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PROPRIETARY RIGHTS AND INFORMATION AGREEMENT
(Version 1.1)
THIS AGREEMENT is made effective this _________ day of _____________________,
200__, by and between ________________________________________ (hereinafter
referred to as "you," "your," or "Employee"), and DigitalConvergence.:Com Inc.,
its affiliates and subsidiaries (hereinafter collectively referred to as the
"Company"), in consideration of the employment and the continued employment of
the Employee by the Company, and continued access to the Proprietary Information
of the Company for no less than thirty (30) days from the date hereof, the
current and future compensation, including any possible future increases in
compensation, paid in respect to employment, and the responsibilities assigned
and access granted to the Employee in connection with the Company's proprietary
and confidential information.
I. INVENTIONS. As used in this Agreement, the term "Inventions" means any and
all creative work, inventions and discoveries, including improvements, original
works of authorship, designs, formulas, processes, concepts, software
development, computer programs, databases and trade secrets and related
proprietary information and materials.
a) YOUR RIGHTS IN INVENTIONS.
The Company acknowledges that all Inventions: (a) that you
made prior to your employment with the Company; and (b) that you claim
belong to you or that you claim an interest in; and (c) in which you
wish to retain all claimed ownership rights shall be considered to be
"Employee Inventions" and not subject to claims by the Company.
b) COMPANY RIGHTS IN INVENTIONS.
1) DISCLOSURE. You agree to maintain adequate and current
written records of all Inventions you develop during and as the result
of your employment at the Company, and to make full written disclosure
in confidence to the Company of all such Inventions.
2) ASSIGNMENT OF INVENTIONS TO THE COMPANY. You agree that all
Inventions that: (a) are developed using the equipment, supplies,
facilities or trade secrets of the Company, or (b) result from work
performed by you for the Company ("Company Inventions"), will be the
sole and exclusive property of the Company, and you will and hereby do
assign all your rights in such Company Inventions to the Company. In
addition, you hereby transfer and assign any "moral" rights that you
may have in any Company Inventions under any copyright or other similar
law, whether U.S. or foreign. You agree to waive and never to assert
any such "moral" rights in Company Inventions during or after the
termination of your employment with the Company.
c) PROTECTION OF COMPANY INVENTIONS. You agree (at the
Company's expense) to assist the Company in every proper way to
obtain and to help the Company enforce patents, trademarks, service
marks, copyrights and other legal protections for Company Inventions
in any and all countries. You agree to execute any documents that the
Company may reasonable request for use in obtaining or enforcing such
patents, trademarks, service marks, copyrights and other
legal protections. In addition, by execution f this Agreement, you
hereby irrevocably designate and appoint the Company and its duly
authorized officers and agents as your agent and attorney in fact to
act for and in your behalf, to execute and file any and all such
documents as the Company shall in its discretion determine necessary
or advisable in obtaining or enforcing such patents, trademarks,
service marks, copyrights and other legal protections, and to do all
other lawfully permitted acts to accomplish the same, with the same
legal force and effects as if executed by you. You acknowledge that
all original works of authorship that are made by you (solely or
jointly with others) within the scope of your employment at the
Company, and that are protectable by copyright, are "works made for
hire," as that term is defined in the United States Copyright Act
(17U.S.C. Sec. 101).
II. PROPRIETARY INFORAMTION OF THE COMPANY AND THIRD PARTIES. You
understand that your employment with the Company creates a relationship of
confidence and trust with respect to any information of a confidential or
secret nature that may be disclosed to you by the Company or learned by you in
the course of your duties at the Company, and that relates to (a) the business
of the Company or that of any of its subsidiaries, affiliates, customers,
suppliers, or (b) any confidential information of third parties disclosed to
the Company. Such confidential and secret information includes information
concerning Inventions, marketing plans, product plans, business strategies,
financial information and forecasts, personal information and customer lists
and is referred to collectively in this Agreement as "Proprietary
Information." Employee acknowledges and agrees that, while knowledge of the
Proprietary Information will continue to have value to Employee, the
Proprietary Information continues to be developed. Employee releases and
disclaims any right that he may have in the Proprietary Information to the
Company.
a) CONFIDENTIALITY OF PROPRIETARY INFORMATION. At all times, both
during your employment by the Company and after its termination, you
agree to keep all Proprietary Information in confidence and trust,
and you will not use or disclose Proprietary Information without the
written consent of the Company, except as may be necessary to perform
your duties as an employee of the Company. Upon termination of your
employment with the Company, you will promptly deliver to the Company
all documents and materials of any kind pertaining to your work with
the Company, and you will not take with you any documents and
materials of any kind pertaining to your work with the Company, and
you will not take with you any documents, materials or copies
thereof, whether on paper, magnetic or optical media or any other
medium, containing any Proprietary Information.
b) INFORMATION OF FORMER EMPLOYER. You agree that during your
employment at the Company you will not improperly use or disclose any
confidential or Proprietary Information or trade secrets of your
former employers.
III. CONFLICTING OBLIGATIONS.
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a) NO CONFLICTING EMPLOYMENT. You agree that during
the term of your employment at the Company you will not
plan or engage in other employment, occupation,
consulting or other business activity directly related to
the business in which the Company is now involved or
becomes involved during the term of your employment, nor
will you engage in any other activities that conflict
with your employment obligations to the Company.
b) NO CONFLICTING AGREEMENTS. You represent to the
Company that you have no other agreements or commitments
that would hinder or prevent the full performance of your
duties as a Company employee or your obligations under
this Agreement, and you agree not to enter into any such
conflicting agreement during the term of your employment
at the Company.
c) DISCLOSURE OF AGREEMENT. You hereby authorize the
Company to notify others, including customers of the
Company and any future employers you may have, of the
terms of this Agreement and your responsibilities under
this Agreement.
d) NON-COMPETITION AND NON-SOLICITATION. Ancillary to
the promises contained herein, and particularly with
regard to the Company's promise to provide the
Proprietary Information and your promises with regard to
the Proprietary Information, you agree that in the event
you shall at any time cease to be associated with the
Company as an employee, officer, and/or director you
shall not, for a period of twelve (12) months thereafter,
as an officer, director, employee, consultant, principal
or trustee on behalf of any other person, firm,
corporation, association or other entity, engage in any
business or activity that competes with the business of
the Company as now conducted or as conducted as of the
time you leave the Company, nor shall you solicit or
assist any person, firm, corporation, association or
other entity in soliciting any customer of the Company
for purposes competitive with the business of the
Company. You acknowledge that the scope of the activity
restricted is limited to the business of the Company and
that such restriction is reasonable to protect the
Proprietary Information of the Company. Because the
Proprietary Information may be used from many locations
and because of the potential worldwide application of the
Proprietary Information, the parties stipulate and agree
that the geographic restriction of this paragraph will
include North America, South America, Europe, and Asia
and shall include both operations based in such areas and
contact with such areas through telephonic, electronic,
Internet or other means. In exchange for such same
consideration, you further agree that for a period of
twelve (12) months following cessation of your
association with the Company you shall not employ or
solicit the employment of any person who shall then be
employed by the Company or who shall have been employed
by the Company within the prior twelve (12) month period,
on behalf of yourself or any other person, firm,
corporation, association or other entity, directly or
indirectly.
IV. NO IMPLIED EMPLOYMENT RIGHTS. You understand and agree that this
Agreement does not confer upon you any rights to continued employment
by the Company that you would not
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otherwise have, nor does this Agreement obligate the Company to
employ you for any specific period of time.
V. GENERAL PROVISIONS.
a) SEVERABILITY. Each covenant and/or provision of this
Agreement shall be enforceable independent of every other
covenant and/or provision. The assertion or existence of any
breach by the Company or claim by Employee against the Company
shall not constitute a defense to the enforcement of the
provisions of this Agreement by the Company relating to
Inventions, Proprietary Information, and Conflicting
Obligations. Furthermore, in the event any covenant and/or
provision of this Agreement is determined to be unenforceable
for any reason, the remaining covenants and/or provisions will
remain effective, binding, and enforceable. In the event a
court were to determine that any provisions herein are
unenforceable because unreasonable either in length or time or
area to which said provisions apply, it is the intent of both
parties hereto that said court shall reduce and reform the
provisions thereof so as to apply to limits considered
enforceable by said court.
b) GOVERNING LAW. This Agreement will be governed by the
laws of the State of Texas as they apply to contracts entered
into and wholly to be performed within such state. Any
litigation or dispute resolution between the parties relating
to this Agreement will take place in Dallas County, Texas, and
you and the Company each consent to the personal jurisdiction
of and venue in the state and federal courts within that
county.
c) ENTIRE AGREEMENT. This Agreement sets for the entire
agreement and understanding between you and the Company
relating to the subject matter of this Agreement. No
modification to or amendment of this Agreement, nor any waiver
of any rights under this Agreement, will be effective unless
in writing signed by both you and an authorized representative
of the Company. Any subsequent changes in your duties, salary
or compensation will not affect the validity or scope of this
Agreement.
d) SUCCESSORS AND ASSIGNS. This Agreement will be binding
upon your heirs, executors, administrators and other legal
representatives and will be for the benefit of the Company,
its successors and assigns.
__________________________________ _________________________
EMPLOYEE SIGNATURE DATE
__________________________________ _________________________
PRINTED NAME TITLE
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