BRITESMILE, INC. CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
This Confidentiality and Non-Disclosure Agreement is between
BriteSmile, Inc. ("BriteSmile") and ___________________ ("Employee/Consultant").
AGREEMENT
BriteSmile is a nationwide provider of an advanced tooth whitening
procedure. In this regard, BriteSmile has developed tooth whitening technology,
and manages BriteSmile tooth whitening centers.
In consideration of this Agreement and of BriteSmile's promise of new
or continued employment or service, and the covenants and conditions contained
herein, and other valuable and sufficient consideration, the adequacy of which
is hereby acknowledged, the parties to this Agreement agree as follows:
1. Covenant of Confidentiality and Non-Disclosure.
a. In order for Employee/Consultant to provide, or to continue
to provide, services to BriteSmile, BriteSmile has provided and/or is
required to provide Employee/Consultant with certain trade secrets and
proprietary information of BriteSmile ("Proprietary Information").
b. As used in this Agreement, the term Proprietary Information
is defined to include: (i) all software, computer programs, source
code, object code, system documentation, user documentation, system
designs, program materials, screen displays, manuals, operation
processes, equipment design, product specifications, written materials,
documentation, data and information regarding products or services,
whether finished, under development or being tested, whether any or all
of the foregoing are in tangible, magnetic, digital or other form; (ii)
concepts, methods, techniques, formats, patterns, compilations,
programs, devices, designs, technology, equipment, formulas, processes,
packaging, testing, information, data, systems, operations, ideas,
research, improvements, inventions, discoveries and know-how; (iii)
information relating to BriteSmile's customers, accounts, suppliers,
distributors, marketing activities or plans, business plans,
distribution, pricing, financial matters, financial statements, or any
information revealed to BriteSmile by third parties under any
confidentiality agreement, understanding or duty; and (iv) information
generally regarded as confidential in the industry or business in which
BriteSmile is engaged, which are or shall be owned, developed, used by,
related to or arise from BriteSmile, its businesses, activities,
investigations, work of its employees or agents, utilization of
equipment, supplies, facilities or information, now or in the future,
whether or not published, patented, copyrighted, registered or suitable
therefore.
c. Employee/Consultant acknowledges that BriteSmile's
Proprietary Information is valuable, special and unique to its
business; that it is not widely known; and that BriteSmile's business
depends on such Proprietary Information.
d. Employee/Consultant acknowledges that BriteSmile has taken,
and continues to take, reasonable and necessary steps to protect its
Proprietary Information and keep it confidential, including requiring
him/her to sign this Agreement.
e. Based on the foregoing, Employee/Consultant agrees as
follows:
(i) All rights to Proprietary Information are and
shall remain the sole property of and in control of
BriteSmile;
(ii) Except as required by applicable law or as
authorized in writing by BriteSmile's Board of Directors,
he/she will keep BriteSmile's Proprietary Information
confidential;
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(iii) Except as required by applicable law or as
authorized in writing by BriteSmile's Board of Directors,
he/she will not, at any time: (a) reproduce or copy; (b)
disclose or transfer; (c) aid encourage or allow any other
person, business or entity to gain possession or access to;
(d) use, sell, or exploit; or (e) encourage or allow any other
person, business or entity to use, sell or exploit, any of
BriteSmile's Proprietary Information;
(iv) He/she will not or disclose any information
received by BriteSmile from a third party for the period
required by any confidentiality agreement, understanding or
duty between BriteSmile and the relevant third party; and
(v) He/she will notify future employers and customers
of the terms of this provision and his/her responsibilities
hereunder.
2. Injunctive Relief. Employee/Consultant agrees that irreparable harm
shall be presumed in the event of any breach of this Agreement, and further
agrees that in connection with any such breach, damages would be difficult if
not impossible to ascertain, and the faithful observance of all terms of this
Agreement is an essential condition to employment or service with BriteSmile.
Furthermore, Employee/Consultant agrees that this Agreement is intended to
protect the proprietary rights of BriteSmile in important ways, and the threat
of any misuse of the technology of BriteSmile would be extremely harmful because
of the importance of that technology. In light of these considerations,
Employee/Consultant agrees that any court of competent jurisdiction may
immediately enjoin any breach of this Agreement, upon the request of BriteSmile,
and Employee/Consultant specifically releases BriteSmile from the requirement of
posting any bond in connection with temporary or interlocutory injunctive
relief, to the extent permitted by law.
3. Modification of Agreement by Court. Employee/Consultant
agrees that if any
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provision of this Agreement or the application thereof is held invalid, the
invalidity shall not affect other provisions or applications of the Agreement
which can be given effect without the invalid provisions or applications and to
this end the provisions of the Agreement are declared to be severable.
Employee/Consultant further agrees that if any court or tribunal refuses to
enforce the restrictive covenants contained herein, neither this Agreement nor
any part thereof, shall be void, and that the particular restriction deemed to
be unreasonable or unenforceable shall be reduced or otherwise modified by such
court or tribunal, but only to the extent necessary to permit its enforcement
and only in such court's jurisdiction. Employee/Consultant further agrees that
if any provision cannot be reduced or modified to make it reasonable and/or
permit its enforcement, that provision shall then be severed from this Agreement
and the remaining provisions shall be interpreted in such a way as to give
maximum validity and enforceability to this Agreement.
4. Modification of Agreement by Parties. Employee/Consultant agrees
that this Agreement may not be changed, modified, released, discharged,
abandoned, or otherwise terminated, in whole or in part, except by an instrument
in writing, by both parties.
5. Term of Agreement. Employee/Consultant acknowledges that the terms
of this Agreement shall survive termination of his/her employment.
6. Non-Waiver. Employee/Consultant agrees that the failure of
BriteSmile to take an action under this Agreement or the waiver of a breach of
this Agreement shall not affect BriteSmile's rights to require performance
hereunder or constitute a waiver of any subsequent breach.
7. Governing Law. Employee/Consultant and BriteSmile agrees that any
disputes or controversies of any kind relating in any way to this Agreement,
whether sounding in tort, contract or otherwise, shall be construed in
accordance with the laws of the United States and the State of California.
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8. Forum Selection. Employee/Consultant agrees that any judicial
proceeding related in any way to this Agreement, shall be brought exclusively in
the state or federal courts of the State of California.
9. Consent to Jurisdiction. Employee/Consultant and BriteSmile hereby
consent to the jurisdiction of the state and federal courts of the State of
California and waive any rights to contest the power of the courts of the State
of California to exercise personal jurisdiction over them.
10. Existing Employment Agreements. Employee/Consultant acknowledges
that the terms of any existing employment agreements remain in full force and
effect to the extent they do not conflict with the terms of this Agreement, in
which case the terms of this Agreement shall control.
12. Headings. The paragraph headings in this Agreement are for
purposes of convenience only and shall not limit or otherwise affect any of the
terms hereof.
13. Attorneys' Fees and Costs. BriteSmile and Employee/Consultant
agree that in the event of a dispute arising under or related in any way to this
Agreement, the non-prevailing party shall pay all costs and expenses, including
reasonable attorneys' fees, that may arise or accrue from enforcing this
Agreement, obtaining an interpretation of any provision of this Agreement, or in
pursuing any remedy provided by applicable law whether such remedy is pursued or
interpretation is sought by mediation, arbitration, the filing of a lawsuit, an
appeal, and/or otherwise.
Dated this day of Dated this day of
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, 2000. , 2000.
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BriteSmile, Inc.
By:
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Its:
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