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Exhibit 10.8
AGREEMENT
EMPLOYMENT, CONFIDENTIALITY, AND NON-COMPETITION
THIS AGREEMENT, entered into this __________, by and between TANNING
TECHNOLOGY CORPORATION, a Delaware corporation doing business at 0000 Xxxxx
Xxxxxx Xx., Xxxxx 000, Xxxxxx. Xxxxxxxx 00000 (hereafter referred to as
"Employer") and _______ of ____________ (hereafter referred to as "Employee"),
is made upon the following terms and conditions:
RECITALS:
Employer is willing to accept and engage Employee to work for the Employer
for an indeterminate period of time solely at the Employer's will, and during
such period of employment Employer will provide Employee with certain salary,
benefits, training, workspace, and guidance in return for the full and faithful
performance by the Employee of those duties and responsibilities of the job as
identified in this Agreement and by the Employer from time to time.
Employee understands that significant assets of the Employer consist of
data, code, programs, software, processes, client contacts and lists, and other
technical, business, and financial information of all types developed by the
Employer and the Employer's employees for itself as well as clients and
customers, which assets are held by the Employer as trade secrets (hereinafter,
the "Trade Secrets").
Employee understands that certain information and data may be provided to
the Employer from time to time by clients and customers of the Employer, on the
understanding and condition that such data and information (hereinafter, the
"Third Party Information") will be protected by the Employer and its Employees
as confidential information, and as such will not be disclosed to any entity or
person not authorized by the client or customer.
Employee understands that in the course of performing work for the Employer
that he or she will develop from time to time ideas, processes, codes,
applications, information, data, and other items that will be the work product
of the employment relationship (hereinafter, the "Employment Work Product"), and
that any and all such Employment Work Product shall be and remain the property
of the Employer.
Employee understands that the Employer will invest substantial time and
money into the further training, education, and skill development of the
Employee, both by formal guidance and informal logistical and technical support,
and that such investment in the Employee is also a substantial asset of the
Employer which the Employer is entitled to protect.
Employee understands and agrees that all present and future information and
know-how regarding Employer's business, financial affairs, services, products,
ideas, techniques, processes, plans, technology, codes, clients and customers,
whether or not in writing, and including all Trade Secrets, Third party
Information, and Employment Work Product (collectively "Confidential
Information") will not be disclosed by the Employee to any person or entity
without the specific authorization of the Employer.
THEREFORE, for and in consideration of the recitals, covenants, conditions,
duties, and forbearances set forth in this document, the Employer and Employee
agree as follows:
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1. Period of Employment and the Term this Agreement. Unless otherwise clearly
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specified in the document entitled "Employee Specific Terms" (which document is
attached to this Agreement and fully incorporated into this Agreement by this
reference), the Employee shall be employed by and work for the Employer on an
"at will" basis. Employment "at will" means that both the Employer and Employee
are given the full right to terminate the employment relationship at any time,
with or without cause to do so, provided that the obligations set forth
hereafter regarding "Termination of Employment" are met. The provisions of
Sections 5, 6, 7, 8, 10, and 14, hereafter, shall survive the termination of
this Agreement.
2. Services of the Employee. During the "Period of Employment", the Employee
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agrees to devote his full time and attention to the business of the Employer and
those duties and obligations entrusted to the Employee as specified in the
Employee Specific Terms document and as specified by the Employee's supervisor
or superiors from time to time. "Period of Employment" shall mean that period
of time that the Employee provides labor and/or services for the Employer, which
may be prior to and after the date of this Agreement. This obligation shall not
prohibit the Employee from engaging in charitable activities or passive
investments on the Employee's own time. The Employee's primary place of work
shall be as specified in the Employee Specific Terms document.
3. Wage or Salary, Benefits, Vacation, and Other Compensation. Employee shall
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be paid in the fashion, and at such rate or sum, as are more particularly set
forth in the Employee Specific Terms document. The Employee shall be eligible
for such benefits and Vacation as are also set forth in the Employee Specific
Terms document. The Employer agrees to reimburse the Employee for all
reasonable expenses incurred by the Employee in connection with the Employee's
services to Employer, consistent with Employer's policies and procedures for
reimbursement of such expenses, as such policies and procedures may exist from
time to time.
4. Termination of Employment. Unless provided otherwise in the Employee
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Specific Terms document, this Agreement, together with the employment
relationship and the Period of Employment shall terminate under certain
circumstances as follows. The termination of the employment relationship and
the Period of Employment shall not terminate the obligation of the parties to
comply with those terms of this Agreement intended to extend beyond the
termination of the Period of Employment, including without limitation, those
obligations with respect to confidentiality and non-competition.
A. Death. This Agreement and the Period of Employment shall
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automatically terminate upon the death of the Employee.
B. Disability. This Agreement and the Period of Employment shall
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automatically terminate in the event of the Disability of the
Employee, subject to any limitations imposed by applicable law, upon
30 days prior written notice by Employer. "Disability" shall have the
meaning given to such term in the Employer's disability insurance
policies as in effect from time to time.
C. Cause. This Agreement and the Period of Employment shall terminate
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at the option of the Employer immediately upon delivery by Employer
of written notice to Employee that:
i. the Employee has acted or failed to act in such a fashion
as to constitute dishonesty, fraud, or other serious
misconduct deemed by Employer to have a material adverse
effect upon the operation of the Employer's business, or
ii. the Employee has willfully failed to follow the lawful
instructions of his or her superiors, or
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iii. the Employee has failed to comply with the requirements of
this Agreement and/or any workplace or job performance rule
set forth under the authority of this Agreement, or
iv. the Employee has failed to successfully or adequately
perform his or her work obligations as the same have been
delegated to him or her, and has failed to successfully
complete any corrective action program established pursuant
to the Employer's company wide employment policies.
D. Not for Cause. Because the employment relationship created by this
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Agreement is expressly understood to be "at will" of both parties,
this Agreement and the Period of Employment shall terminate upon at
least 14 days written notice by either party to the other, unless
provided otherwise in the Employee Specific Terms document. In such
event, the Employer shall have the option, in its sole discretion, to
relieve the Employee of his or her work obligations and to deny the
employee access to the Employer's place of business for any reason
other than to retrieve the Employee's personal property.
In the event of any termination pursuant to paragraphs A, B, or C
above, the Employee shall be entitled to receive his or her salary and/or
other compensation as identified in the Employee Specific Terms document
through the effective date of termination. In the event of termination
pursuant to paragraphs A or B above, the Employee shall be entitled to any
benefits payable under any health, welfare or insurance plan maintained by
the Employer which covers such event. In the event of termination pursuant
to paragraphs A, B, or C above, the employee shall not be entitled to any
severance or other compensation except as provided above, or except as may
be provided otherwise in the Employee Specific Terms document.
In the event of termination pursuant to paragraph D above, upon notice
by the Employee, the Employee shall be entitled to receive his or her other
salary or other compensation due prior to termination so long as Employee
continues to effectively perform his or her job obligations. In the event
of termination pursuant to paragraph D above, upon notice by the Employer,
the Employee shall be entitled to severance payment in an amount equal to
six moths of the Employees then existing base salary, paid pro rata over a
six month period. The Employee Specific Terms document and/or any written
agreement between the parties subsequent to the date of this Agreement may
specify additional or lesser payments or benefits due to the Employee by
reason of termination not for cause.
5. Non-Competition Covenant and Agreement. The Employee acknowledges and
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understands that his or her position with the Employer will be as an officer of
Employer, a member of executive or management personnel of the Employer, or as a
member of the professional staff of such executive or management personnel. The
Employer has invested and/or will invest considerable time and money in the
development and enhancement of the Employee's skills and knowledge of the
Employer's unique business and unique type of business, which business is
worldwide in scope and market. This enhanced skill and knowledge will be the
principal reason that the Employer continues the employment relationship and
continues to compensate the Employee for his or her work. In addition, the
Employee has or will become aware of the Trade Secrets and trade practices of
the Employer, which secrets and practices in the hands of a competitor or
potential competitor would cause substantial loss and damage to the Employer
and/or its customers and clients. Finally, the Employee has had close customer
contact, which would enable him or her to divert customer trade. In
consideration of all of the above identified matters, the Employee agrees and
acknowledges that is appropriate to accept restrictions on his or her right to
work or be employed in a fashion which will compete with the Employer's business
and type of business. Therefore Employee covenants, agrees to, and accepts the
following restrictions:
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A. Employee will not, without the prior written consent of an authorized
officer of the Employer, during the Period of Employment, and for six
months after the termination of employment for any reason, alone or in
concert or cooperation with any other person or entity, as principal,
employee, shareholder, consultant, or any other type of advisor,
directly or indirectly, develop, seek to develop, market, produce or
provide any commercial product or service in the nature of those
provided by, or under development by the Employer or any of its
affiliates during the Period of Employment. This non-competition
obligation shall apply to North America, Europe, and any other country
where Employer or any of its subsidiaries or affiliates are actively
engaged in or pursuing business during the Employee's Period of
Employment. This paragraph A shall not prohibit the ownership by
Employee of less than 5% of any publicly traded corporation.
B. During the period that Employee is subject to the restrictions set
forth in A. above, he or she shall not (1) hire or solicit the
employment or services of any person who is an employee or consultant
of the Employer or its successors or assigns, or any former employee
of the Employer whose employment has been terminated for less than six
(6) months; or (2) directly or indirectly solicit business competitive
with the Employer's then current business from any customer or client
which has done business with the Employer or from which the Employer
has solicited business at any time or from time to time within six
months from the date of such solicitation. The above shall not
prohibit the Employee from using the services of any such person in a
way that clearly does not compete with the business of Employer.
C. The time periods of the restrictions set forth in A. and B. above
shall be extended for any period of time that Employee is found to be
in violation of any provision of this Section 5.
6. Confidentiality, Non-Disclosure, and Proprietary Rights. Employee
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understands and acknowledges that all present and future information and know-
how regarding the Confidential Information, whether or not created by the
Employee, whether or not formally marked or identified as confidential, are and
shall remain the exclusive property of the Employer. Any material, ideas and
information which is generally known to the public will not be deemed
Confidential Information. Employee understands that such Confidential
Information and the proprietary rights contained therein are substantial and
essential assets of Employer's business, and as such, it is essential that the
same be protected. In order to meet this goal, the Employee covenants and
promises to the Employer as follows:
A. During Employee's Period of Employment by the Employer, and
thereafter, the Employee will not use, disclose, or permit access to
any Confidential Information, and will take all reasonable
precautions to prevent any person or entity access to any of the
Confidential Information other than as required in the performance of
Employee's duties with the Employer. In order to satisfy the needs of
Employer's clients and customers, Employee will sign any
confidentiality agreement reasonably requested by such third parties
and/or Employer. Employee understands that he or she is not permitted
to sell, license, market or otherwise exploit any products, services
or other Confidential Information, in whole or in part, including
software or code in any form.
B. At the end of the Employee's Period of Employment, Employee will
deliver to the Employer all tangible materials embodying the
Confidential Information, including without limitation any computer
software, input sheets and descriptions, code, code libraries,
electronic storage disks, practice aids and practice aid materials
(worksheets, schedules, tables, brochures, manuals, etc.),
documentation, records, listings, notes, data, sketches, drawings,
memoranda,
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models, accounts, reference materials, samples, human or machine
readable media and equipment, and any other material which is or in
any way relates to the Confidential Information, to the businesses of
the Employer, to the representation of the Employer, or to the
clients, customers, suppliers, vendors, or similar contacts of the
Employer. Employee further agrees not to retain any copies of the
above-described materials.
C. Employee hereby agrees to assign, and does hereby assign, all of
Employee's right, title and interest in or to any and all ideas,
concepts, know-how, techniques, processes, inventions, discoveries,
developments, works of authorship, innovations and improvements
(collectively "Inventions") conceived or made by Employee, whether
alone or in concert with others, whether patentable or subject to
potential copyrights or not, except those that the Employee developed
or develops entirely on his or her own time without using the
equipment, supplies, facilities, or Confidential Information of the
Employer, and provided that such Inventions are unrelated to the
business of the Employer. Employee agrees to promptly inform and
disclose all Inventions to the Employer in writing, and with respect
to those Inventions that Employee is required to assign to the
Employer hereunder, to provide all assistance reasonably requested by
the Employer in the preservation of its interests in the Inventions
(such as by executing documents, testifying, etc.), such assistance
to be provided at the Employer's expense with compensation to the
Employee for such assistance at a reasonable hourly rate.
D. Employee agrees that any work prepared by the Employee during his or
her Period of Employment, which work is subject to assignment under
C. above, and which is eligible for United States copyright
protection or protection under the Universal Copyright Convention,
the Berne Copyright Convention and/or the Buenos Aires Copyright
Convention shall be a "work made for hire". In the event that any
such work is deemed not to be a "work made for hire", Employee hereby
assigns all right, title and interest in and to the copyright in such
work to the Employer, and agrees to provide all assistance reasonably
requested in the establishment, preservation and enforcement of the
Employer's copyright in such work, such assistance to be provided at
the Employer's expense but without any additional compensation to
Employee.
E. In the event that the Employer is unable, as a result of inability to
find the Employee after a reasonably diligent effort, as a result of
the death or incapacity of the Employee, or as a result of the
unjustifiable refusal of the Employee, to secure the Employee's
signature on any letters patent, copyright or other analogous
protection relating to Inventions or other proprietary rights, the
Employee hereby irrevocably designates and appoints Employer, by its
duly authorized officers and agents as the Employee's agent and
attorney-in-fact, to act for and on the Employee's behalf and stead
to execute and file any such application or applications and to do
all other lawfully permitted acts to further the prosecution and
issuance of letters patent, copyright, or other analogous protection
thereon with the same legal force and effect as if executed by the
Employee.
7. Employee Notification Requirement. During the Period of Employment, the
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Employee will notify the Employer of any change of address, and the
Employee will identify and notify the Employer of each and any new job or
other business activity in which the Employee plans to engage, together
with the name and address of the new employer and the nature of the
Employee's new position with such new employer.
8. Former Employment or Work. Employee represents, acknowledges and agrees
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that he or she has not brought, and will not bring with him or her, or use
in the performance of his or her duties for the Employer, any materials or
documents of any former employer, person, or entity of any type, which
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are not generally available to the public, unless the Employee has obtained
written authorization for the possession and use of such materials or
documents and provided such authorization to Employer. Employee also
understands and agrees, that in his or her employment with the Employer,
Employee shall not breach any obligation of confidentiality or legal duty
that Employee has to any former employer or client and agrees that he or
she will fulfill any and all such obligations during his or her Period of
Employment.
9. Assignment. This Agreement, and the duties, obligations and benefits
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hereunder shall bind and benefit the parties hereto, and to the extent
necessary to carry out its intentions, the legal and personal
representatives of the parties. This Agreement may not be assigned without
the written permission of the parties, except that the Employer may assign
this Agreement to any successor of the Employer by reason of
reorganization, merger, consolidation, or the partial or complete sale of
the Employer's business and/or assets.
10. Indemnification and Remedy. Each party agrees to indemnify and save
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harmless the other against any and all damages, claims, losses or expenses,
including reasonable attorney's fees, arising from or relating to any
breach of this Agreement. Both parties acknowledge and agree that a breach
by the either party of the obligations set forth in Sections 5 through 9,
above, will result in immediate and irreparable harm to the other and that
the other would have no adequate remedy at law, and that as a result, the
aggrieved party will be entitled to specific performance as well as other
appropriate injunctive and equitable remedies such as a temporary
restraining order. None of the forgoing shall limit the Employer from
seeking a legal remedy including the recovery of monetary damages.
11. Workplace Rules. The Employer may make, adopt, and provide to the
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Employee such rules as the Employer deems necessary to provide for a safe,
efficient, productive and effective workplace and work environment. Any
such rules, to the extent not violative of any legal right of the Employee,
shall be deemed to be as binding upon the employee as if they were included
in the body of this Agreement.
12. Entire Agreement and Amendment. This Agreement, together with the Employee
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Specific Terms document, constitutes the entire agreement between the
Employer and Employee, and any verbal or written communication between the
parties prior to the adoption of this Agreement shall be deemed merged
herein and of no further force and effect. This Agreement may only be
altered or amended by a writing signed by the Employee and an authorized
officer of the Employer.
13. Waiver. Neither the delay nor failure by the Employer or Employee to
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exercise any right under this Agreement, nor partial or single exercise of
any such right, shall constitute a waiver of that or any other right.
14. Governing Law, Interpretation and Venue. This Agreement is entered into
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in Denver, Colorado, and as such it shall be interpreted and enforced under
the laws of the state of Colorado applicable to contracts made to be
performed entirely within Colorado. In the event that any one or more
provision in this Agreement shall, for any reason, held to be invalid,
illegal, or unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provision of this Agreement,
but this Agreement shall be construed as if such provision had never been
contained herein. If any provision in this Agreement shall be held to be
excessively broad as to duration, activity or subject in any jurisdiction,
it shall be construed by limiting and reducing the provision which is
deemed excessively broad. A limitation or reduction in the application of
any provision in one jurisdiction
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shall not affect the application of the same provision in any other
jurisdiction. The proper venue for any legal action as to the
interpretation or enforcement of this Agreement shall be a court of
appropriate jurisdiction located in the City and County of Denver,
Colorado.
15. Notices. Any notice required or permitted by this Agreement shall be
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effective when received, and shall be sufficient if in writing and
personally delivered (including by express courier) or sent by certified
mail with return receipt to the address set forth at the end of this
Agreement or at such other address as may by notice be specified by one
party to the other.
16. Counterparts. This Agreement may be executed in two or more counterparts,
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each of which shall be deemed an original, but all of which shall together
constitute one and the same Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
TANNING TECHNOLOGY EMPLOYEE
CORPORATION (Employer)
By:
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Printed Name: Employee
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Title:
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0000 Xxxxx Xxxxxx Xx., Xxxxx 000 Address and Phone:
Xxxxxx, XX 00000
000-000-0000
