CONFIDENTIALITY AND NON-COMPETITION AGREEMENT
1.01 This agreement is entered into on ________ ___, 2015, by and between ______________(hereinafter referred to as “Employer”) and _________, an Individual (“hereinafter referred to as “Employee”)
2.01 EMPLOYEE and EMPLOYER have entered into Employment Agreement, dated ___ , 2015, which calls for the provision of certain services by EMPLOYEE to EMPLOYER.
2.02 In his capacity as ______________, EMPLOYEE will have access to information, data, documents and procedures (“information”) which are confidential or contain proprietary value to EMPLOYER. EMPLOYER will provide EMPLOYEE with specialized training as to the use to all proprietary operating systems, strategies, procedures and processes to insure that EMPLOYEE properly and effectively utilizes said information for the benefit of the EMPLOYER.
III. PROPRIETARY VALUE
3.01 The parties hereby agree and acknowledge that considerable sums of money and time have been spent in the creation, development, obtaining and maintenance of information which is confidential and has proprietary value.
3.02 The parties agree that the information and products or services which have been or may be derived from the information is worth a considerable amount of money and therefore is a benefit worthy of protection.
3.03 The parties acknowledge that the information has independent economic value to the EMPLOYER. EMPLOYEE further acknowledges that the EMPLOYER has taken steps to preserve and safeguard the secrecy of the information.
3.04 The parties agree that EMPLOYER desires and has a right to keep such information confidential. The protection of such information is hereby agreed to and acknowledged by both parties as being reasonable consideration for establishing the covenants contained in this agreement.
- The parties agree that if confidential information is disseminated to third parties, the same would be detrimental to the owner of the information.
3.06 The EMPLOYEE understands that absent his entering into this agreement, the EMPLOER would not enter into the Employment Agreement with EMPLOYEE.
- INFORMATION TO BE PROTECTED AND REMAIN CONFIDENTIAL
4.01 DEFINITION OF “CONFIDENTIAL INFORMATION”
“Confidential Information” means the Work Product and any proprietary information, technical data, trade secrets or know-how of EMPLOYER, including, but not limited to, operating systems and procedures, marketing strategies, research, business plans or models, product plans, products, services, computer software and code, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, customer lists and customers (including, but not limited to, customers of EMPLOYER on whom EMPLOYEE called or with whom EMPLOYEE became acquainted during the term of its services), knowledge of specialized requirements of Employer’s customers, markets, finances or other business information, including analytical methods and procedures, forecast and forecast assumptions, and future plans and strategies, including price and cost objectives, disclosed by EMPLOYER either directly or indirectly in writing, orally or by drawings or inspection of parts or equipment. Confidential Information does not include information which: (a) is known to EMPLOYEE at the time of disclosure to EMPLOYEE by EMPLOYER as evidenced by written records of EMPLOYEE, (b) has become publicly known and made generally available through no wrongful act of EMPLOYEE, or (c) has been rightfully received by EMPLOYEE from a third party who is authorized to make such disclosure.
4.02 NON-USE AND NON-DISCLOSURE
EMPLOYEE shall not, during or subsequent to the term of this Agreement: (i) use EMPLOYER’S Confidential Information for any purpose whatsoever other than the performance of the duties owed to EMPLOYER, or (ii) disclose EMPLOYER’S Confidential Information to any third party. It is understood that said Confidential Information is and will remain the sole property of EMPLOYER. EMPLOYEE shall take all reasonable precautions to prevent any unauthorized use or disclosure of such Confidential Information. EMPLOYEE shall not use, disseminate or distribute to any person, firm or corporation, incorporate, reproduce, modify, reverse engineer, decompile or network any Confidential Information, or any portion thereof, for any purpose, commercial, personal, or otherwise, except as expressly authorized in writing by the Board of Directors of EMPLOYER. Upon termination of the Employment Agreement, or at any time thereafter, EMPLOYEE and its servants, agents, and employees shall promptly return to EMPLOYER, or upon the request of EMPLOYER shall destroy or delete, all such tangible Confidential Information, including, but not limited to, any and all devices, records, data, notes, reports, proposals, lists, correspondence, specifications, drawings blueprints, sketches, materials, equipment, other documents or property, or reproductions of any aforementioned items developed by EMPLOYEE pursuant to its employment by EMPLOYER or otherwise belonging to EMPLOYER.
4.03 THIRD PARTY CONFIDENTIAL INFORMATION
Employee recognizes that EMPLOYER has received and in the future will receive from third parties their proprietary information, technical data, know-how, trade secrets or other information of a type or nature similar to Confidential Information (“Third Party Information”) subject to a duty on EMPLOYER’S part to maintain the confidentiality of such information and to use it only for certain limited purposes. EMPLOYEE agrees that EMPLOYEE owes EMPLOYER and such third parties, during the term of this Agreement and thereafter, a duty to treat such Third Party Information as if it were Confidential Information in accordance with the obligations of Section 4.01 above.
- PARTIES OBLIGATIONS
5.01 PRESERVE THE CONFIDENTIALITY OF THE INFORMATION
EMPLOYEE agrees to keep all confidential information private and shall not disclose any confidential information to any person, firm, entity or organization, etc. without the express written authorization of EMPLOYER.
EMPLOYEE agrees to keep and maintain confidential information in a safe and secure place with adequate safeguards to ensure that unauthorized persons do not have access to the confidential information.
All oral and written discussions, communications, e‑mail transmissions and other forms of communication or transmission which contain confidential information shall be kept secret and remain confidential; each party hereto agrees to restrict such communications solely to those persons who are authorized to receive such communications.
5.02 NO USE OF CONFIDENTIAL INFORMATION FOR OTHER PURPOSES
EMPLOYEE agrees not to use any of EMPLOYER’s confidential data or confidential information for any third party bids, contracts, evaluations, industry reports including but not limited to “best practices” statements or summaries, analyses, proposals or other work.
5.03 NO PUBLIC DISSEMINATION OF CONFIDENTIAL INFORMATION
The parties agree not to allow confidential information to be publicly disseminated in any form, including but not limited to oral, written or computer communications.
- NOTIFICATION IN THE EVENT OF RELEASE OF CONFIDENTIAL INFORMATION
In the event that confidential information is inadvertently released to an unauthorized person, or any misuse or misappropriation of the information occurs, then the party who has such knowledge agrees to notify the other party of this event within 10 days of the receipt of such knowledge or awareness.
- RETURN OF CONFIDENTIAL INFORMATION
6.01 PROPERTY RIGHTS
Each party shall retain ownership of its confidential information, including without limitation all rights in patents, copyrights, trade marks and trade secrets. The recipient of any confidential information shall not acquire any title or ownership rights to the other party’s confidential information by virtue of having access to the information.
The confidential information shall remain the property of the disclosing party and shall be kept confidential by the receiving party following the date of any such disclosure.
6.02 CONTINUING OBLIGATION
This obligation shall continue and shall survive notwithstanding the completion, modification or termination of this agreement.
6.03 RETURN OF CONFIDENTIAL INFORMATION
Upon conclusion of the Employment Agreement, EMPLOYEE shall return all confidential information to EMPLOYER.
VII. NONSOLICITATION AND NONCOMPETITION
7.01 During the term of the Contract, and for a period of two (2) year thereafter, EMPLOYEE shall not, directly or indirectly, or through any third party or entity, solicit, call on, contact, or accept business or leads from any past, present, or prospective customers, suppliers, employees, agents, or independent contractors of EMPLOYER.
8.01 IRREPARABLE HARM AND INJUNCTIVE RELIEF
The parties agree and stipulate that a breach of this agreement may cause irreparable damage to the party whose information has been disseminated in an unauthorized manner. Consequently, remedies at law for such a breach may not be adequate, therefore the non‑breaching party shall be entitled to seek whatever remedies or damages the party may desire including but not limited to money damages, preliminary and other injunctive or equitable relief.
The parties agree and stipulate that if injunctive relief is requested, then the requirement to show that monetary damages is an insufficient remedy has been met. The parties agree and stipulate that no bond or surety shall be required if an injunction is granted.
The parties agree that the non‑breaching party may elect damages under any statute, rule or common law cause of action or claim that it sees fit including but not limited to the provisions of the Uniform Trade Secrets Act.
8.02 ATTORNEY’S FEES AND COSTS OF COURT
The non‑breaching party, if successful at trial, shall be entitled to reimbursement of reasonable attorneys’ fees and costs of court, including expert witness fees, deposition expenses, and all other costs or expenses which may be or have been required to enforce this agreement.
8.03 VALIDITY OF AGREEMENT
The parties agree that this provision shall survive the agreement and if any of the terms in this paragraph VIII are subsequently held invalid, then the invalid terms shall be deemed to be severable and shall not defeat the remaining provisions in this agreement.
- GENERAL AND ADMINISTRATIVE PROVISIONS
9.01 ACCEPTANCE AND DATE OF EFFECTIVENESS
This agreement is not binding until it is executed by all parties to this agreement. This agreement shall become effective upon such execution. Thereafter, all obligations contained in this agreement shall be conclusive and binding upon all of the parties. Accordingly, this agreement shall no longer be considered executory as of the date that all parties have affixed their signatures to it.
9.02 AMENDMENT OR MODIFICATION
This agreement represents the entire agreement by and between the parties except as otherwise provided in this agreement. It may not be changed except by written agreement duly executed by all of the parties.
Neither party shall have the right to transfer or assign its obligations or interest in this agreement without the prior written consent of the other party.
9.04 CORPORATE AUTHORITY
If any party to this agreement is a legal entity, including, but not limited to, an association, corporation, joint venture, limited partnership, partnership, or trust, then that party represents to the other that this agreement and the transactions contemplated in this agreement and the execution and delivery hereof have been duly authorized by all necessary corporate, partnership, or trust proceedings and actions including, but not limited to, action on the part of the directors, officers and agents of the entity, if said actions are required.
Furthermore, a corporate party represents that all appropriate corporate meetings were held or the actions contemplated herein will be ratified to authorize the aforementioned obligations and certified copies of all corporate meetings or minutes and corporate resolutions authorizing this transaction have been delivered to all parties to this agreement prior to or at the time of execution of this agreement, if such corporate authorization was requested by the party desiring such authorization within five (5) days of the execution of this agreement.
9.05 FURTHER ASSURANCES
Each party further agrees that it shall take any and all necessary steps and sign and execute any and all necessary documents or agreements required to implement the terms of the agreement of the parties contained in this contract, and each party agrees to refrain from taking any action, either expressly or impliedly, which would have the effect of prohibiting or hindering the performance of the other party to this agreement.
9.06 NO WAIVER
The failure or delay of either party in the enforcement of the rights detailed in this agreement shall not constitute a waiver of the rights nor shall it be considered as a basis for estoppel either at equity or at law.
That party may exercise its rights under this agreement despite any delay or failure to enforce those rights at the time the cause of action or right or obligation arose.
9.07 PAROL EVIDENCE, STATUS OF AGREEMENT AND PRIOR UNDERSTANDINGS
This agreement and the exhibits attached hereto and incorporated herein, if any, contain the entire agreement of the parties and there are no representations, inducements, promises, agreements, arrangements or undertakings, oral or written, between the parties to this agreement other than those set forth herein and duly executed in writing.
No agreement of any kind shall be binding upon either party unless and until the same has been made in writing and duly executed by both parties.
Upon execution of this agreement by all parties, all previous agreements, contracts, oral understandings, representations, arrangements, or undertakings of any kind relative to the matters contained in this agreement are hereby superseded and canceled and all claims and demands not contained in this agreement are deemed fully completed and satisfied.
9.08 PARTIES BOUND CLAUSE AND SUCCESSORS
This agreement shall be binding upon and inure to the benefit of the parties, their respective heirs, executors, administrators, legal representatives, successors and assigns.
The parties to this agreement expressly agree that in the event a party seeks to or does transfer part or all of its assets to a separate entity, not a party to this agreement, the party shall be liable under this agreement as if the transfer had not occurred.
Any party to this agreement may assign its rights and obligations under this agreement without consent to a successor to all or substantially all of its business, whether the successor has acquired this business by sale, merger, consolidation, or otherwise.
No representations, promises, guarantees or warranties were made to induce either party to execute this agreement other than those stated in the agreement.
If any provision of this agreement is for any reason held violative of any applicable law, governmental rule or regulation, or if the provision is held to be unenforceable or unconscionable, then the invalidity of that specific provision shall not be held to invalidate the remaining provisions of this agreement.
All other provisions and the entirety of this agreement shall remain in full force and effect unless the removal of the invalid provision destroys the legitimate purposes of this agreement, in which event this agreement shall be canceled and terminated.
9.11 STATE LAW AND VENUE DETERMINATION
This agreement shall be subject to and governed under the laws of the State of Texas. Any and all obligations and payments are due and performable and payable in Tarrant County, Texas.
The parties agree that venue for purposes of any and all lawsuits, causes of action, arbitrations, or other disputes shall be in Dallas County, Texas.
9.12 UNDERSTANDING AND FAIR CONSTRUCTION
By execution of this agreement, the parties acknowledge that they have read and understood each provision, term and obligation contained in this agreement.
This agreement, although drawn by one party, shall be construed fairly and reasonably and not more strictly against the drafting party than the non‑drafting party.
IN WITNESS WHEREOF, the parties have executed this Confidentiality and Non-Competition Agreement as of the date written below.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.