THIS AGREEMENT (“Agreement”) made as of "Today's Date" as mentioned above, is by and between Kathy Maloy (“Company”) (d/b/a MANTRA FITNESS) and the individual as stated above as "Employee Name".
W I T N E S S E T H:
WHEREAS, Company is an entity of the Mantra Fitness System in the US (“Company”); and
WHEREAS, Company has given Individual as an employee of Company, access to and knowledge of certain Trade Secrets and other Confidential Information, which are more particularly described below; and
WHEREAS, Company requires that Individual execute this Agreement as part of his/her employment prior to providing Individual access to said Trade Secrets and other Confidential Information; and
WHEREAS, Individual understands the necessity of not disclosing any such information to any other party or using such information to compete against Mantra Fitness Company, any of Company’s independent studios or, affiliates. The term "Competitive Business" means (i) a gymnasium, an athletic or fitness center, a health club, an exercise or aerobics facility, an exercise facility providing Group Personal Training, or one or more similar facilities, or an entity that grants franchises or licenses to others to operate any of these types of businesses; or (ii) any business in which Trade Secrets and other Confidential Information (as defined below) could be used to the disadvantage of Company of any of its owners, Franchisees, or any affiliate of Company or Company’s other franchisees;
NOW, THEREFORE, in consideration of the mutual promises and undertakings set forth herein, and intending to be legally bound hereby, the parties hereby mutually agree as follows:
Trade Secrets and Confidential Information
Individual understands Mantra has developed and possesses and will continue to develop and posses Trade Secrets and other Confidential Information that are important to its business and permitted to be used by Company.
For the purposes of this Agreement, a “Trade Secret” is information in any form (including, but not limited to, materials and techniques, technical or non-technical data, formulas, patterns, compilations, programs, devices, methods, techniques, drawings, processes, financial data, financial plans, product plans, passwords, lists of actual or potential customers or suppliers) related to or used in Mantra System, Facilities whether or not commonly known by or available to the public and that information: (i) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
For the purposes of this Agreement “Confidential Information” means technical and non-technical information used in or related to the Mantra Systems and its Facilities that is not commonly known by or available to the public, including, without limitation, Trade Secrets, inventions, discoveries, developments, business strategies, company financial information and information contained in the Manuals and training guides and materials and all Company materials. In addition, any other information identified as confidential when delivered by Company shall be deemed Confidential Information. Confidential Information shall not include, however, any information that: (i)
is now or subsequently becomes generally available to the public through no fault of Individual; (ii) Individual can demonstrate was rightfully in its possession, without obligation of nondisclosure, prior to disclosure pursuant to this Agreement; (iii) is independently developed without the use of any Confidential Information; or (iv) is rightfully obtained from a third party who has the right, without obligation of nondisclosure, to transfer or disclose such information.
Any information expressly designated by Company, Franchisor or any of its Franchisees as “Trade Secrets” or “Confidential Information” shall be deemed such for all purposes of this Agreement, but the absence of designation shall not relieve Individual of his or her obligations hereunder in respect of information otherwise constituting Trade Secrets or Confidential Information. Individual understands Company’s providing of access to the Trade Secrets and other Confidential Information creates a relationship of confidence and trust between Individual and Company with respect to the Trade Secrets and other Confidential Information related to Company, the System or Company’s Franchisees.
Individual shall not communicate or divulge to (or use for the benefit of) any other person, firm, association, or corporation, now or at any time in the future, any Trade Secrets or other Confidential Information. At all times from the date of this Agreement, Individual must take all steps reasonably necessary and/or requested by Company to ensure that the Confidential Information and Trade Secrets are kept confidential pursuant to the terms of this Agreement. Individual must comply with all applicable policies, procedures and practices that Company has established and may establish from time to time with regard to the Confidential Information and Trade Secrets.
Individual’s obligations under paragraph 2(a) of this Agreement shall continue in effect during and after termination of Individual’s relationship with Company, regardless of the reason or reasons for termination, and whether such termination is voluntary or involuntary, and Company is entitled to communicate Individual’s obligations under this Agreement to any future customer or employer to the extent deemed necessary by Company for protection of its rights hereunder.
During the term of Individual’s relationship with Company and for a period of two (2) years after the expiration or termination of Individual’s relationship with Company, regardless of the cause of expiration or termination, Individual shall not, directly or indirectly, for themselves or through, on behalf of or in conjunction with, any person, persons, partnership, corporation, limited liability company or other business entity, divert or attempt to divert any business or customers of Mantra Fitness, Company or any of Company’s studios to any Competitive Business, by direct or indirect inducement or otherwise, or do or perform, directly or indirectly, any other act injurious or prejudicial to the goodwill associated with the Mantra Fitness or any other services marks and such other trade names, trademarks, service marks, trade dress, designs, graphics, logos, emblems, insignia, fascia, slogans, drawings and other commercial symbols.
During the term of Individual’s relationship with Company, Individual shall not, directly or indirectly, for themselves or through, on behalf of or in conjunction with, any person, persons, partnership, corporation, limited liability company or other business entity, carry on, be engaged in or take part in, render services to, or own or share in the earnings of any Competitive Business, wherever located, without the express written consent of Company.
For a period of two (2) years following the expiration or termination of Individual’s relationship with Mantra, regardless of the cause of termination, Individual shall not, directly or indirectly, for themselves or through, on behalf of or in conjunction with, any person, persons, partnership, corporation, limited liability company or other business entity, carry on, be engaged in or take part in, render services to, or own or share in the earnings of any Competitive Business located or operating within a fifteen (15) mile radius of Company or any Mantra Fitness Facility or any other Mantra Fitness Facility (whether Franchisor owned, Company-owned, Franchisor or Company affiliate owned or franchised).
During the term of Individual’s relationship with Company and for a period of two (2) years thereafter, regardless of the cause of termination, Individual shall not, directly or indirectly, solicit or otherwise attempt to induce or influence any employee or other business associate of Franchisor, Company, any of Franchisor’s Franchisees, any other Mantra Fitness Facility, whether Franchisor, Company owned or affiliate owned to compete against, or terminate or modify his, her or its employment or business relationship with, Company, any of its studios or any other Mantra Fitness Facility, whether Company owned or affiliate owned.
Reasonableness of Restrictions
Individual acknowledges that each of the terms set forth herein, including the restrictive covenants, is fair and reasonable and is reasonably required for the protection of Company, Franchisor, its Franchisees and affiliates and Company’s Trade Secrets and other Confidential Information, the Company’s business system, network of studios and trade and service marks, and Individual waives any right to challenge these restrictions as being overly broad, unreasonable or otherwise unenforceable. If, however, a court of competent jurisdiction determines that any such restriction is unreasonable or unenforceable, then Individual shall submit to the reduction of any such activity, time period or geographic restriction necessary to enable the court to enforce such restrictions to the fullest extent permitted under applicable law. It is the desire and intent of the parties that the provisions of this Agreement shall be enforced to the fullest extent permissible under the laws and public policies applied in any jurisdiction where enforcement is sought.
Relief for Breaches of Confidentiality, Non-Solicitation and Non-Competition
Individual further acknowledges that an actual or threatened violation of the covenants contained in this Agreement will cause Company, and affiliates immediate and irreparable harm, damage and injury that cannot be fully compensated for by an award of damages or other remedies at law. Accordingly, Company, Franchisor, its Franchisees and affiliates shall be entitled, as a matter of right, to an injunction from any court of competent jurisdiction restraining any further violation by Individual of this Agreement without any requirement to show any actual damage or to post any bond or other security. Such right to an injunction shall be cumulative and in addition to, and not in limitation of, any other rights and remedies that Company, its Franchisees and its affiliates may have at law or in equity.
Damages. Employee agrees that the actual amount of damages resulting from any breach of any of the provisions under this Agreement would be impossible or impracticable and extremely difficult o ascertain. It is therefore agreed that the damages resulting from any such breach which involves any client of the Company shall be liquidated damages in an amount equal to two times the average yearly amount of net revenue generated by such employee, agent or independent contractor for the
Company during the three years immediately preceding the breach or TEN THOUSAND DOLLARS ($10,000), whichever amount is higher. This provision for liquidated damages shall not preclude the Company and/or Franchisor from enforcing the specific performance of this Agreement for preventing the breach or threatened breach, and such liquidated damages shall be in addition to any other remedies that the Company may elect to invoke.
This Agreement constitutes the entire Agreement between the parties with respect to the subject matter hereof. This Agreement supersedes any prior agreements, negotiations and discussions between Individual and Company. This Agreement cannot be altered or amended except by an agreement in writing signed by the duly authorized representatives of the parties.
Except to the extent this Agreement or any particular dispute is governed by the U.S. Trademark Act of 1946 or other federal law, this Agreement shall be governed by and construed in accordance with the laws of the State of ______________________ (without reference to its conflict of laws principles). The Federal Arbitration Act shall govern all matters subject to arbitration. References to any law refer also to any successor laws and to any published regulations for such law as in effect at the relevant time. References to a governmental agency also refer to any regulatory body that succeeds the function of such agency.
Any action brought by either party, shall only be brought in the appropriate state or federal court located in or serving ________________ County, ________________. The parties waive all questions of personal jurisdiction or venue for the purposes of carrying out this provision. Claims for injunctive relief may be brought by Company where affiliate studio is located. This exclusive choice of jurisdiction and venue provision shall not restrict the ability of the parties to confirm or enforce judgments or arbitration awards in any appropriate jurisdiction.
Individual agrees if any legal proceedings are brought for the enforcement of this Agreement, in addition to any other relief to which the successful or prevailing party may be entitled, the successful or prevailing party shall be entitled to recover attorneys’ fees, investigative fees, administrative fees billed by such party’s attorneys, court costs and all expenses, including, without limitation, all fees, taxes, costs and expenses incident to arbitration, appellate, and post-judgment proceedings incurred by the successful or prevailing party in that action or proceeding.
This Agreement shall be effective as of the date this Agreement is executed and shall be binding upon the successors and assigns of Individual and shall inure to the benefit of Franchisee, Franchisor, its subsidiaries, successors and assigns. Company, Franchisor, Franchisees and affiliates are intended third-party beneficiaries of this Agreement with the independent right to enforce the confidentiality and non- competition provisions contained herein.
The failure of either party to insist upon performance in any one (1) or more instances upon performance of any terms and conditions of this Agreement shall not be construed a waiver of future performance of any such term, covenant or condition of this Agreement and the obligations of either party with respect thereto shall continue in full force and effect.
The paragraph headings in this Agreement are included solely for convenience and shall not affect, or be used in connection with, the interpretation of this Agreement.
In the event that any part of this Agreement shall be held to be unenforceable or invalid, the remaining parts hereof shall nevertheless continue to be valid and enforceable as though the invalid portions were not a part hereof.
This Agreement may be modified or amended only by a written instrument duly executed by Individual and Company.
The existence of any claim or cause of action Individual might have against Company, or affiliates will not constitute a defense to the enforcement by Company of this Agreement.
Except as otherwise expressly provided in this Agreement, no remedy conferred upon Company pursuant to this Agreement is intended to be exclusive of any other remedy, and each and every such remedy shall be cumulative and shall be in addition to every other remedy given pursuant to this Agreement or now or hereafter existing at law or in equity or by statute or otherwise. No single or partial exercise by any party of any right, power or remedy pursuant to this Agreement shall preclude any other or further exercise thereof.
INDIVIDUAL CERTIFIES THAT HE OR SHE HAS READ THIS AGREEMENT CAREFULLY, AND UNDERSTANDS AND ACCEPTS THE OBLIGATIONS THAT IT IMPOSES WITHOUT RESERVATION.
IN WITNESS WHEREOF, Company has hereunto caused this Agreement to be executed by its duly authorized officer, and Individual has executed this Agreement, all being done in duplicate originals with one (1) original being delivered to each party as of the day and year first above written.