AGREEMENT REGARDING CONFIDENTIAL INFORMATION, OWNERSHIP OF INVENTIONS, NON- COMPETITION, CUSTOMER NON-SOLICITATION, AND EMPLOYEE NON-SOLICITATION COVENANTS, AND ACKNOWLEDGMENT OF AT-WILL EMPLOYMENT
Exhibit 10.4
NON-SOLICITATION, AND EMPLOYEE NON-SOLICITATION
COVENANTS,
AND ACKNOWLEDGMENT OF AT-WILL EMPLOYMENT
This
Agreement Regarding Confidential Information, Ownership of
Inventions, Non-Competition, Customer Non-Solicitation, and
Employee Non-Solicitation Covenants and Acknowledgment of At-Will
Employment (“Agreement”) is made and
entered into by Xxxxx Xxxxx (“Employee”) in favor of DYNATRONICS
CORPORATION, a Utah corporation with its principal place of
business at 0000 X. Xxxx Xxxxxx Xxxxx, Xxxx Xxxx Xxxx, Xxxx 00000
(the “Company”). The Company and Employee are
sometimes referred to collectively as the “Parties,” and
individually as a “Party.”
RECITALS
A. Company designs,
manufactures, markets, and distributes advanced-technology medical
devices, therapeutic and medical treatment tables, rehabilitation
equipment, custom athletic training treatment tables and equipment,
institutional cabinetry, orthopedic soft goods, as well as other
specialty patient, rehabilitation and therapy products and
supplies.
B. Company markets and
sells its products to physical therapists, chiropractors, athletic
trainers, sports medicine practitioners, orthopedists, hospitals,
clinics, and other medical professionals and institutions, and is a
manufacturer and distributor of medical products and equipment
throughout the United States and globally.
C. Employee is the
Chief Executive Officer of the Company, having entered into an
employment agreement accepted and approved by the Board of
Directors of the Company effective as of August 26, 2019 (the
“Employment
Agreement”).
D. In consideration of
the Company’s employment and continued employment of
Employee, the payment of salary and other compensation and benefits
by the Company to Employee, which Employee acknowledges to be good
and valuable consideration for his obligations hereunder, the
Parties agree and covenant as follows:
a. “Confidential
Information,” as used herein, means any present or
future information belonging to the Company that pertains to its
business, whether developed by Employee, other Company employees,
or any of the Company’s customers, contractors or agents,
that is confidential or proprietary in nature, and that is not
generally known in the public domain. Confidential Information
includes, without limitation, information regarding the
Company’s finances, financial condition, operations, business
plans, business opportunities, purchasing activities, suppliers or
potential suppliers, costs of materials, pricing, margins, sales,
markets, marketing strategies, plans and ideas, customers, customer
lists and information derived therefrom, customer agreements,
customer information and documents (including contract information,
terms, and services), potential customers, employees, employee
compensation, technology, specifications, features, technical data,
research, methodologies, services, software in various stages of
development (source code, object code, documentation, diagrams,
and/or flow charts), developments, Inventions, processes, formulas,
designs, drawings, Trade Secrets, Confidential Materials,
Inventions, Employment Inventions, Intellectual Property, or any
other confidential business information belonging to the Company
that is disclosed to or obtained by Employee, directly or
indirectly, whether in writing, orally, by observation or
electronically (through email, computer disk, DVD, CD-ROM, or other
electronic means).
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The
Employee understands that the above list is not exhaustive, and
that Confidential Information also includes other information that
is marked or otherwise identified as confidential or proprietary,
or that would otherwise appear to a reasonable person to be
confidential or proprietary in the context and circumstances in
which the information is known or used.
The
Employee understands and agrees that Confidential Information
developed by him in the course of his employment by the Company
shall be subject to the terms and conditions of this Agreement as
if the Company furnished the same Confidential Information to the
Employee in the first instance. Confidential Information shall not
include information that is generally available to and known by the
public, provided that such disclosure to the public is through no
direct or indirect fault of the Employee or persons acting on the
Employee’s behalf.
b. “Confidential Materials,”
as used herein, means any tangible medium containing Confidential
Information, including but not limited to paper, electronic or
magnetic media, prototypes, products, and other
materials.
c. “Employment Inventions,”
as used herein, means any Invention or part thereof conceived,
developed, reduced to practice, completed or created which is: (i)
conceived, developed, reduced to practice, completed, or created by
Employee (whether solely by Employee or jointly with others) within
the scope of Employee’s employment with the Company; on the
Company’s time; or with the aid, assistance, or use of any
property, equipment, facilities, supplies, resources, personnel, or
Intellectual Property of the Company; (ii) the result of any work,
services, or duties performed or suggested by Employee for or on
behalf of the Company; (iii) related to the industry or trade of
the Company; or (iv) related to the current or demonstrably
anticipated business, research, or development of the
Company.
d. “Intellectual Property,”
as used herein, means any and all patents, copyrights, trademarks,
service marks, Trade Secrets, know how, technology, ideas, or
computer software belonging to the Company or relating to any
Employment Invention.
e. “Inventions,” as used
herein, means any and all inventions, products, formulations,
discoveries, concepts, ideas, developments, improvements,
technology, know-how, products, devices, structures, equipment,
processes, methods, techniques, formulas, Trade Secrets, texts,
research, programs, software, computer programs, source codes,
data, designs, works of authorship, and or other materials, whether
or not published, patented, copyrighted, registered or suitable
therefor, and all Intellectual Property Rights therein, to the
extent they relate to the past, present, future, or anticipated
business, research, development or trade of the
Company.
f. “Trade Secrets,” as used
herein, means information, including a formula, pattern,
compilation, program, device, method, technique, or process, that
(i) derives independent economic value, actual or potential, from
not being generally known to, and not being readily ascertainable
by proper means by, other persons who can obtain economic value
from its disclosure or use, and (ii) is the subject of efforts that
are reasonable under the circumstances to maintain its
secrecy.
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2. Covenants
of Confidentiality, Non-Disclosure and Authorized Use of
Confidential Information.
a. In connection with
Employee’s employment with the Company, Employee will receive
or have access to Confidential Information, including Trade
Secrets, Confidential Materials, Inventions, Employment Inventions,
and/or Intellectual Property, as those terms are defined in this
Agreement. Employee acknowledges and agrees that all Confidential
Information shall remain the sole property of the Company. Employee
further acknowledges and agrees that all Confidential Information
belonging to the Company is valuable, special and unique to its
business, that the Company’s business depends upon such
Confidential Information, and that the Company wishes to protect
such Confidential Information by keeping it confidential for the
use and benefit of the Company.
b. Employee agrees
that the Company’s Confidential Information will be kept
confidential and will not, without the prior written consent of the
Company, be disclosed by Employee (whether directly or through some
other person or entity), in whole or in part, and will not be used
by Employee, directly or indirectly, for any purpose other than as
expressly allowed by the Company. In addition, Employee shall not
use any Confidential Information for
Employee’s direct or indirect benefit or for the direct or
indirect benefit of any person
or entity other than the Company. Employee shall not aid,
encourage, or allow any other person or entity to use or disclose
the Confidential Information of the Company without
authorization.
c. Employee further
agrees to use reasonable and diligent efforts to protect the
confidentiality of the Company’s Confidential Information.
Employee specifically agrees: (i) to use the Company’s
Confidential Information solely to fulfill the duties of
Employee’s employment with the Company, and not otherwise to
use such information for Employee’s benefit or the benefit of
others; (ii) not to use, view, or access Confidential Information
where it can be seen or viewed by unauthorized persons, and not to
leave such information or materials where they can be seen or
accessed by unauthorized persons; (iii) to notify the Company if
Employee becomes aware of any loss, misuse, wrongful disclosure, or
other unauthorized access of any Confidential Information by any
person; and (iv) to take all other reasonable steps necessary, or
reasonably requested by the Company, to safeguard the Confidential
Information from unauthorized disclosure or use.
d. Employee’s
duties of non-disclosure and confidentiality under this Agreement
govern Employee both during Employee’s employment with the
Company and following the termination of the employment
relationship. All obligations of confidentiality shall continue for
as long as is permitted by law. Employee authorizes the Company to
notify others, including but not limited to the Company’s
customers or suppliers or Employee’s future employers, of the
terms of this Agreement and Employee’s covenants and
obligations hereunder.
e. Nothing in this
Agreement prohibits or restricts Employee (or Employee’s
attorney) from filing a charge or complaint with the Securities and
Exchange Commission (“SEC”) or any other
federal or state regulatory authority (each a “Government Agency” and
collectively, “Government Agencies”).
Employee further understands that this Agreement does not limit
Employee’s ability to communicate with any Government Agency
or otherwise participate in any investigation or proceeding that
may be conducted by any Government Agency or in connection with
reporting a possible securities law violation without notice to the
Company. This Agreement does not limit Employee’s right to
receive an award for information provided to any Government Agency
or the SEC.
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f. Notice
of Immunity Under
the Economic Espionage Act
of 1996, as amended by the Defend Trade Secrets
Act of 2016.
(i) Employee
will not be held criminally or civilly liable under any
federal or state trade secret law for any disclosure of a
Trade Secret that is made: (A) in
confidence to a federal, state,
or local government official, either directly or indirectly, or to
an attorney and solely for the purpose of reporting or
investigating a suspected violation of law; or (B) in a complaint
or other document that is filed under seal in a lawsuit or other
proceeding.
(ii) If
Employee files a lawsuit against the Company for alleged
retaliation by the Company for Employee reporting a suspected
violation of law, Employee may disclose the Company’s
Trade Secrets to Employee’s
attorney and use the Trade
Secret information in the court proceeding if Employee (A) files
any document containing the Trade Secret under seal; and (B) does not disclose
the Trade Secret, except
pursuant to court order.
3. Covenant
to Maintain Confidentiality of Third Party Trade
Secrets.
a. Employee shall not
disclose to the Company any Trade Secrets or confidential
information of any of Employee’s previous employers or of any
other person or entity to whom Employee owes a duty of
confidentiality.
b. Employee may be
exposed to Trade Secrets or confidential information of third
parties with whom the Company has a business relationship, such as
its customers or suppliers, during the course of Employee’s
employment with the Company. Employee agrees to treat third party
Trade Secrets and confidential information in the same manner as
Employee has agreed to treat the Company’s Confidential
Information under this Agreement.
4. Covenant
of Ownership and Disclosure of Developments.
a. Disclosure. Employee agrees to
promptly and fully disclose to the Company the existence, use,
and/or manner of operation of any and all Employment Inventions as
defined in Section
1 of this
Agreement.
b. Work Product. The Employee
acknowledges and agrees that all writings, works of authorship,
technology, Inventions, discoveries, ideas and other work product
of any nature whatsoever, that are created, prepared, produced,
authored, edited, amended, conceived, or reduced to practice by the
Employee individually or jointly with others during the period of
his employment by the Company and relating in any way to the
business or contemplated business, research, or development of the
Company (regardless of when or where the Work Product is prepared
or whose equipment or other resources is used in preparing the
same) and all printed, physical, and electronic copies, all
improvements, rights, and claims related to the foregoing, and
other tangible embodiments thereof (collectively,
“Work
Product”), as well as any and all rights in and to
copyrights, Trade Secrets, trademarks (and related goodwill), mask
works, patents, and other Intellectual Property Rights therein
arising in any jurisdiction throughout the world and all related
rights of priority under international conventions with respect
thereto, including all pending and future applications and
registrations therefor, and continuations, divisions,
continuations-in-part, reissues, extensions, and renewals thereof
(collectively, “Intellectual Property
Rights”), shall be the sole and exclusive property of
the Company.
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c. For purposes of
this Agreement, Work Product includes, but is not limited to,
Company information, including plans, publications, research,
strategies, techniques, agreements, documents, contracts, terms of
agreements, negotiations, know-how, computer programs, computer
applications, software design, web design, work in process,
databases, manuals, results, developments, reports, graphics,
drawings, sketches, market studies, formulae, notes,
communications, algorithms, product plans, product designs, styles,
models, audiovisual programs, Inventions, unpublished patent
applications, original works of authorship, discoveries,
experimental processes, experimental results, specifications,
customer information, customer lists, manufacturing information,
marketing information, advertising information, and sales
information.
d. Work Made for Hire; Assignment.
The Employee acknowledges that, by reason of being employed by the
Company at the relevant times, to the extent permitted by law, all
of the Work Product consisting of copyrightable subject matter is
“work made for hire” as defined in the Copyright Act of
1976 (17 U.S.C. § 101), and such copyrights are therefore
owned by the Company. To the extent that the foregoing does not
apply, the Employee hereby irrevocably assigns to the Company, for
no additional consideration, the Employee’s entire right,
title, and interest in and to all Work Product and Intellectual
Property Rights therein, including the right to xxx, counterclaim,
and recover for all past, present, and future infringement,
misappropriation, or dilution thereof, and all rights corresponding
thereto throughout the world. Nothing contained in this Agreement
shall be construed to reduce or limit the Company’s rights,
title, or interest in any Work Product or Intellectual Property
Rights so as to be less in any respect than that the Company would
have had in the absence of this Agreement. Employee agrees to take
all actions reasonably requested by the Company, both during and
after the term of Employee’s employment with the Company, to
assign to the Company, and to establish, perfect, exercise or
protect the Company’s rights in any Employment Inventions or
title thereto, including, without limitation, assisting in
obtaining or registering copyrights, patents, trademarks or similar
Intellectual Property Rights and executing assignments to the
Company.
e. Further Assurances; Power of
Attorney. During and after his employment, the Employee
agrees to reasonably cooperate with the Company to (i) apply for,
obtain, perfect, and transfer to the Company the Work Product and
Intellectual Property Rights in the Work Product in any
jurisdiction in the world; and (ii) maintain, protect, and enforce
the same, including, without limitation, executing and delivering
to the Company any and all applications, oaths, declarations,
affidavits, waivers, assignments, and other documents and
instruments as shall be requested by the Company. The Employee
hereby irrevocably grants the Company power of attorney to execute
and deliver any such documents on the Employee’s behalf in
his name and to do all other lawfully permitted acts to transfer
the Work Product to the Company and further the transfer, issuance,
prosecution, and maintenance of all Intellectual Property Rights
therein, to the full extent permitted by law, if the Employee does
not promptly cooperate with the Company’s request (without
limiting the rights the Company shall have in such circumstances by
operation of law). The power of attorney is coupled with an
interest and shall not be impacted by the Employee’s
subsequent incapacity.
f. Moral Rights. To the extent any
copyrights are assigned under this Agreement, the Employee hereby
irrevocably waives, to the extent permitted by applicable law, any
and all claims the Employee may now or hereafter have in any
jurisdiction to all rights of paternity, integrity, disclosure, and
withdrawal and any other rights that may be known as “moral
rights” with respect to all Work Product and all Intellectual
Property Rights therein.
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g. No License. The Employee
understands that this Agreement does not, and shall not be
construed to, grant the Employee any license or right of any nature
with respect to any Work Product or Intellectual Property Rights or
any Confidential Information, materials, software, or other tools
made available to him by the Company.
5. Return of Information; Exit
Obligations. Upon (a)
voluntary or involuntary termination of the Employee’s
employment or (b) the Company’s request at any time during
Employee’s employment, the Employee shall (i) provide or
return to the Company any and all Company property, including keys,
key cards, access cards, identification cards, security devices,
employer credit cards, network access devices, computers, cell
phones, smartphones, PDAs, pagers, fax machines, equipment,
speakers, webcams, manuals, reports, files, books, compilations,
Work Product, email messages, recordings, tapes, disks, thumb
drives, or other removable information storage devices, hard
drives, negatives, and data and all Company documents and materials
belonging to the Company and stored in any fashion, including but
not limited to those that constitute or contain any Confidential
Information or Work Product, that are in the possession or control
of the Employee, whether they were provided to the Employee by the
Company or any of its business associates or created by the
Employee in connection with his employment by the Company; and (ii)
delete or destroy all copies of any such documents and materials
not returned to the Company that remain in the Employee’s
possession or control, including those stored on any non-Company
devices, networks, storage locations, and media in the
Employee’s possession or control.
6. Publicity. Employee hereby consents to any and
all uses and displays, by the Company and its agents, of the
Employee’s name, voice, likeness, image, appearance, and
biographical information in, on or in connection with any pictures,
photographs, audio, and video recordings, digital images, websites,
television programs, and advertising, other advertising, sales, and
marketing brochures, books, magazines, other publications, CDs,
DVDs, tapes, and all other printed and electronic forms and media
throughout the world, at any time during or after the period of his
employment by the Company, for all legitimate business purposes of
the Company (“Permitted Uses”).
Employee hereby forever releases the Company and its directors,
officers, employees, and agents from any and all claims, actions,
damages, losses, costs, expenses, and liability of any kind,
arising under any legal or equitable theory whatsoever at any time
during or after the period of his employment by the Company, in
connection with any Permitted Use.
7. Requests for Clarification. In the event
Employee is uncertain as to the meaning of any provision of this
Agreement or its application to any particular information,
document, item or activity, Employee will inquire in writing to the
Company’s human resources manager, specifying any areas of
uncertainty. The Company will respond in writing within a
reasonable time and will endeavor to clarify any areas of
uncertainty, including such things as whether it considers
particular information or documents to be Confidential Information,
and will endeavor to explain any provisions of this
Agreement.
8. Notice
of Compelled Disclosure. In the event that Employee becomes
legally compelled (by subpoena, discovery request, civil
investigative demand, or other judicial or compulsory process) to
disclose any of the Company’s Confidential Information,
Employee will provide the Company with prompt written notice so
that it may seek a protective order or other appropriate remedy to
protect and preserve the confidentiality of such Confidential
Information and/or waive compliance with the provisions of this
Agreement. In the event that such a protective order or other
remedy is not obtained, or compliance with the provisions of this
Agreement is waived, Employee shall disclose or furnish only that
portion of the Confidential Information that Employee is legally
required or authorized to produce and will exercise
Employee’s best efforts to obtain reliable assurance that the
Confidential Information will be kept confidential to the greatest
extent possible.
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9. Non-Compete Covenant. In order to
preserve the confidentiality of the Company’s Confidential
Information, and to protect the goodwill and other legitimate
business interests of the Company, Employee agrees that, during
Employee’s employment with the Company and during the
twelve-month period following the termination of Employee’s
employment with the Company for any reason or no reason by Employee
or the Company (“Non-Competition Period”),
Employee shall not directly or indirectly engage in competition
with the Company, and/or provide other products or services that
are competitive with the products and/or services provided by the
Company (collectively, a “Competing Business”),
within the “Restricted Territory”
defined below, without the express written consent of the Company.
Employee further agrees that, during the Non-Competition Period,
Employee will not directly or indirectly assist, perform services
for, contract with, be employed by, establish or operate, or have
an equity interest in any person or entity, whether as an employee,
officer, director, owner, member, manager, agent, consultant,
independent contractor, or otherwise, that engages in a Competing
Business within the Restricted Territory, without the express
written consent of the Company. Employee agrees that the
Non-Competition Period set forth herein shall be extended for a
period equal to the duration of any breach of this covenant by
Employee. For purposes of this Agreement, the term
“Restricted
Territory” means (a) each and every country, province,
state, city or other political subdivision of the United States and
Canada; (b) each and every country, province, state, city or other
political subdivision of the European Union; and (c) each and every
country, province, state, city, or other political subdivision of
the world in which the Company or any of its subsidiaries or
affiliates is currently engaged in, currently plans to engage in,
or engages in business in during the Non-Competition
Period.
10. Non-Solicitation of Customers.
Employee understands and acknowledges that: (a) the
Company’s relationships with its customers are of great
competitive value; (b) the Company has invested and continues to
invest substantial resources in developing and preserving its
customer relationships and goodwill; and (c) the loss of any such
customer relationship or goodwill will cause significant and
irreparable harm to the Company. Employee promises, covenants and
agrees that during Employee’s employment with the Company and
for a period of two (2) years following the termination of
Employee’s employment with the Company for any reason or no
reason by Employee or the Company (the “Customer Non-Solicitation Restricted
Period”), Employee shall not personally or on behalf
of any other person or entity, or through any other person or
entity, directly or indirectly, contact, call on, solicit business
from, sell to, or do business with any customer of the Company who
did business with the Company during the term of Employee’s
employment with the Company, in connection with providing products
or services of, or entering into, any Competing Business. Employee
agrees that the Customer Non-Solicitation Restricted Period set
forth herein shall be extended for a period equal to the duration
of any breach of this covenant by Employee.
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11. Non-Solicitation of Employees. Employee
promises, covenants and agrees that during Employee’s
employment with the Company and for a period of two (2) years
following the termination of Employee’s employment with the
Company for any reason or no reason by Employee or the Company (the
“Employee
Non-Solicitation Restricted Period”), Employee shall
not personally or on behalf of any other person or entity, or
through any other person or entity, directly or indirectly (a)
recruit, solicit or encourage any person who is employed by the
Company or was employed by the Company within six (6) months of the
termination of Employee’s employment with the Company
(“Restricted
Employee”) to become an employee or independent
contractor of, or perform other work for, Employee, any other
employer of Employee or any affiliated company, or any other person
or entity; (b) employ or hire, offer to employ or hire, or
facilitate or assist in the employing or hiring of, any Restricted
Employee, to work for Employee, any other employer of Employee or
any affiliated company, or any other person or entity; (c) ask,
invite, induce or encourage any Restricted Employee to terminate
his or her employment relationship with the Company or seek
employment with another person or entity; or (d) otherwise
interfere with or disrupt the employment or business relationship
between the Company and any of its employees. Employee agrees that
the Employee Non-Solicitation Restricted Period set forth herein
shall be extended for a period equal to the duration of any breach
of this covenant by Employee.
12. Remedies for Breach of the
Covenants. Employee
recognizes that the Company’s business interest in
maintaining the confidentiality of its Confidential Information,
its rights in its Employee Inventions, its relationships and
goodwill with its customers, and the stability of its work force,
is so great that the Company shall not have an adequate remedy at
law for any breach or threatened breach of the covenants contained
in this Agreement by Employee and shall suffer irreparable harm
from any such breach or threatened breach. Employee agrees that, in
the event of a breach or threatened breach by Employee of any of
the covenants contained in this Agreement, a court of competent
jurisdiction may issue a restraining order or an injunction against
Employee, restraining or enjoining Employee from engaging in
conduct or actions that violate the said covenants. In addition,
the Company shall be entitled to any and all other remedies
available to it at law or in equity, and no action by the Company
in pursuing a given remedy shall constitute an election to forego
other remedies.
13. Non-Disparagement.
Employee agrees and covenants that he
will not at any time make, publish, or communicate to any person or
entity or in any public forum any derogatory, defamatory or
disparaging remarks, comments, or statements concerning the
Company’s products or services, its existing and prospective
customers, suppliers, investors, or other associated third
parties, or any of the Company’s
current or former employees or
officers.
14. Reasonableness of Covenants. Employee
understands that the restrictions contained in the covenants set
forth herein have been imposed only to the extent necessary to
protect the Company from the loss of goodwill, from unfair
competition, and to preserve the Company’s Confidential
Information, including its Trade Secrets. Each Party expressly
acknowledges and agrees that the respective covenants and
agreements contained herein are reasonable as to both scope and
time, as applicable.
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15. Judicial
Modification. Should any of the foregoing
restrictive covenants be determined by a court of competent
jurisdiction to be overbroad, unreasonable or unenforceable as
drafted, the court shall be authorized to modify or “blue
pencil” the overbroad or unenforceable provision and limit
the restrictions in such provision so that the provision is not
overbroad or unreasonable.
16. At-Will Employment. Employee’s
employment with the Company is at-will, and may be terminated by
Employee or by the Company at any time, with or without cause and
with or without advance notice. Nothing in this Agreement shall be construed to
in any way terminate, supersede, undermine, or otherwise modify the
at-will status of the employment relationship between the Company
and the Employee, pursuant to which either the Company or the
Employee may terminate the employment relationship at any time,
with or without cause, with or without notice.
17. General
Provisions.
. Attorneys’ Fees and
Costs. In the event that either Party commences an action to
enforce the terms of this Agreement, or to seek damages or
injunctive relief for the alleged breach thereof, the prevailing
Party shall be entitled to collect from the non-prevailing Party
the prevailing Party’s reasonable attorneys’ fees and
costs incurred therein.
a. Entire
Agreement. This Agreement constitutes the entire agreement
between the Parties with respect to the subject matter hereof, and
supersedes all prior oral and written negotiations, communications,
discussions and agreements pertaining to its subject matter. The
Parties expressly acknowledge and agree, however, that no provision
in this Agreement is intended to, or shall be construed to, modify,
supersede, void, or otherwise alter the obligations of the Parties
under the Employment Agreement or any of the agreements and addenda
referenced therein and forming a part thereof.
b. Amendments.
No amendment or modification of any provision of this Agreement
will be effective unless it is agreed
to in a written document
that expressly amends this Agreement and is signed by all
Parties.
c. Waiver.
No waiver of any provision of this Agreement shall be effective
unless made in writing and signed by the waiving Party. The failure
of either Party to require the performance of any term or
obligation of this Agreement, or the waiver by either Party of any
breach of this Agreement, shall not prevent any subsequent
enforcement of such term or obligation or be deemed a waiver of any
subsequent breach.
d. Severability.
Should any provision of this
Agreement be held by a court of competent jurisdiction to be
unenforceable as written, such
provision shall be enforced to the fullest extent permitted by
applicable law. Any such modification
of the unenforceable provision shall become a part hereof and
treated as though originally set forth in this Agreement. The
Parties further agree that any such court is expressly authorized
to modify any such
unenforceable provision of this Agreement in lieu of severing such
unenforceable provision from this Agreement in its entirety,
whether by rewriting the offending provision, deleting any or all
of the offending provision, by adding additional language to this
Agreement, or by making such other modifications as it deems
warranted to carry out the intent and agreement of the Parties as embodied herein to the
maximum extent permitted by law. The Parties expressly agree that
this Agreement as so modified by the court shall be binding upon
and enforceable against each of them. In any event, should one or
more of the provisions of this Agreement be held to be invalid,
illegal, or unenforceable in any respect, such invalidity,
illegality, or unenforceability shall not affect any other
provisions hereof, and if such provision or provisions are not
modified as provided above, this Agreement shall be construed as if
such invalid, illegal, or unenforceable provisions had not been set
forth herein.
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e. Governing
Law, Jurisdiction
and Venue. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Utah,
without regard to any conflicts of law provisions. Any action or
proceeding by either Party to enforce this Agreement or to recover
damages or obtain injunctive relief or any other remedy shall be
brought only in any state or federal court located in the State of
Utah, County of Salt Lake. The Parties hereby irrevocably submit to
the exclusive jurisdiction of such courts and waive (a) any
objection to the laying of venue with respect to any such action,
proceeding, or litigation arising out of or in connection with this
Agreement in any of the aforesaid courts, and (b) any right to stay
or dismiss any such action, proceeding or litigation brought in any
of the aforesaid courts on the ground of inconvenient
forum.
f. Successors and
Assigns.
(i) Assignment by the
Company. The Company may assign
this Agreement to any subsidiary or corporate affiliate, or to any
successor or assign (whether direct or indirect, by purchase,
merger, consolidation, or otherwise) to all or substantially all of
the business or assets of the Company. This Agreement shall
inure to the benefit of
the Company and its permitted
successors and assigns.
(ii) No Assignment by the
Employee. Employee may not
assign this Agreement or any part hereof. Any purported assignment
by Employee shall be null and void from the initial date of the
purported assignment.
g. Waiver
of Jury Trial. To the
fullest extent permitted by applicable law, each
Party hereby waives its right to a
trial by jury with respect to any claim or cause of action based
upon or arising out of or related to this Agreement, in any action,
proceeding or other litigation of any type brought by any Party
against the other Party, whether with respect to contract claims,
tort claims, statutory claims, or otherwise. Each Party agrees that
any such claim or cause of action shall be tried by the court
without a jury. Without limiting the foregoing, the
Parties further agree that their
respective right to a trial by jury is waived by operation of this
paragraph as to any action, counterclaim or other proceeding which
seeks, in whole or in part, to challenge the validity or
enforceability of this Agreement, or any provision hereof. This
waiver shall apply to any subsequent amendments, renewals,
supplements, or modifications to this
Agreement.
h. Headings.
The section and paragraph headings used in this Agreement are for
convenience only and are not to be considered in construing or
interpreting this Agreement.
i. Counterparts. This
Agreement may be executed in one or more counterparts, any one of
which need not contain the signatures of more than one Party, but
all such counterparts taken together will constitute one and the
same instrument. Counterparts may be delivered via facsimile,
electronic mail (including .pdf or any electronic signature
complying with the U.S. federal ESIGN Act of 2000, e.g.,
xxx.xxxxxxxx.xxx) or other transmission method and any counterpart
so delivered shall be deemed to have been duly and validly
delivered and be valid and effective for all purposes.
[Signatures on following page.]
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date set forth
below.
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EMPLOYEE:
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THE
COMPANY:
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XXXXX
XXXXX
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DYNATRONICS
CORPORATION
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By:
___________________________________
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Xxxxx
Xxxxx
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Its:_________________________________
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DATED__________________________
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TITLE
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___________________________________
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PRINT
NAME
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DATED:
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