EXHIBIT F
[COMPANY]
EMPLOYEE PROPRIETARY INFORMATION
AND INVENTIONS AGREEMENT
In consideration of my employment or continued employment by
[COMPANY] (the "COMPANY"), and the compensation now and hereafter paid to
me, I hereby agree as follows:
1. NONDISCLOSURE
1.1 RECOGNITION OF COMPANY'S RIGHTS; NONDISCLOSURE. At all times
during my employment and thereafter, I will hold in strictest confidence
and will not disclose, use, lecture upon or publish any of the Company's
Proprietary Information (defined below), except as such disclosure, use or
publication may be required in connection with my work for the Company, or
unless an officer of the Company expressly authorizes such in writing. I
will obtain Company's written approval before publishing or submitting for
publication any material (written, verbal, or otherwise) that relates to my
work at Company and/or incorporates any Proprietary Information. I hereby
assign to the Company any rights I may have or acquire in such Proprietary
Information and recognize that all Proprietary Information shall be the
sole property of the Company and its assigns.
1.2 PROPRIETARY INFORMATION. The term "PROPRIETARY INFORMATION" shall
mean any and all confidential and/or proprietary knowledge, data or
information of the Company. By way of illustration but not limitation,
"PROPRIETARY INFORMATION" includes (a) trade secrets, inventions, mask
works, ideas, processes, formulas, source and object codes, data, programs,
other works of authorship, know-how, improvements, discoveries,
developments, designs and techniques (hereinafter collectively referred to
as "INVENTIONS"); and (b) information regarding plans for research,
development, new products, marketing and selling, business plans, budgets
and unpublished financial statements, licenses, prices and costs, suppliers
and customers; and (c) information regarding the skills and compensation of
other employees of the Company. Notwithstanding the foregoing, it is
understood that, at all such times, I am free to use information which is
generally known in the trade or industry, which is not gained as result of
a breach of this Agreement, and my own skill, knowledge, know-how and
experience to whatever extent and in whichever way I wish.
1.3 THIRD PARTY INFORMATION. I understand, in addition, that the
Company has received and in the future will receive from third parties
confidential or proprietary information ("THIRD PARTY INFORMATION") subject
to a duty on the Company's part to maintain the confidentiality of such
information and to use it only for certain limited purposes. During the
term of my employment and thereafter, I will hold Third Party Information
in the strictest confidence and will not disclose to anyone (other than
Company personnel who need to know such information in connection with
their work for the Company) or use, except in connection with my work for
the Company, Third Party Information unless expressly authorized by an
officer of the Company in writing.
1.4 NO IMPROPER USE OF INFORMATION OF PRIOR EMPLOYERS AND OTHERS.
During my employment by the Company I will not improperly use or disclose
any confidential information or trade secrets, if any, of any former
employer or any other person to whom I have an obligation of
confidentiality, and I will not bring onto the premises of the Company any
unpublished documents or any property belonging to any former employer or
any other person to whom I have an obligation of confidentiality unless
consented to in writing by that former employer or person. I will use in
the performance of my duties only information which is generally known and
used by persons with training and experience comparable to my own, which is
common knowledge in the industry or otherwise legally in the public domain,
or which is otherwise provided or developed by the Company.
2. ASSIGNMENT OF INVENTIONS.
2.1 PROPRIETARY RIGHTS. The term "PROPRIETARY RIGHTS" shall mean all
trade secret, patent, copyright, mask work and other intellectual property
rights throughout the world.
2.2 PRIOR INVENTIONS. Inventions, if any, patented or unpatented, which
I made prior to the commencement of my employment with the Company are
excluded from the scope of this Agreement. To preclude any possible
uncertainty, I have set forth on Exhibit B (Previous Inventions) attached
hereto a complete list of all Inventions that I have, alone or jointly with
others, conceived, developed or reduced to practice or caused to be
conceived, developed or reduced to practice prior to the commencement of my
employment with the Company, that I consider to be my property or the
property of third parties and that I wish to have excluded from the scope
of this Agreement (collectively referred to as "PRIOR INVENTIONS"). If
disclosure of any such Prior Invention would cause me to violate any prior
confidentiality agreement, I understand that I am not to list such Prior
Inventions in Exhibit B but am only to disclose a cursory name for each
such invention, a listing of the party(ies) to whom it belongs and the fact
that full disclosure as to such inventions has not been made for that
reason. A space is provided on Exhibit B for such purpose. If no such
disclosure is attached, I represent that there are no Prior Inventions. If,
in the course of my employment with the Company, I incorporate a Prior
Invention into a Company product, process or machine, the Company is hereby
granted and shall have a nonexclusive, royalty-free, irrevocable,
perpetual, worldwide license (with rights to sublicense through multiple
tiers of sublicensees) to make, have made, modify, use and sell such Prior
Invention. Notwithstanding the foregoing, I agree that I will not
incorporate, or permit to be incorporated, Prior Inventions in any Company
Inventions without the Company's prior written consent.
2.3 ASSIGNMENT OF INVENTIONS. Subject to Sections 2.4, and 2.6, I
hereby assign and agree to assign in the future (when any such Inventions
or Proprietary Rights are first reduced to practice or first fixed in a
tangible medium, as applicable) to the Company all my right, title and
interest in and to any and all Inventions (and all Proprietary Rights with
respect thereto) whether or not patentable or registrable under copyright
or similar statutes, made or conceived or reduced to practice or learned by
me, either alone or jointly with others, during the period of my employment
with the Company. Inventions assigned to the Company, or to a third party
as directed by the Company pursuant to this Section 2, are hereinafter
referred to as "COMPANY INVENTIONS."
2.4 NONASSIGNABLE INVENTIONS. This Agreement does not apply to an
Invention which qualifies fully as a nonassignable Invention under Section
2870 of the California Labor Code (hereinafter "SECTION 2870"). I have
reviewed the notification on Exhibit A (Limited Exclusion Notification) and
agree that my signature acknowledges receipt of the notification.
2.5 OBLIGATION TO KEEP COMPANY INFORMED. During the period of my
employment and for six (6) months after termination of my employment with
the Company, I will promptly disclose to the Company fully and in writing
all Inventions authored, conceived or reduced to practice by me, either
alone or jointly with others. In addition, I will promptly disclose to the
Company all patent applications filed by me or on my behalf within a year
after termination of employment. At the time of each such disclosure, I
will advise the Company in writing of any Inventions that I believe fully
qualify for protection under Section 2870; and I will at that time provide
to the Company in writing all evidence necessary to substantiate that
belief. The Company will keep in confidence and will not use for any
purpose or disclose to third parties without my consent any confidential
information disclosed in writing to the Company pursuant to this Agreement
relating to Inventions that qualify fully for protection under the
provisions of Section 2870. I will preserve the confidentiality of any
Invention that does not fully qualify for protection under Section 2870.
2.6 GOVERNMENT OR THIRD PARTY. I also agree to assign all my right,
title and interest in and to any particular Company Invention to a third
party, including without limitation the United States, as directed by the
Company.
2.7 WORKS FOR HIRE. I acknowledge that all original works of
authorship which are made by me (solely or jointly with others) within the
scope of my employment and which are protectable by copyright are "works
made for hire," pursuant to United States Copyright Act (17 U.S.C., Section
101).
2.8 ENFORCEMENT OF PROPRIETARY RIGHTS. I will assist the Company in
every proper way to obtain, and from time to time enforce, United States
and foreign Proprietary Rights relating to Company Inventions in any and
all countries. To that end I will execute, verify and deliver such
documents and perform such other acts (including appearances as a witness)
as the Company may reasonably request for use in applying for, obtaining,
perfecting, evidencing, sustaining and enforcing such Proprietary Rights
and the assignment thereof. In addition, I will execute, verify and deliver
assignments of such Proprietary Rights to the Company or its designee. My
obligation to assist the Company with respect to Proprietary Rights
relating to such Company Inventions in any and all countries shall continue
beyond the termination of my employment, but the Company shall compensate
me at a reasonable rate after my termination for the time actually spent by
me at the Company's request on such assistance.
In the event the Company is unable for any reason, after reasonable
effort, to secure my signature on any document needed in connection with
the actions specified in the preceding paragraph, I hereby irrevocably
designate and appoint the Company and its duly authorized officers and
agents as my agent and attorney in fact, which appointment is coupled with
an interest, to act for and in my behalf to execute, verify and file any
such documents and to do all other lawfully permitted acts to further the
purposes of the preceding paragraph with the same legal force and effect as
if executed by me. I hereby waive and quitclaim to the Company any and all
claims, of any nature whatsoever, which I now or may hereafter have for
infringement of any Proprietary Rights assigned hereunder to the Company.
3. RECORDS. I agree to keep and maintain adequate and current records (in
the form of notes, sketches, drawings and in any other form that may be
required by the Company) of all Proprietary Information developed by me and
all Inventions made by me during the period of my employment at the
Company, which records shall be available to and remain the sole property
of the Company at all times.
4. ADDITIONAL ACTIVITIES. I agree that during the period of my employment
by the Company I will not, without the Company's express written consent,
engage in any employment or business activity which is competitive with, or
would otherwise conflict with, my employment by the Company. I agree
further that for the period of my employment by the Company and for one (l)
year after the date of termination of my employment by the Company I will
not, either directly or through others, solicit or attempt to solicit any
employee, independent contractor or consultant of the company to terminate
his or her relationship with the Company in order to become an employee,
consultant or independent contractor to or for any other person or entity.
5. NO CONFLICTING OBLIGATION. I represent that my performance of all the
terms of this Agreement and as an employee of the Company does not and will
not breach any agreement to keep in confidence information acquired by me
in confidence or in trust prior to my employment by the Company. I have not
entered into, and I agree I will not enter into, any agreement either
written or oral in conflict herewith.
6. RETURN OF COMPANY DOCUMENTS. When I leave the employ of the Company, I
will deliver to the Company any and all drawings, notes, memoranda,
specifications, devices, formulas, and documents, together with all copies
thereof, and any other material containing or disclosing any Company
Inventions, Third Party Information or Proprietary Information of the
Company. I further agree that any property situated on the Company's
premises and owned by the Company, including disks and other storage media,
filing cabinets or other work areas, is subject to inspection by Company
personnel at any time with or without notice. Prior to leaving, I will
cooperate with the Company in completing and signing the Company's
termination statement.
7. LEGAL AND EQUITABLE REMEDIES. Because my services are personal and
unique and because I may have access to and become acquainted with the
Proprietary Information of the Company, the Company shall have the right to
enforce this Agreement and any of its provisions by injunction, specific
performance or other equitable relief, without bond and without prejudice
to any other rights and remedies that the Company may have for a breach of
this Agreement.
8. NOTICES. Any notices required or permitted hereunder shall be given to
the appropriate party at the address specified below or at such other
address as the party shall specify in writing. Such notice shall be deemed
given upon personal delivery to the appropriate address or if sent by
certified or registered mail, three (3) days after the date of mailing.
9. NOTIFICATION OF NEW EMPLOYER. In the event that I leave the employ of
the Company, I hereby consent to the notification of my new employer of my
rights and obligations under this Agreement.
10. GENERAL PROVISIONS.
10.1 GOVERNING LAW; CONSENT TO PERSONAL JURISDICTION. This Agreement
will be governed by and construed according to the laws of the State of
California, as such laws are applied to agreements entered into and to be
performed entirely within California between California residents. I hereby
expressly consent to the personal jurisdiction of the state and federal
courts located in __________ County, California for any lawsuit filed there
against me by Company arising from or related to this Agreement.
10.2 SEVERABILITY. In case any one or more of the provisions contained
in this Agreement shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect the other provisions of this Agreement,
and this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein. If moreover, any
one or more of the provisions contained in this Agreement shall for any
reason be held to be excessively broad as to duration, geographical scope,
activity or subject, it shall be construed by limiting and reducing it, so
as to be enforceable to the extent compatible with the applicable law as it
shall then appear.
10.3 SUCCESSORS AND ASSIGNS. This Agreement will be binding upon my
heirs, executors, administrators and other legal representatives and will
be for the benefit of the Company, its successors, and its assigns.
10.4 SURVIVAL. The provisions of this Agreement shall survive the
termination of my employment and the assignment of this Agreement by the
Company to any successor in interest or other assignee.
10.5 EMPLOYMENT. I agree and understand that nothing in this Agreement
shall confer any right with respect to continuation of employment by the
Company, nor shall it interfere in any way with my right or the Company's
right to terminate my employment at any time, with or without cause.
10.6 WAIVER. No waiver by the Company of any breach of this Agreement
shall be a waiver of any preceding or succeeding breach. No waiver by the
Company of any right under this Agreement shall be construed as a waiver of
any other right. The Company shall not be required to give notice to
enforce strict adherence to all terms of this Agreement.
10.7 ENTIRE AGREEMENT. The obligations pursuant to Sections 1 and 2 of
this Agreement shall apply to any time during which I was previously
employed, or am in the future employed, by the Company as a consultant if
no other agreement governs nondisclosure and assignment of inventions
during such period. This Agreement is the final, complete and exclusive
agreement of the parties with respect to the subject matter hereof and
supersedes and merges all prior discussions between us. No modification of
or amendment to this Agreement, nor any waiver of any rights under this
Agreement, will be effective unless in writing and signed by the party to
be charged. Any subsequent change or changes in my duties, salary or
compensation will not affect the validity or scope of this Agreement.
This Agreement shall be effective as of the first day of my employment
with the Company, namely: _______________, 19__.
I HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS. I HAVE
COMPLETELY FILLED OUT EXHIBIT B TO THIS AGREEMENT.
Dated: ___________
_____________________________________________________
(SIGNATURE)
_____________________________________________________
(PRINTED NAME)
ACCEPTED AND AGREED TO:
[COMPANY]
By:__________________________________________________
Title:_______________________________________________
_____________________________________________________
(Address)
Dated: _______
EXHIBIT A
LIMITED EXCLUSION NOTIFICATION
THIS IS TO NOTIFY you in accordance with Section 2872 of the
California Labor Code that the foregoing Agreement between you and the
Company does not require you to assign or offer to assign to the Company
any invention that you developed entirely on your own time without using
the Company'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 Company's business, or actual or demonstrably anticipated
research or development of the Company;
2. Result from any work performed by you for the Company.
To the extent a provision in the foregoing Agreement purports to
require you to assign an invention otherwise excluded from the preceding
paragraph, the provision is against the public policy of this state and is
unenforceable.
This limited exclusion does not apply to any patent or invention
covered by a contract between the Company and the United States or any of
its agencies requiring full title to such patent or invention to be in the
United States.
I ACKNOWLEDGE RECEIPT of a copy of this notification.
By:_____________________________________
(PRINTED NAME OF EMPLOYEE)
Date:___________________________________
WITNESSED BY:
________________________________
(PRINTED NAME OF REPRESENTATIVE)
EXHIBIT B
TO: [COMPANY]
FROM: _____________________
DATE: _____________________
SUBJECT: PREVIOUS INVENTIONS
1. Except as listed in Section 2 below, the following is a complete list of
all inventions or improvements relevant to the subject matter of my
employment by [Company] (the "COMPANY") that have been made or conceived or
first reduced to practice by me alone or jointly with others prior to my
engagement by the Company:
[ ] No inventions or improvements.
[ ] See below:
_______
_______
_______
[ ] Additional sheets attached.
2. Due to a prior confidentiality agreement, I cannot complete the
disclosure under Section 1 above with respect to inventions or improvements
generally listed below, the proprietary rights and duty of confidentiality
with respect to which I owe to the following party(ies):
INVENTION OR IMPROVEMENT PARTY(IES) RELATIONSHIP
1. ____________________________ ______________
2. ____________________________ ______________
3. ____________________________ ______________
[ ] Additional sheets attached.
