Exhibit 10.21
FORM OF EMPLOYEE CONFIDENTIALITY
AND INVENTIONS AGREEMENT
(Date)
(Name/address)
The following confirms an agreement between me and COMPS InfoSystems, Inc.,
a Delaware corporation (the "Company"), which is a material part of the
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consideration for my employment by the Company:
1. (a) I understand that the Company possesses and will possess
Proprietary Information which is important to its business. For purposes of this
Agreement, "Proprietary Information" is information that was or will be
developed, created, or discovered by or on behalf of the Company, or which
became or will become known by, or was or is conveyed to the Company, which has
commercial value in the Company's business. "Proprietary Information" includes,
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but is not limited to, information about real estate sales comparables, real
estate listings, real estate leases, real estate inventory, real estate space
availability, tenants, algorithms, trade secrets, licenses, computer programs,
designs, technology, ideas, know-how, processes, formulas, compositions, data,
techniques, improvements, inventions (whether patentable or not), works of
authorship, business and product development plans, skills or salaries or terms
of compensation of other employees, information about customers, budgets,
prices, costs, and other information concerning the Company's actual or
anticipated business, research or development, or which is received in
confidence by or for the Company from any other person. I understand that my
employment creates a relationship of confidence and trust between me and the
Company with respect to Proprietary Information. I have been informed and
acknowledge that the unauthorized taking of the Company's Proprietary
Information (i) could result in a civil liability under California Civil Code
Section 3426, and that, if willful, could result in an award for double the
amount of the Company's damages and attorneys' fees; and (ii) is a crime under
California Penal Code Section 499(c), punishable by imprisonment for a time not
exceeding one (1) year, or by a fine not exceeding five thousand dollars
($5,000), or by both.
(b) I acknowledge and agree that COMPS' software and databases
including, but not limited to, real estate sales transactions, listings, lease
comparables, inventories, tenants, and space availability are proprietary to
COMPS and the sole property of COMPS. I acknowledge that COMPS' information and
software is copyrighted and that I will in no way win infringe upon such
copyrights. I will in no way use, copy, appropriate, or redistribute this
information, whether obtained directly or indirectly from COMPS, without a
specific written license agreement with COMPS. I agree that any derivative,
modification or elaboration of COMPS' software or databases by a third party is
still the proprietary property of COMPS for purposes of this Agreement.
2. I understand that the Company possesses or will possess "Company
Materials" which are important to its business. For purposes of this Agreement,
"Company Materials" are documents or other media or tangible items that contain
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or embody Proprietary
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Information or any other information concerning the business, operations or
plans of the Company, whether such documents have been prepared by me or by
others. "Company Materials" include, but are not limited to, blueprints,
drawings, photographs, charts, graphs, software, functional and technical
specifications, software concepts, methodologies, notebooks, customer lists,
computer disks, tapes or printouts, sound recordings and other printed,
typewritten or handwritten documents, as well as samples, prototypes, models,
products and the like.
3. In consideration of my employment by the Company and the compensation
received by me from the Company from time to time, I hereby agree as follows:
a. All Proprietary Information and all title, patents, patent rights,
copyrights, mask work rights, trade secret rights, and other intellectual
property and rights (collectively "Rights") in connection therewith will be the
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sole property of the Company. I hereby assign to the Company any Rights I may
have or acquire in such Proprietary Information. At all times, both during my
employment by the Company and after its termination, I will keep in confidence
and trust and will not use or disclose any Proprietary Information or anything
relating to it without the prior written consent of the President or Chairman of
the Company except as may be necessary and appropriate in the ordinary course of
performing my duties to the Company. Nothing contained herein will prohibit an
employee from disclosing to anyone the amount of his or her wages.
b. All Company Materials will be the sole property of the Company.
I further agree that any property situated on the Company's premises and owned
by the Company, including disks and other storage media, filing cabinets or
other work areas, are subject to inspection by Company personnel at any time
with or without notice. I agree that during my employment by the Company, I will
not remove any Company Materials from the business premises of the Company or
deliver any Company Materials to any person or entity outside the Company,
except as I am required to do in connection with performing the duties of my
employment. I further agree that, immediately upon the termination of my
employment by me or by the Company for any reason, or during my employment if so
requested by the Company, I will return all Company Materials, apparatus,
equipment and other physical property, or any reproduction of such property,
excepting only (i) my personal copies of records relating to my compensation;
(ii) my personal copies of any materials previously distributed generally to
stockholders of the Company; and (iii) my copy of this Agreement.
c. I will promptly disclose in writing to my immediate supervisor,
with a copy to the President of the Company, or to any persons designated by the
Company, all "Inventions," which includes all improvements, inventions, designs,
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formulas, works of authorship, trade secrets, technology, computer programs,
layouts, algorithms, computer programs, formulas, compositions, ideas, designs,
processes, techniques, know-how and data, whether or not patentable, made or
conceived or reduced to practice or developed by me, either alone or jointly
with others, during the term of my employment. I will also disclose to the
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President of the Company all things that would be Inventions if made during the
term of my employment, conceived, reduced to practice, or developed by me within
six months after the termination of my employment with the Company. Such
disclosures will be received by the Company in confidence (to the extent they
are not assigned in Section (d) below) and do not extend the assignment made in
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Section 3(d) below. I will not disclose Inventions to any person outside the
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Company unless I am requested to do so by management personnel of the Company.
d. I agree that all Inventions which I make, conceive, reduce to
practice or develop (in whole or in part, either alone or jointly with others)
during my employment will be the sole property of the Company to the maximum
extent permitted by Section 2870 of the California Labor Code, a copy of which
is attached, and I hereby assign such Inventions and all Rights therein to the
Company. No assignment in this Agreement will extend to inventions, the
assignment of which is prohibited by Labor Code Section 2870 (attached
Attachment A). At the time of each such disclosure, I will advise the Company
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in writing of any inventions that I believe fully qualify for protection under
Section 2870; and I will at that time provide to the Company in writing all
evidence necessary to substantiate that belief I understand that the Company
will keep in confidence and will not disclose to third parties without my
consent any proprietary information disclosed in writing to the Company pursuant
to this Agreement relating to inventions that qualify fully for protection under
the provisions of Section 2870. 1 will preserve the confidentiality of any
invention that does not qualify fully for protection under Section 2870. 1 agree
to keep and maintain adequate and current records (in the form of notes,
sketches, drawings and in any other form that may be required by the Company) of
all Proprietary Information developed by me and all Inventions made by me during
the period of my employment at the Company, which records shall be available to
and remain the sole property of the Company at all times. I hereby waive and
quitclaim to the Company any and all claims of any nature whatsoever which I now
or may hereafter have for infringement of any proprietary rights assigned to the
Company.
e. I agree to perform, during and after my employment, all acts
deemed necessary or desirable by the Company to permit and assist it, at the
Company's expense, in obtaining, maintaining, defending and enforcing Rights
with respect to such Inventions and improvements in any and all countries. Such
acts may include, but are not limited to, execution of documents and assistance
or cooperation in legal proceedings, including appearing as a party or witness.
I hereby irrevocably designate and appoint the Company and its duly authorized
officers and agents, as my agents and attorneys-in-fact to act for and in my
behalf and instead of me, to execute and file any documents and to do all other
lawfully permitted acts to further the above purposes with the same legal force
and effect as if executed by me. My obligation to assist the Company with
respect to proprietary fights in any and all countries shall continue beyond the
termination of my employment, but the Company shall compensate me at a
reasonable rate after my termination for the time actually spent by me at the
Company's request on such assistance.
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f. Any assignment of copyright pursuant to this Agreement includes
all rights of paternity, integrity, disclosure and withdrawal and any other
rights that may be known as or referred to as "moral rights" (collectively
"Moral Rights"). To the extent such Moral Rights cannot be assigned under
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applicable law and to the extent the following is allowed by the laws in the
various countries where Moral Rights exist, I hereby waive such Moral Rights and
consent to any action of the Company that would violate such Moral Rights in the
absence of such consent. I will confirm any such waivers and consents from time
to time as requested by the Company.
g. I have attached as Attachment B to this Agreement a complete
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list of all existing Inventions or improvements to which I claim ownership as of
the date of this Agreement and that I desire to specifically clarify are not
subject to this Agreement, and I acknowledge and agree that such list is
complete. If disclosure of an item on Attachment B would cause me to violate any
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prior confidentiality agreement, I understand that I am not to list such in
Attachment B but am to inform the Company that all items have not been
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listed for that reason. A space is provided on Attachment B for such purpose. If
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no such list is attached to this Agreement, I represent that I have no such
Inventions and improvements at the time of signing this Agreement.
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h. During the term of my employment and for one year thereafter, I
will not encourage or solicit any employee or consultant of the Company to leave
the Company for any reason. However, this obligation will not affect any
responsibility I may have as an employee of the Company with respect to the bona
fide hiring and firing of Company personnel.
i. I agree that during my employment with the Company I will not
engage in any employment, business, or activity that is in any way competitive
with the business or proposed business of the Company, and I will not prepare to
compete, nor will I assist any other person or organization in competing with
the Company or in preparing to engage in competition with the business or
proposed business of the Company. The provisions of this paragraph will apply
both during normal working hours and at all other times including, but not
limited to, nights, weekends and vacation time, while I am employed by the
Company.
j. I represent that my performance of all the terms of this
Agreement will not breach any agreement to keep in confidence proprietary
information acquired by me in confidence or in trust prior to my employment by
the Company. I have not entered into, and I agree I will not enter into, any
agreement either written or oral in conflict herewith or in conflict with my
employment with the Company. I agree that I will not, during my employment with
the Company, improperly use or disclose any proprietary information or trade
secrets of my former or concurrent employers, if any, and that I will not bring
onto the premises of the Company any unpublished documents or any property
belonging to my former or concurrent employers unless consented to in writing by
such employers.
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k. I recognize that the Company has received and in the future will
receive from third parties their confidential or proprietary information subject
to a duty on the Company's part to maintain the confidentiality of such
information and, in some cases, to use it only for certain limited purposes. I
agree that I owe the Company and such third parties, both during the term of my
employment and thereafter, a duty to hold all such confidential or proprietary
information in the strictest confidence and not to disclose it to any person,
firm or corporation (except in a manner that is consistent with the Company's
agreement with the third party) or use it for the benefit of anyone other than
the Company or such third party (consistent with the Company's agreement with
the third party).
4. I agree that this Agreement is not an employment contract and that I
have the right to resign and the Company has the right to terminate my
employment at any time, for any reason, with or without cause.
5. I agree that this Agreement does not purport to set forth all of the
terms and conditions of my employment, and that as an employee of the Company I
have obligations to the Company which are not set forth in this Agreement.
6. I agree that
(a) my obligations under Sections 1(a) through Sections 1(b) and
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Sections 3(a) through 3(f) and Sections 3(h) and 3(k) of this Agreement will
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continue in effect after termination of my employment, regardless of the reason
or reasons for termination, and whether such termination is voluntary or
involuntary on my part, and that I will notify any future client, employer or
potential employer or client of my obligations under this Agreement;
(b) the Company is entitled to communicate my obligations under this
Agreement to any future employer or potential employer of mine;
(c) upon termination of my employment for any reason I will execute,
a bide by and deliver to the Company a termination certificate substantially in
the form attached to this Agreement as Attachment C; and
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(d) the Company has expended substantial efforts to maintain the
confidentiality of the Proprietary Information and would be materially and
irreparably injured by an unauthorized disclosure of any of that information
during my employment with the Company or thereafter, and that any breach of this
Agreement will result in irreparable and continuing damage to the Company for
which there can be no adequate remedy at law, and in the event of any such
breach, the Company will be entitled to immediate injunctive relief and other
equitable remedies (without any need to post any bond or other security) in
addition to such other and further relief as may be proper.
7. I agree that any dispute in the meaning, effect or validity of this
Agreement will be resolved in accordance with the laws of the State of
California without regard
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to the conflict of laws provisions thereof to this Agreement. I further agree
that if one or more provisions of this Agreement are held to be illegal or
unenforceable under applicable California law, such illegal or unenforceable
portion(s) will be limited or excluded from this Agreement to the minimum extent
required so that this Agreement will otherwise remain in full force and effect
and enforceable in accordance with its terms. Venue for any action relating to
this Agreement shall be in San Diego County, California.
8. This Agreement will be effective as of the date I execute this
Agreement and will be binding upon me, my heirs, executors, assigns, and
administrators and will inure to the benefit of the Company, its subsidiaries,
successors and assigns.
9. This Agreement constitutes the entire agreement pertaining to the
subject matter hereof and supersedes all prior and contemporaneous oral, written
or implied agreements, representations, and understanding of the subject matter
hereof. This Agreement can only be modified by a subsequent written agreement
executed by the President or Chairman of the Company.
10. This Agreement is supplementary to, and shall not be considered a
waiver of, any rights of the Company that may exist independently of this
Agreement.
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I HAVE READ THIS AGREEMENT CAREFULLY AND I UNDERSTAND AND ACCEPT THE
OBLIGATIONS WHICH IT IMPOSES UPON ME WITHOUT RESERVATION. NO PROMISES OR
REPRESENTATIONS HAVE BEEN MADE TO ME TO INDUCE ME TO SIGN THIS AGREEMENT. I
SIGN THIS AGREEMENT VOLUNTARILY AND FREELY, IN DUPLICATE, WITH THE UNDERSTANDING
THAT ONE ORIGINAL COUNTERPART WILL BE RETAINED BY THE COMPANY AND THE OTHER
ORIGINAL COUNTERPART WILL BE RETAINED BY ME.
Dated:__________, 19____ _____________________________________________
(Name)
Accepted and Agreed to:
By____________________________
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ATTACHMENT A
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TO EMPLOYEE CONFIDENTIALITY AND INVENTIONS AGREEMENT
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Section 2870. Application of provision providing that employee will assign
or offer to assign rights in invention to employer.
(a) Any provision in an employment agreement which provides that an
employee will assign, or offer to assign, any of his or her rights in an
invention to his or her employer will not apply to an invention that the
employee developed entirely on his or her own time without using the employer's
equipment, supplies, facilities, or trade secret information except for these
inventions that either:
(1) Relate at the time of conception or reduction to practice of
the invention to the employer's business, or actual or demonstrably anticipated
research or development of the employer, or
(2) Result from any work performed by the employee for the
employer.
(b) To the extent a provision in an employment agreement purports to
require an employee to assign an invention otherwise excluded from being
required to be assigned under subdivision (a), the provision is against the
public policy of this state and is unenforceable.
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ATTACHMENT B
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TO EMPLOYEE CONFIDENTIALITY AND INVENTIONS AGREEMENT
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(Name/address)
1. The following is a [complete] list of inventions or improvements
relevant to the subject matter of my employment by COMPS InfoSystems, Inc. (the
"Company") that have been made or conceived or first reduced to practice by me
alone or jointly with others prior to my employment by the Company that I desire
to clarify are not subject to the Company's Confidentiality and Inventions
Agreement.
No inventions or improvements
See below:
Due to confidentiality agreements with a prior employer, I cannot
disclose certain inventions that would otherwise be included on the above list.
Additional sheets attached
2. I propose to bring to my employment the following materials and
documents of a former employer, which employer has expressly consulted to my
continued possession and use.
No materials or documents
See below:
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ATTACHMENT C
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TO EMPLOYEE CONFIDENTIALITY AND INVENTIONS AGREEMENT
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I hereby certify that I do not have in my possession, nor have I failed to
return, any devices, records, data, notes, reports, proposals, lists,
correspondence, specifications, drawings, blueprints, blue/redlines, sketches,
materials equipment, other documents or property, or reproductions of any
aforementioned items belonging to COMPS InfoSystems, Inc., its subsidiaries,
affiliates, successors or assigns (together, the "Company").
I further certify that I have complied with all the terms of the Company's
Employee Confidentiality and Inventions Agreement signed by me, including the
reporting of any Inventions (as defined therein) and original works of
authorship, conceived or made by me (solely or jointly with others) covered by
that agreement,
I further agree that, in compliance with the Employee Confidentiality and
Inventions Agreement, I will continue to preserve as confidential all
Proprietary Information (as defined therein).
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Employee's Signature Date
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Employee's Name Printed
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