THIS AGREEMENT is made this _____ day of _____________ , 200___, by and
between <<Company>> (hereafter referred to as “Company”) and <<CustCompany>>
(hereafter referred to as “Customer”).
Each of the undersigned parties, and the Company, understands that both parties
have a desire to establish an employment, consulting or other business
relationship between the Company and the Customer.
Each have disclosed or may disclose information & trade secrets relating to
their business (including, but without limitation, client communications and
customer lists, computer programs, technical drawings, graphics & media files,
algorithms, scripts, know-how, formulas, processes, ideas, inventions (whether
patentable or not), schematics and other technical, business, financial,
customer and product development plans, forecasts, strategies, business
practices and information), which to the extent previously, presently, or
subsequently disclosed is hereinafter referred to as “Proprietary Information”.
“Proprietary Information” also includes proprietary or confidential information
of any third party who may disclose such information to either party in the
course of the either parties’ business. The party who discloses Proprietary
Information is hereinafter referred to as “Disclosing Party” and the party who
receives this information is hereinafter referred to as “Receiving Party.”
Agreements
In consideration of the parties’ discussions and any access to Proprietary
Information of either party, both parties make the following agreements:
a. To hold all Proprietary Information disclosed by either party in the
strictest of confidence and to take the same degree of care to protect such
information as it does with its own Proprietary Information. No less than
reasonable care shall be maintained by either party.
b. Shall be granted the use of Proprietary Information only within the scope and
purpose for which it was disclosed; to be used only for the benefit of the
Company; shall not exploit or permit to be used or exploited Proprietary
Information for the benefit of the employee or the benefit of another without
the express written permission of the Company.
c. Not to disclose or use any such Proprietary Information or any information
derived therefrom to any firm, supplier, business, third party or other
organization.
d. Not to reverse engineer, tamper, alter or copy any such Proprietary
Information.
e. Not to export, allow for export, or distribute into the public domain any
such Proprietary Information or product thereof.
f. That all records, files, letters, memos, faxes, notebooks, drawings,
sketches, reports, collateral, program listings, or other written , audio,
magnetic, video, source or other tangible material containing Proprietary
Information, whether the author or not, are exclusive property of the Disclosing
Party and are entrusted to be used only to the benefit of this relationship, and
shall be made available by the Disclosing Party immediately upon request by the
Disclosing Party.
g. Upon request the Receiving Party shall turn over all Proprietary Information
owned by the Disclosing Party and immediately surrender any and all records,
files, letters, memos, faxes, notebooks, drawings, sketches, reports,
collateral, program listings, or other written , audio, magnetic, video, source
or other tangible material containing any such Proprietary Information and any
and all copies or extracts thereof.
h. That each provision herein shall be treated as a separate and independent
clause, and the unenforceability of any one clause shall in no way impair the
enforceability of any other clauses herein.
Both parties also shall not disclose the Proprietary Information to those
employees who do not have a qualifiable need to know such information and, in
any event, shall be liable for all improper disclosures by its employees.
Without a grant of any right or license, the parties agree that the foregoing
shall not apply with respect to any Proprietary Information that either party
can document as being
a) Made available or becomes generally available to the public through no
improper action or inaction by either party or any agent, consultant, affiliate,
contractor or employee.
b) Disclosed to it by a third party who did not owe a duty of confidentiality.
c) In its possession or known by it without restriction prior to receipt from
the other party.
d) Independently developed without use of any Proprietary Information by
employees who have had no access to such information. Either party may make
disclosures required by law or court order provided it uses diligent reasonable
efforts to limit disclosure and to obtain confidential treatment or a protective
order and has allowed the Disclosing Party to participate in the proceeding.
Either party shall immediately give notice to the other of any unauthorized use
or disclosure of the other’s Proprietary Information by the party or its
employees or agents.
Both parties understand that nothing herein requires:
1) The disclosure of any Proprietary Information of the Disclosing Party or
requires that either Party to proceed with any transaction or relationship.
Both parties understand that, except as otherwise agreed in writing, that the
Proprietary Information which it may receive concerning future plans is
tentative and is not intended to represent a contract of employment, retainment,
nor does it constitute a decision by either party concerning the implementation
of such plans. Proprietary Information provided to either party hereunder does
not represent a commitment by either party to purchase or otherwise acquire any
products or services from the other party. If either party desires to purchase
or otherwise acquire any products or services from the other party, the parties
will execute a separate written agreement to govern such transactions.
2) This agreement supercedes all prior agreements, whether written or oral,
between both the Disclosing & Receiving Parties as relating to the subject
matter of this agreement. This agreement may not be altered, modified, amended
or discharged, in whole or in part without the express written permission of
both the Disclosing and Receiving Parties.
Terms and Conditions
1. Communications.
This Agreement shall govern all communications, whether electronic, written,
oral, or other medium between the parties made during the term of this
Agreement.
2. Termination.
This Agreement shall expire upon thirty (30) days written notice by either
party; provided, however, a Receiving Party’s obligations under the terms of
this Agreement shall continue with respect to all Proprietary Information
disclosed prior to the expiration of this Agreement. Both the Disclosing and
Receiving Parties obligations shall survive the termination of his/her
employment and shall be binding upon all heirs, executors, administrators, and
legal representatives.
3. Remedy of Law.
Both parties acknowledge and agree that due to the nature of the Proprietary
Information, there can be no adequate remedy of law for any breach of its
obligations hereunder, which breach may result in irreparable harm. Upon any
such breach or any threat thereof, the party disclosing the information shall be
entitled to appropriate equitable relief in addition to whatever remedies it
might have at law. In the event that any of the provisions of this Agreement
shall be held by a court to be overbroad as to scope, such provision or
provisions shall be limited or eliminated to the minimum extent necessary so
that this Agreement shall otherwise remain compatible with the law as it shall
appear.
4. General Provisions.
4.1 Governing Body.
This Agreement shall be governed by and construed in accordance with the laws of
the State of <<State>>. Exclusive jurisdiction and venue shall by in the
<<County>> County, <<State>> Superior Court.
4.2 Entire Agreement.
This Agreement supersedes all prior discussions and writings and constitutes the
entire agreement between the parties with respect to the subject matter hereof.
The prevailing party in any action to enforce this Agreement shall be entitled
to costs and attorneys’ fees.
4.3 Binding Effect.
This Agreement shall be binding upon and inure to the benefit of Customer and
Developers and their respective successors and assigns, provided that Developers
may not assign any of his obligations under this Agreement without Customer’s
prior written consent.
Each party represents and warrants that, on the date first written above, that
they are authorized to enter into this Agreement in entirety and duly bind their
respective principals by their signature below:
EXECUTED as of the date first written above.
<<CustCompany>>
By: ________________________________
Title: _______________________________
Date signed: _________________________
<<Company>>
By: ________________________________
Title: ______________________________
Date signed: _________________________
