jason_jason
New Member
Looking for a Non-Compete agreement to be used in conjunction with an asset acquisition of a professional practice.
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Non-Compete Agreement
- Thread Starter jason_jason
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jason jason said:
I might use a combination of a non-compete AND non-disclosure regarding such a person. I'll post some sample forms here for you to feel free to use although for a significant purchase I'd hire an attorney to make sure everything is done properly. Too important a transaction to be using standard forms, IMHO.
Non-Compete for Employee
EMPLOYEE PROPRIETARY INFORMATION, NON-COMPETITION
AND INVENTIONS ASSIGNMENT AGREEMENT
In consideration and as a condition of the retention or engagement by ABC, Inc., a Delaware corporation (the "Company", which term shall also include any subsidiaries and divisions of ABC, Inc.), of me as an employee or as a consultant, I hereby agree with the Company as follows:
1. Compliance with Company Policies; Duties; At-Will Employment.
As a condition of my employment, I will comply in all respects with all (a) policies and procedures established by the Company from time to time, (b) laws and regulations applicable to the Company, and (c) lawful directives of the officers of the Company. I agree to perform my duties to the best of my abilities and consistent with the highest professional and ethical standards. I will perform for the Company such duties as may be designated by the Company from time to time. . If I am terminated by the Company, with or without casue, the Company shall pay to me the amounts of severance pay provided for in the accompanying Employment Agreement (see Termination Section), which is part of the consideration negotiated between the parties for my services. In addition, upon my termination by the Company, all my stock and other equity-type options shall immediately vest and shall be exercisable by me at any time which I choose. Similarly, I may terminate my employment with the Company at any time, with or without cause, and with or without notice. During my period of employment by the Company, I will devote my best efforts to the interests of the Company. [Note, the agreement covers noncompete scenarios infra]
2. Prior Work.
Previous work done by me for the Company relating to [COMPANY TO SPECIFY WORK] for the Company is the property of the Company, and I hereby assign to the Company all of my right, title and interest in and to such previous work.
3. Nondisclosure and Use of Proprietary Information.
(a) I will not at any time, whether during or after the termination of my employment, reveal to any person or entity any of the trade secrets or proprietary or confidential information of the Company or of any third party which the Company is under an obligation to keep confidential (including, but not limited to, Intellectual Property Rights (as hereinafter defined), ideas (whether or not protectable under trade secret laws) trade secrets or proprietary or confidential information respecting inventions, products, product plans, designs, drawings, sketches, marketing and other plans, methods, research, know-how, techniques, technology, systems, models, samples, source codes, object code methodologies, contractual arrangements, characters, processes, strategies, software programs, works of authorship, customer lists, customer histories, user lists, vendor lists, content provider lists, supplier lists, pricing information, projects, notes, memoranda, reports, lists, records, specifications, software programs, data, documentation, budgets, plans, projections, forecasts, financial information, accounting procedures, sales and marketing techniques, and proposals in whatever form, personnel histories, tangible or intangible or other materials of any nature relating to any matter within the scope of the business of the Company or concerning any of the dealings or affairs of the Company (collectively, "Proprietary Information")), except as may be required in the ordinary course of performing my duties as an employee of the Company, and I shall keep secret all matters entrusted to me and shall not use or attempt to use any such information in any manner.
(b) As used herein, the term "Intellectual Property Rights" shall mean all industrial and intellectual property rights, including, without limitation, patents, patent applications, patent rights, trademarks, trademark applications, trade names, service marks, service mark applications, copyrights, copyright applications or registrations, databases, algorithms, computer programs and other software, know-how, trade secrets, proprietary processes and formulae, confidential information, franchises, licenses, world wide web/internet domain names or world wide web/internet uniform resource locators, inventions, trade dress, logos, design and all documentation and media constituting, describing or relating to the above.
(c) The above restrictions shall not apply to: (i) information that at the time of disclosure is in the public domain through no fault of mine; (ii) information received from a third party outside of the Company that was disclosed without a breach of any confidentiality obligation; (iii) information approved for release by written authorization of the Company; or (iv) information that may be required by law or an order of any court, agency or proceeding to be disclosed.
(d) The above restrictions shall not apply to Employee's tools of trade, and Materials pre-existing the Employee's engagement by the Company pursuant to this Employment Agreement dated _________, 2000.
(e) During my employment I shall not take, use or permit to be used any Proprietary Information otherwise than for the benefit of the Company. I shall not, after the termination of my employment, use or permit to be used any such Proprietary Information, notes, memoranda, reports, lists, records, drawings, sketches, specifications, software programs, data, documentation or other materials, it being agreed that all of the foregoing shall be and remain the sole and exclusive property of the Company, except for my own workproduct, pre-existing materials and tools of trade mentioned above.
(f) While I am employed at the Company, I will not:
(i) disclose to the Company, use, or induce the Company to use, any confidential, proprietary or trade secret information of others; or
(ii) enter into any agreement (written or oral) that conflicts with the terms of this Agreement.
4. Assignment of Developments.
(a) If at any time or times during my employment I shall (either alone or with others) make, conceive, discover or reduce to practice any Proprietary Information whatsoever or any interest therein (whether or not patentable or registrable under copyright or similar statutes or subject to analogous protection) (herein called "Developments") that (i) relates to the business of the Company or any of the products or services being developed, manufactured, sold or provided by the Company or which may be used in relation therewith, such Developments and the benefits thereof shall immediately become the sole and absolute property of the Company and its assigns, and I shall assign any rights I may have or acquire in said Developments and benefits and/or rights resulting therefrom to the Company and its assigns without further compensation
(b) To the extent any of the rights, title and interest in and to the Developments cannot be assigned by me to the Company, I hereby grant to the Company an exclusive, royalty-free, transferable, irrevocable, worldwide license (with rights to sublicense through multiple tiers of sublicensees) to practice such non-assignable rights, title and interest. To the extent any of the rights, title and interest in and to the Developments can be neither assigned nor licensed by me to the Company, I hereby irrevocably waive and agree never to assert such non-assignable and non-licensable rights, title and interest against the Company or any of the Company's successors in interest to such non-assignable and non-licensable rights. I hereby grant to the Company or the Company's designees a royalty free, irrevocable, worldwide license (with rights to sublicense through multiple tiers of sublicensees) to practice all applicable patent, copyright, moral right, mask work, trade secret and other Intellectual Property Rights relating to any Developments referred to in section 5(a) above which I incorporate, or permit to be incorporated, in any Company Developments.
5. Cooperation in Perfecting Rights.
(a) I agree to perform, during and after my employment, all lawful acts deemed necessary or desirable by the Company to permit and assist the Company, at the Company's expense, in obtaining and enforcing the full benefits, enjoyment, rights and title throughout the world in the Developments assigned or licensed to, or whose rights are irrevocably waived and shall not be asserted against, the Company under this Agreement. Such acts are limited to the execution of documents (i) for the filing, prosecution, registration, and memorialization of assignment of any applicable patents, copyrights, mask work, or other applications, (ii) for the enforcement of any applicable patents, copyrights, mask work, moral rights, trade secrets, or other proprietary rights, and (iii) for other legal proceedings related to the Developments.
(b) In the event the Company is unable, after reasonable effort, to secure my signature on any letters patent, copyright or other analogous protection relating to a Development, whether because of my physical or mental incapacity or for any other reason whatsoever, I hereby irrevocably designate and appoint the Company and its duly authorized officers and agents as my agent and attorney-in-fact, to act for and in my behalf and stead to execute and file any such application or applications to further the prosecution and issuance of any such letters, patent, copyright and other analogous protection thereon with the same legal force and effect as if executed by me.
EMPLOYEE PROPRIETARY INFORMATION, NON-COMPETITION
AND INVENTIONS ASSIGNMENT AGREEMENT
In consideration and as a condition of the retention or engagement by ABC, Inc., a Delaware corporation (the "Company", which term shall also include any subsidiaries and divisions of ABC, Inc.), of me as an employee or as a consultant, I hereby agree with the Company as follows:
1. Compliance with Company Policies; Duties; At-Will Employment.
As a condition of my employment, I will comply in all respects with all (a) policies and procedures established by the Company from time to time, (b) laws and regulations applicable to the Company, and (c) lawful directives of the officers of the Company. I agree to perform my duties to the best of my abilities and consistent with the highest professional and ethical standards. I will perform for the Company such duties as may be designated by the Company from time to time. . If I am terminated by the Company, with or without casue, the Company shall pay to me the amounts of severance pay provided for in the accompanying Employment Agreement (see Termination Section), which is part of the consideration negotiated between the parties for my services. In addition, upon my termination by the Company, all my stock and other equity-type options shall immediately vest and shall be exercisable by me at any time which I choose. Similarly, I may terminate my employment with the Company at any time, with or without cause, and with or without notice. During my period of employment by the Company, I will devote my best efforts to the interests of the Company. [Note, the agreement covers noncompete scenarios infra]
2. Prior Work.
Previous work done by me for the Company relating to [COMPANY TO SPECIFY WORK] for the Company is the property of the Company, and I hereby assign to the Company all of my right, title and interest in and to such previous work.
3. Nondisclosure and Use of Proprietary Information.
(a) I will not at any time, whether during or after the termination of my employment, reveal to any person or entity any of the trade secrets or proprietary or confidential information of the Company or of any third party which the Company is under an obligation to keep confidential (including, but not limited to, Intellectual Property Rights (as hereinafter defined), ideas (whether or not protectable under trade secret laws) trade secrets or proprietary or confidential information respecting inventions, products, product plans, designs, drawings, sketches, marketing and other plans, methods, research, know-how, techniques, technology, systems, models, samples, source codes, object code methodologies, contractual arrangements, characters, processes, strategies, software programs, works of authorship, customer lists, customer histories, user lists, vendor lists, content provider lists, supplier lists, pricing information, projects, notes, memoranda, reports, lists, records, specifications, software programs, data, documentation, budgets, plans, projections, forecasts, financial information, accounting procedures, sales and marketing techniques, and proposals in whatever form, personnel histories, tangible or intangible or other materials of any nature relating to any matter within the scope of the business of the Company or concerning any of the dealings or affairs of the Company (collectively, "Proprietary Information")), except as may be required in the ordinary course of performing my duties as an employee of the Company, and I shall keep secret all matters entrusted to me and shall not use or attempt to use any such information in any manner.
(b) As used herein, the term "Intellectual Property Rights" shall mean all industrial and intellectual property rights, including, without limitation, patents, patent applications, patent rights, trademarks, trademark applications, trade names, service marks, service mark applications, copyrights, copyright applications or registrations, databases, algorithms, computer programs and other software, know-how, trade secrets, proprietary processes and formulae, confidential information, franchises, licenses, world wide web/internet domain names or world wide web/internet uniform resource locators, inventions, trade dress, logos, design and all documentation and media constituting, describing or relating to the above.
(c) The above restrictions shall not apply to: (i) information that at the time of disclosure is in the public domain through no fault of mine; (ii) information received from a third party outside of the Company that was disclosed without a breach of any confidentiality obligation; (iii) information approved for release by written authorization of the Company; or (iv) information that may be required by law or an order of any court, agency or proceeding to be disclosed.
(d) The above restrictions shall not apply to Employee's tools of trade, and Materials pre-existing the Employee's engagement by the Company pursuant to this Employment Agreement dated _________, 2000.
(e) During my employment I shall not take, use or permit to be used any Proprietary Information otherwise than for the benefit of the Company. I shall not, after the termination of my employment, use or permit to be used any such Proprietary Information, notes, memoranda, reports, lists, records, drawings, sketches, specifications, software programs, data, documentation or other materials, it being agreed that all of the foregoing shall be and remain the sole and exclusive property of the Company, except for my own workproduct, pre-existing materials and tools of trade mentioned above.
(f) While I am employed at the Company, I will not:
(i) disclose to the Company, use, or induce the Company to use, any confidential, proprietary or trade secret information of others; or
(ii) enter into any agreement (written or oral) that conflicts with the terms of this Agreement.
4. Assignment of Developments.
(a) If at any time or times during my employment I shall (either alone or with others) make, conceive, discover or reduce to practice any Proprietary Information whatsoever or any interest therein (whether or not patentable or registrable under copyright or similar statutes or subject to analogous protection) (herein called "Developments") that (i) relates to the business of the Company or any of the products or services being developed, manufactured, sold or provided by the Company or which may be used in relation therewith, such Developments and the benefits thereof shall immediately become the sole and absolute property of the Company and its assigns, and I shall assign any rights I may have or acquire in said Developments and benefits and/or rights resulting therefrom to the Company and its assigns without further compensation
(b) To the extent any of the rights, title and interest in and to the Developments cannot be assigned by me to the Company, I hereby grant to the Company an exclusive, royalty-free, transferable, irrevocable, worldwide license (with rights to sublicense through multiple tiers of sublicensees) to practice such non-assignable rights, title and interest. To the extent any of the rights, title and interest in and to the Developments can be neither assigned nor licensed by me to the Company, I hereby irrevocably waive and agree never to assert such non-assignable and non-licensable rights, title and interest against the Company or any of the Company's successors in interest to such non-assignable and non-licensable rights. I hereby grant to the Company or the Company's designees a royalty free, irrevocable, worldwide license (with rights to sublicense through multiple tiers of sublicensees) to practice all applicable patent, copyright, moral right, mask work, trade secret and other Intellectual Property Rights relating to any Developments referred to in section 5(a) above which I incorporate, or permit to be incorporated, in any Company Developments.
5. Cooperation in Perfecting Rights.
(a) I agree to perform, during and after my employment, all lawful acts deemed necessary or desirable by the Company to permit and assist the Company, at the Company's expense, in obtaining and enforcing the full benefits, enjoyment, rights and title throughout the world in the Developments assigned or licensed to, or whose rights are irrevocably waived and shall not be asserted against, the Company under this Agreement. Such acts are limited to the execution of documents (i) for the filing, prosecution, registration, and memorialization of assignment of any applicable patents, copyrights, mask work, or other applications, (ii) for the enforcement of any applicable patents, copyrights, mask work, moral rights, trade secrets, or other proprietary rights, and (iii) for other legal proceedings related to the Developments.
(b) In the event the Company is unable, after reasonable effort, to secure my signature on any letters patent, copyright or other analogous protection relating to a Development, whether because of my physical or mental incapacity or for any other reason whatsoever, I hereby irrevocably designate and appoint the Company and its duly authorized officers and agents as my agent and attorney-in-fact, to act for and in my behalf and stead to execute and file any such application or applications to further the prosecution and issuance of any such letters, patent, copyright and other analogous protection thereon with the same legal force and effect as if executed by me.
6. Non-Competition; Non-Solicitation.
(a) While I am employed at the Company and for a period of 6 months after termination of my employment for cause, I will not, whether alone or as a partner, officer, director, consultant, agent, employee or stockholder of any company or other commercial enterprise, directly or indirectly, engage in any business activity that competes with the same business conducted by the Company and related to Employee's work at any time during the period of my employment with the Company,
(b) While I am employed at the Company and for a period of 6 months after termination of my employment for cause, I will not, directly or indirectly, solicit, recruit or hire any employee of the Company to work for a third party other than the Company or purposely engage in any activity that I would know to cause any employee to violate any agreement with the Company.
(c) While I am employed by the Company and for a period of 6 months after termination of my employment for cause, I will not, directly or indirectly, solicit, entice or induce any Customer or Supplier (as defined below) of the Company to (i) become a Customer or Supplier of any other person or entity engaged in any business activity that competes with any business conducted by the Company at any time during the period of my employment with the Company or (ii) cease doing business with the Company, and I will not knowingly assist any person or entity in taking any action described in the foregoing clauses (i) and (ii). For purposes of this paragraph (c), (A) a "Customer" of the Company means any person, corporation, partnership, trust, division, business unit, department or agency which, at the time of determination or within one year prior thereto, shall be or shall have been a customer, distributor or agent of the Company; and (B) a "Supplier" of the Company means any person, corporation, partnership, trust, division, business unit, department or agency which, at the time of determination or within one year prior thereto, shall have been during the term of my employment a supplier, vendor, manufacturer or developer for any product or service or significant component used in any product or service of the Company.
7. Ownership and Return of Materials.
Except for my own pre-existing materials, tools of trade, personal work product and notes, all materials (including, without limitation, documents, drawings, models, apparatus, sketches, designs, lists, and all other tangible media of expression) furnished to me by the Company shall remain the property of the Company. Upon termination of my employment, or at any time on the request of the Company before termination, I will promptly (but no later than five (5) days after the earlier of my employment's termination or the Company's request) destroy or deliver to the Company, at the Company's option, (a) all materials furnished to me by the Company, (b) all tangible media of expression which are in my possession and which incorporate any Proprietary Information
8. Computer Files and Systems.
I acknowledge that the Company has a critical business interest in maintaining complete control and access to its various computer systems. In view of this interest, I understand that I will have no right to privacy as to any information connected to the Company or the business of the Company which I input or otherwise cause to become a part of such systems. Further, the Company shall be entitled (in the exercise of its sole discretion) to delete, erase and/or destroy any and all such information which I may so input or cause to become a part of the Company's various computer systems.
9. Representations and Warranties.
I hereby represent and warrant to the Company as follows:
(a) My performance of all the terms of this Agreement and as an employee of the Company does not and will not breach any agreement to keep in confidence proprietary information, knowledge or data acquired by me prior to my employment with the Company. I am not a party to any other agreement which will interfere with my full compliance with this Agreement.
10. Equitable Relief.
I agree that any breach of this Agreement by me will cause irreparable damage to the Company and that in the event of such breach the Company shall have, in addition to any and all remedies at law, the right to sue for an injunction, specific performance or other equitable relief to prevent the violation of my obligations hereunder. Nothing herein contained shall be construed as prohibiting the Company from pursuing any other remedy available for such breach or threatened breach. The prevailing party in any litigation arising under this Agreement shall be entitled to recover his or its attorneys' fees and expenses in addition to all other available remedies.
11. Waivers.
Any waiver by the Company of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach of such provision or any other provision hereof.
12. Acknowledgment; Severability.
I hereby acknowledge that the type and periods of restriction imposed in the provisions of this Agreement are required for the protection of the Company's proprietary information and the goodwill associated with the business of the Company. I hereby further acknowledge that the provisions of this Agreement shall be enforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, if any particular provision of this Agreement shall be adjudicated to be invalid or unenforceable, such provision shall be deemed amended to delete therefrom the portion thus adjudicated to be invalid or unenforceable, such deletion to apply only with respect to the operation of such provision in the particular jurisdiction in which such adjudication is made. In addition, if any one or more of the provisions contained in this Agreement shall for any reason be held to be excessively broad as to duration, geographical scope, activity or subject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the applicable law as it shall then appear. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
13. Survival of Obligations.
My obligations under this Agreement which pertain to my obligations and restrictions after the course of my employment as described above shall survive the termination of my employment regardless of the manner of such termination. [NOTE, this is a personal services contract]
14. Assignment.
The Company shall have the right to assign this Agreement to its successors and assigns, and all covenants and agreements hereunder shall inure to the benefit of and be enforceable by said successors or assigns, except for those personal services which cannot by law be imposed upon Employee and the Company's successors and assigns.
15. Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of the State of ________ applicable to contracts made and to be performed wholly therein (without regard to principles of conflicts of law).
16. Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument.
17. Entire Agreement.
This Agreement represents my entire understanding with the Company with respect to the subject matter of this Agreement and supersedes all previous understandings, written or oral.
IN WITNESS WHEREOF, the undersigned has executed this Employee Proprietary Information, Non-Competition and Inventions Assignment Agreement as of the __ day of __________, 2000.
_________________
JOHN DOE, EMPLOYEE
_________________
_________________
Address
Agreed to and Accepted:
ABC, INC.
By:____________
(a) While I am employed at the Company and for a period of 6 months after termination of my employment for cause, I will not, whether alone or as a partner, officer, director, consultant, agent, employee or stockholder of any company or other commercial enterprise, directly or indirectly, engage in any business activity that competes with the same business conducted by the Company and related to Employee's work at any time during the period of my employment with the Company,
(b) While I am employed at the Company and for a period of 6 months after termination of my employment for cause, I will not, directly or indirectly, solicit, recruit or hire any employee of the Company to work for a third party other than the Company or purposely engage in any activity that I would know to cause any employee to violate any agreement with the Company.
(c) While I am employed by the Company and for a period of 6 months after termination of my employment for cause, I will not, directly or indirectly, solicit, entice or induce any Customer or Supplier (as defined below) of the Company to (i) become a Customer or Supplier of any other person or entity engaged in any business activity that competes with any business conducted by the Company at any time during the period of my employment with the Company or (ii) cease doing business with the Company, and I will not knowingly assist any person or entity in taking any action described in the foregoing clauses (i) and (ii). For purposes of this paragraph (c), (A) a "Customer" of the Company means any person, corporation, partnership, trust, division, business unit, department or agency which, at the time of determination or within one year prior thereto, shall be or shall have been a customer, distributor or agent of the Company; and (B) a "Supplier" of the Company means any person, corporation, partnership, trust, division, business unit, department or agency which, at the time of determination or within one year prior thereto, shall have been during the term of my employment a supplier, vendor, manufacturer or developer for any product or service or significant component used in any product or service of the Company.
7. Ownership and Return of Materials.
Except for my own pre-existing materials, tools of trade, personal work product and notes, all materials (including, without limitation, documents, drawings, models, apparatus, sketches, designs, lists, and all other tangible media of expression) furnished to me by the Company shall remain the property of the Company. Upon termination of my employment, or at any time on the request of the Company before termination, I will promptly (but no later than five (5) days after the earlier of my employment's termination or the Company's request) destroy or deliver to the Company, at the Company's option, (a) all materials furnished to me by the Company, (b) all tangible media of expression which are in my possession and which incorporate any Proprietary Information
8. Computer Files and Systems.
I acknowledge that the Company has a critical business interest in maintaining complete control and access to its various computer systems. In view of this interest, I understand that I will have no right to privacy as to any information connected to the Company or the business of the Company which I input or otherwise cause to become a part of such systems. Further, the Company shall be entitled (in the exercise of its sole discretion) to delete, erase and/or destroy any and all such information which I may so input or cause to become a part of the Company's various computer systems.
9. Representations and Warranties.
I hereby represent and warrant to the Company as follows:
(a) My performance of all the terms of this Agreement and as an employee of the Company does not and will not breach any agreement to keep in confidence proprietary information, knowledge or data acquired by me prior to my employment with the Company. I am not a party to any other agreement which will interfere with my full compliance with this Agreement.
10. Equitable Relief.
I agree that any breach of this Agreement by me will cause irreparable damage to the Company and that in the event of such breach the Company shall have, in addition to any and all remedies at law, the right to sue for an injunction, specific performance or other equitable relief to prevent the violation of my obligations hereunder. Nothing herein contained shall be construed as prohibiting the Company from pursuing any other remedy available for such breach or threatened breach. The prevailing party in any litigation arising under this Agreement shall be entitled to recover his or its attorneys' fees and expenses in addition to all other available remedies.
11. Waivers.
Any waiver by the Company of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach of such provision or any other provision hereof.
12. Acknowledgment; Severability.
I hereby acknowledge that the type and periods of restriction imposed in the provisions of this Agreement are required for the protection of the Company's proprietary information and the goodwill associated with the business of the Company. I hereby further acknowledge that the provisions of this Agreement shall be enforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, if any particular provision of this Agreement shall be adjudicated to be invalid or unenforceable, such provision shall be deemed amended to delete therefrom the portion thus adjudicated to be invalid or unenforceable, such deletion to apply only with respect to the operation of such provision in the particular jurisdiction in which such adjudication is made. In addition, if any one or more of the provisions contained in this Agreement shall for any reason be held to be excessively broad as to duration, geographical scope, activity or subject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the applicable law as it shall then appear. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
13. Survival of Obligations.
My obligations under this Agreement which pertain to my obligations and restrictions after the course of my employment as described above shall survive the termination of my employment regardless of the manner of such termination. [NOTE, this is a personal services contract]
14. Assignment.
The Company shall have the right to assign this Agreement to its successors and assigns, and all covenants and agreements hereunder shall inure to the benefit of and be enforceable by said successors or assigns, except for those personal services which cannot by law be imposed upon Employee and the Company's successors and assigns.
15. Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of the State of ________ applicable to contracts made and to be performed wholly therein (without regard to principles of conflicts of law).
16. Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument.
17. Entire Agreement.
This Agreement represents my entire understanding with the Company with respect to the subject matter of this Agreement and supersedes all previous understandings, written or oral.
IN WITNESS WHEREOF, the undersigned has executed this Employee Proprietary Information, Non-Competition and Inventions Assignment Agreement as of the __ day of __________, 2000.
_________________
JOHN DOE, EMPLOYEE
_________________
_________________
Address
Agreed to and Accepted:
ABC, INC.
By:____________
Non-Disclosure
This Nondisclosure Agreement (this "Agreement") is dated as of _____, 2000, between ABC CO ("ABC") and__________ ("Company").
RECITALS
A. In connection with the evaluation or pursuit of certain mutually beneficial business opportunities, ABC and Company may disclose valuable proprietary information to each other relating to their respective operations and business.
B. ABC and Company would like to protect the confidentiality of, maintain their respective rights in and prevent the unauthorized use and disclosure of such information.
ABC and Company hereby agree as follows:
1. Confidential Information. As used in this Agreement, "Confidential Information" means all information of either party that is not generally known to the public, whether of a technical, business or other nature (including, without limitation, trade secrets, know-how and information relating to the technology, customers, business plans, promotional and marketing activities, finances and other business affairs of such party), that is disclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party") or that is otherwise learned by the Receiving Party in the course of its discussions or business dealings with, or its physical or electronic access to the premises of, the Disclosing Party, and that has been identified as being proprietary and/or confidential or that by the nature of the circumstances surrounding the disclosure or receipt ought to be treated as proprietary and confidential. Confidential Information also includes all information concerning the existence and progress of the parties' dealings and the identity of ABC vendors and strategic partners, regardless of whether any such information is marked or otherwise identified in writing as confidential.
2. Use and Ownership of Confidential Information. The Receiving Party, except as expressly provided in this Agreement, will not disclose Confidential Information to anyone without the Disclosing Party's prior written consent. In addition, the Receiving Party will not use, or permit others to use, Confidential Information for any purpose other than the following:
ABC evaluation of Company's products and/or services and, if desired by the parties, negotiation and consummation of a business transaction involving ABC purchase of Company's products and/or services.
The Receiving Party will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of Confidential Information, including, at a minimum, those measures it takes to protect its own confidential information of a similar nature. All Confidential Information will remain the exclusive property of the Disclosing Party, and the Receiving Party will have no rights, by license or otherwise, to use the Confidential Information except as expressly provided herein.
3. Exceptions. The provisions of Section 2 will not apply to any information that (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to the Receiving Party prior to its receipt from the Disclosing Party; (iii) is rightfully received from a third party who did not acquire or disclose such information by a wrongful or tortious act; or (iv) can be shown by documentation to have been developed by the Receiving Party without reference to any Confidential Information.
4. Disclosures to Governmental Entities. If the Receiving Party becomes legally obligated to disclose Confidential Information by any governmental entity with jurisdiction over it, the Receiving Party will give the Disclosing Party prompt written notice to allow the Disclosing Party to seek a protective order or other appropriate remedy. Such notice must include, without limitation, identification of the information to be so disclosed and a copy of the order. The Receiving Party will disclose only such information as is legally required and will use its reasonable best efforts to obtain confidential treatment for any Confidential Information that is so disclosed.
5. Compliance with ABC; Exportation/ Transmission of Confidential Information. Both parties will comply with all applicable federal, state, and local statutes, rules and regulations, including, but not limited to, United States export control ABC and regulations as they currently exist and as they may be amended from time to time.
6. Receiving Party Personnel. The Receiving Party will restrict the possession, knowledge, development and use of Confidential Information to its employees, agents, subcontractors and entities controlled by or controlling it (collectively, "Personnel") who have a need to know Confidential Information in connection with the purposes set forth in Section 2. The Receiving Party's Personnel will have access only to the Confidential Information they need for such purposes. The Receiving Party will ensure that its Personnel comply with this Agreement and will promptly notify the Disclosing Party of any breach of this Agreement.
7. Return of Confidential Information. Upon the Disclosing Party's written request, the Receiving Party promptly will return or destroy (or, in the case of electronic embodiments, permanently erase) all tangible material embodying Confidential Information (in any form and including, without limitation, all summaries, copies and excerpts of Confidential Information) in its possession or under its control.
8. Independent Development. The Disclosing Party acknowledges that the Receiving Party may currently or in the future be developing information internally, or receiving information from other parties, that is similar to the Confidential Information. Accordingly, nothing in this Agreement will be construed as a representation or agreement that the Receiving Party will not develop or have developed for it products, concepts, systems or techniques that are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the Confidential Information, provided that the Receiving Party does not violate any of its obligations under this Agreement in connection with such development.
9. Injunctive Relief. The Receiving Party acknowledges that disclosure or use of Confidential Information in violation of this Agreement could cause irreparable harm to the Disclosing Party for which monetary damages may be difficult to ascertain or an inadequate remedy. The Receiving Party therefore agrees that the Disclosing Party will have the right, in addition to its other rights and remedies, to injunctive relief for any violation of this Agreement without posting bond, or by posting bond at the lowest amount required by law.
10. Limited Relationship. This Agreement will not create a joint venture, partnership or other formal business relationship or entity of any kind, or an obligation to form any such relationship or entity. Each party will act as an independent contractor and not as an agent of the other party for any purpose, and neither will have the authority to bind the other.
11. Cumulative Obligations. Each party's obligations hereunder are in addition to, and not exclusive of, any and all of its other obligations and duties to the other party, whether express, implied, in fact or in law.
12. Entire Agreement; Amendment. This Agreement constitutes the entire agreement between the parties relating to the matters discussed herein and supersedes all prior oral and written understandings with respect to any information disclosed or received under this Agreement. This Agreement may be amended or modified only with the mutual written consent of the parties.
13. Term and Termination. This Agreement is intended to cover Confidential Information disclosed or received by either party prior or subsequent to the date of this Agreement. Unless otherwise earlier terminated, this Agreement automatically will expire five (5) years from the date first written above; provided, however, that each party's obligations with respect to the other party's Confidential Information disclosed or received prior to termination or expiration will survive for ten (10) additional years following the expiration or termination of this Agreement.
14. Nonwaiver. Any failure by either party to enforce the other party's strict performance of any provision of this Agreement will not constitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement.
15. Attorney Fees. In the event any court action is commenced by one party against the other, the substantially prevailing party is entitled to recover its out-of-pocket and court costs and reasonable attorney fees. The cost of in-house legal staff will be valued at market rates for comparable services from private practitioners.
16. Governing Law; Etc. This Agreement will be governed by internal ABC of the State of Washington, without reference to its choice of law rules, may be executed in counterpart copies, and, in the absence of an original signature, faxed signatures will be considered the equivalent of an original signature. Each party hereby waives its right to a jury trial for any claims that may arise out of this Agreement. If a provision of this Agreement is held invalid under any applicable law, such invalidity will not affect any other provision of this Agreement that can be given effect without the invalid provision. Further, all terms and conditions of this Agreement will be deemed enforceable to the fullest extent permissible under applicable law, and, when necessary, the court is requested to reform any and all terms or conditions to give them such effect.
The parties have executed this Agreement on the date first written above.
Company
Name:
Title:
Date:
Mailing Address:
[Company Name]
Name:
Title:
Date:
Mailing Address:
This Nondisclosure Agreement (this "Agreement") is dated as of _____, 2000, between ABC CO ("ABC") and__________ ("Company").
RECITALS
A. In connection with the evaluation or pursuit of certain mutually beneficial business opportunities, ABC and Company may disclose valuable proprietary information to each other relating to their respective operations and business.
B. ABC and Company would like to protect the confidentiality of, maintain their respective rights in and prevent the unauthorized use and disclosure of such information.
ABC and Company hereby agree as follows:
1. Confidential Information. As used in this Agreement, "Confidential Information" means all information of either party that is not generally known to the public, whether of a technical, business or other nature (including, without limitation, trade secrets, know-how and information relating to the technology, customers, business plans, promotional and marketing activities, finances and other business affairs of such party), that is disclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party") or that is otherwise learned by the Receiving Party in the course of its discussions or business dealings with, or its physical or electronic access to the premises of, the Disclosing Party, and that has been identified as being proprietary and/or confidential or that by the nature of the circumstances surrounding the disclosure or receipt ought to be treated as proprietary and confidential. Confidential Information also includes all information concerning the existence and progress of the parties' dealings and the identity of ABC vendors and strategic partners, regardless of whether any such information is marked or otherwise identified in writing as confidential.
2. Use and Ownership of Confidential Information. The Receiving Party, except as expressly provided in this Agreement, will not disclose Confidential Information to anyone without the Disclosing Party's prior written consent. In addition, the Receiving Party will not use, or permit others to use, Confidential Information for any purpose other than the following:
ABC evaluation of Company's products and/or services and, if desired by the parties, negotiation and consummation of a business transaction involving ABC purchase of Company's products and/or services.
The Receiving Party will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of Confidential Information, including, at a minimum, those measures it takes to protect its own confidential information of a similar nature. All Confidential Information will remain the exclusive property of the Disclosing Party, and the Receiving Party will have no rights, by license or otherwise, to use the Confidential Information except as expressly provided herein.
3. Exceptions. The provisions of Section 2 will not apply to any information that (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to the Receiving Party prior to its receipt from the Disclosing Party; (iii) is rightfully received from a third party who did not acquire or disclose such information by a wrongful or tortious act; or (iv) can be shown by documentation to have been developed by the Receiving Party without reference to any Confidential Information.
4. Disclosures to Governmental Entities. If the Receiving Party becomes legally obligated to disclose Confidential Information by any governmental entity with jurisdiction over it, the Receiving Party will give the Disclosing Party prompt written notice to allow the Disclosing Party to seek a protective order or other appropriate remedy. Such notice must include, without limitation, identification of the information to be so disclosed and a copy of the order. The Receiving Party will disclose only such information as is legally required and will use its reasonable best efforts to obtain confidential treatment for any Confidential Information that is so disclosed.
5. Compliance with ABC; Exportation/ Transmission of Confidential Information. Both parties will comply with all applicable federal, state, and local statutes, rules and regulations, including, but not limited to, United States export control ABC and regulations as they currently exist and as they may be amended from time to time.
6. Receiving Party Personnel. The Receiving Party will restrict the possession, knowledge, development and use of Confidential Information to its employees, agents, subcontractors and entities controlled by or controlling it (collectively, "Personnel") who have a need to know Confidential Information in connection with the purposes set forth in Section 2. The Receiving Party's Personnel will have access only to the Confidential Information they need for such purposes. The Receiving Party will ensure that its Personnel comply with this Agreement and will promptly notify the Disclosing Party of any breach of this Agreement.
7. Return of Confidential Information. Upon the Disclosing Party's written request, the Receiving Party promptly will return or destroy (or, in the case of electronic embodiments, permanently erase) all tangible material embodying Confidential Information (in any form and including, without limitation, all summaries, copies and excerpts of Confidential Information) in its possession or under its control.
8. Independent Development. The Disclosing Party acknowledges that the Receiving Party may currently or in the future be developing information internally, or receiving information from other parties, that is similar to the Confidential Information. Accordingly, nothing in this Agreement will be construed as a representation or agreement that the Receiving Party will not develop or have developed for it products, concepts, systems or techniques that are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the Confidential Information, provided that the Receiving Party does not violate any of its obligations under this Agreement in connection with such development.
9. Injunctive Relief. The Receiving Party acknowledges that disclosure or use of Confidential Information in violation of this Agreement could cause irreparable harm to the Disclosing Party for which monetary damages may be difficult to ascertain or an inadequate remedy. The Receiving Party therefore agrees that the Disclosing Party will have the right, in addition to its other rights and remedies, to injunctive relief for any violation of this Agreement without posting bond, or by posting bond at the lowest amount required by law.
10. Limited Relationship. This Agreement will not create a joint venture, partnership or other formal business relationship or entity of any kind, or an obligation to form any such relationship or entity. Each party will act as an independent contractor and not as an agent of the other party for any purpose, and neither will have the authority to bind the other.
11. Cumulative Obligations. Each party's obligations hereunder are in addition to, and not exclusive of, any and all of its other obligations and duties to the other party, whether express, implied, in fact or in law.
12. Entire Agreement; Amendment. This Agreement constitutes the entire agreement between the parties relating to the matters discussed herein and supersedes all prior oral and written understandings with respect to any information disclosed or received under this Agreement. This Agreement may be amended or modified only with the mutual written consent of the parties.
13. Term and Termination. This Agreement is intended to cover Confidential Information disclosed or received by either party prior or subsequent to the date of this Agreement. Unless otherwise earlier terminated, this Agreement automatically will expire five (5) years from the date first written above; provided, however, that each party's obligations with respect to the other party's Confidential Information disclosed or received prior to termination or expiration will survive for ten (10) additional years following the expiration or termination of this Agreement.
14. Nonwaiver. Any failure by either party to enforce the other party's strict performance of any provision of this Agreement will not constitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement.
15. Attorney Fees. In the event any court action is commenced by one party against the other, the substantially prevailing party is entitled to recover its out-of-pocket and court costs and reasonable attorney fees. The cost of in-house legal staff will be valued at market rates for comparable services from private practitioners.
16. Governing Law; Etc. This Agreement will be governed by internal ABC of the State of Washington, without reference to its choice of law rules, may be executed in counterpart copies, and, in the absence of an original signature, faxed signatures will be considered the equivalent of an original signature. Each party hereby waives its right to a jury trial for any claims that may arise out of this Agreement. If a provision of this Agreement is held invalid under any applicable law, such invalidity will not affect any other provision of this Agreement that can be given effect without the invalid provision. Further, all terms and conditions of this Agreement will be deemed enforceable to the fullest extent permissible under applicable law, and, when necessary, the court is requested to reform any and all terms or conditions to give them such effect.
The parties have executed this Agreement on the date first written above.
Company
Name:
Title:
Date:
Mailing Address:
[Company Name]
Name:
Title:
Date:
Mailing Address:
- Status
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