This Agent Retainer Agreement (this "Agreement") is made effective as of the date of this agent registration and subsequent acceptance (the "Effective Date"), by and between the registering agent (the "Agent"), and Mainstay Leverage LLC, a Texas limited liability company (the "Company").
Non-Disclosure / Non-Solicitation Provisions
The Agent has requested and the Company agrees that the Company will protect the confidential material and information which may be disclosed between the Agent and the Company. Therefore, the parties agree as follows:
I. CONFIDENTIAL INFORMATION
The term "Confidential Information" means any information or material which is proprietary to the Agent, whether or not owned or developed by the Agent, which is not generally known other than by the Agent, and which the Company may obtain through any direct or indirect contact with the Agent. Regardless of whether specifically identified as confidential or proprietary, Confidential Information shall include any information provided by the Agent concerning the business, technology, and information of the Agent and any third party with which the Agent deals, including, without limitation, business records and plans, trade secrets, technical data, product ideas, contracts, financial information, pricing structure, discounts, computer programs and listings, source code and/or object code, copyrights and intellectual property, inventions, sales leads, strategic alliances, partners, and customer and client lists. The nature of the information and the manner of disclosure are such that a reasonable person would understand it to be confidential.
A. "Confidential Information" does not include:
- matters of public knowledge that result from disclosure by the Agent;
- information rightfully received by the Company from a third party without a duty of confidentiality;
- information independently developed by the Company;
- information disclosed by operation of law;
- information disclosed by the Company with the prior written consent of the Agent; and any other information that both parties agree in writing is not confidential.
Customer data, client data, business practices, lead generation sources, access codes for online document storage, and other highly confidential information may be disclosed to determine ability to assist the registering agent with real estate agent licensed transaction coordinator-related services in the states of Texas.
II. PROTECTION OF CONFIDENTIAL INFORMATION
The Company understands and acknowledges that the Confidential Information has been developed or obtained by the Agent by the investment of significant time, effort, and expense, and that the Confidential Information is a valuable, special, and unique asset of the Agent which provides the Agent with a significant competitive advantage and needs to be protected from improper disclosure. In consideration for the receipt by the Company of the Confidential Information, the Company agrees as follows:
A. No Disclosure. The Company will hold the Confidential Information in confidence and will not disclose the Confidential Information to any person or entity without the prior written consent of the Agent.
B. No Copying/Modifying. The Company will not copy or modify any Confidential
Information without the prior written consent of the Agent.
C. Unauthorized Use. The Company shall promptly advise the Agent if the Company
becomes aware of any possible unauthorized disclosure or use of the Confidential Information.
D. Application to Employees. The Company shall not disclose any Confidential Information to any employees of the Company, except those employees who are required to have the Confidential Information in order to perform their job duties in connection with the limited purposes of this Agreement. Each permitted employee to whom Confidential Information is disclosed shall sign a non-disclosure agreement substantially the same as this Agreement at the request of the Agent.
III. UNAUTHORIZED DISCLOSURE OF INFORMATION - INJUNCTION
If it appears that the Company has disclosed (or has threatened to disclose) Confidential Information in violation of this Agreement, the Agent shall be entitled to an injunction to restrain the Company from disclosing the Confidential Information in whole or in part. The Agent shall not be prohibited by this provision from pursuing other remedies, including a claim for losses and damages.
IV. NON-CIRCUMVENTION
For a period of AD INFINITUM after the end of the term of this Agreement, the Company will not attempt to do business with, or otherwise solicit any business contacts found or otherwise referred by Agent to Company for the purpose of circumventing, the result of which shall be to prevent the Agent from realizing or recognizing a profit, fees, or otherwise, without the specific written approval of the Agent. If such circumvention shall occur the Agent shall be entitled to any commissions due pursuant to this Agreement or relating to such transaction.
V. LIMITED LICENSE TO USE
The Company shall not acquire any intellectual property rights under this Agreement except the limited right to use as set forth above. The Company acknowledges that, as between the Agent and the Company, the Confidential Information and all related copyrights and other intellectual property rights, are (and at all times will be) the property of the Agent, even if suggestions, comments, and/or ideas made by the Company are incorporated into the Confidential Information or related materials during the period of this Agreement.
VI.INDEMNITY
Each party agrees to defend, indemnify, and hold harmless the other party and its officers, directors, agents, affiliates, distributors, representatives, and employees from any and all third-party claims, demands, liabilities, costs, and expenses, including reasonable attorney's fees, costs and expenses resulting from the indemnifying party's material breach of any duty, representation, or warranty under this Agreement.
VII. ATTORNEY'S FEES
In any legal action between the parties concerning this Agreement, the prevailing party shall be entitled to recover reasonable attorney's fees and costs.
VIII. TERM
The obligations of this Non-Disclosure/Non-Solicitation Provisions shall survive AD INFINITUM from the Effective Date or until the Agent sends the Company written notice releasing the Company from this Agreement. After that, the Company must continue to protect the Confidential Information that was received during the term of this Agreement from unauthorized use or disclosure for an additional AD INFINITUM.
TERMS OF SERVICE
The parties agree to these certain Terms of Service regarding the services being rendered under this Agreement. Therefore, the parties agree as follows:
IX. INDEPENDENT CONTRACTOR
Company is acting as an independent contractor. The method and manner for performance of the services under this Agreement shall be under Company’s control.
X. MUTUAL REPRESENTATIONS
The parties each represent and warrant that it has the authority to enter into this Agreement and that the execution and delivery of this Agreement does not conflict in any material respect with or constitute a material breach under the terms of any agreements to which it is a party.
XI. COMPANY INFORMATION
Agent recognizes that Company has and will have information regarding matters such as trade secrets, customer lists, and other unique and vital information (collectively, “Proprietary Information"). Company may disclose Proprietary Information to Agent. Agent will not at any time or in any manner, either directly or indirectly, divulge, disclose, or communicate any Proprietary Information to any third party, without the prior written consent of Company. Agent will protect this Proprietary Information and treat it as strictly confidential. Agent acknowledges that use or disclosure of any Proprietary Information in a manner inconsistent with this Agreement will give rise to irreparable injury for which damages would not be an adequate remedy. Accordingly, in addition to any other legal remedies which may be available at law or in equity, Company shall be entitled to equitable or injunctive relief against the unauthorized use or disclosure of Proprietary Information.
XII. LIMITATION OF LIABILITY
IN NO EVENT SHALL COMPNAY BE LIABLE TO AGENT OR TO ANY THIRD-PARTY FOR ANY LOSS OF USE, REVENUE, PROFIT, LOSS OF DATA, OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL COMPANY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO COMPANY UNDER THE PARTICULAR FILE IN WHICH SAID LIABILITY WAS CLAIMED TO HAVE ARISEN.
XIII. NON-DISPARAGEMENT
The parties acknowledge that customer reviews may be used for improper purposes such as to extract unjustified and unwarranted advantages, benefits, and concessions. Accordingly, Agent covenants and agrees to never disseminate or publish, orally or in writing, a review relating to the Company, this Agreement, or the herein services that is unlawful, defamatory, libelous, slanderous, harassing, abusive, obscene, or is clearly false or misleading.
XIV. FORCE MAJEURE
Neither party hereto shall be required to perform any term, condition, or covenant of this Agreement as long as such performance is delayed or prevented by (i) hurricane, tornado, adverse weather conditions, (ii) war, civil commotion, civil riots, acts of terrorism, (iii) strikes, labor troubles, lockouts, (iv) material or labor restrictions imposed by any governmental authority, (v) by reason of any law of the United States of America, the State of Texas, or municipality, any political subdivision thereof and any agency, department, commission, board, bureau or instrumentality of any of the foregoing, or any quasi-governmental authority, now existing or hereafter created, or (vi) by pandemics, epidemics, or quarantines.
XV. EARNED FEES
All late payments beyond five (5) days shall bear interest at the lesser of (a) the rate of 0.5% per month or (b) the highest rate permissible under applicable law, calculated daily and compounded monthly. Agent shall also reimburse Company for all costs incurred in collecting any late payments, including, without limitation, attorneys; fees. Agent must make payment in full of any earned fees due on services rendered by Company prior to Agent terminating this Agreement.
XVI. GENERAL PROVISIONS
Any amendments must be in writing and signed by both parties. This Agreement shall be construed under the laws of the State of Texas. This Agreement shall not be assignable by either party. Neither party may delegate its duties under this Agreement without the prior written consent of the other party. The confidentiality provisions of this Agreement shall remain in full force and effect at all times in accordance with the term of this Agreement. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the remaining portions of this Agreement shall remain in full force and effect and construed so as to best effectuate the original intent and purpose of this Agreement.