Advantage Master

CONFIDENTIALITY, NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT

This Confidentiality, Non-Disclosure and Non-Solicitation Agreement (“Agreement”) is made and entered into in the State of Missouri by and between Advantage Home Care, a Missouri company and all related companies (collectively, “Advantage” or “Employer”) and the “Employee” named in this application as of the date the “Employee” provided their acknowledgment of the agreement contract terms.

WHEREAS, Employee acknowledges Employer is engaged in a specialized and highly competitive business providing, among other services,

WHEREAS, Employer desires to employ (or continue to employ) Employee and Employee desires to be employed (or continue to be employed) by Employer as an In Home aide and/or Consumer Directed Services Attendant and

WHEREAS, Employee acknowledges that the execution of this Agreement is an express condition of Employee’s employment (or continued employment) with Employer; and

WHEREAS, no contract regarding the length of employment is created by this Agreement and the employment relationship between Employer and Employee is terminable at the will of either party.

NOW, THEREFORE, in consideration of Employee’s employment (or continued employment) with Employer, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Employer and Employee hereby agree to execute and be bound by this Agreement as follows:

1. DEFINITIONS: In this Agreement:
Client or Clients means any individual, couple, group of individuals, or other entity that has been solicited, contacted, or served by Employer at any time during the twenty-four (24) month period prior to the discontinuation of Employee’s employment with Employer.
Referral Source means any individual, proprietorship, partnership, corporation, association or other entity that has referred Clients to Employer at any time during the twenty-four (24) month period prior to the discontinuation of Employee’s employment with Employer.
Competing Business means any individual, proprietorship, partnership, corporation, association or other entity other than Employer which: (i) is engaged in, or is about to be engaged in, non-medical home care service, skilled nursing visits, personal care services, attendant services, companion services, pediatric care, consumer directed care, house cleaning, grooming, meal preparation, respite care, and medication assistance and reminders.

Trade Secrets mean any technical information and business information that generally facilitates the sale and performance of Employer’s services, increases revenues, or provides an advantage over Employer’ competitors and is not generally known.
Know-How means all factual knowledge and information related to Employer’ business which is not capable of precise, separate description but which, in accumulated form, after being acquired as a result of trial and error, gives to the one acquiring it the ability to produce and market something which one would otherwise not have known how to produce and market with the same accuracy or precision necessary for commercial success, provided, however, that such knowledge and information is not in the public domain or readily available to any third party other than a limited number of persons who have agreed to keep that information secret.
Confidential Information is information acquired by Employee in the course and scope of his or her activities for Employer or to which Employee is, was or will be exposed to by Employer that is designated by Employer as “confidential” or that Employer indicates through its policies, procedures, or other instructions, or by this Agreement, should not be disclosed to anyone outside Employer except through controlled means. Confidential Information need not be a Trade Secret, Intellectual Property, or Know-How to be protected under this Agreement. The parties to this Agreement specifically agree that, regardless of its affect on trade secret status, the controlled and limited disclosure of Confidential Information to third parties for legitimate business purposes and the availability of the Confidential Information to others outside Employer through independent investigation and effort will not remove it from protected status as Confidential Information under this Agreement if Employee was first entrusted with the Confidential Information while employed by Employer. “Confidential Information” includes, but is not limited to, any and all trade secrets and/or confidential, financial or business information of Employer, or any of its direct or indirect subsidiaries or affiliates, including, but not limited to, (i) names, addresses, phone numbers, e-mail addresses, w-2 information, work history, qualifications, work performance and contact information for Employer’s employees, (ii) names, addresses, telephone numbers and e-mail addresses of customers/clients (and key contacts related to customers/clients), and other business information concerning the level of business provided to any such customer/client, the business preferences and requirements of any such customer/client, prices charged such customer/client, or other business information which otherwise would be of assistance in marketing, serving and/or retaining any such customer/client, (iii) financial statements or reports, marketing or business plans, marketing or business techniques, market analysis, marketing or business plan development material, management information system material, Employer’s statistical information, prices charged customers, quality assurance data, financial status, profits, profit margins, accounts receivable and payment information, and other financial information of or concerning Employer, or any of its respective direct or indirect subsidiaries or affiliates, (iv) marketing and bidding information, rates, price and quotation techniques and methods, sales volumes and profits, margins, marketing plans, strategies and projections, business methods, forms and procedures, (v) operating procedures and manuals, forms, policy manuals, customer/client evaluation procedures, standard of care and outcome measurement data, and companies and contacts from whom Employer, or any of its respective direct or indirect subsidiaries or affiliates obtains various products for sale, resale and marketing, (vi) lists of customers/clients, including but not limited to, any such information maintained on any computer system or data base, (vii) computer software or other data, (viii) accounting information, cost information, discount information, pricing and pricing structure, source codes and/or object codes, technical data, product specifications (of Employer, or any of its respective direct or indirect subsidiaries or affiliates and of any customer of any such business or entity), sales and other records, process technology, lists of customers, and computer software systems and programs, (ix) trade secrets, software, object code, manuals, product design, plans, financial information, software designs and programs, sales and customer information, and other information of Employer, (x) personnel and internal business records and plans, and other information that may not be known generally or publicly outside Employer, or any of their respective direct or indirect subsidiaries or affiliates which gives such business or entity an advantage over its competitors who do not have access to or know or use it, and (xii) other information concerning Employer and customer projects, proposals, financial and operating data.
Company Information means Trade Secrets, Know-How, and Confidential Information (recognizing that certain information and material will fall into multiple categories).

2. CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT: Employee recognizes and acknowledges that Employer has a legitimate business interest to keep certain information confidential at all times. Employee further acknowledges that Employer’s Confidential Information, including, but not limited to, referral sources, clients, and customers of Employer who utilize or are serviced by Employer’s programs as well as the employees and staff who are employed by Employer, are valuable and unique assets of the Employer’s business and were acquired and developed at considerable expense to the Employer. Effective immediately and at all times thereafter, Employee shall hold in strictest confidence and shall not disclose to any person, firm, corporation, partnership, agency, commission, institution or other entity, without the express prior written authorization of the President of Employer, or any other designee selected by the President of Employer, any Confidential Information, Trade Secrets, Know How and/or Company Information relating to any business of Employer.
(a) By virtue of Employee’s employment by Employer, Employee will become familiar with and possess documents and information which are Confidential Information, Trade Secrets, Intellectual Property and/or Company Information, as defined in this Agreement, and Employee will become personally acquainted with certain Referral Sources and Clients of Employer. Employee further acknowledges that Employee will acquire a special relationship with many of the Employer’s Clients and Customers through this employment. Employer and Employee specifically agree and acknowledge that any and all Confidential Information or Trade Secrets provided by Employer or otherwise obtained by Employee during the term of this Agreement is proprietary, unique and commercially sensitive in nature, represents in many instances advanced and state of the art technology, and has been developed over time and reflects a substantive investment by Employer. Employee further acknowledges that Confidential Information and Trade Secrets provided by Employer are not matters of public or general knowledge in the industry and that Employer derives economic value (whether actual or potential) from such information. Employee acknowledges Employer has maintained substantial secrecy concerning the Confidential Information and Trade Secrets and that absent disclosure by Employer to Employee, Employee could not otherwise have readily ascertained by proper means, and/or have acquired knowledge of such confidential or proprietary information and trade secrets.
(b) In the event of termination of employment for any reason, Employee shall immediately deliver to Employer all of Employer’s property, including, but not limited to, all copies and electronically stored versions of any Employer’s property, containing or relating to any Confidential Information, Trade Secrets, and/or Company Information, as defined in this Agreement, and all other business records as well as all other Employer’ property in Employee’s possession and over which Employee has control.
(c) Employee will not, without the prior written consent of Employer, during or at any time after the period of his/her employment by Employer, use for his/her own use or any other’s use or benefit, any Confidential Information, Trade Secrets, and/or Company Information obtained during, after or as a result of employment by Employer.
(d) Employee acknowledges and agrees that Employee will have access to Confidential Information (including the information contained in this Agreement) and that Employee shall not in any manner, directly or indirectly, disclose or divulge Confidential Information to any other person, firm, corporation or other third party for any use or purpose, except as required by law or with the express written authorization of Employer.
(e) The Confidentiality and Non-disclosure obligations and covenants expressed herein shall remain in full force and effect during Employee’s employment with Employer and during or at any time after the period of Employee’s employment with Employer.
(f) Employee understands and acknowledges that any violation of this Section 2 is grounds for immediate termination.

3. NON-SOLICITATION AGREEMENT:
(a) Employee acknowledges that, along with access to Employer’s Confidential Information, Employee will acquire a special relationship with many of the Employer’s Clients, Customers, and employees through employment with the Employer.
(b) During Employee’s employment by Employer and for a period of two years (730 days) after discontinuation of Employee’s employment with Employer, for whatever reason and whether the discontinuation of such employment was voluntary or involuntary, Employee shall not, without the prior written consent of Employer, in any manner, directly or indirectly, either individually or as an employee, owner, partner, consultant, shareholder, director, officer or agent of another, for his/her own benefit or on behalf of any person, firm, partnership, entity or corporation, solicit, recruit, hire, retain, employ, create a business relationship with, or endeavor to solicit, recruit, hire, retain, employ or create a business relationship with any current employee of Employer or any former employee of Employer who was employed by Employer at any time during the one year period (365 days) immediately prior to the discontinuation of Employee’s employment with Employer.
(c) Employee further agrees that during his/her employment with Employer and for a period of two years (730 days) after discontinuation of Employee’s employment with Employer, for whatever reason and whether the discontinuation of such employment was voluntary or involuntary, Employee will not directly or indirectly, on Employee’s own behalf or on behalf of any third party, or as a sole proprietor, joint venture, partner, employee, officer, director, consultant, shareholder, investor, or otherwise solicit the business of any of Employer’s Clients, customers or referral sources, or contact such Clients, customers, or referral sources for any business purpose that is competitive with Employer’s business.
(d) Employee further agrees that during his/her employment with Employer and for a period of two years (730 days) after discontinuation of Employee’s employment with Employer, for whatever reason and whether the discontinuation of such employment was voluntary or involuntary, Employee will not directly or indirectly, on Employee’s own behalf or on behalf of any third party, or as a sole proprietor, joint venture, partner, employee, officer, director, consultant, shareholder, investor, or otherwise encourage any of Employer’s Clients, customers or referral sources (i) to modify their business relationship with Employer or (ii) not to establish or not renew their business relationship with Employer.
(e) Employee understands and acknowledges that any violation of this Section 2 is grounds for immediate termination.

4. ACKNOWLEDGEMENTS. Employee acknowledges and agrees that Employee has the experience, knowledge and capabilities to obtain employment notwithstanding the restrictions in Section 2 and Section 3 and thus Employee has a means to support himself or herself and Employee’s dependents other than by engaging in the activities restricted by the terms of Section 2 and Section 3 and that the terms of Section 2 and Section 3 will not impair such ability. Employee further acknowledges and agrees that enforcement of this Agreement through an injunction will not prevent Employee from earning a living and supporting himself or herself. Employee also acknowledges and agrees that this Agreement does not constitute a contract of employment, Employee’s engagement with Employer is at-will and may be terminated at any time for any or no reason, and nothing herein shall be interpreted as providing Employee the right to continued employment by Employer or provide Employee any right to any compensation or payment upon Employee’s termination.

5. GOODWILL. Employee acknowledges that Employer has developed, over a period of time, and will continue to develop, significant relationships and goodwill between itself and its Clients and Referral Sources by providing superior services. Employee further acknowledges that these relationships and this goodwill are a valuable asset belonging solely to Employer. Employee further acknowledges that any business relationship that he or she brings or has brought to Employer will belong to and will inure to the benefit of Employer after Employee begins his or her employment. Finally, Employee acknowledges that the responsibility to build and maintain business relationships and goodwill with current and prospective Clients and Referral Sources creates a special relation¬ship of trust and confidence between him or her, Employer, and its Clients and Referral Sources. Employer promises to permit Employee to use its goodwill with its current and prospective Clients and Referral Sources to enable Employee to perform his or her duties for Employer.

6. RETURN OF EMPLOYER PROPERTY Employee acknowledges that all written records, databases, CDs, DVDs, disks and other electronic storage media containing information relating to Employer business, including, without limitation, memoranda, notes, correspondence, reports, manuals, books, papers, letters, Client profile data, Client lists, contracts, software programs, drafts, and other documentation (whether in draft or final form, and whether in paper or electronic format), marketing plans, and other sales, financial or technical information relating to Employer’s business, and any and all other documents containing Company Information furnished to Employee by any representative of Employer or otherwise acquired or developed by him or her in connection with his or her association with Employer (collectively, "Recipient Materials") shall at all times be Employer’s exclusive property. Within twenty-four (24) hours of the termination of his or her employment, Employee promises to return any Recipient Materials that are in his or her possession, custody or control, regardless of whether such materials are located in Employee’s office, home, automobile, personal computer, electronic storage media or elsewhere. Employee also shall authorize and permit Employer to inspect all computer drives and electronic storage media used or maintained by Employee during his or her employment and, if necessary, to permit Employer to delete any Recipient Materials or Company Information contained on such drives or storage devices. Additionally, within twenty-four (24) hours of the termination of his or her employment, Employee agrees to return to Employer any equipment or other tangible property which Employee received from Employer during his or her employment, including, but not limited to, desktop and laptop computers, printers, monitors, cellular telephones, pagers or other personal com¬munication devices, credit cards, access cards, security cards, keys and employee manuals which are in Employee’s possession, custody or control, and shall disclose to Employer any and all passwords or codes required to gain access to such devices.

7. REMEDIES FOR VIOLATION: Employee acknowledges that the damages which will be suffered by Employer by a breach of any term or provision of this Agreement may be continuing and irreparable, but will also be difficult or impossible to ascertain in money or money’s worth. Consequently, in addition to any action at law for damages, Employee agrees that Employer may have equitable relief, including specific performance and injunctive relief, including temporary restraining orders and preliminary, permanent and mandatory injunctions, to ensure and enforce his/her performance of such obligations. If such action becomes necessary, Employee further agrees to pay the attorneys’ fees and costs incurred by Employer in the enforcement of these contract provisions, whether or not litigation is initiated.

8. NON-WAIVER: Employer’ failure to exercise any of its rights in the event Employee breaches any of the separate and distinct promises in this Agreement shall not be construed as a waiver of such breach or prevent Employer from later enforcing strict compliance with any and all promises in this Agreement.

9. BINDING EFFECT: This Agreement shall be binding upon and shall inure to the benefit of Employer, its successors and assigns.

10. ASSIGNMENT: This Agreement can only be assigned by Employer.

11. MODIFICATION: This Agreement contains the parties’ complete understanding regarding the subject matters contained herein, and there are no other agreements, oral or written, pertaining to the subject matters of this Agreement. Any amendments to this Agreement must be in writing and signed by the parties.

12. DISCLOSURE OF EXISTENCE OF AGREEMENT: In order to preserve Employer’s rights under this Agreement, Employer may advise any third party of the existence of this Agreement and of its terms and may provide such third party copies hereof, and Employer shall have no liability for doing so. Employee shall notify each subsequent employer or person or entity using the services of Employee at any time within two (2) years following the termination of Employee’s employment with Employer of the existence and provisions of this Agreement. Employee shall also notify Employer in writing of the name, principal business address, primary area of business, and any area of business competitive with the business of Employer of each person or entity by whom Employee is employed or otherwise engaged to provide services at any time within two (2) years following the termination of Employee’s employment with Employer.

13. PRIOR AND/OR PRESENT EMPLOYMENT: Employee represents and warrants to Employer that Employee is not a party to any agreement containing a noncompetition provision or other restriction with respect to (a) the services or business that Employee is required to perform or conduct for Employer or (b) the disclosure or use of any information which directly or indirectly relates to the nature of the business of Employer or the services to be rendered by Employee to Employer. Employee further certifies that he/she has not disclosed or used, and will not disclose or use, during Employee’s employment by Employer, any confidential information that Employee acquired as a result of any previous employment or under a contractual obligation of confidentiality before Employee’s Employment by Employer.

14. INTERPRETATION, JURISDICTION & VENUE: This Agreement shall be interpreted, governed and construed according to the laws of the State of Missouri without reference to conflict of law principles and notwithstanding the place of execution hereof or the performance of any acts under this Agreement in any other jurisdiction. Employee agrees that the State of Missouri bears a substantial relationship to the parties and the transaction between the parties under this Agreement and each party consents to the personal jurisdiction of the state and federal courts located in the State of Missouri for purpose of any suit, action or other proceeding arising out of this Agreement. Employee waives any argument that venue in any such forum is not convenient. Employee and Employer each agrees that the venue of any litigation initiated by either of them in connection with this Agreement shall be in either the Circuit Court of St. Louis County, Missouri, or the United States District Court for the Eastern District of Missouri.

15. HEADINGS: Paragraph headings are for reference purposes only and do not restrict or limit in any way any subject matters contained in this Agreement.

16. ACKNOWLEDGEMENT: BY SIGNING THIS AGREEMENT, EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS READ THE AGREEMENT, THAT HE/SHE UNDERSTANDS THE AGREEMENT AND INTENDS TO FULFILL EACH AND EVERY ONE OF THE PROMISES IN THIS AGREEMENT, THAT EMPLOYEE UNDERSTANDS THAT THIS IS A LEGALLY BINDING AGREEMENT, THAT EMPLOYEE HAS RECEIVED A COPY OF THIS AGREEMENT AND THAT EMPLOYEE UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT THE PROMISES MADE HEREIN ARE REASONABLE AND NECESSARY TO PROTECT EMPLOYER’ LEGITIMATE BUSINESS INTERESTS.

IN WITNESS WHEREOF, this Agreement has been executed as of the date the employee acknowledged their agreement.

EMPLOYEE: I understand that by acknowledging this agreement in the online onboarding paperwork, I am agreeing to the terms listed in the agreement.

It is the policy of the agency that every employee must be free of communicable disease in order to report to work. Employees must be fever free and free of communicable disease for a minimum of 24 hours prior to returning to work. A FULL release from your physician to return to work may be required to return depending on the situation.

It is the policy of the agency that employees must suspend working and disclose any health related issues, concerns, injuries, etc. that may minimize or prohibit their ability to safely perform their job duties, no matter how big or small. (Examples include strep throat, flu, surgical procedures, hospitalizations, injuries, mental health emergencies and pregnancy).

Employees are not allowed to work while taking a medication that could hinder their ability to perform their duties as described in the job description. It is the goal of Advantage to protect our employees and our clients from injury or illnesses.

Any falsification or misrepresentation of one’s health and ability to physically or mentally perform job duties in a safe manner will be sufficient grounds for release from employment.