CONFIDENTIALITY, NON-COMPETITION AND INVENTIONS AGREEMENT
This Confidentiality, Non-Competition, and Inventions Agreement(“Agreement”) is entered into this 17thday of February 2014between Joseph Martin (“Employee”) and Concordat Company, a corporation organized and existing under the laws of Arizona.
A. Concordat Company and its subsidiaries are collectively referred to as “Concordat” in this Agreement.
B. Concordat desires to employ Employee as Vice President ofMarketing, and Employee desires to be employed in that capacity.
C. As an employee of Concordat, Employee would have access to ConfidentialInformation (as defined below).
D. Concordat provides, develops, sells, and markets clothing products and accessories. Much of the marketing work of Concordat is done through the Internet,which is global in coverage and can be accessed by people throughout the world.
E. As a condition of Employee’s employment by Concordat, Employee and Concordatenter into this Agreement, the terms of which Employee acknowledges arereasonable and necessary for the protection of the legitimate interests ofConcordat.
In consideration of Concordat’s employing Employee, the parties agree asfollows:
1. DEFINITIONS. For the purposes of this Agreement, the following termshave the following meanings:
a. “Confidential Information” means information proprietary toConcordat and not generally known (including trade secret information) aboutConcordat’s business, customers, products, services, personnel, pricing,sales strategy, marketing efforts, technology, methods, processes, research,development, finances, systems, software, techniques, accounting, purchasing,business strategies, and plans. All information disclosed to Employee or towhich Employee obtains access during Employee’s Concordat employment, whetheroriginated by Employee or by others, shall be presumed to be ConcordatConfidential Information if it is treated by Concordat as being ConcordatConfidential Information or if Employee has a reasonable basis to believe it tobe Concordat Confidential Information.
b. “Inventions” means discoveries, improvements, ideas, concepts, processes, formulas, methods, analyses, software, and works of authorship(whether or not reduced to writing or put into practice, and whether or notcopyrighted, copyrightable, patented, or patentable) that (1) relate directly tothe business of Concordat; (2) relate to Concordat’s actual or demonstrablyanticipated research or development; (3) result from any work performed byEmployee for Concordat; (4) for which equipment, supplies, facilities, or tradesecret information of Concordat is used; (5) are developed, created, conceived orreducedto practice using any time for which Employee is compensated by Concordat; or (6)are developed, created, conceived, or reduced to practice during the period inwhich Employee is employed by Concordat or within one year after the terminationof that employment for any reason.
c. “Non-Assigned Inventions” means as any invention for which noequipment, supplies, facility or trade secret information of Concordat was usedand which was developed entirely on Employee’s own time, and (1) which does notrelate (a) directly to the business of Concordat or (b) to Concordat’s actual ordemonstrably anticipated research and development, or (2) which does not resultfrom any work performed for Concordat.
d. “Competitor” means any person, corporation, not-for-profitorganization, or other entity that provides, develops, sells, or markets clothing products and accessories in any country in which Concordatdid business or had customers at any time the last 12 months of Employee’s Concordat employment.
2. CONFIDENTIAL INFORMATION. Except as required in Employee’s duties ofConcordat employment or as authorized in writing by the Chief Executive Officer orhis designee, Employee shall not, either during the Employee’s employment byConcordat or at any time thereafter, use or disclose to any person any Confidential Information for any purpose. Employee shall follow all proceduresand policies adopted by Concordat from time to time regarding the treatment andprotection of Confidential Information.
3. RESTRICTIONS ON COMPETITION. For a period of 12 months after theEmployee’s Concordat employment ends for any reason, Employee shall:
a. inform any prospective new employer, prior to accepting employment,of the existence of this Agreement and provide such employer a copy of thisAgreement;
b. not, directly or indirectly, as employee, consultant, contractor orotherwise, perform services for any Competitor; and
c. not directly or indirectly solicit or attempt to solicit anyemployee or independent contractor of Concordat to cease working for Concordat.
a. With respect to Inventions developed, made, created, authored,conceived, or reduced to practice by Employee, in whole or in part, either byEmployee or in connection with others, during Employee’s employment by Concordat(regardless of whetherduring normal working hours or whether at Concordat premises) or within one yearafter the termination of that employment for any reason, Employee shall:
(i) keep complete and accurate records of such Inventions, whichrecords shall be Concordat property (except for records related solely toNon-Assigned Inventions, which records must be kept but are not Concordatproperty);
(ii) comply with all of Concordat’s policies and guidelines relatedto inventions and copyrights, as they may be revised from time to time;
(iii) promptly disclose in writing such Inventions to Concordat;
(iv) assign (and Employee hereby does assign) to Concordat all ofEmployee’s rights to such Inventions (except for Non-Assigned Inventions) and toletters patent and copyrights granted upon such Inventions (except forNon-Assigned Inventions) in all countries; and
(v) execute such documents and do such other acts as may benecessary in the opinion of Concordat to establish and preserve its propertyrights and to obtain and maintain letters patent and copyrights in favor ofConcordat.
If for any reason any such assignment is invalid or ineffective for any reason,then Employee hereby grants Concordat a perpetual, royalty-free, non-exclusive,worldwide license fully to exploit any intellectual property or proprietaryrights in such Invention and any copyrights or patents (or other intellectualproperty or proprietary registrations or applications) resulting therefrom.
b. Concordat shall compensate employees for assigning their rights ininventions that Concordat seeks to protect under patent laws in an amount not toexceed $100 per invention (evenly allocated among all inventors).
c. If Concordat in good faith believes that any Invention constitutes aNon-Assigned Invention, then Concordat shall inform Employee of that fact withinthirty (30) days of receiving a disclosure under subparagraph a(iii) of thisParagraph 4 (unless the parties agree on a different period of time on acase-by-case basis). If Concordat does not so notify Employee and Employeenonetheless in good faith believes that such Invention constitutes aNon-Assigned Invention, then Employee shall inform Concordat within thirty (30)days of the end of the period set forth in the preceding sentence, setting forthreasons for such belief. If within thirty (30) days of Concordat’s receipt thereofConcordat informs Employee that it disagrees, then the parties shall attempt ingood faith to resolve their disagreement. Employee shall bear the burden ofproving that such Invention constitutes a Non-Assigned Invention.
d. Unless proven otherwise, any Invention shall be presumed to havebeen conceived during Employee’s employment with Concordat if within one (1) yearafter termination of such employment such Invention is disclosed to others, iscompleted, or has a patent application filed thereon.
e. When developing a product or service for Concordat, (i) Employee shall abide by all of the terms, conditions and policies ofConcordat related to development; (ii) Employee shall abide bythe terms of any separate agreement between Employee and Concordat related to thedevelopment; and (iii) if Employee chooses to include or referto any materials for which Employee owns the copyright, then Employee herebygrants, and agrees to grant, to Concordat a royalty-free, perpetual, irrevocable,nonexclusive, and fully sublicensable right to use, reproduce, adapt, publish,translate, create derivative works of, distribute, perform, and display suchmaterials (in whole or in part) worldwide and/or to incorporate them in otherworks in any form, media, or technology now known or later developed, solely inconnection with marketing the products.
5. RETURN OF PROPERTY. Upon termination of employment with Concordat,Employee shall deliver promptly to Concordat all records, manuals, books, forms,documents, letters, memoranda, data, tables, photographs, video tapes, audiotapes, computer disks and other computer storage media, and copies thereof, thatare the property of Concordat, or that relate in any way to the business,products, services, personnel, customers, practices, or techniques ofConcordat, and all other property of Concordat (such as, for example, computers,mobile telephones, tablets, pagers, credit cards, and keys), whether or not containingConfidential Information, that are in Employee’ possession or under his control.
6. REASONABLENESS OF RESTRICTIONS. Employee acknowledges and agrees thatthe terms of this Agreement are reasonable and necessary for the protection ofConfidential Information and business and to prevent damage or loss toConcordat as a result of any action of Employee. Employee specificallyacknowledges and agrees that because of the world-wide coverage andaccessibility of the Internet, it is not possible to limit further thegeographic scope of the restrictions described in Paragraph 3 above in a mannerthat would still provide reasonable protection for the legitimate interests ofConcordat.
7. REMEDIES FOR BREACH. Employee hereby acknowledges and agrees that anybreach by Employee of the provisions of this Agreement may cause Concordatirreparable harm for which there is no adequate remedy at law. Therefore,Concordat shall be entitled, in addition to any other remedies available, toinjunctive or other equitable relief to require specific performance or toprevent a breach of the provisions of this Agreement. Any delay by Concordat inasserting a right under this Agreement or any failure by Concordat to assert aright under this Agreement will not constitute a waiver by Concordat of any righthereunder, and Concordat may subsequently assert any or all of its rights underthis Agreement as if the delay or failure to assert rights had not occurred.
8. NO EMPLOYMENT RIGHTS. This Agreement does not require Concordat to employEmployee for any particular length of time and does not restrict the ability ofConcordat to terminate the employment relationship. Except as provided in aseparate written agreement signed by the Concordat Chief Executive Officer or hisdesignee, Employee’s Concordat employment is at-will.
9. PARTIAL INVALIDITY. In the event that any portion of this Agreement isheld to be invalid or unenforceable for any reason, that invalidity orunenforceability shall not affect the other portions of this Agreement and theremaining terms and conditions, or portions thereof, shall remain in full forceand effect. A court of competent jurisdiction may so modify the objectionableprovision as to make it valid, reasonable, and enforceable. It is the intentionof the parties that the restrictions imposed by this Agreement be enforced tothe maximum permissible extent.
10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and shallbe enforceable by the parties hereto and their respective successors andassigns.
11. GOVERNING LAW. This Agreement and any disputes arising out of it shallbe governed by the laws of the State of Arizona without regard for theconflicts of law principles of any state.
12. FORUM SELECTION. Any disputes arising out of or related to thisAgreement shall be litigated only inArizona state courts or in the UnitedStates District Court for the District of Arizona, and Concordat and Employeehereby consent to the exercise of personal jurisdiction over them for thatpurpose by Arizona state courts and the United States District Court for theDistrict of Arizona. Neither employee nor Concordat shall commence litigationagainst the other arising out of or related to this Agreement in any courtoutside the state of Arizona.
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