RECITALS:
A. Employee’s business success is dependent on Employee’s possession of confidential, proprietary knowledge that is not commonly known to others, including specialized information regarding research, development, manufacturing, marketing, and management in the Employer’s selected fields of endeavor.
B. The employer intends to preserve its sensitive proprietary information and to ensure that all employees agree to uphold the secrecy of this information on his or her behalf.
C. The Employee acknowledges that Employer wishes to protect its confidential, proprietary information and that his or her employment creates a duty of trust and confidentiality to Employer with respect to Employer’s confidential, proprietary information, and that as a condition of employment or continued employment with Employer, Employee agrees to be bound by the terms of this Agreement.
AGREEMENT:
WHEREFORE, Employer and Employee agree as follows:
ARTICLE I: CONFIDENTIAL INFORMATION
A.The terms “Confidential Information” and “Proprietary Data” mean information and data not generally known outside the company concerning Employer or its businesses and the Employer’s business and technical information, including but not limited to, patent applications, information relating to inventions, discoveries, products, plans, calculations, concepts, design sheets, design data, system design, blueprints, computer programs, algorithms, software, firmware, hardware, manuals, drawings, photographs, devices, samples, models, processes, specifications, instructions, research, test procedures and results, equipment, identity and description of computerized records, customer lists, supplier identity, marketing and sales plans, financial information, business plans, costs, pricing information, and all other concepts or ideas involving or reasonably related to the business or prospective business of Employer, or information received by the Employer as to which there is a bona fide obligation, contractual or otherwise, on Employer’s part, not to disclose same.
B. During the course of this Agreement, Employee acknowledges and accepts that the Confidential Information and Proprietary Data are trade secrets of Employer and that Employer has taken all reasonable means to safeguard the confidentiality of this information at all times material to this Agreement.
C. For the duration of employee’s employment with Employer, and thereafter, employee agrees not to use Confidential Information and/or Proprietary Data for the profit of any other person, corporation, or entity, other than that of the Employer. In determining the duration of Employee’s employment under this Agreement, Employer shall consider any time during which Employee was retained by Employer as a consultant as part of the employment period.
D. Employee acknowledges and agrees that the Confidential Information and Proprietary Data shall be and remain the exclusive property of Employer, and that such information and data shall not be removed from the Employer’s premises under any circumstances whatsoever without the prior written consent of Employer, and that such information and data, if removed, shall be immediately returned to Employer upon any termination of Employee’s employment, and that no copies of such information and data may be retained by Employee.
E. Employee’s notes, notebooks, memorandums, computer disks, and other similar repositories of information that contain or are in any way related to Confidential Information and/or Proprietary Data shall be deemed to be Employer’s property. During the course of employment, all items created or compiled by Employee or made available to Employee, as well as all copies of such items, shall be held by Employee in trust solely for the benefit of the Employer and shall be delivered to the employer by Employee upon the termination of employment with the Employer, or at any other time upon the request of the Employer.
F. Employee agrees not to divulge Confidential Information and/or Proprietary Data to any other person or entity, either directly or indirectly. Employee understands that the use or disclosure of any of the Confidential Information and/or Proprietary Data may be grounds for an action at law or in equity in an appropriate court of the State of California or any state of the United States, or in any federal court, and that Employer shall be entitled to an injunction prohibiting the use or disclosure of the Confidential Information and Proprietary Data without waiving the right to collect damages from Employee.
ARTICLE II: INVENTIONS
A. Employee shall promptly disclose to Employer, in writing, all inventions, ideas, discoveries, and improvements, whether or not patentable or registrable under Copyright or similar statutes, that Employee has made or conceived, or that Employee has put into practice or learned, whether alone or in collaboration with others, during the course of his or her employment with Employer. In exchange for this agreement, the employee acknowledges that all such creations (whether intellectual, visual, or material) are the sole property of the Employer.
B. All rights, titles, and interests in and to any inventions, ideas, discoveries, or improvements, with the exception of inventions, ideas, discoveries, or improvements that qualify for protection under Section C below, are assigned to the Employer by the Employee to the benefit of the Employer.
C. An invention that is completely qualified for protection under relevant state labor code(s), which may provide as follows, is not required to be assigned under the terms of this Agreement. If a provision in an employment agreement provides that an employee will assign or offer to assign any of his or her rights in an invention to his or her employer, that provision will not apply to an invention for which no equipment or supplies, facility, or trade secret information of the employer were used, and which was developed entirely on the employee’s time, and (a) which does not relate (1) to the employer’s business or (2) to the employer’s actual or demonstrably anticipated use of the invention, the provision will not apply.
D. If Employee has conceived or made any inventions, ideas, discoveries, or improvements prior to the execution of this Agreement that is not intended to be included within its provisions, those inventions, ideas, discoveries, or improvements are listed or described on Exhibit “A” attached to this Agreement, and if there is no such list or description, it is presumed that there are no such inventions, ideas, discoveries, or improvements not covered by this Agreement.
ARTICLE III: COVENANT NOT TO COMPETE
A. During the course of Employee’s employment with the Employer, Employee agrees not to engage in any business that is competitive with the Employer’s company without the prior written agreement of the Employer.
B. Following the termination of employment with Employer, Employee agrees that if he/she seeks employment or other activities in a business that is competitive with any business of Employer or that may reasonably be expected to compete with any business of Employer, Employee must inform the prospective employer or association that Employee is prohibited from disclosing any secrets or Confidential or Proprietary Information that Employee has obtained while employed with Employer. To be considered “in association with others,” a person must accept any employment with a third party and must provide, directly or indirectly, advice or assistance of any kind to a third party, whether or not that third party is an individual, a partnership, a corporate entity, an association or another organization.
ARTICLE IV: NATURE OF RELATIONSHIP
This Agreement does not create, define, or otherwise affect the terms of any employment contract, whether express or implied, nor does it create any guarantee of continued employment between Employer and Employee. This is expressly understood and agreed to. The parties acknowledge and agree that Employee’s relationship with Employer is terminable “at will,” which means that either Employer or Employee may terminate the relationship with or without cause or prior notice to the other party at their discretion.
ARTICLE VI: MISCELLANEOUS PROVISIONS
A. This Agreement shall be binding on the Employee’s heirs, assigns, administrators, and representatives and shall insure to the benefit of the Employer’s successors and assigns.
B. All provisions of this Agreement shall be severable for the purpose of enforcing their respective obligations.
The remainder of this Agreement shall remain in effect if any provision or clause of this Agreement is found to be unenforceable at law or in equity, and the balance of this Agreement shall continue to be enforceable in accordance with its terms.
C. It is agreed that this Agreement will be interpreted and controlled by the laws of the State of California, as they are applied to a contract negotiated and entirely performed within that State.
D. This Agreement contains the entirety of the Agreement with respect to its subject matter. No modification, revision, termination, or waiver of this Agreement shall be effective unless it is in writing and signed by an officer of Employer who has been duly authorized to do so. It shall not be deemed a waiver of any of the terms, covenants, or conditions of this Agreement if Employer fails to insist on strict compliance with any such terms, covenants, or conditions.
E. This Agreement contains the entire agreement between the parties hereto relating to the subject matter hereof and replaces any prior agreements between the parties relating to inventions and confidentiality to the extent that they have been entered into.
F. In the event of a disagreement arising out of or relating to this Agreement, the party who prevails in the dispute will be entitled to collect its attorney expenses.
G. This Agreement will become effective on the date that was most recently written below.
