INTELLECTUAL PROPERTY,
CONFIDENTIALITY
AND NON-COMPETITION AGREEMENT
(EMPLOYEES)
This Agreement
made as of the 17th day of October, 2005, between OrthoLogic,
Corp., a Delaware corporation with its principal place of business
in Arizona (the “Company”) and Dana Shinbaum, an
employee of the Company (the “Employee”).
A. The
Employee is engaged by the Company, or is about to be engaged by
the Company, as an employee (the
“Engagement”).
B. The
Employee has been, or will be, given access by the Company to
confidential and proprietary information of the Company.
C. The
Company has retained the Employee pursuant to the terms of the
Engagement. If Employee is already employed, the Company is
offering the Employee new employment benefits and/or other
consideration in exchange for the Employee’s promise to abide
by the terms of this Agreement.
D. During the
term of the Engagement, Employee may, in the course of providing
services under the Engagement, create or develop Inventions and/or
Creations for the Company, as defined herein, that are intended to
be owned exclusively by the Company, and the parties understand
that Company shall exclusively own all Inventions and
Creations.
IN CONSIDERATION
of the foregoing and other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Employee and the
Company agree as follows:
1.
Nondisclosure of Proprietary Information . The Company
invents, develops, manufactures and markets processes and products
that involve experimental or inventive work. The Company’s
success depends upon the protection of these processes and products
by patent, by copyright, or by secrecy. The Employee has had, or
may have, access to the Company’s Proprietary Information, as
defined in this Section 1. Access to this Proprietary
Information is given to the Employee only if the Employee agrees to
keep that information secret as follows:
(a) “Proprietary
Information” is all information, in whatever form, tangible
or intangible, pertaining in any manner to the business of the
Company, or any of its agents or employees, which was produced by
any employee, consultant, or other independent employee of the
Company including: (i) any and all methods, inventions,
improvements, information, data or discoveries, whether or not
patentable, that are secret, proprietary, confidential or generally
undisclosed, (including information originated or provided by the
Employee) in any area of knowledge, including information
concerning trade secrets, processes, software, products, patents,
patent applications, inventions, formulae, apparatus, techniques,
technical data, clinical data, clinical trials, improvements,
specifications, servicing, attributes and relative
attributes
1
relating to any
of the Company’s equipment, devices, processes, or products,
or research and development thereof; and (ii) the identities
of the Company’s customers and potential customers
(“Customers”) including Customers the Employee
successfully cultivates or maintains during this Engagement using
the Company’s products, name or infrastructure and the
identities of contact persons at Customers including the
preferences, likes, dislikes and technical and other requirements
of Customers and contact persons with respect to product types,
pricing, sales calls, timing, sales terms, rental terms, lease
terms, service plans, and other marketing terms and techniques;
(iii) the Company’s business methods, practices,
strategies, forecasts, know-how, pricing, and marketing plans and
techniques; (iv) the identity of key accounts, the identity of
potential key accounts; and (v) the identities of the
Company’s key employees. Proprietary Information shall not
include information which (i) is known to Employee on a
non-confidential basis prior to the Engagement with the Company; or
(ii) is or hereafter becomes known to the general public
without breach or fault on the part of Employee.
(b) The
Employee acknowledges that the Company has exclusive property
rights to all Proprietary Information and the Employee hereby
assigns any and all rights Employee might otherwise possess in any
Proprietary Information to the Company. Except as required in the
performance of the duties of this Engagement with the Company, the
Employee will not at any time during or after the term of this
Engagement, without the prior written consent of the Company,
directly or indirectly use, communicate, disclose, disseminate,
lecture upon, publish articles or otherwise put in the public
domain, any Proprietary Information or any other information of a
secret, proprietary, confidential or general undisclosed nature
relating to the Company, its products, Customers, processes or
services, including information relating to testing, research,
development, manufacturing, marketing or selling.
(c) All
documents, records, notebooks, notes, memoranda, data bases, and
similar repositories containing Proprietary Information made or
compiled by the Employee at any time, including any and all copies
thereof, are and shall be the property of the Company, shall be
held by Employee in trust solely for the benefit of the Company,
and shall be delivered to the Company by Employee on the
termination of this Engagement or at any other time upon the
request of the Company.
(d) The
Employee agrees to certify in writing at or before final
termination of the Engagement that the Employee no longer has in
the Employee’s possession, custody or control of any copies
of any business documents generated at or relating to the Company
nor any Proprietary Information, whether in hard copy, on a
computer’s hard drive, on disks or in any other form or
media.
(e) All
information regarding the Company’s business disclosed to,
learned by or developed by the Employee during the course of the
Engagement shall be presumed to be Proprietary
Information.
(f) The
Employee agrees to provide notification, at the start of any new
engagement or employment, to all subsequent employers or
contracting parties who are involved in any way in the medical
products or services industry or are otherwise competitors of the
Company, of the terms and conditions of this Agreement, along with
a copy of this Agreement.
2
(a) “Inventions”
shall include discoveries, concepts, and ideas, whether patentable
or not, including improvements, know-how, data, processes, methods,
formulae, and techniques, concerning any past, present or
prospective Company activities that the Employee makes, discovers
or conceives (whether or not during the hours of this Engagement or
with the use of the Company’s facilities, materials or
personnel), either solely or jointly with others during this
Engagement by the Company and, if based on or related to
Proprietary Information, at any time after termination of such
Engagement. All Inventions shall be solely the property of the
Company and the Employee agrees to perform the requirements of this
Section with respect thereto without the payment by the Company of
any royalty or any consideration other than as provided in this
Agreement.
(b) The
Employee shall maintain written notebooks in which Employee shall
set forth on a current basis information as to all Inventions
describing in detail the procedures employed and the results
achieved as well as information as to any studies or research
projects undertaken on the Company’s behalf, whether or not
in the Employee’s opinion a given project has resulted in an
Invention. The written notebooks shall at all times be the property
of the Company and shall be surrendered to the Company upon
termination of this Engagement or upon request of the
Company.
(c) The
Employee shall apply, at the Company’s request and expense,
for United States and foreign letters patent either in the
Employee’s name or otherwise as the Company shall
desire.
(d) The
Employee hereby assigns to the Company all of Employee’s
rights to Inventions, applications for United States Patent and/or
foreign letters patent and to United States and/or foreign letters
patent granted upon Inventions, including without limitation, all
renewals, reissues, extensions, continuations, divisions or
continuations-in-part thereof.
(e) The
Employee shall acknowledge and deliver promptly to the Company
without charge to the Company but at its expense such written
instruments (including applications and assignments) and do such
other acts, such as giving testimony in support of the
Employee’s inventorship, as may be necessary in the opinion
of the Company to obtain, maintain, extend, reissue and enforce
United States and/or foreign letters patent relating to the
Inventions and to vest the entire right and title thereto in the
Company or its nominee.
(f) The
Employee’s obligation to assist the Company in obtaining and
enforcing patents for Inventions in any and all countries shall
continue beyond the Engagement, but the Company shall compensate
the Employee at a reasonable rate for time actually spent
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