EXHIBIT 10.7
BUSINESS PROTECTION AGREEMENT
In consideration of my engagement as an employee with Avanade Inc., a
Washington Corporation (the "Company"), the training, contacts and experience
that I may receive in connection with such engagement, the compensation paid to
me by the Company, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, I hereby agree in this Business
Protection Agreement (the "Agreement") as follows:
SECTION 1. DEFINITIONS
The following terms have the following specified meanings in this
Agreement:
1.1 "COMPANY PROPERTY" means all records, files, manuals, lists of clients,
forms, materials, supplies, computer programs or other software, computer
hardware, tapes, disks or other magnetic media, documents, notes, video or audio
tapes or recordings, Confidential Information and other materials furnished to
me by the Company, used on its behalf, or generated or obtained during the
course of my employment with Company.
1.2 "COMPETING BUSINESS" means any enterprise, whether commercial or
non-profit, that is or that is preparing to be in competition with any aspect of
the Company or its business or anticipated business. Without limiting the
generality of the foregoing, a Competing Business includes any business whose
commercial efforts involve (a) the provision of computer system engineering or
consulting services to design, develop, or modify enterprise or
internet/ecommerce computer systems, or (b) any products or services in
competition with product or services which are, at any time during the Term,
either (i) currently produced, marketed, or otherwise offered by the Company, or
(ii) in actual or demonstrably anticipated research or development by the
Company.
1.3 "CONFIDENTIAL INFORMATION" means any information related to the
business or other affairs of the Company or its affiliates that is not generally
available to the public, and that: (a) is conceived, compiled, developed or
discovered by me, whether solely or jointly with others, during the Term, or (b)
is or has been received or otherwise becomes known to me in connection with my
engagement. Without limiting the generality of the foregoing, Confidential
Information includes information relating to Inventions and Works, trade
secrets, products, services, finances, business plans, marketing plans, legal
affairs, suppliers, clients, potential clients, prospects, opportunities,
contracts or assets of the Company or its affiliates. Confidential Information
also includes any information which has been made available to the Company by
its clients or other third parties and which the Company is obligated to keep
confidential.
1.4 "CORPORATE CONTACTS" means any actual or prospective customers of or
investors in Company with which I have had personal contact during the Term and
with which I had no relationship prior to the Term.
1.5 "INVENTIONS AND WORKS" means any composition, work of authorship,
computer program, product, device, technique, know-how, algorithm, method,
process, procedure, improvement, discovery or invention, whether or not
patentable or copyrightable and whether or not reduced to practice, that is (a)
within the scope of the Company's business, research or investigations or
results from or is suggested by any work performed by me for the Company and (b)
created, conceived, reduced to practice, developed, discovered, invented or made
by me during the Term, whether solely or jointly with others, and whether or not
while engaged in performing work for the Company.
1.6 "MATERIAL" means any product, prototype, sample, model, document,
diskette, tape, picture, drawing, design, recording, report, proposal, paper,
note, writing or other tangible item which in whole or in part contains,
embodies or manifests, whether in printed, handwritten, coded, magnetic or other
form, any Confidential Information or Inventions and Works.
1.7 "PROPRIETARY RIGHT" means any patent, copyright, mask work, trade
secret, trademark, trade name, service xxxx or other protected intellectual
property right in any Confidential Information, Inventions and Works or
Material.
1.8 "TERM" means the period from the beginning of my engagement with the
Company, whether on a full-time, part-time or consulting basis, through the last
day of such engagement.
SECTION 2. SCOPE OF COMPANY PROTECTION
2.1 I understand that Company is a multi-national corporation that does
business all over the world. In my employment with Company, I may perform
services in more than one city, county, state or country, and may have access to
Confidential Information that pertains not only to the specific area in which I
live and/or work but also to other areas in which Company does business. I agree
that the Company protections stated in this Agreement are intended to protect
Company to the fullest extent of the law in all of the geographical areas in
which Company does business or is actively contemplating doing business.
2.2 I expressly acknowledge and agree that each of the Company protections
stated herein is intended to be as broad as may be permitted under the
provisions of applicable law. I further acknowledge and agree that if any of the
protections herein are deemed unenforceable, the unenforceability of any one or
more Company protection stated herein (or any portion thereof), shall not affect
the enforceability of any other protection (or portion thereof) stated herein.
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SECTION 3. CONFIDENTIAL INFORMATION, INVENTIONS AND WORKS, AND MATERIALS
3.1 As between the Company and me, the Company is and will be the sole
owner of all Confidential Information, Inventions and Works, Materials and
Proprietary Rights,. To the extent eligible for such treatment, all Inventions
and Works will constitute "works made for hire" under applicable copyright laws.
3.2 I hereby irrevocably assign and transfer to the Company, without any
separate compensation, all right, title and interest that I may now or hereafter
have in the Confidential Information, Inventions and Works, Materials and
Proprietary Rights, subject to the limitations set forth in the notice below.
This assignment and transfer is independent of any obligation or commitment made
to me by the Company. Further, I hereby waive any moral rights that I may have
in or to any Confidential Information, Inventions and Works, Materials and
Proprietary Rights. I will take such action (including, but not limited to, the
execution, acknowledgment, delivery and assistance in preparation of documents
or the giving of testimony) as may be requested by the Company to evidence,
transfer, vest or confirm the Company's right, title and interest in the
Confidential Information, Inventions and Works, Materials and Proprietary Rights
and the license rights described in paragraph 3.6 below. I will not contest the
validity of any Proprietary Rights.
3.3 Except as required for performance of my work for the Company or as
authorized in writing by the Company, I will not (a) use, disclose, publish or
distribute any Confidential Information, Inventions and Works or Materials or
(b) remove any Materials from the Company's premises. I will hold all Materials
in trust for the Company and I will deliver them to the Company upon request and
in any event at the end of the Term.
3.4 I will promptly disclose to the Company all Confidential Information,
Inventions and Works, and Materials, as well as any business opportunity which
comes to my attention during the Term and which relates to the business of the
Company or which arises as a result of my engagement by the Company. I will not
take advantage of or divert any such opportunity for the benefit of myself or
anyone else either during or after the Term without the prior written consent of
the Company.
3.5 I understand that Company is not employing me in order to obtain any
information which is the property of any previous companies or any other person
or entity for whom I have performed services and warrant that I am not currently
subject to any restriction which would prevent or limit me from carrying out my
duties for Company. I further warrant that any and all items, technology and
Materials of any nature developed or provided by me under this agreement and in
any way for or related to Company will be original to me and will not infringe
in any respect on the rights or property of others, and that I will not, without
the prior written approval of Company, use any equipment, supplies, facilities,
or proprietary information of any other party. I agree to indemnify Company for
all losses, claims, and expenses (including reasonable attorneys' fees and
costs) arising from my breach of these warranties.
3.6 I hereby irrevocably grant to the Company, to the full extent of my
rights in and to the same, a fully paid-up, perpetual, worldwide right and
license, with the right to sublicense, to disclose, distribute, import, make,
have made, make derivative works of, use and otherwise exploit any trade
secrets, copyrights, Confidential Information, Inventions and Works belonging to
me or any third party that I disclose to the Company or its personnel or use in
any Inventions and Works or Material.
NOTICE: Notwithstanding any other provision of this Agreement to the
contrary, this Agreement does not obligate me to assign or offer to assign to
the Company any of my rights in an invention for which no equipment, supplies,
facilities or trade secret information of the Company was used and which was
developed entirely on my own time, unless (a) the invention relates (i) directly
to the business of the Company or (ii) to the Company's actual or demonstrably
anticipated research or development, or (b) the invention results from any work
performed by me for the Company. This satisfies the written notice and other
requirements of RCW 49.44.140. If I live in one of the states listed in the
Invention Notice Schedule attached to this Agreement, the notice for such state
set forth therein, rather than the foregoing Notice, will apply to this
Agreement and I acknowledge that I have read and received such notice.
3.7 I agree that Company Property remains the property of Company. I
understand that I am only a holder of this property for the sole use and benefit
of the Company and will take all reasonable precautions to safely keep and
preserve such property, except as consumed in the normal business operation of
the Company. Upon termination of my employment with Company, and at any other
time upon Company's request, I will deliver as soon as reasonably possible to
Company, or its authorized representative, all Company Property, including all
copies thereof, then in my possession or control. I agree, except for Company's
use, not to make or cause to be made any copies, duplicates, facsimiles or other
reproductions, or abstracts or summaries, of any such materials or objects, or
remove any such materials or objects from the Company's possession. Any personal
property of mine acquired prior to my employment with Company or subsequently
purchased at my personal expense for my personal use, remains my property.
3.8 I recognize and acknowledge that (a) The Confidential Information is
and shall continue to be the exclusive and permanent property of the Company,
whether or not prepared in whole or in part by me, and whether or not disclosed
or entrusted to me in connection with my duties for Company. I understand that
Confidential Information will not be deemed disclosed to the public due to its
being disclosed to me or to any past, present, or potential employees of the
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Company. (b) Company has a vital and substantial interest in maintaining the
confidentiality of its Confidential Information, in maintaining a stable
workforce, in continuing its relationships with its Corporate Contacts, in
remaining in business, and in avoiding or minimizing any disruption of, damage
or impairment to, or interference with its business. (c) The Confidential
Information and Corporate Contacts that I will obtain as a result of my
employment with Company are special and unique to Company, and any breach by me
of any of the terms and covenants of this Agreement will result in irreparable
and continuing harm to Company for which there will be no adequate remedy at
law.
3.9 I agree to hold all Confidential Information in a fiduciary capacity
and to exercise the highest degree of care in safeguarding Confidential
Information against loss, theft, or other inadvertent disclosure, and shall take
all steps reasonably necessary to maintain the confidentiality thereof. I shall
not, directly or indirectly, either during the term of my employment (except as
required in the normal course of the performance of my duties), or at any time
after my employment is terminated for any reason: (a) Disclose or furnish to any
person, corporation or other entity, or use in my own or in any other person or
entity's business, any Confidential Information; (b) Utilize or permit a third
party to utilize Confidential Information for the gain, advantage, or profit of
anyone other than Company; (c) Remove any Confidential Information from
Company's premises; or (d) Take advantage of any business opportunity which,
because of Confidential Information obtained in my employment capacity or as a
result of my employment, I know the Corporation may or is likely to consider.
SECTION 4. NONCOMPETITION AND NO SOLICITATION
4.1 During the Term, I will not engage in, be employed by, perform services
for, participate in the ownership, management, control or operation of, or
otherwise be connected with, either directly or indirectly, any Competing
Business. I further agree to extend the period described in the preceding
sentence for the length of time specified in a notice provided by Company to me
(for a time not to exceed one year from the end of the Term), provided (i)
Company provides me with such notice before the expiration of two (2) weeks
after the end of the Term and (ii) Company pays me on the same schedule and at
100% of the rate (excluding bonuses) I am earning at the end of the Term. For
purposes of this paragraph, I will not be considered to be connected with any
Competing Business solely on account of: (a) my ownership of less than five
percent (5%) of the outstanding capital stock or other equity interests in any
Competing Business; or (b) my engagement by, performance of services for,
participation in or other connection with any business that is not a Competing
Business but that is carried on by an entity that carries on a Competing
Business as a separate division or other independent organization.
4.2 During the Term and for a period of one year after the end of the Term,
I will not induce, or attempt to induce, any employee or consultant of the
Company to leave such employment or relationship to engage in, be employed by,
perform services for, participate in or otherwise be connected with, either
directly or indirectly, me or any enterprise with which I am in any way
associated, whether or not a Competing Business. If I violate this provision,
then at the sole election of Company, I agree to pay to Company $5,000.00 for
each identified employee. I understand that this remedy, if elected by Company,
shall be in addition to any other remedies provided to Company under this
Agreement or by law.
4.3 Unless I receive the prior, expressed, written consent of Company, I
shall not, during the Term and for one year following the Term, for purposes of
providing products or services that are competitive with those provided by
Company, solicit or accept, or attempt to solicit or accept, directly or by
assisting others, any work, services, goods, employment or other business from
any of Corporate Contacts. If I violate this provision, then at the sole
election of Company, I agree to pay to Company the greater of fifty percent
(50%) of the actual fees billed or billable to such Corporate Contacts or fifty
percent (50%) of all amounts paid or payable to me by such Corporate Contact
during that period of time. I understand that this remedy, if elected by
Company, shall be in addition to any other remedies provided to Company under
this Agreement or by law.
SECTION 5. NO CONFLICTING OBLIGATIONS
5.1 My execution, delivery and performance of this Agreement and the
performance of my other obligations and duties to the Company will not cause any
breach, default or violation of any employment, nondisclosure, confidentiality,
consulting or other agreement to which I am a party or by which I may be bound.
5.2 I will not use in performance of my work for the Company or disclose to
the Company any trade secret, confidential or proprietary information of any
prior employer or other person or entity if and to the extent that such use or
disclosure may cause or breach, default or violation of any obligation or duty
that I owe to such other person or entity (e.g., under any agreement or
applicable law). My compliance with this paragraph will not prohibit, restrict
or impair the performance of my work, obligations and duties to the Company.
5.3 I will not (a) make any false, misleading or disparaging
representations or statements with regard to the Company or the products or
services of the Company or (b) make any statement that may impair or otherwise
adversely affect the goodwill or reputation of the Company.
SECTION 6. PUBLICITY
I hereby grant and assign to the Company the non-exclusive right to use my
picture, alone or with others, to use my name, initials, likeness, and
biographical sketch, and any video tapes or sound recordings of me
("Representations") in connection with any matter associated with the Company's
business for publicity, promotional, commercial, and other
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Company related purposes of any and all types, including, but not limited to
films, photographs, video tapes, personal interviews, electronic media, the
internet or intranet, or written media of any kind for periods during and
indefinitely following the term of this Agreement. I assign, on behalf of myself
and my respective heirs and legal representatives, all rights title and interest
in such Representations, including but not limited to the right of publicity and
right of privacy. I hereby release and forever discharge the Company from any
and all claims, actions, liabilities, and causes of action in any manner arising
or resulting from the Company's use of such Representations.
7. MISCELLANEOUS
7.1 This Agreement is not a contract of employment and no rights of
employment are hereby created. Unless otherwise set forth in a written agreement
signed by me and the Company, my engagement with the Company is "at will" and
may be terminated at any time, with or without cause, by me or the Company. This
Agreement will survive any termination of the Term or my engagement.
7.2 In the event of any breach of or default under this Agreement by me,
the Company may suffer irreparable harm and have no adequate remedy at law. In
the event of any such breach or default, or any threat of such breach or
default, the Company will be entitled to injunctive relief, specific performance
and other equitable relief without proof of actual damage and without posting a
bond against me and any of my partners, agents, companies, and employees, or any
persons acting for or with me and any other temporary remedies provided to
Company by applicable law. Such temporary relief shall remain in effect until
the matter in dispute is permanently resolved. Further, in any legal action or
other proceeding in connection with this Agreement (e.g., to recover damages or
other relief), the prevailing party will be entitled to recover, in addition to
any other relief to which it may be entitled, its reasonable attorneys' fees and
other costs incurred in that action or proceeding. The rights and remedies of
the Company under this paragraph are in addition to, and not in lieu of, any
other right or remedy afforded to the Company under any other provision of this
Agreement, by law or otherwise.
7.3 This Agreement will be enforced to the fullest extent permitted by
applicable law. If for any reason any provision of this Agreement is held to be
invalid or unenforceable to any extent, then (a) such provision will be
interpreted, construed or reformed to the extent reasonably required to render
the same valid, enforceable and consistent with the original intent underlying
such provision and (b) such invalidity or unenforceability will not affect any
other provision of this Agreement or any other agreement between the Company and
me. If the invalidity or unenforceability is due to the unreasonableness of the
scope or duration of the provision, the provision will remain effective for such
scope and duration as may be determined to be reasonable.
7.4 The failure of the Company to insist upon or enforce strict performance
of any other provisions of this Agreement or to exercise any of its rights or
remedies under this Agreement will not be construed as a waiver or a
relinquishment to any extent of the Company's rights to assert or rely on any
such provision, right or remedy in that or any instance; rather, the same will
be and remain in full force and effect.
7.5 This Agreement sets forth the entire Agreement, and supersedes any and
all prior agreements, between me and the Company with regard to the Confidential
Information, Inventions and Works, Materials and Proprietary Rights of the
Company. This Agreement is independent of any other written agreements between
me and the Company regarding other aspects of my engagement. This Agreement may
not be amended, except by writing signed by me and an authorized representative
of Company.
7.6 This Agreement will be governed by the laws of the State of Washington
without regard to any choice of law principles to the contrary. I irrevocably
consent to the jurisdiction and venue of the state and federal courts located in
King County, Washington in connection with any action relating to this
Agreement. Further, I will not bring any action relating to this Agreement in
any other court.
7.7 I acknowledge that the restrictions and provisions in this Agreement
are reasonable in relation to the position I have been afforded with Company,
and that compliance with the provisions herein will not prevent me from pursuing
my livelihood. I have carefully read all of the provisions of this Agreement and
agree that (a) the same are necessary for the reasonable and proper protection
of the Company's business, (b) the Company has been induced to enter into and
continue its relationship with me in reliance upon my compliance with the
provisions of this Agreement, and (c) every provision of this Agreement is
reasonable with respect to its scope and duration.
[Remainder on following page]
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This Agreement shall be effective as of ______________________.
____________________________________________
Signature
____________________________________________
FULL NAME (print or type)
Soc. Sec. No._______________________________
ACCEPTED:
[________________________]
By ____________________________________________
Its ___________________________________________
CONFIDENTIAL INFORMATION, INVENTIONS AND NONCOMPETITION AGREEMENT
INVENTION NOTICE SCHEDULE
CALIFORNIA
The following notice applies to employees who live in the state of California:
In accordance with California law, this Agreement does not apply to inventions
that I developed entirely on my own time without using the Company's equipment,
supplies, facilities or trade secret information, except for those Inventions
that either: (a) relate, at the time of conception or reduction to practice of
the invention, to the Company's business, or actual or demonstrably anticipated
research or development of the Company; or (b) result from any work performed by
me for the Company.
ILLINOIS
The following notice applies to employees who live in the state of Illinois:
In accordance with Illinois law, this Agreement does not apply to, and I have no
obligation to assign to the Company, an invention for which no equipment,
supplies, facility, or trade secret information of the Company was used and
which was developed entirely on my own time, unless (a) the invention relates
(i) to the business of the Company, or (ii) to the Company's actual or
demonstrably anticipated research and development, or (b) the invention results
from any work performed by me for the Company
CONFIDENTIAL INFORMATION, INVENTIONS AND NONCOMPETITION AGREEMENT
