RELEASE AND WAIVER OF LIABILITY,
ASSUMPTION OF RISK,
AND INDEMNITY AGREEMENT (this “WAIVER”)
In consideration of participating in activities related to yoga, yoga classes, yoga training and instruction, and related activities (the “Activities”) provided by Milazzo Enterprises, LLC, a North Carolina limited liability company d/b/a Campus Yoga (the “Company”), I (the “Participant,” or, if the Participant is a minor, the Participant’s parent or legal guardian) represent, by clicking [I Agree] and participating in the Activities, that I understand the nature of the Activities and that I am qualified, in good health, and in proper physical condition to participate in the Activities. I acknowledge that if I believe event conditions are unsafe, I will immediately discontinue participating in the Activities.
By clicking [I Agree], I represent that I fully understand that the Activities involve risks of serious bodily injury, including permanent disability, paralysis, and death, which may be caused by my own actions or inactions, those actions or inactions of others participating in the Activities, the conditions in which the Activities take place, or the negligence of the Released (as defined below); and that there may be other risks either not known to me or not readily foreseeable at this time; and I fully accept and assume any and all such risks and any and all responsibility for losses, costs, and damages I incur as a result of my participation in the Activity.
By clicking [I Agree], I agree and understand that I FOREVER RELEASE, DISCHARGE, AND COVENANT NOT TO SUE the Company, its administrators, directors, agents, officers, operators, volunteers, and employees (each considered one of the “Released” in this Waiver) from any and all liability, claims, demands, losses, or damages on my account caused or alleged to be caused in whole or in part by the negligence of the Released or otherwise, including negligent rescue operations; and I further agree that if, despite this Waiver, I, or anyone on my behalf, makes a claim against any of the Released, I WILL INDEMNIFY, SAVE, AND HOLD HARMLESS each of the Released from any and all loss, liability, damage, or cost which any of the Released may incur as the result of such claim.
Additionally, by clicking [I Agree], I agree and understand that I FOREVER RELEASE, DISCHARGE, AND COVENANT NOT TO SUE the Released for any damage that may occur to the property and its curtilage on which the Activities take place (the “Property”) as a result of the Activities, including, but not limited to, damage to grass, flowers, landscaping, sidewalks, driveways and any and all improvements to the Property. I acknowledge, by this Waiver, that I am the owner of the Property or have the Property owner’s permission for the Company to conduct the Activities on the Property.
I have read this Waiver, understand that I have given up substantial rights by signing it, and have manifested my assent by clicking [I Agree] freely and without any inducement or assurance of any nature and intend it to be a complete and unconditional release of any and all liability to the greatest extent allowed by law. I agree that if any portion of this Waiver is held to be invalid, the balance will continue in full force and effect.
IN WITNESS WHEREOF, I, the Participant, by clicking [I Agree] hereby acknowledge, accept, and execute this Waiver.
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
By clicking [I Agree], I, on behalf of myself and my representatives (as defined below, and collectively with myself, the “Recipient”) hereby assent to, agree to, and accept this CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT (this “Agreement”), dated as of the date and time that I click [I Agree] (the “Effective Date”), by and between the Recipient and Milazzo Enterprises, LLC, a North Carolina limited liability company, d/b/a Campus Yoga, on behalf of itself and its Representatives (“Company”).
Recipient and Company desire for Recipient to participate in the Activities (as defined in the Waiver (the “Permitted Purposes”)). As part of such Activities, Recipient may receive from Company, and Company may disclose to Recipient, certain confidential information concerning Company and its business. In consideration of the above premises and the covenants set forth in this Agreement, and for other sound and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by this Agreement, the parties agree as follows:
1. Definitions. As used in this Agreement, the following terms will have the following meanings:
(a) “Affiliate” means an entity directly or indirectly, through one or more intermediaries, controlling, controlled by, or under common control with the party in question.
(b) “Confidential Information” means any and all information of Company, other than Trade Secrets, as defined below, treated as confidential or secret by Company, provided, however, such definition will specifically exclude information (i) generally known to the public through no action or inaction of Recipient and without Recipient’s knowledge of any breach of any duty of confidentiality, (ii) disclosed to Recipient by a third party not subject to any obligation of confidentiality and without Recipient’s knowledge of any breach of any duty of confidentiality, or (iii) known to Recipient prior to entering negotiations or discussions related to the Permitted Purposes without Recipient’s knowledge of any breach of any duty of confidentiality.
(c) “Representatives” means officers, directors, managers, employees, attorneys, accountants, Affiliates, and other representatives of Recipient that are permitted access to Company Information in accordance with this Agreement.
(d) “Trade Secrets” means business or technical information, including, but not limited to, a formula, pattern, program, device, compilation of information, method, technique, or process that (i) derives independent commercial value, whether actual or potential, from not being generally known to or readily ascertainable through independent development or reverse engineering by other persons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts by Company that are reasonable under the circumstances to maintain its secrecy.
(e) “Company Information” means, collectively, Confidential Information and Trade Secrets.
(a) Recipient agrees (i) to use the same care and discretion (but in no event less than reasonable care and discretion) to protect Company Information as Recipient employs with respect to similar information; (ii) not to reproduce, distribute, or disclose Company Information except in the ordinary course of business among parties covered by the terms contained in this Agreement; and (iii) not to use any Company Information except for the Permitted Purposes. Without limiting the generality of the foregoing, Recipient expressly agrees not to use any Company Information for any purpose to provide goods or services competitive with the goods or services of Company. Any and all permitted reproductions of such Company Information must prominently contain a confidentiality legend. Unless otherwise expressly permitted in writing by Company, Recipient may not take any copies of any documents provided by Company containing Company Information from any Company premises.
(b) Recipient represents and warrants that each Representative that is permitted access to Company Information is a full-time employee, officer, director, or manager of Recipient or Recipient’s legal counsel. Prior to access of any Company Information by a Representative, Recipient agrees to advise such Representative that he, she, or it must hold such Company Information in confidence and act in compliance with the terms and provisions of this Agreement. Recipient will diligently monitor each such Representative and, upon request by Company, promptly furnish to Company a list of the names and contact information of each Representative who has or has had access to such Company Information. Recipient will be responsible for the acts of any of Recipient’s Representatives that are in violation of this Agreement. Recipient will require each Representative to return to Recipient Company Information, as well as all materials that may include or reflect any portion of Company Information, as soon as such person’s access to such information is no longer necessary for the Permitted Purposes and upon any termination of employment or other position, or leave of absence of such person.
(c) Upon conclusion of the activities for which Company Information may be used as described as part of the Permitted Purposes, Recipient will (i) promptly return to Company all Company Information (including all copies, extracts, or other reproductions of such Company Information, in whatever media), and (ii) destroy any and all notes, memorandum, projections, reports, or other documents prepared by or for Recipient that contain or otherwise reflect Company Information, together with a certificate executed by Recipient certifying that all such materials have been delivered to Company or destroyed; provided, however, Recipient may retain Company Information if Recipient is required to do so by law or regulation.
(d) The covenants of confidentiality set forth in this Agreement will continue and must be maintained after the Effective Date or, until such time as all Company Information becomes publicly known and made generally available through no action or inaction of Recipient and without Recipient’s knowledge of any breach of any duty of confidentiality. Notwithstanding the foregoing, with respect to Trade Secrets, the covenants of confidentiality set forth in this Agreement will continue and must be maintained from the Effective Date through such date as such Trade Secrets retain their status as such under applicable law.
3. Disclosure Required by Law. If Recipient is legally compelled to disclose Company Information, Recipient must (i) unless prohibited by law, give written notice of such required disclosure to Company prior to such disclosure, (ii) exercise best efforts to assist Company in seeking to protect the confidentiality of Company Information required to be disclosed, (iii) exercise best efforts to obtain a protective order requiring that Company Information so disclosed be used only for the purposes for which disclosure is required, and (iv) disclose only that part of Company Information which it is required to disclose.
4. Rights and Remedies.
(a) Recipient acknowledges that (i) Company Information is a valuable asset of Company and may not be used for any purpose other than as described in this Agreement; and (ii) the restrictions contained in this Agreement are reasonable and necessary to protect the legitimate business interests of Company.
(b) Recipient acknowledges that if Recipient should breach or threaten to breach any of the provisions of this Agreement, Company will suffer irreparable harm for which money damages alone would be an inadequate remedy, and Company, in addition to any other remedies it may have at law or in equity, will be entitled to seek equitable relief in order to specifically enforce the provisions of this Agreement. If Company should seek an injunction, Recipient, by this Agreement, waives any requirement for the submission of proof of the economic value of any Company Information or the posting of a bond or any other security.
(c) Recipient will notify Company immediately upon discovery of any unauthorized use or disclosure of Company Information, or any other breach of the Agreement by Recipient, and will cooperate with Company in every reasonable way to help Company regain possession of Company Information and prevent its further unauthorized use or disclosure.
5. No Warranty. Recipient acknowledges that Company is providing information which it believes to be reliable and relevant and that Company makes no representation or warranty as to the accuracy or completeness of Company Information. Recipient agrees that Company will have no liability to Recipient relating to or resulting from the use of Company Information or any errors or omissions regarding such Company Information. Company disclaims all warranties, whether express or implied, and liability for Company Information, including, but not limited to, those warranties of noninfringement and fitness for a particular purpose.
6. No Transaction Obligation. Neither Recipient nor Company will be under any legal obligation of any kind whatsoever (except as set forth in this Agreement) with respect to any future transaction or relationship by virtue of this Agreement. Moreover, nothing in this Agreement will prohibit the enforcement of any binding terms of an executed letter of intent or any other preliminary written agreement between the parties.
7. Reservation of Rights. All Company Information is and will remain property of Company. By disclosing Company Information to Recipient, Company does not grant any express or implied rights or license to Recipient to or under any patents, patent applications, inventions, copyrights, trademarks, or other intellectual property rights of Company.
8. Employee Non-Recruit. Recipient agrees that it will not, directly or indirectly, solicit, recruit, or induce any employee or contractor of Company to (i) terminate his or her employment or other relationship with Company, or (ii) work for Recipient as an employee or contractor. Without Company’s prior written consent, Recipient will not contact any Company employees, customers, account parties, suppliers, competitors, or lenders directly regarding Company’s business and operations or a potential transaction between the parties.
(a) This Agreement and the rights and obligations of Recipient under this Agreement may not be assigned or transferred by Recipient. Company may assign this Agreement in its discretion. The rights and obligations of the parties will inure to the benefit of, will be binding upon and will be enforceable by the parties and their lawful successors and permitted assigns. Any assignment in violation of this Agreement is void and of no effect.
(b) This Agreement, when executed, constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes any and all prior written agreements, oral discussions, or understanding between them with respect to the subject matter of this Agreement. This Agreement will not be altered, modified, changed, supplemented, or amended except in a writing signed by both parties.
(c) The failure of either party to this Agreement in any one or more instances to insist upon the performance of any of the terms or conditions of this Agreement, or to exercise any right or privilege conferred in this Agreement, or the waiver of any breach of any of the terms, covenants, or conditions of this Agreement, will not be construed as waiving any remaining terms, covenants, conditions, rights or privileges, but the same will continue and remain in full force and effect as if no such forbearance or waiver had occurred.
(d) If any of the provisions or any portion of the provisions of this Agreement will be invalid or unenforceable, such invalidity or unenforceability will not invalidate or render unenforceable the Agreement, but rather this Agreement will be construed as if not containing the particular invalid or unenforceable provisions or portion of such provisions, and the rights and obligations of the parties to this Agreement will be construed and enforced accordingly.
(e) This Agreement will be governed by the laws of the State of North Carolina without giving effect to its rules governing conflicts of law. Any claim or cause of action whether in law or equity, arising under or relating to this Agreement may be brought in any federal or state court located in Charlotte, North Carolina. Each party, by this Agreement, consents and submits to the in personal jurisdiction of such courts, and to the extent permitted by law, by this Agreement, consents that all services of process may be made by certified or registered mail, postage prepaid, and return receipt requested. Each party waives any objection based on forum non convenience and waives any objection to venue of any action instituted under this Agreement to the extent that an action is brought in the courts identified above. Each party agrees that a final judgment in any such action will be conclusive and may be enforced in any other jurisdiction in any manner provided by law.
(f) In the event of a dispute between the parties, the non-prevailing party, as determined by a court of competent jurisdiction in a final non-appealable order, will pay all reasonable, out-of-pocket costs and expenses associated with resolving the dispute, including, but not limited to, reasonable attorneys’ fees.
(g) Should any provision of this Agreement require judicial interpretation, the parties agree that the court interpreting or construing the same will not apply a presumption that this Agreement will be more strictly construed against one party than the other.
(h) This Agreement may be executed and delivered by facsimile or other electronic transmission.
BY CLICKING [I AGREE] IN WITNESS OF THE FOREGOING, THE RECIPIENT INDICATES THAT THEY UNDERSTAND, AGREE TO, ACCEPT, AND INTEND TO BE BOUND BY THIS AGREEMENT