So, even though the scope of this clause is broad such that it encompasses disclosure to any person in perpetuity, a court of law will likely enforce it against Writer with an injunction and monetary damages.
D. GOVERNING LAW. It is intended by the Parties that this Agreement be valid and enforceable under the laws of the state of Texas and that the laws of this state shall govern this Agreements interpretation.
*Note: The choice of law clause is very important because different states treat noncompetition agreements with varying degrees of acceptance. Since most films originate in California, it is likely that both the Company and Editor are California residents and it would probably make more sense to use California law; but California law is very strict on noncompetition agreements
. Therefore, since the film will be shot in Texas, it makes sense to choose Texas law instead.
E. ARBITRATION. Any controversy or claim arising out of or relating to this Agreement, its enforcement, arbitrability or interpretation shall be submitted to final and binding arbitration, to be held in Los Angeles County, California, before a single arbitrator, in accordance with California Code of Civil Procedure § 1280 et seq. The arbitrator shall be selected by mutual agreement of the parties or, if the parties cannot agree, then by striking from a list of arbitrators supplied by the American Arbitration Association or JAMS/Endispute. The prevailing party in any such proceeding shall be entitled to recover, from the losing party, its reasonable attorneys fees and costs.
* Note: Again, since both parties likely are California residents, they are subject to jurisdiction in California and therefore can decide to arbitrate in California
. It would be expensive for Company to Texas to settle a dispute so its easiest to handle everything Los Angeles.
Also, arbitration is much less expensive than a court trial so its best for everyone to avoid court. However, practically, this agreement could still make it to court to challenge this arbitration clause first, and then to challenge the validity of the entire agreement in general.
F. RIGHT to SPECIFIC PERFORMANCE. Editors services are of a special, unique, unusual, extraordinary and intellectual character, which are of a peculiar value to Employer for which services Employer pays a substantial amount to Editor. Editor hereby recognizes that due to the unique nature of Editors services that Employer (and any affiliates and assigns) will be irreparably damaged by any breach by the Editor of this Agreement and, therefore, the Editor agrees that the Employer shall have the right to seek specific performance thereof and/or to obtain an injunction against any threatened or actual breaches thereof.
*Note: According to California Civil Code § 3423(e)) in order for an employer to be awarded special performance (i.e. An injunction against Editor continuing to be employed in a manner that violates the noncompete agreement) instead of just monetary damages. Cal. Civ. Code §3423(e) (West 2007).
G. SEVERABILITY. In the event any provision of this Agreement is deemed to be void, invalid, or unenforceable, that provision shall be severed from the remainder of this Agreement so as not to cause the invalidity or unenforceability of the remainder of this Agreement. All remaining provisions of this Agreement shall then continue in full force and effect. If any provision shall be deemed invalid due to its scope or.