EXHIBIT 6.8
EDUVERSE ACCELERATED LEARNING SYSTEMS (CANADA), INC.
CONFIDENTIALITY AND NON-COMPETITION AGREEMENT
THIS AGREEMENT is dated for reference the 3rd day of May 1999.
BETWEEN
EDUVERSE Accelerated Learning Systems (Canada), Inc., a company
incorporated under the laws of the Province of British Columbia and having
an office at 2nd Floor, 0000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx
Xxxxxxxx, X0X 0X0.
(hereinafter referred to as the "Company")
AND
--------------- having an address for notice at -----------------
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(hereinafter referred to as the "Employee")
WHEREAS:
A. The Company is principally engaged in the business of researching, developing
and marketing multimedia educational software products (the "Company's
Business);
B. The Employee has been hired by the Company to work in the Company's Business;
C. The Employee and the Company wish to incorporate all of the terms of this
Agreement into the contract of employment between them;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the Company
agreeing to employ the Employee and the Employee agreeing to work for the
Company, the parties agree as follows:
1. Trade Secrets. The Employee understands that in the performance of his/her
job duties with the Company, he/she will be exposed to the Trade Secrets of
the Company. The term "Trade Secrets" means technical information or
material that is commercially valuable to the Company and not generally
known in the industry. This includes, without limiting the generality of
the foregoing, the following:
(a) any and all versions of the Company's proprietary computer software
(including source code and object code), hardware, firm-xxxx and
documentation;
(b) technical information concerning the Company's products, processes and
services, including product and process data and specifications,
diagrams, flow charts drawings, test results, know-how, inventions,
research projects and product development; and
product and process data and specifications, diagrams, flow charts
drawings, test results, know-how, inventions, research projects and
product development; and
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(c) any and all versions of proprietary software which the Company is
entitled to use in the Company's Business.
2. Confidential Information. The Employee understands that in the performance
of his/her job duties with the Company, he/she will be exposed to
Confidential Information of the Company. The term "Confidential
Information" means non-technical information or material that is
commercially valuable to the Company and not generally known in the
industry. This includes, without limiting the generality of the foregoing,
the following;
(a) information concerning the Company's Business, including cost
information, profits, sales information, accounting and unpublished
financial information, business plans, markets and marketing methods,
customer lists and customer information, purchasing techniques,
supplier lists and supplier information, and advertising strategies;
(b) information concerning the Company's employees, including their
salaries, strengths, weaknesses and skills;
(c) information submitted by the Company's customers, suppliers,
employees, consultants or co-venturers with the Company for study,
evaluation or use;
(d) any other information not generally known to the public which, if
misused or disclosed, could reasonably be expected to adversely affect
the Company's business.
3. Nondisclosure of Trade Secrets. The Employee will keep the Company's Trade
Secrets, whether or not prepared or developed by the Employee, in the
strictest confidence. He/she will not use or disclose such Trade Secrets to
others without the Company's prior written consent. The Company may for any
reason withhold its consent to disclosure of Trade Secrets by the Employee.
4. Nondisclosure of Confidential Information. The Employee will keep the
Company's Confidential Information, whether or not prepared or developed by
the Employee, in the strictest confidence. He/she will not use or disclose
such Confidential Information to others without the Company's prior written
consent. The Company may for any reason withhold its consent to disclosure
of Confidential Information by the Employee.
5. Confidential Information of Others. The Employee will not disclose to the
Company, use in the Company's Business, or cause the Company to use, any
information or material that is confidential information or a trade secret
of others.
6. Return of Materials. When the Employee's employment with the Company ends,
for whatever reason, he/she will promptly deliver to the Company all
originals and copies of all documents, records, computer hardware, computer
software programs, media and other materials containing any of the
Company's Trade Secrets or Confidential Information. He/she will also
return to the Company all equipment, files, software programs, letterhead &
business cards and other personal property belonging to the Company.
8. Confidential Information Confidentiality Obligation Survives Employment.
The Employee understands and agrees that his/her obligation to maintain the
confidentiality and security of the Company's Confidential Information will
remain binding upon him/her even after his/her employment with the Company
ends and continues for so long as such material remains Confidential
Information.
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9. Disclosure of Developments. While the Employee is employed by the Company
he/she will promptly inform the Company of the full details of all his/her
inventions, discoveries, improvements, innovations, ideas, products and
processes (collectively called "Developments"), whether or not patentable,
copyrightable, or otherwise protectable, that he/she conceives, completes,
or reduces to practice, (whether jointly or with others), in the course of
his/her employment and which:
(a) relate to the Company's Business as presently carried on or as carried
on in the future or which relate to the Company's or prospective
business, or actual or demonstrably anticipated research and
development of the Company;
(b) result from any work he/she does using any equipment, facilities,
materials, Trade Secrets, Confidential Information or personnel of the
Company; or
(c) result from or are suggested by any work that he/she may do for the
Company.
10. Assignment of Rights. The Employee acknowledges and agrees that the Company
or the Company's designee retains all rights, titles and interests in the
Developments which arise during the course of his/her employment with the
Company. Accordingly, the Employee hereby assigns and relinquishes to the
Company or the Company's designee, any and all right, title and interest in
all:
(a) patent rights,
(b) copyrights,
(c) trade secret rights, and
(d) work rights,
(collectively called "Rights") which arise with respect to the
Developments.
11. Execution of Documents. The Employee agrees to promptly execute written
assignments of specific Rights and such other documents as are properly
required to enable the Company to obtain, maintain, and enforce patents,
copyrights, and work right registrations relating to the Developments, when
so requested by the Company from time to time. In the event the Company is
unable, after reasonable effort, to secure the Employee's signature on any
such document, whether because of any physical or mental incapacity or for
any other reason whatsoever, the Employee hereby irrevocably designates and
appoints the Company and its duly authorized officers and agents as his/her
agent and attorney-in-fact to act for and in his/her behalf and stead to
execute and file any patent, copyright and work right application relating
to the Developments and to do all other lawfully permitted acts to further
the prosecution, issuance, maintenance and enforcement of letters, patent,
copyright, and work right thereon with the same legal force and effect as
if executed by the Employee.
12. Conflict of Interest. During the Employee's employment by the Company,
he/she will not engage in any business activity competitive with the
Company's Business as presently carried on or as carried on in the future
nor will he/she engage in any other activities that conflict with the best
interests of the Company or which interfere with the effective performance
of
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his/her employment duties, save and except as expressly consented to in
writing by the Company.
13. Post-employment Non-competition Agreement. The Employee understands that
during his/her employment by the Company he/she may become familiar with
the Confidential Information and Trade Secrets of the Company. Therefore,
it is possible that he/she could gravely harm the Company if he/she worked
for a competitor. Accordingly, he/she agrees for 6 months following the end
of his/her employment with the Company not to engage in, or contribute
his/her knowledge to any work that is competitive or functionally similar
to any Developments or to a service or product on which he/she worked while
with the Company at any time during the 12 months immediately before
his/her employment with the Company ended. The Employee further agrees that
during the 6 months following the end of his/her employment with the
Company he/she will not compete with the Company's Business, directly or
indirectly (it being understood that competition includes the design,
development, production, promotion or sale of products or services
competitive with those marketed, developed or supported in the Company's
Business) and that he/she will not divert or attempt to divert from the
Company any business the Company enjoyed or solicited from their customers
during the 12 months prior to the termination of his/her employment. For
the purposes of this section, the post-employment restrictions on the
Employee shall apply in all regions of the world (collectively called
"Market Territories").
The Employee acknowledges and agrees that the hardware and software
developed by the Company is, or is intended to be, distributed to customers
throughout the Market Territories. Accordingly, he/she agrees that these
restrictions on his/her post-employment activities shall apply throughout
the Market Territories. The Employee further agrees that the time and
territories restrictions set out herein are fair and reasonable for the
protection of the Company's interests and hereby waives his/her right to
use as a defense to any action brought against him/her hereunder that the
time and territorial restrictions are unreasonable in scope or length. In
the event that a court of competent jurisdiction finds any subsection or
subsections dealing with the territorial restriction of this section to be
unenforceable, then that subsection or subsections as the case may be,
shall be severed from this Agreement and the remaining subsections shall
remain in effect.
14. Noninterference with the Company Employees. While employed by the Company
and for 6 months afterwards, the Employee agrees that he/she will not
induce, or attempt to induce, any Company employee to quit the Company's
employ or recruit or hire away any Company employee.
15. Enforcement. The Employee acknowledges and agrees that in the event of a
breach or threatened breach of this Agreement, money damages would be an
inadequate remedy and extremely difficult to measure. The Employee
therefore agrees that the Company shall be entitled to an injunction to
restrain the Employee for such breach or threatened breach. In addition,
any breach or threatened breach of this Agreement will result in the
Company taking disciplinary action against the Employee up to and including
termination of employment. Nothing in this Agreement shall be construed as
preventing the Company from pursuing any remedy at law or in equity for any
breach or threatened breach.
16. Effective Date. It was understood and agreed between the Company and the
Employee when the Employee commenced his/her employment with the Company
that an agreement substantially similar to this Agreement was a condition
of employment. The Employee and Company hereby incorporate all of the terms
of this Agreement into the contract of
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employment between them and further agree that the terms of this Agreement
are incorporated effective as of the entering into of the said contract of
employment by the Employee and Company.
17. Notices. Except as otherwise expressly provided berein, any and all notices
or demands which must or may be given hereunder or under any other
instrument contemplated hereby shall be given by delivery in person or by
regular mail or by facsimile transmission to the parties' respective
address set out on the first page of this Agreement. All such
communications, notices or presentations and demands provided for herein
shall be deemed to have been delivered when actually delivered in person to
the respective party, or if mailed, then on the date it would be delivered
in the ordinary course of mail, or if sent by facsimile transmission, on
the date of receipt of confirmation that the transmission has been
received. Any party may change its address hereunder on twenty days notice
to the other party in compliance with this section.
18. Severability. If any provision of this Agreement is wholly or partially
unenforceable for any reason, such unenforceable provision shall be severed
from the whole thereby preserving the enforceability to the balance of this
Agreement, and all provisions of this Agreement shall, if alternative
interpretations are applicable, be construed so as to preserve the
enforceability thereof.
19. General. Time will be of the essence hereof. The Employee acknowledges and
declares that he/she has been provided with sufficient time and opportunity
to consider all factors relating to this Agreement, has retained and
consulted independent counsel to advise him/her, or in the alternative has
elected to waive his/her right to retain and consult independent counsel
he/she further acknowledges and declares that he/she has read and
understands the terms of this Agreement and has signed it voluntarily with
full awareness of its consequences. This Agreement may not be assigned by
the Employee without the express written consent of the Company. Wherever
the singular, masculine, or neuter is used in this Agreement, the same
shall be construed as meaning the plural or feminine, and visa versa, where
the context or the parties so require. The headings used herein are for
convenience of reference only and shall not affect the interpretation of
this Agreement. Facsimile or photostatic copies of signatures are
acceptable and are of the same force and effect as original signatures for
all intents and purposes The waiver by either party of any breach of any
provision of this Agreement shall not operate or be construed as a waiver
of any subsequent breach. The provisions of this Agreement shall survive
any termination of the contract of employment, which embodies this
Agreement. This Agreement may be executed in several counterparts, each of
which so executed shall be deemed to be an original, and such counterparts
together shall constitute but one and the same instrument. The preambles or
recitals hereto are hereby incorporated herein and form an integral part of
this Agreement. This Agreement: shall enure to the benefit of the parties
hereto and their respective heirs, executors, administrators, successors
and permitted assigns.
IN WITNESS WHEREOF the parties hereto have duly executed this agreement under
seal as of the date first above written.
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EDUVERSE ACCELERATED LEARNING |
SYSTEMS (CANADA), INC. |
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(Authorized Signature) |
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SIGNED, SEALED and DELIVERED by |
the Employee in the presence of: |
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Signature | Signature of Employee
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Name |
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Address |
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Occupation |
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