Confidentiality; Non-Competition. At any time following execution of this agreement, you agree not to use or disclose, directly or indirectly, for any reason, whatsoever or in any way any confidential information or trade secrets of Company, including, but not limited to, information with respect to Company as follows: the identity, lists, and/or descriptions of any customers of Company; financial statements, cost reports, and other financial information; product or service pricing information; contract proposals and bidding information; processes, policies and procedures developed as part of a confidential business plan; and management systems and procedures, including manuals and supplements thereto, other than (i) at the direction of Company during the course of your employment (ii) after receipt of the prior written consent of Company, (iii) as required by any court or governmental regulatory agency having competent jurisdiction over Company, or (iv) information made public by Company. You agree that all copyrights, trademarks, tradenames, service marks, inventions, processes and other intangible or intellectual property rights that may be invented, conceived, developed or enhanced by you while you are employed by the Company that relate to the Company's business, or that result from any work performed by you for the Company, shall be the sole property of the Company, and you hereby assign to the Company any right or interest that you may otherwise have in respect thereof. Upon the reasonable request of the Company, you shall execute, acknowledge, deliver and file any instrument or document necessary or appropriate to give effect to this provision and do all other acts and things necessary to enable the Company to exploit the same or to obtain patents or similar protection with respect thereto. You agree that the covenants set forth in this paragraph shall accrue to the benefit of Company, irrespective of the reason for termination of the other provisions of this agreement and the corresponding employment relationship created hereby. You agree that while you are employed by the Company and for a period of three years thereafter, you will not, without the prior written consent of the Company's Board of Directors: a. Whether for compensation or otherwise, directly or indirectly engage in the Company's business, or any part thereof, or assist any other person in such person's conduct of the Company's business, or any part thereof, whether as a director, officer, employee, consultant, adviser, independent contractor or otherwise; b. Hold a legal or beneficial interest in any person which is engaged in the Company's business or any part thereof, whether such interest is as an owner, investor, partner, creditor (other than as a trade creditor in the ordinary course of business), joint venture or otherwise; c. Solicit, divert or attempt to divert from the Company or any person deriving title to the goodwill of the Company (a "Transferee") any business constituting, or any customer of, any part of the Company's business then conducted by the Company or such Transferee; or d. Induce or attempt to induce any person then, or during the immediately preceding six (6) month period, engaged or employed (whether part-time or full-time) by the Company or any Transferee, whether as an officer, employee, consultant, salesman, adviser or independent contractor to leave the employ of the Company or such Transferee, as the case may be, or to cease providing the services to the Company or such Transferee, as the case may be, then provided by such person, or in any other manner seek to engage or employ any such person (whether or not for compensation) as an officer, employee consultant, adviser or independent contractor such that such person would thereafter be unable to devote his or her full business time and attention to the business then conducted by the Company or such Transferee, as the case may be. You hereby specifically acknowledge and agree that the restrictions contained in this paragraph are reasonable and necessary to protect the business and prospective business of Company, and that the enforcement of the provisions of this paragraph will not work an undue hardship on you. However, in the event your employment is terminated by the Company without cause, you shall be permitted to do the following as of the first anniversary of the date of such termination: a. Whether for compensation or otherwise, directly or indirectly engage in the Company's business, or any part thereof, or assist any other person in such person's conduct of the Company's business, or any part thereof, whether as a director, officer, employee consultant, adviser, independent contractor or otherwise; or b. Hold a legal or beneficial interest in any person which is engaged in the Company's business or any part thereof, whether such interest is as an owner, investor, partner, creditor (other than as a trade creditor in the ordinary course of business), joint venture or otherwise; or
Appears in 3 contracts
Samples: Employment Agreement (Omp Inc), Employment Agreement (Omp Inc), Employment Agreement (Omp Inc)
Confidentiality; Non-Competition. At (a) The Employee shall treat as confidential any time following execution proprietary, confidential or non-public information relating to the business or interests of this agreement, you agree not to use the Company or disclose, directly or indirectly, for any reason, whatsoever or in any way any confidential information or trade secrets affiliate of the Company, including, but without limitation, business plans or technical projects of the Company or any affiliate, and any research datum or result, invention, customer list, process or other work product developed by or for the Company or any affiliate, whether on the premises of the Company or elsewhere ("Confidential Information"). The Employee shall not limited todisclose, utilize or make accessible in any manner or in any form any Confidential Information other than in connection with performing the services required of the Employee under this Agreement, without the prior consent of the Company. Notwithstanding the foregoing, the provisions of this Section 5(a) shall not apply to any Confidential Information which is, or at some later date becomes, publicly known under circumstances not involving a breach of any confidentiality agreement with the Company or which is required to be disclosed pursuant to order or requirement of a court, administrative agency or other governmental body, provided that the Company has been given appropriate notice of such proceeding and an opportunity to contest such disclosure.
(b) All business and technical records, information with respect relating to Company as follows: the identity, lists, and/or descriptions of any customers of Company; financial statements, cost reports, and other financial information; product or service pricing information; contract proposals and bidding information; processes, policies and procedures developed as part of a confidential business plan; and management systems and procedures, including manuals and supplements thereto, other than (i) at the direction of Company during the course of your employment (ii) after receipt of the prior written consent of CompanyCompany and its affiliates, (iii) as required by any court or governmental regulatory agency having competent jurisdiction over Companypapers, documents, correspondence, or studies containing information relating to the Company and its affiliates, in all cases irrespective of the manner in which such information is kept or stored (iv) information "business records"), made public by Company. You agree that all copyrights, trademarks, tradenames, service marks, inventions, processes and other intangible or intellectual property rights that may be invented, conceived, developed or enhanced by you while you are employed kept by the Company that relate to Employee or under the CompanyEmployee's business, possession or that result from any work performed by you for the Company, control shall be and remain the sole property of the Company, and you hereby assign shall be surrendered to the Company any right or interest that you may otherwise have in respect thereofupon the termination of the Employee's employment. Upon such termination, the reasonable request Employee shall not take with him, publish, or disclose, or otherwise use, without the consent of the president or chief executive officer of the Company, you shall executeany business records.
(c) The Employee agrees that, acknowledge, deliver and file any instrument or document necessary or appropriate to give effect to this provision and do all other acts and things necessary to enable during the period of the Employee's employment with the Company to exploit the same or to obtain patents or similar protection with respect thereto. You agree that the covenants set forth in this paragraph shall accrue to the benefit of Company, irrespective of the reason for termination of the other provisions of this agreement and the corresponding employment relationship created hereby. You agree that while you are employed by the Company any affiliate thereof and for a period of three two years thereafterfollowing the date upon which such employment shall terminate, you will the Employee shall not, without in any capacity, compete or attempt to compete with the prior written consent business of the Company's Board ; and the Employee acknowledges that a portion of Directors:
a. Whether the payments being made to the Employee hereunder are being made, in part, as consideration for compensation or otherwisesuch noncompetition agreement. The Employee represents and agrees that, directly or indirectly engage in the Company's business, or any part thereof, or assist any other person in such person's conduct event of the Companytermination of the Employee's business, or any part thereof, whether as a director, officer, employee, consultant, adviser, independent contractor or otherwise;
b. Hold a legal or beneficial interest in any person which is engaged in the Company's business or any part thereof, whether such interest is as an owner, investor, partner, creditor (other than as a trade creditor in the ordinary course of business), joint venture or otherwise;
c. Solicit, divert or attempt to divert from employment with the Company or any person deriving title to affiliate thereof, the goodwill of the Company (a "Transferee") any business constituting, or any customer of, any part of the CompanyEmployee's business then conducted by the Company or such Transferee; or
d. Induce or attempt to induce any person then, or during the immediately preceding six (6) month period, engaged or employed (whether part-time or full-time) by the Company or any Transferee, whether as an officer, employee, consultant, salesman, adviser or independent contractor to leave the employ of the Company or such Transferee, as the case may be, or to cease providing the services to the Company or such Transferee, as the case may be, then provided by such person, or in any other manner seek to engage or employ any such person (whether or not for compensation) as an officer, employee consultant, adviser or independent contractor experiences and capabilities are such that such person would thereafter be unable to devote his or her full business time and attention to the business then conducted by the Company or such Transferee, as the case may be. You hereby specifically acknowledge and agree that the restrictions contained Employee can obtain employment in this paragraph are reasonable and necessary to protect the business and prospective business of Companya non-competing business, and that the enforcement of the provisions a remedy by way of this paragraph injunction will not work an undue hardship on youprevent the Employee from earning a livelihood. However, The Employee further represents and agrees that the covenants contained in this Section 5(c) are necessary for the event your employment is terminated by the Company without cause, you shall be permitted to do the following as of the first anniversary of the date of such termination:
a. Whether for compensation or otherwise, directly or indirectly engage in the Company's business, or any part thereof, or assist any other person in such person's conduct protection of the Company's businesslegitimate business interests and are reasonable in scope and content.
(d) The provisions of this Section 5 on the part of the Employee shall be construed as an agreement independent of any other provision contained in this Agreement and shall be enforceable in both law and equity, including by temporary or permanent restraining order, notwithstanding the existence of any claim or cause of action of the Employee against the Company or any part thereofaffiliate of the Company, whether as a director, officer, employee consultant, adviser, independent contractor predicated on this Section 5 or otherwise; or.
b. Hold a legal (e) The Employee agrees that all processes, technologies and inventions, including new contributions, improvements, ideas or beneficial interest discoveries, whether patentable or not, conceived, developed, invented or made by or under the supervision of the Employee (collectively, "Inventions" ) during the period of the Employee's employment by the Company, shall belong to the Company, provided that the Inventions grow out of the Employee's work with the Company or are related in any person manner to any business (commercial or experimental) of the Company. The Employee agrees that the Employee shall promptly (i) disclose all Inventions to the Company, (ii) assign to the Company, without additional compensation, all patents and other rights to all Inventions for the United States and all foreign countries, (iii) sign all papers necessary to carry out the above, and (iv) give testimony (but without expense to the Employee) in support of the Employee's inventorship. In the event that any Invention is described in a patent application or is disclosed to third parties by the Employee, directly or indirectly, within one year after leaving the employ of the Company, it is to be presumed that the Invention was conceived or made during the period of the Employee's employment by the Company. The Employee agrees that the Company shall be entitled to shop rights with respect to any Invention conceived or made by the Employee during the period of the Employee's employment by the Company that is not related in any manner to any business (commercial or experimental) of the Company but which is engaged in was conceived or made on the Company's business time or any part thereof, whether such interest is with the use of the Company's facilities or materials. Attached as an ownerexhibit to this Agreement is a complete list of the Inventions, investor, partner, creditor patented or unpatented (other than as including a trade creditor in the ordinary course of businessbrief description thereof), joint venture if any, which the Employee conceived or otherwise; ormade prior to the Employee's employment by the Company, and which the Employee desires to exclude from this Agreement. There is no other contract to assign Inventions that is now in existence between the Employee and any other person, firm or corporation, unless indicated on the exhibit, if any, attached to this Agreement, and unless a copy of any such other contract is attached to such exhibit.
Appears in 1 contract
Samples: Employment Agreement (C-Phone Corp)
Confidentiality; Non-Competition. At any time following execution of this agreement, you agree not to use or disclose, directly or indirectly, for any reason, whatsoever or in any way any confidential information or trade secrets of Company, including, but not limited to, information with respect to Company as follows: the identity, lists, and/or descriptions of any customers of Company; financial statements, cost reports, and other financial information; product or service pricing information; contract proposals and bidding information; processes, policies and procedures developed as part of a confidential business plan; and management systems and procedures, including manuals and supplements thereto, other than (i) at the direction of Company during the course of your employment (ii) after receipt of the prior written consent of Company, (iii) as required by any court or governmental regulatory agency having competent jurisdiction over Company, or (iv) information made public by Company. You agree that all copyrights, trademarks, tradenames, service marks, inventions, processes and other intangible or intellectual property rights that may be invented, conceived, developed or enhanced by you while you are employed by the Company that relate to the Company's business, or that result from any work performed by you for the Company, shall be the sole property of the Company, and you hereby assign to the Company any right or interest that you may otherwise have in respect thereof. Upon the reasonable request of the Company, you shall execute, acknowledge, deliver and file any instrument or document necessary or appropriate to give effect to this provision and do all other acts and things necessary to enable the Company to exploit the same or to obtain patents or similar protection with respect thereto. You agree that the covenants set forth in this paragraph shall accrue to the benefit of Company, irrespective of the reason for termination of the other provisions of this agreement and the corresponding employment relationship created hereby. You agree that while you are employed by the Company and for a period of three years thereafter, you will not, without the prior written consent of the Company's Board of Directors:
a. Whether for compensation or otherwise, directly or indirectly engage in the Company's business, or any part thereof, or assist any other person in such person's conduct of the Company's business, or any part thereof, whether as a director, officer, employee, consultant, adviser, independent contractor or otherwise;
b. Hold a legal or beneficial interest in any person which is engaged in the Company's business or any part thereof, whether such interest is as an owner, investor, partner, creditor (other than as a trade creditor in the ordinary course of business), joint venture or otherwise;
c. Solicit, divert or attempt to divert from the Company or any person deriving title to the goodwill of the Company (a "Transferee") any business constituting, or any customer of, any part of the Company's business then conducted by the Company or such Transferee; or
d. Induce or attempt to induce any person then, or during the immediately preceding six (6) month period, engaged or employed (whether part-time or full-time) by the Company or any Transferee, whether as an officer, employee, consultant, salesman, adviser or independent contractor to leave the employ of the Company or such Transferee, as the case may be, or to cease providing the services to the Company or such Transferee, as the case may be, then provided by such person, or in any other manner seek to engage or employ any such person (whether or not for compensation) as an officer, employee consultant, adviser or independent contractor such that such person would thereafter be unable to devote his or her full business time and attention to the business then conducted by the Company or such Transferee, as the case may be. You hereby specifically acknowledge and agree that the restrictions contained in this paragraph are reasonable and necessary to protect the business and prospective business of Company, and that the enforcement of the provisions of this paragraph will not work an undue hardship on you. However, in the event your employment is terminated by the Company without cause, you shall be permitted to do the following as of the first anniversary of the date of such termination:
a. Whether for compensation or otherwise, directly or indirectly engage in the Company's business, or any part thereof, or assist any other person in such person's conduct of the Company's business, or any part thereof, whether as a director, officer, employee consultant, adviser, independent contractor or otherwise; or
b. Hold a legal or beneficial interest in any person which is engaged in the Company's business or any part thereof, whether such interest is as an owner, investor, partner, creditor (other than as a trade creditor in the ordinary course of business), joint venture or otherwise; or.
Appears in 1 contract
Samples: Employment Agreement (Omp Inc)
Confidentiality; Non-Competition. At any time following execution of this agreement, you agree not to use or disclose, directly or indirectly, for any reason, whatsoever or in any way any confidential information or trade secrets of Company, including, but not limited to, information with respect to Company as follows: the identity, lists, and/or descriptions of any customers of Company; financial statements, cost reports, and other financial information; product or service pricing information; contract proposals and bidding information; processes, policies and procedures developed as part of a confidential business plan; and management systems and procedures, including manuals and supplements thereto, other than (i) at the direction of Company during the course of your employment (ii) after receipt of the prior written consent of Company, (iii) as required by any court or governmental regulatory agency having competent jurisdiction over Company, or (iv) information made public by Company. You agree that all copyrights, trademarks, tradenames, service marks, inventions, processes and other intangible or intellectual property rights that may be invented, conceived, developed or enhanced by you while you are employed by during the Company term of this Agreement that relate to the Company's business, or that result from any work performed by you for the Company, shall be the sole property of the Company, and you hereby assign to the Company any right or interest that you may otherwise have in respect thereof. Upon the reasonable request of the Company, you shall execute, acknowledge, deliver and file any instrument or document necessary or appropriate to give effect to this provision and do all other acts and things necessary to enable the Company to exploit the same or to obtain patents or similar protection with respect thereto. You agree that the covenants set forth in this paragraph shall accrue to the benefit of Company, irrespective of the reason for termination of the other provisions of this agreement and the corresponding employment relationship created hereby. You agree that while you are employed by during the Company term of this agreement and for a period of three years thereafter, you will not, without the prior written consent of the Company's Board of Directors:
a. Whether for compensation or otherwise, directly or indirectly engage in the Company's business, or any part thereof, or assist any other person in such person's conduct of OBAGI MEDICAL PRODUCTS INC. the Company's business, or any part thereof, whether as a director, officer, employee, consultant, adviser, independent contractor or otherwise;
b. Hold a legal or beneficial interest in any person which is engaged in the Company's business or any part thereof, whether such interest is as an owner, investor, partner, creditor (other than as a trade creditor in the ordinary course of business), joint venture venturer or otherwise;
c. Solicit, divert or attempt to divert from the Company or any person deriving title to the goodwill of the Company (a "Transferee") any business constituting, or any customer of, any part of the Company's business then conducted by the Company or such Transferee; or
d. Induce or attempt to induce any person then, or during the immediately preceding six (6) month period, engaged or employed (whether part-time or full-time) by the Company or any Transferee, whether as an officer, employee, consultant, salesman, adviser or independent contractor to leave the employ of the Company or such Transferee, as the case may be, or to cease providing the services to the Company or such Transferee, as the case may be, then provided by such person, or in any other manner seek to engage or employ any such person (whether or not for compensation) as an officer, employee consultant, adviser or independent contractor such that such person would thereafter be unable to devote his or her full business time and attention to the business then conducted by the Company or such Transferee, as the case may be. You hereby specifically acknowledge and agree that the restrictions contained in this paragraph are reasonable and necessary to protect the business and prospective business of Company, and that the enforcement of the provisions of this paragraph will not work an undue hardship on you. However, in the event your employment is terminated by the Company without cause, you shall be permitted to do the following as of the first anniversary of the date of such termination:
a. Whether for compensation or otherwise, directly or indirectly engage in the Company's business, or any part thereof, or assist any other person in such person's conduct of the Company's business, or any part thereof, whether as a director, officer, employee consultant, adviser, independent contractor or otherwise; or
b. Hold a legal or beneficial interest in any person which is engaged in the Company's business or any part thereof, whether such interest is as an owner, investor, partner, creditor (other than as a trade creditor in the ordinary course of business), joint venture or otherwise; or
Appears in 1 contract
Samples: Employment Agreement (Omp Inc)
Confidentiality; Non-Competition. At any time following execution of this agreement, you agree not to use or disclose, directly or indirectly, for any reason, whatsoever or in any way any confidential information or trade secrets of Company, including, but not limited to, information with respect to Company as follows: the identity, lists, and/or descriptions of any customers of Company; financial statements, cost reports, and other financial information; product or service pricing information; contract proposals and bidding information; processes, policies and procedures developed as part of a confidential business plan; and management systems and procedures, including manuals and supplements thereto, other than (i) at the direction of Company during the course of your employment (ii) after receipt of the prior written consent of Company, (iii) as required by any court or governmental regulatory agency having competent jurisdiction over Company, or (iv) information made public by Company. You agree that all copyrights, trademarks, tradenames, service marks, inventions, processes and other intangible or intellectual property rights that may be invented, conceived, developed or enhanced by you while you are employed by the Company that relate to the Company's ’s business, or that result from any work performed by you for the Company, shall be the sole property of the Company, and you hereby assign to the Company any right or interest that you may otherwise have in respect thereof. thereof Upon the reasonable request of the Company, you shall execute, acknowledge, deliver and file any instrument or document necessary or appropriate to give effect to this provision and do all other acts and things necessary to enable the Company to exploit the same or to obtain patents or similar protection with respect thereto. You agree that mat the covenants set forth in this paragraph shall accrue to the benefit of Company, irrespective of the reason for termination of the other provisions of this agreement and the corresponding employment relationship created hereby. You agree that while you are employed by the Company and for a period of three years thereafter, you will not, without the prior written consent of the Company's ’s Board of Directors:
a. Whether for compensation or otherwise, directly or indirectly engage in the Company's ’s business, or any part thereof, or assist any other person in such person's ’s conduct of the Company's ’s business, or any part thereof, whether as a director, officer, employee, consultant, adviser, independent contractor or otherwise;
b. Hold a legal or beneficial interest in any person which is engaged in the Company's ’s business or any part thereof, whether such interest is as an owner, investor, partner, creditor (other than as a trade creditor in the ordinary course of business), joint venture or otherwise;
c. Solicit, divert or attempt to divert from the Company or any person deriving title to the goodwill of the Company (a "“Transferee"”) any business constituting, or any customer of, any part of the Company's ’s business then conducted by the Company or such Transferee; or
d. Induce or attempt to induce any person then, or during the immediately preceding six (6) month period, engaged or employed (whether part-time or full-full- time) by the Company or any Transferee, whether as an officer, employee, consultant, salesman, adviser or independent contractor to leave the employ of the Company or such Transferee, as the case may be, or to cease providing the services to the Company or such Transferee, as the case may be, then provided by such person, or in any other manner seek to engage or employ any such person (whether or not for compensation) as an officer, employee consultant, adviser or independent contractor such that such person would thereafter be unable to devote his or her full business time and attention to the business then conducted by the Company or such Transferee, as the case may be. You hereby specifically acknowledge and agree that the restrictions contained in this paragraph are reasonable and necessary to protect the business and prospective business of Company, and that the enforcement of the provisions of this paragraph will not work an undue hardship on you. However, in the event your employment is terminated by the Company without cause, you shall be permitted to do the following as of the first anniversary of the date of such termination:
a. Whether for compensation or otherwise, directly or indirectly engage in the Company's ’s business, or any part thereof, or assist any other person in such person's ’s conduct of the Company's ’s business, or any part thereof, whether as a director, officer, employee consultant, adviser, independent contractor or otherwise; or
b. Hold a legal or beneficial interest in any person which is engaged in the Company's ’s business or any part thereof, whether such interest is as an owner, investor, partner, creditor (other than as a trade creditor in the ordinary course of business), joint venture or otherwise; or
Appears in 1 contract
Samples: Employment Agreement (Obagi Medical Products, Inc.)
Confidentiality; Non-Competition. At any time following execution of this agreement(a) As used herein, you agree not to use or disclosethe term Confidential Information shall mean and include the Company's Business, directly or indirectlymarketing activities and strategies, for any reasoncustomers, whatsoever or in any way any confidential information or trade secrets of Companyproduct development plans, includingsupplier and vendor information, but not limited toforecasts, strategies and financial plans, know-how, information with respect to Company as follows: the identitytechniques and data, listsdatabases, and/or descriptions trade secrets, names and expertise of any customers of Company; financial statementsemployees and consultants, cost reports, and other financial information; product or service pricing information; contract proposals and bidding information; processes, policies and procedures developed as part of a confidential business plan; and management systems and procedures, including manuals and supplements thereto, other than (i) at the direction of Company during the course of your employment (ii) after receipt of the prior written consent of Company, (iii) as required by any court or governmental regulatory agency having competent jurisdiction over Company, or (iv) information made public by Company. You agree that all copyrights, trademarks, tradenames, service marks, inventionsproprietary data, processes and other intangible or intellectual property rights technology.
(b) Contractor agrees that may be invented, conceived, developed or enhanced by you while you are employed by the Company that relate to the Company's business, or that result from any work performed by you for the Company, shall be the sole property he will keep confidential all of the CompanyConfidential Information provided to him, regardless of form, and you hereby assign to the Company any right or interest that you may otherwise have in respect thereof. Upon the reasonable request of the Company, you shall execute, acknowledge, deliver and file any instrument or document necessary or appropriate to give effect to this provision and do all other acts and things necessary to enable the Company to exploit the same or to obtain patents or similar protection with respect thereto. You agree that the covenants set forth in this paragraph shall accrue to the benefit of Company, irrespective of the reason for termination of the other provisions of this agreement and the corresponding employment relationship created hereby. You agree that while you are employed by the Company and for a period of three years thereafter, you will not, without the express prior written consent of the Company's Board , disclose, reveal, or communicate all or any portion of the Confidential Information to any other person, other than to persons (including officers, Directors:, employees, affiliates, and subcontractors) who shall assist Contractor in his providing services to the Company. Contractor shall inform each of such persons of the existence of the confidentiality provisions of this Agreement and prior to disclosure of any Confidential Information to them shall secure their written agreement (substantially in the form of the confidentiality provisions of this Agreement) to adhere to the terms thereof. Contractor shall advise the Company of the names and addresses of all persons to whom he has provided Confidential Information, the nature of the Confidential Information provided and a copy of the written agreement entered into with such person.
a. Whether for compensation or otherwise(c) Contractor agrees that he will not at any time use, directly or indirectly engage indirectly, in any manner or for any purpose, other than in connection with providing services to the Company's business, Confidential Information in any activities now or hereafter conducted by Contractor.
(d) Contractor further agrees: (i) not to at any part thereoftime utilize the Confidential Information, or assist any other person in such person's conduct without the express prior written consent of the Company's , in an effort to solicit any customer, subscriber or advertiser, for any business, information, opinions or otherwise or solicit the employment of any part employee of the Company or of any of its subsidiaries or affiliates through which it may conduct its activities, and (ii) to promptly return any Confidential Information (including all copies of such Confidential Information, none of which shall be retained by Contractor) to the Company following termination of this Agreement with the Company to provide consulting services to the Company. Alternatively, upon the request of the Company, Contractor shall certify that he has permanently deleted from his electronic storage media or is otherwise unable to access all Confidential Information (without retaining copies thereof) and shall provide similar certificates from any person to whom he has provided Confidential Information with the consent of the Company.
(e) Contractor and each person to whom Contractor discloses any Confidential Information recognizes that money damages would not be a sufficient and total remedy in the event of breach of this Agreement. The Company shall be entitled to injunctive relief and to specific performance, whether in addition to all other equitable remedies, damages, and all other rights and remedies provided by law in the event that Contractor violates this Agreement. Contractor shall pay all expenses incurred by the Company in enforcing this Agreement or seeking damages or other relief for a breach or threatened breach of this Agreement.
(f) The waiver by any party hereto of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by any party. No course of conduct by any party hereto shall be deemed an amendment of this Agreement.
(g) Contractor agrees to comply with the following restrictions during the term of this Agreement and for a period of 18 months after the expiration of the Term.
(A) Contractor will not, either individually or in conjunction with any person, as principal, agent, director, officer, employee, consultant, adviser, independent contractor or otherwise;
b. Hold a legal or beneficial interest in any person which is engaged in the Company's business or any part thereof, whether such interest is as an owner, investor, partner, creditor (other than as a trade creditor in the ordinary course of business), joint venture or otherwise;
c. Solicit, divert or attempt to divert from the Company or any person deriving title to the goodwill of the Company (a "Transferee") any business constituting, or any customer of, any part of the Company's business then conducted by the Company or such Transferee; or
d. Induce or attempt to induce any person then, or during the immediately preceding six (6) month period, engaged or employed (whether part-time or full-time) by the Company or any Transferee, whether as an officer, employee, consultant, salesman, adviser or independent contractor to leave the employ of the Company or such Transferee, as the case may be, or to cease providing the services to the Company or such Transferee, as the case may be, then provided by such person, investor or in any other manner seek to whatsoever, directly or indirectly, engage in or employ become financially interested in any person engaged in activities in competition with the Business anywhere in the world (a "Competitive Business"). The foregoing will not prevent Contractor from holding:
(i) any class of publicly held shares of a company, partnership or other organization provided that Contractor, alone or in conjunction with any other affiliated person, will not directly or indirectly hold more than 5% of the shares of any such person class; nor
(whether ii) any common shares of the Company. Contractor acknowledges that the Business is Internet based and that a Competitive Business may be based anywhere in the world. Contractor therefore agrees that its covenant contained in this paragraph is appropriate in the circumstances;
(B) Contractor will not, either directly or not for compensationindirectly, on his own behalf or on behalf of others, solicit, divert or appropriate or attempt to solicit, divert or appropriate to any Competitive Business, any Business or actively sought prospective Business of the Company or any customers with whom the Company has current agreements relating to the Business of or with whom Contractor has dealt, or with whom Contractor has supervised negotiations or business relations, or about whom Contractor has acquired Confidential Information in the course of its employment;
(C) as an officerContractor will not, employee consultanteither directly or indirectly, adviser on his own behalf or on behalf of others, solicit, divert or hire away, or attempt to solicit, divert, or hire away, any independent contractor such that such or any person would thereafter be unable to devote his or her full business time and attention to the business then conducted employed by the Company or persuade or attempt to persuade any such Transfereeindividual to terminate his or her contract or employment with the Company.
(D) Upon termination of this Agreement, as in addition to the case may be. You hereby specifically acknowledge Contractor's obligations under paragraph 5(d) above, Contractor will immediately return to the Company all Company property in his possession, including all written information, tapes, discs or memory devices and agree that the restrictions contained in this paragraph are reasonable and necessary to protect the business and prospective business of Companycopies thereof, and that the enforcement of the provisions of this paragraph will not work an undue hardship on you. However, in the event your employment is terminated by the Company without cause, you shall be permitted to do the following as of the first anniversary of the date of such termination:
a. Whether for compensation or otherwise, directly or indirectly engage in the Company's business, or any part thereof, or assist any other person material on any medium in such person's conduct his possession or control pertaining to the Business of the Company's business, without retaining any copies or records of any part thereofConfidential Information whatsoever. Contractor will immediately return any keys, whether as a directorpass cards, officer, employee consultant, adviser, independent contractor identification cards or otherwise; or
b. Hold a legal or beneficial interest in any person which is engaged in other property belonging to the Company's business or any part thereof, whether such interest is as an owner, investor, partner, creditor (other than as a trade creditor in the ordinary course of business), joint venture or otherwise; or.
Appears in 1 contract
Confidentiality; Non-Competition. At (a) The Employee shall treat as confidential any time following execution proprietary, confidential or non-public information relating to the business or interests of this agreement, you agree not to use the Company or disclose, directly or indirectly, for any reason, whatsoever or in any way any confidential information or trade secrets affiliate of the Company, including, but without limitation, business plans or technical projects of the Company or any affiliate, and any research datum or result, invention, customer list, process or other work product developed by or for the Company or any affiliate, whether on the premises of the Company or elsewhere ("Confidential Information"). The Employee shall not limited todisclose, utilize or make accessible in any manner or in any form any Confidential Information other than in connection with performing the services required of the Employee under this Agreement, without the prior consent of the Company. Notwithstanding the foregoing, the provisions of this Section 5(a) shall not apply to any Confidential Information which is, or at some later date becomes, publicly known under circumstances not involving a breach of any confidentiality agreement with the Company or which is required to be disclosed pursuant to order or requirement of a court, administrative agency or other governmental body, provided that the Company has been given appropriate notice of such proceeding and an opportunity to contest such disclosure.
(b) All business and technical records, information with respect relating to Company as follows: the identity, lists, and/or descriptions of any customers of Company; financial statements, cost reports, and other financial information; product or service pricing information; contract proposals and bidding information; processes, policies and procedures developed as part of a confidential business plan; and management systems and procedures, including manuals and supplements thereto, other than (i) at the direction of Company during the course of your employment (ii) after receipt of the prior written consent of CompanyCompany and its affiliates, (iii) as required by any court or governmental regulatory agency having competent jurisdiction over Companypapers, documents, correspondence, or studies containing information relating to the Company and its affiliates, in all cases irrespective of the manner in which such information is kept or stored (iv) information "business records"), made public by Company. You agree that all copyrights, trademarks, tradenames, service marks, inventions, processes and other intangible or intellectual property rights that may be invented, conceived, developed or enhanced by you while you are employed kept by the Company that relate to Employee or under the CompanyEmployee's business, possession or that result from any work performed by you for the Company, control shall be and remain the sole property of the Company, and you hereby assign shall be surrendered to the Company any right or interest that you may otherwise have in respect thereofupon the termination of the Employee's employment. Upon such termination, the reasonable request Employee shall not take with him, publish, or disclose, or otherwise use, without the consent of the president or chief executive officer of the Company, you shall executeany business records.
(c) The Employee agrees that, acknowledge, deliver and file any instrument or document necessary or appropriate to give effect to this provision and do all other acts and things necessary to enable during the period of the Employee's employment with the Company to exploit the same or to obtain patents or similar protection with respect thereto. You agree that the covenants set forth in this paragraph shall accrue to the benefit of Company, irrespective of the reason for termination of the other provisions of this agreement and the corresponding employment relationship created hereby. You agree that while you are employed by the Company any affiliate thereof and for a period of three years thereafterONE year following the date upon which such employment shall terminate, you will the Employee shall not, without the prior written consent of the Company's Board of Directors:
a. Whether for compensation or otherwise, directly or indirectly engage in the Company's business, or any part thereof, or assist any other person in such person's conduct of the Company's business, or any part thereof, whether as a director, officer, employee, consultant, adviser, independent contractor or otherwise;
b. Hold a legal or beneficial interest in any person which is engaged in the Company's business or any part thereofcapacity, whether such interest is as an owner, investor, partner, creditor (other than as a trade creditor in the ordinary course of business), joint venture or otherwise;
c. Solicit, divert compete or attempt to divert from compete with any business of the Company which existed at any time during the Employee's employment with the Company, or which was being developed by the Company; and the Employee acknowledges that a portion of the payments being made to the Employee hereunder are being made, in part, as consideration for such non-competition agreement. The Employee represents and agrees that, in the event of the termination of the Employee's employment with the Company or any person deriving title to affiliate thereof, the goodwill of the Company (a "Transferee") any business constituting, or any customer of, any part of the CompanyEmployee's business then conducted by the Company or such Transferee; or
d. Induce or attempt to induce any person then, or during the immediately preceding six (6) month period, engaged or employed (whether part-time or full-time) by the Company or any Transferee, whether as an officer, employee, consultant, salesman, adviser or independent contractor to leave the employ of the Company or such Transferee, as the case may be, or to cease providing the services to the Company or such Transferee, as the case may be, then provided by such person, or in any other manner seek to engage or employ any such person (whether or not for compensation) as an officer, employee consultant, adviser or independent contractor experiences and capabilities are such that such person would thereafter the Employee should be unable able to devote his or her full business time and attention to the business then conducted by the Company or such Transferee, as the case may be. You hereby specifically acknowledge and agree that the restrictions contained in this paragraph are reasonable and necessary to protect the business and prospective business of Companyobtain suitable employment, and that the enforcement of the provisions a remedy by way of this paragraph injunction will not work an undue hardship on youprevent the Employee from earning a livelihood. However, The Employee further acknowledges that the covenants contained in this Section 5(c) are necessary for the event your employment is terminated by the Company without cause, you shall be permitted to do the following as of the first anniversary of the date of such termination:
a. Whether for compensation or otherwise, directly or indirectly engage in the Company's business, or any part thereof, or assist any other person in such person's conduct protection of the Company's businesslegitimate business interests and are reasonable in scope and content.
(d) The provisions of this Section 5 on the part of the Employee shall be construed as an agreement independent of any other provision contained in this Agreement and shall be enforceable in both law and equity, including by temporary or permanent restraining order, notwithstanding the existence of any claim or cause of action of the Employee against the Company or any affiliate of the Company, whether predicated on this Section 5 or otherwise.
(e) The Employee agrees that all processes, technologies and inventions, including new contributions, improvements, ideas or discoveries, whether patentable or not, conceived, developed, invented or made by or under the supervision of the Employee (collectively, "Inventions" ) during the period of the Employee's employment by the Company, shall belong to the Company, provided that the Inventions grow out of the Employee's work with the Company or are related in any manner to any business (commercial or experimental) of the Company. The Employee agrees that the Employee shall promptly (i) disclose all Inventions to the Company, (ii) assign to the Company, without additional compensation, all patents and other rights to all Inventions for the United States and all foreign countries, (iii) sign all papers necessary to carry out the above, and (iv) give testimony (but without expense to the Employee) in support of the Employee's inventorship. In the event that any Invention which grew out of the Employee's work with the Company, or any part thereof, whether as a director, officer, employee consultant, adviser, independent contractor or otherwise; or
b. Hold a legal or beneficial interest is related in any person manner to any business or prospective business of the Company, is described in a patent application or is disclosed to third parties by the Employee, directly or indirectly, within one year after leaving the employ of the Company, it is to be presumed (which presumption the Employee shall have the right to rebut) that the Invention was conceived or made during the period of the Employee's employment by the Company. The Employee agrees that the Company shall be entitled to shop rights with respect to any Invention conceived or made by the Employee during the period of the Employee's employment by the Company that is engaged not related in any manner to any business (commercial or experimental) of the Company but which was conceived or made on the Company's business time or any part thereof, whether such interest is with the use of the Company's facilities or materials. Attached as an ownerexhibit to this Agreement is a complete list of the Inventions, investor, partner, creditor patented or unpatented (other than as including a trade creditor in the ordinary course of businessbrief description thereof), joint venture if any, which the Employee conceived or otherwise; ormade prior to the Employee's employment by the Company, and which the Employee desires to exclude from this Agreement. There is no other contract to assign Inventions that is now in existence between the Employee and any other person, firm or corporation, unless indicated on the exhibit, if any, attached to this Agreement, and unless a copy of any such other contract is attached to such exhibit.
Appears in 1 contract
Samples: Employment Agreement (C-Phone Corp)
