In consideration of my employment or my continued employment by HGST, Inc. or one of its subsidiaries or affiliates (collectively, the “Company”), which I acknowledge is employment at will unless otherwise set forth in a separate employment agreement, if any, and the payment to me of a salary or other compensation during my employment, the Company and I hereby agree to the following terms and conditions (the “Agreement”).
Whereas, my responsibilities as an employee of the Company may include creating, making, conceiving, inventing, discovering, developing, reducing to practice or suggesting Technology (as defined below) that relates in any manner to the actual or reasonably anticipated business, research, development or other activities of the Company; and
Whereas, my salary and other compensation as an employee of the Company takes into account, among other things, the value of such Technology and the potential economic benefit that may be derived therefrom by the Company;
Now therefore, the Company and I hereby agree as follows:
1. For purposes of this Agreement, the following capitalized terms shall have the meaning ascribed to them in the following:
“Technology” comprises materials, information, ideas and other subject matter such as works of authorship and other creations, inventions, invention disclosures, discoveries, developments, know-how and trade secrets, mask works, technical and engineering information, hardware and other products, processes, work in process; computer programs (in source code, object code or any other format), and the like, and any copies, extracts, portions, derivatives, improvements and enhancements thereof and modifications thereto.
“Developments” means all Technology to the extent it (a) is created, made, conceived, invented, discovered, developed, reduced to practice or suggested by me, alone or together with others, at any time during my employment by the Company or, whether during or within a reasonable time after my employment with the Company, otherwise in connection with my activities as an employee of, or based upon any Confidential Information or Proprietary Rights of, the Company, and (b) relates in any manner to the actual or reasonably anticipated business, research, development or other activities of the Company, or were created, made, conceived, invented, discovered, developed, reduced to practice or suggested using the Company’s equipment, supplies, facilities, or Confidential Information or Proprietary Rights. “Developments” shall not include (i) Technology expressly set forth at the end of this Agreement, and (ii) other Technology to the extent that any other mandatory and non-waivable applicable laws (as may be referenced at the end of this Agreement), prohibits the assignment thereof as set forth herein (such Technology described in the foregoing subclauses (i) and (ii) being the “Excluded Developments”).
“Proprietary Rights” means, throughout the world, any and all (a) copyrights, moral rights and other personal author’s rights (including, without limitation any and all rights of paternity or attribution, integrity, publication, withdrawal or retraction or rights to receive additional remuneration) (“Moral Rights”), related rights (including without limitation so called “neighboring rights” and “sui generis” rights), database rights and all other rights associated with works of authorship (including computer programs), creations or performances, whether published or unpublished, (b) rights with respect to trade secrets and know-how, (c) patents and related rights, inventor’s certificates, design rights, industrial design rights, utility model rights, and (d) any and all other intellectual property, industrial property, and other proprietary rights, together with (i) all rights related to any of the foregoing, including, without limitation, rights with respect to applications and filings for any of the foregoing, rights with respect to registrations or renewals of any of the foregoing, and rights to apply for, file, register, establish, maintain, extend or renew any of the foregoing, (ii) all benefits, privileges, causes of action and remedies relating to any of the foregoing, whether before or hereafter accrued, including, without limitation, the right to enforce and protect any of the foregoing, including to bring legal actions against any party for all past, present and future infringements, misappropriations or other violations of or relating to any of the foregoing and to settle, and collect and retain the proceeds from, any such actions, and (iii) all rights to transfer and grant licenses and other rights with respect to any and all of the foregoing in the Company’s sole discretion.
“Confidential Information” is any information or material: (a) generated or collected by or utilized in the operations of the Company, received from any third party, or suggested by or resulting from any task assigned to me or work performed by me for or on behalf of the Company, and (b) which has not been made available generally to the public, whether or not expressed in a document or other medium and whether or not marked “Confidential” or with any similar legend of the Company or any third party. Confidential Information may include, but is not limited to, information and material related to past, present and future development, manufacturing activities, or personnel matters; marketing and business plans; technical specifications, drawings, and designs; prototypes; computer programs; databases; and other Technology. Notwithstanding the foregoing, all Developments shall be deemed Confidential Information of the Company.
2. I will not, without the Company’s prior written permission, disclose to anyone outside of the Company or use in other than the Company’s business, either during or after my employment, any Confidential Information, or any information or material received in confidence from third parties, such as suppliers or customers, by the Company. If I leave the employ of the Company, I will promptly return to the Company all Confidential Information and other information and material in my control or possession belonging to the Company or received from any third party by the Company, whether or not containing Confidential Information, including, but not limited to, computers, diskettes and other storage media, drawings, notebooks, reports, and other documents.
3. During my employment with the Company and, to the extent permitted by applicable law, for a reasonable time (not to exceed one (1) year) following the termination of my employment for any reason, I will not directly or indirectly: (a) solicit or recruit for employment, offer employment to, or induce or otherwise cause any employee of the Company to terminate employment with the Company in order to become an employee, consultant or independent contractor for me or any other person or entity, or (b) solicit for competitive business purposes any customer of the Company in a manner involving the use of information which is not legally in the public domain and which is proprietary to the Company. In addition, I agree not to make any disparaging comments about the Company, its policies, practices and procedures, to any persons inside or outside the Company, including, but not limited to, current and former employees. I acknowledge that the restrictions contained in this paragraph are reasonable to protect the stability of the Company’s workforce and to protect the confidential, proprietary and trade secret information of the Company, and that the Company would suffer irreparable harm if I fail to comply with the promises in this paragraph.
4. I will not disclose to the Company, use in its business, or cause it to use, any information or material which is confidential to any third party unless authorized by the Company. In addition, I will not incorporate into any product made, used and/or sold by the Company, any materials (a) of any third party or (b) that are the subject of any Proprietary Rights of any third party, unless authorized by the Company.
5. I will comply, and do all things necessary for the Company to comply, (a) with the laws and regulations of all governments under which the Company does business, (b) with provisions of contracts between the Company and any third party, including such that relate to intellectual property or to the safeguarding of information, and (c) with all of the Company employee handbooks and guidelines made available to me (as may be amended from time to time).
6. I agree and acknowledge that all right, title and interest with respect to all Developments and any and all related Proprietary Rights (including all Rights to Use, as defined below) shall solely vest in, inure to the sole benefit of, and be the sole property of, the Company without any limitations. I agree and acknowledge that all Developments shall be considered works made for hire and works produced in the service of the Company within the scope of my employment.
7. If, notwithstanding the foregoing, I retain any right, title or interest with respect to any Developments or any related Proprietary Rights, I hereby assign, transfer and convey, and agree to assign, transfer and convey, to the Company, without any limitations or any additional consideration, all such right, title and interest. The rights assigned, transferred and conveyed hereunder shall include, without limitation, (a) all rights to publish, copy, reproduce, adapt, modify, translate, prepare derivatives based upon, distribute, rent, lease, lend, transmit, broadcast, publicly perform, publicly display, otherwise communicate or make available to the public, record, store on any medium, make, sell, offer to sell, import, practice any method in connection with and otherwise use or exploit for any purpose, throughout the world, by any and all means and in any form o