EXHIBIT 10.4
NON-DISCLOSURE AND COVENANT NOT TO COMPETE AGREEMENT
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AGREEMENT made this _______ day of __________________, 19__ between ASD
SYSTEMS, INC., ("Company") and _____________________________ ("Applicant").
WHEREAS, Applicant has applied for employment or is currently employed with
Company in a position whereby Applicant would be or is privy to certain
information concerning the business practices, trade secrets, operation methods
and techniques of Company; and
WHEREAS, Applicant recognizes that company has invested a substantial
amount of time and money in developing its business practices, trade secrets,
operating methods and techniques, and that such business practices, trade
secrets, operating methods and techniques are of a secret and confidential
nature and are unique to the business of the Company; and
WHEREAS, Applicant further recognizes that Company would not disclose its
business practices, trade secrets, operating methods and techniques to Applicant
unless Applicant were to agree to regard them as highly confidential.
NOW THEREFORE, in order to induce Company to reveal its business practices,
trade secrets, operating methods and techniques to Applicant and for other good
and valuable considerations, Applicant agrees that Applicant will not disclose
or reveal to an other person, firm or corporation, or use directly or
indirectly, for Applicant's own benefit or the benefit of another, any of the
business practices, trade secrets, operating methods, techniques, or other
information revealed to Applicant by Company, for a period of one year from the
date of Applicant's termination of employment with Company, whether termination
be voluntary or involuntary.
Applicant recognizes that Company would not have an adequate remedy at law
if Applicant were to violate the restrictions set forth herein, and that Company
shall have the right, in addition to any other available remedies, to obtain an
injunction restraining Applicant from competing with Company or disclosing or
using in whole or in part, nay of the information, business practices, trade
secrets, or operating methods and techniques revealed to Applicant by Company
during the one year period referred to above.
Applicant agrees that Applicant's employment with the Company may be
terminated at the will of either party, at any time, with or without cause
therefore. Applicant further agrees that this Agreement should not, in any
manner, constitute any agreement by the Company to employ Applicant.
IN WITNESS WHEREOF, this Agreement has been executed this ____ day of
_________, 19__.
APPLICANT OR EMPLOYEE: ASD SYSTEMS, INC.
By: /S/ By: /S/
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Title: /S/
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NON-DISCLOSURE AND INVENTION AGREEMENT
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This Agreement is made between ASD SYSTEMS, INC., a Texas corporation (the
"Company") and _____________________________ ("Employee").
In consideration of the engagement or the continued engagement of the
Employee by the Company, the Company and the Employee agree as follows:
1. Definitions. "Employee" shall mean the person whose name is set forth
above, being an employee, or consultant, or any such person hired by the Company
to provide services to the Company The use of the term "Employee" herein shall
by no means constitute an admission or create any presumption that such person
is an Employee of the Company. "Company" shall mean Company's officers,
directors, agents, representatives, successors or assigns.
2. Nondisclosure of Proprietary or Confidential Information.
(a) Employee acknowledges that during Employee's employment with the
Company or while Employee is providing or rendering services to the Company,
Employee will have access to certain confidential information including, but not
limited to, trade secrets, marketing strategies, processes, formulae, plans,
devices, compilations of information, technical data, mailing lists, prices,
technical concepts, programming code, systems design, distribution methods,
names of suppliers and customers and other proprietary information and materials
originated in the Company or disclosed to the Company by others under agreements
to hold the same confidential (collectively the "Confidential Information").
(b) During Employee's employment with the Company or while Employee is
providing or rendering services to the Company or at anytime thereafter,
Employee agrees: (a) that, without the express written consent of the Company
in advance, Employee will hold in strict confidence and will not, directly or
indirectly, divulge, disclose, reveal or communicate, either any Confidential
Information to any person or entity, except in the course of Employee's services
to or on behalf of the Company; and (b) that Employee will not use any
Confidential Information for the benefit of any person or entity other than the
Company. Employee further agrees that upon the end of his/her employment with
the Company or upon the end of his/her providing or rendering services to the
Company, or upon written notice by Company, Employee will return to the Company
any and information pertaining to or documentation of the Confidential
Information, whether the Confidential Information or documentation was developed
or prepared by Employee or by others, all of which shall be owned by the
Company. Employee acknowledges that this covenant of nondisclosure and nonuse
is an integral term of this Agreement and is a material inducement to the
Company to use the services of Employee.
(c) Employee acknowledges that the Company's facilities (the "Facility")
and all equipment within the Facility, including without limitation all computer
and technical equipment are the property of the Company (collectively the
"Property"). Employee acknowledges that he/she has no proprietary rights or
ownership in or to the Property and that Employee may not remove the Property
from the Facility; provided that Employee may remove computer equipment from the
Facility for proper business purposes if he/she intends to and actually does
promptly return such Property to the Facility. Employee acknowledges that
removing the Property from the Facility does not constitute a transfer or
assignment of the Property to the Employee. Employee acknowledges that he/she
will not use the Property for matters which are not directly related to the
scope of his/her employment or consultancy with the Company.
(d) Employee acknowledges that the Company makes great efforts to ensure
that the Facility and the Property located within the Facility are secure and
that Employee has an obligation to assist the Company, to the best of such
Employee's ability, in those efforts. Employee acknowledges that the security
of the Facility and the Property is an integral part of the Company's policies
and procedures and that a breach in such security constitutes a fraud on the
integrity, honesty and high morals upon which the Company stands. Employee
agrees to promptly report to the President of the Company any action(s) which
Employee perceives to be a breach or violation of the security of the Facility
or the Property.
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3. Assignment of Inventions, Intellectual Property Rights
(a) By this Agreement, Employee agrees to disclose promptly, completely
and in writing to the Company, and further Employee assigns, and agrees to bind
Employee's heirs, executors and administrators to assign, to the Company, all
right, title and interest in and to any and all designs, inventions,
discoveries, improvements, writings, software, documentation, reports and lists
(the "Inventions"), and all intellectual property rights and any goodwill
associated therewith (collectively, the "Rights"). The Rights assigned hereby
shall be of whatever kind or character, whether discovered, conceived and/or
developed individually by Employee or jointly with others, either (i) during
Employee's employment with the Company, (ii) while Employee is providing or
rendering services to the Company, or while using the Company's time, data,
facilities and/or materials, provided the subject matter of the Inventions or
Rights is within the general scope of the duties and responsibilities of one
providing services such as those of Employee to the Company, or (iii) as a
result of Employee's knowledge of a particular interest of the Company in the
subject matter of the Inventions or Rights. Employee's obligations under this
Paragraph 3 apply without regard to whether or not an Invention, Right or
solution to a problem occurs to Employee on the job, at home or anywhere else.
(b) Employee agrees that all Inventions and Rights are the Company's
exclusive property and that all materials and work generated or performed by
Employee, during Employee's employment with the Company or while Employee is
providing or rendering services to the Company shall be considered a work made
for hire. To the extent that any such materials or work are not considered a
work made for hire, Employee hereby assigns and agrees to assign the rights in
such materials or work to the Company as set forth herein. Nothing contained in
this Agreement may be construed as impairing the shop rights of the Company in
any Inventions that are not assigned exclusively to the Company. Employee
acknowledges that these covenants regarding Inventions and Rights are integral
terms of this Agreement and are a material inducement to the Company to use
Employee's services.
(c) Employee agrees that any Inventions or Rights required to be disclosed
under Paragraph 3(a) above within one (1) year after the term of employment or
consultancy shall be presumed to have been conceived during Employee's
employment or consultancy. Employee understands that he/she may overcome the
presumption by showing that such Invention or Right was conceived after
Employee's termination.
(d) During Employee's employment with the Company or while Employee is
providing or rendering services to the Company or at anytime thereafter, upon
the Company's request and at the Company's expense, Employee agrees to, in a
timely manner, perform all acts necessary to apply for, register, secure,
maintain or enforce patents, copyrights, trademarks and any other legal rights,
title and interest in the United States and foreign countries in Inventions
and/or Rights owned by and/or assigned to the Company under this Agreement,
including, but not limited to, performing any and all acts necessary to assign
and transfer to the Company or any person or party to whom the Company is
obligated to assign its rights, Employee's entire right, title and interest in
and to such Inventions or Rights. This obligation shall survive the termination
of employment or consultancy (as the case may be), but the Company shall
compensate Employee at a reasonable rate after any such termination for time
actually spent by Employee at the Company's request on such assistance.
4. Conflict of Interest.
(a) The Company maintains high standards of ethics and requires that its
employees maintain the same standards. Therefore, Employee agrees that if he/she
is an employee of the Company, he/she will work solely for the Company while
he/she is employed by the Company. Employee agrees that he/she will not engage
in any work related to the business of the Company, or that might in any way
conflict with the interests of the Company. The Company understands that it is
necessary for its employees to enjoy social relations and normal business
courtesies, and therefore some incidental or temporary work will not be
considered a breach of this Agreement. However, if Employee has any doubts
related to such incidental or temporary work, Employee agrees that it will
inform the Company before engaging in such work.
(b) Employee represents that by execution of this Agreement, Employee's
employment or consultancy (as the case may be) with the Company and Employee's
performance of the proposed duties to the Company will not violate any
obligations that Employee has or may have to any former employer, or other
person or entity, including any obligations to keep confidential any proprietary
or confidential information of any such employer. Employee further represents
that Employee has not entered into, and will not enter into, any agreement which
conflicts with or would, if performed by Employee, cause Employee to breach this
Agreement.
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5. Other Agreements. Employee hereby represents that, except as Employee
has disclosed in writing to the Company, Employee is not bound by the terms of
any agreement with any previous employer or other party to refrain from using or
disclosing any trade secret or confidential or proprietary information in the
course of his/her engagement by the Company or to refrain from competing,
directly or indirectly, with the business of such previous employer or any other
party.
6. No Employment Contract. Employee understands that this Agreement does
not constitute a contract of employment and does not imply that his/her
relationship with the Company (in any capacity) will continue for any period of
time.
7. Miscellaneous.
(a) This Agreement supersedes all prior agreements, written or oral,
between Employee and the Company relating to the subject matter of this
Agreement. This Agreement may not be modified, changed or discharged in whole or
in part, except by an agreement in writing signed by Employee and the Company.
(b) This Agreement shall be binding upon Employee's heirs, executors and
administrators and shall inure to the benefit of the Company, and its successors
and assigns. Employee expressly consents to be bound by the provisions of this
Agreement for the benefit of the Company or any successor, assign, subsidiary or
affiliate thereof to whose employ Employee may be transferred without the
necessity that this Agreement be resigned at the time of such transfer.
(c) No delay or omission by the Company in exercising any right under this
Agreement will operate as a waiver of that or any other right. A waiver or
consent given by the Company on any one occasion is effective only in that
instance and will not be construed as a bar to or waiver of any right on any
other occasion. The validity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
(d) Employee agrees that any breach of this Agreement is likely to cause
the Company substantial and irrevocable damage and therefore, in the event of
any such breach, Employee agrees that the Company, in addition to such other
remedies which may be available, shall be entitled to seek specific performance
and other injunctive relief. It is agreed that in the event that the provisions
hereof are the subject of litigation, the prevailing party shall be entitled to
reimbursement for attorney fees and expenses incurred.
(e) This Agreement is governed by and shall be construed as sealed
instrument under and in accordance with the laws of the State of Texas. Any
action, suit, or other legal proceeding commenced to resolve any dispute arising
under or relating to any provision of this Agreement shall be commenced only in
the state or federal courts in Dallas County, Texas, and Employee and the
Company expressly consent and submit to the jurisdiction of such court.
EMPLOYEE acknowledges that he/she has carefully read this Agreement and
understands and agrees to all of the provisions in this Agreement.
EMPLOYEE:
/S/
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Name: /S/
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Date: /S/
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