Exhibit 10.3
NON-COMPETITION, CONFIDENTIALITY AND
INVENTIONS AGREEMENT
THIS AGREEMENT, made as of May 17, 2000 by and between Big
Technologies, Inc., a Delaware corporation (the "Company"), and ________________
("Employee").
W I T N E S S E T H T H A T:
WHEREAS, the Company is engaged in the business of providing Web
development and other consulting services to clients;
WHEREAS, the Company's business depends upon the continued
confidentiality of its proprietary information, including, without limitation,
its trade secrets, know-how and other technology and intellectual property
relating to the services it provides and the details of its business
relationships with customers, suppliers and other third parties, and all other
non-public information;
WHEREAS, Employee will be employed by the Company in a capacity in
which Employee will become familiar with the Company's proprietary and
confidential information and the Company is willing to initiate the employment
only if Employee assents to the terms hereof; and
WHEREAS, Employee desires to be employed by the Company and to receive
all of the benefits appurtenant to such employment,
NOW, THEREFORE, in consideration of the mutual covenants and promises
hereinafter set forth and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Company and Employee
hereby agree as follows:
1. Non-Competition. During Employee's employment by the Company and for
a period of 1 year following the termination of Employee's employment with the
Company for any reason, whether such termination is voluntary or involuntary,
with or without cause, Employee will not directly or indirectly, either as
principal, agent, employee, consultant, officer, director, stockholder, lender
or in any other capacity:
(a) engage in or have a financial interest in any business which is
competitive with the business of the Company; provided, however, that nothing
contained herein shall preclude the Employee from purchasing or owning less than
five percent (5%) of the stock or other securities of any company with
publicly-held securities; or
(b) contact or solicit any employee, consultant, independent
contractor, or agent of the Company with the intention or effect of encouraging
such party to terminate his or her employment, agency or other relationship, as
applicable, with the Company; or
(c) contact or otherwise solicit, accept business from, or compete for
existing or prospective customers or suppliers, licensors or licensees,
franchisors or franchisees of the Company with the intention or effect of
encouraging such party to
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terminate or reduce the volume of its business with the Company or to place any
portion of its business elsewhere.
For the purposes hereof, a business will be deemed competitive with the
business of the Company or in competition with the Company if it is carried on
anywhere in the United States and Canada or other parts of North America and if
it involves the performing of services and/or the production, manufacture,
distribution, sale or development of any product similar to services performed
or products produced, manufactured, distributed, sold or developed or being
developed by the Company relating to the development of Web sites or
applications accessible over the Internet for local and state governments or for
not-for-profit entities (the "Work Scope") and/or the licensing of any process
or technology similar to those utilized, developed or being developed by the
Company during the period in which Employee is employed or otherwise affiliated
with the Company. Determination of whether services are within the Work Scope
shall be solely within the reasonable discretion of the Company's Board of
Directors, whose decisions will be final and binding, absent a non-appealable
final order by a court with jurisdiction that such Board of Directors acted
unreasonably.
Employee acknowledges and agrees that strict enforcement of the terms
of this Agreement is necessary for the purpose of ensuring the preservation,
protection and continuity of the business, trade secrets and goodwill of the
Company and that, in furtherance of such purpose, the prohibition against
competition imposed by this Section 1 is narrow, reasonable and fair. If any
part of this Section 1 should be determined by a court of competent jurisdiction
to be unreasonable in duration, geographic area, or scope, then this Agreement
is intended to and shall extend only for such period of time, in such area
and/or with respect to such activities as are determined to be reasonable by
such court.
2. Confidential Information.
(a) During the term of Employee's employment by the Company, or at any
time following the termination of Employee's employment by the Company, for any
or no reason, whether voluntary or involuntary, with or without cause, Employee
will not, without the express prior written consent of the Company, disclose to
others, use or publish (other than as may be required by Employee's duties while
employed by the Company in the ordinary course of the Company's business) any
proprietary, secret or confidential information of the Company ("Company
Information"), which for the purposes hereof shall include, without limitation,
information designated by the Company as "proprietary," "secret," or
"confidential" (or otherwise similarly designated) or information which is not
generally known to those outside of the Company detailing, listing, describing
or otherwise relating to:
(i) the business, conduct or operations of the Company or any
of the Company's customers, licensors, licensees, suppliers, consultants or
employees; or
(ii) any materials, devices, processes, methods, ways of
business, programs, and/or formulae, technology, research, development, lists
naming the parties in the categories described in Section 2(a)(i) hereof and the
like, used in organizing, promoting, conducting, managing or exploiting the
Company's products or services; or
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(iii) the existence or betterment of, or possible new uses or
applications for, any of the Company's products or services. The obligations of
confidentiality set forth in this Section 2 extend to any proprietary
information of any third parties contracting with the Company whether or not the
Company has undertaken an express obligation of confidentiality with regard to
such persons.
(b) Upon the termination of Employee's employment by the Company,
Employee agrees that Employee will not take from (nor keep copies or duplicates
of), but will promptly return to the Company, any drawings, notes, plans, lists,
computer programs or files, blueprints, letters, writings or any other documents
whatsoever or reproductions thereof recording, reflecting or embodying any
Company Information.
(c) Employee acknowledges that the Company is now and may hereafter be
subject to non-disclosure or confidentiality agreements with third persons or
entities pursuant to which the Company must protect or refrain from use of
proprietary information which is the property of such third persons. Employee
hereby agrees upon the direction of the Company to be bound by the terms of such
agreements in the event Employee has access to the proprietary information
protected thereunder to the same extent as if Employee was an original
individual signatory thereto.
(d) Notwithstanding the foregoing, the term Company Information shall
not apply to information (u) Employee is compelled pursuant to an order of a
court or other body having jurisdiction over such matter to do so (in which case
the Company shall be given prompt written notice of such intention to divulge
not less that five (5) days prior to such disclosure or such shorter period as
the circumstances may reasonably permit), (v) which the Company or an Affiliate
has voluntarily disclosed to the public without restriction, (w) which has
otherwise lawfully entered the public domain, (x) which the Company or an
Affiliate has permitted Employee to disclose by its prior written consent; or
(y) which Employee may disclose at a forum, workshop or round table conference
with the prior knowledge and consent of the Company.
3. Rights to Intellectual Property.
(a) Any and all inventions, processes, procedures, systems,
discoveries, designs, configurations, technology, works of authorship (including
but not limited to computer programs), trade secrets and improvements (whether
or not patentable and whether or not they are made, conceived or reduced to
practice during working hours or using the Company's data or facilities)
(collectively, the "Inventions") which Employee makes, conceives, reduces to
practice, or otherwise acquires during the term of this Agreement (either solely
or jointly with others), and which are related to the Company's present or
planned business, services or products, shall be the sole property of the
Company and shall at all times and for all purposes be regarded as acquired and
held by Employee in a fiduciary capacity for the sole benefit of the Company.
All Inventions that consist of works of authorship capable of protection under
copyright laws shall be prepared by Employee as "works made for hire", with the
understanding that the Company shall own all of the exclusive rights to such
works of authorship under the United States copyright law and all international
copyright conventions and foreign laws. Employee hereby assigns to the Company,
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without further compensation, all such Inventions and any and all patents,
copyrights, trademarks, trade names or applications therefor, in the United
States and elsewhere, relating thereto. Employee shall promptly disclose to the
Company and to no other party all such Inventions and shall assist the Company
for its own benefit in obtaining and enforcing patents and copyright
registrations on such Inventions in all countries. Upon request, Employee shall
execute all applications, assignments, instruments and papers and perform all
acts (such as the giving of testimony in interference proceedings and
infringement suits or other litigation) necessary or desired by the Company to
enable the Company and its successors, assigns and nominees to secure and enjoy
the full benefits and advantages of such Inventions.
(b) In the event the Company is unable, after reasonable effort, to
secure Employee's signature on any document or instrument necessary to secure
trademarks, letters patent, copyrights or other analogous protection relating to
an Invention, whether because of Employee's physical or mental incapacity or for
any other reason whatsoever, Employee hereby irrevocably designates and appoints
the Company and its duly authorized officers and agents as Employee's agent and
attorney-in-fact, to act for and in Employee's behalf and stead to execute and
file any such application or applications and to do all other lawfully permitted
acts to further the prosecution and issuance of trademarks, letters patent,
copyright or other analogous protection thereon with the same legal force and
effect as if executed by Employee.
4. No Conflicting Obligation. Employee hereby represents and warrants
to the Company that Employee (i) is not presently under and will not hereafter
become subject to any obligation to any person which is inconsistent or in
conflict with this Agreement or which would prevent, limit or impair in any way
Employee's performance of Employee's obligations hereunder and (ii) has not
disclosed and will not disclose to the Company, nor use for the Company's
benefit, any confidential information or trade secrets of any prior employer or
principal, unless and until such confidential information and trade secrets have
become public knowledge without Employee's participation, or unless such
disclosure is expressly permitted by any agreement with such prior employer or
principal.
5. Governing Law; Severability. This Agreement and the rights and
obligations of the parties hereunder shall be governed by and construed
according to the laws of the State of New York without giving effect to choice
or conflict of law provisions. If any term or provision of this Agreement, or
the application thereof to any person or circumstance, shall, for any reason and
to any extent, be declared invalid or unenforceable by a court of competent
jurisdiction, the remainder of this Agreement and the application of such
provisions to other persons or circumstances shall not be affected thereby, but
rather shall be enforced to the fullest extent permitted by law.
6. Injunctive Relief. Employee hereby expressly acknowledges and agrees
that any breach or threatened breach of any of the terms set forth in Sections
1, 2 or 3 of this Agreement may result in significant and irreparable damage to
the Company. Therefore, Employee hereby agrees that the Company shall be
entitled, in addition to any other remedies available at law, to injunctive or
other equitable relief by a court of appropriate jurisdiction in the event of
any breach or threatened breach of the terms
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of Sections 1, 2 or 3 of this Agreement. If any such action is brought by the
Company to enforce, or seek damages for the violation of, the provisions of this
Agreement, and the Company prevails in such action, Employee shall be obligated
to pay to the Company all costs and expenses, including actual attorneys' fees,
incurred therein by the Company, and such costs, expenses and attorneys' fees
shall be included in and as a part of such judgment or award; and the
determination by the judge in such action shall be conclusive on the matter of
whether the Company prevailed for purposes hereof.
7. Amendments; Waiver; Counterparts. No amendment or alteration of the
terms of this Agreement shall be valid or binding unless made in a writing
signed by each of the parties to this Agreement specifically referring to this
Agreement. No failure or delay in the exercise of any power, right or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power, right or privilege preclude any other or further
exercise thereof. This Agreement may be executed in one or more counterparts and
by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all of which together
shall constitute one and the same instrument.
8. Entire Agreement; Binding Effect. This Agreement contains the entire
agreement of the parties hereto with respect to the subject matter hereof and
shall be binding upon and inure to the benefit of the Company and any affiliate
thereof and Employee and their respective successors and assigns and legal
representatives.
9. Advice of Counsel. Employee acknowledges that Employee has been
advised by the Company to review the terms of this Agreement with legal counsel
of Employee's choice and that he/she has been given reasonable opportunity to
seek such legal advice. The parties hereto acknowledge and agree that: (i) each
party and their counsel have (or had the opportunity to have) reviewed and
negotiated the terms and provisions of this Agreement and have contributed to
its revision; (ii) the rule of construction to the effect that any ambiguities
are resolved against the drafting party shall not be employed in the
interpretation of this Agreement; and (iii) the terms and provisions of this
Agreement shall be construed fairly as to all parties hereto and not in favor of
or against any party, regardless of which party was generally responsible for
the preparation of this Agreement.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed under seal by its duly authorized representative and Employee has
executed this Agreement under seal on the date first above written.
BIG TECHNOLOGIES, INC.
By:____________________________________
Its:____________________________________
ACKNOWLEDGED AND CONSENTED TO:
________________________________
[Employee]
