EMPLOYEE PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
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EMPLOYEE PROPRIETARY INFORMATION AND
INVENTIONS AGREEMENT
The following agreement (the “Agreement”) between ____________________,a Delaware
corporation (the “Company”), and the individual identified on the signature page to this
Agreement (“Employee” or “I”)is effective as of ____________________, the first day of my
employment by the Company. I acknowledge that this Agreement is a material part of the
consideration for my employment and continued employment by the Company. In exchange for
the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties agree as follows:
1.
I have not made, and agree not to make, any agreement, oral or written, that is
No Conflicts.
in conflict with this Agreement or my employment with the Company. I will not violate any
agreement with or the rights of any third party. When acting within the scope of my employment
(or otherwise on behalf of the Company), I will not use or disclose my own or any third party’s
confidential information or intellectual property (collectively, “Restricted Materials”), except as
expressly authorized by the Company in writing. Further, I have not retained anything containing
or reflecting any confidential information of a prior employer or other third party, whether or not
created by me.
2. Inventions.
a.
“Intellectual Property Rights” means any and all patent rights, copyright rights,
Definitions.
trademark rights, mask work rights, trade secret rights,
database rights and all other
sui generis
intellectual and industrial property rights of any sort throughout the world (including any
application therefor). “Invention” means any idea, concept, discovery, invention, development,
research, technology, work of authorship, trade secret, software, firmware, content, audio-visual
material, tool, process, technique, know-how, data, plan, device, apparatus, specification, design,
prototype, circuit, layout, mask work, algorithm, program, code, documentation or other material
or information, tangible or intangible, whether or not it may be patented, copyrighted,
trademarked or otherwise protected (including all versions, modifications, enhancements and
derivative works thereof).
b.
To the fullest extent under applicable law, the Company shall own all right, title
Assignment.
and interest in and to all Inventions (including all Intellectual Property Rights therein or related
thereto) that are made, conceived or reduced to practice, in whole or in part, by me during the
term of my employment with the Company and which arise out of any use of Company’s facilities
or assets or any research or other activity conducted by, for or under the direction of the Company
(whether or not (i) conducted at the Company’s facilities, (ii) during working hours or (iii) using
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Company assets), or which are useful with or relate directly or indirectly to any “Company
Interest” (meaning any product, service, other Invention or Intellectual Property Right that is sold,
leased, used, proposed, under consideration or under development by the Company). I will
promptly disclose and provide all of the foregoing Inventions (the “Assigned Inventions”) to the
Company. I hereby make and agree to make all assignments to the Company necessary to
effectuate and accomplish the foregoing ownership. Assigned Inventions shall not include any
Invention that is both (x) developed entirely on my own time, without use of any Company assets,
ideas or direction and (y) not useful with or related to any Company Interest.
c.
I will further assist the Company, at its expense, to evidence, record and perfect
Assurances.
such assignments, and to perfect, obtain, maintain, enforce and defend any rights specified to be so
owned or assigned. I hereby irrevocably designate and appoint the Company and its officersas my
agents and attorneys-in-fact, coupled with an interest, to act for and in my behalf to execute and
file any document and to perform all other lawfully permitted acts to further the purposes of the
foregoing with the same legal force and effect as if executed by me.
d.
If I wish to clarify that something created by me prior to my employment,
Other Inventions.
which relates or may relate to the Company’s actual or proposed business,is not within the scope of
the assignment of Inventions under this Agreement, then I have listed it on Appendix A. If (i) I use
or disclose any Restricted Materials (including anything listed in Appendix A) when acting within
the scope of my employment (or otherwise on behalf of the Company), or (ii) any Assigned
Invention cannot be fully made, used, reproduced or otherwise exploited without using or
violating any Restricted Materials, I hereby grant and agree to grant to the Company a perpetual,
irrevocable, worldwide, royalty-free, non-exclusive, transferable, sublicensable right and license to
exploit and exercise all such Restricted Materials and Intellectual Property Rights therein. I will not
use or disclose any Restricted Materials for which I am not fully authorized to grant the foregoing
license.
e.
To the extent allowed by applicable law, the terms of this Section 2 include all
Moral Rights.
rights of paternity, integrity, disclosure, withdrawal and any other rights that may be known as or
referred to as moral rights, artist’s rights, droit moral or the like (collectively, “Moral Rights”). To
the extent I retain any such Moral Rights under applicable law, I hereby ratify and consent to any
action that may be taken with respect to such Moral Rights by or authorized by the Company and
agree not to assert any Moral Rights with respect thereto. I will confirm any such ratification,
consent or agreement from time to time as requested by the Company. Furthermore, I agree that
notwithstanding any rights of publicity, privacy or otherwise (whether or not statutory) anywhere
in the world and without any further compensation, the Company may and is hereby authorized to
use my name, likeness and voice in connection with promotion of its business, products and
services and to allow others to do so.
3.
I agree that all Assigned Inventions and all other financial,
Proprietary Information.
business, legal and technical information, including the identity of and any other information
relating to the Company’s employees, Affiliates and Business Partners (as such terms are defined
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below), which I develop, learn or obtain during my employment or that are received by or for the
Company in confidence, constitute “Proprietary Information.”I will hold in strict confidence and
not directly or indirectly disclose or, except within the scope of my employment, useany
Proprietary Information. Proprietary Information shall not include information that, I can
document, is or becomes readily available to the public without restriction through no fault of
mine. Upon termination of my employment, I will promptly return to the Company all items
containing or embodying Proprietary Information (including all copies), except that I may keep my
personal copies of (a) my compensation records, (b) materials distributed to shareholders generally
and (c) this Agreement. I also recognize and agree that I have no expectation of privacy with
respect to the Company’s networks, telecommunications systems or information processing systems
(including, without limitation, stored computer files, email messages and voice messages), and that
my activity and any files or messages on or using any of those systems may be monitored at any
time without notice, regardless of whether such activity occurs on equipment owned by me or the
Company.I further agree that any property situated on the Company’s premises and owned, leased
or otherwise possessed by the Company, including computers, computer files, email, voicemail,
storage media, filing cabinets or other work areas, is subject to inspection by Company personnel at
any time with or without notice.
4.
For the purposes of this Section 4, the term Company includes the
Restricted Activities.
Company and all other persons or entities that control, are controlled by or are under common
control with the Company (“Affiliates”).
a.
“Any Capacity” includes, without limitation, to (i) be an owner, founder,
Definitions.
shareholder, partner, member, advisor, director, consultant, contractor, agent, employee, affiliate or
co-venturer, (ii) otherwise invest, engage or participate in, (iii) be compensated by or (iv) prepare
to be or do any of the foregoing or assist any third party to do so; provided, Any Capacity will not
include being a holder of less than one percent (1%) of the outstanding equity of a public company.
“Business Partner” means any past, present or prospective customer, vendor, supplier, distributor or
other business partner of the Company. “Cause” means to recruit, employ, retain or otherwise
solicit, induce or influence, or to attempt to do so. “Solicit” means to (1) service, take orders from
or solicit the business or patronage of any Business Partner for myself or any other person or entity,
(2) divert, entice or otherwise take away from the Company the business or patronage of any
Business Partner, or to attempt to do so, or (3) solicit, induce or encourage any Business Partner to
terminate or reduce its relationship with the Company.
b. Acknowledgments.
i. I acknowledge and agree that (1) the Company's business is highly competitive, secrecy of the
Proprietary Information is of the utmost importance to the Company and I will learn and use
Proprietary Information in performing my work for the Company and (2) my position may require
me to establish goodwill with Business Partners and employees on behalf of the Company and such
goodwill is extremely important to the Company's success and that Company has made substantial
investments to develop its business interests and goodwill.
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ii. I agree that the limitations as to time, geographical area and scope of activity to be restrained
in this Section 4 are reasonable and are not greater than necessary to protect the goodwill or other
business interests of Company. I further agree that such investments are worthy of protection and
that Company’s need for protection afforded by this Section 4 is greater than any hardship I may
experience by complying with its terms.
iii. I acknowledge that my violation or attempted violation of the agreements in this Section 4
will cause irreparable damage to Company or its Affiliates, and I therefore agree that Company shall
be entitled as a matter of right to an injunction, out of any court of competent jurisdiction,
restraining any violation or further violation of such agreements by me or others acting on my
behalf. Company’s right to injunctive relief shall be cumulative and in addition to any other
remedies provided by law or equity.
iv. Although the parties believe that the limitations as to time, geographical area and scope of
activity contained herein are reasonable and do not impose a greater restraint than necessary to
protect the goodwill or other business interests of Company, if it is judicially determined not to be
the case, the limitations shall be reformed to the extent necessary to make them reasonable and not
to impose a restraint that is greater than necessary to protect the goodwill or other business interests
of Company.
v. The Company and I agree that the provisions of this Section 4, as so amended, shall be valid
and binding as though any invalid or unenforceable provision had not been included.
c.
During my employment with the Company, I will not directly or
As an Employee.
indirectly: (i) Cause any person to leave their employment with the Company (other than
terminating subordinate employees in the course of my duties for the Company); (ii) Solicit any
Business Partner; (iii) act in Any Capacity in or with respect to any commercial activity which
competes, or is reasonably likely to compete, with any business that the Company conducts,
proposes to conduct or demonstrably anticipates conducting, at any time during my employment (a
“Competing Business”); (iv) enter into in an employment, consulting or other similar relationship
with another person or entity that requires a significant time commitment without the prior written
consent of the Company;or (v) make, or cause to be made, any statements, observations, or
opinions, or communicate any information (whether oral or written), that disparages or is likely in
any way to harm the reputation of the Company,its customers, users and/or business partners
except that nothing contained in this Agreement shall be deemed to prohibit me from testifying
truthfully under oath pursuant to any lawful court order or subpoena or otherwise responding to or
providing disclosures required by law.
d.
For the period of twelve (12) months immediately following termination
After Termination.
of my employment with the Company (for any or no reason, whether voluntary or involuntary), I
will not directly or indirectly: (i) Cause any person to leave their employment with the Company;
(ii) Solicit any Business Partner; or (iii) act in Any Capacity in or with respect to any Competing
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Business located within the State of New York, the rest of the United States, or anywhere else in
the world. The foregoing time frames shall be increased by the period of time from the
commencement of any violation of the foregoing provisions until such time as I have cured such
violation.
5.
I agree that this Agreement is not an employment contract for any
Employment at Will.
particular term. I have the right to resign and the Company has the right to terminate my
employment at will, at any time, for any or no reason, with or without cause. This Agreement does
not purport to set forth all of the terms and conditions of my employment, and as an employee of
the Company, I have obligations to the Company which are not described in this Agreement.
However, the terms of this Agreement govern over any such terms that are inconsistent with this
Agreement, and supersede the terms of any similar form that I may have previously signed. This
Agreement can only be changed by a subsequent written agreement signed by the Chief Executive
Officer or President of the Company, or an authorized designee.
6.
I agree that any change or changes in my employment title, duties, compensation or
Survival.
equity interest after the signing of this Agreement shall not affect the validity or scope of this
Agreement. I agree that my obligations under Sections 2, 3 and 4 of this Agreement shall continue
in effect after termination of my employment, regardless of the reason, and whether such
termination is voluntary or involuntary, and that the Company is entitled to communicate my
obligations under this Agreement to any of my potential or future employers. I will provide a copy
of this Agreement to any potential or future employers of mine, so that they are aware of my
obligations hereunder.My obligations under Sections 2, 3 and 4 also shall be binding upon my
heirs, executors, assigns and administrators, and shall inure to the benefit of the Company, its
Affiliates, successors and assigns. This Agreement may be freely assigned by the Company to any
third party.
7.
Any dispute in the meaning, effect or validity of this Agreement shall be
Miscellaneous.
resolved in accordance with the laws of the State of New York without regard to the conflict of
laws provisions thereof. Any legal action or proceeding relating to this Agreement shall be brought
exclusively in the state or federal courts located in New York County, New York, and each party
consents to the jurisdiction thereof.The failure of either party to enforce its rights under this
Agreement at any time for any period shall not be construed as a waiver of such rights. Unless
expressly provided otherwise, each right and remedy in this Agreement is in addition to any other
right or remedy, at law or in equity, and the exercise of one right or remedy will not be deemed a
waiver of any other right or remedy. If one or more provisions of this Agreement are held to be
illegal or unenforceable under applicable law, such illegal or unenforceable portion shall be limited
or excluded from this Agreement to the minimum extent required so that this Agreement shall
otherwise remain in full force and effect and enforceable. I acknowledge and agree that any breach
or threatened breach of this Agreement will cause irreparable harm to the Company for which
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damages would not be an adequate remedy, and, therefore, the Company is entitled to injunctive
relief with respect thereto (without the necessity of posting any bond) in addition to any other
remedies.
I HAVE READ THIS AGREEMENT CAREFULLY AND I UNDERSTAND AND
ACCEPT THE OBLIGATIONS THAT IT IMPOSES UPON ME WITHOUT
RESERVATION. NO PROMISES OR REPRESENTATIONS HAVE BEEN MADE
TO ME TO INDUCE ME TO SIGN THIS AGREEMENT. I SIGN THIS
AGREEMENT VOLUNTARILY AND FREELY,WITH THE UNDERSTANDING
THAT I EITHER (1) HAVE RETAINED A COPY OF THIS AGREEMENT OR (2)
MAY, AT ANY TIME, REQUEST A COPY OF THIS AGREEMENT FROM THE
COMPANY.
Appendix A
Prior Matters
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