(B) Termination for Cause. Notwithstanding paragraph 18(A) hereof, this Agreement will terminate automatically on the occurrence of any of the following events:
- (i) Bankruptcy or insolvency of either party;
- (ii) Sale of the business of Contractor’s business;
- (iii) Death or dissolution of either party;
- (iv) Assignment of this Agreement by Contractor; or
- (v) Termination for Default as set forth in paragraph 18(C) herein.
(C) If either party defaults in the performance of this Agreement or materially breaches any of its provisions, the non-breaching party may terminate this Agreement by giving written notification to the breaching party. Termination will take effect immediately on receipt of notice by the breaching party or five (5) days after mailing of notice, whichever occurs first. For the purposes of this paragraph, material breach of this agreement includes, but is not limited to, the following:
- (i) FT’s failure to pay Contractor any compensation due within 30 days after written demand for payment;
- (ii) Contractor’s failure to complete the services specified in the Description of Services;
- (iii) Contractor’s material breach of any representation, provision or agreement contained in this Agreement; and
- (iv) FT’s material breach of any representation or agreement contained in this Agreement.
Proprietary Rights. Contractor agrees that all designs, plans, reports, specifications, drawings, inventions, processes, and other information or items produced by Contractor while
performing services under this Agreement will be assigned to FT as the sole and exclusive property of FT and FT’s assigns, nominees, and successors, as will any copyrights, patents, or trademarks obtained by Contractor while performing services under this Agreement. On request and at FT’s expense, Contractor agrees to help FT obtain patents and copyrights for any new developments. This includes providing data, plans, specifications, descriptions, documentation, and other information, as well as assisting FT in completing any required application or registration.
Confidential Information. Any written, printed, graphic, or electronically or magnetically recorded information furnished by FT or FT’s clients for Contractor’s use are the sole property of FT and/or FT’s clients. This proprietary information includes, but is not limited to, this Agreement, the Description of Services, the payment schedule contained in the Description of Services, customer requirements, customer lists, marketing information, and information concerning FT’s employees, FT’s clients’ employees, products, services, prices, operations, and subsidiaries. Contractor will keep this confidential information in the strictest confidence, and will not disclose it by any means to any person except with FT’s written approval, and only to the extent necessary to perform the services under this Agreement. This prohibition also applies to Contractor’s employees, agents, and subcontractors. On termination of this Agreement, Contractor will return any confidential information in Contractor’s possession to FT and/or FT’s client.
Non-Solicitation and Non-Competition.
(A) During the term of this Agreement and for a period of two (2) years following the termination of this Agreement, Contractor will not do either of the following: (1) call on, solicit, or take away any of FT’s customers or potential customers Contractor became aware of as a result of performing services under this Agreement, which shall include, without limitation, any of FT’s customers for whom Contractor had performed services prior to execution of this Agreement; or (2) solicit or hire away any of FT’s employees or other independent contractors whom Contractor became aware of as a result of performing services under or prior to execution of this Agreement.
(B) During the term of this Agreement and for a period of two (2) years following the termination of this Agreement, Contractor will not engage in competition with FT by: (1) calling on, (2) soliciting, (3) taking away, or, (4) conducting auctions or sales for any of the entities, for whom FT is conducting sales or auctions of Trustee/foreclosure properties which Contractor became aware of as a result of performing services under this Agreement, which shall include, without limitation, any of such entities and FT’s customers for whom Contractor had performed services prior to execution of this Agreement.
(C) During the term of this Agreement and for a period of two (2) years following the termination of this Agreement, Contractor expressly agrees that Contractor will not enter into any Agreement, directly or indirectly, as an employee or an independent contractor, with Auction.com, to provide any of the services Contractor is providing under this Agreement, or to provide any services related to the services Contractor is providing under this Agreement.
A. Notices. Any notices required to be given under this Agreement by either party to the other may be effected by personal delivery in writing or by mail, registered or certified, postage prepaid with return receipt requested. Mailed notices must be addressed to the parties at the addresses appearing in the introductory paragraph of this Agreement, but each party may change the address by giving written notice in accordance with this paragraph. Notices delivered personally will be deemed communicated as of actual receipt; mailed notices will be deemed communicated as of the day of receipt or the fifth day after mailing, whichever occurs first. Notices may be delivered by electronic mail (email) with both parties’ consent, and if such consent has been given any notice delivered by email will be deemed communicated (1) as of delivery of a “read receipt”, (2) delivery of a responsive email or written acknowledgment of receipt, or (3) one business day after successful transmission of such email, whichever occurs first.
B. Entire Agreement of the Parties. This Agreement supersedes any and all agreements, either oral or written, between the parties with respect to the rendering of services by Contractor for FT and contains all of the representations, covenants, and Agreements between the parties with respect to the rendering of those services. Each party to this Agreement acknowledges that no representations, inducements, promises, or Agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not contained in this Agreement, and that no other Agreement, statement, or promise not contained in this Agreement will be valid or binding. Any modification of this Agreement will be effective only if it is in a writing signed by the party to be charged.
C. Partial Invalidity. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will continue in full force and effect without being impaired or invalidated in any way.
D. Payment of Moneys Due Deceased Contractor. If Contractor dies before completing the services under this Agreement, any moneys due Contractor from FT under this Agreement as of the date of death will be paid to the Contractor’s executors, administrators, heirs, personal representatives, successors, and assigns.
E. Liquidated Damages. The parties agree that in the event of a breach of paragraphs 19, 20, 21 or any provision of this Agreement by either party other than unpaid monetary compensation or reimbursement of expenses for services provided, it would be impracticable or extremely difficult to fix the actual damage and, therefore, the breaching party will pay to the non-breaching party as liquidated damages and not as a penalty the sum of Fifty Thousand Dollars ($50,000.00), which represents a reasonable compensation for the loss incurred because of the breach.
F. Attorneys Fees. If any legal action, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees, which may be set by the court in the same action or in a separate action brought for that purpose, in addition to any other relief to which that party may be entitled.
G. Survival. The following provisions of this Agreement shall survive termination of this Agreement: paragraphs 4, 5, 12, 13, 15, 16, 19, 20, 21 and 22.
H. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the state in which the Contractor resides. However, venue for any action will be in the appropriate state or federal court located in Orange Country, California.
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