INSTRUCTOR CONFIDENTIALITY AND NON-COMPETITION AGREEMENT
THIS INSTRUCTOR CONFIDENTIALITY AND NON-COMPETITION AGREEMENT (the “Agreement”) is made between XTEND HOLDINGS, LLC, a Florida Limited Liability Company (the “Company”), and the undersigned INSTRUCTOR (hereinafter referred to as “Instructor”).
RECITALS
WHEREAS, the Company has developed and markets a proprietary physical fitness barre workout method of instruction and teaching that combines dance and pilates (the “Xtend Barre Workout”); and
WHEREAS, the Instructor has requested training in the Xtend Barre Workout and desires to instruct clients in the proper use of the Xtend Barre Workout for their own personal benefit; and
WHEREAS, the Company is willing to provide the Instructor training in the Xtend Barre Workout subject to the terms and conditions contained in this Agreement; and
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Confidentiality
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a. The Instructor acknowledges that the Company’s business depends to a significant degree upon the possession of information which is not generally known to others, and that the profitability of the Company’s business requires that this information remain proprietary to the Company.
b. The Instructor shall not, directly or indirectly, use, make available, sell, disclose or otherwise communicate to any third party, except as authorized by the Company and for the benefit of the Company, any of the Company’s Confidential Information. Instructor agrees not to publish, disclose or otherwise disseminate such information without prior written approval of the Company. Instructor acknowledges that the unauthorized disclosure of Confidential Information of the Company may be highly prejudicial to its interests, and an improper disclosure of trade secrets. For purposes of this Agreement, “Confidential Information” is all information and any idea whatever form, tangible or intangible, pertaining in any manner to the business of the Company, or any of its affiliates, or its employees, clients, consultants, or business associates, which was produced by any employee or consultant of the Company in the course of his or her employment or consulting relationship or otherwise produced or acquired by or on behalf of the Company. All Confidential Information not generally known outside of the Company’s organization, and all Confidential Information so known only through improper means, shall be deemed “Confidential Information.” By example and without limiting the foregoing definition, Confidential Information shall include, but not be limited to:
(i) formulas, research and development techniques, processes, trade secrets, computer programs, innovations, patents, patent applications, discoveries, improvements, data, know-how and formats;
(ii) information about costs, profits, markets, sales, contracts and lists of clients;
(iii) teaching methodologies, know-how, techniques, philosophies, instructing methods, lesson plans, curriculum documents, training material, marketing materials, audiovisual components, emails, handouts, workshop presentations (oral and written) and websites; and
(iv) employee and independent contractor personnel files and compensation information.
Confidential Information is to be broadly defined, and includes all information that has or could have commercial value or other utility in the business in which the Company is engaged or contemplates engaging, and all information of which the unauthorized disclosure could be detrimental to the interests of the Company, whether or not such information is identified as Confidential Information by the Company.
c. Prior Actions and Knowledge. Instructor represents and warrants that from the time of Instructor’s first contact with the Company Instructor held in strict confidence all Confidential Information and has not disclosed any Confidential Information, directly or indirectly, to anyone outside the Company, or used, copied, published, or summarized any Confidential Information, except to the extent otherwise permitted in this Agreement.
d. Third Parties. Instructor represents that Instructor’s services to the Company do not and will not breach any agreements with or duties to a former employer or any other third party. Instructor will not disclose to the Company or use on its behalf any Confidential Information belonging to others.
2. Non-Solicitation/Non-Compete
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a. Protection of Company Interests. The Instructor acknowledges and agrees that the Company shall or may in reliance on this Agreement provide the Instructor access to trade secrets, confidential training materials, and other valuable business information concerning the Xtend Barre Workout and the Company’s business operations. The Instructor acknowledges that Company business relationships and goodwill developed by the Instructor through the use of the Xtend Barre Workout are the sole and exclusive property of the Company. The Instructor acknowledges that Instructor will become aware of certain relationships that the Company has established with third parties that are current customers of the Company or the Company’s Affiliates (the “Clients”) solely as a result of Instructor’s relationship with the Company. The Instructor will also come in contact with employees and independent contractors of the Company or the Company’s Affiliates. The Instructor acknowledges that the restrictive covenants contained in this Agreement are reasonably necessary to protect the business relationships, goodwill, confidential information and other legitimate business interests of the Company.
b. Competitive Business. The Instructor agrees that for a period of two (2) years after the last day of instruction from the Company or the last Xtend Barre Workout class taught by the Instructor, whichever is later, unless the Company gives its express written consent, the Instructor will not, directly or indirectly, in association with or as a stockholder, director, officer, consultant, employee, partner, joint venturer, member or otherwise of or through any person, firm, corporation, partnership, association or other entity (any of the foregoing defined as an “Affiliated Entity”), within a thirty (30) mile radius of any facility that offers instruction or classes in the Xtend Barre Workout: (i) establish, operate, organize, own, engage in or otherwise participate in or carry on a Competitive Business; (ii) in any manner become associated with or financially interested in any Competitive Business; or (iii) provide management or consulting services to any Competitive Business. For purposes of this Agreement, a “Competitive Business” shall mean any business engaged in providing a barre workout program or a ballet barre workout program in a manner substantially similar to the present business of the Company or its Affiliates. For purposes of this Agreement, “Affiliate” shall mean any person or entity that: (i) directly or indirectly controls, is controlled by, or is under common control with the Company; or (ii) owns or operates a facility that offers instruction or classes in the Xtend Barre Workout; or (iii) instructs, teaches or trains individuals in the Xtend Barre Workout.
c. Clients. The Instructor agrees that for a period of two (2) years after the last day of instruction from the Company or the last Xtend Barre Workout class taught by the Instructor, the Instructor will not, within a thirty (30) mile radius of any facility that offers instruction or classes in the Xtend Barre Workout, directly or indirectly, without the prior written consent of the Company: (i) solicit, or attempt to solicit, any Client or the business or patronage of any such Client, (ii) divert or attempt to divert any Client to any other person or business whether on behalf of the Instructor or any other entity; or (iii) enter into any business relationship with any Client.
3. Employees
. The Instructor agrees that for a period of two (2) years after the last day of instruction from the Company or the last Xtend Barre Workout class taught by the Instructor, within a thirty (30) mile radius of any facility that offers instruction or classes in the Xtend Barre Workout, without the prior written consent of the Company, directly or indirectly, including through any Affiliated Entity: (i) hire any person who is employed by, or who provides services to, the Company or its Affiliates; (ii) enter into any business relationship with any employee or consultant of the Company or its Affiliates on behalf of any enterprise or business other than the Company or its Affiliates; or (iii) contact, solicit, or attempt to contact or solicit any employee or consultant of the Company for the purpose of hiring such employee or consultant or causing such employee or consultant to terminate his or her relationship with the Company.
4. Representations and Warranties
. Instructor represents and warrants (i) that Instructor has no obligations, legal or otherwise, inconsistent with the terms of this Agreement or with Instructor’s undertaking a relationship with the Company; (ii) that the performance of the services called for by this Agreement do not and will not violate any applicable law, rule or regulation or any proprietary or other right of any third party; (iii) that Instructor will not use in the performance of Instructor’s responsibilities for the Company any materials or documents of a former employer; and (iv) that Instructor has not entered into or will enter into any agreement (whether oral or written) in conflict with this Agreement.
5. Termination Obligations
. Upon the termination of Instructor’s business relationship with the Company or promptly upon the Company’s request, Instructor shall surrender to the Company all equipment, tangible Confidential Information, documents, books, notebooks, records, reports, notes, memoranda, drawings, contracts, lists, computer disks (and other computer-generated files and data), any other data and records of any kind, and copies thereof (collectively, “Company Records”) that are in Instructor’s possession or under Instructor’s control.
6. Injunctive Relief
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a. If any part of this Agreement, as applied to the Instructor or any other person, is adjudged by a court to be invalid or unenforceable, in whole or in part, the same will in no way affect any other provision of that Section or any other part of this Agreement, the application of that provision in any other circumstances or the validity or enforceability of this Agreement. If any provision, or any part of any provision, is held to be unenforceable because of the duration of the provision or the area covered by the provision, the parties agree that the court making such determination will have the power to reduce the duration and/or area of the provision to the longest permissible duration and largest permissible area, and/or to delete specific words or phrases, and in its reduced form such Section will then be enforced. The Instructor agrees and acknowledges that the restrictions set forth in this Agreement are reasonably necessary to protect the legitimate business interests of the Company. Further, the Instructor specifically acknowledges that (i) the non-competition restraints set forth in this Agreement are reasonable in scope and content, not over broad, undue in duration, or otherwise unreasonable in view of the need to protect the Company’s established legitimate business interests and goodwill; and (ii) that the restrictions contained in this Agreement are a material condition to the Company entering into its relationship with the Instructor.
b. Should the Instructor breach any of the non-competition covenants contained in this Agreement, the term of the non-competition covenant shall be extended by the amount of time that the Instructor is in breach of these covenants so that the Company shall have two full years of uninterrupted and full compliance by the Instructor following termination of the business relationship under this Agreement.
c. Because the Company will be irreparably damaged if the provisions of this Agreement are not specifically enforced, the Company shall be entitled to a temporary or permanent injunction restraining any violation or threatened violation of this Agreement, or any other appropriate decree of specific performance, without the necessity of posting a bond or showing any actual damage or that monetary damages would not provide an adequate remedy. Such remedies shall not be exclusive and shall be in addition to any other remedy which the Company may have as a result of any such violation. Nothing contained in this Section shall be construed as prohibiting the Company and all other injured parties from pursuing all other remedies available to them for a breach of the provisions of this Agreement.
7. Participation
Statement
. Instructor agrees that this physical fitness program and training include exercises to build the cardio respiratory system (heart and lungs), the musculoskeletal system (muscle endurance, strength and flexibility), and to improve body composition (decrease of body fat in individuals needing to lose fat, with an increase in weight of muscle and bone). Exercises may include aerobic activities, calisthenics and weight lifting to improve muscular strength and endurance, and flexibility exercises to improve joint range of motion. Instructor understands that the reaction of the heart, lung, and blood vessel system to such exercise cannot always be predicted with accuracy and acknowledges that there is a risk of certain abnormal changes occurring during or following Instructor’s exercise that may include abnormalities of blood pressure or heart rate, ineffective functioning of the heart, and in rare instances, heart attacks or other events. Use of the weight lifting equipment, and engaging in heavy body calisthenics, can lead to musculoskeletal strains, pain, and injury as well, even when some warm up and cool down instruction are provided. Instructor acknowledges assuming the risk of engaging in such activities as part of this training and hereby waives any claims it may have against Company for participation in such activities to the extent legally permissible.
8. Modification
. No modification of this Agreement shall be valid unless made in writing and signed by both parties.
9. Binding Effect
. This Agreement shall be binding upon Instructor, Instructor’s heirs, executors, assigns and administrators and is for the benefit of the Company and its successors and assigns.
10. Governing Law
. This Agreement shall be construed in accordance with, and all actions arising under or in connection therewith shall be governed by, the internal laws of the State of Florida without reference to conflict of law principles) and venue for all issues hereunder shall be in the state or Federal courts located in Palm Beach County, Florida. Each Party does hereby consent to such jurisdiction and venue.
11. Integration
. This Agreement sets forth the parties’ mutual rights and obligations with respect to Confidential Information, prohibited competition, and intellectual property. It is intended to be the final, complete, and exclusive statement of the terms of the parties’ agreements regarding these subjects. This Agreement supersedes all other prior and contemporaneous agreements and statements on these subjects, and it may not be contradicted by evidence of any prior or contemporaneous statements or agreements. To the extent that the practices, policies, or procedures of the Company, now or in the future, apply to Instructor and are inconsistent with the terms of this Agreement, the provisions of this Agreement shall control unless changed in writing by the Company.
12. Construction
. This Agreement shall be construed as a whole, according to its fair meaning, and not in favor of or against any party. By way of example and not limitation, this Agreement shall not be construed against the party responsible for any language in this Agreement. The headings of the paragraphs hereof are inserted for convenience only, and do not constitute part of and shall not be used to interpret this Agreement.
13. Attorneys’ Fees
. Should either Instructor or the Company, or any heir, personal representative, successor or permitted assign of either party, resort to legal proceedings to enforce this Agreement, the prevailing party in such legal proceeding shall be awarded, in addition to such other relief as may be granted, attorneys’ fees and costs incurred in connection with such proceeding.
14. Severability
. If any term, provision, covenant or condition of this Agreement, or the application thereof to any person, place or circumstance, shall be held to be invalid, unenforceable or void, the remainder of this Agreement and such term, provision, covenant or condition as applied to other persons, places and circumstances shall remain in full force and effect.
15. Rights Cumulative
. The rights and remedies provided by this Agreement are cumulative, and the exercise of any right or remedy by either the Company or Instructor (or by that party’s successor), whether pursuant hereto, to any other agreement, or to law, shall not preclude or waive that party’s right to exercise any or all other rights and remedies. This Agreement will inure to the benefit of the Company and its successors and assigns.
16. Nonwaiver
. The failure of either the Company or Instructor, whether purposeful or otherwise, to exercise in any instance any right, power or privilege under this Agreement or under law shall not constitute a waiver of any other right, power or privilege, nor of the same right, power or privilege in any other instance. Any waiver by the Company or by Instructor must be in writing and signed by either Instructor, if Instructor is seeking to waive any of Instructor’s rights under this Agreement, or by an officer of the Company or some other person duly authorized by the Company.
17. Acknowledgement
. Instructor acknowledges that Instructor has had the opportunity to consult legal counsel in regard to this Agreement, that Instructor has read and understands this Agreement, that Instructor is fully aware of its legal effect, and that Instructor has entered into it freely and voluntarily and based on Instructor’s own judgment and not on any representations or promises other than those contained in this Agreement.
18. Execution in Counterparts
. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date set forth below.
