Trade Secret and Non-Solicitation Agreement

 

This Trade Secret and Non-Solicitation Agreement (“Agreement”) is entered into by and between Swan Aquatics (“Company”) and Staff Member as Indicated Below (hereinafter, “Employee”) and is effective as of the first date of Employee’s employment with the Company (the “Effective Date”).

The following representations and promises are given in consideration for the employment relationship between the parties, and as a condition thereof.

1. Confidential Information.

(a) Employee understands that, by virtue of his or her employment with Company, Employee will acquire and be exposed to Confidential Information belonging to the Company.  This Agreement is intended to protect the rights of the Company, Employee, and any third parties with respect to their respective ownership rights in such proprietary and Confidential Information.

(b) Definition.  The term “Confidential Information” as used in this Agreement means all information that is not publicly available in the form used by Company, to which Employee has access or that is learned, generated, or created by Employee during the course of employment.  Confidential Information includes, but is not limited to: (i) source code and programming information, including proprietary wireless and portable computer technology software and applications (including “apps”); (ii) licensing and purchasing agreements; (iii) client lists and client contact information, supplier lists, pricing information and fee schedules; (iv) employment, management and consulting agreements and other organizational information; (v) proprietary business and management methods, including the manner of incorporating technology into its service model; (vi) competitive analysis and strategies; (vii) all other technical, marketing, operational, economic, business, management, or financial knowledge, information or data of any nature whatsoever relating to the business of Company, which has been or may hereafter be learned, generated, created, or otherwise obtained by Employee, alone or jointly with others, whether in written, electronic, oral, or any other form.  Confidential Information also includes Trade Secrets as defined in California Civil Code §3426.1.

(c) Exclusions. Confidential Information shall not include: (i) information that at the time of disclosure is publicly available, or information which later becomes publicly available through no act or omission of the Employee; (ii) information that Employee independently developed without the use of Company’s Confidential Information; or (iii) information disclosed to Employee by a third party not in violation of any obligations of confidentiality.

2. Disclosure and Use of Confidential Information.

Employee will use the Confidential Information only for the purpose of performing his or her employment duties, and will make no use or disclosure of the Confidential Information, in whole or in part, for any other purpose. Employee agrees to protect all Confidential Information from disclosure and to preserve the confidential and proprietary nature of the Confidential Information at all times. Employee shall not disclose any Confidential Information except as provided in this Agreement.  Employee understands that it would be a violation of this Agreement, and an act of unlawful competition to use or disclose Company’s Confidential Information for any purpose not within the scope of Employee’s employment.

3. No Ownership or Other Rights Granted. 

All right, title and interest in and to Confidential Information will remain the property of Company. Nothing in this Agreement will be construed to grant Employee any rights to or license under the Confidential Information or under any related patent, patent application, trademark, copyright, know-how, or other intellectual property of Company.

4. Required Disclosure.

In the event that Employee is requested or required by subpoena or court order to disclose any Confidential Information received pursuant to this Agreement, it is agreed that Employee will provide immediate notice of such request(s) to Company and will use reasonable lawful efforts to avoid disclosure until the Company has had an opportunity for a hearing before the tribunal or court.

5. Return of Information.

Upon the termination of Employee’s employment with Company or upon written request from Company, Employee shall return all Confidential Information and Company property in his or her possession including, without limitation, all originals, copies, translations, notes, or any other form of said material, without retaining any copy or duplicates.

6. Nature of Information. 

Employee acknowledges and agrees that the Confidential Information protected by this Agreement is of special and unique character and value to Company that improper use or disclosure would irreparably harm Company; and as such, monetary damages would not be sufficient to remedy the harm from improper disclosure or use; and, as such specific performance, injunctive relief, and other equitable relief would be appropriate to prevent or stop any actual or threatened use or disclosure of the Confidential Information.  These equitable remedies may be pursued in addition to any other remedies available for breach of this Agreement.  Employee and Employer each agree to waive any requirement for the securing or posting of any bond in connection with such remedies arising from a breach of this Agreement.

7. Prior Commitments, Indemnification. 

Employee represents and warrants that he or she is free to enter into this Agreement and is not bound by any employment agreement, non-disclosure agreement, non- competition agreement or any other agreement, document or obligation, that may infringe on or limit his or her ability to perform the duties of employment, or satisfy the obligations under this Agreement.  Employee shall indemnify and hold the Company harmless against any and all costs, attorney’s fees, losses, liabilities and expenses resulting from claims, demands, suits, actions or judgments arising from a breach of these representations.

8. Third-Party Confidential Information.

It is the Company’s policy to honor the confidentiality of other entities’ confidential and proprietary information. Accordingly, Employee shall not disclose to the Company, or use in connection with Employee’s work duties, any confidential or proprietary information owned by a third party. Employee represents and warrants that he or she has returned all property and confidential and proprietary information belonging to all prior employers or third parties. 

9. Non-Solicitation of Employees.

Employee agrees that from the Effective Date until the termination of employment and for a period of twelve (12) months thereafter, Employee will not directly or indirectly seek to employ or hire any person then employed by Company, whether such person was employed as an employee, consultant or contractor.

10. Non-Solicitation of Customers.

Employee agrees that from the Effective Date until the termination of employment and for a period of twelve (12) months thereafter, Employee will not directly or indirectly solicit customers of Company that employee serviced while employed by the Company, or became acquainted with while employed by Company.

11. No Competition While Employed. 

Employee shall not engage in any activity that is in any way competitive with the business, and shall not assist any other person or organization in competing with Company or in preparing to compete with any business or demonstrably anticipated business of the Company.

12. Governing Law.

California law will govern the interpretation of this Agreement, without reference to its rules regarding conflicts of law. Any dispute arising out of this Agreement will be submitted to a state or federal court sitting in San Diego, California, which will have the exclusive jurisdiction regarding the dispute and to whose jurisdiction the parties irrevocably submit.

13. Entire Agreement.

This Agreement constitutes the parties’ entire agreement with respect to the subject matter hereof and supersedes any and all prior statements or agreements related thereto. This Agreement may be amended only by a writing signed by the parties.   

14. At Will Employment. 

Employee reaffirms and agrees that Employee’s employment with Company is at will and that nothing in this Agreement alters the at-will nature of the employment relationship.  An at-will employment relationship may be ended by the Employee or the Company at any time, with or without cause and with or without notice.   

15. Survival. 

This Agreement (a) will survive the termination Employee’s employment with Company, (b) is personal to Employee and may not be assigned by it; (c) may be assigned by Company in its sole discretion and will inure to the benefit of the successors and assigns of Company.

16. No Waiver. 

No waiver of any term, provision, or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, will be deemed to be or be construed as a further or continuing waiver of any such term, provision, or condition or as a waiver of any other term, provision, or condition of this Agreement.

17. Severability. 

If any provision of this Agreement is determined by any court of competent jurisdiction to be invalid or unenforceable, such provision shall be interpreted to the maximum extent to which it is valid and enforceable, all as determined by such court in such action, and the remaining provisions of this Agreement will, nevertheless, continue in full force and effect without being impaired or invalidated in any way.

IN WITNESS WHEREOF, the parties hereto have entered into this Agreement on the day and year first herein above written.