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Exhibit 10.1
INNOVATION, PROPRIETARY INFORMATION
AND CONFIDENTIALITY AGREEMENT
As a condition of becoming
employed or retained as a consultant by Xcorporeal, Inc., a
Delaware corporation (together with any of its current or future
affiliates, successors or assigns, collectively, the "
Company "), and in consideration of my employment or
consulting relationship with the Company and my receipt of the
compensation paid to me by the Company, I agree to the
following:
Recitals
A. The Company is dedicated
to a policy of exerting a significant influence in its chosen
fields through technical innovation and creative administration and
marketing. The competitive success of this policy depends to a
large extent on the Company’s ability to maintain a free flow
of pertinent information among its employees and consultants.
B. All key employees and
consultants are required to sign this standard Agreement, under
which: (i) requirements are specified for avoiding conflicting
outside activities while associated with the Company, (ii) the
Company is assured of disclosure of, and exclusive rights to, my
inventions, ideas and works which relate to Company business, and
(iii) the Company is protected against unauthorized disclosure
of confidential information of the Company or other persons and
against retention of Company records.
Agreement
1. Confidential
Information .
(a) I
agree at all times during the term of my relationship with the
Company and thereafter, to hold in strictest confidence, and not to
(i) use, except for the benefit of the Company, (ii) disclose
to any person or entity without written authorization of the Board
of Directors of the Company, or (iii) make copies of, except
as authorized by Company, any of the following: confidential or
proprietary information, inventions, trade secrets, know-how,
theories, research, data, plans, products, services, suppliers,
customers, prices, costs, markets, software, hardware,
developments, improvements, processes, formulas, methods,
technology, machines, apparatus, designs, drawings, engineering,
configurations, laboratory notebooks, licenses, finances, budgets
or projections, directly or indirectly created, conceived,
invented, made, discovered, developed, worked on, learned by or
disclosed to me during the course of my relationship with the
Company, either orally, in writing, or by observation, whether or
not during working hours (all of the foregoing, collectively, "
Confidential Information ").
(b) Confidential
Information includes, but is not limited to, information pertaining
to any aspect of the Company’s business or any use or
application arising out of or relating to any: (i) portable or
continuous dialysis method or device, specifically including any
wearable artificial kidney, or related device, (ii) portable
or continuous ultra-filtration method or device, specifically
including any congestive heart failure device, or related device,
(iii) device, method or treatment for kidney failure or
congestive heart failure, (iv) "Technology" or "Licensed Product"
as defined in the Company’s September 1, 2006 License
Agreement, or (v)
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medical device, treatment or method substantially similar in
functionality to any of the foregoing; (all of the foregoing,
collectively, the " Products ").
(c) Confidential
Information does not include any information that is publicly and
widely known and made generally available through no wrongful act
of mine or of others who were under confidentiality obligations. In
these regards, although certain information or technology may be
generally known in the relevant industry, the fact that the Company
uses same, and how the Company uses same, may not be so known and
therefore is Confidential Information. Furthermore, the fact that
various fragments of information or data may be generally known in
the relevant industry does not mean that the manner in which the
Company combines them and the results obtained thereby are so known
and in such instance are also Confidential Information.
Confidential Information also does not include information that I
can show be clear and convincing documentary evidence was known to
me prior to its disclosure to me by the Company.
(d) I
recognize that the Company has received and in the future will
receive from third parties their confidential or proprietary
information subject to a duty on the Company’s part to
maintain the confidentiality of such information and to use it only
for certain limited purposes. I agree to hold all such confidential
or proprietary information in the strictest confidence and not to
disclose it to any person or entity, or to use it except as
necessary in carrying out my work for the Company, consistent with
the Company’s agreement with such third party.
2. Conflicts of
Interest .
(a) During
the term of my employment or consulting relationship with Company,
I will not, without the prior written approval of the President or
Chief Executive Officer of the Company, directly or indirectly,
participate in or assist any person or business that is a current
or potential competitor, customer or supplier of the Company. For
these purposes, a current or potential competitor of the Company is
any person or entity that has developed, is developing, is seeking
to develop, or is selling, marketing or distributing any Products
. I understand that the purpose of these restrictions is to
avoid conflicts of interest and to avoid inadvertent trade secret
disclosure during periods I am most likely to retain valuable
Company trade secrets.
(b) I
represent that my performance of all the terms of this Agreement
and my work for the Company does not and will not breach any
invention assignment, proprietary information, confidentiality or
other agreement with any former employer or other party, or create
any conflict of interest with anyone. I will not disclose to the
Company or use for the benefit of the Company any confidential
information derived from sources other than employment or
consultation with the Company. I agree that if I am in doubt as to
the confidential status of any information, I will refer to an
executive officer of the Company the question of whether such
information is available for disclosure and use for the benefit of
the Company.
(c) I
have not and will not enter into any other agreement with any other
person or entity, either written or oral, in conflict with the
terms of this Agreement.
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3. Inventions .
(a)
Disclosure . I will immediately disclose to the Company all
discoveries, inventions, ideas, improvements, works of authorship,
developments, concepts, trade secrets, Confidential Information,
and other intellectual property, whether or not patentable or
copyrightable (collectively, " Work Product "), that I
create, conceive, invent, make, discover, develop, work on, or
reduce to practice, in whole or in part, during the term of my
employment or consulting relationship with Company, either solely
or jointly with others, whether or not in the course of my
employment, whether or not reduced to drawings, written
description, documentation, models, or other tangible form.
(b)
Work for Hire . I further acknowledge that all Work Product
other than Personal Inventions is "work made for hire" to the
greatest extent permitted by applicable law and are
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