Consultant Confidentiality and Inventions Agreement
1 Purpose of Agreement. As a condition and in consideration of relationship by
VC Solutions, Inc. (the "Company") I, the Consultant named at the end of this
Consultant Confidentiality and Inventions Agreement (the "Agreement"),
acknowledge that confidential information and inventions of Company are trade
secrets and important assets of Company, and I agree to be bound by the terms
of this Agreement.
2 Confidentiality. The following information and materials (collectively
referred to as "Confidential Information"), whether in written, oral,
magnetic, photographic, optical or other form and whether now existing or
developed or created during the period of my relationship or engagement with
Company, excepting information obtained by me from general or public sources,
are proprietary to Company and are highly confidential in nature.
2.1 Business Records, Marketing Plans and Customer Information. All
books, records, documents, memoranda and materials, and the information
contained therein, relating to the business and finances of Company including,
but not limited to: (i) marketing and development plans, forecasts, forecast
assumptions, forecast volumes, future plans and potential strategies of
Company; (ii) cost objectives, pricing policies and procedures, quoting
policies and procedures, and unpublished price lists; (iii) licensing
policies, strategies and techniques; (iv) customer lists, names of past,
present and prospective customers and their representatives; (v) data and
other information about or provided by past, present and prospective vendors;
(vii) purchasing information, orders, invoices, billings, and payment of
billings; (viii) past, present and prospective licenses and licensees, the
terms and conditions of any licenses or prospective licenses, contracts or
prospective contracts; (ix) types of products, supplies, materials and
services purchased, leased, licensed and/or sold by Company; (x) past, present
and future research and development arrangements; (xi) customer service
information; (xii) joint ventures, mergers and/or acquisitions; (xiii) Company
personnel policies and procedures, Company personnel files, and the
compensation of officers, directors and Consultants of Company; and (xiv) all
other confidential business records and trade secrets of Company.
2.2 Technology and Manufacturing Procedures. All books, records,
documents, memoranda and materials, and the information contained therein,
relating to the technology of Company (whether or not patentable, whether or
not protected by copyright, whether developed by or for Company) including,
but not limited to: (i) technology licensed to Company by any third party;
(ii) ideas and concepts for existing and new products, processes and services;
(iii) specifications for products, equipment and processes, whether technical
or financial; (iv) manufacturing and performance specifications and
procedures; (v) engineering drawings, flow charts, and graphs; (vi) technical,
research and engineering data; (vii) formulations, materials, and material
specifications; (viii) laboratory studies and benchmark tests; (ix) laboratory
notebooks (or equivalent); (x) plant layout and equipment; (xi) manuals,
including service manuals and operation manuals; (xii) quality assurance
policies, procedures and specifications; (xiii) feasibility and trade secrets
related to the research, engineering, development and manufacturing of
Company.
2.3 Third Party Information, and Not Generally Known. Any and all
other information and materials in Company's possession or under its control
from any other person or entity which Company is obligated to treat as
confidential or proprietary ("Third Party Information"), and any and all other
information not generally known to the public or within the industries or
trades in which Company competes.
2.4 General Skills and Knowledge. The general skills and experience
gained by Consultant during Consultant's relationship with Company, and
information publicly available or generally known within the industries or
trades in which Company competes, is not considered Confidential Information.
3 Consultant's Obligations as to Confidential Information and Materials.
During Consultant's relationship by Company, Consultant may have access to all
or a portion of the Confidential
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Information and, as such, will occupy a position of trust and confidence with
respect to Company's affairs and business. Consultant will take the following
steps to preserve the confidential and proprietary nature of the Confidential
Information:
3.1 Non-Disclosure. During and for a period of three years after
Consultant's relationship with Company, Consultant will not use, disclose or
otherwise permit any person or entity access to any of the Confidential
Information other than as required in the performance of Consultant's duties
with Company. In addition, Consultant will take all reasonable precautions to
prevent disclosure of the Confidential Information..
3.2 Return All Materials. Upon termination of Consultant's
relationship with Company, for any reason whatsoever, Consultant will deliver
to Company all tangible materials embodying the Confidential Information,
including, without limitation, any documentation, records, listings, notes,
data, sketches, drawings, memoranda, models, accounts, reference materials,
samples, machine-readable media and equipment which in any way relate to the
Confidential Information. Consultant may not retain any copies or abstracts of
any Confidential Information.
4 Ideas and Inventions. For the purpose of this Agreement, "Inventions" shall
mean all ideas, concepts, know-how, techniques, processes, methods,
inventions, discoveries, developments, innovations and improvements (i)
conceived or made by Consultant, whether alone or with others, in the course
of Consultant's relationship by Company; or (ii) conceived or made by
Consultant, whether alone or with others, in the course of Consultant's
relationship, but which reach fruition within two years of the termination of
Consultant's relationship, and which either (a) involve or are reasonably
related to either the business of Company or to Company's actual or
demonstrably anticipated research or development, or (b) incorporate or are
based on, in whole or in part, any of the Confidential Information; or (iii)
conceived or made by Consultant, whether alone or with others, within one year
of termination of Consultant's relationship and which either (a) involve or
are reasonably related to either the business of Company or to Company's
actual or demonstrably anticipated research or development, or (b) incorporate
or are based on, in whole or in part, any of the Confidential Information.
4.1 Inventions are Property of Company. Consultant agrees that all
right, title and interest in or to any and all Inventions are the sole and
exclusive property of Company. Consultant agrees to promptly disclose all
Inventions to Company, and to provide all assistance reasonably requested by
Company in the preservation of its interests in the Inventions, such as by
executing documents, testifying, etc. Consultant agrees to execute,
acknowledge and deliver any instruments confirming the complete ownership by
Company of such Inventions. Such assistance shall be provided at Company's
expense, but without any additional compensation to Consultant. Consultant
agrees that if Consultant makes an invention which Consultant believes to be
outside the scope of this Agreement, Consultant shall disclose the invention
to Company management, through Consultant's superior, and request a release of
any claim of interest therein by Company, which release if granted may be
subject to a royalty-free reserved license to Company.
5 Copyrights. Consultant agrees that any work prepared for Company which is
protected under United States copyright laws or under the Universal Copyright
Convention, the Berne Copyright Convention and/or the Buenos Aires Copyright
Convention shall be a work made for hire and ownership of all copyrights
(including all renewals and extensions therein) shall vest in Company. In the
event any such work is deemed not to be a work made for hire for any reason,
Consultant hereby grants, transfers and assigns all right, title and interest
in such work and all copyrights in such work and all renewals and extensions
thereof to Company, and agrees to provide all assistance reasonably requested
by Company in the establishment, preservation, and enforcement of its
copyright in such work, such assistance to be provided at Company's expense,
but without any additional compensation to Consultant. Consultant hereby
agrees to and does hereby waive all moral rights with respect to the work
developed or produced hereunder, including without limitation, any and all
rights of identification of authorship and any and all rights of approval,
restriction, or limitation on use or subsequent modifications.
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6 Consultant Rights. This Agreement shall neither embrace nor include any
ideas, inventions, improvements, innovations, applications for and/or Letters
Patent, and copyrights owned or controlled by Consultant prior to the time of
Consultant's relationship by Company, which are both identified below and
provable by appropriate evidence, complying with the requirements of the
United States patent law and the Rules of Practice of the United States Patent
and Trademark Office for proof of invention. Company shall hold such
disclosures by Consultant in strict confidence.
7 Conflicting Obligations and Rights. Before undertaking a particular
assignment or performing any related work, Consultant shall inform Company in
writing of any apparent conflict between Consultant's work for Company on such
particular assignment and other obligations and (i) any obligations Consultant
may have to preserve the confidentiality of another's proprietary information
or materials, or (ii) exercising any rights Consultant may claim to any ideas,
inventions, improvements, innovations, applications for and/or Letters Patent,
and copyrights identified in Paragraph 6. In the absence of such written
notice, Company may conclude that no such conflict exists and Consultant
agrees thereafter to make no such claim against Company.
8 Injunctive Relief. Consultant, recognizing that irreparable injury shall
result to Company in the event of Consultant's breach of the terms and
conditions of this Agreement, agrees that in the event of his breach or
threatened breach, Company shall be entitled to injunctive relief restraining
Consultant, and any and all persons or entities acting for or with Consultant,
from such breach or threatened breach. Nothing herein contained, however,
shall be construed as prohibiting Company from pursuing any other remedies
available to it by reason of such breach or threatened breach.
9 Miscellaneous. This Agreement may not be modified, changed, amended , or
altered except in writing signed by Consultant or his duly authorized
representative, and by an officer of Company. This Agreement shall be
interpreted in accordance with the laws of the State of California. Any claims
or action arising out of this Agreement shall be decided in Orange County,
California. At the option of either party, any dispute arising from or with
respect to this Agreement shall be decided by arbitration by the American
Arbitration Association in accordance with its commercial rules. Should any
legal action be commenced between the parties to this Agreement concerning any
provision of this Agreement, the expense of all attorneys' fees and other
costs incurred in connection therewith shall be paid by the losing party.
Should any provision or portion of this Agreement be held unenforceable or
invalid for any reason, the remaining provisions and portions of this
Agreement shall be unaffected by such holding. This Agreement constitutes the
sole and only agreement of the parties hereto concerning the subject matter
addressed in this Agreement. Any prior agreements, promises, negotiations, or
representations concerning its subject matter not expressly set forth in this
Agreement, are of no force and effect.
VC Solutions, Inc. Consultant
By William E. Wheaton, III
Signature /s/ William E. Wheaton Signature /s/ David Russell, Jr.
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Print Name William E. Wheaton III Print Name David Russell
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Title President Residence 200 E. 94 St.
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Date 1/16/98 City New York
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State N.Y. Zip 10128
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Date 1/16/98
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PURSUANT TO PARAGRAPH 6, I HAVE MADE A RECORD BELOW OF THE IDEAS, INVENTIONS,
ETC. WITH BRIEF DESCRIPTIONS THEREOF, WHICH I POSSESS AT THE TIME OF
RELATIONSHIP AND WHICH I WISH TO EXCLUDE FROM THE SCOPE OF THIS AGREEMENT.
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Consultant Signature
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Date
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