CONFIDENTIAL INFORMATION AND INVENTION ASSIGNMENT AGREEMENT FOR EMPLOYEE
CONFIDENTIAL
INFORMATION AND INVENTION ASSIGNMENT AGREEMENT
FOR
EMPLOYEE
This
CONFIDENTIAL
INFORMATION AND INVENTION ASSIGNMENT AGREEMENT (the “Agreement”) is made between
The Small Business Company (the “Company”) and the undersigned
employee.
In
consideration of
my employment with the Company (which for purposes of this Agreement shall
be
deemed to include any subsidiaries or Affiliates*
of the Company),
the receipt of confidential information while associated with the Company,
and
other good and valuable consideration, I, the undersigned individual, agree
that:
1. Term
of
Agreement.
This Agreement
shall continue in full force and effect for the duration of my employment by
the
Company (the “Period of Employment”) and shall continue thereafter as otherwise
provided in this Agreement.
2. Confidentiality.
(a) Definitions.
“Proprietary
Information” is all information and any idea whatever form, tangible or
intangible, pertaining in any manner to the business of the Company, or any
of
its Affiliates, or its employees, clients, consultants, or business associates,
which was produced by any employee or consultant of the Company in the course
of
his or her employment or consulting relationship or otherwise produced or
acquired by or on behalf of the Company. All Proprietary Information not
generally known outside of the Company's organization, and all Proprietary
Information so known only through improper means, shall be deemed “Confidential
Information.” By example and without limiting the foregoing definition,
Proprietary and Confidential Information shall include, but not be limited
to:
(1) formulas,
research
and development techniques, processes, trade secrets, computer programs,
software, electronic codes, mask works, inventions, innovations, patents, patent
applications, discoveries, improvements, data, know-how, formats, test results,
and research projects;
(2) information
about
costs, profits, markets, sales, contracts and lists of customers, and
distributors;
(3) business,
marketing, and strategic plans;
(4) forecasts,
unpublished financial information, budgets, projections, and customer
identities, characteristics and agreements; and
(5) employee
personnel
files and compensation information.
Confidential
Information is to be broadly defined, and includes all information that has
or
could have commercial value or other utility in the business in which the
Company is engaged or contemplates engaging, and all information of which the
unauthorized disclosure could be detrimental to the interests of the Company,
whether or not such information is identified as Confidential Information by
the
Company.
(b) Existence
of
Confidential Information.
The Company owns
and has developed and compiled, and will develop and compile, certain trade
secrets, proprietary techniques and other Confidential Information which have
great value to its business. This Confidential Information includes not only
information disclosed by the Company to me, but also information developed
or
learned by me during the course of my employment with the Company.
(c) Protection
of
Confidential Information.
I will not,
directly or indirectly, use, make available, sell, disclose or otherwise
communicate to any third party, other than in my assigned duties and for the
benefit of the Company, any of the Company's Confidential Information, either
during or after my employment with the Company. In the event I desire to publish
the results of my work for the Company through literature or speeches, I will
submit such literature or speeches to the President of the Company at least
10
days before dissemination of such information for a determination of whether
such disclosure may alter trade secret status, may be highly prejudicial to
the
interests of the Company, or may constitute an invasion of its privacy. I agree
not to publish, disclose or otherwise disseminate such information without
prior
written approval of the President of the Company. I acknowledge that I am aware
that the unauthorized disclosure of Confidential Information of the Company
may
be highly prejudicial to its interests, an invasion of privacy, and an improper
disclosure of trade secrets.
(d) Delivery
of
Confidential Information.
Upon request or
when my employment with the Company terminates, I will immediately deliver
to
the Company all copies of any and all materials and writings received from,
created for, or belonging to the Company including, but not limited to, those
which relate to or contain Confidential Information.
*
For purposes of
this agreement, “Affiliate” shall mean any person or entity that directly or
indirectly controls, is controlled by, or is under common control with the
Company.
(e) Location
and
Reproduction.
I shall maintain
at my work station and/or any other place under my control only such
Confidential Information as I have a current “need to know.” I shall return to
the appropriate person or location or otherwise properly dispose of Confidential
Information once that need to know no longer exists. I shall not make copies
of
or otherwise reproduce Confidential Information unless there is a legitimate
business need of the Company for reproduction.
(f) Prior
Actions
and Knowledge.
I represent and
warrant that from the time of my first contact with the Company I held in strict
confidence all Confidential Information and have not disclosed any Confidential
Information, directly or indirectly, to anyone outside the Company, or used,
copied, published, or summarized any Confidential information, except to the
extent otherwise permitted in this Agreement.
(g) Third-Party
Information.
I acknowledge
that the Company has received and in the future will receive from third parties
their confidential information 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. I agree that, during the Period of Employment and thereafter,
I will hold all such confidential information in the strictest confidence and
not to disclose or use it, except as necessary to perform my obligations
hereunder and as is consistent with the Company's agreement with such third
parties.
(h) Third
Parties.
I represent that
my employment with the Company does not and will not breach any agreements
with
or duties to a former employer or any other third party. I will not disclose
to
the Company or use on its behalf any confidential information belonging to
others and I will not bring onto the premises of the Company any confidential
information belonging to any such party unless consented to in writing by such
party.
3. Proprietary
Rights, Inventions and New Ideas.
(a) Definition.
The term “Subject
Ideas or Inventions” includes any and all ideas, processes, trademarks, service
marks, inventions, designs, technologies, computer hardware or software,
original works of authorship, formulas, discoveries, patents, copyrights,
copyrightable works products, marketing and business ideas, and all
improvements, know-how, data, rights, and claims related to the foregoing that,
whether or not patentable, which are conceived, developed or created which:
(1)
relate to the Company's current or contemplated business or activities; (2)
relate to the Company's actual or demonstrably anticipated research or
development; (3) result from any work performed by me for the Company; (4)
involve the use of the Company's equipment, supplies, facilities or trade
secrets; (5) result from or are suggested by any work done by the Company or
at
the Company's request, or any projects specifically assigned to me; or (6)
result from my access to any of the Company's memoranda, notes, records,
drawings, sketches, models, maps, customer lists, research results, data,
formulae, specifications, inventions, processes, equipment or other materials
(collectively, “Company Materials”).
(b) Company
Ownership.
All right, title
and interest in and to all Subject Ideas and Inventions, including but not
limited to all registrable and patent rights which may subsist therein, shall
be
held and owned solely by the Company, and where applicable, all Subject Ideas
and Inventions shall be considered works made for hire. I shall ▇▇▇▇ all Subject
Ideas and Inventions with the Company's copyright or other proprietary notice
as
directed by the Company and shall take all actions deemed necessary by the
Company to protect the Company's rights therein. In the event that the Subject
Ideas and Inventions shall be deemed not to constitute works made for hire,
or
in the event that I should otherwise, by operation of law, be deemed to retain
any rights (whether moral rights or otherwise) to any Subject Ideas and
Inventions, I agree to assign to the Company, without further consideration,
my
entire right, title and interest in and to each and every such Subject Idea
and
Invention.
(c) California
Labor
Code (If Applicable).
However, Section
3(b) shall not apply if and to the extent that California Labor Code Section
2870 lawfully prohibits the assignment of rights in such intellectual property.
I acknowledge that I understand the limits placed on this definition by
California Labor Code Section 2870, if applicable to me, which
provides:
(1) “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:
a. 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
b. Result
from any
work performed by the employee for the employer.
(2) 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.”
(d) Burden.
I understand that
I bear the full burden of proving to the Company that an Invention qualifies
fully under Section 2870. I agree to disclose promptly to the Company full
details of any and all Subject Ideas and Inventions.
(e) Maintenance
of
Records.
I agree to keep
and maintain adequate and current written records of all Subject Ideas and
Inventions and their development made by me (solely or jointly with others)
during the term of my employment with the Company. These records will be in
the
form of notes, sketches, drawings, and any other format that may be specified
by
the Company. These records will be available to and remain the sole property
of
the Company at all times.
(f) Determination
of
Subject Ideas and Inventions.
I further agree
that all information and records pertaining to any idea, process, trademark,
service ▇▇▇▇, invention, technology, computer hardware or software, original
work of authorship, design, formula, discovery, patent, copyright, product,
and
all improvements, know-how, rights, and claims related to the foregoing
(“Intellectual Property”), that I do not believe to be a Subject Idea or
Invention, but that is conceived, developed, or reduced to practice by the
Company (alone by me or with others) during the Period of Employment and for
one
(1) year thereafter, shall be disclosed promptly by me to the Company (such
disclosure to be received in confidence). The Company shall examine such
information to determine if in fact the Intellectual Property is a Subject
Idea
or Invention subject to this Agreement.
(g) Access.
Because of the
difficulty of establishing when any Subject Ideas or Inventions are first
conceived by me, or whether it results from my access to Confidential
Information or Company Materials, I agree that any Subject Idea and Invention
shall, among other circumstances, be deemed to have resulted from my access
to
Company Materials if: (1) it grew out of or resulted from my work with the
Company or is related to the business of the Company, and (2) it is made, used,
sold, exploited or reduced to practice, or an application for patent, trademark,
copyright or other proprietary protection is filed thereon, by me or with my
significant aid, within one year after termination of the Period of
Employment.
(h) Assistance.
I further agree
to assist the Company in every proper way (but at the Company's expense) to
obtain and from time to time enforce patents, copyrights or other rights or
registrations on said Subject Ideas and Inventions in any and all countries,
and
to that end will execute all documents necessary:
(1) to
apply for,
obtain and vest in the name of the Company alone (unless the Company otherwise
directs) letters patent, copyrights or other analogous protection in any country
throughout the world and when so obtained or vested to renew and restore the
same; and
(2) to
defend any
opposition proceedings in respect of such applications and any opposition
proceedings or petitions or applications for revocation of such letters patent,
copyright or other analogous protection; and
(3) to
cooperate with
the Company (but at the Company's expense) in any enforcement or infringement
proceeding on such letters patent, copyright or other analogous
protection.
(i) Authorization
to
Company.
In the event the
Company is unable, after reasonable effort, to secure my signature on any
patent, copyright or other analogous protection relating to a Subject Idea
and
Invention, 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 on my behalf and stead to execute and file any such application,
applications or other documents and to do all other lawfully permitted acts
to
further the prosecution, issuance, and enforcement of letters patent, copyright
or other analogous rights or protections thereon with the same legal force
and
effect as if executed by me. My obligation to assist the Company in obtaining
and enforcing patents and copyrights for Subject Ideas and Inventions in any
and
all countries shall continue beyond the termination of my relationship with
the
Company, but the Company shall compensate me at a reasonable rate after such
termination for time actually spent by me at the Company's request on such
assistance.
(j) Exhibit.
I acknowledge
that there are no currently existing ideas, processes, inventions, discoveries,
marketing or business ideas or improvements which I desire to exclude from
the
operation of this Agreement, unless a reference thereto has been attached as
an
exhibit hereto. To the best of my knowledge, there is no other contract to
assign inventions, trademarks, copyrights, ideas, processes, discoveries or
other intellectual property that is now in existence between me and any other
person (including any business or governmental entity).
(k) No
Use of
Name.
I shall not at
any time use the Company's name or any the Company trademark(s) or trade name(s)
in any advertising or publicity without the prior written consent of the
Company.
4. Competitive
Activity.
(a) Acknowledgment.
I acknowledge
that the pursuit of the activities forbidden by Section 4(b) below would
necessarily involve the use, disclosure or misappropriation of Confidential
Information.
(b) Prohibited
Activity.
To prevent the
above-described disclosure, misappropriation and breach, I agree that during
my
employment and for a period of one (1) year after termination of the Period
of
Employment, without the Company's express written consent, I shall not, directly
or indirectly, (i) employ, solicit for employment, or recommend for employment
any person employed by the Company (or any Affiliate); and (ii) engage in any
present or contemplated business activity that is or may be competitive with
the
Company (or any Affiliate) in any state where the Company conducts its business,
unless I can prove that any action taken in contravention of this subsection
(ii) was done without the use in any way of Confidential
Information.
5. Representations
and Warranties.
I represent and
warrant (i) that I have no obligations, legal or otherwise, inconsistent with
the terms of this Agreement or with my undertaking a relationship with the
Company; (ii) that the performance of the services called for by this Agreement
do not and will not violate any applicable law, rule or regulation or any
proprietary or other right of any third party; (iii) that I will not use in
the
performance of my responsibilities for the Company any materials or documents
of
a former employer; and (iv) that I have not entered into or will enter into
any
agreement (whether oral or written) in conflict with this
Agreement.
6. Termination
Obligations.
(a) Upon
the
termination of my relationship with the Company or promptly upon the Company's
request, I shall surrender to the Company all equipment, tangible Proprietary
Information, documents, books, notebooks, records, reports, notes, memoranda,
drawings, sketches, models, maps, contracts, lists, computer disks (and other
computer-generated files and data), any other data and records of any kind,
and
copies thereof (collectively, “Company Records”), created on any medium and
furnished to, obtained by, or prepared by myself in the course of or incident
to
my employment, that are in my possession or under my control.
(b) My
representations,
warranties, and obligations contained in this Agreement shall survive the
termination of the Period of Employment.
(c) Following
any
termination of the Period of Employment, I will fully cooperate with the Company
in all matters relating to my continuing obligations under this
Agreement.
(d) In
the event that I
leave the employ of the Company I hereby grant consent to notification by the
Company to my new employer about my rights and obligations under this
Agreement.
(e) Upon
termination of
the Period of Employment, I will execute a Certificate acknowledging compliance
with this Agreement in the form reasonably provided by the Company.
7. Injunctive
Relief.
I acknowledge
that my failure to carry out any obligation under this Agreement, or a breach
by
me of any provision herein, will constitute immediate and irreparable damage
to
the Company, which cannot be fully and adequately compensated in money damages
and which will warrant preliminary and other injunctive relief, an order for
specific performance, and other equitable relief. I further agree that no bond
or other security shall be required in obtaining such equitable relief and
I
hereby consent to the issuance of such injunction and to the ordering of
specific performance. I also understand that other action may be taken and
remedies enforced against me.
8. Modification.
No modification
of this Agreement shall be valid unless made in writing and signed by both
parties.
9. Binding
Effect.
This Agreement
shall be binding upon me, my heirs, executors, assigns and administrators and
is
for the benefit of the Company and its successors and assigns.
10. Governing
Law.
This Agreement
shall be construed in accordance with, and all actions arising under or in
connection therewith shall be governed by, the internal laws of the State of
__________ (without reference to conflict of law principles).
11. Integration.
This Agreement
sets forth the parties' mutual rights and obligations with respect to
proprietary information, prohibited competition, and intellectual property.
It
is intended to be the final, complete, and exclusive statement of the terms
of
the parties' agreements regarding these subjects. This Agreement supersedes
all
other prior and contemporaneous agreements and statements on these subjects,
and
it may not be contradicted by evidence of any prior or contemporaneous
statements or agreements. To the extent that the practices, policies, or
procedures of the Company, now or in the future, apply to myself and are
inconsistent with the terms of this Agreement, the provisions of this Agreement
shall control unless changed in writing by the Company.
12. Employment
at
Will.
This Agreement is
not an employment agreement. I understand that the Company may terminate my
association or employment with it at any time, with or without cause, subject
to
the terms of any separate written employment agreement executed by a duly
authorized officer of the Company.
13. Construction.
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 limitation, this Agreement
shall not be construed against the party responsible for any language in this
Agreement. The headings of the paragraphs hereof are inserted for convenience
only, and do not constitute part of and shall not be used to interpret this
Agreement.
14. Attorneys'
Fees.
Should either I
or the Company, or any heir, personal representative, successor or permitted
assign of either party, resort to legal proceedings to enforce this Agreement,
the prevailing party (as defined in California statutory law) in such legal
proceeding shall be awarded, in addition to such other relief as may be granted,
attorneys' fees and costs incurred in connection with such
proceeding.
15. Severability.
If any term,
provision, covenant or condition of this Agreement, or the application thereof
to any person, place or circumstance, shall be held to be invalid, unenforceable
or void, the remainder of this Agreement and such term, provision, covenant
or
condition as applied to other persons, places and circumstances shall remain
in
full force and effect.
16. Rights
Cumulative.
The rights and
remedies provided by this Agreement are cumulative, and the exercise of any
right or remedy by either the Company or me (or by that party's successor),
whether pursuant hereto, to any other agreement, or to law, shall not preclude
or waive that party's right to exercise any or all other rights and remedies.
This Agreement will inure to the benefit of the Company and its successors
and
assigns.
17. Nonwaiver.
The failure of
either the Company or me, whether purposeful or otherwise, to exercise in any
instance any right, power or privilege under this Agreement or under law shall
not constitute a waiver of any other right, power or privilege, nor of the
same
right, power or privilege in any other instance. Any waiver by the Company
or by
me must be in writing and signed by either myself, if I am seeking to waive
any
of my rights under this Agreement, or by an officer of the Company (other than
me) or some other person duly authorized by the Company.
18. Notices.
Any notice,
request, consent or approval required or permitted to be given under this
Agreement or pursuant to law shall be sufficient if it is in writing, and if
and
when it is hand delivered or sent by regular mail, with postage prepaid, to
my
residence (as noted in the Company's records), or to the Company's principal
office, as the case may be.
19. Date
of
Effectiveness.
This Agreement
shall be deemed effective as of the commencement of my employment with the
Company.
20. Agreement
to
Perform Necessary Acts.
I agree to
perform any further acts and execute and deliver any documents that may be
reasonably necessary to carry out the provisions of this Agreement.
21. Assignment.
This Agreement
may not be assigned without the Company's prior written consent.
22. Compliance
with
Law.
I agree to abide
by all federal, state, and local laws, ordinances and regulations.
23. Employee
Acknowledgment.
I acknowledge
that I have had the opportunity to consult legal counsel in regard to this
Agreement, that I have read and understand this Agreement, that I am fully
aware
of its legal effect, and that I have entered into it freely and voluntarily
and
based on my own judgment and not on any representations or promises other than
those contained in this Agreement.
IN
WITNESS WHEREOF,
the undersigned have executed this Agreement as of the date set forth
below.
CAUTION:
THIS
AGREEMENT CREATES IMPORTANT OBLIGATIONS OF TRUST AND AFFECTS THE EMPLOYEE'S
RIGHTS TO INVENTIONS AND OTHER INTELLECTUAL PROPERTY THE EMPLOYEE MAY DEVELOP
DURING HIS OR HER EMPLOYMENT.
Dated:
12/26/02
/s/ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Employee
Signature
Printed
Name of
Employee: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
[The
Small Business
Company]
By:
/s/
▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Name:
▇▇▇▇▇
▇.
▇▇▇▇▇▇
Title:
COO