Agreement. For the purposes of this Agreement and this Section 5, “the Company’s customers or clients” means and is defined as any person, company, or other third party to which the Company is providing or has provided its products or services during the Term of the Agreement or during the previous twelve (12) month period preceding the expiration, completion, or termination date of this Agreement.
d. Further, without limitation of any term or condition hereof, you shall not, during the Term of this Agreement, and for eighteen (18) months after the expiration, completion, or termination of this Agreement, directly, indirectly, or by action in concert with others induce, influence, or seek to induce any person, or company who has been engaged by Company as a joint-venturer, employee, manager, salesman, independent contractor, broker, agent, or subcontractor during the twelve (12) month period preceding the expiration, completion, or termination of this Agreement, to terminate or change his, her, or its then existing business relationship with Company then in effect.
e. Notwithstanding any terms or conditions of this Agreement, each clause, provision, restrictive or affirmative covenant, and condition of Section 5 of this Agreement above is hereby distinct, separate and severable from the remainder of this Agreement and from each of the same. If any clause, provision, restrictive or affirmative covenant, or condition of Section 5 of this Agreement above, or the application thereof to any person, place, or circumstance, shall be held to be invalid, unenforceable, or void, the remainder of the clauses, provisions, restrictive or affirmative covenants, and conditions of this Section 5 shall remain in full force and effect in accordance with their terms; and the same shall are hereby severable and shall be thereafter enforced in accordance with the terms herein above.
6. Remedies; Governing Law; Venue. The Parties agree that the disclosure of the Information by you in violation of this Agreement may cause irreparable harm, the amount of which would be impossible to ascertain, and that there is no adequate remedy at law for any such breach. Therefore, in addition to any other rights and remedies it may have, Company shall have available, in addition to any other available right or remedy, the right to obtain an injunction from a court of competent jurisdiction restraining such breach or threatened breach and to specific performance of any provision of this Agreement. You further agree that no bond or other security shall be required in obtaining such equitable relief and consents to the issuance of such injunction and to the ordering of specific performance. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, United States of America, without regard to its conflicts of law principles. The Parties hereby agree to and submit to both the exclusive jurisdiction and venue of the state and federal courts located in the city of Norfolk, Virginia, United States of America for any dispute concerning this Agreement, determining the Parties’ rights or duties hereunder, or need to interpret its terms and conditions.
a. Amendment. This Agreement may not be changed, modified, or amended except by a writing signed by the Parties, and this Agreement may not be discharged except by performance in accordance with its terms or by a writing signed by the Parties.
b. Binding; Entire Agreement. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and to their respective heirs, legal representatives, successors, and assigns. This Agreement and its exhibits and incorporated references, including, without limitation, the Contracts, stated herein sets forth the entire agreement and understanding between the Parties as to the subject matter thereof and merges and supersedes all prior discussions, agreements, written or oral, and understandings of any and every nature between them. Any conflict of interpretation of the Parties’ rights and duties under this Agreement and any Contract shall be controlled by the terms and conditions of this Agreement, as applicable.
c. Counterparts; Execution; Adoption. This Agreement may be executed in any number of counterparts, each of which shall be an original but all of which together will constitute one (1) instrument, binding upon all Parties hereto, notwithstanding that all of such Parties may not have executed the same counterpart, and this Agreement may be deemed executed as described herein by either Party delivering written or electronic consent to its terms and conditions, whether delivered on this Agreement or through reference made pursuant to the terms of a separate instrument or document exchanged, acknowledged, or performed subsequent to the either Parties’ receipt of this Agreement.
d. Default; Attorneys Fees. Without limitation of any other provision of this Agreement, in the event of a default under this Agreement, the defaulting Party shall reimburse the non-defaulting Party or Parties for all costs and expenses reasonably related to and incurred by the non-defaulting Party or Parties in connection with the default, including without limitation, reasonable attorneys’ fees. Further, in the event of a suit or action filed to enforce this Agreement or with respect to this Agreement, the prevailing Party or Parties shall be reimbursed by the other Party for all costs and expenses incurred in connection with the suit or action, including without limitation, reasonable attorneys’ fees.
e. Waiver; Severability. The waiver by any Party of a breach of any provision of this Agreement will not operate or be construed as a waiver of any subsequent breach by any Party. If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to the extent applicable, be deemed invalid or unenforceable by a court of competent jurisdiction proscribed by Section 6 hereof, the remainder of this Agreement and the application of such term of provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law.
f. Further Assurances. You shall execute and deliver such further instruments, provide all information and take or forbear such further acts as may be reasonably necessary to carry out the intent and purpose of this Agreement.
g. Term. The term of this Agreement shall begin on the effective date you agree, acknowledge, begin performance of, or otherwise consent to the terms and conditions of this Agreement, which shall include, without limitation, any Contract, and the same shall extend until and end upon the earlier of the occurrence of either: (i) a Party delivers notice of termination to the other Party in writing; or (ii) the Parties fully perform the terms and conditions of a Contract (as applicable), either Party delivers written notice to the other Party of completion thereunder, and the recipient Party of the foregoing notice of completion does not dispute the attested completion within thirty (30) days of receipt of the same (the “Term”).
h. No Third Party Beneficiaries. Nothing contained herein is intended, nor shall it be construed, to confer any rights or benefits upon any person (including, but not limited to, any employee, agent, contractor, officer, shareholder, member, manager or former agent of the Parties) other than the Parties and no other person shall have any rights or remedies under this Agreement.
i. Notice. Any notice or other communication given hereunder to Company shall be deemed sufficient if in writing and sent by registered or certified mail, return receipt requested, overnight mail or courier addressed to:
Adeptus USA, Inc.
Attn: William White, President
999 Waterside Dr., Suite 2525
Norfolk, VA 23510
Notices to Company hereunder shall be deemed to have been given on the date of mailing, except notices of change of address, which shall be deemed to have been given when received. Notices to you may be delivered by the Company using the latest address and contact information provided in any Contract previously exchanged or subsequently provided by you during the Term of this Agreement.
QUESTIONS: Please contact us with any questions regarding this Agreement by emailing us at: email@example.com