PROPRIETARY RIGHTS, NON-DISCLOSURE, DEVELOPMENTS, NON-COMPETITION, AND NON- SOLICITATION AGREEMENT
Exhibit
10.6
This
Proprietary Rights, Non-Disclosure, Developments, Non-Competition, and
Non-Solicitation Agreement (the “Agreement”) is made by and between PSYOP, Inc.
(the “Company”) and [Insert Executive’s Name] (the “Executive”).
IN
CONSIDERATION of the Executive's employment by the Company pursuant to the
terms
and conditions set forth in the Employment Agreement entered into concurrently
with this Agreement, and for other valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Executive agrees as
follows:
1. Proprietary
and Confidential Information.
(a) The
Executive agrees that all information and know-how, whether or not in writing,
of a private, secret or confidential nature concerning the Company’s business or
financial affairs (collectively, “Proprietary Information”) is and shall be the
exclusive property of the Company. By way of illustration but not limitation,
Proprietary Information may include systems, software and codes, or systems,
software and codes in the course of development, or planned or proposed systems,
software or codes, customer and prospect lists, contacts at or knowledge of
customers or prospective customers, customer accounts and other customer
financial information, price lists and all other pricing, marketing and sales
information relating to the Company or any customer or supplier of the Company,
databases, modules, products, product improvements, product enhancements,
processes, methods, techniques, negotiation strategies and positions,
operations, projects, developments, plans, research data, financial data and
personnel data. The Executive will not disclose any Proprietary Information
to
others outside the Company or use the same for any unauthorized purposes without
written approval by an officer of the Company, either during or at any time
after the Executive’s employment with the Company, unless and until such
Proprietary Information has become public knowledge without fault by the
Executive. Notwithstanding the foregoing, the Executive may disclose Proprietary
Information as compelled by law or court order, provided that the Executive
(i)
gives the Company prompt written notice upon learning of any such requirement
so
that the Company may take appropriate action to prevent or limit the disclosure,
(ii) consults with the Company and uses all reasonable efforts to agree on
the
nature, form, timing and content of the disclosure, (iii) except as otherwise
agreed to under (ii), discloses no more than the Executive’s counsel advises is
legally required, and (iv) informs the court and all counsel concerned that
such
information is and should be treated as confidential and Proprietary Information
of the Company. While employed by the Company, the Executive will use the
Executive’s best efforts to prevent publication or disclosure of any
confidential or Proprietary Information concerning the business, products,
processes or affairs of the Company.
(b) The
Executive agrees that all disks, files, documents, letters, memoranda, reports,
records, data, drawings, notebooks, program listings, or any other written,
photographic or other record containing Proprietary Information, whether created
by the Executive or others, which shall come into the Executive’s custody or
possession, shall be and are the exclusive property of the Company to be used
only in the performance of the Executive’s duties for the Company. Upon
termination or cessation of the Executive’s employment with the Company for any
reason or at the Company’s request, the Executive agrees to return to the
Company any and all materials and copies thereof in the Executive’s custody,
possession or control containing Proprietary Information.
(c) The
Executive acknowledges that the Executive’s obligations with regard to
Proprietary Information, which are set out in subsections 1(a) and 1(b) above,
extend to all information, know-how, records and tangible property of customers
of the Company or suppliers to the Company or of any third party who may have
disclosed or entrusted the same to the Company or to the Executive in the course
of the Company’s business.
2. Developments.
(a) The
Executive will make full and prompt disclosure to the Company of all inventions,
creations, improvements, discoveries, methods, developments, software and works
of authorship, whether patentable or not, which are created, made, conceived
or
reduced to practice by the Executive or under the Executive’s direction or
jointly with others during the Executive’s employment by the Company, whether or
not during normal working hours or on the premises of the Company (all of which
are collectively referred to in this Agreement as “Developments”).
(b) The
Executive agrees to assign and does hereby assign to the Company (or any person
or entity designated by the Company) all of the Executive’s right, title and
interest in and to all Developments and all related patents, patent
applications, copyrights and copyright applications. However, this subsection
2(b) shall not apply to Developments that do not relate to the present or
planned business or research and development of the Company and that are made
and conceived by the Executive not during normal working hours, not on the
Company’s premises and not using the Company’s tools, devices, equipment or
Proprietary Information. The Executive understands that, to the extent this
Agreement shall be construed in accordance with the laws of any state that
precludes a requirement in an employee agreement to assign certain classes
of
inventions made by an employee, this subsection 2(b) shall be interpreted not
to
apply to any invention that a court rules and/or the Company agrees falls within
such classes. The Executive hereby also waives all claims to moral rights in
any
Developments.
(c) The
Executive agrees to cooperate fully with the Company, both during and after
the
Executive’s employment with the Company, with respect to the procurement,
maintenance and enforcement of copyrights, patents and other intellectual
property rights (both in the United States and foreign countries) relating
to
Developments. The Executive shall sign all papers, including, but not limited
to, copyright applications, patent applications, declarations, oaths, formal
assignments, assignments of priority rights and powers of attorney, that the
Company may deem necessary or desirable in order to protect its rights and
interests in any Development. The Executive further agrees that if the Company
is unable, after reasonable effort, to secure the signature of the Executive
on
any such papers, any executive officer of the Company shall be entitled to
execute any such papers as the agent and the attorney-in-fact of the Executive,
and the Executive hereby irrevocably designates and appoints each executive
officer of the Company as the Executive’s agent and attorney-in-fact to execute
any such papers on the Executive’s behalf, and to take any and all actions as
the Company may deem necessary or desirable in order to protect its rights
and
interests in any Development under the conditions described in this
sentence.
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3. Non-Competition
and Non-Solicitation.
(a) While
the
Executive is employed by the Company and for a period of twelve (12) months
following the termination or cessation of such employment for any reason (the
“Restrictive Period”), the Executive will not directly or
indirectly:
| (1) |
In
the geographical area where the Company does business or has done
business
at the time of the termination or cessation of the Executive’s employment,
engage in any business or enterprise (whether as an owner, partner,
officer, employee, director, investor, lender, consultant, independent
contractor or otherwise, except as the holder of not more than 1%
of the
combined voting power of the outstanding stock of a publicly held
company)
that is competitive with the Company’s business, including, but not
limited to, any business or enterprise that develops, designs, produces,
markets, sells or renders any product or service competitive with
any
product or service developed, designed, produced, marketed, sold
or
rendered by the Company while the Executive was employed by the
Company;
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| (2) |
Either
alone or in association with others, solicit,
recruit or induce, or attempt to solicit, recruit or induce, any
person who was employed by the Company or engaged as an independent
contractor at any time during the period of the Executive's employment
with the Company, except for an individual whose employment with
or
service for the Company has been terminated for a period of six months
or
longer; and/or
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| (3) |
Either
alone or in association with others, solicit, divert or take away,
or
attempt to solicit, divert or take away, the business or patronage
of any
of the clients, customers or accounts, or prospective clients, customers
or accounts, of the Company that were contacted, solicited or served
by
the Executive while the Executive was employed by the
Company.
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(b) If
any
restriction set forth in this Section 3 is found by any court of competent
jurisdiction to be unenforceable because it extends for too long a period of
time or over too great a range of activities or in too broad a geographic area,
it shall be interpreted to extend only over the maximum period of time, range
of
activities or geographic area as to which it may be enforceable.
(c) If
the
Executive violates any of his obligations under this Section 3, he shall
continue to be held by the restrictions set forth herein until a twelve (12)
month period
has expired without any violation.
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4. Other
Agreements.
The
Executive hereby represents that, except as the Executive has disclosed in
writing to the Company, the Executive is not bound by the terms of any agreement
with any previous employer or other party to refrain from using or disclosing
any trade secret or confidential or proprietary information in the course of
his
employment with the Company or to refrain from competing, directly or
indirectly, with the business of such previous employer or any other party.
The
Executive further represents that his performance of all the terms of this
Agreement and as an employee of the Company does not and will not breach any
agreement to keep in confidence proprietary information, knowledge or data
acquired by the Executive in confidence or in trust prior to his employment
with
the Company, and the Executive will not disclose to the Company or induce the
Company to use any confidential or proprietary information or material belonging
to any previous employer or others.
5. Not
An
Employment Contract.
The
Executive acknowledges that this Agreement does not constitute a contract of
employment and does not imply that the Company will continue the Executive’s
employment for any period of time.
6. General
Provisions.
(a) No
Conflict.
The
Executive represents that the execution and performance by him of this Agreement
does not and will not conflict with or breach the terms of any other agreement
by which the Executive is bound.
(b) Acknowledgements
and Equitable Remedies.
The
Executive acknowledges that the restrictions contained in this Agreement are
necessary for the protection of the business and goodwill of the Company and
considers the restrictions to be reasonable for such purpose. The Executive
agrees that any breach or threatened breach of this Agreement will cause the
Company substantial and irrevocable damage that is difficult to measure.
Therefore, in the event of any such breach or threatened breach, the Executive
agrees that the Company, in addition to such other remedies that may be
available, shall have the right to seek specific performance and injunctive
relief without posting a bond. The Executive hereby waives the adequacy of
a
remedy at law as a defense to such relief.
(c) Entire
Agreement.
This
Agreement supersedes all prior agreements, written or oral, between the Company
and the Executive relating to the subject matter of this Agreement. This
Agreement may not be modified, changed or discharged in whole or in part, except
by an agreement in writing signed by the Executive and the Company. The
Executive agrees that any change or changes in his employment duties or
compensation after the signing of this Agreement shall not affect the validity
or scope of this Agreement.
(d) Severability.
The
invalidity or unenforceability of any provision of this Agreement shall not
affect or impair the validity or enforceability of any other provision of this
Agreement.
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(e) Waiver.
No
delay or omission by the Company in exercising any right under this Agreement
will operate as a waiver of that or any other right. A waiver or consent given
by the Company on any one occasion is effective only in that instance and will
not be construed as a bar to or waiver of any right on any other
occasion.
(f) Successor
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of both parties and
their respective successors and assigns, including any corporation or entity
with which or into which the Company may be merged or that may succeed to all
or
substantially all of its assets or business; provided,
however,
that
the obligations of the Executive are personal and shall not be assigned by
the
Executive.
(g) Governing
Law, Forum and Jurisdiction.
This
Agreement shall be governed by and construed and enforced in accordance with
the
laws of the State
of
New York
without
regard to conflicts of law provisions. Courts
within the State of New York, County of New York or the United States District
Court for the Southern District of New York will have jurisdiction over all
disputes between the parties hereto arising out of or relating to this agreement
and the agreements, instruments and documents contemplated hereby. The parties
hereby consent to and agree to submit to the jurisdiction of such courts. Each
of the parties hereto waives, and agrees not to assert in any such dispute,
to
the fullest extent permitted by applicable law, any claim that (i) such
party is not personally subject to the jurisdiction of such courts,
(ii) such party and such party’s property is immune from any legal process
issued by such courts or (iii) any litigation commenced in such courts is
brought in an inconvenient forum. Each party hereto hereby irrevocably waives
all right to trial by jury in any proceeding (whether based on contract, tort
or
otherwise) arising out of or relating to this Agreement or any transaction
or
agreement contemplated hereby or the actions of any party hereto in the
negotiation, administration, performance or enforcement hereof.
(h) Captions.
The
captions of the sections of this Agreement are for convenience of reference
only
and in no way define, limit or affect the scope or substance of any section
of
this Agreement.
THE
EXECUTIVE ACKNOWLEDGES THAT HE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS
AND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.
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WITNESS
our hands and seals:
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PSYOP,
INC.
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Date:
____________________________________
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By:
________________________________
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[INSERT
EXECUTIVE’S NAME]
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Date:
____________________________________
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_______________________________
(Signature)
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