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Exhibit 10.5
ACTION PRODUCTS INTERNATIONAL, INC.
NONDISCLOSURE; RESTRICTIVE COVENANTS AND
PROPRIETARY
INFORMATION AND INVENTIONS AGREEMENT
In consideration of my retention by ACTION PRODUCTS
INTERNATIONAL, INC. , a Florida corporation, (the "
Company "), and the compensation paid to me, I hereby agree
as follows (each capitalized term used herein and not otherwise
defined herein shall have the meaning as defined in my Employment
Agreement as defined herein):
1. Nondisclosure .
1.1 Recognition of Company’s Rights;
Nondisclosure . At all times during the Term and
thereafter, I will hold in strictest confidence and will not
disclose or use any of the Company’s Proprietary Information
(defined below), except as such disclosure or use may be required
in connection with my work for the Company, or unless the Board of
Directors expressly authorizes such in writing. I hereby assign to
the Company any rights I may have or acquire in such Proprietary
Information and recognize that all Proprietary Information shall be
the sole property of the Company and its assigns.
1.2 Proprietary Information . The term "
Proprietary Information " shall mean any and all
confidential and/or proprietary knowledge, data or information of
the Company. By way of illustration but not limitation, "
Proprietary Information " includes (a) trade secrets,
inventions, mask works, ideas, processes, formulas, source and
object codes, data, programs, other works of authorship, know-how,
improvements, discoveries, developments, designs and techniques
(hereinafter collectively referred to as " Inventions ");
and (b) information regarding plans for research, development,
new products, marketing and selling, business plans, budgets and
unpublished financial statements, licenses, prices and costs,
suppliers and customers; and (c) information regarding the
skills and compensation of employees of the Company.
Notwithstanding the foregoing, it is understood that, at all such
times, I am free to use information which is generally known in the
trade or industry, which is not gained as a result of a breach of
this Agreement, and my own, skill, knowledge, know-how and
experience to whatever extent and in whichever way I wish.
1.3 Third-Party Information . I understand,
in addition, that the Company has received and in the future will
receive from third parties confidential or proprietary information
(" Third-Party 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. During
the Term and thereafter, I will hold Third-Party Information in the
strictest confidence and will not disclose to anyone (other than
Company personnel who need to know such information in connection
with their work for the Company) or use, except in connection with
my work for the Company, Third-Party Information unless expressly
authorized by the Board of Directors in writing.
2. Assignment of Inventions
.
2.1 Proprietary Rights . The term "
Proprietary Rights " shall mean all trade secret, patent,
copyright, and other intellectual property rights or "moral rights"
throughout the world. "Moral rights" refers to any rights to claim
authorship of an Invention or to object to or prevent the
modification of any Invention, or to withdraw from circulation or
control the publication or distribution of any Invention, and any
similar right, existing under judicial or statutory law of any
country in the world, or under any treaty, regardless of whether or
not such right is denominated or generally referred to as a "moral
right."
2.2 Assignment of Inventions . I hereby
assign and agree to assign in the future (when any such Inventions
or Proprietary Rights are first reduced to practice or first fixed
in a tangible medium, as applicable) to the Company all my right,
title and interest in and to any and all Inventions (and all
Proprietary Rights with respect thereto) whether or not patentable
or registrable under copyright or similar statutes, made or
conceived or reduced to practice or learned by me, either alone or
jointly with others, in the course and scope of my services to the
Company. Inventions assigned to the Company, or to a third party
as directed by the Company pursuant to this Section 2,
are hereinafter referred to as " Company Inventions
."
2.3 Works for Hire . I acknowledge that all
original works of authorship which are made by me (solely or
jointly with others) within the course and scope of my services to
the Company and which are protectable by copyright are "works made
for hire," pursuant to United States Copyright Act (17 U.S.C.,
Section 101).
2.4 Enforcement of Proprietary Rights . I
will assist the Company in every proper way to obtain, and from
time to time enforce, United States and foreign Proprietary Rights
relating to Company Inventions in any and all countries. To that
end I will execute, verify and deliver such documents and perform
such other acts (including appearances as a witness) as the Company
may reasonably request for use in applying for, obtaining,
perfecting, evidencing, sustaining and enforcing such Proprietary
Rights and the assignment thereof. In addition, I will execute,
verify and deliver assignments of such Proprietary Rights to the
Company or its designee. My obligation to assist the Company with
respect to Proprietary Rights relating to such Company Inventions
in any and all countries shall continue beyond the Term, but the
Company shall compensate me at a reasonable rate after the Term for
the time actually spent by me at the Company’s request on
such assistance.
2.5 Power of Attorney . In the event the
Company is unable for any reason, after reasonable effort, to
secure my signature on any document needed in connection with the
actions specified in the preceding paragraph, I hereby irrevocably
designate and appoint the Company and its duly authorized officers
and agents as my agent and attorney in fact, which appointment is
coupled with an interest, to act for and in my behalf to execute,
verify and file any such documents and to do all other lawfully
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