- (i) internal business information (including information relating to strategy, staffing, business, financial data, training, marketing, promotional and sales plans and practices, costs, bidding activities and strategies, rate and pricing structures, and accounting and business methods);
- (ii) identities of, negotiations with, individual requirements of, specific contractual arrangements with, and information about the Company's suppliers, distributors, customers, investors, partners, and other business associates, their contact information, and their confidential information;
- (iii) manufacturing parameters, material specifications, design specifications, design processes, technical drawings, prototypes, testing procedures and technical data, specific program information, trade or industrial practices, engineering practices and methods, techniques, computer programs, formulae, systems, research, records, reports, manuals, documentation, customer and supply lists, data and databases relating to those, and technology and methodology regarding specific projects; and
- (iv) inventions, whether or not patentable, original works of authorship, trade secrets, know how, other intangible property protectable under federal, state, or foreign law that is not generally available to the public or published by the Company, other information concerning the Company's or its customers' actual or anticipated products or services, business, research, or development, or any information that is received in confidence by or for the Company from any other person, and any other information that was or will be developed, created, or discovered by or on behalf of the Company, or that became or will become known by, or was or is conveyed to the Company, that has commercial value in the Company's business ("Intellectual Property"); and
2. OBLIGATION TO MAINTAIN CONFIDENTIALITY.
- (a) Confidentiality. At all times during his or her employment, the Employee shall hold in strictest confidence, and not use, except for the benefit of the Company, or to disclose to any person, firm, or corporation without the prior written authorization of the Company, any of the Company's Confidential Information.
- (b) Term. The Employee shall maintain the confidentiality and security of the Confidential Information until the earlier of: (i) such time as all Confidential Information disclosed under this agreement becomes publicly known and is made generally available through no action or inaction of the Employee or (ii) the third anniversary of the termination of the Employee's employment. However, to the extent that the Company has disclosed information to the Employee that constitutes a trade secret under law, the Employee shall protect that trade secret for as long as the information qualifies as a trade secret.
3. EXCLUSIONS.
The obligations and restrictions of this agreement do not apply to that part of the Confidential Information that:
- (a) was or becomes available other than as a result of a disclosure by the Employee in violation of this agreement;
- (b) was or becomes available to the Employee on a nonconfidential basis before its disclosure to the Employee by the Company or a Company Representative, but only if:
- (i) the source of such information is not bound by a confidentiality agreement with the Company or is not otherwise prohibited from transmitting the information to the Employee by a contractual, legal, fiduciary, or other obligation; and
- (ii) the Employee provides the Company with written notice of such prior possession either (A) before the execution and delivery of this agreement or (B) if the Employee later becomes aware (through disclosure to the Employee) of any aspect of the Confidential Information as to which the Employee had prior possession, promptly on the Employee so becoming aware; or
- (i) provide the Company with prompt notice of any such request or requirement before disclosure so that the Company may seek an appropriate protective order or other appropriate remedy; and
- (ii) provide reasonable assistance to the Company in obtaining any such protective order.
4. INVENTIONS.
- (a) Inventions Retained and Licensed. Attached as Exhibit A to this agreement is a list of all Intellectual Property that the Employee made before his or her employment with the Company (the "Prior Inventions") that belong to the Employee, that relate to the Company's proposed business, products, or research and development, and that are not assigned to the Company under this agreement. If no such list is attached, the Employee represents that there are no Prior Inventions. If disclosure of any such Prior Invention would cause the Employee to violate a prior confidentiality agreement, the Employee will not list the Prior Invention in Exhibit A but will provide a name of the invention, a list of the party or parties it belongs to, and the explanation why full disclosure was not given. A space is provided in Exhibit A for this purpose. If in the course of employment with the Company, the Employee incorporates into a Company product, process, or machine a Prior Invention owned by the Employee or in which the Employee has an interest, the Company will be granted and have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license to make, have made, modify, use, and sell such Prior Invention as part of or in connection with such product, process, or machine.
- (b) Assignment of Intellectual Property and Inventions. The Employee shall disclose promptly in writing to the Company all Intellectual Property that the Employee has authored, made, conceived, or first actually reduced to practice, alone or jointly with others:
- (i) while the Employee is or was performing duties for the Company;
- (ii) during the Employee's employment with the Company, if it relates to the Company's areas of business or investigations;
- (iii) that results from or is suggested by any work that the Employee does for the Company or at the Company's request; or
- (iv) that was aided by the Employee's use of the Company's equipment, supplies, facilities, or trade secret information, whether or not during working hours.
At the Company's request,the Employee shall promptly (and no later than days after the request):
- (a) return all Confidential Information to the Company; and
- (b) destroy all Derivative Material and within days of this destruction, provide a written certificate to the Company confirming this destruction.
If his or her employment is terminated or the Company so requests, the Employee shall sign and deliver to the Company the certification attached as Exhibit B.
6. THIRD-PARTY INFORMATION.
The Employee recognizes that the Company has received and, in the future, will receive confidential or proprietary information from third parties, subject to a duty on the Company's part to maintain the confidentiality of such information and to use it only for certain limited purposes. During the term of his or her employment and afterwards, the Employee owes the Company and such third parties a duty to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, firm, or corporation except as necessary in carrying out the Employee's work for the Company (consistent with the Company's agreement with such third party) or to use it for the benefit of anyone other than the Company or such third party (consistent with the Company's agreement with such third party) without the prior written consent of the Company. Any such information will be considered Confidential Information for purposes of this agreement.
7. FORMER EMPLOYER OR THIRD-PARTY CONFIDENTIAL INFORMATION.
The Employee understands that it is the Company's policy to maintain the rights of any party with which the Employee has a confidentiality or proprietary rights agreement. During his or her employment with the Company, the Employee may not improperly use or disclose any proprietary information or trade secrets of any former or concurrent employer or other person or entity or bring onto the premises of the Company any unpublished document or proprietary information belonging to that employer, person, or entity unless the employer, person, or entity consents in writing. The Employee has no existing obligations to others that are inconsistent with any of the provisions in this agreement, except for those identified on Exhibit C.
8. NOTIFICATIONS.
The Employee hereby authorizes the Company to notify others, including customers of the Company and any future or prospective employers of the Employee, of the terms of this agreement and each party's rights and obligations in it.
9. OWNERSHIP RIGHTS.
The Employee acknowledges that the Confidential Information is and will be the Company's sole property, even if suggestions made by the Employee are incorporated into the Confidential Information. The Employee obtains no rights by license or otherwise in the Confidential Information under this agreement. The Employee may not use the Confidential Information as a basis on which to develop or have a third party develop a competing or similar undertaking.
10. CHOICE OF LAW; ATTORNEYS' FEES; EQUITABLE RELIEF.
- (a) Choice of Law. The laws of the state of govern this agreement (without giving effect to its conflicts of law principles).
- (b) Choice of Forum. Both parties consent to the personal jurisdiction of the state and federal courts in County, .
- (c) Attorneys' Fees. If either party employs attorneys to enforce any rights arising out of or relating to this agreement, the losing party shall reimburse the prevailing party for its reasonable attorneys' fees and costs.
- (d) Equitable Relief. The Employee's breach of this agreement will cause irreparable harm to the Company and monetary damages may not be a sufficient remedy for an unauthorized disclosure of the Confidential Information. If the Employee discloses the Confidential Information in violation of this agreement, the Company may, without waiving any other rights or remedies and without posting a bond or other security, seek an injunction, specific performance, or other equitable remedy to prevent competition or further disclosure, and may pursue other legal remedies.
11. AMENDMENTS.
No amendment to this agreement will be effective unless it is in writing and signed by a party or its authorized representative.
12. ASSIGNMENT AND DELEGATION.
- (a) No Assignment. The Employee may not assign any of his or her rights under this agreement, except with the prior written consent of the Company. All voluntary assignments of rights are limited by this subsection.
- (b) No Delegation. The Employee may not delegate any performance under this agreement, except with the prior written consent of the Company.
- (c) Enforceability of an Assignment or Delegation. If a purported assignment or purported delegation is made in violation of this section, it is void.
13. COUNTERPARTS; ELECTRONIC SIGNATURES.
- (a) Counterparts. The parties may execute this agreement in any number of counterparts, each of which is an original but all of which constitute one and the same instrument.
- (b) Electronic Signatures. This agreement, agreements ancillary to this agreement, and related documents entered into in connection with this agreement are signed when a party's signature is delivered by facsimile, email, or other electronic medium. These signatures must be treated in all respects as having the same force and effect as original signatures.
14. SEVERABILITY.
If any provision in this agreement is, for any reason, held to be invalid, illegal, or unenforceable in any respect, that invalidity, illegality, or unenforceability will not affect any other provisions of this agreement, but this agreement will be construed as if the invalid, illegal, or unenforceable provisions had never been contained in this agreement, unless the deletion of those provisions would result in such a material change that would cause completion of the transactions contemplated by this agreement to be unreasonable.
15. NOTICES.
- (a) Writing; Permitted Delivery Methods. Each party giving or making any notice, request, demand, or other communication required or permitted by this agreement shall give that notice in writing and use one of the following types of delivery, each of which is a writing for purposes of this agreement: personal delivery, mail (registered or certified mail, postage prepaid, return-receipt requested), nationally recognized overnight courier (fees prepaid), facsimile, or email.
- (b) Addresses. A party shall address notices under this section to a party at the following addresses:
- If to the Company:
- If to the Employee:
- (c) Effectiveness. A notice is effective only if the party giving notice complies with subsections (a) and (b) and if the recipient receives the notice.
16. WAIVER.
No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this agreement will be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy will be deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, and no waiver will constitute a continuing waiver, unless the writing so specifies.
17. ENTIRE AGREEMENT.
This agreement constitutes the final agreement of the parties. It is the complete and exclusive expression of the parties' agreement with respect to the subject matter of this agreement. All prior and contemporaneous communications, negotiations, and agreements between the parties relating to the subject matter of this agreement are expressly merged into and superseded by this agreement. The provisions of this agreement may not be explained, supplemented, or qualified by evidence of trade usage or a prior course of dealings. Neither party was induced to enter this agreement by, and neither party is relying on, any statement, representation, warranty, or agreement of the other party except those set forth expressly in this agreement. Except as set forth expressly in this agreement, there are no conditions precedent to this agreement's effectiveness.
18. HEADINGS.
The descriptive headings of the sections and subsections of this agreement are for convenience only, and do not affect this agreement's construction or interpretation.
19. EFFECTIVENESS.
This agreement will become effective when all parties have signed it. The date this agreement is signed by the last party to sign it (as indicated by the date associated with that party's signature) will be deemed the date of this agreement.
20. NECESSARY ACTS; FURTHER ASSURANCES.
The parties shall use all reasonable efforts to take, or cause to be taken, all actions necessary or desirable to consummate and make effective the transactions this agreement contemplates or to evidence or carry out the intent and purposes of this agreement.
[SIGNATURE PAGE FOLLOWS]
Each party is signing this agreement on the date stated opposite that party's signature.
Date:______________________________
By:____________________________________________________________
Name:
Title:Date:______________________________ By:____________________________________________________________
Name:[PAGE BREAK HERE]
EXHIBIT A LIST OF PRIOR INVENTIONS AND ORIGINAL WORKS OF AUTHORSHIP 1. Except as listed in section 2 below, the following is a complete list of all Prior Inventions that were made, conceived, or first reduced to practice by the Employee, alone or jointly with others, before his or her employment by the Company:
add border Title Date Identifying Number or Brief Description 2. Because of an existing confidentiality agreement and the duties of confidentiality that the Employee owes to the parties listed below, the Employee cannot complete the disclosure in section 1 above with respect to the inventions or improvements listed generally below:
add border Invention or Improvement Party Names Relationship [PAGE BREAK HERE]
EXHIBIT B CERTIFICATION This is to certify that I do not have in my possession, and I have not failed to return, any devices, records, data, notes, reports, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, materials, equipment, other documents or property, or reproductions of any of these items, belonging to , its subsidiaries, affiliates, successors, or assigns (the "Company").
I further certify that I have complied with the terms of the employee nondisclosure agreement signed by me, including the reporting of any inventions and original works of authorship (as defined in the agreement), conceived or made by me (solely or jointly with others) covered by that agreement.
I further agree that, in compliance with the employee nondisclosure agreement, I will preserve as confidential all trade secrets, confidential knowledge, data, or other proprietary information relating to products, processes, know-how, designs, formulas, developmental or experimental work, computer programs, data bases, other original works of authorship, customer lists, business plans, financial information, or other subject matter pertaining to any business of the Company or any of its employees, clients, consultants, or licensees.
Date:____________________________________ By:_______________________________________
Name:[PAGE BREAK HERE]
EXHIBIT C LIST OF PRIOR CONFIDENTIALITY OBLIGATIONS add border Date of Agreement or Obligation Parties' Name Brief Description 