This Non-Compete Agreement (“Agreement”) is entered into by and between Fitness Marketing Machine, with an address of, 4452 Bravery Place SW Concord, NC 28027 (“the Company”) and , with an address of, , (the “Individual”), collectively referred to as the “Parties”), as of (the “Effective Date”).
Prohibited Activity. For purposes of this non-compete clause, “Prohibited Activity” is an activity in which the Individual contributes the Individual’s knowledge, directly or indirectly, in whole or in part, as an employee, employer, owner, operator, manager, advisor, consultant, contractor, agent, partner, director, stockholder, officer, volunteer, intern, or any other similar capacity to an entity engaged in the same or similar business as the Company.
The Individual acknowledges that the Company’s primary business is a Consulting Agency engaged in Client Relationship Management Automation, Marketing Automation, and Data And Analytics Automation.
The Individual shall be prohibited from competing with the Company in the Company’s primary business described above. Prohibited Activity also includes activity that may require or inevitably require disclosure of trade secrets, proprietary information, or Confidential Information.
Restricted Period. The Individual shall be prohibited from competing with the Company for a period of 12 months upon the termination of its relationship with the Company.
Restricted Territory. The Individual agrees and covenants not to engage in Prohibited Activity within a 50-mile radius from the Company’s primary business location at 4452 Bravery Place SW Concord, NC 28027.
Non-Solicitation. The Individual agrees and covenants not to directly or indirectly solicit, hire, recruit, or attempt to solicit, hire, or recruit, any employee of the Company. The Individual agrees not to solicit, either directly or indirectly, the business of any client and/or customer of the Company.
This non-solicitation provision explicitly covers all forms of oral, written, or electronic communication, including, but not limited to, communications by email, regular mail, express mail, telephone, fax, instant message, and social media, including, but not limited to, Facebook, LinkedIn, Instagram, Twitter, and any other social media platform, whether or not in existence at the time of entering into this Agreement.
Proprietary and Confidential Information. “Proprietary and Confidential Information” means any information of the Company that is not generally known to the public or to Company’s competitors in the industry, was not known by the Individual prior to signing this Agreement, is used in the business of the Company, and gives the Company an advantage over businesses that do not know the information. “Proprietary and Confidential Information” also means any information of one of the Company’s customers that is not generally known to the public or to the customer or the Company’s competitors in the industry, was not known by the Individual prior to signing this Agreement, is used in the business of the customer or the Company, and gives the customer or the Company an advantage over businesses that do not know the information. “Proprietary and Confidential Information” includes, but is not limited to: the identity of the Company’s customers and prospective customers; personal relationships with those customers; the Company’s customers’ preferences and tendencies; the Company’s purchasing, products, pricing, cost, and sales arrangements with customers and suppliers; the Company’s marketing techniques, business plans, and strategies; the Company’s customers’ financial information; the Company’s inventorying and shipping techniques; and the Company’s customer lists, sales reports, inventory reports, cost reports, and other proprietary information received from the Company. Because of the nature and sensitivity of this information, the Individual acknowledges that the Company has a legitimate business and competitive interests and legal rights to require non-disclosure of the information and to require that it be used only for the Company’s benefit.
Acknowledgment. The Individual understands and acknowledges that the restrictions, prohibitions, and other provisions set forth in this Agreement, including the Prohibited Activity, Restriction Period, and Restricted Territory, are fair, reasonable, and equitable in its scope, terms, and duration. Further, the individual acknowledges that this Agreement is necessary to protect the business interest or the like of the Company and is a significant inducement to the Company to enter into this Agreement.
Modification and Waiver. The failure of or delay by either Party in exercising any right, power, or privilege under this Agreement operates as a waiver to preclude any other or further exercise of any right, power, or privilege.
Attorneys’ Fees. If the Individual breaches any of the terms of the restrictive covenant obligations in this Agreement, to the extent authorized by state law, the Individual will be responsible for payment of all reasonable attorneys' fees and costs the Company]= incurred in the course of enforcing the terms of the Agreement, including demonstrating the existence of a breach and any other contract enforcement efforts.
Legal and Binding Agreement. This Agreement is legal and binding between the Parties herein. The Parties each represent they have the authority and capacity to enter into this Agreement.
Governing Law and Jurisdiction. The Parties agree that this Agreement shall be governed by the State and/or Country in which the Company is located.
Severability. Should any provision of this Agreement be deemed enforceable or invalid, and thus stricken, that determination shall not affect the validity of the remainder of this Agreement, the balance of which shall continue to be binding on the Parties with any modification to become a part of and treated as though originally set forth in this Agreement.
Captions. Captions and headings of the sections and paragraphs of this Agreement are intended solely for convenience and no provision of this Agreement is to be construed by reference to the caption or heading of any section or paragraph.
Entire Agreement. Unless specifically provided herein, this Agreement contains all the understandings and representations between the Company and the Individual pertaining to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. Delivery of an executed counterpart's signature page of this Agreement, by facsimile, electronic mail in portable document format (.pdf), or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, has the same effect as delivery of an executed original of this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date above.
Michael Montefusco - CEO/OwnerFitness Marketing Machine
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Signed by Chona Mendoza
Signed On: 05/26/2021
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Document Name: Non-Compete Agreement
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