EXHIBIT 10.1
PROGINET CORPORATION
CONFIDENTIAL INFORMATION AND NON-COMPETITION AGREEMENT
FOR CONSULTANTS
THIS AGREEMENT is made and entered into this _____ day of _______________, ____,
by and between PROGINET CORPORATION., a Delaware corporation ("PROGINET") and
____________________, residing at
________________________________________________ ("Consultant").
BACKGROUND
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PROGINET is in the business of conceiving, acquiring, developing,
commercializing, marketing, and selling and/or licensing computer software
programs and providing services to facilitate and enhance the use of such
programs by its customers.
As a consultant of PROGINET, PROGINET will disclose to Consultant considerable
confidential, proprietary, and trade secret information relating to the
developments, products, markets, and customers of PROGINET, all of which were
obtained at great effort and expense to PROGINET;
PROGINET will provide information to the Consultant relating to the products,
markets, and customers of PROGINET. Such information will include the disclosure
to the Consultant of confidential, proprietary, and trade secret information of
PROGINET and its customers, and suppliers and will make the Consultant extremely
valuable to competitors of PROGINET; and
As a condition of Consultant's acceptance of assignment with PROGINET,
Consultant agrees to the non-competition and confidentiality covenants contained
herein, and recognizes that such covenants are essential to PROGINET's
legitimate business interests.
NOW, THEREFORE, with the intent to be legally bound hereby, the parties agree as
follows:
1. PROTECTION OF CONFIDENTIAL INFORMATION; RESTRICTIONS ON ACTIVITIES.
A. Consultant recognizes and acknowledges that he or she will
perform unique services for PROGINET as assigned from time to
time by PROGINET. While performing such services, PROGINET
will provide Consultant with, or Consultant will have access
to confidential, proprietary, and trade secret information of
PROGINET, all of which were obtained by PROGINET at great
effort and expense. Such information must be maintained in
confidence by Consultant to protect PROGINET's and its
customers and suppliers legitimate interests in its
investments and its business. Consultant acknowledges that
these restrictions are required for the reasonable protection
of PROGINET, and for PROGINET's reliance on the confidence in
Consultant.
B. Consultant recognizes and acknowledges that the confidential,
proprietary, and trade secret information of PROGINET,
including (without limitation) information regarding PROGINET
inventions, discoveries, acquisitions, product designs,
product improvements, product flow charts, file layouts,
formulas, equipment, marketing and business plans, methods,
research, source codes, object codes, program documentation
and related user information manuals, as well as its
confidential customer information, including customer lists
and pricing policies (hereinafter referred to as "Confidential
Information"), are valuable, special, and unique assets which
are owned by PROGINET, and, along with confidential,
proprietary, and trade secret information disclosed by third
parties to PROGINET, are regularly used in the business of
PROGINET. Consultant will not (except with PROGINET's prior
written consent), while providing services to PROGINET or
thereafter, directly or indirectly, disclose or
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allow the disclosure of any Confidential Information to any
person, firm, corporation, association, government (except as
required by law), or other entity for any reason or purpose
whatsoever, nor shall Consultant, directly or indirectly, make
use of any such Confidential Information for his or her own
purposes or for the benefit of any person, firm, corporation,
association, or other entity (except PROGINET) under any
circumstances. During the term of his or her assignment,
Consultant shall, at the request of PROGINET, execute such
assignments, certificates, or other instruments as PROGINET
may from time to time deem necessary or desirable to evidence,
maintain, perfect, protect, enforce, or defend its rights,
title and interests in or to any such Confidential
Information.
C. Consultant agrees that all software developed and all
Confidential Information relating to PROGINET's business that
Consultant shall use or prepare or come into contact with
shall remain the sole and exclusive property of PROGINET.
Consultant further agrees to deliver such property to PROGINET
immediately at the earlier of the termination of his or her
assignment by PROGINET or at the request of PROGINET.
2. NON-COMPETITION BY CONSULTANT.
During the term of Consultant's assignment with PROGINET,
Consultant shall not, directly or indirectly, either as an
consultant, employer, consultant, agent, principal, partner,
stockholder (of more than one percent (1%) of the outstanding
capital stock), corporate officer, director, or in any other
individual or representative capacity, engage or participate
in any business that is in competition, in any manner
whatsoever, with the business of PROGINET.
3. RESTRICTIONS ON POST-ASSIGNMENT ACTIVITIES.
A. Consultant recognizes that the limited protection afforded to
PROGINET by the covenants contained in this Section 3 are
based upon the following:
(1) PROGINET has expended and will continue to expend
substantial time, money, and effort in developing and
acquiring (i) computer software programs and related
user information manuals and the expertise to produce
such in which the designs, source and object codes,
manuals, and specifications are valuable trade
secrets, and (ii) a valuable list of customers and
information about their technical problems and needs,
computer software purchasing and licensing habits,
idiosyncrasies, and internal computer software
purchasing and licensing procedures which are also
trade secrets of PROGINET, and (iii) goodwill with
its customers and in the computer products industry
and business community in general;
(2) Consultant will, in the course of his or her
assignment, be personally entrusted with and/or
exposed to Confidential Information;
(3) PROGINET, during the term of this Agreement and after
its termination, will be engaged on a worldwide basis
in the highly competitive computer software program
industry and computer software program services
industry in which many firms, including PROGINET,
compete;
(4) PROGINET will further develop its substantial,
worldwide computer software business through the
development and acquisition of certain patents,
copyrights, technology, and associated trade secrets
and know-how, relating to computer software programs;
(5) Consultant could become a competitor of PROGINET
after having access to PROGINET's training and
experience, financial records, contracts, patents,
copyrights, computer software technology, and
Confidential Information;
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(6) PROGINET may suffer great loss and irreparable harm
if Consultant's assignment with PROGINET is
terminated and thereafter he or she entered, directly
or indirectly, into competition with PROGINET.
B. In consideration of both the payments and benefits provided to
Consultant as a consultant of PROGINET and under this
Agreement, as well as the wide access PROGINET will grant to
Consultant to review and become familiar with the Confidential
Information, Consultant agrees that during and for a period of
three (3) years after termination of his or her assignment, no
matter what the cause of that termination, he or she shall not
for any reason, directly or indirectly, whether as an
employee, consultant, partner, proprietor or investor, for
himself or on behalf of, or in conjunction with any person,
partnership, or corporation do any one or more of the
following:
(1) Install or base any proprietary software of proginet
nor engage in the marketing, solicitation, licensing,
or selling of any product or service which performs
functions the same as, similar to, or directly
competitive with, those being marketed, licensed, or
sold by PROGINET at the time of such termination to
any customer of PROGINET during the three (3) year
period prior to Consultant's termination of
assignment, without Proginets written consent.
(2) Use any Confidential Information that was acquired by
Consultant as an consultant of PROGINET (i) in order
to acquire a competitive advantage, or (ii) in any
manner such that it would have a detrimental effect
upon PROGINET's business.
(3) Engage in any activity for the purpose of inducing,
encouraging, offering, or arranging for the
assignment or engagement by anyone other than
PROGINET of any consultant, officer, director, agent,
consultant, or sales representative of PROGINET or
attempt to engage any of them in a manner which would
deprive PROGINET of their services or place them in a
conflict of interest with PROGINET.
C. PROGINET and Consultant agree that Consultant may continue to
provide his or her services to other third parties without
interruption, after his or her termination from PROGINET
without limitation except that he or she shall not disclose
information as provided for herein, nor directly or indirectly
compete with PROGINET as provided for herein. However the
parties agree that the Consultant shall be free to provide his
or her services to the companies listed on Schedule I, if any
which shall not be deemed competition with PROGINET, if said
Schedule I is signed at this time by a duly authorized officer
of PROGINET.
D. PROGINET and Consultant agree that the covenants set forth in
this Agreement shall accrue to the benefit of PROGINET,
irrespective of any reason for termination of Consultant's
assignment, or Consultant's performance as an consultant of
PROGINET and that termination of this Agreement for any reason
shall not terminate Consultant's obligations hereunder.
E. The parties acknowledge that they have attempted to limit
Consultant's activities only to the extent necessary to
protect PROGINET's legitimate interests. Consequently, the
parties hereby agree that, if the scope or enforceability of
the covenants contained in this Agreement are in any way
disputed at any time, a court or other trier of fact may
modify and enforce the covenants to the extent that it
believes to be reasonable under the circumstances existing at
that time.
4. DISCLOSURE OF INFORMATION TO PROGINET.
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A. Consultant further agrees that he or she shall not (i)
disclose to PROGINET or its consultants or otherwise use in
connection with Consultant's assignment with PROGINET, any
confidential information obtained by Consultant from
Consultant's prior employers or other persons for whom
Consultant was a consultant or (ii) in any other manner breach
their terms of any such agreement or understanding with any
such prior employer or other person.
B. Consultant agrees that all technology, proposes
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5. FEDERAL REGULATIONS.
Consultant shall comply with United States Government regulations
applicable to contracts between the agencies of the United States
Government (or their contractors) and PROGINET which relate either to
patent rights or to the safeguarding of information pertaining to the
defense of the United States.
6. NOTICE TO SUBSEQUENT EMPLOYERS.
Consultant agrees that upon termination of his or her assignment, no
matter what the cause of that termination, he or she will notify any
new employer, partner, associate, or any other person, firm or
corporation with whom Consultant becomes associated in any business
capacity whatsoever, of the provisions of this Agreement, and PROGINET
may give similar notice thereof.
7. NOTICE OF PREVIOUS AGREEMENTS.
Consultant confirms that he/she is not a party to or otherwise bound by
any other agreement restricting the use of information, confidential or
otherwise, in the possession of Consultant or relating to the transfer
of any invention to any person or entity other than PROGINET.
8. NOTICE.
Any notice required under this Agreement shall be given in writing.
Notice to the Consultant shall be (i) delivered in person to
Consultant, or (ii) sent by a recognized air courier to Consultant's
residence as reflected on the records of PROGINET. Notice to PROGINET
shall be sent by a recognized air courier to PROGINET's principal
office.
9. INJUNCTIVE RELIEF.
Consultant acknowledges and agrees that it would be difficult and may
be impossible to fully compensate PROGINET for damages resulting from
the breach or threatened breach of the provisions of this Agreement,
and accordingly agrees that PROGINET shall be entitled to temporary and
injunctive relief, including temporary restraining orders, preliminary
injunctions, and permanent injunctions to enforce such provisions in
any actions or proceedings instituted in any court of competent
jurisdiction. This provision with respect to injunctive relief shall
not, however, diminish PROGINET's right to claim and recover damages.
10. DEFENSES.
The existence of any claim or cause of action by Consultant against
PROGINET, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by PROGINET of the covenants
made by Consultant herein.
11. WAIVER.
The failure of PROGINET to object to any conduct in violation of any of
the covenants made by Consultant herein shall not be deemed a waiver by
PROGINET, but PROGINET may, if it wishes, specifically waive any part
or all of those covenants to the extent that such waiver is set forth
in writing duly authorized by an officer of PROGINET.
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12. GOVERNING LAW.
The parties agree that this Agreement shall be interpreted and enforced
in accordance with the laws of the State of New York, exclusive of its
provisions relating to conflicts of laws. In addition, the Consultant
and PROGINET hereby submit to the jurisdiction of the federal and/or
state courts, as the case may be, sitting in Nassau County, New York,
in connection with any action arising from or relating to the
enforcement, interpretation or application of the terms of this
Agreement.
13. ASSIGNMENT.
The parties agree that PROGINET may assign Consultant to render
services to a subsidiary or any other related company and in all
events, the obligations contained herein with respect to Consultant
shall apply to PROGINET, its subsidiaries, and any other company in
which PROGINET shall have a majority interest. Nothing in this
Agreement shall preclude PROGINET from consolidating or merging into or
with, or transferring all or substantially all of its assets to,
another corporation which assumes this Agreement and all obligations
and undertakings of PROGINET hereunder. Upon such a consolidation,
merger, or transfer of assets and assumption, the term "PROGINET" as
used herein shall mean such other corporation and this Agreement shall
continue in full force and effect. The obligations and duties of
Consultant hereunder shall be personal and not assignable or delegable
by Consultant in any manner whatsoever.
14. SEVERABILITY.
In the event that any portion of this Agreement shall be held to be
invalid or unenforceable, it is agreed that the same shall not affect
any other portion of this Agreement, but that the remaining terms and
conditions or portions thereof shall remain in full force and effect,
and that if any aspect of the restrictive covenants of this Agreement
shall nevertheless be effective for such period of time and such areas
as may be determined to be reasonable by a Court of competent
jurisdiction.
15. FINAL AGREEMENT.
This Agreement supersedes any previous oral or written communications,
representations, understandings, or agreements between the parties
relating to the subject matter hereof.
No alterations, amendments, changes, or additions to this Agreement
shall be binding upon either party unless reduced to writing and signed
by both parties.
16. ASSIGNMENT-AT-WILL.
The Consultant should be aware that the policies and programs of
Proginet may be amended at any time, and that, depending upon the
particular circumstances of a given situation, Proginet's actions may
vary from written policy. As such, the contents of any policy,
procedures, or other documents, DO NOT CONSTITUTE THE TERMS OF A
CONTRACT OF Assignment. Nothing contained in this document should be
construed as a guarantee of continued assignment. Rather, assignment
with the Company is solely based upon the terms mutually agreed to in a
written agreement between the parties." Any written or oral statement
to the contrary by a supervisor, corporate officer or other agent of
Proginet is invalid and should not be relied upon by any consultant or
applicant for assignment.
THIS AGREEMENT IS NOT A CONTRACT FOR Assignment OF THE Consultant.
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IN WITNESS WHEREOF, the parties intending to be legally bound hereby have set
their hands and seals hereto on the day and year first above written, and
Consultant hereby acknowledges receipt of a copy of this Agreement.
WITNESS: PROGINET CORPORATION
________________________________ _______________________________________(Seal)
(Company Official)
WITNESS:
________________________________ Name:__________________________________(Seal)
(Consultant)
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SCHEDULE "A"
INVENTIONS
MADE OR CONCEIVED
PRIOR TO ASSIGNMENT
-------------------
WITNESS: PROGINET CORPORATION
________________________________ _______________________________________(Seal)
(Company Official)
WITNESS:
________________________________ Name:__________________________________(Seal)
(Consultant)
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SCHEDULE "B"
DISCLOSURE OF PREVIOUS AGREEMENTS
---------------------------------
A list and description of all obligations or agreements of the Consultant made
prior to the date of this Agreement concerning protection of confidential
information and non-competition made by the Consultant.
WITNESS: PROGINET CORPORATION
________________________________ _______________________________________(Seal)
(Company Official)
WITNESS:
________________________________ Name:__________________________________(Seal)
(Consultant)
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