CLAIMS, CHARGES, OR
COMPLAINTS AGAINST ANY OF THE RELEASEES, EMPLOYEE SHALL STATE NO MORE THAN THAT
HE CANNOT PROVIDE COUNSEL OR ASSISTANCE.
11.
BREACH.
EMPLOYEE ACKNOWLEDGES AND AGREES
THAT ANY BREACH OF ANY PROVISION OF THIS AGREEMENT SHALL CONSTITUTE A MATERIAL
BREACH OF THE AGREEMENT AND SHALL ENTITLE THE COMPANY IMMEDIATELY TO RECOVER THE
CONSIDERATION PROVIDED IN SECTION 1 HEREOF.
12.
NON-DISPARAGEMENT.
EMPLOYEE AGREES TO
REFRAIN FROM ANY DEFAMATION, LIBEL OR SLANDER OF THE COMPANY, OR TORTIOUS
INTERFERENCE WITH THE CONTRACTS AND RELATIONSHIPS OF THE COMPANY.
ALL INQUIRIES
BY POTENTIAL FUTURE EMPLOYERS OF EMPLOYEE WILL BE DIRECTED TO JOAN VARGAS.
UPON
INQUIRY, THE COMPANY WILL ONLY STATE THE FOLLOWING: EMPLOYEE'S LAST POSITION AND
DATES OF EMPLOYMENT, AND ANY OTHER INFORMATION AND/OR DOCUMENTATION LEGALLY
REQUIRED TO BE DISCLOSED.
13.
NON-SOLICITATION.
EMPLOYEE AGREES THAT FOR
A PERIOD OF SIX (6) MONTHS IMMEDIATELY FOLLOWING THE EFFECTIVE DATE OF THIS
AGREEMENT, EMPLOYEE, DIRECTLY OR INDIRECTLY, WHETHER AS EMPLOYEE, OWNER, SOLE
PROPRIETOR, PARTNER, DIRECTOR, MEMBER, CONSULTANT, AGENT, FOUNDER, CO-VENTURER
OR OTHERWISE, WILL NOT: (I) SOLICIT, INDUCE OR INFLUENCE ANY PERSON TO LEAVE
EMPLOYMENT WITH THE COMPANY; OR (II) DIRECTLY OR INDIRECTLY SOLICIT BUSINESS
FROM ANY OF THE COMPANY'S CUSTOMERS AND USERS ON BEHALF OF ANY BUSINESS THAT
DIRECTLY COMPETES WITH THE PRINCIPAL BUSINESS OF THE COMPANY
14.
NO ADMISSION OF LIABILITY.
THE PARTIES
UNDERSTAND AND ACKNOWLEDGE THAT THIS AGREEMENT CONSTITUTES A COMPROMISE AND
SETTLEMENT OF DISPUTED CLAIMS.
NO ACTION TAKEN BY THE PARTIES, PREVIOUSLY OR IN
CONNECTION WITH THIS AGREEMENT, SHALL BE CONSTRUED TO BE: (A) AN ADMISSION OF
THE TRUTH OR FALSITY OF ANY CLAIMS MADE, OR (B) AN ADMISSION BY EITHER PARTY OF
ANY FAULT OR LIABILITY WHATSOEVER TO THE OTHER PARTY OR TO ANY THIRD PARTY.
15.
COSTS.
THE PARTIES SHALL EACH BEAR THEIR
OWN COSTS, EXPERT FEES, ATTORNEY FEES AND OTHER FEES INCURRED IN CONNECTION WITH
THE PREPARATION OF THIS AGREEMENT.
16.
ARBITRATION.
THE PARTIES AGREE THAT ANY AND
ALL DISPUTES ARISING OUT OF, OR RELATING TO, THE TERMS OF THIS AGREEMENT, THEIR
INTERPRETATION, AND ANY OF THE MATTERS HEREIN RELEASED, SHALL BE SUBJECT TO
BINDING ARBITRATION IN SANTA CLARA COUNTY BEFORE THE AMERICAN ARBITRATION
ASSOCIATION UNDER ITS NATIONAL RULES FOR THE RESOLUTION OF EMPLOYMENT DISPUTES.
THE PARTIES AGREE THAT THE
5
PREVAILING PARTY IN ANY ARBITRATION SHALL BE ENTITLED TO INJUNCTIVE RELIEF IN
ANY COURT OF COMPETENT JURISDICTION TO ENFORCE THE ARBITRATION AWARD.
THE
PARTIES AGREE THAT THE PREVAILING PARTY IN ANY ARBITRATION SHALL BE AWARDED ITS
REASONABLE ATTORNEY FEES AND COSTS.
THE PARTIES HEREBY AGREE TO WAIVE THEIR
RIGHT TO HAVE ANY DISPUTE BETWEEN THEM RESOLVED IN A COURT OF LAW BY A JUDGE OR
JURY.
THIS SECTION WILL NOT PREVENT EITHER PARTY FROM SEEKING INJUNCTIVE RELIEF
(OR ANY OTHER PROVISIONAL REMEDY) FROM ANY COURT HAVING JURISDICTION OVER THE
PARTIES AND THE SUBJECT MATTER OF THEIR DISPUTE RELATING TO EMPLOYEE'S
OBLIGATIONS UNDER THIS AGREEMENT AND THE AGREEMENTS INCORPORATED HEREIN BY
REFERENCE.
17.
NO REPRESENTATIONS.
EACH PARTY REPRESENTS
THAT IT HAS HAD THE OPPORTUNITY TO CONSULT WITH AN ATTORNEY,