CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement ('Agreement') is executed effective between ('Employer') and ('Employee'), as consideration for the establishment of their employment relationship and sharing of Confidential Material. The parties agree as follows:
- Length of Agreement. This Agreement begins as of and remains in effect at all times during any employment, consulting, partnering, or other business relationship between the parties and for the periods of time specified thereafter as set forth below. This Agreement does not create any guarantee of continued employment or other form of continued business relationship other than as set forth in a separate written agreement signed and dated by all parties.
- Representation and Warranties. Employee represents and warrants that their relationship with Employer will not cause or require them to breach any obligation to, agreement or confidence with any other person, company or entity.
- Confidentiality. Employee hereby acknowledges that Employer has made, or may make, available to Employee certain customer lists, pricing data, supply sources, product design information, market information, technical information, performance standards and other confidential and/or Proprietary Information of, or licensed to, the Employer or its clients/customers ('customers'), including without limitation, trade secrets, patents, and copyrighted materials (collectively, the 'Confidential Material'). Employee acknowledges that this information has independent economic value, actual or potential, that is not generally known to the public or to others who could obtain economic value from their disclosure or use, and that this information is subject to a reasonable effort by the Employer to maintain its confidentiality. Except as essential to Employee's obligation under this Agreement, Employee shall not make any disclosure of this Agreement, the terms of this Agreement, or any of the Confidential Material. Except as essential to Employee's obligations pursuant to their relationship with the Employer, Employee shall not make any duplication or other copy of any of the Confidential Material. Immediately upon request from Employer, Employee shall return to Employer all Confidential Material. Employee shall notify each person to whom any disclosure is made that such disclosure is made in confidence, that the Confidential Material shall be kept in confidence by such persons, and that such persons shall be bound by the provisions of this Agreement. Employee further promises and agrees not to engage in competition with Employer, for at least two (2) years after the termination of this Agreement, while making use of Employer's Confidentiality Material.
- Proprietary Information. For the purpose of this Agreement, 'Proprietary Information' shall mean any information, observation, data, written material, record, document, drawing, photograph, layout, computer program, software, multimedia, firmware, invention, discovery, improvement, development, tool, machine, apparatus, appliance, design, work of authorship, logo, system, promotional idea, customer list, customer need, practice, pricing information, process, test, concept, formula, method, market information, technique, trade secret, product and/or research related to the actual or anticipated research development, products, organization, marketing, advertising, business or finances of Employer, its affiliates or related entities.
All right, title, and interest of every kind and nature whatsoever in and to the Proprietary Information made, written, discussed, developed, secured, obtained or learned by Employee during the term of the relationship with the Employer or the 60-day period immediately following termination of that relationship, shall be the sole and exclusive property of Employer for any purpose or use whatsoever, and shall be disclosed promptly by Employee to Employer. The covenants set forth in the preceding sentence shall apply regardless of whether any Propriety Information is made, written, discussed, developed, secured, obtained or learned (a) solely or jointly with others, (b) during the usual hours of work or otherwise, (c) at the request and upon the suggestion of Employer or otherwise, (d) with Employer's materials, tools, instruments, or (e) on Employer's premises or otherwise.
All Propriety Information developed, created, invented, devised, conceived or discovered by Employee that is subject to copyright are explicitly considered by Employee and Employer to be 'works made for hire' and the property of Employer. Employee hereby assigns to Employer all releases and discharges Employer, any affiliate of Employer and their respective officers, directors and Employees, from and against any and all claims, demands, liabilities, costs, and expenses of Employee arising out of, or relating to, any Propriety Information.
Employee shall execute any documents and take any action Employer may deem necessary or appropriate to effectuate the provisions of this Agreement, including without limitation assisting Employer in obtaining and/or maintaining patents, copyrights or similar rights to any Proprietary Information assigned to Employer. Employee shall comply with any reasonable rules established from time to time by Employer for the protection of the confidentiality of any Proprietary Information. Employee irrevocably appoints the President and all Vice Presidents of Employer to act as Employee's agent and attorney-in-fact to perform all acts necessary to obtain and/or maintain patents, copyrights and similar rights to any Proprietary Information assigned by Employee to Employer under this Agreement if (a) Employee refuses to perform those acts, or (b) is unavailable, within the meaning of any applicable laws. Employee acknowledges that the grant of the foregoing power of attorney is coupled with an interest and shall survive the death or disability of Employee.
Employee shall promptly disclose to Employer, in confidence (a) all Proprietary Information that Employee creates during the term of this Agreement, and (b) all patent applications and copyright registrations filed by Employee within one year after termination of this Agreement. Any application for a patent, copyright registration or similar right filed by Employee within one year after termination of this Agreement shall be presumed to relate to Proprietary Information created by Employee during the term of this Agreement, unless Employee can prove otherwise with reasonable certainty.
Nothing contained in this Agreement shall be construed to preclude Employer from exercising all of its rights and privileges as sole and exclusive owner of all of the Proprietary Information owned by or assigned to Employer under this Agreement. Employer, in exercising such rights and privileges with respect to any particular item of Proprietary Information, may decide not to file any patent application or any copyright registration on such Proprietary Information, may decide to maintain such Proprietary Information as secret and confidential, or may decide to abandon such Propriety Information or dedicate it to the public. Employee shall have no authority to exercise any rights or privileges with respect to the Proprietary Information owned by or assigned to Employer under this Agreement. This Agreement does not apply to any Proprietary Information that qualifies fully under the provisions of California Labor Code Section 2870 or any similar or successor federal or state statute.
- Works for Hire. Employee acknowledges that all work performed for Employer is to be considered a 'work made for hire' and the property of Employer.
- Business Opportunities. During the terms of this Agreement, if Employee becomes aware of any project, investment, venture, business or other opportunity (any of the preceding, collectively referred to as an 'Opportunity') that is similar to, competitive with, related to, or in the same field as Employer, or any project, investment, venture, or business of Employer, then Employee shall so notify Employer immediately in writing of such Opportunity and shall use Employee's good-faith efforts to cause Employer to have the opportunity to explore, invest in, participate in, or otherwise become affiliated with such Opportunity.
- No Ownership. Neither Employee nor any of their agents or principals shall become or be deemed an owner, partner, joint venture or agent of or with Employer or any of its affiliates or related companies or businesses by reason of this Agreement or his/her relationship with Employer unless set forth in a separate written agreement signed and dated by the parties. Neither Employer nor Employee nor any agent, Employee, officer or independent contractor of or retained by Employee shall have any authority to bind the other in any respect unless set forth in a separate written agreement signed and dated by the parties.
- Solicitation of Employees. Employee agrees that he/she will not, either during the period of this Agreement, or for a period of one year after this Agreement has terminated, solicit any of Employer's employees for a competing business or otherwise induce or attempt to induce such employees to terminate their employment with Employer.
- Soliciting Customers after Termination of Employment. For a period of one year immediately following the termination of this Agreement, Employee shall not, directly or indirectly, make known to any person, firm or corporation the names or addresses of any of the customers of Employer or any other information pertaining to them, or call on, solicit, take away, or attempt to call on, solicit, or take away any customer of Employer on whom Employee called or with whom Employee became acquainted during the time of this Agreement, for either himself/herself or for any other person, firm, or corporation.
- Injunctive Relief. Employee hereby acknowledges (1) the unique nature of the protections and provisions set forth in this Agreement, (2) that Employer will suffer irreparable harm if Employee breaches any of said protections or provisions, and (3) that monetary damages will be inadequate to compensate Employer for such breach. Therefore, if Employee breaches any of such provisions, then Employer shall be entitled to injunctive relief, in addition to any other remedies at law or equity, to enforce such provisions.
- Subsidiaries and Parents. For the purposes of this Agreement, the term 'Employer' shall also be deemed to include any affiliated organization that owns fifty percent (50%) or more of the voting stock, whether or not Signator is directly employed by such other organization.
- Non-filing. Signator specifically agrees that Employer's rights granted hereunder shall include the right not to file for copyrights or domestic or foreign patents when such is considered by Employer in its sole discretion appropriate for the business objectives of Employer.
- Notice to Signator. This Agreement does not apply to any invention for which no equipment, supplies, facility, or trade secret information of Employer was used and that was developed entirely on Signator's own time and:
- That does not relate (1) to Employer's business or (2) to the actual or anticipated research or development work of Employer; or
- That does not result from any work performed by Signator or Employer. California Labor Code section 2872 places the burden of proof on the Signator with respect to the exceptions of this Paragraph 18.
- Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute a single integrated document.
- Attorneys' Fees. In the event any litigation, arbitration, mediation or other proceeding ('Proceeding)' is initiated by any party against any other party to enforce, interpret or otherwise obtain judicial or quasi-judicial relief in connection with this Agreement, the prevailing party in such Proceeding shall be entitled to recover from the unsuccessful party all costs, expenses and actual attorney's fees relating to or arising out of (a) such proceeding, whether or not such proceeding proceeds to judgment, and (b) any post-judgment or post-award proceeding, including without limitation one to enforce any judgment or award resulting from any such Proceeding. Any such judgment or award shall contain a specific provision for the recovery of all such attorneys' fees, costs, and expenses. Any such judgment or award shall contain a specific provision for the recovery of all such subsequently incurred costs, expenses and actual attorney's fees.
- Modifications. This Agreement may be modified only by a contract in writing executed by the party to this Agreement against whom enforcement of such modification is sought.
- Prior Understandings. This Agreement contains the entire agreement between the parties to this Agreement with respect to the subject matter of the Agreement, is intended as a final expression of such parties' agreement with respect to such terms as are included in this Agreement is intended as a complete and exclusive statement of the terms of such agreement, and supersedes all negotiations, stipulations, understanding, agreements, representations and warranties. If any, with respect to such subject matter, which precede or accompany the execution of this Agreement.
- Waiver. Any waiver of a default under this Agreement must be made in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. No delay or omission in the exercise of any right or remedy shall impair such right or remedy or be constructed as a waiver. A consent to or approval of any act shall not be deemed to waive or render unnecessary consent to or approval of any other or subsequent act.
- Drafting Ambiguities. Each party to this Agreement has reviewed and had the opportunity to revise this Agreement. Each party to this Agreement has had the opportunity to have legal counsel review and revise this Agreement. The rule of construction that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or of any amendments or exhibits to this Agreement.
- Jurisdiction and Venue. This Agreement is to be construed pursuant to Laws of the State of _______. Jurisdiction and venue for any claim arising out of this Agreement shall be made in the State of ________, County of _________.
- Receipt of Copy. Employee hereby acknowledges that he/she has received a signed copy of this Agreement.
By: __________________________________ By: ________________________________
Employee Employer
_____________________________________ ___________________________________
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