NON-DISCLOSURE AND INVENTIONS AGREEMENT
Non Disclosure and Inventions Agreement (the "Agreement") between The Recovery
Network ("Company"), and Xxxxxxx Xxxxx ("Employee"), dated as of January 30,
1997. For their mutual benefit and in consideration of the employment or
continued employment of Employee by Company, or its subsidiaries, affiliates or
successors, Company and Employee hereby agree as follows:
1. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION
(A) ACCESS TO CONFIDENTAL INFORMATION; DEFINITIONS
Employee acknowledges and agrees that Employee may have access to or may create
or aid in the creation of information or material that is commercially valuable
to Company and not generally known in the industry (Company's "Confidential
Information"). Confidential Information includes but is not limited to:
(i) any and all versions of any Company proprietary computer
software and any documentation related thereto;
(ii) technical information concerning Company's products and
services, including product data and specifications, know-how,
formulae, diagrams, flow charts, drawings, source code, object
code, program listings, test results, processes, inventions,
research projects and product development;
(iii) any and all versions of any Company designs, patents,
trademarks or copyrightable works, discoveries, formulae,
processes, manufacturing techniques, trade secrets,
inventions, improvements, ideas, business plans
(iv) information concerning Company's business, including cost
information, profits, sales information, accounting and
unpublished financial information, business plans or
strategies, markets and marketing methods, customer lists and
customer information, sponsor lists and sponsor information,
purchasing techniques, supplier lists and supplier information
and advertising strategies;
(v) information concerning Company's employees, including
salaries, strengths, weaknesses and skills;
(vi) information submitted by Company's customers, suppliers,
employees, Employees or co-venturers with the Company for
study, evaluation or use; and,
(vii) any other information not generally known to the public or by
actual or potential competitors of the Company, which, if
misused or disclosed, could reasonably be expected to
adversely affect Company's business.
(B) EMPLOYEE'S OBLIGATIONS TO MAINTAIN CONFIDENTIALITY
Employee acknowledges and agrees that:
(i) all Confidential Information, whether written or unwritten,
whether created by or conveyed to Employee, and however
conveyed to Employee, is the sole and exclusive property of
the Company and is regularly used by Company in the operation
and conduct of its business, and that the unauthorized
disclosure of Confidential Information would have a material
adverse effect on the Company's business, operations and
competitive position;
(ii) Employee will not at any time divulge to any person, firm, or
corporation, orally or in writing, directly or indirectly, in
whole or in part, any Confidential Information, without the
Company's explicit prior written consent;
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(iii) Employee will receive and maintain all Confidential
Information in strictest confidence using reasonable care;
(iv) that any violation or breach of this Agreement may result in
significant and irreparable injury to the Company, that a
remedy at law may be inadequate, and that, in the event of any
such violation or breach, the Company, in addition to any
other relief to which it may be entitled, shall be entitled to
temporary and permanent injunctive relief.
(C) EXCLUSIONS
Notwithstanding anything in this Agreement to the Contrary, Employee has no duty
of non-disclosure with respect to Confidential Information that:
(i) was in Employee's possession or already known to Employee
without an obligation to keep it confidential, before such
information was disclosed to Employee by Company, is publicly
available at the time of disclosure or that becomes publicly
available after disclosure other than through breach of this
Agreement or other wrongful act;
(ii) is disclosed by Employee with Company's prior written
approval;
(iii) is disclosed to Employee by a third party who is not in breach
of an obligation of confidentiality to Employee; or,
(iv) Employee develops independently other than through breach of
this Agreement, or,
(v) is disclosed under operation of law.
(D) RETURN OF MATERIALS
Upon termination of employment or upon Company request at any time, Employee
agrees to promptly deliver to Company:
(i) all originals and copies of all memoranda, documents, notes,
records, software programs, and other materials containing any
of Company's Confidential Information, including all written
or digital records and copies thereof; and,
(ii) all equipment, files, software programs and any other tangible
or intangible personal property belonging to Company.
(E) TERM
The provisions of this Section 2 shall apply to the entire term of Employee's
employment with Company, including any period of employment or consulting prior
to the date of this Agreement periods, shall survive the termination of the
Employee's employment and shall continue for so long as the Employee remains in
possession of Confidential Information.
2. INVENTIONS; COMPANY PROPERTY AND EXCLUSIONS
(A) DEFINITION OF INVENTIONS
As used in this Agreement, the term "Inventions" means designs, trademarks,
discoveries, formulae, processes, manufacturing techniques, trade secrets,
inventions, improvements, ideas, business plans or strategies, or patentable or
copyrightable works, including all rights to obtain, register, perfect and
enforce these proprietary interests; provided that the term "Inventions" shall
not be deemed to include those inventions, if any, listed on Schedule A
attached hereto and incorporated herein by reference.
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(B) OWNERSHIP OF INVENTIONS
Without further compensation, Employee hereby agrees promptly to disclose to the
Company, and hereby assigns and grants and agrees to assign and grant to the
Company or its designee, its entire right, title, and interest in and to all
Inventions which Employee may solely or jointly develop or reduce to practice
during the period of employment and:
(i) which pertain to any line of business activity of the Company;
(ii) which are aided by the use of time, material or facilities of
the Company, whether or not during working hours; or,
(iii) which relate to any of Employee's work of during the period of
this Agreement, whether or not performed during normal working
hours.
Notwithstanding anything else in this Section 2 to the contrary, no rights are
hereby conveyed in Inventions, if any, made by Employee prior to the period of
this Agreement and which are identified in Schedule A attached hereto and
incorporated herein by reference (which Schedule attachment contains no
confidential information).
(C) SECTION 2870 OF THE CALIFORNIA LABOR CODE
This Agreement does not apply to an Invention which qualifies fully under the
provisions of Section 2870 of the Labor Code, a copy of which is attached hereto
as Exhibit A. Employee agree to disclose all Inventions made by Employee during
the term of this Agreement in confidence to the Company to permit a
determination as to whether or not the Inventions should be the property of the
Company.
(D) COPYRIGHTS, TRADEMARKS AND PATENTS
Company shall have the right to have all or any of the Inventions assigned and
granted to Company pursuant to Section 2(b) above copyrighted, trademarked or
patented with the government of the United States or any applicable state or
foreign government agency in the name of Company and at Company's expense.
(E) EMPLOYEE'S ASSISTANCE
Employee agrees to provide all reasonable assistance to Company in preparing and
prosecuting any and all proprietary rights applications pursuant to Section
2(d) above. In particular:
(i) Employee agrees to perform, during and after the term of this
Agreement, all acts deemed necessary or desirable by Company
to permit and assist it, at its expense, in obtaining and
enforcing the full benefits, enjoyment, rights and title
throughout the world in all or any of the Inventions assigned
and granted to Company pursuant to Section 2(b) above. Such
acts may include, but are not limited to, execution of
documents and assistance or cooperation in legal proceedings;
(ii) If Company is unable for any reason to secure any signatures
from Employee, its partners or staff, to apply for or to
pursue any application for any United States or foreign
letters patent or mask work or copyright registration covering
inventions, mask works or original works of authorship
assigned to Company as above, then Employee hereby irrevocably
designates and appoints Company and its duly authorized
officers and agents as its agent and attorney-in-fact, to act
for and in Employee's behalf and stead to execute and file any
such applications and to do all other lawfully permitted acts
to further the prosecution and issuance of letters patent or
mask work or copyright registrations thereon with the same
legal force and effect as if executed by Employee. Employee
hereby waives and quitclaims to Company any and all claims, of
any nature whatsoever, which Employee now or may hereafter
have for infringement of any
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patents, mask works or copyrights resulting from any such
application for letters patent or mask work or copyright
registrations assigned hereunder to Company; and,
(iii) Employee's obligation to provide such assistance shall beyond
the termination of other services provided to Company under
this Agreement, but Company shall compensate Employee at a
reasonable rate for the time spent by Employee in rendering
such assistance.
(F) RETURN OF MATERIALS
Upon termination of employment or upon Company request at any time while
employed by the Company or thereafter, Employee agrees to promptly deliver to
the Company all originals and copies of all memoranda, documents, notes,
records, software programs, and other materials, including all written or
digital records and copies thereof, containing or related to any of the
Inventions assigned and granted to Company pursuant to Section 2(b) above,
including any and all versions of any Company designs, patents, trademarks or
copyrightable works, discoveries, formulae, processes, manufacturing techniques,
trade secrets, improvements, ideas, business plans, product data and
specifications, know-how, formulae, diagrams, flow charts, drawings, source
code, object code, program listings, test results, processes, inventions,
research projects and product development and any and all versions of any
Company proprietary computer software and any documentation related thereto,
without retaining any copies, notices or excerpts thereof.
3. MISCELLANEOUS
This Agreement:
(i) is the entire Agreement between the Company and Employee shall
supersede all prior agreements and understandings between the
parties regarding these subjects;
(ii) inures to the benefits of successors and assigns of Company
and is binding on Employee's heirs and legal representatives;
(iii) may not be changed or terminated orally, by or on behalf of
either party, nor may it be modified by any oral
representations or agreement;
(iv) This Agreement shall be governed by the laws of the State of
California excluding that body of law pertaining to conflicts
of law, and if any provision of this Agreement is held to be
invalid or unenforceable, such invalidity or unenforceability
shall not affect or impair the validity or enforceability of
the remaining provisions of the Agreement;
(v) does not create any agency or partnership relationship; and,
(vi) does not in any way restrict the right of Company and Employee
to terminate the employment relationship at will.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
set forth above.
THE RECOVERY NETWORK:
/s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
Chairman of the Board
EMPLOYEE:
/s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
SCHEDULE A
List of Inventions:
If none, initial here: __________
Otherwise, list inventions below:
EXHIBIT A
Section 2870 of the California Labor Code provides as follows:
(a) Any provision in an employment agreement which provides that an employee
shall assign, or offer to assign, any of his or her rights in an invention to
his or her employer shall not apply to an invention that the employee developed
entirely on his or her own time without using the employer's equipment,
supplies, facilities, or trade secret information except for those inventions
that either;
(1) relate at the time of conception or reduction to practice of the
invention to the employer's business, or actual or demonstrably
anticipated research or development of the employer; or,
(2) result from any work performed by the employee for the employer.
(b) To the extent a provision in an employment agreement purports to require an
employee to assign an invention otherwise excluded from being required to be
assigned under subdivision (a), the provision is against the public policy of
this state and is unenforceable.
