NON-DISCLOSURE AND INVENTIONS AGREEMENT
This Non-Disclosure and Inventions Agreement (the "Agreement") is made and
entered into as of the date set forth below, between ____________________
("Employee") and Image Guided Technologies, Inc., a Colorado corporation ("Image
Guided Technologies").
RECITALS
WHEREAS, Employee has been employed by Image Guided Technologies; and
WHEREAS, Employee agrees that the purpose of his employment would be
hindered by the disclosure by him of any Confidential Information or Inventions
of Image Guided Technologies to any person outside of Image Guided Technologies;
and
WHEREAS, the parties accordingly desire to enter into this Agreement
and to educe their full agreement and understanding to writing.
NOW, THEREFORE, for good and valuable consideration, the sufficiency of which is
hereby acknowledged, together with the mutual covenants contained herein, it is
agreed as follows:
CONFIDENTIAL INFORMATION AND MATERIALS. Employee hereby agrees
that all information, processes, know-how, technologies, trade secrets, ideas
and material, in tangible or intangible form, formerly, now or hereafter
created, whether by or for Image Guided Technologies, which is not generally
known to the public and which relates to the past, present or future businesses,
customers, products, supplies, plans or technology of Image Guided Technologies,
shall be deemed Confidential Information, whether or not such information, ideas
or material have been formally marked or identified as confidential.
Confidential Information shall further include material, ideas or information
provided to Image Guided Technologies by a third party pursuant to an agreement
to treat such information as confidential.
GENERAL KNOWLEDGE. Information publicly available or generally
known within the industries or trades in which Image Guided Technologies
competes is not considered Confidential Information.
NON-DISCLOSURE. During Employee's employment by Image Guided
Technologies, Employee will have access to the Confidential Information and will
occupy a position of trust and confidence with respect to the Confidential
Information and the affairs and business of Image Guided Technologies. Employee
agrees to take the following steps to preserve the confidential and proprietary
nature of the Confidential Information:
3.1 NON-DISCLOSURE AND NON-USE. Notwithstanding Section 10.3
hereof, during and after Employee's employment by Image Guided Technologies,
Employee will not use or disclose any of the Confidential Information other than
as required in the performance of Employee's duties with Image Guided
Technologies. Employee understands that he or she is not allowed to sell,
license, market or otherwise exploit any products or services which embody in
whole or in part any Confidential Information.
3.2 PREVENT DISCLOSURE. Employee will take all reasonable
precautions to prevent disclosure of the Confidential Information to
unauthorized persons or entities.
3.3 ABIDE BY IMAGE GUIDED TECHNOLOGIES' RESTRICTIONS.
Employee will treat as confidential and proprietary any information or materials
from outside Image Guided Technologies which Image Guided Technologies is
obligated to treat as confidential or proprietary, in accordance with Image
Guided Technologies' reasonable instructions to Employee.
3.4 RETURN ALL MATERIALS. Upon the Date of Termination (as
hereinafter defined), Employee will deliver to Image Guided Technologies all
tangible materials embodying the Confidential Information, including without
limitation any documentation, records, listings, notes, data, sketches,
drawings, customer lists, memoranda, models, accounts, reference materials,
samples, human or machine-readable media and equipment and any other materials
which in any way relate to the Confidential Information, to the Employee's
employment by Image Guided Technologies, or to the customers of Image Guided
Technologies. Employee agrees not to retain any copies of any of the above
materials.
IDEAS AND INVENTIONS. Employee agrees to assign to Image Guided
Technologies all of Employee's right, title and interest in or to any and all
ideas, concepts, know-how, techniques, processes, inventions, discoveries,
developments, works of authorship, innovations and improvements ("Inventions")
conceived or made by Employee, whether alone or with others, whether patentable
or not, except those that the Employee developed entirely on Employee's own time
without using the equipment, supplies, facilities, or trade secret information
of Image Guided Technologies and which neither (a) relate at the time of
conception or reduction to practice of the Invention to any of the businesses of
Image Guided Technologies, or actual or demonstrably anticipated business of
Image Guided Technologies, nor (b) result from any work performed by the
Employee or any other employees of Image Guided Technologies for Image Guided
Technologies. Employee agrees to promptly inform and disclose all Inventions to
Image Guided Technologies in writing,
and to provide all assistance reasonably requested by Image Guided Technologies
in the establishment, preservation and enforcement of Image Guided Technologies'
interests in the Inventions (such as by executing documents, testifying, etc.),
such assistance to be provided at Image Guided Technologies' expense but without
any additional compensation to Employee.
RESERVED INVENTIONS. All ideas, concepts, know-how, techniques,
processes, inventions, discoveries, developments, innovations and improvements
which Employee made, conceived or acquired prior to Employee's employment by
Image Guided Technologies, or which are excepted from this Agreement by the
terms of Section 4, above, and all patents and patent applications relating
thereto (collectively referred to as "Employee's Rights") shall be excluded from
this Agreement, unless Employee transfers or otherwise assigns such rights to
Image Guided Technologies.
COPYRIGHTS. Employee agrees that any work prepared by Employee during
the course of Employee's employment or engagement with Image Guided Technologies
which is eligible for United States copyright protection or protection under the
Universal Copyright Convention, the Berne Copyright Convention and/or the Buenos
Aires Copyright Convention shall be a "work made for hire." In the event any
such work is deemed not to be a work made for hire, Employee hereby assigns all
right, title and interest in and to the copyright in such work to Image Guided
Technologies, and agrees to provide all assistance reasonably requested in the
establishment, preservation and enforcement of its copyright in such work, such
assistance to be provided at Image Guided Technologies' expense but without any
additional compensation to Employee.
LIMITATION ON OUTSIDE ACTIVITIES. Until the Date of Termination,
Employee agrees not to solely or jointly with others, undertake or join any
planning for or organization of any business activity competitive with any of
the businesses of Image Guided Technologies, engage in activities or render
services similar or reasonably related to those in which Image Guided
Technologies is engaged in (or plans to be engaged in) or otherwise take part in
activities which could in any way jeopardize the competitive position of any of
the businesses engaged in (or to be engaged in) by Image Guided Technologies.
RESERVATION OF RIGHT TO TERMINATE EMPLOYMENT. Except as may
specifically be provided in an employment contract between Image Guided
Technologies and Employee, Image Guided Technologies and Employee agree that the
Employee's employment may be terminated at any time, with or without cause, at
the option of either Image Guided Technologies or Employee. Such termination
shall be effective immediately upon oral or written notice to such other party.
FORMER EMPLOYMENT. Employee acknowledges and agrees that he has not
brought and will not bring with him or use in the performance of his
responsibilities at Image Guided Technologies any materials or documents of any
former employer which are not generally available to the public, unless he has
obtained written authorization from such former employer for their possession
and use. Employee also understands and agrees that, in his employment with
Image Guided Technologies, he is not to breach any obligation of confidentiality
or duty that he has to former employers, and agrees that he will fulfill all
such obligations during his employment with Image Guided Technologies.
MISCELLANEOUS.
10.1 DATE OF TERMINATION. For purposes of this Agreement,
"Date of Termination" shall mean the date that Employee is no longer employed by
or serving Image Guided Technologies in any capacity, including as a director,
officer, or employee or consultant.
10.2 ASSIGNMENT. This Agreement and the rights and
obligations of the parties hereto shall bind and inure to the benefit of any
successor or successors of Image Guided Technologies by reorganization, merger
or consolidation, and any assignee of all or substantially all of Image Guided
Technologies' businesses and properties, but, except as to any such successor or
assignee, neither this Agreement nor any rights or benefits hereunder may be
assigned by Image Guided Technologies or by Employee.
10.3 TERM. The term of this Agreement shall commence on the
date hereof and continue until the Date of Termination. Notwithstanding the
foregoing, upon the expiration of such term, such obligations of Employees as
shall, by the provisions of this Agreement, continue beyond such term, shall so
continue after the expiration of the term.
10.4 GOVERNING LAW. This Agreement is made under and shall be
governed by the laws of the State of Colorado applicable to contracts made and
to be performed entirely within Colorado.
10.5 INTERPRETATION. In case any one or more of the
provisions contained in this Agreement shall, for any reason, be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Agreement, but
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein. If, moreover, any one or more of the
provisions contained in this Agreement shall for any reason be held to be
excessively broad as to duration, activity or subject, it shall be construed by
limiting and reducing it, so as to be enforceable to the extent compatible with
the applicable law as it shall then appear.
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10.6 REMEDIES FOR BREACH. Employee acknowledges that a remedy
at law for any breach or threatened breach by him of the provisions of this
section would alone be inadequate and Employee therefore agrees that Image
Guided Technologies shall be entitled to a preliminary restraining order and/or
injunctive relief in case of any such breach of threatened breach.
Notwithstanding any of the above, nothing in this Agreement shall be construed
to prohibit Image Guided Technologies from pursuing any other available remedies
either at law or in equity, for such breach or threatened breach, including the
recovery of monetary damages from Employee.
10.7 ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding of the parties. This Agreement may not be amended, supplemented
or waived except by a writing signed by the party against whom such amendment,
supplement or waiver is sought to be enforced.
10.8 NON-WAIVER. No delay or failure by Image Guided
Technologies in exercising any right under this Agreement, and no partial or
single exercise of that right, will constitute a waiver of that or any other
right.
10.9 INDEMNITY. Employee agrees to indemnify and hold Image
Guided Technologies harmless from and against any and all damages, loss or
expenses, including attorneys' fees, relating to any breach of the covenants set
forth herein.
10.10 NOTICES. Any notice required or permitted to be given
hereunder shall be effective when received and shall be sufficient if in writing
and if personally delivered or sent by prepaid cable, telex or registered air
mail, return receipt requested, to the party to receive such notice at its
address set forth at the end of this Agreement or at such other address as a
party may by notice specify to the other.
10.11 BINDING EFFECT. This Agreement shall be binding on the
successors and assigns of the parties hereto.
10.12 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which is an original but all of which shall together
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
IMAGE GUIDED TECHNOLOGIES, INC.
___________________________________ ___________________________________
Signed Signed
Date: _____/_____/_____ Date: _____/_____/_____
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