NON-DISCLOSURE, NON-COMPETITION,
NON-SOLICITATION AND NON-DISPARAGEMENT AGREEMENT
This AGREEMENT is made on the date of Affiliate’s registration herein, by and between Three Designing Women, LLC, a Texas limited liability company, and Phylecom, LLC (as owner of Artisan StampTM and as retail customer to Three Designing Women, LLC, it’s partner in the affiliate sales program), together for the purpose of this affiliate sales program (“Company”), and Affiliate, whose address is provided by Affiliate as a part of registration (“Contractor”).
WHEREAS, the Company desires Contractor’s employment as an independent contractor with the Company, and the Contractor wishes to accept such employment, upon the terms of this Agreement;
WHEREAS, the Company is, among other things, engaged in the development, design, production, marketing, and sale of custom and personalized products;
WHEREAS, the Company has developed a large and extensive trade with a substantial number of customers which are of great value to the Company;
WHEREAS, the parties hereto agree that the covenants, agreements and restrictions contained herein are necessary to protect the business goodwill, business interests, trade secrets, and all proprietary and other rights of the Company and that the parties hereto have independently discussed, reviewed and had the opportunity of legal counsel to consider this agreement;
WHEREAS, these covenants are an integral part of an enforceable agreement and the covenants contained herein were made at the time this Agreement was consummated by the parties hereto;
WHEREAS, Contractor represents to the Company that he/she is willing and able to engage in businesses that are not restricted pursuant to this Agreement and that enforcement of the restrictive covenants set forth herein will not be unduly burdensome to Contractor. This covenant is fair and reasonable in its geographical area, length of time, and scope of activity being restrained; and
WHEREAS, Company agrees to employ Contractor for the purposes of generating sales, which Contractor may be referenced as Affiliate, and/or by Artisan Stamp/Phylecom, LLC as Affiliate, Gift ConciergeTM, or Gifting ConciergeTM.
IT IS HEREBY AGREED, for and in consideration satisfied herein and other good and valuable consideration and the promises and mutual agreements set forth in this Agreement, the parties hereby agree as follows:
1. Covenant Not to Disclose; Confidentiality. During the Contractor’s employment with the Company and upon termination of Contractor’s employment by the Company for any reason whatsoever (“Termination”), Contractor agrees that for a period of two (2) years immediately following Termination, Contractor will not directly or indirectly for himself or herself or on behalf of any other person, affiliate, partnership, corporation, or association, disclose trade secrets, special training, or proprietary rights of the Company which Contractor learned or became aware of during Contractor’s employment with the Company, except as necessary to consult with Contractor’s spouse or legal counsel. These restrictions do not apply to the extent that testimony is required by legal process; provided, that, Contractor shall give the Company not less than five (5) business days prior written notice of such proposed testimony or if Contractor has received lesser notice, such prompt notice as shall be practicable.
2. Covenant Not to Compete; Non-Solicitation. Contractor hereby covenants and agrees that:
- Non-Competition. During Contractor’s employment with the Company and for a period of two (2) years after Contractor’s Termination, Contractor shall not, directly or indirectly or through Contractor, agent, affiliate, partner, owner, shareholder or director of any entity be employed by, consult or render services for or become financially interested in (via equity or debt) any Competitive Business anywhere in the United States, unless such relationship by the Contractor has been consented to in writing by the Board of Managers of the Company, which consent may be withheld for any reason. Notwithstanding anything herein to the contrary, nothing in this Agreement shall prevent or prohibit the Contractor from owning not more than 2% of a class of equity securities issued by any entity listed on any national securities exchange or interdealer quotation system. For purposes of this Agreement, the term “Competitive Business” shall mean any business engaged in the development, design, production, marketing and sale of custom and personalized products, and/or any other products sold or under development, by the Company up to and at the date of Termination. For purposes of this Agreement the products of a Competitive Business shall include without limitation those described in Exhibit A.
The Contractor acknowledges that: (a) the services to be performed by him/her are of a special, unique, unusual, extraordinary, and intellectual character; (b) the Employer’s business is national in scope and its products are marketed throughout the United States and North America; (c) the Employer competes with other businesses that are or could be located in any part of the United States and North America; (d) the Company has required that the Contractor make the covenants set forth in this agreement as a condition to the employment; and (e) the provisions of this section are reasonable and necessary to protect the Company’s business.
- Non-Solicitation of Customers and Vendors. During the Contractor’s employment with the Company and for a period of two (2) years after Contractor’s termination, Contractor shall not, directly or indirectly, or through an employee, agent, contractor, affiliate, partner, owner, shareholder or director of any entity, induce, recruit, encourage, solicit, attempt to solicit or accept the business or patronage of any customer, former customer, or potential customer of the Company, or otherwise induce any such customer, former customer, potential customer or vendor to reduce, limit, curtail, terminate restrict or otherwise alter their business relationships with the Company, unless such action has been consented to in writing by the Board of Managers of the Company, which consent may be withheld for any reason. The term “former customer” shall mean any person or entity who ceased being a customer of the Company within the twelve-month period prior to Contractor’s termination, and the term “potential customer” shall include any person or entity with whom the Company has had substantive discussions with regarding becoming a customer of the Company within 30 days following the date the Contractor ceases to be an Contractor of the Company. This restriction, however, shall apply only to the solicitation of customers, former customers, potential customers or vendors for a Competitive Business. Nothing contained herein shall prohibit, restrict or otherwise hinder a Contractor from doing business with a customer, former customer, potential customer or vendor, if the context of such business relationship is not for the development or promotion of a Competitive Business, or is not to induce any such customer, former customer, potential customer or vendor to reduce, limit, curtail, terminate, restrict or otherwise alter their business relationships with the Company.
- Non-Solicitation of Contractors. While a Contractor of the Company and for a period of two (2) years after the Contractor’s Termination, the Contractor shall not hire or employ, directly or indirectly, or through, an Contractor, agent, contractor, affiliate, partner, owner, shareholder or director of any entity, any existing or future employee of the Company (each, a “Covered Employee”), or solicit, divert, recruit or attempt to induce, directly or indirectly, any Covered Employee to leave his or her position with the Company or to become associated with a Competitive Business, unless such action has been consented to in writing by the Board of Managers of the Company, which consent may be withheld for any reason. For the purpose of this paragraph, an employee of the Company shall be considered a Covered Employee of the Company while he or she is employed by the Company (or an entity controlled by, controlling or under common control with the Company) and for a period of 6 months following the termination of that Contractor’s employment.
3. Non Disparagement. Contractor will not disparage the Company or its affiliates or its business to any person. These restrictions do not apply to the extent that testimony is required by legal process; provided, that, Contractor shall give the Company not less than five (5) business days prior written notice of such proposed testimony or if Contractor has received lesser notice, such prompt notice as shall be practicable.
4. Remedies. The Contractor agrees that each of the covenants and agreements contained in this Agreement are independent of but ancillary to this Agreement; that each such covenant and agreement is reasonable and necessary to protect and preserve the interests and properties of the Company; that irreparable loss and damage will be suffered by the Company should the Contractor breach any of such covenants and agreements; and that in addition to all other remedies available to it, the Company shall be entitled to injunctive or other equitable relief to prevent a breach or contemplated breach by the Contractor of any of such covenants or agreements, and the Contractor agrees to reimburse the Company for all costs and expenses, including court/arbitration costs and attorney’s fees, incurred by the Company in connection with the enforcement of this Agreement. The parties have attempted to limit the Contractor’s right to compete only to the extent necessary to protect the Company. If the Contractor violates any of the covenants of this Agreement the two-year term of the restriction violated shall be extended by the amount of time that such Contractor was in violation.
5. Severability/Entire Agreement. The parties hereto expressly agree and intend that if the scope or enforceability of these covenants, or any other covenant or agreement contained herein, is deemed by a binding authority to be unenforceable at any time in any way, such covenants may be modified and enforced to the extent reasonably necessary under the circumstances existing at that time. If any provision of this Agreement is held to be void or unenforceable in whole or in part, the parties intend and agree that such declaration shall not affect the validity of the remaining portions or sections of this Agreement. The parties expressly intend that the covenants set forth in this Agreement shall be severable from and independent of every other provision and covenant of this Agreement and each constitute separate and distinct covenants and agreements. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereto, and supersedes and is in full substitution of any and all prior agreements and understandings whether written or oral between said parties relating to the subject matter hereof and any contemporaneous oral statements. Neither party has relied upon any representations other than those set forth in this Agreement. The recitals listed above are incorporated herein for all purposes as it stated herein.
The failure of either party hereto at any time, or for any period of time, to enforce any of the provisions of this Agreement shall not be construed as a waiver of such provision(s) or of the right of such party thereafter to enforce each and every such provision.
6. Amendment. This Agreement may not be amended or modified in any respect except by an agreement in writing executed by the parties hereto.
7. Assignment. This Agreement may be assigned by the Company by operation of law in connection with a merger, consolidation or other combination in which it is not the surviving entity and in connection with a sale of all or substantially all of its assets which includes the Business. This Agreement may not be assigned by Contractor without the prior written consent of the Company.
8. Successors. This Agreement shall be binding upon and shall inure to the benefit of and be enforceable by each of the parties hereto and their respective permitted successors and assigns.
9. Specific Performance. Contractor acknowledges that its breach of the provisions of Sections 1, 2 and 3 of this Agreement will cause irreparable harm to the Company, for which there may be no adequate remedy at law and for which the ascertainment of damages would be difficult. Therefore, Contractor acknowledges that the Company shall be entitled, in addition to, and without having to prove the inadequacy of, other remedies at law (including without limitation damages for prior breaches hereof), to specific performance of this Agreement, as well as injunctive relief (without being required to post bond or other security, or if the law will not permit injunctive relief without bond or other security. Contractor agrees that a $1,000 bond shall be adequate).
10. Notice. All notices or other communications that are required or may be given pursuant to the terms of this Agreement shall be sufficient if given in writing and delivered personally or by a recognized courier service or by registered or certified mail, postage prepaid, to the parties at the following addresses:
If to Contractor: At the address provided by Affiliate as a part of registration.
If to Company: Three Designing Women and ArtisanStamp.com Affiliate Program
3330 Keller Springs Road, Suite 220
Carrollton, Texas 75006
Attn: Three Designing Women, LLC Board Manager
Telephone: (972) 267-4332
accounting@threedesigningwomen.com
Notice given as set forth above shall be deemed delivered only when actually received. Any party may change their address for purposes of giving notice hereunder by giving notice of such change to the other party hereto.
11. Descriptive Headings. The descriptive hearings of the sections of this Agreement are inserted for convenience only and shall not control or affect the meaning or construction of any of the provision hereof.
12. Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instruments. One or more counterparts of this Agreement may be delivered via facsimile transmission, with the intention that they shall have the same effect as an original counterpart hereof.
13. Attorney Fees and Costs. In the event that attorneys’ fees or other costs are incurred to secure performance of any of the obligations provided for herein, or to establish damages for the breach thereof or to obtain any other appropriate relief, whether by way of prosecution or defense, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs incurred therein.
14. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS, EXCLUSIVE OF ITS PRINCIPLES OF CONFLICTS OF LAWS. THE STATE AND FEDERAL COURTS LOCATED IN DALLAS COUNTY, TEXAS BE THE EXCLUSIVE VENUE FOR THE RESOLUTION OF ANY DISPUTE BETWEEN THE PARTIES ARISING OUT OF OR RELATING TO THIS AGREEMENT.
15. Reformation. If any covenant in this agreement is held to be unreasonable, arbitrary, or against public policy, such covenant will be considered to be divisible with respect to scope, time, and geographic area, and such lesser scope, time or geographic area, or all of them, as a court of competent jurisdiction may determine to be reasonable, not arbitrary, and not against public policy, will be effective, binding, and enforceable against the Contractor.
16. Notification to Subsequent Employer. The Contractor will, while the covenants under this agreement are in effect, give notice to the Company, within ten days after accepting any other employment, of the identity of the Contractor’s employer. The Company may notify such employer that the Contractor is bound by this Agreement and, at the Company’s election, furnish such employer with a copy of this Agreement or relevant portions thereof.
17. Waiver of Jury Trial. THE PARTIES HERETO HEREBY WAIVE A JURY TRIAL IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as a part of and by virtue of Affiliate registration and as of the date referenced same.
Exhibit A
Company Products for Purposes of Determining a Competitive Business
Custom and personalized products, and/or any other products sold or under development by the Company up to and at the Termination date. Products include but are not limited to housewares, gifts, accessories, and other items that can be customized and/or personalized with monograms, names, designs, logos, expressions and otherwise.
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