SERVICE AGREEMENT
THIS AGREEMENT is entered into as of 23 October, 2013 by and between Parallax Agency Ltd. (Company number07430032), of The Old Brewery, High Court, Leeds, LS2 7ES, United Kingdom (hereinafter, "Company"), and Smart.exe Ltd. (Israeli Company No. 513604439) of 7 Abba Hillel St., Ramat Gan 52522, Israel (hereinafter, the “Service Provider"). WHEREAS,
Service Provider warrants and represents that it has the requisite qualifications, knowledge and experience to render the Services (defined below); and WHEREAS, Service Provider has rendered the Services in the past and is interested in continuing providing the Services to Company and Company is interested in receiving the Services from Service Provider all under the terms set forth below in this Agreement; and WHEREAS, the parties have decided to formalize, in writing, the terms of their contractual relationship as detailed below. NOW THERFORE, in consideration of the mutual premises, covenants and understandings contained herein, the parties agree as follows: 1. Representations and Warranties. Service Provider represents and warrants to the Company that: 1.
Service Provider is free to provide Company, and declares that the Approved Employees and Consultants (defined below) are free to provide Company on behalf of the Service Provider, with the Services, upon the terms set forth herein, and there are no contracts and/or restrictive covenants preventing full performance of Service Provider’s duties and obligations under this Agreement, including the provision of the Services exclusively through the Approved Employees and Consultants.
2.
Each of Service Provider and Approved Employees and Consultants has the requisite qualifications, knowledge and experience to perform the obligations under this Agreement.
2. The Services. 2.1. The Services. Service Provider agrees and undertakes to provide to Company certain consulting services, including without limitation, software development, program management, quality assurance and additional services, as shall be required by the Company from time to time (the “Services”). 2.2. Approved Employees and Consultants. .1
It is hereby agreed that the Services shall be provided by Service Provider solely through employees and/or consultants of Service Provider, each of them approved in advance and in writing by the Company, by execution of Exhibit A attached hereto (the “Approved Employees and Consultants”). The parties agree that the provision of the Services through the Approved Employees and Consultants is a fundamental term of this Agreement. As of the date hereof, the Approved Employees and Consultants confirmed for that purpose as such are set forth in Exhibit A. The Parties may amend Exhibit A from time to time by execution of an additional Exhibit A, which shall be attached to this Agreement and shall serve as an integral part hereof.
.2
Exhibit A shall also specify whether the Approved Employee or Consultant is retained by the Company on a full time basis or not. In the event that the Services retained by the Company with respect to a specific Approved Employee and Consultant are in a scope of a full time basis, such Approved Employee and Consultant shall not provide other services through Service Provider or otherwise to any third party other than the Company.
2.3. Service Provider, through the Approved Employees and Consultants, shall provide the Services on a timely manner as shall be agreed with the Company from time to time. Service Provider shall deliver to the Company on a timely manner all products of the Services required by the Company from time to time, including, without limitation, the source code of software, the documentation and the concepts and inventions resulting and/or deriving from the Services (the “Deliverables”). 3. Duties of Service Provider. Service Provider, through the Approved Employees and Consultants, undertakes to perform its duties and obligations under this Agreement with the highest degree of professionalism. Service Provider shall follow, and shall cause the Approved Employees and Consultants to follow, the instructions of Company’s CEO. Service Provider, through the Approved Employees and
2 Consultants, shall issue written reports to Company as may be requested, from time to time, by Company’s CEO. 4. Compensation. 4.1. The Fee. Company shall pay Service Provider as against provision of the Services satisfactory to the Company, a monthly fee (the”Fee”) for the billable hours of Services rendered during the month to which the Fee relates, based on the hourly rate applicable to each Approved Employee and Consultant, as shall be set forth opposite the name of such Approved Employee and Consultant, in Exhibit A hereto (the “Rates”). It is hereby agreed that the Rates shall remain unchanged for a period of not less than twelve (12) months after the date hereof. Any change of the Rates shall be made by mutual consent in writing of both parties.
4.2. Terms of Payment. On the 1st day of each calendar month and not later than the fifth (5th) day of each calendar month, Service Provider shall furnish Company with a proforma invoice and Monthly Report (as defined hereunder) to cover the Services rendered during that period (the “Proforma Invoice”). The Proforma Invoice shall list all billable hours of Services included in such Proforma Invoice. The monthly report shall detail the specific services preformed by each Approved Employees and Consultant during such a month as well as duration of each activity, and its date(s) ("Monthly Report"). The Fee, shall be payable within ten (10) working days, or as otherwise mutually agreed, of receipt of the Proforma Invoice and Monthly Report, provided that such report was approved in writing by Company, as against receipt by Company of a lawful tax invoice. The payment will be done by wire transfer to Service Provider Israel bank account. The Fee shall be paid in GBP In the event the Company fails to make any payment due to Service Provider on a timely manner as set forth above, such payment shall incur an interest in the amount of 0.06% per each business day, from the end of the month during which the payment was due, and until the date of actual payment by the Company.
4.3. Taxes. Service Provider shall bear any and all taxes imposed in connection with any payments made
to it pursuant to this Agreement. In the event that pursuant to any law or regulation, tax is required to be withheld at source from any payment made to Service Provider, Company shall withhold said tax at the rate set forth in the certification issued by the appropriate taxing authority and provided to Company by Service Provider, or in the absence of such certification, at the rate determined by said law or regulation.
5. Status of the Parties. 5.1. The parties expressly declare and confirm that there shall be no employer-employee relationship between Company and any of Service Provider’s employees, consultants or advisors, including, without limitation, any of the Approved Employees and Consultants, and/or anyone on Service Provider’s behalf. 5.2. Service Provider declares and represents that it makes, and shall continue to make, all compulsory and other payments in connection with the employment of the Approved Employees, including without limitation, income tax, National Insurance, social benefits (including without limitation, pension insurance and disability insurance) and related payments and any and all other payments to any governmental or other relevant authority in connection with the employment of the Approved Employees. 5.3. Without derogating from the above, the parties hereby agree that, in the event that the relationship between Company and any of Service Provider’s employees, including any of the Approved Employees and Consultants, shall be finally determined by a judicial or governmental authority at any time hereafter as an employer-employee relationship, Service Provider shall reimburse and indemnify Company, at Company’s first demand, for any sum which shall be demanded of it in connection with such determinations, as well as any and all expenses and/or costs incurred by Company relating to any such determinations.
6. Term and Termination. 6.1. This Agreement shall be effective as of the Effective Date and shall remain in effect until terminated by either party as provided in Section 6.2 hereunder (the “Term”).
3 6.2. A sixty day trial period will begin from the Effective Date. During the trial period termination from either party will have immediate effect. 6.3. At the end of the sixty day trial period, either party may terminate this Agreement for any reason at any time by furnishing the other party with a notice of termination (the “Notice of Termination”) 30 days prior to such Notice of Termination having effect (the “Notice Period”). Unless Company has waived any and/or all of Service Provider’s services under this Agreement during the Notice Period, or any part thereof, Service Provider shall be obligated to continue to discharge and perform all of its duties and obligations under this Agreement and to ensure that each of the Approved Employees and Consultants takes all steps, satisfactory to Company, to ensure the orderly transition to any persons or entity designated by Company of all matters handled by Service Provider through the Approved Employees and Consultants during the course of the provision of the Services. 6.4. Notwithstanding the provisions of Sections 6.1 and 6.3 above to the contrary, Company shall be entitled to give Service Provider notice that this Agreement is terminated with immediate effect as a result of the occurrence of any one of the following: (i) a material breach by Service Provider or by any of the Approved Employees and Consultants of any of the provisions of Exhibit B to this Agreement; (ii) Service Provider and/or any of the Approved Employees and Consultants have been convicted under a final judgment of a dishonorable criminal offense in connection with the Services. 6.5. Notwithstanding anything to the contrary in Sections 6.2 and 6.3 above, but without derogating from the provisions of Section 6.4 above, it is hereby agreed by both Parties that Company shall be entitled, at any time, to inform Service Provider that it no longer requires the Services of a certain Approved Employee or Consultant, for any reason whatsoever; provided, however, that Company shall provide Service Provider with a 30 days prior written notice of that cessation with respect to the specific Approved Employee or Consultant. In addition, in the event Service Provider decides to terminate its engagement with a specific Approved Employee and Consultant, it shall provide Company with a 30 days prior written notice to that effect, and shall ensure that the Services are provided by such Approved Employee and Consultant until the end of such 30 days period. In such event, Service Provider shall make best efforts to engage with a substitute employee or consultant, satisfactory to the Company. 6.6. Following the termination of the Agreement, the Service Provider undertakes to return or destroy all and any materials, documentation, equipment or other communications related to the activities undertaken during the term of the Agreement on or before the end of the notice period, where activities have been concluded.
7. No solicitation. During the term of this Agreement and for three (3) years thereafter, Company shall not directly or indirectly solicit the services of any employee, vendor, consultant, subcontractor, collaborator, agent or contractor of the Service Provider or any of its subsidiaries or engage in any activity which would cause any such employee, vendor, subcontractor, consultant, collaborator, agent or conveyor to cease its business relationship with the Service Provider.
8. No Conflicting Obligations. Service Provider shall not use any trade secrets or proprietary information
in such a manner that may breach any confidentiality and/or other obligation it may have undertaken relating to any former client(s) and/or any third party. Service Provider shall also insure that each of the Approved Employees and Consultants shall do the same.
9. Proprietary Information and Confidentiality. .1 Concurrently with the execution of this Agreement, Service Provider shall execute and deliver the
Confidentiality, Non-Competition, Non-Solicitation, and Assignment of Inventions Undertaking attached hereto as Exhibit B, which shall constitute an integral part hereof.
.2 Notwithstanding the foregoing, it is hereby agreed that Service Provider cannot mention the
Company’s name as a client of Service Provider, without prior written approval from the Company. Any mention of the Company as a client of the Service Provider shall not include any information as to the Services and as to any provision of this Agreement.
4 9.3 In addition to any other right or remedy that Company may have available to it under applicable law, Service Provider shall indemnify and defend Company, its successors and assigns from and against any and all claims, actions, suits, losses, liabilities, damages, deficiencies, judgments, settlements, costs of investigation or other expenses, based upon, arising out of or otherwise relating to any violation of Sections 7, 8, 9 and the provisions of Exhibits B and C hereto.
10. Written Undertakings by Approved Employees and Consultants. Service Provider shall cause each
of the Approved Employees and Consultants to sign the Confidentiality, Non-Competition, NonSolicitation, and Assignment of Inventions Undertaking attached hereto as Exhibit C, which shall serve as an integral part hereto. It is hereby clarified that such undertakings, signed by the Approved Employees and Consultants, shall not derogate from Service Provider’s direct liability for a breach of any obligation pursuant to this Agreement by the Approved Employees and Consultants, including without limitation, Service Provider’s liability to reimburse and indemnify Company in accordance with Section 5 above.
11. Services Rendered in the Past. The parties hereby acknowledge that Service Provider has not rendered any services to the Company in the past, even prior to its incorporation (the “Past Services”). Service Provider hereby acknowledges that it has no claims whatsoever for compensation for any Past Services. 12. Work Product. Without derogating from anything herein, including, without limitation, from the provisions of Exhibits B and C hereto, it is hereby declared and acknowledged that any and all work products of the Services, including, without limitation, the source code of the software, the documentation and reports produced by Service Provider and/or by Approved Employees and Consultants, and the other Deliverables, shall be the exclusive property of the Company, and that neither Service Provider nor any one of the Approved Employees and Consultants, is entitled to make any use of such property for any purpose other than for the provision of Services; Service Provider shall ensure that the Approved Employees and Consultants maintain this provision to its fullest extent. 13. General .1
Company may assign or transfer this Agreement or any right, claim or obligation provided herein, provided however that none of Service Provider’s rights under this Agreement are thereby diminished.
.2
Company shall be entitled to offset from any and/or all payments to which Service Provider shall be entitled thereof, any and/or all amounts to which Company shall be entitled from Service Provider at such time.
.3
Company’s failure or delay in enforcing any of the provisions of this Agreement shall not, in any way, be construed as a waiver of any such provisions, or prevent Company thereafter from enforcing each and every other provision of this Agreement which were previously not enforced.
.4
Notices given hereunder shall be in writing and shall be deemed to have been duly given on the date of personal delivery, on the date of postmark if mailed by certified or registered mail, or on the date sent by facsimile upon transmission and electronic confirmation of receipt or (if transmitted and received on a non-business day) on the first business day following transmission and electronic confirmation of receipt, addressed as set forth above or such other address as either party may designate to the other in accordance with the aforesaid procedure.
.5
This Agreement shall be interpreted and construed in accordance with the laws of the England and Wales. The parties hereby submit to the exclusive jurisdiction of the competent courts of London in any dispute related to this Agreement.
.6
This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matters hereof, including, without limitation, with respect to the Past Services, and supersedes all prior agreements and understandings between the parties with respect thereto. This Agreement shall not be amended, modified or varied by any oral agreement or representation other than by a written instrument executed by both parties or their duly authorized representatives.
.7
This Agreement may be executed in two or more counterparts, which may be faxed counterparts, each of which, when so executed shall be deemed an original, and together, they shall constitute one original instrument.
5 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth above.
________________________
Parallax Agency Ltd.
By: James Hall, Director
_______________________ Smart.exe Ltd. By: Dr. Nachum Panich, CEO
Exhibits Exhibit A – Approved Employees and Consultants, Scope of Services and Rates Exhibit B – Undertaking by Service Provider Exhibit C – Undertaking by Approved Employees and Consultants
6 Exhibit A Approved Employees & Consultants, Scope of Services and Rates Specialists Names
Tasks
TBD
Developer, Expert, Project Manager
TBD
QA Expert, Project Manager
TBD
Development
TBD
Development
TBD
Development
TBD
Testing and Test Automation Testing and Test Automation Testing and Test Automation Students
TBD TBD TBD
Position
Scope of Rate (USD) per Services (full hour time or not) Team Leader and Senior Full time £22 Specialist (More than 5 years’ experience) Team Leader and Senior Full time £21 Specialist (More than 5 years’ experience) Developer Full time £20 (More than 5 years’ experience) Developer Full time £19 (More than 2 years’ experience) Developer Full time £18 (Up to 2 years’ experience) Tester (More than 5 Full time £18 years’ experience) Tester (More than 2 Full time £17 years’ experience) Tester (Up to 2 years’ Full time £16 experience) Developer/Tester Part time £14
Note: Minimum working time for full time employees 8 hours per day, five days per week. Travel Expenses. Travel expenses (hotels, transportation and communication) will be paid by Company against receipts. Food and beverage expenses will be paid to employees per day, according to countries:
Country Other Countries Europe Korea and Japan
Food and beverage per day $ 65 €55 $ 85
The rates are active starting from 23 October 2013 Agreed and accepted. 23 October 2013
________________________
Parallax Agency Ltd. By: James Hall, Director
_______________________ Smart.exe Ltd. By: Dr. Nachum Panich, CEO
7 Exhibit A-1 Israel Team Approved Employees & Consultants, Scope of Services and Rates Specialists Names
Project Manager
TBD
Expert, Project Manager User Experience Expert, Product Manager
Scope of Rate (USD) Services (full per hour time or not) Full time £60
Product Manager
Full time
£50
TBD
QA Expert
QA Manager
Full time
£50
TBD
Tasks
Position
Travel Expenses. Travel expenses (hotels, transportation and communication) will be paid by Company against receipts. Food and beverage expenses will be paid to employees per day, according to countries:
Country Other Countries Europe Korea and Japan
Food and beverage per day $ 65 € 55 $ 85
The rates are active starting from 23 October, 2013 Agreed and accepted. 23 October, 2013
________________________
Parallax Agency Ltd. By: James Hall, Director
_______________________ Smart.exe Ltd. By: Dr. Nachum Panich, CEO
8 Exhibit B Confidentiality, Non-Competition, Non-Solicitation, and Assignment of Inventions Undertaking The undersigned, Smart.exe Ltd. (the “Service Provider”), hereby agrees and undertakes the following obligations towards Parallax Agency Ltd. (the “Company”), in connection with the Service Agreement dated 23 October, 2013 (the “Service Agreement”), to which this Exhibit is attached as an integral part thereof. All capitalized terms used herein and not otherwise defined, shall have the meanings ascribed to them in the Service Agreement: 1. Proprietary Information and Confidentiality 1.
Service Provider is aware that in the course of its engagement with Company during the Term and/or in connection therewith, and prior to the Term, as part of the Past Services, Service Provider had access to, and may have in the future access to, and was entrusted with, and may be entrusted with, technical, proprietary, sales, legal, financial, and other data and information with respect to the affairs and business of the Company, its products, its affiliates, customers and suppliers, and including information received by Company from any third party subject to obligations of confidentiality towards said third party, all of which data and information, whether documentary, written, oral or computer generated, shall be deemed to be, and referred to as “Proprietary Information”, which, by way of illustration but not limitation, shall include trade and business secrets, processes, patents, improvements, ideas, inventions (whether reduced to practice or not), techniques, products, and technologies (actual or planned), financial statements, marketing plans, strategies, forecasts, customer and/or supplier lists and/or relations, research and development activities, formula, data, know-how, designs, discoveries, models, computer hardware and software, drawings, dealings and transactions, except for such information which, on the date of disclosure, is, or thereafter becomes, available in the public domain through no fault on the part of Service Provider.
2.
Service Provider agrees and declares that all Proprietary Information, patents and/or patent applications, copyrights and other intellectual property rights in connection therewith, are and shall remain the sole property of Company and its assigns.
3.
Prior to the date hereof, during the term of provision of the Past Services, during the Term and upon its expiration thereafter, Service Provider has kept and shall keep in confidence and trust all Proprietary Information, and any part thereof, and has not and will not use or disclose and/or make available, directly or indirectly, to any third party any Proprietary Information without the prior written consent of Company, except to the Approved Employees and Consultants, to the extent as may be necessary in the ordinary course of performing Service Provider’s duties pertaining to the Company, and except and to the extent as may be required under any applicable law, regulation, judicial decision or determination of any governmental entity.
4.
Without derogating from the generality of the foregoing, Service Provider agrees as follows: 4.1.
Not to copy, transmit, reproduce, summarize, quote, publish and/or make any commercial or other use whatsoever of the Proprietary Information, or any part thereof, without the prior written consent of Company, except as may be necessary in the performance of its duties pertaining to the Company;
4.2.
To exercise the highest degree of care in safeguarding the Proprietary Information against loss, theft or other inadvertent disclosure and to take all reasonable steps necessary to ensure the maintaining of confidentiality;
4.3.
Not to enter into the data bases of Company for any purpose whatsoever, including, without limitation, review, download, insert, change, delete and/or relocate any information, except as may be necessary in the performance of its duties pertaining to the Company;
4.4.
Upon termination of the engagement and/or as otherwise requested by Company, Service Provider shall promptly deliver to Company all Proprietary Information and any and all copies thereof, in whatever form, that had been furnished to Service Provider, prepared thereby and/or came to its possession in any manner whatsoever, during and in the course of its engagement with Company, and shall not retain and/or make copies thereof in whatever form.
9 5.
Service Provider agrees to accept and use the Proprietary Information solely for the purpose of providing the Services. In the event that for the purpose of provision the Services, Service Provider has to disclose any Proprietary Information to any of its employees and consultants, including without limitation, the Approved Employees and Consultants, it shall ensure that any such employee and consultant has a need to know such information, and that such employees and consultants fully perform the duties and obligations hereunder. To this end, Service Provider shall obtain appropriate written agreements with such employees and consultants, but in any event it shall be responsible for any use or disclosure of Confidential Information of any of such employees and consultants. Service Provider shall not to use the Proprietary Information otherwise for its own or any third party's benefit without the prior written approval of an authorized representative of the Company in each instance.
6.
Service Provider acknowledges that any breach by it of its obligations pursuant to this Section 1 would cause substantial damage for which the Company shall hold it liable. The provisions of this Section 1 shall survive termination of the Service Agreement and shall remain in full force and effect at all times thereafter.
2. Non-Competition and Non-Solicitation. 2.1. Service Provider hereby covenants that throughout the Term and for a period of twelve (12) months following the effective date of termination of Service Provider’s engagement howsoever arising thereafter, Service Provider will not: 2.1.1. Engage, directly or indirectly, in any capacity whatsoever, whether independently or as an employee, consultant or otherwise, through any corporate body and/or with or through others, in any activity competing directly with the products of the Company, as same have existed and shall exist during the Term and as shall exist at the effective date of termination of the Service Agreement. 2.1.2. Whether on its own account and/or on behalf of others, in any way offer, solicit, interfere with and/or endeavor to entice away from Company, any person, firm or company with whom Company and/or any of its affiliates shall have any contractual and/or commercial relationship as an employee, consultant, licenser, joint venturer, supplier, customer, distributor, agent or contractor of whatsoever nature, existing or under negotiation on or prior to the effective date of termination of Service Provider’s engagement with Company. 2.2. Service Provider is aware of and acknowledges that its obligations, under this Section 2, derive from its access to the Proprietary Information. 3. Inventions. 3.1. Service Provider agrees to promptly and from time to time fully inform and disclose to Company, and to ensure to cause each of the Approved Employees and Consultants to promptly and from time to time fully inform and disclose to the Company, all inventions, designs, improvements and discoveries which each of them had in the past with respect to the Past Services, now has or may hereafter have during the Term which pertain to or relate to Company, to the Services or to any experimental work performed by Company, including, without limitation, any and all Deliverables, the concepts, ideas, architecture and designs embodied therein and pertaining thereto, whether conceived by Service Provider, through the Approved Employees and Consultants, alone or with others and whether or not conceived during regular working hours (“Inventions”). 3.2. All Inventions, and any and all rights, interests and title therein, including, inter alia, any and all moral rights therein, shall be the exclusive property of Company and Service Provider shall not be entitled, and hereby waives now and/or in the future, any claim to any right, compensation and/or reward in connection therewith. For clarification purposes, the Services are deemed to be work for hire, and therefore, the Deliverables, including, without limitation, the source code, the documentation, and any and all concepts, ideas, designs and architecture and Inventions embodied therein, including, inter alia, the moral rights therein, shall be the exclusive property of the Company. 3.3. In the event that by operation of law, any Invention shall be deemed Service Provider’s, the Service Provider hereby assigns and shall in the future take all the requisite steps (including by way of illustration only, signing all appropriate documents) to assign to Company and/or its designee any and all of its foregoing rights, titles and interests, on a worldwide basis and hereby
10 further acknowledges and shall in the future acknowledge Company’s full and exclusive ownership in all such Inventions. Service Provider hereby undertakes to cause each of the Approved Employees and Consultants, to do the same. To the extent necessary, Service Provider shall, during the Term or at any time thereafter, execute all documents and take all steps necessary to effectuate the assignment to Company and/or its designee and/or to assist Company to obtain the exclusive and absolute rights, title and interests in and to all Inventions, whether by the registration of patent, trade mark, trade secret, copyright, and/or any other applicable legal protection, and to protect same against infringement by any third party. Service Provider hereby undertakes to cause each of the Approved Employees and Consultants, to do the same. This provision shall apply with equal force and effect to all items that may be subject to copyright or trademark protection. 3.4. The provisions of this Section 3 shall survive termination of the Service Agreement and shall be and remain in full force and effect at all times thereafter.
________________________
Parallax Agency Ltd.
By: James Hall, Director
_______________________ Smart.exe Ltd. By: Dr. Nachum Panich, CEO
11 Exhibit C Confidentiality, Non-Competition and Intellectual Property Rights Undertaking I, the undersigned, [__], bearer of [Israeli I.D. no. _________ / [__] passport no. _______ / local ID number (state location)], irrevocably warrant and undertake as follows: 1.
For purposes of this undertaking, “Company” shall mean Parallax Agency Ltd. and/or any of its affiliates and “Term” shall mean the term of the Service Agreement defined below.
2.
I am an employee/consultant/service provider [please delete where applicable] of Smart.exe Ltd. (the “Service Provider”).
3.
Company has, on __ _________, 201__ (“Effective Date”) entered into a Service Agreement with the Service Provider (“Service Agreement”) for the provisions of certain services as defined in the Service Agreement (“Services”). Pursuant to the Service Agreement, Service Provider shall provide services to the Company through the undersigned.
I agree to undertake the following obligations towards the Company as follows: 4.
Proprietary Information and Confidentiality 4.1.
I am aware that in the course of the provision of the Services on behalf of the Service Provider prior to the Term, during the Term and/or in connection therewith, I may have had and may have in the future access to, and may have been and may be entrusted with, technical, proprietary, sales, legal, financial, and other data and information with respect to the affairs and business of the Company, its products, its affiliates, customers and suppliers, and including information received by Company from any third party subject to obligations of confidentiality towards said third party, all of which data and information, whether documentary, written, oral or computer generated, shall be deemed to be, and referred to as “Proprietary Information”, which, by way of illustration but not limitation, shall include trade and business secrets, processes, patents, improvements, ideas, inventions (whether reduced to practice or not), techniques, products, and technologies (actual or planned), financial statements, marketing plans, strategies, forecasts, customer and/or supplier lists and/or relations, research and development activities, formula, data, know-how, designs, discoveries, models, computer hardware and software, drawings, dealings and transactions, except for such information which, on the date of disclosure, is, or thereafter becomes, available in the public domain through no fault on my part.
4.2.
I agree and declare that all Proprietary Information, patents and/or patent applications, copyrights and other intellectual property rights in connection therewith, are and shall remain the sole property of Company and its assigns.
4.3.
At all times prior to the date hereof, during the Term and during the term of my engagement with Service Provider, and upon their expiration thereafter, I have kept and shall keep in confidence and trust all Proprietary Information, and any part thereof, and have not and will not use or disclose and/or make available, directly or indirectly, to any third party any Proprietary Information without the prior written consent of Company, except and to the extent as may be necessary in the ordinary course of performing my duties pertaining to the Company, on behalf of the Service Provider, and except and to the extent as may be required under any applicable law, regulation, judicial decision or determination of any governmental entity.
4.4.
Without derogating from the generality of the foregoing, I agree: 4.4.1.
Not to copy, transmit, reproduce, summarize, quote, publish and/or make any commercial or other use whatsoever of the Proprietary Information, or any party thereof, without the prior written consent of Company, except as may be necessary in the performance of my duties pertaining to the Company on behalf of the Service Provider;
4.4.2.
To exercise the highest degree of care in safeguarding the Proprietary Information against loss, theft or other inadvertent disclosure and to take all reasonable steps necessary to ensure the maintaining of confidentiality;
4.4.3.
Not to enter into the data bases of Company for any purpose whatsoever, including, without limitation, review, download, insert, change, delete and/or relocate any
12 information, except as may be necessary in the performance of my duties pertaining to the Company, on behalf of the Service Provider;
5.
4.5.
Upon the earlier of (i) termination of my engagement with the Service Provider; or (ii) termination of the Service Agreement, or (iii) as otherwise requested by Company, I shall promptly deliver to Company all Proprietary Information and any and all copies thereof, in whatever form, that had been disclosed to me, prepared by me and/or anyone on my behalf and/ or came to my possession in any manner whatsoever, during and in the course of providing the Services, and shall not retain and/or make copies thereof in whatever form.
4.6.
I shall not use any trade secrets or proprietary information in such manner that may breach any confidentiality and/or other obligation I may have undertaken relating to any former employer(s) and/or any third party.
4.7.
I acknowledge that any breach by me of my obligations pursuant to this Section 4 would cause substantial damage for which the Company shall hold me liable. The provisions of this Section 4 shall survive termination of both my engagement with Service Provider and the Service Agreement and shall remain in full force and effect at all times thereafter.
Non-Competition and Non-Solicitation. 5.1.
5.2. 6.
I hereby covenant that throughout the Term and thereafter for a period of twelve (12) months following the earlier of the termination of (i) my engagement with Service Provider; and (ii) the Service Agreement, I will not: 5.1.1.
Engage, directly or indirectly, in any capacity whatsoever, whether independently or as an employee, consultant or otherwise, through any corporate body and/or with or through others, in any activity competing directly with the activities and/or products of the Company and its affiliates, as same have existed and shall exist from time to time during the Term.
5.1.2.
Whether on my own account and/or on behalf of others, in any way interfere with and/ or endeavor to entice away, or offer or solicit for the purpose of so interfering and/or enticing away, from Company and/or any of its affiliates, any person, firm or company with whom Company and/or any of its affiliates shall have any contractual and/or commercial relationship as an employee, consultant, licenser, joint venturer, supplier, customer, distributor, agent or contractor of whatsoever nature, existing or under negotiation on, or prior to the earlier of the effective dates of termination of (i) my engagement with Service Provider; and (ii) the Service Agreement.
I am aware, and acknowledge, that my obligations, under this Section 5, are derived of my access to the Proprietary Information.
Inventions. 6.1.
I agree to promptly and from time to time fully inform and disclose to Company all inventions, designs, improvements and discoveries which I may have had in the past with respect to the Services, which I now have or may hereafter have during the Term which pertain to or relate to Company, to the Services or to any experimental work performed by Company, including, without limitation, any and all Deliverables, the concepts, ideas, architecture and designs embodied therein and pertaining thereto, whether conceived by the undersigned alone or with others and whether or not conceived during regular working hours (“Inventions�).
6.2.
All Inventions, and any and all rights, interests and title therein, including, inter alia, any and all moral rights therein, shall be the exclusive property of Company and I shall not be entitled, and I hereby waive now and/or in the future, any claim to any right, compensation and/or reward in connection therewith. For clarification purposes, the Services are deemed to be work for hire, and therefore, the Deliverables, including, without limitation, the source code, the documentation, and any and all concepts, ideas, designs and architecture and Inventions embodied therein, including, inter alia, the moral rights therein, shall be the exclusive property of the Company.
6.3.
In the event that by operation of law, any Invention shall be deemed mine, I hereby assign and shall in the future take all the requisite steps (including by way of illustration only, signing all appropriate documents) to assign to Company and/or its designee any and all of its foregoing rights, titles and interests, on a worldwide basis and hereby further acknowledges and shall in
13 the future acknowledge Company’s full and exclusive ownership in all such Inventions. To the extent necessary, I shall, during the term of the Service Agreement or at any time thereafter, execute all documents and take all steps necessary to fully effectuate the assignment to Company and/or its designee and/or assist Company to obtain the exclusive and absolute rights, title and interests in and to all Inventions, whether by the registration of patent, trade mark, trade secret, copyright, and/or any other applicable legal protection, and to protect same against infringement by any third party. This provision shall apply with equal force and effect to all items that may be subject to copyright or trademark protection. 6.4.
The provisions of this Section 6 shall survive termination of both my engagement with Service Provider and the Service Agreement and shall be and remain in full force and effect at all times thereafter.
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