EXHIBIT 10.10
NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT
FOR CDEX-INC. EMPLOYEES
This Non-Disclosure and Confidentiality Agreement (the "Agreement"),
made effective as of January15, 2004 (the "Effective Date"), by and between
CDEX-Inc., a Nevada corporation (the "Company"), and the undersigned employee or
Consultant (the "Employee").
WHEREAS, the Company has hired the Employee to perform services for the
Company (the "Services") pursuant to an Agreement dated effective as of the date
hereof (the "Employment Agreement"); and
WHEREAS, there exist certain confidential and proprietary information
and intellectual property rights which are important to the success of the
Company; and
WHEREAS, as an express condition for the Company's agreement to enter
into the Employment Agreement and to provide him with access to the said
confidential and proprietary information and intellectual property rights, the
Employee has agreed that he would keep confidential and not disclose the
Company's said confidential and proprietary information and intellectual
property rights, and would execute a confidentiality and non-disclosure
agreement to that effect; and
WHEREAS, the parties intend that this Agreement be the confidentiality
and non-disclosure agreement referenced above.
NOW, THEREFORE, in consideration of the above, the rights and
obligations set forth herein, and other valuable considerations, the receipt and
sufficiency of which the parties hereby acknowledge, the parties hereby agree as
follows:
1. CONFIDENTIAL INFORMATION. The term "Confidential Information" as
used herein means trade secrets, confidential business or commercial
information, customer lists, vendor lists, technical information, know-how,
inventions, patents, discoveries (whether or not patentable), copyrights,
trademarks, service marks, techniques, data, systems, methods, processes,
improvements, developments, enhancements, and modifications, and other
proprietary rights, whether oral or written, or in recorded form, tangible or
intangible, that are (i) from time to time owned or possessed by or on behalf of
the Company or any entity related by ownership to the Company, (ii) conceived,
developed, designed or otherwise created, modified or improved by the Employee,
in whole or in part, or which the Employee may receive, produce, obtain, or
learn about, in whole or in part, in connection with
the performance of the Services, or (iii) relate in any way or manner to, or
arise out of, the Company and its operations. Confidential Information shall
also include (i) all right, title and interest to the Confidential Information
arising under any laws of any country, and (ii) all right, title and interest in
all causes of action relating to the Confidential Information arising under the
patent, copyright, trade mark, service mark, trade secret, or other laws of any
jurisdiction, which causes of action have not been asserted as of the Effective
Date.
2. NO LICENSE. All Confidential Information disclosed to the Employee,
or which is or may be available to the Employee, shall be held in trust and
confidence by the Employee for the Company. No interest or license of any right
respecting the Confidential Information, other than as expressly set out herein,
is granted to the Employee under this Agreement by implication or otherwise.
3. THE PURPOSE. The Employee shall not use the Confidential Information
in any manner except as is reasonably required for the performance of the
Services. Such use shall be referred to herein as the "Purpose".
4. PROTECTION OF CONFIDENTIAL INFORMATION. The Employee shall use his
best faith efforts to protect the Company's interest in the Confidential
Information and to keep it confidential, using a standard of care no less than
the degree of care that the Employee would reasonably be expected to employ for
his own similar confidential information. In particular, the Employee shall not,
directly or indirectly, disclose, allow access to, transmit or transfer the
Confidential Information to a third party without the Company's prior written
consent. The Confidential Information shall not be copied, reproduced in any
form or stored in a retrieval system or database by the Employee without the
prior written consent of the Company, except for such copies and storage as may
reasonably be required internally by the Employee for the Purpose. The Employee
shall promptly notify the Company of any unauthorized disclosure, release, or
transfer of the Confidential Information and shall provide reasonable assistance
to terminate such unauthorized use or disclosure.
5. RETURN OF CONFIDENTIAL INFORMATION. The Employee shall, upon request
of the Company from time to time or upon the termination of the Employment
Agreement, immediately return to the Company or destroy, as the Company shall
select, the Confidential Information and all copies thereof in any form
whatsoever under the possession, power or control of the Employee. Upon request,
the Employee shall provide the Company with a destruction certificate.
6. EXCEPTIONS. The obligations of the Employee under Sections 1, 2, 3,
4, and 5 herein shall not apply to Confidential Information:
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a. which at the time of disclosure is, or thereafter becomes,
available to the trade or the public without restriction other than through the
fault, negligence, or other acts of the Employee;
b. which is lawfully and in good faith obtained by the
Employee from an independent third party without breach of this Agreement, as
shown by documentation sufficient to establish the third party as a source of
the Confidential Information, and not obtained by the third party from the
Company or by unlawful or improper means; or
c. which the Employee can establish, by documented and
competent evidence, was in his possession prior to the date of disclosure of
such Confidential Information by the Company or an entity affiliated with the
Company, or was independently developed by the Employee.
Notwithstanding the above, however, the Employee and the Company
further agree that individual elements of the Confidential Information may be or
become available to the general public or a third party through no fault of the
Employee, but that such availability of individual elements of knowledge may not
produce cognizant appreciation of the value of elements of knowledge and may not
render known an integrated package of information having the value of the
Company's integrated package of know-how with its various parameters already
reconciled and optimized in substantial part. Accordingly, the Employee
understands that public availability, or the availability from a third party, of
the individual parts of the Confidential Information does not release his
obligation of confidence for Confidential Information that is not already
publicly available. Further, the Employee will not be permitted to justify
disregard of the obligations of confidence by use of the Confidential
Information or parts thereof to guide a search to piece together a series of
items of knowledge from unconnected sources, fitting them together by use of the
Company's package of Confidential Information to make a showing of nonsecrecy of
such information. The foregoing provisions of this Section 6 notwithstanding,
the Employee shall not be more burdened against use of information from public
sources or third party sources than a third party competitor would be, had he
not received disclosure of either the Confidential Information or the value of
the Confidential Information or any of its parts, and had he not had his
interest therein sponsored or initiated by knowledge of the Confidential
Information or any part thereof or its value. Accordingly, subject to the
restrictions set forth herein, the Employee remains free to act on and use
available information from public sources or from third party sources when and
to the extent a competitor of the Company, otherwise disinterested, would in the
natural course of business learn of, appreciate the value of, and use such
public source or third party source information without having responded to
initiative or interest suggested by knowledge of the Confidential Information,
its parts or the value thereof.
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7. DEFAULT. Any violation or attempted violation of any provision of
this Agreement by the Employee is an unauthorized use of the Confidential
Information and shall be deemed to be a material breach of this Agreement. The
Employee hereby agrees to indemnify, defend and hold harmless the Company from
any and all claims, losses, actions, injuries, damages, fines, penalties, or
other liabilities, including but not limited to loss of profits and other
economic losses, attorneys' fees and court costs, resulting from or related to
the breach of this Agreement by the Employee.
a. Without prejudice to the rights and remedies otherwise
available, the Company shall be entitled to equitable relief, such as for an
injunction or specific performance, without the need to post any bond or surety,
if the Employee should breach or threaten to breach any of the provisions of
this Agreement. The Employee recognizes and acknowledges that if he breaches the
provisions of this Agreement, damages to the Company would be difficult if not
impossible to ascertain, and because of the immediate and irreparable damage and
loss that may be caused to the Company for which it would have no adequate
remedy, it is therefore agreed that the Company, in addition to and without
limiting any other remedy or right it may have, shall be entitled to have an
injunction or other equitable relief in any court of competent jurisdiction
enjoining any such breach, and the Employee hereby waives any and all defenses
he may have on the grounds of lack of jurisdiction or competence of a court to
grant such an injunction or other equitable relief. The existence of this right
shall not preclude the applicability or exercise of any other rights and
remedies at law or in equity that the Company may have.
b. Subject to any applicable arbitration provisions herein,
nothing herein shall be construed as prohibiting the Company from pursuing any
remedies, both federal and state, legal or equitable, available to the Company
for any breach or threatened breach by the Employee, including, but not limited
to, recovery from the Employee in accordance with the provisions of the Uniform
Trade Secrets Act.
c. In the event that any enforcement action is taken by either
party hereunder, including filing an action in court or in arbitration, the
prevailing party shall be entitled to recover from the losing party its costs
and expenses, including its reasonable attorneys' fees and court costs.
9. TERM. The term of this Agreement shall commence as of the Effective
Date and shall continue until the later of (i) three (3) years after the
termination of the Employee's employment with the Company, or (ii) fifty (50)
years after the Effective Date.
10. INDEPENDENT AGREEMENT. The parties expressly agree that this
Agreement is an independent agreement, and shall be construed in accordance with
its terms. The validity or invalidity of the Employment Agreement or of any
other
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document related thereto shall not affect the validity or invalidity of this
Agreement, it being the express intent of the parties that this Agreement shall
survive the termination of the Employment Agreement, regardless of the nature or
manner of the termination, including its termination for invalidity.
11. REPRESENTATIONS. The Employee represents that this Agreement has
been duly executed and delivered by the Employee and constitutes the valid and
binding obligations of the Employee; that his execution of this Agreement will
not violate any provision of any contract to which he is a party; and that he
has had the opportunity to have this Agreement reviewed by his own counsel.
12. ARBITRATION. Any failure to perform, controversy or claim arising
out of or relating to this Agreement or the breach, termination or validity
thereof, other than an action by the Company for injunctive relief or specific
performance, shall be determined exclusively by arbitration in accordance with
the provisions of this Section 12 and in accordance with the rules of the
American Arbitration Association for arbitrating commercial matters. The
arbitration shall be held in Washington, D.C., the surrounding metropolitan area
of Maryland, or such other location as the parties shall mutually agree. The
arbitrators shall base their award on applicable Maryland law and judicial
precedent, and shall accompany their award with written findings of fact and
conclusions of law. The decision of the arbitrators shall be binding on the
parties, except that either party may appeal the arbitrators' decision by filing
an action to reconsider the decision of the arbitrators in a court having
jurisdiction hereunder. In any such action the arbitrators' findings of fact
shall be conclusive and binding on both parties and the sole questions to be
determined by the court shall be (i) whether or not the arbitrators' decision
was contrary to Maryland law and judicial precedent, and (ii) if the court
determines that the arbitrators' decision was contrary to Maryland law and
judicial precedent, then how the dispute shall be resolved based on the
arbitrators' findings of facts and Maryland law and judicial precedent. The
decision of the court as to the resolution of the dispute under Maryland law and
judicial precedent shall supercede the arbitrators' decision. Judgment upon the
award rendered by the arbitrators, as modified by the court, if applicable, may
be entered in any court having jurisdiction in accordance herewith.
a. SELECTION OF ARBITRATORS. An arbitrator shall be selected
by each of the parties, and the arbitrators shall mutually select another
arbitrator to serve with them so that there shall be an odd number of
arbitrators. Alternatively, the parties may agree to accept a single arbitrator
to be mutually agreed upon by the parties. Each person serving as an arbitrator
hereunder shall be a professional with excellent academic and professional
credentials who has had experience as an arbitrator and at least ten years
experience in the field of resolving commercial disputes in the Washington
Metropolitan area.
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b. DISCOVERY. Each party shall, upon the written request of
the other party, provide the other with copies of documents relevant to the
issues raised thereby. Other discovery may be ordered by the arbitrators to the
extent the arbitrators deem additional discovery appropriate, and any dispute
regarding discovery, including disputes as to the need therefor or the relevance
or scope thereof, shall be determined by the arbitrators, which determination
shall be conclusive.
c. EXPENSES. All expenses and fees of the arbitrator and
expenses for hearing facilities, stenographers, including attorneys' fees and
the costs of expert witnesses, and other expenses of the arbitrators shall be
borne by the non-prevailing party; provided, however, that the arbitrators may
allocate a portion of such expenses to the other party if the arbitrators
believe such a measure is justified by the conduct of the parties during the
arbitration.
d. CONFIDENTIALITY OF PROCEEDINGS. The arbitration proceedings
conducted pursuant hereto shall be confidential. Neither party shall disclose
any information about the evidence adduced by the other in the arbitration
proceeding or about documents provided by the other in connection with the
proceeding except in the course of a judicial, regulatory or arbitration
proceeding or as may be requested by a governmental authority. Before making any
disclosure permitted by the preceding sentence, the party intending to make such
disclosure shall give the other party reasonable written notice of the intended
disclosure and afford the other party opportunity to protect its interests. The
arbitrators, expert witnesses and stenographic reporters shall sign appropriate
nondisclosure agreements in order to effectuate this agreement of the parties as
to confidentiality.
e. EQUITABLE RELIEF. Notwithstanding anything herein to the
contrary, any action brought by the Company for injunctive relief or specific
performance is not subject to the requirements for arbitration hereunder, and
may be sought in any court having jurisdiction in accordance herewith without
resorting to arbitration.
13. MISCELLANEOUS.
a. This Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof. There are no
representations, warranties, terms, conditions, undertakings or collateral
agreements, express, implied or statutory, between the parties respecting the
subject matter hereof other than as expressly set forth in this Agreement.
b. It is understood that any failure or delay by either party
in exercising any right, power or privilege hereunder shall not operate as a
waiver thereof, nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise thereof.
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c. This Agreement may not be assigned by the Employee without
the prior written consent of the Company, which consent shall be in the sole and
absolute discretion of the Company. This Agreement shall inure to the benefit of
and be binding upon permitted successors and permitted assigns of the parties
hereto.
d. This Agreement shall be construed and enforced in
accordance with the laws of the State of Maryland, excluding its principles of
conflicts of laws. Subject to the requirement for arbitration herein, the
parties hereto agree that any action related to this Agreement shall be filed
exclusively in the appropriate state or federal court having jurisdiction over
Rockville, Maryland, and the parties hereby irrevocably commit to the
jurisdiction and venue of such courts. Each of the parties waives all rights to
a trial by jury in any action, suit or proceeding hereunder.
e. The terms, clauses and provisions of this Agreement shall
be severable so that if any term, clause, or provision hereof shall be deemed
invalid or unenforceable for any reason, such invalidity or unenforceability
shall not affect the remaining terms, clauses, and provisions hereof. If any
term, clause or provision contained herein is found by an arbitration proceeding
or a court having jurisdiction as provided herein to be contrary to applicable
law and judicial precedent in its character or restriction, the term, clause or
provision shall not be rendered unenforceable thereby, but rather the character
or restriction of such term, clause or provision shall be deemed reduced or
modified with retroactive effect to render such term, clause or provision
reasonable and such term, clause or provision shall be enforced as modified. If
the court having jurisdiction will not revise the term, clause or provision, the
parties shall mutually agree to a revision having an effect as close as
permitted by law to the provision declared unenforceable. The Employee agrees
that if an arbitration proceeding or a court having jurisdiction as provided
herein determines, despite the express intent of the Employee, that any portion
of this Agreement is not enforceable, the remaining portions shall be valid and
enforceable.
f. Time is of the essence under this Agreement.
g. The Section and subsection headings contained in this
Agreement are inserted for convenience of reference only, shall not be deemed to
be a part of this Agreement for any purpose, and shall not in any way define or
affect the meaning, construction or scope of any of the provisions hereof.
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IN WITNESS WHEREOF, the Employee and the Company have executed
this Non-Disclosure and Confidentiality Agreement as set forth below as of the
date given above.
CDEX-INC.
By: (SEAL)
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Malcolm H. Philips, Chief Executive Officer
EMPLOYEE or Consultant
(SEAL)
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Name:
Signed by the Employee or Consultant on
January 15, 2002
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