(Non-Disclosure / Non-Solicitation & Non-Disparagement / Indemnification Agreement)
THIS CONFIDENTIALITY and NON-CURCUMVENT, NON-SOLICITATION and NON-DISPARAGEMENT AGREEMENT (this “Agreement”) is made effective as of January 1st, 2017 or later as the parties engage in a business relationship (the “Effective Date”), by and between MyTownVIP™ and Affiliates (“Company”), and Employee, Vendor, Agent, Affiliates and Client (“EVA”).
ARTICLE 1: RECITALS
1.1 Company is the owner of certain business and proprietary information, to which EVA desires to gain access for the purposes described herein.
1.2 EVA desires to provide services to Company or work for Company in a position that will expose EVA to certain business and proprietary information of Company.
1.3 As a condition to Company employing, engaging, or contracting EVA and permitting access business and proprietary information of Company, and in order to protect Company’s legitimate business interests, Company desires to place reasonable restrictions on EVA’s (i) Ability to disclose and utilize the business and proprietary information accessed by and (ii) Limit the use of information and ideas created and (iii) Ability to solicit Company’s clients, patients, customers, and employees and (iv) Limit any disparagement by either party upon the other party.
1.4 In consideration of the foregoing, Company and EVA have agreed to enter into this Agreement upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants, terms, conditions, and agreements hereafter provided, and other good and valuable consideration, the receipt and sufficiency of which are hereby conclusively acknowledged, the parties hereto, intending to become legally bound, mutually agree as follows:
ARTICLE 2: INCORPORATION OF RECITALS
The parties acknowledge and agree that the recitals are true and correct and are hereby incorporated.
ARTICLE 3: CONFIDENTIALITY and NON-CIRCUMVENT
3.1 Confidentiality. EVA hereby covenants and agrees that they will not Circumvent or disclose any Confidential Information (as defined in Section 3.2) to any unauthorized person, except pursuant to the express written consent of Company, court order, or as required by law.
3.2 Confidential Information. For purposes of this Agreement, “Confidential Information” means any and all information relating to the business of Company that has not been previously disclosed to the general public directly by Company including, without limitation, the following: (i) all confidential, proprietary, and professional information of Company; (ii) all information relating to trade secrets of Company; (iii) all information relating to the property, assets, rights, and interests of Company; (iv) all information relating to Company’s intellectual property; (v) all information relating to Company’s relationships with patients and customers; (vi) all information relating to Company’s goodwill; (vii) all information relating to Company’s specialized training; (viii) all economic and financial information relating to Company; (ix) all information relating to Company’s owners, managers, employees, and agents; (x) all information relating to the identity of Company’s suppliers and manufacturers; (xi) all information relating to Company’s customers, clients, patients, patient lists, physicians, health care providers and staff, treatment methods, prescriptions and medications used, managed care contracts and all other agreements relating to health care services; and (xii) all information relating to Company’s customer lists, product design and development, manufacturing methods, marketing methods, equipment, services, reports, records, data, products, advertising methods, distribution methods, pricing, operational methods and strategies, managerial methods and strategies, business processes, and business ideas.
3.3 Acknowledgement. EVA hereby acknowledges and agrees that the Confidential Information is a unique and valuable asset owned solely by Company.
3.4 Reasonable Safeguards. EVA hereby covenants and agrees that Employee will take all prudent measures to ensure the confidentiality and non-disclosure of all Confidential Information.
3.5 Utilization. EVA hereby covenants and agrees that they will not utilize, copy, market, distribute, transfer, deliver, or sell any materials, services, or programs containing in whole or part any Confidential Information, except as expressly authorized by Company in writing.
3.6 Media Materials. EVA hereby covenants and agrees that Employee’s will not disclose, and will prudently secure against disclosure, any and all written materials, electronic media, and databases containing in whole or part any Confidential Information, including, without limitation, documents, plans, books, memoranda, compilations, abstracts, data storage devices, and magnetic and optical media.
3.7 Liability. EVA hereby acknowledges and agrees that they will be responsible and liable for any unauthorized disclosure of Confidential Information by their employee’s and contact’s or any unauthorized disclosure of Confidential Information resulting from Employee’s failure to adequately safeguard the Confidential Information.
3.8 Confidentiality Term. The covenants and obligations of Employee under this Article 3 shall continue and remain in effect indefinitely.
ARTICLE 4: NON-SOLICITATION AND NON-DISPARAGEMENT
4.1 Definitions. For purposes of this Agreement, except as otherwise expressly provided, the following terms have the following meanings:
(a) “Affiliate” means, with respect to any Person that is an individual, (i) such individual’s spouse (“Family”); (ii) any Person that is directly or indirectly controlled by any one or more members of such individual’s Family; (iii) any Person in which members of such individual’s Family hold (individually or in the aggregate) 1% or more of the outstanding equity interests; or (iv) any Person with respect to which one or more members of such individual’s Family serves as a director, officer, manager, general partner, executor, trustee or in a similar capacity. With respect to any Person that is not an individual, “Affiliate” means (i) any Person that directly or indirectly controls, is directly or indirectly controlled by, or is directly or indirectly under common control with such specified Person; (ii) any Person that holds directly or indirectly 1% or more of the outstanding equity interests in such specified Person; (iii) each Person that serves as a director, officer, manager, general partner, executor, trustee or in a similar capacity of such specified Person; and (iv) any Person with respect to which such specified Person serves as a director, officer, manager, general partner, executor, trustee or in a similar capacity.
(b) “Person” means any individual or any entity, including without limitation, any partnership (whether general or limited), corporation, limited liability company, association, joint stock company, trust, joint venture, and unincorporated organization.
(c) “Protected Term” means a period of 5 years beginning on the Effective Date.
4.2 Non-Solicitation. EVA hereby covenants and agrees that, during the Protected Term, unless expressly permitted in writing by Company (which permission will be at the absolute discretion of Company to give or withhold), EVA’s (and Employee’s Affiliates) will not, nor will any of them cause, direct, induce, or encourage any Person to, directly or indirectly:
(a) Call on, solicit, or provide service to any Person who is a patient or customer of Company, for purposes of diverting such patient or customer to a competing business, induce or encourage (or attempt to induce or encourage) any patient or customer of Company to cease receiving treatment from or conducting business with Company, or in any way interfere with any relationship between Company and any patient or customer of Company; or
(b) Induce or encourage (or attempt to induce or encourage) any other EVA of Company to leave the employ of Company or in any way interfere with the relationship between any such employee and Company; provided, however, that the provisions of this Section 4.2(b) will not apply to general solicitations or advertisements for employment made to the general public through newspapers, trade publications, radio or television broadcasts, or Internet postings; or
(c) Interfere with any relationship between Company and any supplier, vendor, physician, health care provider, service provider, distributor, or manufacturer affiliated with or doing business with Company.
4.3 Non-Disparagement. Neither party hereto, nor any of its employees, officers, managers, members, directors, agents, and affiliates or family members shall make any statement or produce any writing that makes or implies a negative statement about the abilities, integrity, or character of the other party, its employees, officers, managers, members, directors, agents, and affiliates or family members.
4.4 Terms of Agreement. Each covenant and obligation contained in this Agreement shall be interpreted as broadly as permitted by law. EVA hereby acknowledges and agrees that the covenants and obligations made and undertaken by him (or her) in this Article 4 are fair and reasonable with respect to duration, geographic area, and scope of activity, and do not (and will not) prevent EVA from earning a livelihood. EVA understands Company’s need to require EVA to enter into this Agreement to protect the business interests, integrity and assets of Company. EVA acknowledges and agrees that each of the covenants and obligations of EVA under this Agreement are supported by consideration.
4.5 Amendment of Provisions to Comply with Law. EVA hereby covenants that it will not, directly or indirectly, initiate or participate in any action or proceeding or otherwise do or cause to be done any act or thing to cause any such covenant or obligation to be terminated, cancelled, voided, nullified, reduced in scope or effect, or otherwise declared unenforceable. If, however, any provision of this Agreement is finally determined or declared by a court or arbitrator to be illegal, unenforceable, invalid, contrary to public policy, void, or voidable, Employee and Company, acting reasonably and in good faith, will negotiate an equitable adjustment to the provisions of this Agreement with the view to effecting, to the greatest extent possible, the original purpose and intent of this Agreement, including the maximum duration, maximum geographic limitation, and maximum prohibited activity scope and other limitations permitted (but not in excess of the Protected Term). If Employee and Company are unable to reach such a negotiated adjustment after such determination or declaration is made by a court or arbitrator, either party may require such adjustment to be determined in an application to a court in accordance with Section 5.14. In any event, the applicable court or arbitrator is hereby authorized and directed to construe and enforce the applicable provisions of this Agreement as if the duration, geographic scope, or scope of activity in question, or any other part of such provisions, has been more narrowly drawn so as not to be invalid or unenforceable, and the validity and enforceability of the remaining provisions of this Agreement will not be affected by any amendment contemplated by or made pursuant to this Section 4.4.
ARTICLE 5: INDEMNIFICATION
5.1 Injunctive Relief. EVA hereby acknowledges and agrees that (i) the provisions of this Agreement are reasonable and necessary to protect the legitimate business interests of Company, (ii) any violation by EVA of any covenant contained in this Agreement would result in irreparable injury to Company, the exact amount of which would be difficult, if not impossible, to ascertain or estimate, and (iii) the remedies at law for any such violation would not be reasonable or adequate compensation to Company for such a violation. Accordingly, if EVA (or any of Employee’s Affiliates), directly or indirectly, violates any of the covenants or obligations under this Agreement, then, in addition to any other remedy which may be available to Company, at law or in equity, Company will be entitled to specific performance and injunctive relief against EVA, without posting a bond or other security, and without the necessity of proving actual or threatened harm or damage.
5.2 Compliance with Covenants and Obligations. EVA hereby covenants and agrees that it will take any and all action as reasonably necessary to ensure that each and every Affiliate of Company understands and complies with all of the covenants and obligations of this Agreement.
5.3 Full Performance Required. The parties hereby acknowledge and agree that the doctrine of substantial performance has no application under or in respect of this Agreement. Each covenant and obligation contained in this Agreement has been carefully considered and represents the agreed minimum level of performance giving rise to applicable rights and obligations hereunder. The covenants and obligations contained in this Agreement will be construed as separate covenants and obligations, covering their respective subject matters. Each breach of a covenant or obligation set forth in this Agreement will give rise to a separate and independent cause of action.
5.4 Assignment; Successors. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the permissible successors and assigns of the parties. Employee may not assign this Agreement. Company may assign this Agreement, including all of the covenants of Employee contained herein, to any Affiliate of Company, to a successor legal entity (by merger or otherwise), or to any entity acquiring the assets of Company (“Successor”). Employee hereby consents to and ratifies any such assignment and agrees to continue to be bound to the terms of this Agreement, and Employee further agrees that such covenants shall not terminate but will be automatically assigned on the transfer of the ownership interest, business or assets of Company to a Successor, unless terminated by such Successor. In connection with any assignment by Company, the covenants of EVA contained in this Agreement will be deemed to be automatically assigned, and Employee agrees that no separate writing is necessary for such assignment to be effective.
5.5 Entire Agreement; Modification. This Agreement constitutes the entire and final agreement and understanding of the parties to this Agreement with respect to the subject matter of this Agreement, and supersedes and replaces all prior agreements, understandings, commitments, communications, and representations made between or among the parties to this Agreement, whether written or oral, with respect to the subject matter of this Agreement. This Agreement may not be amended, supplemented, or otherwise modified except by a written agreement executed by the parties to this Agreement.
5.6 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy and all of which, when taken together, will be deemed to constitute one and the same agreement. The exchange of copies of this Agreement and of signature pages by facsimile or email transmission will constitute effective execution and delivery of this Agreement as to the parties to this Agreement and may be used in lieu of the original Agreement for all purposes.
5.7 Construction. The headings of articles and sections in this Agreement are provided for convenience only and will not affect the construction or interpretation of any provision hereof. Any reference herein to any gender includes the other gender and the neuter, as applicable. Any reference herein to the singular number includes the plural number and vice versa. The words “hereunder,” “hereof,” “hereto,” and words of similar import will be deemed references to this Agreement as a whole and not to any particular section or other provision hereof. When used in this Agreement, the word “including” (and with correlative meaning “include” and “includes”) means including without limiting the generality of any description preceding such term, and will be deemed to be followed by the words “without limitation” and the word “or” is used in the inclusive sense of “and/or”. This Agreement was negotiated by the parties to this Agreement with the benefit of legal representation, and any rule of construction or interpretation otherwise requiring this Agreement to be construed or interpreted against any party to this Agreement will not apply to any construction or interpretation hereof.
5.8 Waiver of Compliance. Except as otherwise provided in this Agreement, any breach by a party may only be waived by the other party in a written instrument signed by the waiving party. Such waiver shall not operate as a waiver of, or estoppels with respect to, any subsequent or other breach.
5.9 Termination Clause. The Company has a 90-day termination on all services unless otherwise stated. On the 1st of each month the agreement between the parties renews for an additional 90-days. Either party may terminate this agreement with a written 90-day notice. Failure to properly comply and monetarily fulfill the 90-day notice is considered to be a breach of this agreement and all services will be terminated immediately and will cause an acceleration of the remaining payments due in full within 10-days from the breach. Failure to comply with this termination clause will cause harm and damage to the Company that will be assessed and calculated as damages that will include attorney fees to be paid by EVA. If your website is Hosted by MyTownVIP we reserve the right to shut down your website due to non-payment. Failure to pay within 30 days from payment due date is considered non-payment.
5.10 Attorneys’ Fees. In the event of any litigation brought to enforce the terms and covenants of this Agreement, the prevailing party shall have the right to recover all costs, expenses, and reasonable attorneys’ fees incurred by the prevailing party, including, without limitation, those incurred through any trial, appeal, or federal bankruptcy or reorganization proceeding or in connection with enforcing or collecting upon any final judgment.
5.11 Indemnification. To the extent permitted by law, Employee will indemnify Company and Company’s owners, managers, employees, and agents (collectively the “Indemnitee”) for any and all damages, liabilities, costs, and expenses (including, but not limited to, attorneys’ fees) reasonably incurred by or awarded against Indemnitee which relate to a claim or proceeding against Indemnitee resulting from Employee’s breach of this Agreement. This provision shall survive the termination of this Agreement.
5.12 Severability. If any provision or portion of this Agreement becomes invalid or unenforceable for any reason, there will be deemed to be made such minor changes in such provision or portion as are necessary to make it valid or enforceable. The invalidity or unenforceability of any provision or portion hereof shall not affect the validity or enforceability of the other provisions or portions hereof.
5.13 Enforceability. This Agreement is enforceable by Company, any third-party beneficiary of this Agreement, and any permitted assignees and successors of Company, pursuant to the terms of this Agreement.
5.14 Notice. All notices, requests, demands and other communications hereunder shall be given in writing and shall be: (i) personally delivered; (ii) sent by telecopier, facsimile transmission, email, or other electronic means of transmitting written documents; or (iii) sent to the parties at their respective addresses by registered or certified U.S. mail, return receipt requested, and postage prepaid, or by private overnight mail courier service. The respective addresses to be used for all such notices, demands or requests are incorporated herein below, unless the recipient furnishes another address in writing to the other parties. If personally delivered, such communication shall be deemed delivered upon actual receipt; if electronically transmitted pursuant to this paragraph, such communication shall be deemed delivered the next business day after transmission (and sender shall bear the burden of proof of delivery); if sent by overnight courier pursuant to this paragraph, such communication shall be deemed delivered upon receipt; and if sent by U.S. mail pursuant to this paragraph, such communication shall be deemed delivered as of the date of delivery indicated on the receipt issued by the relevant postal service, or, if the addressee fails or refuses to accept delivery, as of the date of such failure or refusal. Any party to this Agreement may change its address for the purposes of this Agreement by giving notice thereof in accordance with this Section 5.13.
5.15 Governing Law and Jurisdiction. This Agreement shall be governed by the internal laws of the State of Florida (without regard to conflict of laws or similar concepts). Each party to this Agreement hereby irrevocably:
(a) Submits to the exclusive jurisdiction of the Twelfth Judicial Circuit in and for Sarasota County, Florida, or the United States District Court for the Middle District of Florida, in any action or proceeding arising out of, or relating to, this Agreement, in relations between the parties to this Agreement, and any matter, action, or transaction described in this Agreement, whether in contract, tort, or otherwise;
(b) Agrees that such courts shall have exclusive jurisdiction over such actions or proceedings;
(c) Waives the defense that Florida is an inconvenient forum to the maintenance and continuation of such action or proceeding;
(d) Consents to the service of any and all process in any such action or proceeding by the mailing of copies (certified mail, return receipt requested, and postage prepaid) of such process to them at their addresses specified below; and
(e) Agrees that a final and non-appealable judgment rendered by a court of competent jurisdiction in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
In the event that an action or proceeding is initiated in one of the courts referenced in Section 5.14(a) and is pending, the parties agree, for the convenience of the parties and subject to any limitations on subject matter jurisdiction of the court, to initiate any counterclaims or related actions in the same proceeding (as opposed to a separate proceeding in any of the other courts specified above).
6. This policy may be updated at any time, for any reason.