2 Questions:
1. Would it be “advantageous” to the Consultant” to sign this NDA, knowing it will NOT hold up in court?
2. Would this agreement, if the Company “claims” in the future that there is a breach by Consultant hold up in court at all?
Especially the “No Solicitation/Interference” section and the “Equitable Relief and Liquidated Damages” section. The Consultant is a Marketing Consultant. The “Company” is a Security Protection Company.
NON-DISCLOSURE AND NON-SOLICITATION
Confidential Information Defined. “Confidential Information” means: (a) any “trade secret” as defined in California Civil Code section 3426 et seq.; and further, (b) any information not readily accessible to the public that Consultant obtains through Company, which relates to Company’s finances, operations, clients, vendors, or other third party with whom the Company has an existing or reasonably anticipated relationship. Such Confidential Information includes, without limitation, Company’s technology, processes, products, programs, vendors, suppliers, consultants, research, development, accounting, marketing, pricing, staffing, strategies, contracts, security protocols, client lists or databases, client documents, post orders, marketing or sales proposals, and any actual or contemplated trademark, service mark, trade name or patent. The information described above is Confidential Information no matter how obtained, and regardless of whether such information is intangible (such as a fact known but not recorded), recorded in written form (such as a letter, memorandum or other document), or otherwise recorded (such as a photograph, videotape, audiotape or computer disk). Information concerning Company clients has independent economic value to the Company, and the Company has expended considerable time and effort to develop, compile and protect the confidentiality of that information.
No Solicitation/Interference. While providing services to Company or for a period of three (3) years thereafter, Consultant shall not: solicit on behalf of any entity other than Company, business from any Company client whose identity and/or interests are Confidential Information of Company. Consultant further agrees that while providing services to Company and for a period of three (3) years thereafter, Consultant shall not solicit any Company employee for employment by any competing security or event services entity. Consultant further agrees that while providing services to Company and for a period of three (3) years thereafter, Consultant shall not induce any Company client, Company employee, consultant, independent contractor, licensee or other third party to sever any relationship with Company, or to modify its business with Company on terms which are less favorable to Company.
Equitable Relief and Liquidated Damages. In addition to any other rights and remedies Company may have, any Consultant breaching this section agrees that Company, without the necessity of proving actual damages, shall be entitled to temporary and permanent injunctive relief to prevent Consultant from breaching or continuing to breach this section and that Company shall be entitled to such relief without posting bond. Because damages for such breach may be difficult to ascertain, Consultant agrees to pay to the Company the sum of one-hundred thousand dollars ($100,000.00) for each such breach as liquidated damages in the event that Consultant violates the terms of this section.