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CONFIDENTIALITY AGREEMENT

 

THIS CONFIDENTIALITY AGREEMENT the "Agreement" dated this _____ day of ___________,

2018 (the "Execution Date"),

BETWEEN:

 

Top Flight Assistance of 16044 Bear Valley Rd STE 10 Victorville CA 92395

(the "Contractor")

OF THE FIRST PART

- AND -

____________________ of _________________________

(the “Sub-Contractor")

OF THE SECOND PART

 

BACKGROUND

1. The Sub-Contractor is currently or may be Contracted as a Sub-Contractor with the Contract for the

position of: ____________________________________________________________ In addition to this responsibility or position (the "Contract"), this Agreement also covers any position or responsibility now or later held with the Contractor.

2. The Sub-Contractor will receive from the Contractor, or develop on behalf of the Contractor, Confidential Information as a result of the Contractor (the 'Permitted Purpose'). IN CONSIDERATION OF and as a condition of the Contractor Contracting the Sub-Contractor and the Sub-Contractor providing the Confidential Information to the Sub-Contractor in addition to other valuable consideration, the receipt and sufficiency of which consideration is hereby acknowledged, the parties to this Agreement agree as follows:

 

Confidential Information

1. All written and oral information and materials disclosed or provided by the Contractor to the Sub-Contractor under this Agreement is Confidential Information regardless of whether it was provided before or after the date of this Agreement or how it was provided to the Contractor.

2. The Sub-Contractor acknowledges that in any position the Contractor may hold, in and as a result of the Sub-Contractor Contract by the Contractor, the Sub-Contractor will, or may, be making use of, acquiring or adding to information about certain matters and things which are confidential to the Contractor and which information is the exclusive property of the Contractor.

3. 'Confidential Information' means all data and information relating to the business and management of the Contractor, including but not limited to, the following:

 

a. 'Customer Information' which includes names of customers of the Contractor, their representatives, all customer contact information, contracts and their contents and parties, customer services, data provided by customers and the type, quantity and specifications of products and services purchased, leased, licensed or received by customers of the Contractor;

b. 'Intellectual Property' which includes information relating to the Contractor proprietary rights prior to any public disclosure of such information, including but not limited to the nature of the proprietary rights, production data, technical and engineering data, technical concepts, test data and test results, simulation results, the status and details of research and development of products and services, and information regarding acquiring, protecting, enforcing and licensing proprietary rights (including patents, copyrights and trade secrets);

c. 'Marketing and Development Information' which includes marketing and development plans of the Contractor, price and cost data, price and fee amounts, pricing and billing policies, quoting procedures, marketing techniques and methods of obtaining business, forecasts and forecast assumptions and volumes, and future plans and potential strategies of the Contractor which have been or are being discussed;

d. 'Business Operations' which includes internal personnel and financial information of the Contractor, vendor names and other vendor information (including vendor characteristics, services and agreements), purchasing and internal cost information, internal services and operational manuals, and the manner and methods of conducting the Contractor business;

e. 'Product Information' which includes all specifications for products of the Contractor as well as work product resulting from or related to work or projects performed or to be performed for the Contractor or for clients of the Contractor, of any type or form in any stage of actual or anticipated research and development;

f. 'Production Processes' which includes processes used in the creation, production and manufacturing of the work product of the Contractor, including but not limited to, formulas, patterns, molds, models, methods, techniques, specifications, processes, procedures, equipment, devices, programs, and designs;

g. 'Service Information' which includes all data and information relating to the services provided by the Contractor, including but not limited to, plans, schedules, manpower, inspection, and training information;

h. 'Proprietary Computer Code' which includes all sets of statements, instructions or programs of the Contractor, whether in human readable or machine readable form, that are expressed, fixed, embodied or stored in any manner and that can be used directly or indirectly in a computer ('Computer Programs'); any report format, design or drawing created or produced by such Computer Programs; and all documentation, design specifications and charts, and operating procedures which support the Computer Programs;

i. 'Computer Technology' which includes all scientific and technical information or material of the Contractor, pertaining to any machine, appliance or process, including but not limited to, specifications, proposals, models, designs, formulas, test results and reports, analyses, simulation results, tables of operating conditions, materials, components, industrial skills, operating and testing procedures, shop practices, know-how and show-how;

j. 'Accounting Information' which includes, without limitation, all financial statements, annual reports, balance sheets, company asset information, company liability information, revenue and expense reporting, profit and loss reporting, cash flow reporting, accounts receivable, accounts payable, inventory reporting, purchasing information and payroll information of the Contractor; and

k.Confidential Information will also include any information that has been disclosed by a third party to the Contractor and is protected by a non-disclosure agreement entered into between the third party and the Employer.

 

4.Confidential Information will not include the following information:

a. Information that is generally known in the industry of the Contractor;

b. Information that is now or subsequently becomes generally available to the public through no wrongful act of the Sub-Contractor;

c. Information that the Contractor rightfully had in their possession prior to receiving the Confidential Information from the Contractor;

d. Information that is independently created by the Contractor without direct or indirect use of the Confidential Information; or

e. Information that the Contractor rightfully obtains from a third party who has the right to transfer or disclose it.

 

Confidential Obligations

5. Except as otherwise provided in this Agreement, the Contractor must keep the Confidential Information confidential.

6. Except as otherwise provided in this Agreement, the Confidential Information will remain the exclusive property of the Contractor and will only be used by the Contractor for the Permitted Purpose. The Sub-Contractor will not use the Confidential Information for any purpose that might be directly or indirectly detrimental to the Contractor or any of its affiliates or subsidiaries.

7. The obligations to ensure and protect the confidentiality of the Confidential Information imposed on the Sub-Contractor in this Agreement and any obligations to provide notice under this Agreement will survive the expiration or termination, as the case may be, of this Agreement and those obligations will last indefinitely.

8. The Sub-Contractor may disclose any of the Confidential Information:

a. to such of their agents, representatives and advisors that have a need to know for the Permitted Purpose provided that:

 

i. the Sub-Contractor has informed such personnel of the confidential nature of the Confidential Information;

ii.such personnel agree to be legally bound to the same burdens of confidentiality and non-use as the Sub-Contractor;

iii. the Sub-Contractor agrees to take all necessary steps to ensure that the terms of this Agreement are not violated by such personnel; and

iv. the Sub-Contractor agrees to be responsible for and indemnify the Contractor for any breach of this Agreement by their personnel.

b. to a third party where the Contractor has consented in writing to such disclosure; and

c. to the extent required by law or by the request or requirement of any judicial, legislative, administrative or other governmental body.

 

Non-Solicitation

9. The Sub-Contractor will not, during the term of this Agreement and for a period of two (2) years after the termination of this Agreement, directly or indirectly, employ or solicit for employment any person who is now employed or retained by the Contractor or any affiliate of the Employer without the prior written consent of the Contractor, which consent may not be unreasonably withheld.

 

Ownership and Title

10. The Contractor acknowledges and agrees that all rights, title and interest in any Confidential Information will remain the exclusive property of the Contractor. Accordingly, the Sub-Contractor specifically agrees and acknowledges that the Sub-Contractor will have no interest in the Confidential Information, including, without limitation, no interest in know-how, copyright, trademarks or trade names, notwithstanding the fact that the Sub-Contractor may have created or contributed to the creation of the same.

11. The Sub-Contractor does hereby waive any moral rights that the Sub-Contractor may have with respect to the Confidential Information.

12. The Confidential Information will not include anything developed or produced by the Sub-Contractor during the term of this Agreement, including but not limited to intellectual property, process, design, development, creation, research, invention, know-how, trade name, trademarks or copyright that:

a. was developed without the use of any equipment, supplies, facility or Confidential Information of the Contractor;

b. was developed entirely on the Sub-Contractor’s own time;

c. does not relate to the actual business or reasonably anticipated business of the Contractor;

d. does not relate to the actual or demonstrably anticipated processes, research or development of the Contractor; and

e. does not result from any work performed by the Sub-Contractor for the Contractor.

13. The Sub-Contractor agrees to immediately disclose to the Contractor all Confidential Information developed in whole or in part by the Sub-Contractor during the term of the Contractor and to assign to the Contractor any right, title or interest the Sub-Contractor may have in the Confidential Information. The Sub-Contractor agrees to execute any instruments and to do all other things reasonably requested by the Contractor (both during and after the term of the Contractor) in order to vest more fully in the Contractor all ownership rights in those items transferred by the Sub-Contractor to the Contractor.

Remedies

14. The Sub-Contractor agrees and acknowledges that the Confidential Information is of a proprietary and confidential nature and that any failure to maintain the confidentiality of the Confidential Information in breach of this Agreement cannot be reasonably or adequately compensated for in money damages and would cause irreparable injury to the Contractor. Accordingly, the Contractor agrees that the Contractor is entitled to, in addition to all other rights and remedies available to it at law or in equity, an injunction restraining the Sub-Contractor and any agents of the Sub-Contractor, from directly or indirectly committing or engaging in any act restricted by this Agreement in relation to the Confidential Information. Return of Confidential Information

15. The Sub-Contractor agrees that, upon request of the Contractor, or in the event that the Sub-Contractor ceases to require use of the Confidential Information, or upon expiration or termination of this Agreement, or the expiration or termination of the Contracted, the Sub-Contractor will turn over to the Contractor all documents, disks or other computer media, or other material in the possession or control of the Sub-Contractor that:

a. may contain or be derived from ideas, concepts, creations, or trade secrets and other proprietary and Confidential Information as defined in this Agreement; or

b. is connected with or derived from the Sub-Contractor services to the Contractor.

 

Notices

16. In the event that the Sub-Contractor is required in a civil, criminal or regulatory proceeding to disclose any part of the Confidential Information, the Sub-Contractor will give to the Contractor prompt written notice of such request so the Contractor may seek an appropriate remedy or alternatively to waive the Sub-Contractor compliance with the provisions of this Agreement in regards to the request.

17. If the Sub-Contractor loses or fails to maintain the confidentiality of any of the Confidential Information in breach of this Agreement, the Sub-Contractor will immediately notify the Contractor and take all reasonable steps necessary to retrieve the lost or improperly disclosed Confidential Information.

18. Any notices or delivery required in this Agreement will be deemed completed when hand-delivered, delivered by agent, or seven (7) days after being placed in the post, postage prepaid, to the parties at the addresses contained in this Agreement or as the parties may later designate in writing.

19. The address for any notice to be delivered to any of the parties to this Agreement is as follows:

 

a. Top Flight Assistance:

16044 Bear Valley Rd STE 10 Victorville CA 92395

Representations

 

20. In providing the Confidential Information, the Contractor makes no representations, either expressly or impliedly as to its adequacy, sufficiency, completeness, correctness or its lack of defect of any kind, including any patent or trademark infringement that may result from the use of such information.

Termination

21. This Agreement will automatically terminate on the date that the Sub-Contractor Contracts with the Contractor terminates or expires, as the case may be. Except as otherwise provided in this Agreement, all rights and obligations under this Agreement will terminate at that time. Assignment

22. Except where a party has changed its corporate name or merged with another corporation, this Agreement may not be assigned or otherwise transferred by either party in whole or part without the prior written consent of the other party to this Agreement.

 

Amendments

23. This Agreement may only be amended or modified by a written instrument executed by both the Employer and the Employee. Governing Law

24. This Agreement will be construed in accordance with and governed by the laws of California.

General Provisions

25. Time is of the essence in this Agreement.

26. This Agreement may be executed in counterparts.

27. Headings are inserted for the convenience of the parties only and are not to be considered when interpreting this Agreement. Words in the singular mean and include the plural and vice versa. Words in the masculine mean and include the feminine and vice versa.

28. The clauses, paragraphs, and subparagraphs contained in this Agreement are intended to be read and construed independently of each other. If any part of this Agreement is held to be invalid, this invalidity will not affect the operation of any other part of this Agreement.

29. The Sub-Contractor is liable for all costs, expenses and expenditures including, and without limitation, the complete legal costs incurred by the Contractor in enforcing this Agreement as a result of any default of this Agreement by the Sub-Contractor.

30. The Contractor and the Sub-Contractor acknowledge that this Agreement is reasonable, valid and enforceable. However, if a court of competent jurisdiction finds any of the provisions of this Agreement to be too broad to be enforceable, it is the intention of the Contractor and the Sub-Contractor that such provision be reduced in scope by the court only to the extent deemed necessary by that court to render the provision reasonable and enforceable, bearing in mind that it is the intention of the Sub-Contractor to give the Contractor the broadest possible protection to maintain the confidentiality of the Confidential Information.

31. No failure or delay by the Contractor in exercising any power, right or privilege provided in this Agreement will operate as a waiver, nor will any single or partial exercise of such rights, powers or privileges preclude any further exercise of them or the exercise of any other right, power or privilege provided in this Agreement.

32. By accepting this bid as a 1099 Subcontractor for marketing you hereby waive all rights to pursue Top Flight Assistance with legal action and must comply directly while we conduct an audit with the compliance department in the event of a dispute. Should you violate any policy or procedure you are subject to cancellation of your contract with Top Flight Assistance at anytime with a final audit for qualified final commissions.

Policies & Procedures

33.  I understand, have completed all training, and agree to comply within my job description.

34.  I understand and agree to follow the scripts and only use the content provided by and approved by management.

35. I understand and hereby agree with the lead generating compensation plan that is part of training.

36.  I understand the pay period is weekly and runs from Sunday to Saturday paid the following Friday.

37. I understand I must sign my payroll invoice sheet before any pay is distributed.

38.  I understand if I do not sign my payroll invoice sheet by Friday 4:00 PM PST, my payroll will resume on Monday.

39. I understand pay is not distributed at the moment of signing and that the HR Department has until 4:00 PM PST on Fridays to disburse my weekly earnings.

40. I understand no duplicates are accepted and all appointments must be in Zoho.

41. I understand an attempt to fake the system will result in an automatic termination.

42.  I understand I am responsible for tracking and documenting all of my own leads generated and appointments set.

43.  I understand an audit may be conducted at anytime during my contract with Top Flight Assistance.

44. I understand I represent Top Flight Assistance and adhere to meet all requirements, standards and expectations up to par with the morals and ideals of the company.

45.  I understand Top Flight Assistance prohibits harassment of any kind, including sexual harassment, and will take appropriate and immediate action in response to complaints or knowledge of violations of this policy. For purposes of this policy, harassment is any verbal or physical conduct designed to threaten, intimidate or coerce an employee, co-worker or any person working for or on behalf of Top Flight Assistance.

 

Non-Compete and Non-Solicitation Agreement

 

This is an Agreement between TWR Legacy Inc. DBA Top Flight Assistance and “Partners Name”, The Agreement is effective on “Signature Date”.

 

In consideration of the employment opportunity provided by Top Flight Assistance, You, intending to be legally bound, agree to the following:

 

  1. Term of Agreement.  This Agreement is effective on the Effective Date, and shall remain in effect throughout the term of your employment with the Company and for a period of one year thereafter.

  2. Limitations of this Agreement.  This Agreement is not a contract of employment. Neither You nor the Company are obligated to any specific term of employment.  This Agreement is limited to the subject matter of covenants not to compete or solicit as described in this Agreement.

  3. Covenant Not to Compete.  You agree that at no time during the term of your employment with the Company will you engage in any business activity which is competitive with the Company nor work for any company which competes with the Company.  

For a period of one (1) year immediately following the termination of your employment, You will not, for yourself or on behalf of any other person or business enterprise, engage in any business activity which competes with the Company within ______ miles of the facility in which you were employed.,

  1. Non-solicitation. During the term of your partnership, and for a period of one (1) year immediately thereafter, You agree not to solicit any employee or independent contractor of the Company on behalf of any other business enterprise, nor shall you induce any employee or independent contractor associated with the Company to terminate or breach an employment, contractual or other relationship with the Company.  

  2. Soliciting Customers After Termination of Agreement.  For a period of one (1) year following the termination of your employment and your relationship with the Company, You shall not, directly or indirectly, disclose to any person, firm or corporation the names or addresses of any of the customers or clients of the Company or any other information pertaining to them.   Neither shall you call on, solicit, take away, or attempt to call on, solicit, or take away any customer of the Company on whom You have called or with whom You became acquainted during the term of your employment, as the direct or indirect result of your employment with the Company.

  3. Injunctive Relief.  You hereby acknowledge (1) that the Company will suffer irreparable harm if You breach your obligations under this Agreement; and (2) that monetary damages will be inadequate to compensate the Company for such a breach.  Therefore, if You breach any of such provisions, then the Company shall be entitled to injunctive relief, in addition to any other remedies at law or equity, to enforce such provisions.

  4. Severable Provisions.  The provisions of this Agreement are severable, and if any one or more provisions may be determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions and any partially unenforceable provisions to the extent enforceable shall nevertheless be binding and enforceable.

1. Covenants not to compete are not favored by courts, so they generally are interpreted very narrowly.  They must be “reasonable” in terms of duration and the geographical area to which they apply.  Sometimes the duration can be as long as two or three years, while the size of the territory can be quite small, e.g., a 25 mile radius, or quite large, e.g., anywhere in the world.

2. Many companies market nationwide and even worldwide, so a narrow restriction may not be terribly helpful.  If you seek to limit activity anywhere in the United States or anywhere in the world, you will probably need to make the restriction much narrower.  You cannot, of course, deprive the partner of a way to earn a living in your industry.

3. An alternative clause is:

During the course of your partnership, You agree not to work for or provide any services to any competitor of the Company.  Neither shall you engage in any competitive activity with respect to the Company.  Competitive activity includes, but is not limited to, forming or making plans to form a business entity to directly compete with any business of the Company.  This provision does not prevent You from seeking or obtaining partnerships or other forms of business relationships with a competitor after termination of partnership with the Company so long as such competitor was in existence prior to the termination of your relationship with the Company and You were in no way involved with the organization or formation of such competitor.

contractor of the Company on behalf of any other business enterprise, nor shall you induce any employee or independent contractor associated with the Company to terminate or breach an employment, contractual or other relationship with the Company.  

5. Soliciting Customers After Termination of Agreement.  For a period of one (1) year following the termination of your employment and your relationship with the Company, You shall not, directly or indirectly, disclose to any person, firm or corporation the names or addresses of any of the customers or clients of the Company or any other information pertaining to them.   Neither shall you call on, solicit, take away, or attempt to call on, solicit, or take away any customer of the Company on whom You have called or with whom You became acquainted during the term of your employment, as the direct or indirect result of your employment with the Company.

6. Injunctive Relief.  You hereby acknowledge (1) that the Company will suffer irreparable harm if You breach your obligations under this Agreement; and (2) that monetary damages will be inadequate to compensate the Company for such a breach.  Therefore, if You breach any of such provisions, then the Company shall be entitled to injunctive relief, in addition to any other remedies at law or equity, to enforce such provisions.

7. Severable Provisions.  The provisions of this Agreement are severable, and if any one or more provisions may be determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions and any partially unenforceable provisions to the extent enforceable shall nevertheless be binding and enforceable.

8. Modifications.  This Agreement may be modified only by a writing executed by both You and the Company.

9. Prior Understandings.  This Agreement contains the entire agreement between the parties with respect to the subject matter of this Agreement.   The Agreement supersedes all prior understanding, agreements, or representations.

10. Waiver.  Any waiver of a default under this Agreement must be made in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.  No delay or omission in the exercise of any right or remedy shall impair such right or remedy or be constructed as a waiver.  A consent to or approval of any act shall not be deemed to waive or render unnecessary consent to or approval of any other or subsequent act.

11. Jurisdiction and Venue.  This Agreement is to be construed pursuant to the laws all US States.  You agree to submit to the jurisdiction and venue of any court of competent jurisdiction in respective County(s), within that without regard to conflict of laws provisions, for any claim arising out of this Agreement.

By your signature below you acknowledge that you have read and understand the foregoing Agreement, that you agree to comply with all of the terms of the Agreement, and that you have received a copy of the Agreement.

 

IN WITNESS WHEREOF Top Flight Assistance and _________________________ have duly affixed their signatures under hand and seal on this _____ day of ________________, 2018.

 

Sub-Contractor Top Flight Assistance (Contractor)

______________________________ (Print) Per: Jessica Trujillo HR Director

______________________________ (Sign) __________________________________


 


 


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