Non-Disclosure and Non-Competition Agreement

 

RECITALS

 

A. Lavish is engaged in the rental, management, and cleaning of vacation properties (collectively the “Business Operations”).

 

B. Contractor wants to be employed by Lavish in a supervisory and/or booking agent and/or office staff and/or cleaning supervisor and/or cleaning staff and/or caretaking staff or being promoted to such position and will be trained with the confidential and proprietary know-how and knowledge of the Business Operations according to Lavish’s techniques and methods.

 

C. Lavish is willing to contract with and/or to promote Contractor in a supervisory and/or booking agent and/or office staff and/or cleaning supervisor and/or cleaning staff and/or caretaking staff and to teach said Contractor its business and procedures for the Business Operations as well as acquaint and in part knowledge of Lavish’s trade secrets and confidential know-how involved in the acquisition, renting management and operation of such facilities and to put Contractor in Contact with

customers, property owners, property managers as well as other persons and businesses that

Lavish is or will be doing business with, provided that Contractor enters into this

Agreement.

 

NOW, THEREFORE, in consideration of the covenants contained herein, and

recognizing that the foregoing recitals are integral and substantive terms of this agreement and

in consideration of Lavish's providing Contractor with confidential information regarding

Lavish's business, and in consideration of Lavish providing Contractor with employment or

continued employment, the Parties agree as follows:

 

1. Confidential Information: Lavish will furnish Contractor detailed instructions and information of Business Operations including procedures, methods, forms, equipment, Computer programs and other information and teach and train Contractor and make arrangements for Contact with property owners, property owners, property managers, Realtors, customers, retailers, suppliers and other persons with whom Lavish does business. Contractor might have access to certain trade secrets and other Confidential information owned, used, held, or developed by Lavish. The term “Confidential information” includes all information relating to Lavish, its business, or its products that is not generally known to the public, for example, methods, processes, formulas, designs, inventions, techniques, computer programs, schematics, research, projects, programs, sales, customers, pricing, sources of marketing information, forms, manuals, internal documents, memoranda, notes, and

correspondence. “Confidential information" also includes information received from third

parties under an obligation of confidentiality. The Confidential information is proprietary to

Lavish (or the third party from which it was received) and is very valuable. Contractor

recognizes that any unauthorized use or disclosure of the Confidential information would

cause serious injury to Lavish. Said instructions, information and know-how is valuable

and confidential and will be treated as such by Contractor in accordance with the terms of

this agreement, and the obligation to do so constitutes an essential and integral part of the

consideration for employment and the execution of this agreement by Lavish. Lavish's

Willingness to employ or continue to employ Contractor depends upon his or her

commitment to protect the Confidential information and to comply with this Agreement.

 

2. Good Will: Contractor acknowledges that Lavish has developed a substantial good Will in its business and has a need to protect its good will in the locations to be served by Contractor and all other locations where Lavish does business. Contractor also acknowledges that Contractor will be a key Contractor and as such the services rendered by Contractor are and will be unique, special and extraordinary, and, therefore, Contractor has been and will be entrusted with Confidential information, and has been and will be entrusted with good will of Lavish, and has created, by Virtue of his work for Lavish as its Contractor and agent, and will be creating for Lavish, good will with Customers and

potential customers and/or vendors and suppliers of Lavish and will, in connection with,

and as a result of his/her employment by Lavish, receive training and education in the

business of Lavish; and has been and will be introduced to and entrusted with important

customers and accounts of Lavish.

 

3. Scope of Business: Contractor recognizes that Lavish's business interest and goodwill could be undermined seriously if Contractor were to utilize the confidential information or

Customer Contacts that Contractor obtains during the course of his or her employment to

compete against Lavish and the Parties believe this Agreement contains reasonable

limitations with respect to time, geographical area and scope of activity that are designed to

protect Lavish's business interest and goodwill. Contractor recognizes that Lavish

provides services and has customers throughout the Western United States of America and Hawaii.

 

4. Term and Scope of Non-Competition Provisions: In consideration of the employment or continued employment of Contractor by Lavish the payments to be made to Contractor pursuant to Contractor's agreements with Lavish and in consideration of the other mutual Covenants promises, obligations, and agreements of Lavish set forth herein, Contractor acknowledges, agrees, and covenants with Lavish that: (i) The customers and prospective customers of Lavish are, and at all times will be the sole and separate property of Lavish; Contractor has and will acquire no property or other right therein; all

activities of or Work performed by Contractor relative thereto have been and will be performed by Contractor for the benefit of Lavish and the good will resulting from Contractor's efforts with respect thereto is and at all times will be the sole and separate property of Lavish; which good will is intended to be protected, in part, by this Agreement; (ii) During the period of Contractor's employment with Lavish and for a period of twenty four (24) months ("the non-competition period") from the day on which Contractor ceases, for any reason and at any time, to be an Contractor of Lavish (the "Effective Date of Termination"), Contractor will not, in any capacity, and whether for compensation or not,

without the prior written consent of Lavish:

 

(a) directly or indirectly, alone, with or for others, visit, call upon, contact or communicate with any entity or person which or who on or as of the Effective Date of Termination, is a customer or prospective custom er of Lavish, with whom Contractor has had Contact during the term of his or her employment, for the purpose, directly or indirectly, of soliciting, seeking, inducing, persuading, requesting, encouraging, accepting, or otherwise attempting to provide services or products which compete with Lavish;

 

(b) directly or indirectly induce, or attempt to influence any Contractor of Lavish to terminate his or her employment with Lavish or to undertake any other employment while still employed by Lavish;

 

(c) be employed by, be associated with, consult with or have any direct or indirect financial and/or ownership interest nor furnish advice or information or financial or other aid, support, know-how, contacts or knowledge to any person or entity which is in any way or degree competitive with Lavish nor solicit or negotiate leases or management agreements or negotiate rentals of properties or cleaning contracts from owners or representatives of owners of where Contractor has been employed by Lavish and had Contact with customers of Lavish; or

 

(d) attempt to persuade any officer Contractor, agent, customer or account of Lavish, with whom Contractor has had Contact during the term of his or her employment, to discontinue or alter its relationship with Lavish or work with or for any individual employee of Lavish at any time within one hundred twenty (120) days of the date on which the employment of such individual with Lavish was

terminated in any form of business that competes in any way with Lavish.

 

Contractor acknowledges that the terms of this Paragraph 1 as limited herein are reasonable and necessary to preserve Lavish's good will and Confidential information. Contractor also acknowledges that the terms of this Paragraph 1 do not prevent Contractor from earning a livelihood without violating the restrictions contained in this Agreement after Contractor's employment is terminated and that Contractor's ability to earn such a livelihood without violation of these terms is a material prerequisite to Lavish's employment.

 

Reformation: In the event a court of competent jurisdiction finds the terms of this Agreement

in conflict with applicable state or local laws, ordinances, rules or regulations applicable to

the geographical area where Contractor is working, the court involved shall reform the

applicable provision(s) of this Agreement so as to be reason able and/or to provide fora

term or scope that is the maximum such court will permit. The Parties recognize and agree

that Lavish shall be entitled to injunctive relief during the pendency of the litigation prior to

any court reformation of this Agreement.

 

Commencement of Twenty-Four Month Term: In the event Contractor institutes an action to

challenge the enforceability of this Agreement, or Lavish institutes an action to enforce

this Agreement, and the court to which the action is assigned declines to provide Lavish

with injunctive relief during the pendency of the litigation, the twenty-four month term of non-

Competition will commence upon a court's final ruling, after any appeals, that this Agreement

is enforceable.

 

Term of Confidentiality Provisions: The terms of this Agreement relating to the Confidential

information will remain in force during Contractor's employment and will continue thereafter

until all Confidential information acquired by Contractor becomes part of the public

knowledge.

 

Protection of the Confidential Information: Contractor shall hold the Confidential Information

in confidence and shall protect it with utmost care. Contractor shall not disclose, copy, or

permit any person to copy any of the Confidential information. Contractor shall not use any

of the Confidential information except as necessary to perform his or her duties as an

Contractor of Lavish.

 

Information Belonging to Third Parties: In the event that Lavish receives trade secrets or

other Confidential information belonging to any third party and Contractor has access to

such trade secrets or other Confidential information, Contractor shall hold all such trade

secrets and other Confidential Information in confidence and shall comply with the terms of

any and all agreements between Lavish and the third party with respect to such trade

secrets and Confidential Information.

 

Return of Confidential Information: Upon Lavish’s request, and in any event upon

termination of Contractor's employment, Contractor shall promptly return to Diamond all

materials in his or her possession or control that contain or represent Confidential

Information, including but not limited to documents, drawings, diagrams, flow charts,

computer programs, memoranda, notes, and every other medium.

 

10. No Conflicts with Prior Obligations: Contractor represents and warrants that his or her

employment by Lavish and his or her performance of this Agreement will not conflict with

any obligations that Contractor may have with third parties. Without limiting the foregoing,

Contractor agrees that he or she will not disclose to Diamond or use in Diamond’s behalf

any confidential or proprietary information belonging to a third party, unless the third party

has consented to the disclosure or use of the information.

 

11. Remedy for Breach: The parties acknowledge that substantial injury will be

suffered by Lavish if Contractor breaches this Agreement and that such losses will be

difficult if not impossible to determine or to be made certain by any measure of money

damages. Contractor hereby waives any argument to the contrary.

 

12. Contractor agrees that Lavish will be entitled to an injunction restraining any actual or threatened breach of this Agreement, or specific performance, if applicable. Therefore, if Lavish shall institute any

action or proceedings to enforce the provisions hereof, the undersigned agrees that the

court in such an action, in addition and not in lieu of any and all other forms of relief, may

grant injunctive relief and the undersigned hereby waives the claim or defense that Diamond

has an adequate remedy at law and Contractor covenants and agrees not to urge in any

such action or proceeding the claim or defense that such a remedy at law exists.

 

Attorneys' Fees: In the event of a breach of this Agreement, the non-breaching party shall

be entitled to collect from the breaching party any and all costs, including reasonable

attorneys' fees, incurred by the non-breaching party in enforcing this Agreement. Such relief

shall be in addition to any other relief to which the non-breaching party is entitled.

 

13. Legal Advice: Contractor has had the opportunity, prior to executing this Agreement, to

consult with his or her legal counsel to determine the effect of this Agreement.

 

14. Choice of Law: This Agreement shall be governed by and construed in accordance with the

laws of the State of Washington, or in the event such election is invalid, the law of the state

or states in which Contractor performs services for Lavish or has contact and access to

proprietary information or customers or Confidential information.

 

15. Relationship of the Parties: This Agreement is not intended to and does not create a n

agreement of employment between Lavish and Contractor. Nothing in this agreement

shall be construed to Create an employment contract for any specific term or length of time

and Lavish and Contractor agree that any such employment shall be at will and may be

terminated by either party at any time for any reason, with or without cause, and without

notice. Contractor acknowledges that this agreement is collateral to a separate enforceable

employment agreement and that nothing in this agreement shall be construed to lim it or

abrogate any term of the separate employment agreement or the terms of Lavish's

Contractor Handbook or to alter Contractor's obligations to comply therewith.

 

16. Severability: The invalidity or unenforceability of any one or more provisions of this

Agreement will in no way affect any other provisions.

 

17. Successors and Assigns:. All the terms of this Agreement shall be binding upon and inure to

the benefit of and be enforceable by the Parties and their respective successors, assigns,

heirs, and legal representatives and nothing herein contained is intended to confer any right,

remedy, or benefit upon any other person.

 

18. Entire Agreement: This Agreement, represents the final expression of the agreement and

understanding of the Parties with respect to the general subject matter hereof and

supersedes any previous understanding, negotiations or discussions, Whether written or

oral, and may not be contradicted by evidence of any alleged oral agreement.

 

19. Modification: The Parties agree that the terms of this Agreement may not be modified,

changed or amended by any oral agreement , express or implied and any modification shall

be in a writing signed by both Parties.

 

20. Waiver: The failure of either party to insist upon, or enforce, on one or more occasions, strict performance of any terms of this Agreement shall not be construed or operate as a waiver or relinquishment of any right to the future performance of such term, covenant or condition which shall continue in full force and effect.