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Business Law

This law covers a great breadth of topics. One of the areas that attorneys are most frequently asked about is confidentiality and non-competition agreements. These must be tailored to the type of business involved, and the geographic region where the business is located. The following give some idea of the complexity o

CONFIDENTIALITY AND NON-COMPETITION AGREEMENT

This Agreement, is between WE WILL WE WILL ROCK YOU MASONRY, LLC., a Nevada limited liability company and its parent companies, subsidiaries and affiliates (collectively herein, Company), and _________________ (herein, Interested Party), of ______________, Utah, who, in consideration of the mutual covenants and agreements set forth hereinafter the Company and Interested Party covenant and agree as follows: 

 

1.  Duty to Disclose   Company agrees to provide information concerning Real Estate and related matters and to answer the questions of Interested Party and to disclosure information to Interested Party relative to Company, which might not be disclosed to the general public.  

2.  Duty not to Disclose   Interested Party agrees that, except as may be necessary to complete the business of Company, and for now and for three (3) years following the execution of this Agreement, Interested Party shall make no Unauthorized Disclosures, as defined below, to anyone outside of the Company, its parent companies, subsidiaries or affiliates, without the express written authorization of Company.  The foregoing provisions shall not prevent Interested Party from making such disclosure to his personal attorney or accountant, so long as the attorney and accountant agree, in writing, to be bound by the same covenants, terms and promises set forth in this Confidentiality and Non-Competition Agreement.

3. Unauthorized Disclosure   Unauthorized Disclosure means that Interested Party shall not disclose to any person or entity, except his attorney or accountant, any of Company's Confidential Information.  "Confidential Information" shall mean any information, knowledge or data which is disclosed to Interested Party by Company during the period of the Agreement whether or not such is publically known or in the public domain. Confidential Information shall also include information, knowledge or data with respect to the Company or any of its parent companies, subsidiaries or affiliates or of any processes, customers, methods of distribution, sales, prices, profits, costs, contracts, suppliers, business prospects, business methods, techniques, research, trade secrets, or know-how of the Company or any of its parent companies, subsidiaries or affiliates, regardless of whether such information is confidential. This information includes but is not limited to any property information, business information, data, figures, projections, documents, estimates, clients, Interested Party, customer, supplier or subcontractor lists, tax and financial records, personnel files and history, procedures, promotions, marketing plans, forecasts, unpublished financial statements, budgets, licenses, prices, costs and all other correspondence, information and documents coming into Interested Party's possession, custody or control or that which is spoken to Interested Party or overheard by Interested Party, whether directly or indirectly relating to the business or operation of Company. Interested Party may only reveal any Confidential Information proprietary knowledge or data with the express prior written authorization of Company.  Interested Party acknowledges that the Company, its parent companies, subsidiaries or affiliates have taken reasonable measures to keep such information secret or confidential. 

4.  Return of Documents   Interested Party shall, without the need for any request, after performance of this Agreement, return all data and information obtained from Company, whether or not confidential,, including but not limited to worksheets, reports, manuals, lists, memoranda, and other documents as set forth in this Section. 

5. Covenant Not to Compete   Interested Party agrees that during the period of this Agreement and for three (3) years following the execution of this Agreement, Interested Party shall not directly or indirectly compete with Company in its capacity as a real estate workout company, and shall not profit from any “Confidential Information” provided to Interested Party by Company.  

6.  Geographical Limitations   The foregoing Covenant not to Compete shall be limited to an area within a radius of number of miles stated below for each location in which Company is doing business.   

  •  Salt Lake City, Utah Area:  Interested Party shall not compete within 100 miles of the city center, and/or within 50 miles of any real property owned by Company, whichever area is larger.

•  Provo City, Utah Area:  Interested Party shall not compete within 100 miles of the city center, and/or within 50 miles of any real property owned by Company, whichever area is larger.

•  St. George City, Utah Area:  Interested Party shall not compete within 150 miles of the city center, and/or within 50 miles of any real property owned by Company, whichever area is larger.

•  Las Vegas City, Nevada Area:  Interested Party shall not compete within 200 miles of the city center, and/or within 100 miles of any real property owned by Company, whichever area is larger.

7.  Further Covenants   Interested Party agrees during the period of one (1) year after the date of this Agreement not to engage in any of the following actions: 

  (a)   Induce or entice any of the Company's employees, partners, or associates away from their employment or affiliation or association with Company. 

  (b)   Solicit clients for the purpose of assisting them with real estate workouts in any of the areas discussed above, in any of the marketing areas of the Company, which marketing areas are those geographical areas described above. 

8.  Enforcement -- Injunction   Interested Party hereby specifically agrees and acknowledges that any violations of this covenant not to compete or unauthorized disclosure as set forth above will cause irreparable injury to the company.  The company shall be entitled to an injunction, restraining interested party from the violation of any part of this agreement, or compelling the promised performance, without bond. 

9.  Enforcement -- Damages   Interested Party further specifically agrees and acknowledges that a violation of the covenant not to compete and unauthorized disclosure of information or violation of this agreement in any other manner shall cause the company to incur damages.  The parties agree that if Interested Party violates this agreement the minimum damage the Company will incur is the value between the purchase and selling price that Interested Party or those to whom he/she provides information, receive as a result of their dealing in those locations expressed above as Geographical Limitations.  All parties shall have available to them such remedies as are available at law or in equity.  The parties agree that damages are difficult to establish in that the amount of damages is inherently difficult to establish, and therefore, the parties agreed that any breach of this Agreement shall result in liquidated damages of $50.00 per day beginning on the date of breach and continuing for a period of 120 days, after which time the performing party shall be entitled to such other and further damages as may be established according to proof, including, but not limited to, punitive or exemplary damages.   

10.  Agents Included.  For purposes of this Agreement, "Company" and  "Interested Party" shall include but not be limited to the following: all full and part time Interested Parties, agents, or representatives of Company or Interested Party, as the case may be, and including all independent contractors of Company whose services are regularly employed by Company in the furtherance of its business. 

11. Severability.  Each term or provision of this Agreement and the application thereof is entitled to the fullest extent permitted by law.  Each and every term, covenant, and agreement herein shall be deemed a condition hereof.  Waiver of any breach of any term or condition of this Agreement shall not constitute a waiver of subsequent breaches.  The failure to strictly enforce the conditions or covenants of this Agreement shall not be construed as a waiver or relinquishment of the same, and shall not prevent later enforcement of the same.  The invalidity or partial invalidity of any provisions of this Agreement shall not render the remainder of the Agreement invalid or unenforceable.  Breach of any covenant or term of this Agreement is deemed a material breach of this entire Agreement.  

12. Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the State of Utah if any matter is filed pursuant to the terms and conditions of this Agreement. Venue shall be in the Judicial District Court for Utah County, Utah.. 

13. Integration.  This Agreement, together with any exhibits hereto, embodies the entire, full and final agreement and understanding of the parties with respect to the subject matter of this Agreement and there are no agreements, understandings, undertakings, restrictions, representations, warranties or covenants among the parties other than those set forth herein.  This Agreement supersedes all prior negotiations, discussions, correspondence, communications, understandings, and agreements between the parties relating to the subject matter of this Agreement, including, without limitation, all prior offers or agreements to purchase the subject Property, all notes, emails, letters, telephone calls and earlier drafts of this Agreement. This Agreement cannot be modified except in a writing signed by all parties.

14. Jury Waiver.  ALL PARTIES HEREBY EXPRESSLY WAIVE THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IN ANY CLAIM, ACTION, PROCEEDING OR COUNTERCLAIM BASED UPON, OR RELATED TO, THE SUBJECT MATTER OF THIS AGREEMENT, THE RELATIONSHIP OF THE PARTIES, OR THE USE OR  POSSESSION OF THE SUBJECT MATTER.  This waiver is a knowing, intentional and voluntary waiver made by both parties, and both acknowledge that neither the other party, nor any person acting on behalf of said party, has made any representations of fact to induce this waiver of trial by jury or in any way to modify or nullify its effect.  Both parties acknowledge that this waiver is a material inducement to enter into a business relationship, and that each of them has already relied on this waiver and that each of them will continue to rely on this waiver.  If, notwithstanding this provision, a court empanels a jury to decide any issue relative to this Agreement, or the conduct of the parties in relation thereto, then the parties do hereby stipulate and agree that said jury may only be used for third party claims and not visa vie these parties themselves.  

15.  Attorney Fees.  If any legal action or proceeding or efforts are brought or made, by either party, to enforce any part of this Agreement, including arbitration or an action for declaratory relief, the prevailing party shall recover its reasonable time and expenses spent in preparation and presentation or litigation thereof, and shall recover a reasonable sum for attorney's fees (including in-house counsel fees billed at the rate of one who limits his/her areas of practice), costs and expenses with regard to the same, all of which shall be paid whether or not such action is prosecuted to judgment.  Said sums shall be paid whether or not suit or arbitration is instituted.  If the prevailing party chooses to use a collection agency to recover money owed from the non-prevailing party, the non-prevailing party agrees to reimburse the prevailing party for all of the collection agency fees in addition to any other sums permissible by law.

16.   Homestead.   INTERESTED PARTY HEREBY WAIVES ALL EXEMPTIONS AND HOMESTEAD LAWS AS BETWEEN COMPANY AND INTERESTED PARTY RELATIVE TO THE ENFORCEMENT AND ENFORCEABILITY OF THIS AGREEMENT.  Both parties acknowledge that this waiver is a material inducement to enter into a business relationship, and that each of them has already relied on this waiver and that each of them will continue to rely on this waiver. 

17.  Construction.  The parties acknowledge that each party and its counsel either have, or have had the opportunity to, review and revise this Agreement, and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any amendment or exhibit hereto. The interpretation of any ambiguity found within this Agreement rests exclusively and conclusively with Company.

18.  Successors and Assigns.  This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the parties hereto.  Buyer may assign its rights hereunder to any entity without notice or consent.  Any assignment by Seller is void.  Buyer may market the Property to others and advertise on the Property during the period of the Agreement.  


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