INDEPENDENT
CONTRACTOR PROPRIETARY INFORMATION
AND INVENTIONS
AGREEMENT
In consideration of my independent
contractor relationship with Naturade, Inc., a Delaware corporation
(the “Company”) and my compensation from the Company,
I, Naomi Balcombe, hereby agree as follows:
1. Proprietary
Information . I understand that the Company possesses and will
possess Proprietary Information that is important to its business.
“Proprietary Information” is information (whether
conveyed orally, in writing or otherwise) that was or will be
developed, created, or discovered by or on behalf of the Company,
or that became or will become known by, or was or is conveyed to
the Company, that has or could have commercial value in the
Company’s business, unless (a) the information is or
becomes publicly known through lawful means; or (b) the
information is disclosed to me without confidential or proprietary
restriction by a third party who rightfully possesses the
information (without confidential or proprietary restriction) and
who did not learn of it directly or indirectly from the
Company.
Proprietary Information includes,
without limitation, any Company Inventions (as defined below) and
any information relating to (i) information about proposed
products, product development, research, processes, costs, profits,
marketing plans, strategies, forecasts, sales or commissions;
(ii) plans for the future development or new product concepts;
(iii) the compensation, performance and terms of employment of
other employees; (iv) all other information that has been or
will be given to me in confidence by the Company (or any
affiliate); and (v) any information that the Company obtains
from another party that it treats as proprietary or designates as
Proprietary Information.
At all times, both during my
independent contractor relationship with the Company and after its
termination, I will not, directly or indirectly, use, make
available, sell, disclose or otherwise communicate to any third
party, other than in my assigned duties for the benefit of the
Company, any Proprietary Information or anything relating to it. I
understand that the unauthorized disclosure of Proprietary
Information may be highly prejudicial to the Company’s
interests and an improper disclosure of trade secrets. Without
limiting the foregoing, I shall not make copies of, or otherwise
reproduce, Proprietary Information unless authorized by the Company
for reproduction or as necessary to fulfill my obligations under
that certain Consulting Agreement (the “Consulting
Agreement”) or Broker Agreement (the “Broker
Agreement”) between myself and the Company of even date
herewith.
2. Company Materials .
“Company Materials” are documents or other media or
tangible items that contain or embody Proprietary Information,
whether such documents have been prepared by me or by others.
“Company Materials” include, without limitation,
blueprints, drawings, photographs, charts, graphs, notebooks,
customer lists, computer software, media or printouts, sound
recordings and other printed, typewritten or handwritten documents,
as well as samples, prototypes, models, products and the like.
3. Intellectual Property
.
3.1 All Proprietary Information and
all right, title and interest in and to any patents, patent rights,
copyrights, trademark rights, mask work rights, trade secret
rights, and all other intellectual and industrial property and
proprietary rights that currently exist or may exist in the future
anywhere in the world belonging to or created for the Company
(collectively, “Rights”) in connection therewith shall
be the sole property of the Company. I hereby assign to the Company
any Rights I may have or acquire in such Proprietary
Information.
3.2 I acknowledge and agree that I
have no expectation of privacy with respect to the Company’s
telecommunications, networking or information processing systems
(including, without limitation, stored company files, e-mail
messages and voice messages) and that my activity and any files or
messages on or using any of those systems may be monitored at any
time without notice. I further agree that any property situated on
the Company’s premises and owned by the Company, including
disks and other storage media, filing cabinets or other work areas,
is subject to inspection by Company personnel at any time with or
without notice. All Company Materials shall be the sole property of
the Company. I agree that during my independent contractor
relationship with the Company, I will not remove any Company
Materials from the business premises of the Company or deliver any
Company Materials to any person or entity outside the Company,
except as may be necessary to do in connection with performing the
duties of my engagement as an independent contractor. I recognize
that the unauthorized taking of any Proprietary Information may be
a crime under the Cal. Penal Code §499c or comparable laws of
other states or the United States, and may also result in civil
liability under Sections 3426.1 through 3426.11 of the
California Civil Code, or comparable laws of other states. I
further agree that, immediately upon the termination of my
engagement as an independent contractor by me or by the Company for
any reason, or for no reason, or during my engagement as an
independent contractor if so requested by the Company, I will
return all Company Materials, apparatus, equipment and other
physical property, or any reproduction of such property, excepting
only (a) my personal copies of records relating to my
compensation; and (b) my copy of this Independent Contractor
Proprietary Information and Inventions Agreement (this
“Agreement”), the Consulting Agreement and the Broker
Agreement.
3.3 I agree that all
“Inventions” (which term includes patentable or
non-patentable inventions, original works of authorship, derivative
works, trade secrets, trademarks, copyrights, service marks,
discoveries, patents, technology, algorithms, computer software,
application programming interfaces, protocols, formulas,
compositions, ideas, designs, processes, techniques, know-how, data
and all improvements, rights and claims related to the foregoing),
made, conceived, reduced to practice or developed by me or on my
behalf (in whole or in part, either alone or jointly with others)
during my engagement as an independent contractor and which relate
to the consulting work that I am engaged in by the Company, shall
be the sole property of the Company. I hereby assign, without
further consideration, all such Inventions (“Company
Inventions”) to the Company (free and clear of all liens and
encumbrances), and the Company shall be the sole owner of all
Rights in connection therewith.
I acknowledge that all original
works of authorship which have been made and which are made by me
(in whole or in part, either alone or jointly with others) within
the scope of my work as an independent contractor for the Company
and which are protectable by copyright are “works made for
hire,” as defined in the United States Copyright Act (17
USCA, Section 101). I have not disclosed and will not disclose
Inventions covered by this Section 3.3 to any person
outside the Company, unless I am requested to do so by management
personnel of the Company.
3.4 I have maintained and agree to
maintain adequate and current written records on the development of
all Company Inventions and have disclosed and agree to disclose
promptly to the Company all Company Inventions and relevant
records, which records will remain the sole property of the
Company. I further agree that all information and records
pertaining to any idea, process, trademark, service mark,
invention, technology, computer program, original work or
authorship, design, formula, discovery, patent, or copyright that I
do not believe to be a Company Invention, but is conceived,
developed, or reduced to practice by me (in whole or in part,
either alone or jointly with others) during my engagement as an
independent contractor and pursuant to my engagement as an
independent contractor to the Company, shall be promptly disclosed
to the Company (such disclosure to b
