By Ron Renzy
FLORIDA STATUTES
542.335 Valid restraints of trade or commerce.—
(1) Notwithstanding s. 542.18 and subsection (2), enforcement of contracts that restrict or prohibit competition during or after the term of restrictive covenants, so long as such contracts are reasonable in time, area, and line of business, is not prohibited. In any action concerning enforcement of a restrictive covenant:
(a) A court shall not enforce a restrictive covenant unless it is set forth in a writing signed by the person against whom enforcement is sought.
(b) The person seeking enforcement of a restrictive covenant shall plead and prove the existence of one or more legitimate business interests justifying the restrictive covenant. The term “legitimate business interest” includes, but is not limited to:
1. Trade secrets, as defined in s. 688.002(4).
2. Valuable confidential business or professional information that otherwise does not qualify as trade secrets.
3. Substantial relationships with specific prospective or existing customers, patients, or clients.
4. Customer, patient, or client goodwill associated with:
a. An ongoing business or professional practice, by way of trade name, trademark, service mark, or “trade dress”;
b. A specific geographic location; or
c. A specific marketing or trade area.
5. Extraordinary or specialized training.
Any restrictive covenant not supported by a legitimate business interest is unlawful and is void and unenforceable.
(c) A person seeking enforcement of a restrictive covenant also shall plead and prove that the contractually specified restraint is reasonably necessary to protect the legitimate business interest or interests justifying the restriction. If a person seeking enforcement of the restrictive covenant establishes prima facie that the restraint is reasonably necessary, the person opposing enforcement has the burden of establishing that the contractually specified restraint is overbroad, overlong, or otherwise not reasonably necessary to protect the established legitimate business interest or interests. If a contractually specified restraint is overbroad, overlong, or otherwise not reasonably necessary to protect the legitimate business interest or interests, a court shall modify the restraint and grant only the relief reasonably necessary to protect such interest or interests.
(d) In determining the reasonableness in time of a post term restrictive covenant not predicated upon the protection of trade secrets, a court shall apply the following rebuttable presumptions:
1. In the case of a restrictive covenant sought to be enforced against a former employee, agent, or independent contractor, and not associated with the sale of all or a part of:
a. The assets of a business or professional practice, or
b. The shares of a corporation, or
c. A partnership interest, or
d. A limited liability company membership, or
e. An equity interest, of any other type, in a business or professional practice,
a court shall presume reasonable in time any restraint 6 months or less in duration and shall presume unreasonable in time any restraint more than 2 years in duration.
2. In the case of a restrictive covenant sought to be enforced against a former distributor, dealer, franchisee, or licensee of a trademark or service mark and not associated with the sale of all or a part of:
a. The assets of a business or professional practice, or
b. The shares of a corporation, or
c. A partnership interest, or
d. A limited liability company membership, or
e. An equity interest, of any other type, in a business or professional practice,
a court shall presume reasonable in time any restraint 1 year or less in duration and shall presume unreasonable in time any restraint more than 3 years in duration.
3. In the case of a restrictive covenant sought to be enforced against the seller of all or a part of:
a. The assets of a business or professional practice, or
b. The shares of a corporation, or
c. A partnership interest, or
d. A limited liability company membership, or
e. An equity interest, of any other type, in a business or professional practice,
a court shall presume reasonable in time any restraint 3 years or less in duration and shall presume unreasonable in time any restraint more than 7 years in duration.
(e) In determining the reasonableness in time of a postterm restrictive covenant predicated upon the protection of trade secrets, a court shall presume reasonable in time any restraint of 5 years or less and shall presume unreasonable in time any restraint of more than 10 years. All such presumptions shall be rebuttable presumptions.
(f) The court shall not refuse enforcement of a restrictive covenant on the ground that the person seeking enforcement is a third-party beneficiary of such contract or is an assignee or successor to a party to such contract, provided:
1. In the case of a third-party beneficiary, the restrictive covenant expressly identified the person as a third-party beneficiary of the contract and expressly stated that the restrictive covenant was intended for the benefit of such person.
2. In the case of an assignee or successor, the restrictive covenant expressly authorized enforcement by a party’s assignee or successor.
(g) In determining the enforceability of a restrictive covenant, a court:
1. Shall not consider any individualized economic or other hardship that might be caused to the person against whom enforcement is sought.
2. May consider as a defense the fact that the person seeking enforcement no longer continues in business in the area or line of business that is the subject of the action to enforce the restrictive covenant only if such discontinuance of business is not the result of a violation of the restriction.
3. Shall consider all other pertinent legal and equitable defenses.
4. Shall consider the effect of enforcement upon the public health, safety, and welfare.
(h) A court shall construe a restrictive covenant in favor of providing reasonable protection to all legitimate business interests established by the person seeking enforcement. A court shall not employ any rule of contract construction that requires the court to construe a restrictive covenant narrowly, against the restraint, or against the drafter of the contract.
(i) No court may refuse enforcement of an otherwise enforceable restrictive covenant on the ground that the contract violates public policy unless such public policy is articulated specifically by the court and the court finds that the specified public policy requirements substantially outweigh the need to protect the legitimate business interest or interests established by the person seeking enforcement of the restraint.
(j) A court shall enforce a restrictive covenant by any appropriate and effective remedy, including, but not limited to, temporary and permanent injunctions. The violation of an enforceable restrictive covenant creates a presumption of irreparable injury to the person seeking enforcement of a restrictive covenant. No temporary injunction shall be entered unless the person seeking enforcement of a restrictive covenant gives a proper bond, and the court shall not enforce any contractual provision waiving the requirement of an injunction bond or limiting the amount of such bond.
(k) In the absence of a contractual provision authorizing an award of attorney’s fees and costs to the prevailing party, a court may award attorney’s fees and costs to the prevailing party in any action seeking enforcement of, or challenging the enforceability of, a restrictive covenant. A court shall not enforce any contractual provision limiting the court’s authority under this section.
(2) Nothing in this section shall be construed or interpreted to legalize or make enforceable any restraint of trade or commerce otherwise illegal or unenforceable under the laws of the United States or of this state.
(3) This act shall apply prospectively, and it shall not apply in actions determining the enforceability of restrictive covenants entered into before July 1, 1996.
NON-COMPETITION AND RESTRICTIVE COVENANT AGREEMENT
This Non-Competition Agreement (the “Agreement”) is made and entered into this _____ day of ____________, 2019, by and between _________________________, (hereinafter HOST) and Pod Casts Are Us, Inc. a Florida Corporation (hereinafter referred to as the “Company”) in exchange for consideration in the amount of One Hundred Dollars ($100.00) paid to and accepted by _________________ and is made with reference to the following:
RECITALS
- The Company is engaged in the business of providing HOSTshop services.
- Contemporaneously with the execution of this Agreement, HOST will be associated with the Company as a HOST.
- HOST acknowledges that the Company and its employees and shareholders have over many years devoted substantial time, effort and resources to developing the Company’s business model, trade secrets, business information, relationships with customers, suppliers, employees, and others doing business with the Company; that because of HOST’S access to the afore listed relationships, confidential information and trade secrets, HOST would be in a unique position to divert business from the Company and to commit irreparable damage to the Company were HOST to be allowed to compete with the Company or to commit any of the other acts prohibited below; and that the ability to enforce said restrictive covenants against HOST is a material inducement to the association of HOST by the Company.
THEREFORE, in consideration of the foregoing recitals and the mutual agreements hereinafter set forth, HOST agrees as follows:
- Covenant Not to Compete. HOST shall not at any time during the term of his association by the Company or during a period of TWO YEAR’S immediately following the termination of such association (the “Restricted Period”), have any ownership interest (of record or beneficial) in or have any interest as an employee, independent contractor, salesman, consultant, officer or director in, or otherwise aid or assist in any manner, (i) any firm, corporation, partnership, proprietorship or other business that engages within a twenty-five (25) mile radius of the Company, in a business which is similar to or competitive with the HOST shop business conducted by the Company.
- Solicitation of Business. During the Restricted Period, HOST shall not solicit or assist any other person to solicit any business from any present or past customer of the Company; or request or advise any present or future customer of the Company to withdraw, curtail or cancel its business dealings with the Company; or commit any other act or assist others to commit any other act which might injure the business of the Company.
- Employees. During the Restricted Period, HOST shall not directly or indirectly (i) solicit or encourage any employee or independent contractor associated with the Company to leave the employ/association of the Company or (ii) hire any employee/independent contractor who has left the employ/association of the Company if such hiring/solicitation is proposed to occur within TWO YEARS after the termination of such employee’s/independent contractor’s employment/association with the Company.
- Rights and Remedies Upon Breach. If HOST breaches, or threatens to commit a breach of, any of the provisions of this Agreement (the “Restrictive Covenants”), the Company shall have the following rights and remedies, in addition to, and not in lieu of, any other rights and remedies available to the Company under law or in equity:
- Specific Performance. The right and remedy to have the Restrictive Covenants specifically enforced or to have any actual or threatened breach thereof enjoined by any court having equity jurisdiction, all without the need to post a bond or other security or to prove any amount of actual damage or that money damages would not provide an adequate remedy, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Company and that monetary damages will not provide an adequate remedy to the Company; and
- Accounting and Indemnification. The right and remedy to require HOST (i) to account for and pay over to the Company all compensation, profits, monies, accruals, increments or other benefits derived or received by HOST deriving such benefits as a result of any such breach of the Restrictive Covenants; and (ii) to indemnify the Company against any other losses, damages (including special and consequential damages), costs and expenses, which may be incurred by them and which result from or arise out of any such breach or threatened breach of the Restorative Covenants.
- Attorney’s Fees. In the event of any action, suit, appeal or other proceeding concerning the negotiation, interpretation, validity, performance, or breach of this Agreement, the prevailing party shall recover all of such party’s actual attorneys’ fees, expenses, and costs, not limited to costs of suit.
6. Governing Law and Venue. This Agreement is to be governed by and construed in accordance with the laws of the State of Florida. Any suit brought hereon shall be brought in the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida the parties hereto hereby waiving any claim or defense to jurisdiction or venue or that such forum is not convenient or proper.
7. Section 542.335 Valid restraints of trade or commerce. This parties acknowledge and represent that this Agreement constitutes a valid restraint on trade pursuant to Section 542.335 of the Florida Statutes and is governed by that Section.
The parties hereto have duly executed this Agreement as of the date and year first above written.
Dated:____________
____________________________________ ____________________________________
Print Name: ________________________ By: Robert Human as President of Pod Casts Are Us, Inc Carl’s
___________________________________________________________________
Ron Renzy
WALLBERG & RENZY, P.A.
10100 West Sample Road
Third Floor
Coral Springs, Florida 33065-3975
USA+1 (954) 757-1212
WE OFFER NO TAX ADVICE OF ANY KIND Pursuant to federal regulations imposed on practitioners who render tax advice (“Circular 230”), we are required to advise you that any tax advice contained herein is not intended or written to be used for the purpose of avoiding tax penalties that may be imposed by the Internal Revenue Service. If this advice is or is intended to be used or referred to in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement, the regulations under Circular 230 require that we advise you as follows: (1) this writing is not intended or written to be used, and it cannot be used, for the purpose of avoiding tax penalties that may be imposed on a taxpayer; (2) the advice was written to support the promotion or marketing of the transaction(s) or matter(s) addressed by the written advice; and (3) the taxpayer should seek advice based on the taxpayer’s particular circumstances from an independent tax advisor.
