CONFIDENTIALITY AND INTELLECTUAL PROPERTY ASSIGNMENT AGREEMENT
CONFIDENTIALITY AND INTELLECTUAL PROPERTY ASSIGNMENT AGREEMENT
This Confidentiality and Intellectual Property Assignment Agreement (‚ÄúAgreement‚Äù) is entered into by and between Contractor and Client whose respective names and office addresses are written in the signature portion below (each, a ‚ÄúParty,‚Äù and collectively, the ‚ÄúParties‚Äù).
A.¬†¬†¬† Client is and shall be the owner of Confidential Information, as defined in Section 2(a) below.
B.¬†¬†¬† Contractor and its employ, assign, or any person/s acting on Contractor‚Äôs behalf (‚ÄúPersonnel‚Äù) may have access to Confidential Information during their discussions with Client for a specific task, undertaking or project, which may include creation, modification, or enhancement of Confidential Information (the ‚ÄúProject‚Äù); hence the need of the Agreement to govern the rights, duties, and responsibilities of the Parties.
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and promises herein contained and for other good and valuable consideration, receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Parties agree as follows:
1. ¬†¬† Term. The Agreement shall take effect upon its execution, and shall subsist throughout the term of the Project and for a period of ten years thereafter, unless otherwise agreed in writing by Client.
2. ¬† Coverage. The Agreement shall cover the Project, Confidential Information, and all other incidental and subsequent assistance needed in the preparation, fulfillment, or improvement thereof.
For purposes of the Agreement, these terms shall mean as follows:
(a)¬†¬†¬† “Confidential Information” shall include all information divulged to Contractor including but not limited to ‚ÄúOriginal IP‚Äù and ‚ÄúDeveloped IP‚Äù.
The term ‚ÄúConfidential Information‚Äù shall not include information which: (i) is or becomes generally available to the public other than as a result of breach by Contractor of the Agreement; or (ii) was available to Contractor on a non-confidential basis prior to its disclosure to Contractor by Client.
(b)¬†¬†¬† ‚ÄúOriginal IP‚Äù shall include without limitation, and in whatever medium, (i) all intellectual property and intellectual property rights pertaining to the business of Client including all patents, trademarks, service marks, logos, get-up, trade names, trade secrets, internet domain names, rights in designs, labels, slogans, mascots, distinctive building designs, advertising signs, specially designed equipment, equipment layout plans, food presentation and formulas, secret recipes, certain business techniques, management information systems, system specific software packages, systems and procedures, menus (including food and beverage designations, special recipes, and quality and quantity standards); operating procedures for sanitation, maintenance and food and beverage storage, preparation and service; methods and techniques for inventory and cost controls, record keeping and reporting; personnel management, purchasing, sales, promotion and advertising; copyright (including rights in computer software and its source code) and moral and related rights, database rights, semi-conductor topography rights, utility models, rights in know-how and other intellectual property rights, in each case whether registered or unregistered and including applications for registration, and all rights or forms of protection having equivalent or similar effect anywhere in the world; (ii) all non-public information provided by Client that relates to the actual or anticipated business of Client, including business plans; product plans;¬† sales, marketing, and/or finance information; customer information; and all data and¬† information regarding Client‚Äôs business, plans, products, services, processes, personnel, and markets; (iii) all information provided by Client to Contractor in connection with the Project or acquired by Contractor from Client in the course of the implementation of the Project; and (iv) the existence and terms of the Agreement and the Project.
(c)¬†¬†¬† “Developed IP” shall include without limitation, and in whatever medium, (i) all copyrightable material, notes, records, drawings, designs, inventions, improvements, developments, discoveries, and trade secrets conceived, discovered, developed, or reduced to practice by Contractor, solely or in collaboration with others, during the term of this Agreement and in the course of the Contractor‚Äôs engagement under the Agreement and/or Project that relate in any manner to the business of Client or to the Original IP that Contractor may be directed to undertake, investigate, or experiment with or that Contractor may become associated with in work, investigation, or experimentation in Client‚Äôs line of business in performing the assistance needed in the Project and/or implementation of the Agreement, and (ii) any and all copyrights and related rights, patents, utility models, industrial designs, trademarks, or other intellectual property rights related thereto or arising therefrom.
For avoidance of doubt, Developed IP shall also include the following:
(i)¬†¬†¬† all data of whatever nature collected by Contractor in connection with the Project and/or implementation of the Agreement;
(ii)¬†¬†¬† all analyses and reports generated by Contractor in connection with the Project and/or implementation of the Agreement;
(iii)¬†¬†¬† ¬†all methods and¬† techniques (including without limitation techniques and methodologies for research, data collection, analysis and reporting) specifically commissioned by Client, or developed¬† or customized for Client;
(iv) ¬†¬†¬† the creation and/or modification or enhancement of any Original IP as a result of the findings or recommendations of Contractor; and
(v) ¬†¬†¬† any methodology that is developed by Client or co-developed by Client, or in any way developed with inputs from Client.
3.¬†¬† Confidentiality Undertaking. Contractor and Personnel may have access to Confidential Information in the course of discussions with Client, implementation of the Project and/or Agreement, and/or any other agreements arising from, in connection with, or related to, the Project and/or Agreement. In connection therewith:
(a)¬†¬†¬† Contractor hereby agrees to treat confidentially all Confidential Information furnished to or acquired by it, and undertakes that it shall not, and shall ensure that its stockholders, directors, officers, and Personnel shall not, under any circumstances, whether directly or indirectly:¬† (i) divulge, disclose, reproduce or make known the Confidential Information (or any portion thereof) in any form or manner to any person, firm, corporation or entity; (ii) use or allow the use of the Confidential Information except for purposes directly in connection with the implementation of the Project;¬† (iii) without the prior written consent of Client, advertise or promote itself as a contractor, or service provider of Client, or otherwise disclose or make known to the public (other than in connection with a disclosure required by law) the fact of its engagement by Client. Contractor shall cause the execution of the necessary confidentiality and other agreements by the persons (other than Contractor) covered by the restrictions in the Agreement to ensure their compliance herewith. Client reserves the right to require originally signed copies of such agreements at any time.
(b)¬†¬†¬† Contractor shall reveal the Confidential Information only to those Personnel who need such information for the purpose of providing the services required from Contractor in the Project. All of Confidential Information shall be used only in accordance with the specifications of Client and/or solely for the purposes of implementing the Project. The use by Contractor of any of the Confidential Information for purposes other than foregoing shall require the prior written consent of Client.
(c)¬†¬†¬† Contractor shall keep a record of the Confidential Information in its possession and of the location of such information. All Confidential Information in the possession of Contractor and all analyses, compilations, studies or other documents prepared by Contractor from such Confidential Information will be marked ‚ÄúConfidential‚Äù.
(d)¬†¬†¬† At the request of Client, Contractor will promptly deliver to Client all documents or other materials constituting the Confidential Information, as furnished by Client and/or in the possession of Contractor, including copies thereof in the possession of Personnel.
(e)¬†¬†¬† In the event that Contractor is required by court process to disclose any of the Confidential Information, Contractor shall provide Client with prompt notice in writing of such requirement so that it may seek an appropriate protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained, Contractor may furnish that portion (and only that portion) of the Confidential Information which, in the written opinion of its counsel, it is legally compelled to disclose and will exercise its best efforts to obtain reliable assurance that confidential treatment will be accorded any Confidential Information so furnished.
4.¬†¬† Damages.¬† Any breach of confidentiality by Contractor or its directors, officers, employees or Personnel shall be considered as a breach by Contractor and shall entitle Client to Liquidated Damages from Contractor in the amount of¬† the United States Dollars equivalent of one million Philippine pesos (PhP1,000,000) (based on prevailing bank rates as at the date of breach) per event of breach, in addition to any and all other damages, expenses, costs of suit, and attorney‚Äôs fees that Client, its affiliates, subsidiaries, and franchisees may suffer or incur as a result thereof.
Client‚Äôs waiver of any breach to be valid shall be in writing and signed by Client‚Äôs authorized representative, and such waiver shall not be construed as a waiver of any future breach of this Agreement. The terms specified in any receipt, invoices, slips, or other accounting documents issued by Contractor to Client shall not apply and Client‚Äôs acceptance of any of these documents shall be only for the purpose of referencing the amounts indicated therein.
5.¬†¬† Disposition of Confidential Information. Contractor agrees that all items and materials bearing Confidential Information provided by Client to the Contractor in connection with the Project shall be used exclusively for the purpose intended therefor.¬† Contractor shall not sell, reproduce, or otherwise dispose of such items and materials without the prior written consent of Client. Likewise, any manufacturing overruns, excess raw or processed materials, or similar materials shall not be used or disposed of by Contractor other than as prescribed by Client.
6.¬†¬† Ownership of Original IP.¬† Original IP are, and shall remain to be, owned exclusively by Client. In no way shall the Project or the Agreement be construed as conferring upon Contractor or its Personnel any right, license, or authority in or to the Original IP.
7.¬†¬† Assignment of Developed IP to Client. Developed IP are/shall become the sole property of Client. Contractor hereby unconditionally, completely and irrevocably assigns, transfers, and conveys to Client or its assign/s all rights, title, and interests in and to the Developed IP. Contractor likewise hereby irrevocably and unconditionally waives in favor of Client the moral rights that Contractor, its stockholders, directors, officers, Personnel, contractors, agents, and assigns may have with respect to the Developed IP. Contractor shall execute and/or deliver such documents and instruments as may be required to give effect to this assignment and/or the registration of any resulting intellectual property rights in the name of Client.
8.¬†¬† Further Assurances. Contractor undertakes to assist Client, or its designee, in every proper way to secure Client‚Äôs rights in and to the Developed IP (and other Confidential Information whenever applicable) in the form of copyrights, patents, utility models, industrial designs, trademarks, or other intellectual property rights in any and all countries, including the disclosure to Client of all pertinent information and data with respect thereto, the execution of all applications, specifications, oaths, assignments and all other instruments that Client may deem necessary in order to apply for and obtain such rights and in order to assign and convey to Client, its successors, assigns, and nominees the sole and exclusive right, title, and interest thereto. Contractor further undertakes that the Contractor‚Äôs obligations to execute or cause to be executed any such instrument or papers shall continue perpetually after the termination of this Agreement and/or Project.
9.¬†¬† Termination of the Project. Upon termination of the Project or the Agreement for any reason, Contractor: (i) shall discontinue the use and application of the Confidential Information; (ii) undertakes not to thereafter engage or enter into any other transaction which shall in any way involve the use and application of the Confidential Information; and (iii) shall immediately return and deliver all copies of the Confidential Information, if any, to Client, without making or retaining copies or excerpts of the same in whatever medium.
10.¬† Dispute Resolution. Any dispute, controversy of claim arising out of or in connection with this Agreement shall be resolved through good faith discussions between the Parties. If no resolution is reached within 90 business days from the date on which discussions are commenced, then such dispute, controversy or claim shall be referred to and finally resolved by arbitration under laws of the principal place of business of Client.
11.¬†¬† Governing Law.¬† This Agreement shall be governed by and construed in accordance with the laws of incorporation of Client.
12.¬† Severability.¬† If any restriction found hereunder shall be adjudged by any court or authority of competent jurisdiction to be void or unenforceable but would be valid if part of the wording thereof were to be deleted and/or the period thereof were to be reduced and/or the area dealt with thereby were to be reduced, the said restriction shall apply within the jurisdiction of that court or competent authority with such modifications as are necessary to make it valid and effective.