This Confidentiality, Non-Competition, and Inventions Agreement (“Agreement”) is entered into this 17th day of February 2014 between Joseph Martin (“Employee”) and Concordat Company, a corporation organized and existing under the laws of Arizona.
A. Concordat Company and its subsidiaries are collectively referred to as “Concordat” in this Agreement.
B. Concordat desires to employ Employee as Vice President of Marketing, and Employee desires to be employed in that capacity.
C. As an employee of Concordat, Employee would have access to Confidential Information (as defined below).
D. Concordat provides, develops, sells, and markets clothing products and accessories. Much of the marketing work of Concordat is done through the Internet, which is global in coverage and can be accessed by people throughout the world.
E. As a condition of Employee's employment by Concordat, Employee and Concordat enter into this Agreement, the terms of which Employee acknowledges are reasonable and necessary for the protection of the legitimate interests of Concordat.
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AGREEMENT
In consideration of Concordat's employing Employee, the parties agree as follows:
1. DEFINITIONS. For the purposes of this Agreement, the following terms have the following meanings:
a. “Confidential Information” means information proprietary to Concordat and not generally known (including trade secret information) about Concordat's business, customers, products, services, personnel, pricing, sales strategy, marketing efforts, technology, methods, processes, research, development, finances, systems, software, techniques, accounting, purchasing, business strategies, and plans. All information disclosed to Employee or to which Employee obtains access during Employee's Concordat employment, whether originated by Employee or by others, shall be presumed to be Concordat Confidential Information if it is treated by Concordat as being Concordat Confidential Information or if Employee has a reasonable basis to believe it to be Concordat Confidential Information.
b. “Inventions” means discoveries, improvements, ideas, concepts, processes, formulas, methods, analyses, software, and works of authorship (whether or not reduced to writing or put into practice, and whether or not copyrighted, copyrightable, patented, or patentable) that (1) relate directly to the business of Concordat; (2) relate to Concordat's actual or demonstrably anticipated research or development; (3) result from any work performed by Employee for Concordat; (4) for which equipment, supplies, facilities, or trade secret information of Concordat is used; (5) are developed, created, conceived or reduced to practice using any time for which Employee is compensated by Concordat; or (6) are developed, created, conceived, or reduced to practice during the period in which Employee is employed by Concordat or within one year after the termination of that employment for any reason.
c. “Non-Assigned Inventions” means as any invention for which no equipment, supplies, facility or trade secret information of Concordat was used and which was developed entirely on Employee's own time, and (1) which does not relate (a) directly to the business of Concordat or (b) to Concordat's actual or demonstrably anticipated research and development, or (2) which does not result from any work performed for Concordat.
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c. “Non-Assigned Inventions” means as any invention for which no equipment, supplies, facility or trade secret information of Concordat was used and which was developed entirely on Employee's own time, and (1) which does not relate (a) directly to the business of Concordat or (b) to Concordat's actual or demonstrably anticipated research and development, or (2) which does not result from any work performed for Concordat.
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d. “Competitor” means any person, corporation, not-for-profit organization, or other entity that provides, develops, sells, or markets clothing products and accessories in any country in which Concordat did business or had customers at any time the last 12 months of Employee’s Concordat employment.
2. CONFIDENTIAL INFORMATION. Except as required in Employee's duties of Concordat employment or as authorized in writing by the Chief Executive Officer or his designee, Employee shall not, either during the Employee's employment by Concordat or at any time thereafter, use or disclose to any person any Confidential Information for any purpose. Employee shall follow all procedures and policies adopted by Concordat from time to time regarding the treatment and protection of Confidential Information.
3. RESTRICTIONS ON COMPETITION. For a period of 12 months after the Employee's Concordat employment ends for any reason, Employee shall:
a. inform any prospective new employer, prior to accepting employment, of the existence of this Agreement and provide such employer a copy of this Agreement;
b. not, directly or indirectly, as employee, consultant, contractor or otherwise, perform services for any Competitor; and
c. not directly or indirectly solicit or attempt to solicit any employee or independent contractor of Concordat to cease working for Concordat.
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4. INVENTIONS.
a. With respect to Inventions developed, made, created, authored, conceived, or reduced to practice by Employee, in whole or in part, either by Employee or in connection with others, during Employee's employment by Concordat (regardless of whether during normal working hours or whether at Concordat premises) or within one year after the termination of that employment for any reason, Employee shall:
(i) keep complete and accurate records of such Inventions, which records shall be Concordat property (except for records related solely to Non-Assigned Inventions, which records must be kept but are not Concordat property);
(ii) comply with all of Concordat's policies and guidelines related to inventions and copyrights, as they may be revised from time to time;
(iii) promptly disclose in writing such Inventions to Concordat;
(iv) assign (and Employee hereby does assign) to Concordat all of Employee's rights to such Inventions (except for Non-Assigned Inventions) and to letters patent and copyrights granted upon such Inventions (except for Non-Assigned Inventions) in all countries; and
(v) execute such documents and do such other acts as may be necessary in the opinion of Concordat to establish and preserve its property rights and to obtain and maintain letters patent and copyrights in favor of Concordat.
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If for any reason any such assignment is invalid or ineffective for any reason, then Employee hereby grants Concordat a perpetual, royalty-free, non-exclusive, worldwide license fully to exploit any intellectual property or proprietary rights in such Invention and any copyrights or patents (or other intellectual property or proprietary registrations or applications) resulting therefrom.
b. Concordat shall compensate employees for assigning their rights in inventions that Concordat seeks to protect under patent laws in an amount not to exceed $100 per invention (evenly allocated among all inventors).
If for any reason any such assignment is invalid or ineffective for any reason, then Employee hereby grants Concordat a perpetual, royalty-free, non-exclusive, worldwide license fully to exploit any intellectual property or proprietary rights in such Invention and any copyrights or patents (or other intellectual property or proprietary registrations or applications) resulting therefrom.
b. Concordat shall compensate employees for assigning their rights in inventions that Concordat seeks to protect under patent laws in an amount not to exceed $100 per invention (evenly allocated among all inventors).
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c. If Concordat in good faith believes that any Invention constitutes a Non-Assigned Invention, then Concordat shall inform Employee of that fact within thirty (30) days of receiving a disclosure under subparagraph a(iii) of this Paragraph 4 (unless the parties agree on a different period of time on a case-by-case basis). If Concordat does not so notify Employee and Employee nonetheless in good faith believes that such Invention constitutes a Non-Assigned Invention, then Employee shall inform Concordat within thirty (30) days of the end of the period set forth in the preceding sentence, setting forth reasons for such belief. If within thirty (30) days of Concordat's receipt thereof Concordat informs Employee that it disagrees, then the parties shall attempt in good faith to resolve their disagreement. Employee shall bear the burden of proving that such Invention constitutes a Non-Assigned Invention.
d. Unless proven otherwise, any Invention shall be presumed to have been conceived during Employee's employment with Concordat if within one (1) year after termination of such employment such Invention is disclosed to others, is completed, or has a patent application filed thereon.
c. If Concordat in good faith believes that any Invention constitutes a Non-Assigned Invention, then Concordat shall inform Employee of that fact within thirty (30) days of receiving a disclosure under subparagraph a(iii) of this Paragraph 4 (unless the parties agree on a different period of time on a case-by-case basis). If Concordat does not so notify Employee and Employee nonetheless in good faith believes that such Invention constitutes a Non-Assigned Invention, then Employee shall inform Concordat within thirty (30) days of the end of the period set forth in the preceding sentence, setting forth reasons for such belief. If within thirty (30) days of Concordat's receipt thereof Concordat informs Employee that it disagrees, then the parties shall attempt in good faith to resolve their disagreement. Employee shall bear the burden of proving that such Invention constitutes a Non-Assigned Invention.
d. Unless proven otherwise, any Invention shall be presumed to have been conceived during Employee's employment with Concordat if within one (1) year after termination of such employment such Invention is disclosed to others, is completed, or has a patent application filed thereon.
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e. When developing a product or service for Concordat, (i) Employee shall abide by all of the terms, conditions and policies of Concordat related to development; (ii) Employee shall abide by the terms of any separate agreement between Employee and Concordat related to the development; and (iii) if Employee chooses to include or refer to any materials for which Employee owns the copyright, then Employee hereby grants, and agrees to grant, to Concordat a royalty-free, perpetual, irrevocable, nonexclusive, and fully sublicensable right to use, reproduce, adapt, publish, translate, create derivative works of, distribute, perform, and display such materials (in whole or in part) worldwide and/or to incorporate them in other works in any form, media, or technology now known or later developed, solely in connection with marketing the products.
5. RETURN OF PROPERTY. Upon termination of employment with Concordat, Employee shall deliver promptly to Concordat all records, manuals, books, forms, documents, letters, memoranda, data, tables, photographs, video tapes, audio tapes, computer disks and other computer storage media, and copies thereof, that are the property of Concordat, or that relate in any way to the business, products, services, personnel, customers, practices, or techniques of Concordat, and all other property of Concordat (such as, for example, computers, mobile telephones, tablets, pagers, credit cards, and keys), whether or not containing Confidential Information, that are in Employee' possession or under his control.
e. When developing a product or service for Concordat, (i) Employee shall abide by all of the terms, conditions and policies of Concordat related to development; (ii) Employee shall abide by the terms of any separate agreement between Employee and Concordat related to the development; and (iii) if Employee chooses to include or refer to any materials for which Employee owns the copyright, then Employee hereby grants, and agrees to grant, to Concordat a royalty-free, perpetual, irrevocable, nonexclusive, and fully sublicensable right to use, reproduce, adapt, publish, translate, create derivative works of, distribute, perform, and display such materials (in whole or in part) worldwide and/or to incorporate them in other works in any form, media, or technology now known or later developed, solely in connection with marketing the products.
5. RETURN OF PROPERTY. Upon termination of employment with Concordat, Employee shall deliver promptly to Concordat all records, manuals, books, forms, documents, letters, memoranda, data, tables, photographs, video tapes, audio tapes, computer disks and other computer storage media, and copies thereof, that are the property of Concordat, or that relate in any way to the business, products, services, personnel, customers, practices, or techniques of Concordat, and all other property of Concordat (such as, for example, computers, mobile telephones, tablets, pagers, credit cards, and keys), whether or not containing Confidential Information, that are in Employee' possession or under his control.
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6. REASONABLENESS OF RESTRICTIONS. Employee acknowledges and agrees that the terms of this Agreement are reasonable and necessary for the protection of Confidential Information and business and to prevent damage or loss to Concordat as a result of any action of Employee. Employee specifically acknowledges and agrees that because of the world-wide coverage and accessibility of the Internet, it is not possible to limit further the geographic scope of the restrictions described in Paragraph 3 above in a manner that would still provide reasonable protection for the legitimate interests of Concordat.
7. REMEDIES FOR BREACH. Employee hereby acknowledges and agrees that any breach by Employee of the provisions of this Agreement may cause Concordat irreparable harm for which there is no adequate remedy at law. Therefore, Concordat shall be entitled, in addition to any other remedies available, to injunctive or other equitable relief to require specific performance or to prevent a breach of the provisions of this Agreement. Any delay by Concordat in asserting a right under this Agreement or any failure by Concordat to assert a right under this Agreement will not constitute a waiver by Concordat of any right hereunder, and Concordat may subsequently assert any or all of its rights under this Agreement as if the delay or failure to assert rights had not occurred.
6. REASONABLENESS OF RESTRICTIONS. Employee acknowledges and agrees that the terms of this Agreement are reasonable and necessary for the protection of Confidential Information and business and to prevent damage or loss to Concordat as a result of any action of Employee. Employee specifically acknowledges and agrees that because of the world-wide coverage and accessibility of the Internet, it is not possible to limit further the geographic scope of the restrictions described in Paragraph 3 above in a manner that would still provide reasonable protection for the legitimate interests of Concordat.
7. REMEDIES FOR BREACH. Employee hereby acknowledges and agrees that any breach by Employee of the provisions of this Agreement may cause Concordat irreparable harm for which there is no adequate remedy at law. Therefore, Concordat shall be entitled, in addition to any other remedies available, to injunctive or other equitable relief to require specific performance or to prevent a breach of the provisions of this Agreement. Any delay by Concordat in asserting a right under this Agreement or any failure by Concordat to assert a right under this Agreement will not constitute a waiver by Concordat of any right hereunder, and Concordat may subsequently assert any or all of its rights under this Agreement as if the delay or failure to assert rights had not occurred.
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8. NO EMPLOYMENT RIGHTS. This Agreement does not require Concordat to employ Employee for any particular length of time and does not restrict the ability of Concordat to terminate the employment relationship. Except as provided in a separate written agreement signed by the Concordat Chief Executive Officer or his designee, Employee's Concordat employment is at-will.
9. PARTIAL INVALIDITY. In the event that any portion of this Agreement is held to be invalid or unenforceable for any reason, that invalidity or unenforceability shall not affect the other portions of this Agreement and the remaining terms and conditions, or portions thereof, shall remain in full force and effect. A court of competent jurisdiction may so modify the objectionable provision as to make it valid, reasonable, and enforceable. It is the intention of the parties that the restrictions imposed by this Agreement be enforced to the maximum permissible extent.
10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and shall be enforceable by the parties hereto and their respective successors and assigns.
11. GOVERNING LAW. This Agreement and any disputes arising out of it shall be governed by the laws of the State of Arizona without regard for the conflicts of law principles of any state.
8. NO EMPLOYMENT RIGHTS. This Agreement does not require Concordat to employ Employee for any particular length of time and does not restrict the ability of Concordat to terminate the employment relationship. Except as provided in a separate written agreement signed by the Concordat Chief Executive Officer or his designee, Employee's Concordat employment is at-will.
9. PARTIAL INVALIDITY. In the event that any portion of this Agreement is held to be invalid or unenforceable for any reason, that invalidity or unenforceability shall not affect the other portions of this Agreement and the remaining terms and conditions, or portions thereof, shall remain in full force and effect. A court of competent jurisdiction may so modify the objectionable provision as to make it valid, reasonable, and enforceable. It is the intention of the parties that the restrictions imposed by this Agreement be enforced to the maximum permissible extent.
10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and shall be enforceable by the parties hereto and their respective successors and assigns.
11. GOVERNING LAW. This Agreement and any disputes arising out of it shall be governed by the laws of the State of Arizona without regard for the conflicts of law principles of any state.
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12. FORUM SELECTION. Any disputes arising out of or related to this Agreement shall be litigated only in Arizona state courts or in the United States District Court for the District of Arizona, and Concordat and Employee hereby consent to the exercise of personal jurisdiction over them for that purpose by Arizona state courts and the United States District Court for the District of Arizona. Neither employee nor Concordat shall commence litigation against the other arising out of or related to this Agreement in any court outside the state of Arizona.
EMPLOYEE
By:
/s/ JOSEPH MARTIN
12. FORUM SELECTION. Any disputes arising out of or related to this Agreement shall be litigated only in Arizona state courts or in the United States District Court for the District of Arizona, and Concordat and Employee hereby consent to the exercise of personal jurisdiction over them for that purpose by Arizona state courts and the United States District Court for the District of Arizona. Neither employee nor Concordat shall commence litigation against the other arising out of or related to this Agreement in any court outside the state of Arizona.
EMPLOYEE
By:
/s/ JOSEPH MARTIN
Concordat Company
By:
/s/ Chris Fellows
Name:
Chris Fellows
Title:
Executive Vice President and Chief Financial Officer
[1] Based on a June 20, 2006 agreement between Reed Watson and Capella Education Company found online at onecle.com
