EXHIBIT 10.19
ESOFT, INC.
0000 Xxxxxxxx Xxxxx, Xxxxx X
Xxxxxxx, Xxxxxxxx 00000
EMPLOYEE CONFIDENTIALITY AGREEMENT
THIS AGREEMENT is between eSoft, Inc. (the "Company") and
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an individual residing at
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(the "Employee"), based on the following circumstances:
A. WHEREAS, the Company owns and is developing several proprietary software
products and services which are and will be maintained as trade secrets and
unpublished copyrighted materials (the "Company's products"), and
B. WHEREAS, the Employee is employed as a for
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the Company, and will be given access to and substantial assistance from the
Company's staff in understanding many of the Company's products and plans,
including many of the Company's trade secrets and other confidential
information, and
C. WHEREAS, the Company's products are developed at substantial expense and
give the Company an advantage over its competitors, but only so long as they
remain the secret and proprietary information of the Company, and
D. WHEREAS, the Employee agreed to enter into this Agreement as a condition
of his/her employment by the Company, understands that he/she will not be given
access to confidential information concerning the Company's products and plans
until he/she enters into this Agreement and acknowledges that this Agreement is
reasonable and necessary for the protection of the Company's trade secrets and
other secret and confidential information, the protection of which allows the
Company to continue in business and to continue to employ the Employee,
THEREFORE
THE COMPANY AND THE EMPLOYEE agree to the following:
1. DEFINITIONS.
a. COMPETITIVE BUSINESS. As used in this Agreement, "competitive
business" means any business or enterprise engaged in the business of providing
any product or service then or historically provided by the Company, including,
but not limited to, computer software or systems for LAN and WAN connectivity to
the Internet within the geographical areas of the United States, including
Alaska and Hawaii, Puerto Rico, and Canada, as well as within the geographical
area of any other country, territory or sovereignty in which the Company has a
presence by virtue of having established a dealership for its products at the
time under consideration.
b. CONFIDENTIAL INFORMATION. As used in this Agreement, the term
"confidential information" means all of the following, whether now or later
existing, concerning the business, products, programs and activities of the
Company: (a) financial and pricing information,
including, but not limited to budgets, budget projections and plant information,
(b) customer account lists, (c) prospective customers identified by the Company,
(d) internal customer data, (e) creations, including, but not limited to,
computer code and programming materials, (f) any corporate strategy or plan,
including, but not limited to, pricing, marketing, manufacturing and data
processing plans strategies, and (g) any information marked or otherwise
identified by the Company as confidential, including information identified as
confidential in any published Company policy.
c. CREATION. As used in this Agreement, the term "creation" means any:
(a) computer program or code, (b) arithmetic, logarithmic, analog, digital or
other formula, (c) product, marketing or business plan composition, writing or
work, writings, and compositions of words, numbers or analogs, including any
combination of them, (d) any other computer programming material in any form or
medium or expression, and (e) computer hardware structures and configurations,
which concern or relate to any present or prospective, product, program or
activity of the Company.
d. PROSPECTIVE CUSTOMER. As used in this Agreement, the "phrase
"prospective customer of the Company" means any person or firm directly
solicited by the Company, other than through general advertising, within the six
(6) month period prior to the date under consideration.
2. PROPRIETARY RIGHTS OF THE COMPANY. The Employee may participate in the
development of the Company's products, marketing materials, and/or business
plans due to the Employee's involvement in the creative process with the
Company's technical, development, marketing and/or management staff, and, to the
extent of the Employee's participation and contribution, all resulting products
and product enhancements, marketing and/or business plan materials shall be
deemed to be made for hire, free from any claim or right of the Employee. The
Employee shall promptly inform the Company of any product or literature, or any
component of either or both of them, in the development or creation of which
he/she participated and shall cooperate with the Company, even after the
termination of his/her employment by the Company, in securing the product or
literature as the Company's sole property; the Employee's cooperation shall be
without further compensation, although the Company shall reimburse the Employee
for any reasonable, documented out-of-pocket expenses incurred by the Employee
in so cooperating.
3. CONFIDENTIALITY. The Employee acknowledges that all confidential
information, as defined in this Agreement, is made available in the strictest
confidence solely for the benefit and purposes of the Company and that
unauthorized disclosure of confidential information would harm the Company's
interests. Accordingly, the Employee agrees that during his/her employment by
the Company he/she will not, directly or indirectly, use for himself or to the
detriment of the Company or disclose to any party, other than as directed or
authorized by any officer of the Company, any confidential information. At the
termination of the Employee's employment by the Company, the Employee shall
promptly deliver all records and copies of confidential information to the
Company.
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4. COMPETITIVE ACTIVITY.
a. AS AN EMPLOYEE OF ANOTHER. The Employee agrees that during his/her
employment by the Company he/she shall not engage in a competitive business as
an employee of or otherwise on behalf of any person, firm, partnership,
corporation or other entity.
b. AS AN OWNER OR OTHERWISE. The Employee agrees that during his/her
employment by the Company he/she shall not engage, directly or indirectly, in a
competitive business as an owner, officer, partner, joint venture, principal or
otherwise for himself.
5. PURPOSE. The Employee acknowledges that the protective provisions of
this Agreement are necessary for the Company to maintain its competitive
position and to preserve its trade secrets and proprietary information from
becoming public knowledge when it is the intent of both the Employee and the
Company that the Company's trade secrets, proprietary information and other
confidential information remain the sole and exclusive property of the Company.
6. REMEDIES; ENFORCEMENT. The Company's remedies for any breach of this
Agreement are in addition to any other rights of remedies it may have against
the Employee arising from his/her fiduciary duties as an employee of the
Company. The Employee acknowledges that any violation of the terms of this
Agreement would naturally result in irreparable harm to the Company and agrees
that a violation of the obligations respecting confidentiality, solicitation and
competition will entitle the Company to enjoin the Employee's conduct and seek
an accounting of profits realized by the Employee, in addition to any other
remedies that may be available to the Company. The Company shall be entitled to
recover all of its costs, including its reasonable attorney's fees, in enforcing
its rights and remedies under this Agreement.
7. POLICIES. In addition to other Company policies, the Employee agrees to
act in accordance with all Company policies and procedures concerning
confidential information and employee cooperation in protecting and securing
Company property.
8. EMPLOYMENT. The Employee acknowledges that entering into this Agreement
is a condition of employment with the Company. This Agreement gives the Employee
no greater or lessor rights to continued employment with the Company than the
Employee otherwise has and shall remain in effect after the Employee's
employment with the Company terminates, regardless of the reason, or lack of
reason, for that termination.
9. SEVERABILITY. The provisions of this Agreement are severable and to the
extent any provision is found unenforceable, the remaining provisions of this
Agreement shall be enforced as if the unenforceable provision were omitted.
10. LAW. This Agreement is to be governed by Colorado law.
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DATED this day of , 19 .
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EMPLOYEE: COMPANY:
eSoft, Inc.
a Colorado Corporation
By: /s/ Xxxxxx Xxxxxx
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President
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