COMPENSATION. Subject to the terms and conditions of this Agreement, during the Employment Period, Employee shall be compensated for Employee’s services as follows:
(a) Commissions. Company shall pay Employee a straight commission for completed sales that were directly solicited by the Employee, subject to the rates and terms set forth in the Company’s Commission Plan, then in effect as may be amended from time to time. A copy of the Company’s current Commission Plan is attached to this Agreement as Exhibit A. The Company, in its sole discretion, reserves the right to change, revise, modify, or update the Commission Plan with or without prior to written notice to Employee. Please note that if the employee is terminated, resigns, or vacates their employment the Company reserves the right to reassign all current jobs with all past, current, or future commissions are vacated.
(b) Exemption From Minimum Wage. Employee’s position as a sales representative is classified as an “exempt” position under the outside sales exemption to the FLSA. Representative understands and agrees that based on this exemption, Representative is not entitled to minimum wage or overtime for hours worked, instead Employee’s sole compensation shall be a straight commission; provided, however, that Employee will be paid an hourly rate based on the applicable federal, state, or local minimum wage for the initial training period only. Training shall not exceed twenty (20) hours, which will include both in-office training and in-field training. Following the completion of training, Employee’s sole compensation will be on a straight commission basis.
(c) Tax Withholdings. All sums payable to the Representative under this Agreement shall be reduced by all federal, state, local and other withholdings and similar taxes and payments required by applicable law.
AT WILL. Employee agrees and understands he/she is an employee “at will,” and nothing herein shall be interpreted to mean that the Employee is anything other than an employee at will. Nothing in this Agreement, or in Company’s policies, actions, or this Agreement shall be construed to alter the at will nature of Employee’s status with Company. The Employee’s employment may be terminated by either Party at any time, with or without cause, for any reason or for no reason, and with or without prior notice. In addition, any employment hereunder is contingent on Employee’s satisfactory completion of a background check. If Employee begins working for Company prior to the completion of the pre-employment screen, Employee understands and agrees that Employee’s employment is subject to termination based on the results of the pre-employment screening.
NO TERM. There shall be no set term of Employee’s employment. Employee’s employment shall commence on the Effective Date and continue until this Agreement terminated by either Party, for any reason whatsoever, this being an “at will” employment agreement. The period during which the Employee is employed pursuant to this Agreement shall be referred to as the “Employment Period.”
RESPONSIBILITIES AND DUTIES.
(a) Duties. Employee’s job responsibilities shall include (but shall not be limited to) the following (the “Services”): Generating sales leads by utilizing cold calling and door knocking techniques to secure new business; running sales leads provided by the Company; performing damage inspections for interested property owners; providing estimates for cash deals to customer(s); serving as a technical advisor to homeowners by discussing extent of damage and probability of repair v. replacement; obtaining signed Contingency Agreements from property owners; acting as a technical advisor for insurance carriers and homeowners, attending a scheduled (by the insurance carrier) meeting with assigned insurance adjuster, and discussing scope of work with adjuster; obtaining signed roofing contract; collecting all insurance checks (with all necessary endorsements), and all other required paperwork from homeowner and delivering all payments and paperwork to local branch office; following-up with homeowner when job is complete to ensure satisfaction and obtain Certificate of Completion, final payment, and any additional payment and/or required documentation; attending weekly sales meetings and being active on Group Me.
(b) Performance of Duties; Modification. Employee understands and agrees that the precise duties, responsibilities and authority of the Employee, may be expanded, limited or modified, from time to time, at the sole discretion of the Company. Employee represents and warrants that during the Employment Period, Employee will faithfully, competently, professionally, ethically and lawfully comply with all reasonable instructions, directions, requests, rules, policies, and regulations made or issued by the Company, and will perform all job duties conscientiously and in a timely manner in and to the best of the Employee’s abilities. Employee specifically agrees that Employee will not cause any intentional damage to any property, real or otherwise, for the purpose of obtaining an order or otherwise engaging in the Company’s Business. Employee agrees to indemnify and hold Company harmless from any and all claims, actions, suits, costs, expenses (including, without limitation, reasonable attorneys' fees) or damages which may arise as a result of breach of this provision or performance of services hereunder in an illegal, or fraudulent manner.
(c) Prohibited Actions. Employee agrees not to engage, or attempt to engage, directly or indirectly, in any of the activities listed in this sub-section during the Employment Period. Employee understands and agrees that engaging in any of the prohibited activities listed below, will result in immediate termination of employment:
(i) Performing or assisting with the performance of any type of roofing work, installation work, repairs, or emergency repairs. Employee is paid to sell roofs, not engage in labor;
(ii) Filing an insurance claim on behalf of any customer or homeowner;
(iii) Acting in the capacity of an insurance adjuster, including but not limited to, discussing or negotiating pricing with insurance carriers, or otherwise effecting a settlement of an insurance claim; or
(iv) Vandalizing any customer or homeowner’s property to effect an insurance settlement.
(a) Payments from Customers. Any form of payment received from a Customer by Employee must be turned into the Branch Office identified in Section 1 within 24 hours. Failure to do so constitutes grounds for the Company to terminate Employee’s employment. If Employee fails to deliver funds that are accepted from a Customer to the Branch Office, the Employee will be fully liable for the payment, collection costs (if incurred) as well as court costs and attorney’s fees if Company has to pursue Employee to obtain payment. Company also has the right to notify law enforcement if funds are accepted by Employee and not immediately turned into the Branch Office.
(b) Duty of Loyalty & Outside Employment. Employee shall devote all of Employee’s time, attention, and best efforts solely to the Company’s Business and interests and agrees not to usurp, for personal gain, any opportunities in the Company’s line of business. During the Employment Period, the Employee shall not engage, directly or indirectly, in any other business activity, regardless of whether it is pursued for gain or profit; provided, however, nothing in this Section shall be deemed to prevent or to limit the right of the Employee to invest Employee’s money in real estate or in other companies if such investment does not interfere with Employee’s obligations to Company under this Agreement.
(c) Cell Phone Usage. Employee understands and agrees that the Company does not permit its employees to use, in any way, their personal or work communications device while in or operating any type of vehicle during the course and scope of their employment with the Company.
CONFIDENTIALITY.
(a) Definitions. For purposes of this Agreement, the following terms shall have the following meanings:
(i) “Confidential Information” means any information acquired by Employee, during or as a result of past, present, or future employment by Company, which is not available to the general public, and which relates to the business of Company, or to that of Company’s customers, suppliers, distributors, sub-contractors, vendors, marketing representatives, employees, licensees, subsidiaries or affiliated companies, including, without limitation, Company Intellectual Property, information related to the identity of Company’s customers, potential customers; customer lists, customer contacts, customer requirements and preferences; Company’s contracts with customers and suppliers; costs or prices and other financial information; credit terms; methods of conducting business; product development; formulas; systems; computer software; personnel data; marketing or other business plans; proprietary business model methods and concepts, including materials and information learned by Employee during training; processes; know- how; trade secrets; designs; inventions; intellectual property; source code; object code; graphics; specification documents; business practices and the like; and improvements or modifications to any of the foregoing.
(ii) “Inventions” shall mean discoveries, developments, concepts, designs, ideas, know-how, improvements, inventions, trade secrets and/or original works of authorship, whether or not patentable, copyrightable or otherwise legally protectable. This definition includes but is not limited to, any new product, machine, article of manufacture, method, procedure, process, technique, use, equipment, device, apparatus, system, compound, formulation, composition of matter, design or configuration of any kind, or any improvement thereon.
(iii) “Company Intellectual Property” means all Inventions and developments, of any kind, which are made, conceived, invented, created, written, developed, furnished, produced or discovered by Employee, individually or jointly with others, while Employee is employed by Company that relate in any manner whatsoever to the business of Company or its affiliates or that are developed by Employee individually or jointly with others, wholly or partially, on the premises of Company or its affiliates or either of their customers or with the use of the property of Company or its affiliates.
(a) Protection of Company’s Confidential Information. Employee agrees and acknowledges that, by virtue of Employee’s employment with Company, Employee will acquire or has acquired knowledge of Confidential Information. Employee agrees that at all times during his employment with the Company and following the termination of employment with Company for any reason, Employee will, in perpetuity, keep confidential and not: (i) divulge any of the Confidential Information; (ii) allow any of the Confidential Information to be divulged to anyone through a lack of reasonable care on the part of Employee, (iii) use any of the Confidential Information, except to fulfill Employee’s obligations to Company; or (iv) otherwise appropriate for Employee’s own benefit or for the benefit of others any of the Confidential Information. Employee agrees that all Confidential Information shall be contractually subject to protection under this Agreement whether such information would otherwise be regarded or legally considered “confidential” and without regard to whether such information constitutes a trade secret under applicable law or is separately protectable at law or in equity as a trade secret.
(b) Exceptions. Employee’s obligations with respect to any portion of the Confidential Information shall not apply to information that: (i) can be documented as being or becoming generally available to the public, other than as a result of a disclosure by Employee; (ii) can be documented as rightfully being within Employee’s possession prior to its being furnished to Employee by or on behalf of Company; (iii) can be documented as having been disclosed to Employee by another party who is under no obligation of confidentiality to Company; or (iv) is required to be disclosed by applicable law, provided that notice of such required disclosure is provided to Company at least ten (10) business days before such required disclosure is made so that Company may seek a protective order or other appropriate remedy (and, in the event that such protective order or other remedy is not obtained, Employee will furnish only that portion of the information that legal counsel has advised Employee is legally required to be disclosed).
(c) Possible Immunity. In addition to the exceptions set forth in Section 6(c), nothing in this Agreement prohibits Employee from making any permitted disclosure of a trade secret of Company under the Federal Defend Trade Secrets Act of 2016, 18 U.S.C. § 1836, et seq. Specifically, Employee will not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that: (a) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and
(ii) solely for the purpose of reporting or investigating a suspected violation of law; or (b) is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding. Further, an individual who files a lawsuit for retaliation by Company for reporting a suspected violation of law may disclose the Company’s trade secrets to the attorney and use the trade secret information in the court proceeding if the individual: (a) files any document containing the trade secret under seal; and (b) does not disclose the trade secret, except pursuant to court order.
2. NON-SOLICITATION. Employee agrees that during the Employment Period, and for a period of twelve (12) months immediately following the termination of Employee’s employment with Company for any reason (“Restricted Period”), Employee shall not, directly or indirectly, individually, or on behalf of any other person or entity:
(a) solicit or recruit, or attempt to solicit, or recruit any employee or agent of Company (including any of its affiliates or subsidiaries or parents), or any employee or agent who was employed by the Company at any time during the twelve (12) month period preceding the last day of Employee’s employment, with whom Employee worked or about whom Employee had access to Confidential Information (collectively “Covered Employee”),or induce any Covered Employee to terminate such employee or agent’s employment or association with Company or the applicable affiliate; provided, however, that general solicitation of employees through newspaper classified advertisements and/or similar means not specifically directed to Company, its affiliates, or their respective employees shall not be deemed a violation of this provision;
(b) contact, solicit, or meet with, or attempt to contact, solicit, or meet with any Covered Customer for the purpose of providing products or services of the same kind as provided by the Company during Employee’s employment by the Company. For the purposes of this Agreement, “Covered Customer,” means customer or prospective customer that Employee dealt with on behalf of the Company, whose dealings with the Company were coordinated or supervised by Employee, about whom Employee obtained Confidential Information in the ordinary course of business as a result of Employee’s association with the Company, or with whom Employee had material contact with in furtherance of the Company’s business during the twenty-four (24) month period immediately preceding the date of Employee’s termination of employment; or
(c) induce any customer, supplier, or other person or entity that then has, or has had any relationship, contractual or otherwise, with Company during the twenty four (24) month period immediately preceding the date of Employee’s termination of employment, to terminate or otherwise alter such relationship, or in any other manner interfere with, or attempt to interfere with, such relationship, or interfere with any prospective business relationship or advantage which the Company has with any person or entity.
3. NON-COMPETITION. During the Restricted Period, Employee shall not, directly or indirectly by assisting others, individually, or on behalf of any other person or entity, engage in, have an equity or profit interest in, or render any services (whether as an employee, owner, advisor, consultant, contractor, agent, partner, volunteer, intern, or otherwise) to any person or entity engaged in the Company’s Business within the Employee’s Territory. For the purposes of this Agreement, the term “Company’s Business” means the roofing and home improvement business, and any future line of business of the Company, which may be invented, developed, or sold during Employee’s employment with the Company. The Employee’s Territory shall be defined as a seventy-five (75) mile radius from the Branch Office identified in Section 1 and anywhere else where the Employee regularly performs the Company’s Business as of the date of Employee’s separation from employment with the Company for any reason (“Restricted Area”). Nothing herein shall prohibit Employee from owning not more than two percent (2%) of the outstanding stock of any class of corporation that is publicly traded so long as Employee is merely a passive investor and has no active participation in the business of such corporation.
4. REASONABLENESS OF RESTRICTIVE COVENANTS. Employee stipulates and agrees that the restrictive covenants contained in Sections 6 – 8 are fair and reasonable as to geographical area defined as the Employee’s Territory, time, and line of business, are supported by valid consideration, and are reasonably necessary to protect legitimate business interests of the Company including trade secrets, other valuable confidential or business information, substantial relationships with vendors, suppliers, employees, existing or prospective customers, and the goodwill associated with the trade names of the Company, its ongoing business, and the trade areas in which it operates. because, among other things: (i) the Company is engaged in a highly competitive business; (ii) the Employee will have unique access to, and will continue to have access to, the trade secrets and know-how of the Company; and (iii) in the event the Employee’s employment with the Company ends, Employee will be able to obtain suitable and satisfactory employment without violating this Agreement. Employee will not challenge the reasonableness of the restrictions contained in this Agreement and agrees all such restrictions are reasonable.
5. NON-DISPARAGEMENT. During the Employment Term and thereafter, Employee shall not, at any time or in any manner, take any actions or make any statements, written or oral, that denigrate, defame, or disparage the goodwill or reputation of the Company or any of its officers, directors, employees, or agents, or that would cast the Company in a negative light. Employee understands and agrees that nothing in this Agreement interferes with or in any way, restrict or impede any right any employee may have to engage in activity protected by Section 7 of the National Labor Relations Act without fear of retaliation, and/or any state or local laws protecting, for example, an employee’s right to discuss wages, terms and conditions of employment, etc.
6. REMEDIES. Employee agrees that any breach of the provisions of this Agreement would cause substantial and irreparable harm, not readily ascertainable or compensable in terms of money, to Company for which remedies at law would be inadequate and that, in addition to any other remedy to which the Company may be entitled at law or in equity, the Company shall be entitled to specific performance and/or temporary injunctive or other equitable relief in the event the Employee violates or threatens to violate the provisions of this Agreement (without posting a bond or other security and without proof of monetary damages or an inadequate remedy at law). Nothing contained herein shall be construed as prohibiting the Company from pursuing, in addition, any other remedies available to the Company for such breach or threatened breach. In addition, in the event of a breach or violation by the Employee of Section 7 or 8: (i) the Restricted Period shall be tolled until the activity breaching Section 7 or 8 has been stopped, and (ii) the Company shall be entitled to reimbursement of all costs and expenses incurred in enforcing the Company’s obligations hereunder or otherwise defending or prosecuting any mediation, arbitration or litigation arising out of the Employee’s obligations, including premiums for bonds, fees for experts and investigators, and legal fees, costs and expenses incurred before a lawsuit is filed and in trial, appellate, bankruptcy and judgment- execution proceedings. The Employee acknowledges and agrees that the Company may exercise any of the foregoing remedies concurrently, independently or successively.
7. LIQUIDATED DAMAGES. The harm accruing to the Company by virtue of the Employee’s breach of the restrictive covenants set out in Section 6 through 8, or non-disparagement provision in Section 10 cannot be calculated at this time. For this reason, the Employee and the Company mutually agree that in the event of the Employee’s breach of Sections 6 through 8, or Section 10, the Company shall be entitled to recover $15,000.00 from Employee for each breach of any of these sections, as liquidated damages and not as a penalty. Such liquidated damages will be immediately payable to Company upon notification to Employee of such breach. Such liquidated damages shall not be exclusive of any other rights Company may have to legal damages as a result of Employee’s breach of one of these provisions or any other provision of this Agreement. Employee agrees that this sum represents a fair and reasonable estimate of the actual damages suffered by Company as a result of any such breach, and is not punitive in any way.
8. NO CONFLICTS. Employee has represented and hereby represents that the execution, delivery and performance by Employee of this Agreement does not conflict with or result in a violation or breach of any contract, agreement, or understanding, whether oral or written, to which the Employee is a party or of which the Employee is or should be aware and that there are no restrictions, covenants, agreements or limitations on Employee’s right or ability to enter into and perform the terms of this Agreement. Employee will not disclose and has not disclosed to the Company and will not use, or induce the Company to use, any trade secrets or confidential information of others. Employee represents and warrants that Employee has returned all property, trade secrets and confidential information belonging to others and is not in possession of any such property, confidential information or trade secrets. Employee agrees to indemnify and save the Company and its affiliates harmless from any liability, cost or expense, including attorney’s fees, based upon or arising out of any such restrictions, covenants, agreements, or limitations that may be found to exist. For purposes of this Agreement, “affiliate” shall include any person or entity directly or indirectly controlled by or controlling the Company.
9. RETURN OF PROPERTY. Employee agrees that all documents, records, data, equipment and physical property, whether or not pertaining to Confidential Information, which are furnished to Employee by the Company or its customers or that are produced by Employee in connection with Employee’s employment will be and remain the sole property of the Company. Upon the expiration or termination of the Employee’s employment with the Company for any reason, or at any time upon the request of the Company, Employee shall surrender and promptly deliver to Company any and all property of Company in Employee’s possession or under Employee’s control, including, without limitation, Company equipment, Confidential Information, information, data, emails, files, records, passwords, usernames, forms, and other documents supplied to or created by Employee in connection with his employment (including all copies of the foregoing) regardless of the medium or format in which any such information and materials may be stored. Any such information or materials contained in any electronic or digital medium of storage on any computer or computing device owned or controlled by Employee, including but not limited to, iCloud, Google Drive, Dropbox, OneDrive, and any and all other cloud storage or file-sharing services, will be promptly and permanently removed and deleted from such computer, device, or service immediately following the termination of Employee’s employment and Employee agrees to certify such removal to Company in writing upon request.
10. SUCCESSORS AND ASSIGNS. The Company may assign its rights under this Agreement without the Employee’s consent to anyone who succeeds to all or any part of the Company’s business pursuant to a sale, merger, or consolidation or in connection with the sale, lease, or exchange of all or substantially all of the Company’s assets or membership interests. This Agreement shall be binding on and inure to the benefit of the successors and assigns of the Company, and shall be binding upon the Employee’s heirs, executors, administrators, and other legal Employees. The Employee acknowledges that his/her services are distinctive and personal, and that he/she therefore may not assign his/her rights or delegate his/her duties or obligations under this Agreement
11. DISPUTE RESOLUTION.
(a) Scope. Any dispute, claim, or controversy of any kind or nature between Employee and Company (including its past, present, and future parents, subsidiaries, affiliates, successors, predecessors, assigns, and the owners, directors, officers, managers, members, shareholders, principals, employees and agents of the same) arising out of or in connection with any aspect of Employee’s employment with Company, or the termination of that Employment, including but not limited to claims of breach of contract, negligence, torts, unpaid wages or other compensation-related claims, discrimination, harassment, or retaliation, and/or federal, state, or local law, other than those for injunctive relief arising under or related to Section 6 – 7 and/or Section 9 of this Agreement, shall be submitted first to voluntary mediation by a Arkansas certified mediator mutually-selected by the parties, and if the mediation is unsuccessful, will then be resolved exclusively through a final and binding arbitration pursuant to the American Arbitration Association’s Employment Arbitration Rules and Mediation Procedures (including the Optional Rules for Emergency Measures of Protection) (“AAA Employment Rules”); provided, however that nothing in this Section shall require the parties to use the services of the American Arbitration Association. The Parties further agree that any mediation or arbitration under this Section shall be conducted in Pulaski County, Arkansas. Further, to the fullest extent permitted by law, Employee and Company agree that no class or collective actions can be asserted in arbitration or otherwise. All claims, whether in arbitration or otherwise, must be brought solely in Employee’s or the Company’s individual capacity, and not as a plaintiff or class member in any purported class or collective proceeding. Nothing in this Agreement restricts Employee’s right to file any administrative claim with any state or federal government agency (including, but not limited to, the National Labor Relations Board, Equal Employment Opportunity Commission, or the Department of Labor); provided, however, that the Parties agree that, to the fullest extent permitted by law, arbitration shall be the exclusive remedy for the subject matter of such administrative claims.
(b) Procedures. All claims or controversies subject to arbitration shall be submitted to arbitration within six (6) months from the date that a written notice of request for arbitration is effective. All claims or controversies shall be resolved by a single neutral arbitrator selected jointly by the parties who is licensed to practice law in the State of Arkansas and who is experienced in the arbitration of labor and employment disputes. If the parties cannot reach an agreement on the arbitrator, then the arbitrator shall be selected in accordance with the AAA Employment Rules. The parties shall be entitled to be represented by legal counsel at any arbitration proceedings. Employee and the Company acknowledge and agree that each party shall be responsible for paying its own attorneys’ fees, if any, and the other costs of arbitration shall be borne equally (50%-50%) unless the arbitrator determines otherwise.
(c) Enforcement. The arbitration provisions in this Agreement may be specifically enforced by both parties, and that submission to arbitration proceedings may be compelled by any court of competent jurisdiction. The arbitrator, and not any federal, state, or local court of agency shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement, including but not limited to, any claim that all or any part of this Agreement is void or voidable. The Company and Employee further acknowledge and agree that the decision of the arbitrator may be specifically enforced by either party in any court of competent jurisdiction.
(d) Attorneys’ Fees. The prevailing party in any arbitration, lawsuit, or other proceeding arising out of this Agreement or enforcement thereof shall be entitled to recover all costs incurred by the prevailing party in connection with the litigation or proceeding, including reasonable attorneys’ fees, experts’ fees, and costs, whether incurred before or after demand or commencement of the lawsuit or other proceeding, and whether at arbitration, mediation, trial court, or appellate court.
(e) Waiver of Jury Trial. AS A SPECIFICALLY BARGAINED FOR INDUCEMENT FOR EACH OF THE PARTIES HERETO TO ENTER INTO THIS AGREEMENT (AFTER HAVING THE OPPORTUNITY TO CONSULT WITH COUNSEL), EACH PARTY HERETO EXPRESSLY WAIVES, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, THE RIGHT TO TRIAL BY JURY IN ANY LAWSUIT OR PROCEEDING RELATING TO OR ARISING IN ANY WAY FROM THIS AGREEMENT OR THE MATTERS CONTEMPLATED HEREBY.
12. WAIVER. The failure of either Party to insist on strict performance of any covenant or obligation under this Agreement, regardless of the length of time for which such failure continues, shall not be deemed a waiver of such Party’s right to demand strict compliance in the future. No consent or waiver, express or implied, to or of any breach or default in the performance of any obligation under this Agreement shall constitute a consent or waiver to or of any other preceding or succeeding breach or default in the performance of the same or any other obligation. No waiver by the Company of any right under this Agreement shall be construed as a waiver of any other right. No waiver by the Company of any breach or threatened breach by any other Employee or former Employee of any similar or identical agreement signed by that Employee shall be a construed as a waiver by the Company of any right against the Employee under this Agreement.
13. GOVERNING LAW. The provisions of this Agreement, including the validity, interpretation, construction, and enforcement thereof, shall be governed by and construed in accordance with the laws of the State of Arkansas without giving effect to the principles of conflict of laws.
14. COUNTERPARTS/ELECTRONIC SIGNATURES. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. For purposes of this Agreement, use of a facsimile, e-mail, or other electronic medium shall have the same force and effect as an original signature.
15. SEVERABILITY. Each provision of this Agreement is intended to be severable. If any arbitrator or court of competent jurisdiction determines that one or more of the provisions of this Agreement, or any part thereof, is or are invalid, illegal or unenforceable in any respect, only that provision, term or clause shall be affected, and such invalidity, illegality or unenforceability shall not affect or impair any other provision of this Agreement, and this Agreement shall be given full force and effect while being construed as if such invalid, illegal or unenforceable provision were limited or modified, consistent with its general intent, to the extent necessary to that it shall be valid, legal and enforceable, or if it shall not be possible to so limit or modify such invalid, illegal, or unenforceable provision had never been contained herein, and all other provisions hereof shall be and remain unimpaired and in full force and effect. If the scope of any provision in this Agreement is found to be too broad to permit enforcement of such provision to its full extent, the Parties consent to judicial modification of such provision and enforcement to the maximum extent permitted by law.
16. ENTIRE AGREEMENT. This Agreement contains the entire agreement between the parties with respect to the matters contained herein, and there are no other understandings or agreements, oral or otherwise, between the parties. Notwithstanding the foregoing sentence, to the extent that it is alleged that there are other understandings or agreements between the parties with respect to the matters contained herein, the terms and provisions of this Agreement wholly supersede, replace, and nullify any contrary understanding or agreements, written, oral, or otherwise, regarding these issues. This Agreement consists of a series of separate restrictive covenants, all of which shall survive and be enforceable in law and/or equity after the Employee’s termination or cessation of employment.
17. AMENDMENT. No extension, waiver, amendment, or modification of this Agreement or of any covenant, condition, or limitation herein contained shall be valid or binding upon any Party unless in writing and duly executed by both Parties and no evidence of any waiver or modification shall be offered or received in evidence of any proceeding, arbitration, or litigation between the Parties hereto arising out of or affecting this Agreement, or the rights or obligations of the parties hereunder, unless such waiver or modification is in writing, duly executed as aforesaid.
18. CONSTRUCTION AND HEADINGS. The Parties agree that the Agreement shall be construed as if the Parties jointly prepared and drafted it so that the language of this Agreement, including any uncertainty or ambiguity, shall not be construed strictly for or against either Party. Headings contained in this Agreement have been inserted for reference purposes only and shall not be considered part of this Agreement in construing this Agreement.
19. VOLUNTARY AGREEMENT. By executing this Agreement, the Parties represent that they have been given the opportunity to fully review the terms of this Agreement. The Employee acknowledges and agrees that the Employee has had an opportunity to ask questions and consult with an attorney of the Employee's choice before signing this agreement. The Parties understand the terms of this Agreement and freely and voluntarily sign this Agreement. By executing this Agreement as indicated below, the Employee hereby acknowledges that the Employee has either chosen to have this Agreement reviewed by an attorney or has voluntarily chosen not to do so prior to executing this Agreement. EACH PARTY FULLY UNDERSTANDS AND AGREES THAT THEY ARE GIVING UP CERTAIN RIGHTS OTHERWISE AFFORDED TO THEM BY CIVIL COURT ACTIONS, INCLUDING BUT NOT LIMITED TO THE RIGHT TO A JURY OR COURT TRIAL AND THE RIGHT TO BRING ANY CLAIM AS A CLASS OR COLLECTIVE ACTION.
IN WITNESS WHEREOF, the Parties have executed this Agreement intending to be bound by its terms as of the Effective Date.