Exhibit 10(l)
CONFIDENTIALITY AND NONSOLICITATION AGREEMENT
This Agreement is entered into between CheckFree Services Corporation,
its parents, subsidiaries, affiliates, successors and assigns (collectively
referred to as "the Company"), and Xxxx X. Xxxxxxx ("Associate"), effective this
February 11, 2003 (Date). This agreement is consideration for and a condition of
Associate's commencing employment with the Company
6. Definitions. For the purposes of this Agreement, the following
definitions shall apply:
a. "Trade Secrets" shall mean information not generally known about the
Company's business which the Company has made reasonable efforts to maintain its
secrecy or confidentiality and from which the Company derives economic value
from the fact that the information is not generally known to other persons who
can obtain economic value from its disclosure or use. Trade Secrets include, but
are not limited to, technical or non-technical data, compilations, programs and
methods, techniques, drawings, processes, financial data, lists of actual
customers and potential customers, customer route books, cards or lists
containing the names, addresses, buying habits and business locations of past,
present and prospective customers, sales reports, price lists, product formulae,
methods and procedures relating to services.
b. "Confidential Information" means other business information of the
Company, its clients and/or customers, not generally known to the public and
which the Company desires and makes reasonable efforts to keep confidential.
c. "Products" shall mean those products or services of the Company
about which Associate has been exposed to Confidential Information during the
twelve-month period prior to the termination of employment, including products
that support or facilitate electronic billing or payment or both. Associate
agrees that the Products constitute Trade Secrets or Confidential Information of
the Company. Associate acknowledges that he has been involved with, or has
become familiar with each of the Products during the last twelve months of his
employment.
d. "Competing Business" shall mean any person or entity which sells,
licenses or otherwise distributes software or offers processing services which
perform the same or substantially the same functions as the Products.
Specifically, and without restricting the generality of the foregoing, such
companies include, ______________, ______________, and ________________________.
e. "Territory" shall mean the United States of America. The parties
hereto agree that the Company serves customers throughout the Territory and
Associate's duties and responsibilities hereunder extend to customers throughout
the Territory. Associate acknowledges that the Company and Associate may change
the Territory at any time by either
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reflecting any such change on an Amended Confidentiality and Non-competition
Agreement, executed by Associate, or by Associate's acceptance of an assignment
to such new Territory.
7. Confidential Information. The parties agree that Associate will gain
detailed and comprehensive knowledge of the Company's Trade Secrets and
Confidential Information. The Associate covenants and agrees that he will not at
any such time, other than in the performance of his duties for the Company, both
during and after his employment by the Company, communicate or disclose to any
person or entity, or use for his benefit or for the benefit of any other person
or entity, directly or indirectly, any Trade Secrets and/or Confidential
Information. For the purposes of this Agreement, the prohibition against the
disclosure of Confidential Information only shall end twenty-four (24) months
after the termination, for any reason, of Associate's employment with the
Company. The disclosure of Trade Secrets by the Associate is prohibited for the
life of the Associate, or until the trade secret information becomes publicly
available through no fault of the Associate.
8. Agreement Not To Solicit Customers. Associate acknowledges that he
will be providing unique services to the Company which both parties expect will
result in the creation of goodwill for the Company among its customers and
industry contacts. Associate's duties may include participating in developing
relationships with particular customers on the Company's behalf. Accordingly,
Associate covenants and agrees that during his employment by the Company and for
a period of one year following the termination of such employment for any
reason, he will not, without the prior written consent of the Company, either
directly or indirectly, on his own behalf or on behalf of others, solicit with a
view to selling or providing any product, equipment or service competitive with
the Products, or attempt to divert or appropriate to a Competing Business, any
customer or potential customer of the Company with whom the Associate dealt on
behalf of the Company at any time during the 12 months immediately preceding
termination of his employment and to whom the Associate was introduced through
his employment with the Company. Nothing in this paragraph shall be construed to
prohibit Associate from soliciting individuals or entities with whom he had a
relationship prior to his employment with the Company.
9. Agreement Not To Solicit Associates. During his employment by the
Company and for a period of one year following termination of such employment
for any reason, Associate will not either directly or indirectly, within the
Territory, solicit, divert or recruit any associate of the Company to leave such
employment to work for a Competing Business.
10. Company Property. Employee covenants and agrees that at any time
upon request from the Company Associate will promptly deliver to the Company the
originals and all copies of any document obtained or prepared during employment
that are in Associate's possession, custody or control, and any other property
belonging to the Company. In addition, Associate covenants and agrees to return
all Company property to the Company immediately upon termination of employment.
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11. Associate Inventions. Associate hereby assigns and agrees to assign
to the Company, or its designees, all of Associate's rights to inventions,
improvements, discoveries, processes, formulae, designs, technical information,
know-how, data, specifications, trade secrets, test results, patents,
trademarks, copyrights, computer programs, and other proprietary information
("Inventions") which, during the term of Associate's employment by the Company
and for one year thereafter, Associate makes, develops, or conceives, either
solely or jointly with others, in the course of such employment or with the use
of the Company's equipment, supplies, facilities or trade secrets.
Associate also assigns and agrees to assign all of Associate's rights
to Inventions for which no equipment, supplies, facilities or trade secrets of
the Company were used and which were developed entirely on Associate's own time,
if : (1) the Invention related at the time of conception or reduction to
practice of the Invention to the Company's business or the Company's actual or
demonstrably anticipated research or development; or (2) the Invention results
from any work performed by Associate for the Company.
Associate agrees to fully and promptly disclose in writing to the
Company any such Inventions as such Inventions from time to time may arise.
Associate further agrees, without charge to the Company other than reimbursement
of Associate's reasonable out-of-pocket expenses, to execute and deliver all
such further documents, including applications for patents and copyrights, and
to perform such acts, at any time during or after the term of this Agreement as
may be necessary, to obtain patents or copyrights in respect of the Inventions
and to vest title such Inventions in the Company, its successors, assigns, or
designees and to carry out the purpose of this Section. Without limiting the
generality of the foregoing, Associate further agrees to give all lawful
testimony, during or after the term of Associate's employment, which may be
required in connection with any proceedings involving any Invention, Trade
Secret, patent or patent application so assigned by Associate.
12. Associate Warranty. Associate warrants that his employment with the
Company does not constitute a breach of any agreement between Associate and any
other party, nor will it violate any other party's proprietary rights.
13. Miscellaneous
a. Remedies. Associate acknowledges and agrees that by virtue of the
duties and responsibilities attendant to his employment by the Company and the
special knowledge of the Company's affairs, business, clients and operations
that he has and will have as a consequence of such employment, irreparable loss
and damage will be suffered by the Company if Associate should breach or violate
any of the covenants and agreements contained herein. Associate further
acknowledges and agrees that each of such covenants is reasonably necessary to
protect and preserve the Company Business and the assets of the Company.
Associate therefore agrees and consents that, in addition to any other remedies
available to the Company, the Company shall be entitled to an injunction to
prevent a breach or contemplated breach by Associate of any of the covenants or
agreements contained in such paragraphs.
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Nothing contained in this Agreement shall limit, abridge or modify the
rights of the parties under applicable trade secret, trademark, copyright or
patent law or under the laws of unfair competition.
b. Attorneys Fees. Associate agrees and acknowledges that if the
Company successfully enforces any right under this Agreement through legal
process of any kind, then the Company shall be entitled to recover from
Associate its costs of such enforcement, including reasonable attorneys fees.
c. Binding Agreement. The rights and obligations of the Company under
this Agreement shall inure to the benefit of and shall be binding upon the
successors and assigns of the Company. This Agreement is a personal service
Agreement and may not be assigned in whole or in part by Associate. The
covenants of Associate contained in this Agreement shall be binding upon the
heirs and legal representatives of Associate and shall survive the termination
of this Agreement.
d. Severability. The provisions of this Agreement are severable and if
any one or more provisions may be determined to be illegal or otherwise
unenforceable in whole or in part, the remaining provisions, and any partial
enforceable provision to the extent enforceable in any jurisdiction, shall
nevertheless be binding and enforceable. Should any court of competent
jurisdiction determine that the public policy of such jurisdiction requires a
more limited restriction in geographic area, duration, nature of restricted
activity or any other aspect of this Agreement, it would be in furtherance of
the intentions, of the parties hereto for the court to so interpret and construe
the terms of this Agreement in the manner necessary to render its terms
enforceable.
e. Waiver. The waiver by one party of a breach of any provision of this
Agreement by the other party shall not operate or be construed as a waiver of
any subsequent breach of the same or any other provision by the other party. The
failure of a party at any time to require performance of any provision hereof
shall in no manner affect its right at a later time to enforce the same.
f. Entire Agreement. This Agreement sets forth the entire agreement of
the parties and supersedes all prior agreements and understandings between the
parties relating to its subject matter.
g. Modification. This Agreement may be amended, modified or superseded
only by a writing signed by the party against whom enforcement is sought.
Associate acknowledges and understands that Company may request modification or
re-execution of this agreement or execution of a similar agreement in the
future, for new consideration, but no such request, or absence of such request
of Associate, affects the validity or term of the obligations assumed under this
Agreement.
h. Gender. Any reference to the male gender in this Agreement is
intended to apply equally and impartially to both males and females alike.
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i. Captions and Paragraph Headings. Captions and paragraph headings
used herein are for convenience only and are not a part of this Agreement and
shall not be used in construing this Agreement.
j. Consent to Jurisdiction. Associate and the Company agree that any
legal action or proceedings with respect to this Agreement may be initiated in
the courts of the State of Georgia and the Company and Associate hereby agree to
subject themselves to the jurisdiction of the federal and state courts of
Georgia with respect to any such legal action or proceedings.
k. Survival. Notwithstanding the expiration or termination of this
Agreement by any party for any reason whatsoever, the respect to rights and
obligations set forth herein will remain in full force and effect until they
have been fully exercised and discharged.
l. At-will employment. Nothing in this Agreement shall alter
Associate's status as an at-will employee or create any right to continued
employment.
IN WITNESS WHEREOF, the parties have executed this Agreement knowingly and
voluntarily on the respective date first set forth above.
ASSOCIATE: CheckFree Services Corporation
/s/ Xxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxx
_____________________________ ____________________________________
Xxxx X. Xxxxxxx Xxxxxxx X. Xxxxx
Its: Senior Vice President, Human Resources
______________________________________
Date: 2/11/03 Date: 2/11/03
______________________ ____________________________________
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