Creative Efforts Confidentiality Agmt

COMPANY LOGO CREATIVE EFFORTS, CONFIDENTIAL INFORMATION, AND INVENTION ASSIGNMENT AGREEMENT As a condition and in consideration of my employment and continued employment (“Relationship”) with COMPANY and/or its subsidiaries, affiliates and operating divisions (collectively, “COMPANY”), I (the undersigned “Employee”) agree as follows: 1. Relationship Terms Unaffected. This Agreement is not and does not create a fixed term of employment and shall not affect the Relationship other than as stated herein. The Relationship is an at-will employment relationship, and so each party may terminate the Relationship at any time, with or without cause. 2. Duties. During the Relationship, I will devote my best efforts to COMPANY’S interests, perform duties as COMPANY designates, and not engage in any other employment or activities detrimental to COMPANY’S best interests without COMPANY’S prior written consent. 3. Confidential Information. (a) Definition. “Confidential Information” shall mean all of COMPANY’S proprietary and confidential information, including but not limited to all current, proposed or contemplated creations, data, information, know-how, show-how, processes, mock-ups, methods, practices, designs, specifications, yields, efficiencies, capacities, concepts, techniques, technical plans, computer programs, documentation, copyrightable or patentable material, trademarks, customer lists, price lists, vendor lists, business plans, marketing plans and results, personnel information, financial information, trade secrets, and the like, disclosed to me during the Relationship, whether or not during working hours, in whatever form or medium, whether embodied in memos, manuals, letters, drawings, designs, artwork, electronic mail, computer disks, tapes or other documents or information storage devices, or any other media or vehicle, and whether or not designated or marked "CONFIDENTIAL" or the like, which: (i) relates to COMPANY’S business and which COMPANY has not disclosed publicly or is unavailable to the general public; or (ii) was received by COMPANY from a third party to whom COMPANY has a confidentiality obligation to that, or another, third party. (b) Obligation. I acknowledge that COMPANY’S Confidential Information has independent value to COMPANY from not being readily known by others. COMPANY developed its Confidential Information at considerable expense and has at all times made efforts to maintain its secrecy. At all times during the Relationship and thereafter, I will hold in strictest confidence and not use or disclose to any person, firm, corporation or other entity (except for COMPANY’S benefit to the extent necessary to perform my obligations during the Relationship) without written authorization from COMPANY’S President, any of COMPANY’S Confidential Information which I obtain, create or to which I am exposed. I shall not make copies of such Confidential Information except as authorized by COMPANY. I am bound by these obligations as long as any part of the Confidential Information disclosed or delivered to me remains confidential, except that I have no obligation regarding any Confidential Information that is: (i) already known to me prior to commencing the Relationship; (ii) publicly known or becomes publicly known through no wrongful act by me; (iii) disclosed to me by a third person not in violation of any obligation of non-disclosure owed to COMPANY; or (iv) approved for release by written authorization of COMPANY. I have the burden of proving any of the above exceptions, and COMPANY has the right to inspect my records to determine the source of any Confidential Information claimed to be within any exception above. (c) Prior Obligations. My performance of this Agreement during the Relationship has not breached and will not breach any agreement or legal obligation to which I may be bound to keep in confidence proprietary information, knowledge or data of others that I acquired prior or subsequent to the Relationship. I shall not disclose to COMPANY or use any inventions, confidential or non-public proprietary information, or material belonging to any previous client, employer or any other party, that I am otherwise required not to use or disclose. (d) Third Party Information. Now and in the future, COMPANY will receive confidential or proprietary information from third parties that shall remain confidential and be used only for certain limited purposes. I will hold all such confidential or proprietary information in the strictest confidence and not disclose it to any person, firm or corporation or use it, except as necessary in carrying out my work for COMPANY and consistent with COMPANY’S agreement with such third party. Page 1 of 6 Rev. 100 Initials: _________ Employee (e) COMPANY Ownership. COMPANY owns all of the Confidential Information and considers it a valuable proprietary asset. I am not obtaining any right or license to or concerning the Confidential Information or to any COMPANY products. 4. Inventions. (a) Prior Inventions and Licenses to COMPANY. Schedule A attached hereto is an exclusive list specifically describing all inventions, developments, improvements, original works of authorship, copyrights, patents, trademarks, mask work rights, moral rights, trade secrets, trade dress, industrial designs, utility models, or other intellectual property rights relating thereto in any and all countries which: (i) were made by me prior to commencing the Relationship; (ii) belong solely to me or belong to me with others; (iii) relate in any way to any of COMPANY’S proposed or foreseeable future businesses, products or research and development; and (iv) are not assigned to COMPANY hereunder (all of the foregoing collectively, “Prior Inventions”). If during the Relationship, I incorporate any Prior Inventions into a COMPANY product, process or machine, COMPANY is hereby granted and shall have a non-exclusive, royalty-free, irrevocable, perpetual, and worldwide license (with the right to sublicense) to make, have made, copy, modify, make derivative works of, use, sell and otherwise distribute such Prior Inventions as part of or in connection with such product, process, or machine, co-extensive with my rights in such Prior Inventions. (b) Works for Hire. All inventions, developments, improvements, original works of authorship, copyrights, patents, trademarks, mask work rights, moral rights, trade secrets, trade dress, industrial designs, utility models, or other intellectual property rights relating thereto in any and all countries which are made by me (solely or jointly with others) within the scope of and during my Relationship with COMPANY and which relate or are connected in any way to COMPANY’S actual or contemplated business (collectively referred to as “Inventions”) are “works made for hire” (to the greatest extent permitted by applicable law) and are compensated by my pay or other compensation. All such Inventions that are conceived or made by me during or outside my hours of the Relationship will be COMPANY’S sole property. I assign to COMPANY all of my rights to such Inventions and will sign such additional documents, as COMPANY from time to time considers advisable, in order to complete this assignment or to apply for copyright, patent, trademark or other protection in COMPANY’S name. I shall promptl y disclose to COMPANY, in confidence, all Inventions that I make or perform during the Relationship, and all copyright, patent or trademark applications that I file within one year after the Relationship ends. Any Invention conceived or first reduced to practice during the Relationship will be deemed to have been created during the Relationship. Any copyright, patent, or trademark application filed within one year after termination of the Relationship shall be presumed to relate to an Invention made during the Relationship unless I provide conclusive contrary evidence. (c) Maintenance of Records. I shall keep and maintain adequate and current written records of all Inventions during the Relationship. The records: (i) may be in the form of notes, audio recordings, sketches, drawings, flow charts, electronic data or recordings, laboratory notebooks, or any other format; (ii) will be available to and will remain COMPANY’S sole property at all times; and (iii) will not be removed by me from COMPANY’S place of business except as expressly permitted by COMPANY’S policy. I will return all such records and any copies thereof to COMPANY upon the Relationship’s termination. Further, I shall immediately notify COMPANY of the purchase of any record book or similar items or media used for recording information during the Relationship, and COMPANY shall promptly reimburse me for the cost thereof. Such record book or similar items or media shall be deemed COMPANY’S property and to contain Confidential Information. (d) Assignment of Intellectual Property Right to COMPANY. All references to COMPANY in this section shall also include any designee of COMPANY. At COMPANY’S expense, I shall assist COMPANY in every proper way to secure, and I hereby assign to COMPANY, any and all intellectual property rights in the Inventions since inception of the Relationship until termination of the Relationship (collectively “IP Rights”). I shall make prompt and complete written disclosure to COMPANY of all pertinent information and data with respect to the execution of all applications and all other instruments which COMPANY may deem necessary in order to apply for, obtain, and maintain the sole and exclusive rights, title and interest in such Inventions and IP Rights. My obligation to execute or cause to be executed, when it is in my power to do so, any such instrument or papers shall continue after termination of this Agreement until expiration of the last such IP Right to expire in any country or jurisdiction of the world. If COMPANY is unable, because of my mental or physical incapacity or unavailability or for any other reason, to secure my signature to apply or to pursue any application for any IP Rights covering Inventions or original or derivative works of authorship assigned to COMPANY as above, then I irrevocably designate and appoint COMPANY and its duly authorized officers and agents as my agent and attorney in fact, to act for and in my behalf and in my stead to execute and file any such applications and to do all other lawfully permitted acts to further the application for, prosecution, issuance, maintenance or transfer of letters patent, trademark, copyright or other registrations or applications thereon with the same legal force and effect as if originally executed by me. I hereby waive and irrevocably quitclaim to COMPANY any and all claims, of any nature whatsoever, which I now or hereafter have for infringement of any and all proprietary rights assigned to COMPANY. Page 2 of 6 Rev. 100 Initials: _________ Employee (e) Exception to Assignments. Under California Labor Code §2870 and analogous state statutes in the state in which I am employed by COMPANY, I may not be required to assign to COMPANY any of my rights in any Inventions that I develop entirely on my own time without using COMPANY’S equipment, supplies, facilities, or trade secret information, except for Inventions that either: (i) relate, at the time the Invention is conceived or reduced to practice, to COMPANY’S business or COMPANY’S actual or demonstrably anticipated research or development; or (ii) result from any of my work performed for COMPANY. I shall advise COMPANY’S General Counsel, promptly in writing and via facsimile to (310) 455-6302, of any inventions that I believe meet such provisions and are not otherwise disclosed on Schedule A. 5. COMPANY Property; Returning COMPANY Documents. I have no expectation of privacy regarding COMPANY’S telecommunications, networking or information processing systems (including, without limitation, stored company files, e-mail messages, and voice messages), and my activity and any files or messages on or using any of those systems may be monitored at any time without notice. Any property situated on COMPANY’S premises and owned by COMPANY, including disks and other information storage media, filing cabinets, desks, or other work areas, is subject to inspection by COMPANY personnel at any time with or without notice. At the end of the Relationship, I shall deliver to COMPANY (and will not keep in my possession, recreate, copy or deliver to anyone else) any and all devices, records, data, notes, reports, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, laboratory notebooks, materials, flow charts, equipment, computer documentation, any computer disk or tape or any other media containing information, and all other tangible expressions of the Confidential Information, other documents or property, or reproductions of any of the aforementioned items I have developed pursuant to the Relationship or otherwise belonging to COMPANY. If the Relationship terminates, I will sign and deliver the “Termination Certification” attached hereto as Schedule B; however, my failure to sign and deliver the Termination Certificate shall in no way diminish my continuing obligations under this Agreement. 6. Notification to Other Parties. If I leave COMPANY’S employ for any reason, I consent to COMPANY notifying my new employer or any party with whom I maintain a consulting relationship about my rights and obligations hereunder. 7. Solicitation of Employees, Consultants and Other Parties. During the Relationship, I shall not: (a) either directly or indirectly solicit, induce, recruit or encourage any of COMPANY’S employees or consultants to terminate their relationship with COMPANY, or attempt to solicit, induce, recruit, encourage or take away employees or consultants of COMPANY, either for myself or for any other person or entity, including for a period of twelve (12) months immediately following the Relationship’s termination for any reason, whether with or without cause; or (b) use any of COMPANY’S Confidential Information to attempt to negatively influence any of COMPANY’S clients or customers from purchasing COMPANY’S products or services or to solicit or influence or attempt to influence any client, customer or other person either directly or indirectly, to direct his or its purchase of products and/or services to any person, firm, corporation, institution or other entity in competition with COMPANY’S business. 8. Solicitation of Customers. The protection of COMPANY’S rights in Confidential Information can be ensured only by means of a restriction on my activities after the Relationship’s termination. I agree that I would necessarily have to utilize and/or disclose Confidential Information in order to solicit COMPANY’S customers subsequent to the Relationship’s termination. Therefore, for a period of four (4) months from and after the Relationship’s termination, for any reason or no reason, I shall not either directly or indirectly solicit, divert or initiate any contact with, or attempt to solicit, divert or initiate any contact with, any of COMPANY’S customers or clients for any commercial or business reason of the same nature as any business in which COMPANY has been or anticipates being involved. 9. General Provisions. (a) Entire Agreement; No Waivers. This Agreement sets forth the entire understanding of the parties relating to the subject matter herein and merges all prior or contemporaneous discussions and written agreements between them, except to the extent that there are continuing obligations (such as confidentiality) which are inherent or otherwise apparent by their terms. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by the party to be charged. The failure of either party to insist on strict compliance by the other party with any terms, covenants, or conditions of this Agreement shall not be deemed a waiver of that term, covenant, or condition, nor shall any waiver or relinquishment of any right or power at any time be deemed a waiver or relinquishment of that right or power for any other times. This Agreement shall survive the termination of the Relationship. (b) Remedies. Inappropriate disclosure of Confidential Information to third parties may be a breach of the Relationship, a breach of trust and confidence, a breach of fiduciary duty, invasion of privacy, misappropriation of COMPANY’S trade secrets and/or exclusive property rights, and may constitute fraud and deceit, and that COMPANY will be irreparably damaged such that it would be extremely difficult and impractical to measure such damage. If I default in any of my obligations hereunder, I knowingly and voluntarily waive the defense that a remedy at law or damages is adequate and therefore acknowledge that COMPANY shall, Page 3 of 6 Rev. 100 Initials: _________ Employee as a result and in addition to any other available rights or remedies, be entitled to seek equitable relief, including specific performance and preliminary and permanent injunctions to prevent the continuation of such harm, and shall not be required to post bond prior to the issuance of any preliminary injunction. (c) Counterparts, Facsimiles, Scans, Drafting, Section Headings, Survival. This Agreement may be signed, delivered, and/or stored by facsimile or electronic means and in counterparts, each of which is deemed an original and all of which are this one Agreement. Because each party had the opportunity to consult its own legal counsel to participate in preparation of this Agreement, the rule of construction that ambiguities are to be resolved against the drafting party will not be employed in the interpretation of this Agreement to favor any party against the other. Section headings are for convenience only and shall have no effect in interpreting this Agreement. If any provision hereof is held invalid, the remaining provisions shall remain in effect, and the parties will renegotiate in good faith any invalid term and be mutually bound by substitute provision. (d) Governing Law, Jurisdiction, and Dispute Resolution. The state law of the state in which I am employed by COMPANY law shall govern interpretation and enforcement of this Agreement, regardless of conflicts of laws principles. IF A DISPUTE ARISES, THE PARTIES WILL: (a) RESOLVE ALL DISPUTES BY BINDING ARBITRATION HELD IN i) LOS ANGELES COUNTY, CALIFORNIA FOR CALIFORNIA BASED EMPLOYEES AND ii) IN THE STATE IN WHICH I AM EMPLOYED BY COMPANY FOR NON-CALIFORNIA-BASED EMPLOYEES, IN EITHER CASE BEFORE A SINGLE ARBITRATOR OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”); AND (b) WAIVE ANY RIGHT TO CIVIL TRIAL BY JUDGE OR JURY. Notwithstanding the foregoing, all claims alleging violation of restrictive covenants, mishandling of confidential information, or transgression of intellectual property rights, shall be subject to the exclusive jurisdiction, in Los Angeles, CA, of either the California state courts or the US District Court. Before accepting appointment, the arbitrator shall agree: (a) that the arbitrator’s award shall be made within nine (9) months of the filing of a notice of intention (or demand) to arbitrate (but it may be extended by written agreement of the parties); (b) to base any decision or award on governing law; (c) to not award punitive or other damages that are not measured by the prevailing party’s actual damages, except as may be required by statute; and (d) to issue an award in writing within ten (10) days of concluding the presentation of evidence and briefs. Judgment may be entered in any court having jurisdiction thereof. The prevailing party shall be entitled to recover from the other party its costs and expenses, including reasonable attorney’s fees. Signature of Employee: _____________________________________________ Printed Name of Employee: _________________________________________ Page 4 of 6 Rev. 100 Initials: _________ Employee Schedule A LIST OF INTELLECTUAL PROPERTY, INCLUDING PRIOR INVENTIONS AND OTHER WORKS OF AUTHORSHIP EXCLUDED UNDER SECTION 4(e) OF CREATIVE EFFORTS, CONFIDENTIAL INFORMATION, AND INVENTION ASSIGNMENT AGREEMENT Title Conception Date ID Number or Brief Description ______ No inventions or improvements ______ Number (if any) of Additional Sheets Attached Signature of Employee: ________________________________________ ________________________________________ Printed Name of Employee: Date: ______________________ Page 5 of 6 Rev. 100 Initials: _________ Employee Schedule B TERMINATION CERTIFICATION Pursuant to the Creative Efforts, Confidential Information, and Invention Assignment Agreement (“Agreement”) that I previously entered into with COMPANY (“COMPANY”), I certify that I: (a) Have complied with all the terms of the Agreement, including written disclosure of any inventions and original works of authorship, conceived or made by me (solely or jointly with others) covered by the Agreement. (b) Neither possess nor have failed to return any documents, property, or items belonging to COMPANY and all copies thereof. (c) Will preserve as confidential all of COMPANY’S Confidential Information, as defined in the Agreement. (d) Shall not at any time use any Confidential Information of COMPANY, directly or indirectly, to negatively influence any of COMPANY’S clients or customers from purchasing COMPANY’S products or services or to solicit or influence or attempt to influence any client, customer or other person, to direct his or its purchase of products and/or services to any person, firm, corporation, institution or other entity in competition with the business of COMPANY. (e) Shall not either directly or indirectly solicit, induce, recruit or encourage any of COMPANY’S employees or consultants to terminate their relationship with COMPANY, or attempt to solicit, induce, recruit, encourage or take away, hire, or otherwise engage the services of employees or consultants of COMPANY, either for myself or for any other person or entity for twelve (12) months from the date of my termination from COMPANY. (f) Shall continue to assist in the application for, and protection of, any and all IP Rights that I have assigned to COMPANY under this Agreement. Date: ___________________ Signature of Employee: ___________________________________ Printed Name of Employee: _________________________________ Page 6 of 6 Rev. 100 Initials: _________ Employee