WITNESSETH:
WHEREAS, Employer is a Missouri corporation providing various transportation related services in the Columbia, MO, St. Louis, MO, Kansas City, Mo, Wichita, KS, Memphis, TN, Louisville, KY. Lexington. KY. Novi, MI, Chesterfield, MI. Lansing, MI. Kentwood, MI. Westland, MI, Toledo, OH, South Bend, IN, Fort Wayne, IN, Raleigh, NC & Chicago, IL metropolitan areas and within a 100 mile radius of same; and
WHEREAS, the conduct of Employer's business entails disclosure by Employer of confidential information to its employees, and discovery of additional such information by its employees, including confidential and proprietary information concerning Employer's customers, trade secrets and systems; and
WHEREAS. if such confidential information is improperly used by Contractor, such use will result in material and irreparable harm to Employer, which harm. is not susceptible of precise proof; and
WHEREAS, Contractor is contracted by Employer is an important and sensitive position which involves maintaining and developing the good will of Employer with its customers and prospective customers and necessarily entails the development of strong good will between Contractor and Employer's customers and prospective customers, which good will, if improperly used by Contactor or used by Contractor in Contractor's own behalf as opposed to Employer's own behalf, will result in material and irreparable harm to Employer, which harm is not susceptible of precise proof; and
WHEREAS, Contractor is fully aware of the foregoing factors, and understands the reasons for theterms and conditions set forth in this Agreement, and further agrees that they are reasonable for the protection of the interests of Employer;
NOW THEREFORE, in consideration of Contractors continued employment by Employer, Contractor hereby agrees as follows:
1. DISCLOSURE OF INFORMATION
Contractor acknowledges that, in and as a result of his employment with Employer. he will be making use of, acquiring and/or adding to confidential information of special and unique nature and value relating to such matters as Employer's trade secrets, systems, procedures, manuals, reports and list of clients and customers. All records, materials and information acquired or developed by Contractor in the course of employment are confidential and are and shall remain the exclusive property of Employer. As a material inducement to Employer to contract Contractor, enter into this Agreement and to disclose such confidential information to Contractor, Contractor covenants and agrees that he shall not. at any time directly or indirectly. divulge or disclose, for any purpose obtained by or disclosed to him by Employer to any person other than Employer, except as the agent of Employer in the furtherance of Employer's business and with Employer's
knowledge and consent. In the event of a breach or threatened breach by Contractor of any of the provisions of this Agreement, Employer, in addition to and not in limitation of any other rights, remedies or damages available to Employer at law or in equity. shall be entitled to a permanent injunction in order to prevent or to restrain any such breach by Contractor, or by Contractors partners, agents, representatives, servants, employers. employees and/or any and all persons directly or indirectly acting for or with him.
2. RESTRICTIVE COVENANT
During the term of Contractors employment by the company for a period of twenty four (24) months after the termination thereof, Contractor will not, directly or indirectly, whether as principal. agent, fiduciary, proprietary. partner joint venture, stockholder, director. officer. employe, consultant, or in any other capacity:
- solicit, divert, take away or attempt to solicit, divert or take away any person or entity that is a customer of Employer during the term of Contractors employment: or
- engage or have any financial interest in any transportation related business anywhere within a radius of 100 miles from any location being serviced by Rapid Response, Inc. other than asan agent and employee of Employer and in furtherance of Employer's business; or
- hire or engage any person who is or has been employed by Employer or hired by Employer as anindependent contractor during such period, nor will Contractor suggest or assist in or influence the engagement or hiring or any such person by any competitor of Employer's, nor will Contractor in any way induce any employee or independent contract to sever his or her relationship with Employer.
Contractor agrees that this covenant is reasonable and that it will not prevent Contractor from earning a livelihood.
3. RECORDS OF EMPLOYER
Upon the termination of the employment by Employer for any reason, including but not limitedto terminations, resignation, disability, or death of Contractor, Contractor and his legal representatives shall immediately turn over and deliver to Employer all property of Employer, including. but not limited to. all records, materials and information: all credit cards, supplies furnished by Employer, any orders, invoices, bills of lading, warehouse receipts or drafts received by Contractor on behalf of Employer; and Contractor shall make an accounting to Employer for all money received by him in which Employer has any interest.
4. NONEXCLUSIVITY OF RIGHTS AND REMEDIES
The rights and remedies provided in this Agreement shall be nonexclusive and noncumulative, and shall be in addition to any rights and remedies otherwise available to Employer. Such other rights and remedies shall include, but not be limited to, those arising out of fiduciary or confidential relations, or Contractors capacity as an employee, officer or director of Employer.
5. ENFORCEABILITY
If, at any time the provisions of this Agreement shall be deemed to be invalid or unenforceable or prohibited by the laws of the state or place where they are to be performed. this Agreement shall be deemed immediately amended to include only such provisions as shall be determined to be reasonable and enforceable by the Court having jurisdiction over this Agreement; and Employer and Contractor have expressly agreed that this Agreement, so amended. shall be valid and binding as though any invalid or unenforceable provision had not been included herein.
6. GENERAL PROVISIONS
6.1 Amendment or Modifications. No change or modification of this Agreement shall be valid unless the same is in writing and signed by all parties hereto. No waiver of any provision of this Agreement shall be valid unless in writing and signed by the party against whom it is meant to be enforced. The failure of any party at any time to insist upon strict performance of any condition. promise. agreement or understanding set forth herein shall not be construed as a waiver or relinquishment of the right to insist upon strict performance of the same condition, promise, agreement, or understanding at a future time.
6.2 Notices. All notice provided for by this Agreement shall be made in writing (1) either by actual delivery or to the last known address of the party entitled thereto, registered or certified mail. return receipt requested. Any notice, which is required to be made within a stated period, shall be considered timely if mailed before midnight of the last day of such period.
6.3 Severability. Except as provided in paragraph 4, if any provision of this Agreement or the applications thereof to any person or circumstance shall be invalid or unenforceable to any extent, the remainder of this Agreement and the application of such provisions to other persons or circumstances shall not be affected thereby and shall be enforced to the greatest extent permitted by law.
6.4 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, executors, administrators, personal representatives, successors and permitted assigns. This Agreement is personal in nature with respect to Employee and may not be assigned by Employee without Employer's prior written consent.
6.5 Governing Law. This Agreement shall be governed by the laws of the State of Missouri notwithstanding the fact that one or more of the parties to this Agreement may be or become a resident or citizen of a different state.
6.6 Entire Agreement. This Agreement sets forth all of the promises, agreements, conditions, understandings, warranties or representations; oral or written; express or implied among them with respect to the subject of this Agreement other than as set forth herein. This Agreement is, and is intended by the parties to be, an integration of any and all prior agreements or understandings, oral or written, with respect to the subject of this Agreement.
7. ACKNOWLEDGFMFNT RY EMPLOYEE
Contractor acknowledges warrants and represents that he/she has read this Contract in its entirety, folly understands the same, and has received a copy thereof.
8. GENDER TERMS
Throughout this Agreement all gender-specific words shall be accepted by all parties as gender- neutral in their meaning. IN WITNESS WHEREOF. the parties have caused this Agreement to be executed in counterparts on the date first above written.