RAF Non-Disclosure Agreement
Confidential Information and Invention Assignment Agreement
This Agreement is entered into between Red America First Inc. ("Employer" or "Company") and the Employee/Volunteer named below ("1099 Employee/Volunteer" or “Volunteer”).
1. Confidential Information
(a) Access. To assist Employee/Volunteer in the performance of his/her duties, Employee/Volunteer will receive certain confidential and/or proprietary information and materials owned by the Employer, its affiliates and/or third persons (including for example, clients, customers, vendors, and/or prospective customers and/or vendors who have furnished such information and materials to the Employer under obligations of confidentiality), including confidential information not previously received.
(b) Confidential Information. "Confidential Information" means proprietary techniques, methods, practices and/or confidential information that Company has or will develop, compile, create, or improve, or which the Company receives under conditions of confidentiality from its customers, clients and/or other third parties. Confidential Information includes not only information disclosed by the Company (including its Employee/Volunteers, agents, independent contractors, and consultants) to Employee/Volunteer in connection with Employee/Volunteer's duties, but also information (including inventions) developed or learned by Employee/Volunteer during the course of his/her employment. Confidential Information is broadly defined and also includes, but is not limited to, Employee/Volunteer training, Social Media Procedures, policies, techniques and/or recruitment efforts, trade secrets, financial data, business and marketing strategies, product information, computer and/or software-related information, databases, encryption codes, passwords, specialized manufacturing techniques, business operations, strategy and plans of the Company and its financial information including revenues, expenses, profits, Employee/Volunteer names and positions, customer preferences, vendor/supplier costs and arrangements, and/or other Company trade secrets. It does not include information widely known or which is a matter of public record (unless made public by Employee/Volunteer or anyone acting in violation of a legal obligation to keep such information confidential).
(C) Non-Disclosure Both during and after Employee/Volunteer's employment, Employee/Volunteer shall hold in strict confidence and shall not directly or indirectly disclose, disseminate, publicize, use, copy or make lists of any Confidential Information, except to the extent authorized in writing by Employer or required by any court or administrative agency of competent jurisdiction, other than to an authorized Employee/Volunteer of the Employer or to a person to whom disclosure is reasonably necessary or appropriate in connection with the performance by Employee/Volunteer of his/her job duties. If Employee/Volunteer is compelled by law, subpoena, or other lawful process to disclose any Confidential Information, then Employee/Volunteer shall give prompt written notice of such fact to the Employer so that Employer may, if it so desires, seek a protective order or other governmental or judicial relief, at Employer's expense, to prevent disclosure of the Confidential Information.
Notwithstanding the above, Employee/Volunteer is hereby advised that pursuant to 18 U.S.C. § 1833(b): "An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that—(A) is made—(i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal." Accordingly, Employee/Volunteer has the right to disclose in confidence trade secrets to Federal, State, and local government officials, or to an attorney, for the sole purpose of reporting or investigating a suspected violation of law. Employee/Volunteer also has the right to disclose trade secrets in a document filed in a lawsuit or other proceeding, but only if the filing is made under seal and protected from public disclosure. Nothing in this Agreement is intended to conflict with 18 U.S.C. § 1833(b) or create liability for disclosures of trade secrets expressly allowed thereby.
2. Return of Documents/Company Property All records, files, notes or other documents or materials, whether in written or electronic form (and all copies thereof), relating in any way to the Employer (and/or its clients, customers, vendors, etc.) that Employee/Volunteer shall prepare, use or be provided with in connection with his/her employment, is and shall remain the sole and exclusive property of Employer. Such documents and/or materials, along with any other Company property provided to Employee/Volunteer, must be returned upon the termination of employment or such earlier time(s) as the Employer may request.
3 Intellectual Property (a) Ownership. All written materials and writings ("Work") developed by Employee/Volunteer for Company's use during the term of this Agreement, shall be deemed a "work made for hire" within the meaning of the U.S. Copyright Act, Title 17, U.S. Code, which vests all copyright interest in and to the Work in Company. In the event, however, that any court of competent jurisdiction finally declares that the Work is not or was not a work made for hire as agreed, Employee/Volunteer agrees to assign, convey and transfer and hereby assigns, conveys and transfers to Company all right, title and interest Employee/Volunteer may presently have or hereafter may have or be deemed to have in and to any such Work and in the copyright therein, including but not limited to, all rights of reproduction, distribution, publication, public performance, public display and preparation of derivative works, and all rights of ownership and possession of the original fixation of the Work and any and all copies. Additionally, Employee/Volunteer agrees to execute any documents reasonably required of Employee/Volunteer for Company to record or perfect its ownership of the Work and the copyright therein. The foregoing will not apply to any work and/or writings by Employee/Volunteer that are not developed for Company's use or are in each instance specifically excluded in advance of publication from the coverage of the foregoing by an Owner of the Company.
(b) Assignment. Employee/Volunteer will promptly disclose in writing to Company all inventions created by Employee/Volunteer, individually or with others during the course of his/her employment, and which relate in any way to the Company's business, customers and/or operations, and/or which were created, in whole or in part using any Company property and/or Confidential Information ("Inventions"). To the fullest extent permitted by law, all Inventions belong to and are the sole property of Company and will be Inventions of Company subject to this Agreement. As such, Employee/Volunteer assigns to Company all right, title and interest Employee/Volunteer may have or may acquire in and to all Inventions. Employee/Volunteer shall sign and deliver to Company (during and after employment) any other documents that Company considers desirable to provide evidence of (i) the assignment of all rights of Employee/Volunteer, if any, in any Inventions and (ii) Company's ownership of such Inventions. Employee/Volunteer hereby waives any and all moral rights relating to any Inventions. Employee/Volunteer will assist Company in applying for, prosecuting, obtaining or enforcing any patent, copyright or other right or protection relating to any Invention, all at Company's expense but without consideration to Employee/Volunteer in excess of Employee/Volunteer's salary or wages. If Company is unable to secure Employee/Volunteer's signature on any document necessary to apply for, prosecute, obtain or enforce any patent, copyright or other right or protection relating to any Invention, Employee/Volunteer hereby irrevocably designates and appoints Company and each of its duly authorized officers and agents as Employee/Volunteer's agent and attorney-in-fact, to act for and in Employee/Volunteer's behalf to execute and file any such document and to do all other lawfully permitted acts to further the prosecuting, issuance and enforcement of patents, copyrights or other rights or protections, with the same force and effect as if executed and delivered by Employee/Volunteer. To avoid any possible confusion, Employee/Volunteer has identified all prior inventions that he/she asserts should not be included under the definition of "Invention" herein. Any invention not so identified, that otherwise meets the criteria set forth herein, will be presumed to be an Invention.
(C) State law issues. Notwithstanding the above, to the extent that Employee/Volunteer is subject to different requirements under any applicable law, including but not limited to the laws of the State of California, he/she will be required to execute a state- specific addendum clarifying such rights and/or obligations.
4 Non-Disparaqement Employee/Volunteer shall not, directly or indirectly, make or cause to be made any disparaging, denigrating, derogatory, or negative, misleading, or false statement orally or in writing to any person, including customers or prospective customers, vendors, competitors and/or advisors to the Employer and members of the investment community or press, about (i) the Employer or its members, managers, officers, Employee/Volunteers agents, or clients, or (ii) the business strategy or plans or operations of the Employer. Notwithstanding the above, nothing in this paragraph is intended to interfere with Employee/Volunteer's right to discuss truthful matters with any government and/or law enforcement agency or otherwise exercise his/her statutory rights to communicate with such individuals or entities, or to engage in speech otherwise protected by law, including but not limited to any right to engage in protected, concerted speech under the National Labor Relations Act or any other applicable state or federal statute. Arbitration Agreement
This Agreement is entered into between Red America First Inc. ("Employer" or "Company") and the Employee/Volunteer named below ( "1099 Employee/Volunteer" or "Volunteer").
Claims Covered by the Agreement
The parties agree that any claim, dispute, and/or controversy that either Employee/Volunteer may have against the Company (or its owners, directors, officers, managers, Employee/Volunteers, agents, and parties affiliated with its Employee/Volunteer benefit and health plans) or the Company may have against Employee/Volunteer, arising from, related to (or having any relationship or connection whatsoever with) this Agreement, Employee/Volunteer's seeking employment with, employment by, or other association with the Company (including the arbitrability of any such claims), shall be submitted to and determined exclusively by binding arbitration, by a single arbitrator, under the Federal Arbitration Act and any other applicable state law. Included within the scope of this Agreement are all disputes, whether based on tort, contract, statute (including, but not limited to, any claims of discrimination and harassment, whether they be based on local regulation or ordinance, applicable state labor code, or any other local, state or federal law or regulation), equity, or otherwise, with exception of claims arising under the National Labor Relations Act that are brought before the National Labor Relations Board or claims that as a matter of law, may not be submitted to binding arbitration.
Claims not Covered by the Agreement The parties further agree: (1) that class action and representative action procedures shall not be asserted, and do not apply, in any arbitration under this Agreement; (2) that neither will assert (and, in fact, specifically waive the right to assert) class action or representative action claims against the other in arbitration, and; (3) to submit only their own, individual claims in arbitration and not seek to represent the interests of others.
Nothing herein shall prevent Employee/Volunteer from filing and pursuing proceedings before the United States Equal Employment Opportunity Commission or equivalent state agency (although if Employee/Volunteer chooses to pursue a claim following the exhaustion of such administrative remedies, such claim(s) will be subject to the provisions of this arbitration agreement). Further, this Agreement shall not prevent either party from obtaining provisional remedies to the extent permitted by state law either before the commencement of or during the arbitration process, including, but not limited to, injunctive relief from a court of law. Resolution of the dispute shall be based solely upon the law governing the claim(s) and defense(s) pleaded, and the arbitrator may not invoke any basis (including but not limited to, notions of "just cause") other than such controlling law. Discovery in the arbitration shall be as limited as reasonably possible. The arbitration, including any hearing and record of the proceedings, will be confidential and shall not be open to the public unless all parties agree in writing or as otherwise required by applicable law. The arbitrator shall have the immunity of a judicial officer from civil liability when acting in the capacity of an arbitrator, which immunity supplements any other existing immunity. As reasonably required to allow full use and benefit of this Agreement's modifications to the Act's procedures, the arbitrator shall extend the times set by the Act for the giving of notices and setting of hearings.
The arbitrator and the arbitration process shall be conducted pursuant to the rules of the American Arbitration Association ("AAA") and the AAA's then-current rules governing the arbitration of employment disputes, which can be located on the AAA's website, located at www.adr.org, or obtained by contacting the AAA at (888) 774-6904.
PLACE OF ARBITRATION
The arbitration will occur at the nearest AAA office located to Employee/Volunteer's most recent address on file with the Company, or such other location as agreed to by the parties. The time limit for initiating a claim in arbitration is 180 days, unless a longer period is provided by state or federal law. Awards shall include the arbitrator's written, reasoned opinion unless otherwise agreed by the Parties.
COST OF ARBITRATION
Any up-front fees payable to the arbitrator(s) or like up-front fees shall be divided equally between the Parties unless otherwise agreed upon by the Parties or provided by the AAA rules, except that the cost to Employee/Volunteer for initiating such arbitration shall not exceed the cost for instituting a lawsuit in state or federal court. The prevailing party in any arbitration is entitled to, and shall be awarded, any fees and/or costs that would otherwise be available in state or federal court.
TIME TO FILE CLAIMS
In the event that a party files a lawsuit over a claim, the other party shall give notice of the existence of the Agreement and if the lawsuit is not dismissed within ten (10) days receipt of such notice, the party filing the lawsuit shall be liable for all costs and attorneys' fees incurred in dismissing the lawsuit and/or compelling it to arbitration. This arbitration shall survive and remain in full force and effect following termination of this Agreement, Employee/Volunteer's employment, or any professional relationship or association between Employee/Volunteer and Company.
Red America First, INC.: For Red America First Inc. ("Red America First Inc.").
Non Solicitation and Non-Compete Aqreement
This Agreement is entered into between Red America First Inc. ("Employer" or "Company") and the Employee/Volunteer named below ( "1099 Employee/Volunteer" or "Volunteer"). In connection with and ancillary to the Confidential Information and Invention Assignment Agreement, as well as the additional agreements connected to Employee/Volunteer's employment, Employee/Volunteer acknowledges and agrees that: (i) Employer is engaged in a highly competitive business that has Employee/Volunteers and customers/clients throughout the United States and the world, (ii) Company has made substantial investments to develop its business interests and goodwill and to provide special training and access to confidential and proprietary information for the performance of Employee/Volunteer's duties hereunder; (iii) the success of the Employer's business in the marketplace depends upon its goodwill and reputation for quality and dependability; (iv) the limitations as to time, geographical area, and scope of activity to be restrained herein are reasonable and are not greater than necessary to protect the goodwill and other business interests of the Employer; and (v) the investments made by the Employer are worthy of protection and the Employer's need for protection afforded by Section 3(b) is greater than any hardship employee/Volunteer might experience by complying with the terms thereof. As such, Employee/Volunteer hereby agrees as follows:
1 Non-Solicitation. During Employee/Volunteer's employment with the Employer and for one year after the effective date of the termination of Employee/Volunteer's employment for any reason (the "Restricted Period"), Employee/Volunteer shall not, directly or indirectly, (i) solicit, entice, persuade, encourage or induce any Employee/Volunteer, contractor or consultant of the Employer to terminate or reduce his/her employment or other relationship with the Employer or to become employed by any person other than the Employer; (ii) solicit, entice, persuade, encourage or induce any customer/client (or known prospective customer/client) to terminate, negatively alter or limit its/his/her relationship with the Employer or, in the case of any such prospective customer, not to enter into a business relationship with the Employer, or otherwise interfere with the Employer's relations with its customers/clients and/or known prospective customers/clients; provided, however, that nothing in clause (i) above shall be deemed to prohibit Employee/Volunteer from placing an advertisement in a newspaper or other media of general circulation advertising employment opportunities. Activities prohibited by this paragraph include, but are not limited to, informing existing or potential customer(s)/client(s), supplier(s) or creditor(s) of Employer that Employee/Volunteer intends to terminate or reduce his/her employment with the Company.
2 Non-Disturbance of Vendor Relationships. During the Restricted Period, Employee/Volunteer shall not, directly or indirectly, seek to solicit, induce, or encourage any vendor or supplier, or known prospective vendor or supplier of the Company to cease dealing with the Company, to transfer all or any part of its business with the Company to any other person or entity, or to alter the pricing, terms or other conditions on which it does business with the Company.
(a) Competitive Activities. During the Restricted Period, Employee/Volunteer shall not, directly or indirectly: (i) seek or accept any employment from any other company that would involve the Employee/Volunteer having to work with a Customer with whom he/she had worked in the twelve (12) months immediately preceding the cessation of employment with Employer; or (ii) seek or accept any employment with any customer of Company for whom the Employee/Volunteer performed services as a Company Employee/Volunteer within the last twelve (12) months of employment with Company. The geographic scope of this restriction is intended to cover the U.S. and any other country where the Company conducts business during the last six (6) months of Employee/Volunteer's employment.
(b) Reformation. Although Employee/Volunteer agrees that the restrictions herein are reasonable and that he/she will not challenge same, in the event a court of competent jurisdiction determines that any portion of Section 3(b) is invalid or unenforceable, the remainder of Section 3(b) shall not thereby be affected and shall be given full force and effect without regard to the invalid or unenforceable provisions. If any such court construes any of the provisions of Section 3(b), or any part thereof, to be unreasonable because of the duration or scope of such provision, then such court shall have the power to reduce the duration or scope of such provision and to enforce such provision as so reduced to the fullest extent permitted by law.
4 Enforcement. Employee/Volunteer acknowledges and agrees that (i) Employee/Volunteer's breach of any of his/her covenants contained in this agreement will cause irreparable injury to Employer, (ii) damages will not be an adequate remedy for any such breach, and (iii) notwithstanding any agreement to arbitrate other Employee/Volunteer-related claims, Employer shall be entitled to resort to a court of equity to enforce any provision of this agreement by injunctive and/or other equitable relief for any such breach, without the posting of any bond or other security. Employee/Volunteer further agrees that in the event of a breach or threatened breach of this agreement, Employer, in addition to injunctive relief, will be entitled to recover from Employee/Volunteer all reasonable attorney's fees incurred by Employer in obtaining such injunctive relief and/or in successfully prosecuting any breach of this agreement.
5 Extension of Restricted Period for Injunctive Relief. If Employee/Volunteer violates any of the Restrictive Covenants set forth in this agreement, and Employer brings legal action for injunctive or other relief, the Restrictive Period shall be tolled so that Employer shall not be deprived of the benefit of the full period of the restrictive covenants as a result of the time involved in obtaining the relief.
6 Notice to Third Parties. Employee/Volunteer expressly agrees to notify any prospective employer or affiliate in a business competitive with the Employer of the existence of the Restrictive Covenants set forth in this agreement, and authorizes the Employer to make contact with, and discuss the Restrictive Covenants with any person or affiliate reasonably believed by the Employer to be engaged or about to be engaged in an act that would constitute a violation of the Restrictive Covenants.
7 Survival of Covenants. The Covenants shall survive during the Restricted Period or any extension thereof. During the period of survival described in the preceding sentence, the restrictive covenants set forth in this agreement shall remain in full force and effect.
8 No Conflicting Agreements or Obligations. Employee/Volunteer hereby acknowledges and represents that: (a) he/she is not subject to any agreement with any former employer or any other company or entity that would be actually or potentially breached by Employee/Volunteer becoming or continuing to be employed by the Company and performing the duties for which the Company is employing Employee/Volunteer; and (b) he/she does not have, and shall not in any way utilize for or on behalf of the Company, any confidential or proprietary information or any property, of any former employer of Employee/Volunteer or of any other company or entity. Employee/Volunteer understands that the use of any such confidential and/or proprietary material belonging to others violates Company policy and will result in appropriate discipline, up to and including discharge.
During the term of employment, you must at all times: 1. Comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption (the anti- bribery laws);
2. Not engage in any activity, practice or conduct which would constitute, or be likely to constitute, an offence under the anti-bribery laws;
3. Comply with all policies that the Company may introduce or implement from time to time which directly or indirectly, deal with, or relate to, the anti-bribery laws; and
4. Upon request by the Company, provide such evidence as the Company may reasonably require demonstrating his/her compliance with this clause. You expressly acknowledge and agree that any non—compliance by yourself with the requirements of this clause shall entitle the Company to terminate your employment contract with immediate effect and initiate appropriate legal action against you.
The Red America First Policies
Associate is required to comply with all the policies of the Company including but not limited to the Code of Ethical Business Conduct, the Policy on Prevention of Sexual Harassment and such other policies, as communicated to the Associates of the Company from time to time. In case of any violation or failure to comply with such Company Policy/policies, the Associate shall be subjected to disciplinary action.
For the Confidential Information and Invention information, Non-Compete and Non-Solicitation, Arbitration agreements entered into between Red America First Inc. ("Employer" or "Company") and the Employee/Volunteer named below:
Employer's waiver of any breach of any provision of these Agreements by Employee/Volunteer shall not operate or be constituted as a waiver of any subsequent breach by Employee/Volunteer.
Employer's rights and obligations under these Agreements shall inure to the benefit of and shall be binding upon the successors and assigns of Employer. Employee/Volunteer may not assign these Agreements or any rights arising under it.
In the event that any provision hereof shall be rendered illegal or unenforceable, such event shall not affect the validity or enforceability of the other provisions hereof. In the event of any lawsuit or arbitration proceeding to determine the rights and liabilities of the parties pursuant to these Agreements, the parties hereto agree that these Agreements may be modified, amended, or reformed by the tribunal conducting such proceeding for the purposes of best effectuating the purposes of these Agreements and as needed to be reasonable and enforceable under applicable law.
These Agreements may be executed in a number of identical counterparts, each of which for all purposes shall be deemed an original, and all of which constitute, collectively, one agreement; but in making proof of these Agreements, it shall not be necessary to produce or account for more than one such counterpart.
No change, modification, waiver, discharge, amendment, or addition to these Agreements shall be binding unless it is in writing and signed by the Regional HR Head(or another authorized agent) of the Company. IN WITNESS WHEREOF, the parties hereto have executed these Agreements to be effective as of the day and year first above written.
ADDENDUM 1 —CALIFORNIA
Employee/VolunteerS & VOLUNTEERS
Notwithstanding anything to the contrary as contained in the Employment, Invention Assignment, Arbitration Agreement and Post-Employment Restrictions ("Employment Agreement") to the contrary, during any time period when Employee/Volunteer primarily resides and/or works in the state of California, the provisions provided below will apply to these Agreements and supersede any provision to the contrary in the Employment Agreement.
1. Employee/Volunteer's obligation to assign inventions to the Company does not include any inventions that are developed entirely on Employee/Volunteer's own time, using entirely his/her own equipment, supplies, facilities or trade secret information ("Employee/Volunteer's Inventions") unless such inventions: (1) relate at the time of conception or reduction to practice of the invention to the Company's business, or actual or demonstrably anticipated research or development of the Company; or (2) result from any work performed by Employee/Volunteer for the Company. To avoid any potential confusion as to ownership over employee/Volunteer's Inventions, Employee/Volunteer agrees to immediately disclose Employee/Volunteer Inventions to the Company. If Employee/Volunteer fails to disclose Employee/Volunteer's Inventions to the Company, any undisclosed invention will be presumed to be a Company Invention, and Employee/Volunteer will have the burden of establishing that it is otherwise. Employee/Volunteer understands that this notice is being provided in furtherance of California Labor Code Section 2870.
2. The Agreement shall be governed by and construed under the laws of the State of California.
3. Any and all covenants related to post-employment competition and/or solicitation contained in the Employment Agreement apply only to the extent that Employee/Volunteer Utilizes Company trade secrets in order to engage in the activities otherwise prohibited in the Non Solicitation and Non-Compete of the Employment Agreement. Red America First, INC.
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