EMPLOYEE CONFIDENTIALITY AND INTELLECTUAL PROPERTY AGREEMENT (Including Invention Assignment, Nonsolicitation and Noncompetition)
Exhibit 10.69
(Including Invention Assignment, Nonsolicitation and Noncompetition)
I, (“Employee”), recognize and acknowledge that my position with
CLEARWIRE CORPORATION, a Delaware corporation (together with any of its related or affiliated
entities, the “Company”) will be one of trust and confidence. I understand and acknowledge
that the Company has a legitimate interest in preventing the dissemination or misuse of
Confidential Information, including trade secrets belonging to the Company, and therefore
agree to sign this Employee Intellectual Property Agreement (“Agreement”).
THEREFORE, as a condition of employment with the Company and in consideration of employment,
compensation, training and other good and valuable consideration, the sufficiency of which is
hereby acknowledged, I agree as follows:
1. Non-Disclosure of Confidential Information. I recognize and acknowledge that during the course
of my employment with the Company, I will have access to certain information not generally known to
the public, relating to the Company’s business. I agree that this information is “Confidential
Information” that belongs to the Company.
1.1 “Confidential Information” includes, without limitation, any information, in any form,
that the Company identifies as or considers to be confidential or proprietary, and that is not
publicly or generally available relating to the Company’s trade secrets (as defined by the Uniform
Trade Secrets Act); know-how; concepts; methods; research and development; products, technology
development plans; marketing plans or strategies, databases; inventions; research data and
mechanisms; software (including functional specifications, source code and object code);
procedures; engineering; marketing strategies; sales; customers and customer contacts and needs;
joint venture partners; suppliers; financial status and strategies; contracts or investors.
Confidential Information includes information developed by me, alone or with others, or entrusted
to by the Company or by its customers or others.
1.2 During the term of my employment and thereafter, I agree to hold the Company’s
Confidential Information in strict confidence, and not disclose or use it at any time except as
authorized by the Company and for the Company’s benefit. If anyone tries to compel me to disclose
any of the Company’s Confidential Information, by subpoena or otherwise, I will immediately notify
the Company so that the Company may take any actions it deems necessary to protect its interests.
My agreement to protect the Company’s Confidential Information applies both while I am employed by
the Company and after my employment with the Company ends, regardless of the reason it ends.
1.3 I understand it is the Company’s policy not to improperly obtain or use confidential,
proprietary or trade secret information that belongs to third parties, including others
who have employed or engaged me or who have entrusted confidential information to me. I will
not use for the Company’s benefit or disclose to the Company confidential, proprietary or trade
secret information that belongs to others, unless I advise the Company that the information belongs
to a third party and both the Company and the owners of the information consent to the disclosure
and use.
2. Inventions, Copyrights and Patents. The Company shall own and I hereby assign all “Inventions”
and copyrightable “Work Product” I make, conceive, develop, discover, reduce to practice or fix in
a tangible medium of expression, alone or with others, either: (a) during my employment by the
Company irrespective of whether or not such Invention was made using the Company’s time or
facilities; or (b) within one (1) year after my employment ends if the Invention or Work Product
results from any work, idea or conception (either partial or completed) I performed for the Company
or involves the use or assistance of the Company’s facilities, materials, personnel or Confidential
Information. The Company shall own and I hereby assign all Inventions that I conceived solely or
jointly or helped to reduce to practice while employed by the Company, and copyrightable Work
Product authored by me that I bring or have brought to the Company and that is used in the course
of the Company’s business or that is incorporated into any Work Product that belong to the Company.
2.1 Definition of “Inventions.” “Inventions” includes, but is not limited to, discoveries,
developments, concepts, ideas, improvements to existing technology, processes, procedures,
machines, products, compositions of matter, formulas, algorithms, computer programs and techniques
(including functional specifications, source code and object code), and all other matters
ordinarily intended by the word “invention,” whether patentable or not or otherwise legally
protectable. “Inventions” also includes all records showing any part of a conception or a
reduction to practice relating to an Invention.
2.2 Definition of “Work Product.” “Work Product” includes, but is not limited to, original
works of authorship, including interim work product, modifications and derivative works, and all
similar matters, whether or not copyrightable.
2.3 Definition of “Works Made For Hire.” All Work Product I produce within the scope of my
employment or using the Company facilities (which shall include all Work Product I produce related
to the Company’s business, whether or not done during regular working hours) shall be considered
“Works Made For Hire” so that the Company will be considered the author of the Work Product under
the federal copyright laws.
2.4 Assignment of Rights. I will promptly disclose to the Company, and will assign all right,
title and interest to the Company, all Inventions and copyrightable Work Product described in
paragraphs 2.1 and 2.2, including assignment of all copyrights (including renewal rights), patent
rights and trade secret rights. I waive any rights I have or may have in the Inventions and
copyrightable Work Product described in the prior paragraphs. At the Company’s direction and
expense, I will execute all documents and take all actions necessary or convenient for the Company
to document, obtain, maintain or assign its rights to the Inventions or Work Product. The Company
shall have full direct and control of all patent applications of these Inventions.
2.5 Excluded Inventions Pursuant to RCW 49.44.140. This Agreement does not apply to any
Invention which I developed entirely on my own time without using the Company’s equipment,
supplies, facilities or trade secret information unless: (a) the Invention relates at the time of
conception or reduction to practice of the Invention directly to the Company’s business, or actual
or demonstrably anticipated research and development; or (b) the Invention results from any work I
performed for the Company.
3. Noncompetition. I acknowledge that the Company has a genuine interest in, and considers
valuable, its Confidential Information, customer relationships and business strategies. In order
to protect the Company’s legitimate interest in its Confidential Information, I agree that during
the term of my employment and for a period of one (1) year from the date of termination of my
employment for any reason, I will not directly or indirectly, be employed by or connected with,
own, manage, operate, join, or benefit in any way from any entity for whom a substantial portion of
its business relates to fixed wireless technology and/or the delivery of services utilizing fixed
wireless technology and/or the delivery of broadband services. For purposes of the foregoing,
Employee will be deemed to be connected with such business if the business is carried on by: (a) a
partnership in which the Employee is general or limited partner; (b) a corporation of which
Employee is a shareholder (other than a shareholder owning less than 5% of the total outstanding
shares of the corporation), officer or director; or as an employee, consultant, agent, member or
other representative. Any business opportunities related to the Company’s business that I learn of
or obtain while employed by the Company (whether or not during working hours) belong to the
Company, and I will pursue them only for the Company’s benefit.
4. Nonsolicitation. During the course of my employment and for a period of one (1) year from the
date of termination of my employment hereunder for any reason, I shall not directly or indirectly
solicit, recruit or entice any of the following to cease, terminate or reduce any relationship with
the Company or to divert any business from the Company: (a) any person who was an employee of the
Company during the one-year period immediately preceding the termination of my employment; (b) any
contractor or supplier of the Company; (c) any customer or client of the Company; or (d) any
prospective customer or client of the Company from whom I actively solicited business within the
last six (6) months of my employment. Further, I will not directly or indirectly disclose the
names, addresses, telephone numbers, compensation or arrangements between the Company and any
person or entity described herein. In addition, during the course of my employment and for a
period of one (1) year from the date of termination of my employment for any reason, I shall not
directly or indirectly, on behalf of myself or any other entity hire, or contract with any person
who was employed by the Company during the one (1) year prior to the termination of my employment.
5. Company Materials. I will safeguard and return to the Company when my employment ends, or sooner
if the Company requests, all information, documents, electronic media and other property in my
care, custody or control relating to my employment or the Company’s business, including without
limitation any documents or electronic media that contain the Company’s Confidential Information.
6. No Disparagement or Interference. I will not disparage the Company or its business and will not
interfere with the Company’s relationships with its customers, advertisers, joint venture
partners, investors, employees, vendors, bankers or others. This applies both while I am employed by the
Company and after my employment by the Company ends, regardless of the reason it ends.
7. Employee’s Warranty. I represent and warrant that I have disclosed all facts, if any, pertaining
to restrictions on my ability to enter into this Agreement. I further represent and warrant that I
am not bound by any agreements with third parties that would prevent me from lawfully performing
all duties requested of me by the Company. I understand that it is the Company’s policy not to
improperly obtain or use confidential, proprietary or trade secret information that belongs to
third parties, and I agree not to use such third-party confidential, proprietary or trade secret
information for the Company’s benefit.
8. Reasonableness of Terms. I acknowledge that the terms of this Agreement are reasonably necessary
to protect the Company’s legitimate business interests. I acknowledge that if my employment with
the Company ends, my experience and capabilities are such that I can obtain employment that does
not violate this agreement and that an injunction to enforce this agreement will not prevent me
from earning a reasonable livelihood.
9. Future Consulting or Employment for the Company. If my employment relationship with the Company
ends but the Company employs me again or engages me as a consultant, then this Agreement shall
apply to my later employment(s) or engagement(s) unless they follow a period of one (1) year or
more during which I was neither employed nor engaged by the Company. If this Agreement becomes
applicable to a consulting relationship, the references in this Agreement to my employment by the
Company shall be treated, as appropriate, as referring to my consulting relationship with the
Company.
10. No Guarantee of Employment. I understand this Agreement is not a guarantee of continued
employment. My employment is terminable at any time by the Company or me, with or without cause or
prior notice, unless otherwise provided in a written employment agreement.
11. Equitable Relief. I acknowledge that the provisions of this Agreement are essential to the
Company and that a breach of any provisions of this Agreement can create a severe and unfair
business disadvantage that cannot be adequately remedied by traditional legal recourse to damages.
Therefore, the Company may enforce this Agreement directly in any court having appropriate
jurisdiction and, in addition to any other remedy it may have at law, shall be entitled to
injunctive or other equitable relief to prevent or curtail any breach of this Agreement.
12. Controlling Law. This Agreement shall in all respects, including all matters of construction,
validity and performance, be governed by and construed and enforced in accordance with the laws of
the State of Washington. Any legal proceeding in connection herewith shall be brought in
Washington.
13. Assignment to Successor Company. In the event that the ownership or corporate form of the
Company changes whether by acquisition of stock or assets and regardless of any change in the form or name of the employing entity, this Agreement shall be assignable by the Company to
the entity that succeeds it without further notice to me.
14. Severability. If any portion of this Agreement is held to be invalid or unenforceable for any
reason, the remaining covenants shall remain in full force and effect to the maximum extent
permitted by law. The Agreement shall not be construed against the Company by reason of the
drafting or preparation hereof.
15. Entire Agreement. This Agreement constitutes the entire agreement between the parties with
respect to the subject matter covered herein. All prior understandings and agreements between the
parties with respect to such subject matter, whether oral or written, are hereby superseded and
nullified. This Agreement may only be amended in writing, specifically identifying this Agreement
and the provision(s) to be amended.
16. Nonwaiver. The failure of either party to insist upon or enforce strict performance by the
other of any provision of this Agreement or to exercise any right, remedy or provision of this
Agreement will not be interpreted or construed as a waiver or relinquishment to any extent of such
party’s right to consent or rely upon the same in that or any other instance; rather, the same will
be and remain in full force and effect.
17. Voluntary Agreement. I acknowledge that I have carefully read this Agreement, that I understand
its terms, that all understandings between the Company and me relating to the subjects covered in
the Agreement are contained in it, and that I have entered in to the Agreement voluntarily and not
in reliance on any promises or representations by the Company other than those contained in this
Agreement. I further acknowledge that I have been given the opportunity to discuss this Agreement
with legal counsel and have taken advantage of that opportunity to the extent I wish to do so.
EMPLOYEE
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CLEARWIRE CORPORATION | |
Signature of Employee
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Signature of Authorized Company | |
| Representative | ||
Print Name of Employee
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Title of Representative | |
Date
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Date |
