II.
CONFIDENTIAL INFORMATION
2.01. WHEREAS, ITHRIVE is an Wellness body-scanning service company that has developed and continues to develop confidential and proprietary specifications, plans and information relating to Wellness body- scanning services that ITHRIVE wishes to protect from unauthorized disclosure and use; and
2.02. WHEREAS, Recipient wishes to receive such confidential and proprietary information from ITHRIVE for the purpose of developing business relationships between Recipient’s clients and contacts and ITHRIVE.
2.03. NOW THEREFORE, for good and valuable consideration, the sufficiency of which is hereby acknowledged, the Parties hereby mutually agree to the following terms and conditions whereby Recipient will hold in confidence ITHRIVE’s confidential and proprietary information which has been or will be disclosed to Recipient in written, oral, visual or machine-readable form:
2.04. The term "ITHRIVE Confidential Information" shall mean and include all information disclosed to Recipient, but does not include information that Recipient can show:
(a) was already in the public domain before disclosure to Recipient; or
(b) enters the public domain after disclosure to Recipient except where such entry is the result of a breach by Recipient of this Agreement; or
(c) was already in Recipient’s possession (as proved by documentary evidence) prior to disclosure and was not then subject to an obligation of confidence; or
(d) is disclosed to Recipient by a third party having a lawful right to do so prior to the effective date of this Agreement; or
(e) is independently developed by employees, agents or consultants of Recipient who did not have access to the Confidential Information; or
(f) was disclosed by ITHRIVE to a third party on a non-confidential basis.
III.
CONFIDENTIAL NON-DISCLOSURE AGREEMENT
3.01. Recipient agrees to maintain all ITHRIVE Confidential Information in secrecy and confidence using at least the same degree of care as is used to protect its own confidential and proprietary information but in no event less than a reasonable degree of care.
3.02. Recipient agrees that all ITHRIVE Confidential Information in tangible and electronic form (including but not limited to reports, drawings, designs, plans and specifications) shall be promptly returned to ITHRIVE upon request, or upon termination of this Agreement and Recipient shall cease all use of this Information at that time. Recipient further agrees that upon request by ITHRIVE, or termination of this
3.03. Agreement, Recipient shall destroy any and all documents not returned to ITHRIVE pursuant to the foregoing provision and which contain or reflect any ITHRIVE Confidential Information, including all documents prepared by Recipient’s employees, servants or agents which incorporate ITHRIVE Confidential Information.
3.04. Within ten (10) business days after the termination of this Agreement, Recipient agrees to give ITHRIVE a written statement certifying to ITHRIVE that Recipient has complied with the terms of this Agreement and has destroyed any and all documents not returned to ITHRIVE which contain or reflect any ITHRIVE Confidential Information.
3.05. Recipient agrees that any disclosure of information by Recipient will be made on a strictly non-confidential basis, ITHRIVE will not be under any obligation of secrecy or confidence regarding the disclosed information, and ITHRIVE may treat all such information as being part of the public domain.
3.06. Recipient agrees that it will not use ITHRIVE’s name or the fact that it is doing business with ITHRIVE in any advertising or marketing promotions or other dealings with third parties unless and until ITHRIVE specifically authorizes Recipient that it may do so in writing. Recipient agrees to keep the terms of this Agreement confidential.
3.07. Recipient agrees that all ITHRIVE Confidential Information will remain ITHRIVE’s sole property. ITHRIVE Confidential Information shall not be used to provoke an interference with any patent application which ITHRIVE has filed with respect to ITHRIVE Confidential Information, and will not be used to amend any claim in any pending patent application to expand the claim to read on, cover, or dominate any invention (whether or not patentable) disclosed in the ITHRIVE Confidential Information. Further, nothing in this Agreement shall be construed as granting Recipient any rights under any patents, trademarks or copyrights or other intellectual property rights presently or subsequently owned by ITHRIVE, or to any ITHRIVE Confidential Information. ITHRIVE shall solely own rights to any and all inventions and discoveries based upon ITHRIVE’s Confidential Information which may be made, developed, conceived or actually reduced to practice by ITHRIVE, jointly by ITHRIVE and Recipient, or solely by Recipient. This provision shall expire survive the termination of this Agreement.
3.08. Recipient agrees to disclose ITHRIVE Confidential Information, in whole or in part, only to Recipient’s officers, directors, and employees with a need to know in order for Recipient to perform its due diligence in considering the services of ITHRIVE, and who have agreed in writing to a nondisclosure agreement with no less restrictive terms than this Agreement. In the event that Recipient desires to utilize persons who are not its employees in the performance of its duties under this Agreement, Recipient agrees to obtain the prior written authorization of ITHRIVE (which may be subject to reasonable conditions, including written agreements with such persons binding them to the provisions of this Agreement). Notwithstanding Recipient's employees and contractors being so bound, Recipient shall be liable for breaches of the terms of this Agreement by persons to whom it discloses ITHRIVE Confidential Information.
3.09. In the event Recipient, or any of its employees or agents becomes legally compelled to disclose any of the ITHRIVE Confidential Information, Recipient shall provide to ITHRIVE prompt, prior written notice of such requirement so that ITHRIVE may seek a protective order or other appropriate remedy. In the event such a protective order or other remedy is not obtained, Recipient agrees to furnish only that portion of the ITHRIVE Confidential Information which Recipient is advised by written opinion of its counsel it is legally required to disclose, and shall make reasonable efforts to obtain assurance that confidential treatment shall be accorded the ITHRIVE Confidential Information so furnished.
3.10. The term of this Agreement shall commence on the Effective Date, continue for a period of three (3) years from the Effective Date and automatically be extended for successive one year periods on each anniversary of the Effective Date until terminated by either party giving the other at least thirty (30) days advance written notice of such termination.
3.11. The parties hereby acknowledge and agree that ITHRIVE Confidential Information may be owned by ITHRIVE or a third party, including, without limitation, an affiliate, subsidiary, client and/or vendor.
IV.
NON-COMPETE AND NON-SOLICITATION AGREEMENT
4.01. Recipient shall NOT in any capacity work for or engage or participate or invest in any business that is in competition in any manner whatsoever with the business of ITHRIVE during the Non-Compete Term as defined below. During the Non-Compete Term, Recipient expressly agrees not to engage or participate, directly or indirectly, in any business similar or related to the business of ITHRIVE by opening or operating any business, facility, or store under any name that is in direct or indirect competition with ITHRIVE; by working for, investing in, operating, or managing any business, facility, or store that has a business that is the same, similar, or related to the business of ITHRIVE at any geographical location within or outside of the United States. The term of this Non-Compete and Non-Solicitation Agreement begins on the date of execution of this Agreement and continues until the end of two (2) years after the date of termination of this Agreement ("Non-Compete Term").
4.02. During the Non-Compete Term, Recipient not directly or indirectly, for himself/herself or as agent or employee of any person or entity, solicit the employment or services of any person employed by ITHRIVE induce any person employed by ITHRIVE to leave his/her employment with ITHRIVE or hire any person employed by ITHRIVE. The term "person employed by ITHRIVE" means any person who is or was an employee of ITHRIVE at the time of or within the twelve (12) months preceding the solicitation, inducement, or hiring.
4.03. During the Non-Compete Term, Recipient will not, directly or indirectly, solicit, influence or attempt to influence any customers, distributors, vendors, licensors or suppliers of ITHRIVE with whom Recipient had contact during his/her relationship with ITHRIVE to divert its business to any competitor of ITHRIVE or in any way interfere with the relationship between any such customer, distributor, vendor, licensor, or supplier and ITHRIVE (including, without limitation, making any negative statements or communications about ITHRIVE).
4.04. Recipient understands that the provisions of this Non-Compete and Non-Solicitation Agreement may limit his/her ability to earn a livelihood in a business similar to the business in which ITHRIVE is involved, but as a party to this Agreement, he/she nevertheless agrees and hereby acknowledges that: (1) such provisions do not impose a greater restraint than it necessary to protect the goodwill or other business interests of ITHRIVE; (2) such provisions contain reasonable limitations to the time, scope of activity, and geographical area to be restrained; and (3) ) the consideration provided in this Agreement is sufficient to compensate Recipient for the restrictions contained in this Non-Compete and Non-Solicitation Agreement.
4.05. In the event that a court of competent jurisdiction should find the geographic limitation and/or duration of this Non-Compete and Non-Solicitation Agreement to be unreasonable, the geographic limitation and/or duration that is found to be reasonable in the circumstances applicable to this Agreement shall be controlling and this Non-Compete and Non-Solicitation Agreement shall be in full force and effect as so modified by the court to reflect said reasonable limitation.
- A. Consideration for Non-Compete and Non-Solicitation Agreement
4.06. In consideration of the execution of this Non-Compete and Non-Solicitation Agreement by Recipient, ITHRIVE has agreed to disclose its Confidential Information to Recipient and to attempt to develop a business relationship with Recipient pursuant to the Confidential Non-Disclosure Agreement of the parties and other good and valuable consideration, the receipt and sufficiency of which Recipient acknowledges by its execution of this Agreement below.
V.
REMEDIES FOR BREACH OF CONFIDENTIAL NON-DISLOSURE,NON-SOLICITATION, AND NON-COMPETE AGREEMENT
5.01 Recipient hereby acknowledges and agrees that the breach or threatened breach of the Confidential Non-Disclosure Agreement and/or Non-Compete Agreement and/or and Non-Solicitation Agreement ("Agreement") by Recipient or its employees will result in irreparable harm and significant injury to ITHRIVE that may be difficult to ascertain and that the restrictions contained in this Agreement are a material consideration for ITHRIVE to develop the business relationship with Recipient that is contemplated by this Agreement. If Recipient breaches this Agreement, the parties agree that ITHRIVE will be entitled to all remedies at law and in equity, including, but not limited to, monetary damages under breach of contract and under all other applicable causes of action at law, as well as all equitable relief, including without limitation, an interim and permanent injunction to be issued by a court of competent jurisdiction to restrain any threatened or continued breach of this Agreement. Recipient agrees that its breach of this Agreement Recipient further hereby waives any requirement for posting of bond or other security in connection with such injunctive relief or any other undertaking, including, without limitation, having to prove the inadequacy of the available remedies at law. The parties agree that this will not be construed as a waiver of any available legal remedies in addition to the equitable relief.
5.02. The prevailing party shall be entitled to recover from the non-prevailing party all costs and expenses, including without limitation, reasonable attorney’s fees and court costs, incurred in any action to enforce this Agreement.
VI.
MISCELLANEOUS PROVISIONS
6.01. If any provision of this Agreement is held invalid, illegal, or unenforceable under applicable law, the remainder of this Agreement shall remain valid and enforceable. It is the intention of the parties that if any provision is held to be illegal, invalid, or unenforceable, there will be added, in lieu thereof, a legal, valid and enforceable provision as similar in terms to such provision as is possible.
6.02. Failure or delay by ITHRIVE in exercising any right, power, or remedy under this Agreement shall not operate as a waiver of any right, power or remedy. Further, waiver of any term, condition, or default under this Agreement by ITHRIVE shall not be construed as a waiver of any other term, condition or default.
6.03. This Agreement will inure to the benefit of and bind the respective heirs, personal representatives, successors and permitted assigns of the parties hereto. Recipient shall not assign or transfer the rights or obligation granted hereunder without ITHRIVE’s prior written permission. Any attempted assignment or transfer without ITHRIVE’s prior written permission shall be null and void.
6.04. The provisions of the Agreement which by their nature are intended to survive the termination or expiry of the Agreement (including without limitation indemnity) shall remain in full force and effect after said termination or expiry.
6.05. The Parties have jointly drafted this Agreement. And to the extent that any provision was drafted solely by one party, it is agreed by the Parties that no adverse presumptions against the drafting party shall be valid.
6.06. The relationship created by this Agreement is solely one of independent contracting parties and not of partnership, principal and agent or any similar obligation, and neither this Agreement, or any part thereof, shall create or establish any partnership or joint venture relationship between the parties and neither party shall have any ability to bind or contract on behalf of the other party.
6.07. This Agreement shall be construed and interpreted in accordance with and governed under the laws of the State of Texas. The parties consent to service of process, personal jurisdiction, and venue in the court located in Harris County, Texas.
6.08. The date of Recipient’s execution hereof shall be the Effective Date of this Agreement.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed in duplicate originals by their duly authorized representatives