Proprietary Information Agreement
THIS PROPRIETARY INFORMATION AGREEMENT between Consultant and iMerit, Inc. ("Company") sets forth the terms and conditions regarding Consultant receiving Proprietary Information from Company.
Term of Agreement
This Agreement (a) is effective as the Effective Date, (b) will survive the termination of Consultant's relationship with Company, (c) inures to the benefit of successors and assigns of Company, and (d) is binding upon Consultant's heirs, executors, administrators or other legal representatives.
Protection of Proprietary Information
Consultant agrees not to directly or indirectly use or disclose any of the Proprietary Information at any time except in connection with the Services described in SOW(s) issued under this Agreement. "Proprietary Information" shall mean (i) technical information relating to Company's existing and future products, including, where appropriate and without limitation, manufacturing techniques and procedures, production controls, software, firmware, integrated circuit designs, information, patent disclosures, patent applications, development or experimental work, formulae, engineering or test data, product specification and part lists, names of suppliers, structures, models, techniques, processes and apparatus relating to the same disclosed by Company to Consultant or obtained by Consultant through observation or examination of information or developments; (ii) confidential marketing information (including without limitation marketing strategies, customer names and requirements and product prices); (iii) confidential future product plans; (iv) confidential financial information provided to Consultant by Company; (v) personnel information (including without limitation Consultant or employee compensation); and (vi) other confidential business information.
At all times during this Agreement and at all times after termination of this Agreement, Consultant will keep in confidence and trust all Proprietary Information, and Consultant will not use or disclose any Proprietary Information or anything relating to it without the written consent of Company, except as may be necessary in the ordinary course of performing Consultant's duties to Company as specified in the Statement of Work.
All Company property, including, but not limited to, Proprietary Information, documents, data, records, apparatus, equipment and other physical property, whether or not pertaining to Proprietary Information, provided to Consultant by Company or produced by Consultant or others in connection with Consultant providing services under this Agreement shall be and remain the sole property of Company and shall be returned promptly to Company as and when requested by Company. Should Company not so request, Consultant shall return and deliver all such property upon termination of this Agreement, and Consultant will not take any such property or any reproduction of such property upon such termination.
Consultant recognizes that Company has received and in the future will receive information from third parties which is their company's private or proprietary information subject to a duty on Company's part to maintain the confidentiality of such information and to use it only for certain limited purposes. Consultant agrees that during the term of this Agreement and thereafter Consultant owes Company and such third parties a duty to hold all such company private or proprietary information received from third parties in the strictest confidence and not to disclose it, except as necessary in carrying out Consultant's work for Company consistent with Company's agreement with such third party and not to use it for the benefit of anyone other than for Company or such third party consistent with Company's agreement with such third party.
The obligations of Consultant shall continue until such time as the Proprietary Information is publicly known, without fault on the part of Consultant.
Non-Solicitation
Consultant agrees that for a period of three (3) months following termination of this Agreement, Consultant will not directly or indirectly engage or participate in the solicitation or attempt to solicit or in any manner encourage Consultants or employees of Company to work for any business that is in competition in any manner whatsoever with the business of Company.
Developed Information
Consultant agrees to promptly disclose to Company, or any persons designated by it, all ideas, inventions, discoveries, creations, improvements, concepts, developments, methods, tools, know-how, trade secrets, code, works of authorship, documentation, templates, processes, techniques, data, programs, reports, information, materials, designs, drawings, specifications, plans and other documents, whether or not patentable, and all designs, trademarks and copyrightable works that Consultant may solely or jointly make or conceive or reduce to practice or learn during the period of this Agreement which (a) are within the scope of the services to be provided by Consultant under this Agreement, as set forth in the Statement of Work, and are related to or useful in the business of Company or to Company's actual or demonstrably anticipated research or development, or (b) result from tasks assigned Consultant by Company, or (c) are funded by Company, or (d) result from use of premises owned, leased or contracted for by Company (hereinafter "Developed Information"). The provisions of this section shall not apply to improvements, processes, techniques, discoveries, developments, improvements, trade secrets, know-how and data that were not otherwise Developed Information and which were developed by Consultant entirely on Consultant's own time without using Company's equipment, supplies, facilities or trade secret information.
Consultant agrees that all Developed Information including all intellectual property rights therein, shall be deemed a “work made for hire” and shall be the sole property of Company and its assigns, and Company and its assigns shall be the sole owner of all such Developed Information including patents, trademarks and copyrights in connection therewith. Consultant hereby assigns to Company any rights Consultant may have or acquire in all Developed Information.
Property of Others
Consultant represents that Consultant's performance under this Agreement does not and will not breach any agreement to keep in confidence Proprietary Information or trade secret, if any, acquired by Consultant in confidence or in trust prior to this Agreement. There are no agreements, written or oral, conveying rights in any research conducted by Consultant. Consultant has not entered into, and Consultant agrees Consultant will not enter into, any agreement either written or oral in conflict herewith.
Consultant understands, as part of the consideration for entering into this Agreement, Consultant has not brought and will not bring to Company or use in the performance of Consultant's responsibilities at Company any equipment, supplies, facility or trade secret information of any current or former employer or organization with which Consultant provided services which are not generally available to the public, unless Consultant has obtained written authorization for their possession and use.
Conflict of Interest
Consultant will notify the Company immediately if, during the Term, he engages, or proposes to engage, in the performance of services for any competitor of Company, or any vendor to or customer of the Company. If Consultant performs services, whether as an employee or an independent Consultant, for a competitor of Company during the Term of this Agreement, Company may terminate this Agreement immediately and without further obligation. Additionally, to avoid the appearance or existence of a conflict of interest, during the Term, Independent Consultant must fully disclose in advance to Company the terms of any proposed or actual services for a vendor or customer of Company, and Company shall have the right in its sole discretion to disapprove the transaction on conflict-of-interest grounds, or alternatively to terminate this Agreement immediately and without further obligation to Independent Consultant. Consultant shall not use or disclose any of Company's Proprietary Information either during or after the performance of any such work. Consultant represents and agrees that Consultant will not bring to Company or use in connection with the services described in the Statement of Work, any third-party proprietary information.
Equitable Relief
Consultant acknowledges that any breach or threatened breach by Consultant of this Agreement will result in immediate and irreparable harm to Company, for which there will be no adequate remedy at law, and that Company will be entitled to equitable relief to restrain Consultant from violating the terms of this Agreement, or to compel Consultant to cease and desist all unauthorized use and disclosure of the Proprietary Information. Company shall be entitled to recover from Consultant any costs or expenses incurred in obtaining relief against breach of this Agreement by Consultant, including, but not limited to, legal fees and costs. Nothing in this section shall be construed as prohibiting Company from pursuing any other remedies available to it for such breach or threatened breach, including recovery of damages from Consultant.
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