Exhibit 10.6
AGREEMENT REGARDING CONFIDENTIAL INFORMATION
AND INVENTIONS
THIS AGREEMENT is made as of ___________ ___, 200__ by and between RDO
Equipment Co. (together with its subsidiaries are referred to in this Agreement
as the "Company") and _____________, who is an employee of the Company (the
"Employee").
The Company and Employee agree that the Company will disclose or has
already disclosed to Employee certain Confidential Information, as defined
below. Employee recognizes that such Confidential Information is a business
asset of the Company, the value of which can only be protected by maintaining
the secrecy of such Confidential Information. Employee further understands and
acknowledges that in the course of his or her employment by the Company,
Employee will establish or has already established personal contacts and
relationships with the Company's customers and that such personal contacts and
relationships also represent valuable business assets of the Company.
Employee, therefore, enters into this Agreement in consideration of the
Company's offer of employment, promotion or continuing employment and the
benefits associated with that employment, in consideration of being given access
to Confidential Information, and for other good and valuable consideration.
Accordingly, the Company and the Employee agree as follows:
1. CONFIDENTIAL INFORMATION.
a. "Confidential Information," as used in this Agreement, means
information or material which is not generally available to or
used by others, or the utility or value of which is not
generally known or recognized as standard practice, whether or
not the underlying details are in the public domain,
including:
i. information or material relating to the Company, and
its businesses as conducted or anticipated to be
conducted, business plans, marketing or sales plans,
operations, past, current or anticipated software,
products or services, customers or prospective
customers, or development, purchasing, accounting,
management systems or marketing activities;
ii. information or material relating to the Company's
inventions, improvements, discoveries, "know-how,"
technological developments, or unpublished writings
or other works of authorship, or to the materials,
apparatus, processes, plans or methods used in the
development or marketing of the Company's products or
services;
iii. information which when received is marked as
"proprietary," "private," or "confidential";
iv. trade secrets; and
v. any similar information of the type described above
which the Company obtained from another party and
which the Company treats as or designates as being
proprietary, private or confidential, whether or not
owned or developed by the Company.
Notwithstanding the foregoing, "Confidential Information" does
not include any information which is properly published or in
the public domain; provided, however, that information which
is published by or with the aid of the Employee outside the
scope of employment or contrary to the requirements of this
Agreement will not be considered to have been properly
published, and therefore will not be in the public domain for
purposes of this Agreement.
b. In the course of his or her employment with the Company, the
Employee acknowledges that Confidential Information is
disclosed to or observed by him or her and that he or she is
given access to Confidential Information. The Employee
recognizes that Confidential Information is a business asset
of the Company, the value of which can only be protected by
maintaining its secrecy.
c. The Employee will never, either during or after the Employee's
employment with the Company, use Confidential Information for
any purpose other than the business of the Company or publish
or disclose it to any person who is not also an employee of
the Company subject to a confidentiality agreement with the
Company. When the Employee's employment with the Company ends,
the Employee will promptly deliver to the Company all records
and any compositions, articles, devices, apparatus and other
items that disclose, describe or embody Confidential
Information, including all copies, reproductions and specimens
of the Confidential Information in the Employee's possession,
regardless of who prepared them, and will promptly deliver any
other property of the Company in the Employee's possession,
whether or not Confidential Information.
2. INVENTIONS.
a. "Inventions," as used in this Agreement, means any
discoveries, improvements and ideas (whether or not they are
in writing or reduced to practice) or works of authorship
(whether or not they can be patented or copyrighted) that the
Employee makes, authors, or conceives (either alone or with
others) and that:
i. concern directly the Company's business or the
Company's present or demonstrably anticipated future
business or development;
ii. result from any work the Employee performs for the
Company;
iii. use the Company's equipment, supplies, facilities or
trade secret information; or
2
iv. the Employee develops during the time the Employee is
performing employment duties for the Company.
b. The Employee agrees that all Inventions made by the Employee
during his or her employment with the Company or within six
(6) months thereafter will be the Company's sole and exclusive
property. The Employee will, with respect to any Invention:
i. keep current, accurate and complete records, which
will belong to the Company and be kept and stored on
the Company's premises while the Employee is employed
by the Company;
ii. promptly and fully disclose the existence and
describe the nature of the Invention to the Company
in writing (and without request);
iii. assign (and the Employee does hereby assign) to the
Company all of his or her rights to the Invention,
any application Employee makes for patents or
copyrights in any country, and any patents or
copyrights granted to Employee in any country; and
iv. acknowledge and deliver promptly to the Company any
written instruments, and perform any other acts
necessary in the Company's opinion to preserve
property rights in the Invention against forfeiture,
abandonment or loss and to obtain and maintain
letters, patents and/or copyrights on the Invention
and to vest the entire right and title to the
Invention in the Company.
The requirements of this Agreement do not apply to an
Invention for which no equipment, supplies, facility or trade
secret information of the Company was used and which was
developed entirely on the Employee's own time, and (A) which
does not relate directly to the Company's business or to the
Company's actual or demonstrably anticipated business or
development, or (B) which does not result from any work the
Employee performed for the Company. Except as previously
disclosed to the Company in writing, the Employee does not
have, and will not assert, any claims to or rights under any
Inventions as having been made, conceived, authored or
acquired by the Employee prior to his or her employment by the
Company. With respect to any obligations performed by the
Employee under this Agreement following termination of
employment, the Company will pay the Employee reasonable
hourly compensation and will pay or reimburse all reasonable
out-of-pocket expenses.
c. Employee will sign and execute all instruments of assignment
and other papers to evidence the assignment of Employee's
entire right, title and interest in such inventions,
improvements, discoveries, software, writings or other works
of authorship to the Company, at the request and the expense
of the Company, and Employee will do all acts and sign all
instruments of assignment and other papers the Company may
reasonably request relating to applications for patents and
3
copyrights, and the enforcement and protection thereof. If the
Employee is needed, at any time, to give testimony, evidence,
or opinions in any litigation or proceeding involving any
patents or copyrights or applications for patents or
copyrights, both domestic and foreign, relating to inventions,
improvements, discoveries, software, writings or other works
of authorship conceived, developed or reduced to practice by
the Employee, the Employee agrees to do so, and if the
Employee leaves the employ of the Company, the Company will
pay the Employee at a rate mutually agreeable to the Employee
and the Company, plus reasonable travel or other expenses.
3. MISCELLANEOUS.
a. Non-Employment Agreement. This Agreement is not an employment
contract and does not give the Employee any right to continued
employment. The Employee acknowledges that his or her
employment with the Company is terminable at will at any time
by either the Employee or the Company.
b. No Conflict. During his or her employment with the Company,
the Employee will not engage in any activity or employment
which may conflict with the interests of the Company, and the
Employee will comply with all policies and procedures of the
Company.
c. No Adequate Remedy. The Employee understands that if the
Employee fails to fulfill the Employee's obligations under
this Agreement, the damages to the Company would be very
difficult to determine. Therefore, in addition to any other
rights or remedies available to the Company at law, in equity
or by statute, the Employee hereby consents to the specific
enforcement of this Agreement by the Company through an
injunction or restraining order issued by an appropriate
court.
d. Successors and Assigns. This Agreement is binding on and
inures to the benefit of the Company's successors and assigns,
all of which are included in the term "Company" as it is used
in this Agreement.
e. Modification. This Agreement may be modified or amended only
by a written statement signed by both the Company and the
Employee.
f. Governing Law. It is the intention of both parties that the
terms of this Agreement be strictly enforced and be governed
by the law of the Company's state of incorporation (Delaware),
corporate headquarters (North Dakota), or the Employee's
residence, whichever such law would enforce the terms of this
Agreement to the greatest extent. Any legal proceeding,
regardless of the governing law, related to this Agreement
will be brought in an appropriate North Dakota court, and both
the Company and the Employee hereby consent to the exclusive
jurisdiction of that court for this purpose.
4
g. Construction. Wherever possible, each provision of this
Agreement will be interpreted so that it is valid under
applicable law. If any provision of this Agreement is to any
extent invalid under applicable law, that provision will still
be effective to the extent it remains valid. The remainder of
this Agreement also will continue to be valid, and the entire
Agreement will continue to be valid in other jurisdictions.
h. Waivers. No failure or delay by either the Company or the
Employee in exercising any right or remedy under this
Agreement will waive any provision of the Agreement. Nor will
any single or partial exercise by either the Company or the
Employee of any right or remedy under this Agreement preclude
either of them from otherwise or further exercising these
rights or remedies, or any other rights or remedies granted by
any law or any related document.
i. Captions. The headings in this Agreement are for convenience
only and do not affect this Agreement's interpretation.
j. Entire Agreement. This Agreement and any previous
confidentiality or non-compete agreements signed by the
Employee in connection with his or her employment with the
Company constitute a single agreement. In case of conflict
between any provision of this Agreement and any provision of
any other such agreement, the provisions of this Agreement
will control. There are no commitments, understandings or
representations relating to the subject matter of this
Agreement which are not set forth in this Agreement and any
such previous confidentiality or non-compete agreements.
k. Notices. All notices and other communications required or
permitted under this Agreement will be in writing and will be
hand delivered or sent by registered or certified first class
mail, postage prepaid, and will be effective upon delivery if
hand delivered, or three (3) days after mailing if mailed to
the address stated below. These addresses may be changed at
any time by like notice.
IN WITNESS WHEREOF, the Company and the Employee have executed this
Agreement as of the date first written above.
RDO EQUIPMENT CO. EMPLOYEE
0000 Xxxxx Xxxxxxxxxx Xxxxx
Xxxxx, XX 00000
----------------------------------------
(Signature)
By
---------------------------- ----------------------------------------
(Print Name Clearly)
Its
----------------------------
----------------------------------------
(Print Address)
5
