NDA

CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT 

This Confidentiality and Non-Disclosure Agreement (the “Agreement”) is made and entered into by and between the undersigned Client  (the “Client”) and The Ultimate Goal, on behalf of itself and its subsidiaries, affiliates, divisions, subdivisions, or assigns (collectively, the “Company”). 

WHEREAS, Client desires to receive mental performance coaching by the Company on an at-will basis and by virtue of such will have access to certain Trade Secrets and Confidential Information; 

WHEREAS, the Company and Client agree the Company’s Confidential Information and Trade Secrets have been developed by the substantial investment of time, effort, and expense by the Company and are vital to the success of the Company’s business; 

WHEREAS, the Company and Client agree the Company has a substantial and legitimate business interest in protecting, among other things, the Company’s Confidential Information and Trade Secrets; 

WHEREAS, the Company would not offer or continue services, or provide Client with access to Confidential Information and Trade Secrets if Client did not accept the terms of this Agreement; NOW THEREFORE, for good and valuable consideration to which Client would not otherwise be entitled without entering into this Agreement, including: (a) the promises and covenants contained in this Agreement; (b) Client’s services or continued services with the Company; and (c) Client’s access to and use of the Company’s Confidential Information and Trade Secrets the sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. Definitions. For purposes of this Agreement, the following definitions shall apply: 

1. “Applicable Unit of the Company” means a subsidiary or other affiliate of the Company or any division of the Company that provides services to Client(s) or with which Client has substantial contact as a result of Client’s services with the Company. 
2. “Confidential Information” means any information, in whatever form and whether or not recorded in any media, relating to the business of the Company or any Applicable Unit of the Company (whether constituting a Trade Secret or not) that: (i) is or has been disclosed to Client, or of which Client became aware, as a consequence of or through Client’s relationship with the Company; (ii) derives independent economic value from not being generally known by or readily available to the general public; and (iii) is subject to reasonable efforts by the Company to protect, including but not limited to personal, athletic, social, professional, technical information and know-how on all processes, services and systems; research information; planning information related to new services, needs and preferences, costs and expenses, financing, sources, performance plans, strategic plans, third party information that the Company may hold from its Clients, customers and others, which relates to its business strategies, customers, technical, personal, athletic, social, professional, scientific or proprietary information including research and development information, formulas, designs and programs, costs, compensation, plans, information concerning any customer policy, know-how and trade secrets of every kind and character; customer identity and information, such as credit information, needs and preferences, client contacts, quotations to the customer, and customer’s use of Company’s products and services.

However for the purpose for this Agreement, Confidential Information shall not include:   (i) any specific information or data that has been voluntarily disclosed to the public by the Company (except where such public disclosure has been made by the Client or another individual without authorization); (ii) information regarding Client’s personal, athletic, social, professional, finances; and (iii) information as to the terms and conditions of Client’s services, or that is otherwise deemed not confidential 

   c. “Contract Termination Date” means the last date Client receives services as a client of the Company or  any Applicable Unit of the Company, whether the termination is voluntary or involuntary. 

   d. “Trade Secret” means a trade secret as that term is defined under any applicable state or federal law that governs trade secrets. 

2. Acknowledgement. Client recognizes that the Company derives significant economic value from the Company’s Confidential Information and Trade Secrets that are created (whether by Client or others) and used by the Company, which are the subject of reasonable efforts by the Company to protect and are not generally known by the public. Client expressly acknowledges and agrees that, by virtue of Client’s services with the Company and exercise of Client’s responsibilities for the Company, Client will access and use certain Confidential Information and Trade Secrets and that such Confidential Information and Trade Secrets constitute confidential and proprietary business information and/or trade secrets of the Company, all of which is the Company’s exclusive property. Client further acknowledges that all Confidential Information and materials to which Client will have access or which Client will learn as a result of Client’s services will be disclosed to Client solely by virtue of Client’s services with the Company and solely for the purpose of assisting Client in performing Client’s mental performance skills and duties for the Company. Client acknowledges that the restrictions contained in this Agreement are reasonable and do not impose a greater restraint than is necessary to protect the Confidential Information, Trade Secrets, and other legitimate business interests of the Company.

3. Non-Disclosure of Confidential Information and Trade Secrets.  agrees that Client will not, and will not permit any other person or entity to, directly or indirectly, without the prior written consent of the Company, while receiving services and thereafter: (i) use Confidential Information or Trade Secrets for the benefit of any person or entity other than the Company; (ii) remove, copy, duplicate, or otherwise reproduce any document, electronically stored information, or tangible item embodying or pertaining to any of the Confidential Information or Trade Secrets, except as required to perform responsibilities for the Company; or (iii) publish, release, disclose, deliver or otherwise make available to any third party any Confidential Information or Trade Secrets by any communication, including oral, documentary, electronic or magnetic information transmittal device or media. The obligation of nondisclosure and non-use of Confidential Information that does not qualify as a Trade Secret shall continue to exist for a period of fifty (50) years following Client’s Termination of Services Date, unless otherwise limited herein. The obligation of non-disclosure and non-use of Trade Secrets shall continue to exist for so long as such information maintains trade secret status under applicable law. 

4. Third-Party Information. Client understands the prohibitions in this Agreement apply to Confidential Information or Trade Secrets from any third party which the Company is bound to protect that may be communicated to, acquired by, learned of, or developed by Client in the course of or as a result of Client’s services with the Company. Client shall not disclose or use any such third party information and materials in any manner inconsistent with the Company’s obligations to such third parties or this Agreement. 

5. Immunity Under the Defend Trade Secrets Act of 2016. Notwithstanding Paragraph 3 of this Agreement, Client shall be immune from criminal or civil liability under any federal or state trade secret law for any disclosure of the Company’s Trade Secrets that: 

1. is made (i) in confidence, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or 
2. is made in a complaint or other document filed in a lawsuit or other proceeding, which Client agrees to pay for Clients and Company’s legal fees regardless of the outcome, and if the outcome should for some unlikely reason be in favor for the Client, the Client will also pay for the Company’s judgements, provided such filing is made under seal. If Client files a lawsuit for retaliation by the Company for reporting a suspected violation of law, Client may disclose the Trade Secret to Client’s attorney and use the Trade Secret in the court proceeding, provided the Client: (a) files any document containing the Trade Secret under seal; and does not disclose the Trade Secret except pursuant to court order.       

6. Additional Legal Exceptions to Non-Disclosure. Nothing in this Agreement is intended to be or shall be construed to prevent, impede or interfere with Client’s right to: (i) use general skills and knowledge gained while receiving services by the Company after Client’s services from the Company ends; (ii) respond accurately and fully to any question, inquiry, or request for information regarding Client or Client’s services with the Company when required by legal process by a federal, state, or other legal authority; or (iv) initiate communications directly with, respond to an inquiry from, or provide truthful testimony or disclose information in confidence to, any federal, state, or other legal or regulatory authority or agency solely for the purpose of reporting or investigating a suspected violation of law, or from making other disclosures to the government that are protected under federal or state whistleblower provisions.

7. Enforcement; Remedies. Client acknowledges the restrictions contained in this Agreement are necessary to protect the legitimate interests of the Company and that, in the event Client breaches any of the provisions of this Agreement, the Company will suffer immediate and irreparable damage and injury, for which the Company has no adequate remedy at law. In the event of a breach or threatened breach by Client of the provisions of this Agreement, Client agrees that, in addition to all of the legal and equitable remedies otherwise available to the Company, including but not limited to, recovery of monetary damages, the Company shall have the right to injunctive relief, without first posting bond and without notice, to restrain and enjoin any actual or threatened breach by Client of any provisions of this Agreement. The Company shall also be entitled to seek a protective order to ensure the continued confidentiality of its Trade Secrets and Confidential Information. All of the Company’s remedies for the breach of the Agreement shall be cumulative and the pursuit of one remedy shall not preclude any other remedies. Client further agrees that the Company’s legal fees will be paid by Client and Company shall be entitled to recover reasonable attorneys’ fees and costs incurred in any action or defense to any action to enforce, interpret, or obtain a declaration of rights with respect to this Agreement. 

8. Benefit; Successors and Assigns. This Agreement shall be binding upon, and inure to the benefit of and be enforceable by the Company and its successors and assigns. The Company may assign its rights and obligations hereunder to any successor in interest whether by merger, consolidation, sale of assets or otherwise. Client may not assign Client’s rights and obligations under this Agreement. 

9. Severability; Waiver. The provisions of this Agreement shall be deemed severable. If any part, term, or provision of this Agreement is construed by any court of competent jurisdiction to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining parts, terms and provisions shall not be affected thereby. No act or omission of the Company shall operate or be construed as a waiver of any breach of this Agreement, except as such waiver may be expressly set forth in writing by the Company. 

10. At-Will Services; Effect of Termination. Client expressly acknowledges and agrees that this is not an agreement by the Company to provide services Client for any specified period, and unless otherwise expressly agreed in writing between Client and the Company, Client’s at-will services may be terminated at any time, with or without cause or reason by either Client or the Company. All of the terms of this Agreement shall survive any termination of Client’s services with the Company, and will remain in full force and effect, regardless of whether Company or Client terminates the employment relationship and regardless of whether such termination was with or without cause.

11. Former Mental Services Restrictions. Client hereby represents and warrants that Client has provided the Company with full, complete, and accurate copies of all written contractual agreements or obligations of any nature to which Client a party or by which Client is bound that could limit the activities Client can perform on behalf of the Company, including, without limitation, any personal, life, athletic, social, or professional development agreement, non-competition agreement, non-solicitation agreement, or confidentiality agreement previously entered into by Client. Client further represents and warrants that neither the entry into this Agreement nor the performance of Client’s obligations hereunder do or will conflict with or result in a breach of the terms, conditions or provisions of any other such agreement or obligation. Client represents Client has not, and will not, disclose or use during Client’s services  with the Company any documents, recorded data, or other tangible materials, irrespective of media, containing any confidential or trade secret information of any of Client’s former services, clients, or other parties for whom Client previously received services. 

12. Governing Law. The parties agree that the law of the State of Florida shall govern the interpretation, application, and enforcement of this Agreement, without regard to any choice of law rules of that or any other state.

13. Other Agreements. This Agreement replaces and supersedes any prior agreements entered into between Client and the Company that addresses the subject matter included herein and includes the Company’s Terms and Conditions. Client acknowledges and agrees that the obligations set forth herein are in addition to, and not in place of, any obligations of non-competition or non-solicitation client may have with or to the Company, whether legal, contractual or otherwise. If, in addition to this Agreement, Client has signed or does sign other agreements with the Company relating to non-competition or non-solicitation of clients and/or potential clients, the terms and conditions under each such agreement will be given full force and effect and will be interpreted to provide the Company with cumulative rights and remedies. 

14. Modification. This Agreement may not be changed, modified, released, discharged, abandoned or otherwise terminated, in whole or in part, except by an instrument in writing between an officer of the Company and Client. 

15. Headings. The headings and other captions in this Agreement are included solely for convenience of reference and will not control the meaning and interpretation of any provision of this Agreement. 

16. Future Services. During the (50) year period following Client’s Services from Company Termination Date, Client agrees to provide a copy of this Agreement to any future or prospective services company and authorizes the Company to provide a copy of this Agreement to Client’s new services company, as needed. Intending to be legally bound, Client acknowledges Client has read this Confidentiality and Non-Disclosure Agreement in its entirety and understands all of its terms conditions; is entering into this Agreement voluntarily, without coercion from any source; has not relied in any way upon representations or statements of the Company other than those representations or statements set forth in this Agreement; and agrees to abide by all of the terms and conditions of this Agreement.. 

IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly executed and delivered as of the date below.