CONFIDENTIALITY AND INVENTOR’S ASSIGNMENT AGREEMENT
Exhibit
10.2
CONFIDENTIALITY
AND INVENTOR’S ASSIGNMENT AGREEMENT
In
consideration of the commencement of my employment and the compensation paid
to
me, I hereby acknowledge and agree with TechnoConcepts Inc. (“TechnoConcepts” or
“the company”) as follows.
I
acknowledge that my present employment by TechnoConcepts, and the compensation
I
receive, is primarily for the purpose of carrying out business using processes,
methods, techniques, equipment, tools and information owned and used by
TechnoConcepts in its operations.
1. Confidential
Information of TechnoConcepts.
I
understand that my employment makes available to me confidential and propriety
information concerning the technology, methods, techniques, operating
procedures, plans, finances, and customers on which TechnoConcepts’ business
depends. Such confidential information includes, but is not limited to, (i)
development techniques, processes, computer programs (both entire programs
and
portions thereof), algorithms, object, models, data, electronic codes,
inventions, improvements, and research; (ii) inventions, discoveries,
improvements, specifications, and know-how; (iii) information about costs,
labor
and overhead rates, profits, markets, budgets, projections, forecasts, sales,
strategic plans, opportunities, customers, suppliers, and business partners;
(iv) employee personnel files and compensation information; (v) all information
that has or could have commercial value or other utility in TechnoConcepts’
business; and (vi) all information of which the unauthorized disclosure could
be
detrimental to the interests of TechnoConcepts. Such confidential information
includes not only information disclosed to me by TechnoConcepts, but also
information developed or learned by me during the course of my employment.
I
agree that all such confidential information comprises the trade secrets of
TechnoConcepts. As used in this agreement, the term “confidential information”
includes all such information of TechnoConcepts.
2. Confidential
Information of Other Parties.
I also
understand that TechnoConcepts has, and I will also have, access to certain
confidential information of TechnoConcepts’ customers, clients, vendors,
suppliers, business partners, or other persons or entities for whom
TechnoConcepts performs services or from whom TechnoConcepts obtains
information. I agree that all such confidential information comprises the trade
secrets of the person or entity that originated the information. As used in
this
Agreement, the term “confidential information” also includes all such
information of such other parties.
3. Prior
Knowledge and Inventions. .
I
acknowledge and agree that I do not know anything about TechnoConcepts’
confidential information other than the information I have learned from
TechnoConcepts. I further acknowledge and agree that I do not own, or claim
to
own, any patent, patent rights, or discoveries, improvements, or inventions,
other than those identified on Attachment A of this agreement, which are
expressly excluded from the provisions of this agreement. TechnoConcepts shall
keep all information on Attachment A strictly confidential, using the same
procedures it uses to protect its own confidential information.
4.
Restricted
Use of Confidential Information. I
agree
that I will not directly or indirectly use for the benefit of myself or any
other person or entity any confidential information, and I will not communicate
or disclose to any other person or entity any confidential information, except
as appropriate in the course of my employment and for the benefit of
TechnoConcepts. I will not transmit, transport, or remove any confidential
information from TechnoConcepts’ place of business without prior written
approval of my supervisor. I further agree that I will not take advantage of
any
business opportunity available to TechnoConcepts, of which I may become aware
through my employment by TechnoConcepts, without the written consent of
TechnoConcepts.
5. Publication. If
I wish
to publish the results of my work for TechnoConcepts, through literature or
speeches, I will submit such literature or speeches to the President of
TechnoConcepts at least ten days prior to submission for dissemination. The
management team of TechnoConcepts will determine, in its sole discretion,
whether such dissemination may destroy the information’s trade secret status,
may be highly prejudicial to the interests of TechnoConcepts or the originator
of the information, or whether such dissemination may constitute an invasion
of
their privacy. I acknowledge that I am aware that unauthorized disclosure of
confidential information may be highly prejudicial to the interests of the
information’s owner, may constitute an invasion of privacy, and may be an
improper disclosure of trade secrets (which may be considered a violation of
California Penal Code §499c).
6. Competing
during Employment.
I
further agree that, during the period of my employment, without the express
written consent of TechnoConcepts, I will not: (i) engage in any employment
or
activity other than for TechnoConcepts in any business in which TechnoConcepts
is engaged or contemplates engaging in; (ii) induce any other employee of or
consultant to TechnoConcepts to engage in any such employment or activity;
or
(iii) solicit any customer or potential customer of TechnoConcepts for services
similar to those performed by TechnoConcepts even if those services are not
directly competitive with services performed by TechnoConcepts.
7. Activities
after Employment. I
acknowledge that the pursuit of certain activities (listed in this paragraph)
would necessarily involve the use or disclosure of confidential and proprietary
information in breach of Paragraph 3, but that proof of such a breach would
be
extremely difficult. To forestall improper disclosure and use of confidential
information, I agree that for a period of three (3) years after termination
of
my employment with TechnoConcepts, I will not directly or indirectly: (i) divert
or attempt to divert from TechnoConcepts any business of any kind in which
it is
engaged, including, without limitation, the solicitation of or interference
with
any of its customers; (ii) employ, solicit for employment, or recommend for
employment any employee or consultant employed by TechnoConcepts; or (iii)
engage in any business activity that is or may be competitive with
TechnoConcepts in any state or country where TechnoConcepts conducts business,
unless I can conclusively prove that any action taken in contravention of this
paragraph was done without the use in any way of any confidential information
of
TechnoConcepts.
8. Disclosure.
I
acknowledge and agree to promptly disclose in writing to TechnoConcepts all
discoveries, developments, designs, ideas, improvements, inventions, formulas,
processes, techniques, know-how and data (whether or not patentable or
registerable under copyright or similar statutes) made, conceived, reduced
to
practice, or learned by me (either alone or jointly with others) during the
period of my employment, that are related to or useful in TechnoConcepts’
business, or which result from work assigned to me by TechnoConcepts, or from
the use of the premises, equipment, or software owned, leased, or otherwise
acquired by TechnoConcepts. All of the foregoing are referred to in this
agreement as “inventions.”
9. Assignment.
I
acknowledge and agree that all inventions belong to and shall be the sole
property of TechnoConcepts. I assign all right, title, and interest I may have
or may acquire in and to all inventions. I agree to sign and deliver to
TechnoConcepts (either during or subsequent to my employment) such other
documents as TechnoConcepts considers desirable to evidence the assignment
of
all my rights, if any, in any inventions to TechnoConcepts and TechnoConcepts’
ownership of such inventions. This assignment does not apply to any invention
that qualifies under California Labor Code §2870, which is reproduced in
Attachment B to this Agreement (Notification to Employee).
10. Power
of Attorney.
In the
event that TechnoConcepts is unable to secure my signature on any document
necessary to apply for, prosecute, obtain, or enforce any patent, copyright,
or
other right or protection relating to any invention, whether due to mental
or
physical incapacity or any other cause, I hereby irrevocably designate and
appoint TechnoConcepts, and each of its duly authorized officers, as my agent
and attorney-in-fact to act for and in my behalf and stead to execute and file
any such document and to do all other lawfully permitted acts to further the
prosecution, issuance, and enforcement of patents, copyrights, or other rights
or protections with the same force and effect as if I executed and delivered
it.
11. Delivery
of Documents and Data. In
the
event of my separation from the company for any reason, I agree to promptly
and
without request deliver to TechnoConcepts all documents and data pertaining
to
my employment and the confidential information and inventions of TechnoConcepts.
I will do so regardless whether such material or information was prepared by
me
or otherwise came into my possession or control. I further agree that I will
execute a certification, in the form required by TechnoConcepts, that I have
returned all TechnoConcepts confidential information and all other
TechnoConcepts property. I will not retain any written or other tangible
material containing any information concerning or disclosing any of the
confidential information or inventions of TechnoConcepts or any customer,
client,
vendor, supplier, business partner, or other person or entity for whom
TechnoConcepts performs services or from whom TechnoConcepts obtains
information. I recognize that taking any trade secret from TechnoConcepts
without prior authorization is a crime under California Penal Code section
499(c) and is punishable by imprisonment and/or a fine. I further recognize
that
doing so could also result in civil liability under California’s Uniform Trade
Secrets Act, and that willful misappropriation may result in an award against
me
for triple the amount of TechnoConcepts’ damages, in addition to attorneys’ fees
incurred in collecting such damages.
13. Injunctive
Relief. If
I
breach or threaten to breach any provision of this agreement, I understand
and
acknowledge that the damage or imminent damage to TechnoConcepts’ business or
its goodwill would be irreparable and extremely difficult to estimate, making
any remedy at law or in damages inadequate. Accordingly, I agree that
TechnoConcepts shall be entitled to injunctive relief against me in the event
of
any breach or threatened breach of this agreement by me, in addition to damages
and any other available remedies.
14. Prior
Commitments. I
warrant
and affirm that I have no other agreements, relationships or commitments to
any
other person or entity that conflict with my obligations to TechnoConcepts
under
this agreement. I further warrant and affirm that I will not disclose to the
company, or use, or induce the company to use, any confidential information
or
trade secrets of others. I have returned all property and confidential
information belonging to all my prior employers.
15. Material
Condition of Employment. I
acknowledge and agree that the protections set forth in this agreement are
a
material condition to my employment with and compensation by the company. Any
breach by me of any provision of this agreement shall be grounds for the
termination of my employment by TechnoConcepts. I understand that
notwithstanding the foregoing, nothing in this agreement is intended to alter
my
at-will employment status.
16. Amendment
and Binding Effect. This
agreement may not be amended except by a written instrument signed by both
parties. This agreement shall be binding on my heirs, executors, administrators,
and other legal representatives and assigns, and is for the benefit of
TechnoConcepts and its successors and assigns.
17. Interpretation
and Disputes. The
laws
of the State of California shall govern this agreement. This agreement shall
be
construed as a whole, according to its fair meaning, and not in favor of or
against any party. By way of example and not in limitation of the foregoing,
this agreement shall not be construed in favor of the party receiving a benefit
or against the party responsible for any particular language in this
Agreement.
Captions
are for reference only and shall not be used to interpret this agreement. Any
dispute that may arise between the company and me shall be subject to the
personal and exclusive jurisdiction and venue of the courts of the State of
California, County of Los Angeles. I hereby consent to such jurisdiction and
waive any objections thereto. I further agree that process may be served in
any
manner allowed by California law.
18. Cumulative
Remedies. Each
and
all of the several rights and remedies provided for in this agreement shall
be
cumulative. No one right or remedy shall be exclusive of the others or of any
right or remedy allowed in law or in equity. No waiver or indulgence by the
company of any failure by me to keep or perform any promise or condition of
this
agreement shall be a waiver of any preceding or succeeding breach of the same
or
of any other promise or condition. No waiver by the company of any right shall
be construed as a waiver of any other right. TechnoConcepts shall not be
required to give notice to enforce strict adherence to all terms of this
agreement.
19. Severability.
If
a
court finds any provision of this agreement to be invalid or unenforceable
as
applied to any circumstance, the remainder of this agreement and the application
of such provision to other persons or circumstances shall be interpreted so
as
to best carry out the intent of the parties. The parties further agree to
replace any such void or unenforceable provisions of this agreement with a
valid
and enforceable provision that will achieve, to the extent possible, the
purposes of the void or unenforceable provision.
20. Attorneys’
Fees. If
any
legal action is necessary to enforce this agreement, the prevailing party shall
be entitled to recover its costs and attorneys’ fees.
21. Entire
Understanding. This
agreement expresses the entire understanding of the parties with respect to
the
issues and subject matter addressed in it.
CAUTION:
THIS AGREEMENT AFFECTS YOUR RIGHTS TO INVENTIONS YOU MAKE DURING YOUR EMPLOYMENT
AND RESTRICTS YOUR RIGHT TO DISCLOSE OR USE THE COMPANY’S CONFIDENTIAL
INFORMATION AND INVENTIONS DURING AND SUBSEQUENT TO YOUR
EMPLOYMENT.
BY
SIGNING BELOW, I ACKNOWLEDGE THAT I HAVE READ THIS AGREEMENT CAREFULLY. I AFFIRM
THAT I UNDERSTAND ITS TERMS AND ITS LEGAL EFFECT. I HAVE ENTERED INTO THIS
AGREEMENT FREELY AND VOLUNTARILY, BASED ON MY OWN JUDGMENT AND
NOT
ON ANY REPRESENTATIONS OR PROMISES OTHER THAN THOSE CONTAINED IN THIS AGREEMENT.
I
FURTHER ACKNOWLEDGE THAT I HAVE COMPLETELY FILLED OUT SCHEDULE A TO THIS
AGREMENT, AND THAT I HAVE RECEIVED A COPY OF THE WRITTEN NOTIFICATION TO
EMPLOYEE CONTAINING CALIFORNIA LABOR CODE SECTION 2870.
| /s/ ___________________________________ | Date: January 24, 2007 | ||
| Employee |
Attachment
A
Employee
Statement
1. Confidential
Information. Except as listed below, I acknowledge at this time that I know
nothing about the business or confidential information or inventions of the
company or its clients, except information that has been disclosed to me by
the
company or its clients (if none, so state):
2. Prior
Inventions. Except as set forth below, I acknowledge at this time that I have
not made or reduced to practice (alone or jointly with others) any inventions
(if none, so state):
3. Conflicting
Relationships. Except as set forth below, I acknowledge that I have no other
current or prior agreements, relationships, or commitments that conflict with
my
relationship with TechnoConcepts under my Confidentiality Agreement (if none,
so
state):
_________________________________
Date:
___________________
Employee
ATTACHMENT
B
NOTIFICATION
TO EMPLOYEE
This
is
to notify you that the attached agreement does not apply to any invention that
qualifies fully under the following provisions Section 2870 of the California
Labor Code. In any suit or action arising under this law, the burden of proof
is
on the employee claiming the benefits of its provisions.
California
Labor Code §2870
(a)
Any
provision in an employment agreement which provides that an employee shall
assign, or offer to assign, any of his or her rights in an invention to his
or
her employer shall not apply to an invention that the employee developed
entirely on his or her own time without using the employer's equipment,
supplies, facilities, or trade secret information except for those inventions
that either:
|
(1)
|
Relate
at the time of conception or reduction to practice of the invention
to the
employer's business, or actual or demonstrably anticipated research
or
development of the employer; or
|
|
(2)
|
Result
from any work performed by the employee for the
employer.
|
(b)
To
the extent a provision in an employment agreement purports to require an
employee to assign an invention otherwise excluded from being required to be
assigned under subdivision (a), the provision is against the public policy
of
this state and is unenforceable.
I
acknowledge that I have received, read, and understand the foregoing
notification.
_________________________________
Date:
___________________
Employee