This Non
Competence and Non-Disclosure Agreement (hereinafter referred to as this
"Agreement") is made on this DDMMYYYY:
BY AND BETWEEN:
Company
Name, a company incorporated under the provisions
of the LAW and having its registered office at Address, City - Pincode, State,
India, (hereinafter referred to as the “Company”,
which expression shall, unless repugnant to the context or meaning thereof, be
deemed to mean and include its successors in interest, administrators and
permitted assigns), of the FIRST PART and
Name, a citizen of India and presently
residing at address, city – pincode, (hereinafter referred to as the “Employee”).
WHEREAS:
1. The
Company is in the business of ….....
2. The
Company, in the course of its business, has acquired or may acquire
confidential property, information and trade secrets, made or will make
discoveries and improvements or developments, which it desires to keep
confidential.
3. The
Company undertakes several assignments on behalf of clients that involve the
development of Intellectual Property (as defined hereinafter) and which also
entail confidentiality obligations. The Company must respect the Intellectual
Property and confidentiality obligations of its clients and therefore, in turn
the employees are also expected to respect the same.
4.The Company wishes to
safeguard its goodwill, business and proprietary information to which the
Employee may have access.
5.The Company desires to
engage the Employee on the terms and conditions set forth in this Agreement.
NOW,
THEREFORE, in consideration of the mutual promises set
forth herein, the Company and the Employee hereby agree as follows:
DEFINITIONS
AND INTERPRETATION
In this Agreement unless the context
otherwise requires:
"Agreement"
means this Agreement including any Annexures and Schedules attached to this
Agreement and as may be amended and modified from time to time.“Business” means …......
“Compensation Letter” means the letter
issued by the Company to the Employee setting out the details and manner of the
compensation, as amended from time to time.
"Competitor” means and includes all such
Persons (as defined hereinafter) whether domestic or foreign, which carry on or
which are likely to carry on similar Business.
“Confidential
Information” includes but is not limited to information which is or fairly
be considered to be of a confidential nature, which is obtained whether
(without limitation) in graphic, written, electronic or machine readable form
or orally, by the Employee; and whether or not the information is expressly
stated to be confidential or marked as such, in writing, and also includes all
Intellectual Property, but is not limited to:
Information of value or
significance to the Company or its competitors (present or potential) such as:
Customer data, in
particular, names, addresses, sales figures and sales conditions of the Company
and its clients.
Distribution data, in particular,
names, addresses, sales figures and sales conditions of distributors, agents
and licensees of the Company.
Manufacturing data, in
particular, procurement and manufacturing procedures, the fees, discounts,
commissions and other credits relating to the software.
Supplier’s data, in
particular, names, addresses, sales figures, and sales condition of suppliers
of software and hardware to the Company, whether in India or abroad.
Business data, particularly
data relating to new products, promotion campaigns, distribution strategies,
license agreements and joint ventures in which the Company is involved.
Software data, particularly
information relating to the software and the modules thereof as well as any
devices designed by the Company to prevent unauthorized copying.
Research and development
data, particularly information relating to the software and hardware
developments of the Company.
Financial data, in
particular, concerning budgets, the fees and revenue calculations, sales
figures, financial statements, profit expectations and inventories of the
Company.
Original information supplied by the Company;
Information not known to
competitors of the Company nor intended by the Company for general
dissemination, including but not limited to, policies, strategies, the identity
of various product-suppliers or service-providers, billing schedules, needs of
its clients, information as to the profitability of specific accounts, and
information about the Company itself and its executives, officers, directors
and employees;
Any business or technical
information relating to the Company, including but not limited to financial
information, equipment, documentation, strategies, marketing plans, prospective
leads or target accounts, pricing information, information relating to
existing, previous and potential customers and contracts disclosed by the
Company to the Employee;
Any copies of the above-mentioned
information; but does not include:
a)
that which is in the public
domain other than by the Employee’s breach, of this
Agreement, or of any other confidentiality
agreement;
b)
that which was previously
known as established by written records of the
Employee prior to receipt from the
Company;
c)
that which was lawfully
obtained by the Employee from a third Party; and
d)
that which was developed
independently by the Employee who had no access to the
Confidential Information provided by the Company.
"Intellectual Property"
includes:
all patents, trademarks,
business processes, domain names, works of authorship, designs, utility models,
copyrights whether registered or unregistered, which are owned by the Company
or acquired or developed by the Company in the course of its Business,
including, but not limited to moral rights and any similar rights in any
country, whether negotiable or not and also includes any applications for any
of the foregoing and the right to apply for them in any part of the world; and
all processes, inventions,
ideas, programs, codes, software, algorithms, discoveries, correspondence,
trade secrets, databases, know-how, creations or improvements upon, additions
or any research effort relating to any of the above, whether registrable or
not.
“Person” means an individual,
corporation, partnership, limited liability company, association, trust or
other entity or organization, including a government or political subdivision
or an agency or instrumentality thereof.
“Property”
includes, but is not limited to the following:
internal memoranda, computer
equipment (including software), training materials, rules, books, and all other
like property, including all copies, duplications, replications, and
derivatives of such property;
any residential
accommodation, furniture, fixtures, fittings and furnishings, communication
equipment, automobile and all other items; and,
any tangible expression of
Confidential Information, including, without limitation, photographs, plans,
notes, renderings, journals, notebooks, computer programs and samples relating
thereto.
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“Rules” means the Company’s manual,
which lays down the policies, procedures, rules etc. in connection with the
day-to-day operations of the Company, the behavior of its employees, the
overall management of the Company and its clients/customers, as amended from
time to time by the Company. |
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“Termination Date” means the date on
which the employment of the |
Employee is ended and which shall in the case
of termination by the Company be effective from the date on which the Notice
Period (as defined hereinafter), if any, is over and in the case of termination
by the Employee, be effective from the date on which Notice period is over or,
in the event the Notice Period is waived under Section 8.3, the date of which the Company permits the Employee to
leave service.
Unless
the context otherwise requires, (a) words importing one gender include the
other gender; (b) words importing the singular include the plural and vice
versa; (c) any reference to a statutory provision shall be deemed to include a
reference to any statutory modification or re-enactment; (d) the Section
headings do not form part of this Agreement and shall not be taken into account
in its construction or interpretation and (e) any reference to the Employee
shall, if appropriate, include his personal representatives.
NON-COMPETITION AND NON-SOLICITATION
During
the term of the employment with the Company and for a period of one (1) year
following the Termination Date in case of Competitors worldwide, the Employee
shall not, directly or indirectly, either as an individual on his own account
or as a partner, employee, consultant, advisor, agent, contractor, director,
trustee, committee member, office bearer, or shareholder (or in a similar
capacity or function)
own or operate in India a
business in competition with the business of the Company;
solicit the employment of or
advise any other employee of the Company to terminate his contract or relationship
with the Company or accept any contract (directly or indirectly) or another
arrangement for providing services to any other person or organization;
or,
contact any of the existing
or prospective clients of the Company, to entice such clients away from the
Company or to damage in any way their business relationship with Company.
The
Company may, however, relieve the Employee, from complying with the provisions
of this Section in whole or in part.
CONFIDENTIALITY
The
Employee shall not disclose, any time, to any Person or Competitor who is not
employed, part of or associated with the Company; or use for any
purpose that is not within the scope of his
services, any Confidential Information, except in accordance with any written
exception made by the Company.
Notwithstanding the
aforesaid provisions of this Section, the Employee may disclose Confidential
Information were compelled to do so, by any government, judicial or
quasi-judicial authority;
Provided however, that the Employee shall in
such a case give the Company reasonable notice of any prospective disclosure
and shall assist the Company in obtaining an exemption or protective order
preventing such disclosure.
INTELLECTUAL PROPERTY
All Intellectual Property
conceived (whether during regular business hours or not), discovered, or made
by Employee during the course of his employment with the Company, and other
ideas, techniques or principles related to the business of the Company, shall
be promptly disclosed in writing to the Company.
All rights in the
Intellectual Property shall belong to the Company immediately upon the
formation of such rights, whether or not the final work / mark / invention in
which the Intellectual Property vests is formed or completed, for the full term
of each and every such right, including renewal or extension of any such term.
The Employee shall perform all acts, including execution of documents and
assistance in legal proceedings that are necessary to defend or establish the
rights of the Company in the Intellectual Property in any country.
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The Employee irrevocably
assigns to the Company, the Intellectual Property in all works developed
during the course of his employment, free from encumbrances of any kind. The Employee explicitly
waives all moral rights in any of the works developed for the company during
the course of his employment with the Company. The
Employee represents and warrants that he has not violated the Intellectual |
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Property rights of any Person and
covenants that he shall not violate the Intellectual Property rights of any
person in the course of his employment with the Company. Provided that in the event the Company
is held liable for the violation of any Intellectual Property rights by the
Employee, the Employee undertakes to indemnify the Company against any and
all losses, liabilities, claims, actions, costs and expenses, including
reasonable attorney’s fees and court fees resulting therefrom. DISPUTE
RESOLUTION |
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The
Company and the Employee hereby agree that they intend to discharge |
their obligations in utmost
good faith. They therefore agree that they will, at all times, act in good
faith, and make all attempts to resolve all differences howsoever arising out
of or in connection with this Agreement by discussion failing which, within
fifteen (15) days of the commencement of the discussions.
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The
Parties shall be bound to submit all disputes and differences howsoever
arising out of and in connection with this Agreement to the courts of INDIA,
provided that: |
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Notwithstanding anything contained in
this Agreement the Company may approach any court within INDIA for injunctive
relief when it feels that any of the terms of this Agreement are breached or
likely to be breached by the Employee.
MISCELLANEOUS |
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Entire Agreement:
This Agreement constitutes the entire agreement between the signatories and
shall supersede all negotiations, preliminary agreements, and all prior and
contemporaneous discussions and understandings of the signatories in
connection with the subject matter hereof.
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Amendments:
No change, modification, or termination of any of the terms, provisions, or
conditions of this Agreement shall be effective unless made in writing and
signed or initialed by all signatories to this Agreement. |
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Severability:
If any paragraph, sub-paragraph, or provision of this Agreement, |
or the application of such
paragraph, sub-paragraph, or provision, is held invalid by a court of competent
jurisdiction, the remainder of this Agreement, and the application of such
paragraph, sub-paragraph, or provision to persons, or circumstances other than
those with respect to which it is held invalid shall not be affected.
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Parties to Act With Due
Diligence And In Good Faith: The Parties
hereto shall dutifully perform all covenants of this Agreement in letter and
spirit and shall otherwise act with due diligence and in good faith. GOVERNING
LAW AND JURISDICTION |
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This
Agreement shall, in all respects, be governed by and construed in all
respects in accordance with the laws of INDIA. |
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In
relation to any legal action or proceedings to enforce this Agreement, the |
Employee irrevocably submits to the exclusive
jurisdiction of any competent court and waives any objection to such
proceedings on grounds of venue or on the grounds that the proceedings have
been brought in an inconvenient forum.
IN
WITNESS WHEREOF, the signatories have executed this
Non-
Competence and Non-disclosure Agreement as of
the day and year first above written.
For Company Name Candidate Name
Name:
Title:
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