Executive Tier
Lumos Analytics Inc.
Template Version Date: May 29, 2024
Prepared by: Devon Archer (CA Bar No. 318274) Nadia Petrov (CA Bar No. 342891)
Matter Reference: 1008-00006
PROPRIETARY INFORMATION & INVENTIONS AGREEMENT
This Proprietary Information & Inventions Agreement (this "Agreement") is entered into as of [Insert Effective Date] (the "Effective Date"), by and between:
Lumos Analytics Inc., a Delaware corporation with its principal place of business at 2200 Pacific Avenue, Suite 1400, San Francisco, CA 94115 (hereinafter referred to as the "Company"),
and
[Insert Employee Full Legal Name] (hereinafter referred to as "Employee").
The Company and Employee are each referred to herein individually as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, the Company is engaged in the business of developing and providing to enterprise and governmental clients, and the Company's business depends upon the protection of its proprietary information, intellectual property, trade secrets, and related confidential business information;
WHEREAS, Employee is or will be employed by the Company in , and in that capacity Employee will have access to and will develop, contribute to, and be entrusted with the Company's most sensitive and valuable Confidential Information, trade secrets, and intellectual property;
WHEREAS, this Agreement supersedes any prior proprietary information agreement, invention assignment agreement, restrictive covenant agreement, or similar agreement previously entered into between Employee and the Company, whether written or oral, relating to the subject matter hereof;
NOW, THEREFORE, in consideration of Employee's employment or continued employment with the Company, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each of the Parties, the Parties hereby agree as follows:
SECTION 1: DEFINITIONS
As used in this Agreement, the following terms shall have the meanings set forth below. Capitalized terms used but not defined in this Section 1 shall have the meanings ascribed to them elsewhere in this Agreement.
1.1 "Confidential Information." "Confidential Information" means all non-public information, in any form or medium (whether tangible, intangible, visual, oral, written, electronic, or otherwise), that is disclosed to, made available to, learned by, or developed by Employee in connection with Employee's employment with the Company, whether before or after the Effective Date of this Agreement. Without limiting the generality of the foregoing, Confidential Information includes the following categories of information:
(a) trade secrets, proprietary data, and know-how;
(b)
(e) customer lists, customer data, customer identities, customer usage patterns, and customer contracts;
(f) financial information, revenue data, cost structures, budgets, projections, and forecasts;
(g) business strategies, strategic plans, competitive analyses, and market assessments;
(h) pricing models, pricing strategies, fee schedules, and discount structures;
(i) product roadmaps, development plans, release schedules, and feature specifications;
(j) marketing plans, go-to-market strategies, advertising materials, and brand strategies;
(k) personnel information, including compensation data, organizational charts, hiring plans, and performance evaluations;
(l) vendor and supplier information, including identities, pricing, contract terms, and capabilities;
(m) information relating to pending or threatened litigation, regulatory proceedings, or government investigations;
(n) information relating to mergers, acquisitions, divestitures, investments, or other corporate transactions; and
(o) any other information designated as confidential by the Company, whether by marking, written notice, or oral identification at the time of disclosure.
Notwithstanding the foregoing, Confidential Information shall not include information that Employee can demonstrate: (i) is or becomes publicly available through no act, omission, or fault of Employee or any person acting on Employee's behalf; (ii) was already known to Employee prior to disclosure by the Company, as evidenced by contemporaneous written records in Employee's possession; (iii) is independently developed by Employee without use of, reliance on, or reference to any Confidential Information of the Company; or (iv) is lawfully received by Employee from a third party who is not under any obligation of confidentiality to the Company with respect to such information and who did not acquire such information, directly or indirectly, from the Company.
1.2 "Company Technology." "Company Technology" means all inventions, discoveries, developments, improvements, enhancements, modifications, original works of authorship, designs, formulas, algorithms, software programs, processes, techniques, methodologies, trade secrets, and know-how, whether or not patentable or registrable under copyright or similar laws, that relate to the Company's current business, products, services, or research and development, or to the Company's research and development. Company Technology includes all intellectual property rights therein, including patents, copyrights, trade secret rights, trademark rights, and all applications, registrations, and renewals in connection therewith.
1.5 "Employee." "Employee" means [Insert Employee Full Legal Name], an individual currently holding or to be appointed to the position of [Insert Title] with the Company.
SECTION 2: CONFIDENTIALITY OBLIGATIONS
2.1 Non-Disclosure Obligation. Employee agrees to hold all Confidential Information in strict confidence and trust for the sole benefit of the Company. Employee shall not, directly or indirectly, disclose, publish, distribute, disseminate, or otherwise communicate any Confidential Information to any third party, including, without limitation, any competitor, customer, vendor, contractor, consultant, investor, analyst, journalist, family member, or any other person or entity, without the prior written authorization of the Company's General Counsel or Chief Executive Officer. Employee shall not use any Confidential Information for any purpose other than the faithful and diligent performance of Employee's duties and responsibilities for the Company. Employee shall take all reasonable precautions to prevent the unauthorized disclosure or use of Confidential Information, including, without limitation, complying with all of the Company's information security policies, data protection protocols, and access-control procedures as may be in effect from time to time.
2.3 Permitted Disclosures. Notwithstanding the obligations set forth in Section 2.1, Employee may disclose Confidential Information under the following circumstances:
(a) Legally Compelled Disclosures. Employee may disclose Confidential Information to the extent required by applicable law, regulation, subpoena, civil investigative demand, or order of a court or governmental agency of competent jurisdiction; provided, however, that Employee shall (to the extent legally permitted) give the Company prompt written notice of such requirement prior to making any disclosure, so that the Company may seek a protective order, confidential treatment, or other appropriate remedy. Employee shall cooperate with the Company, at the Company's expense, in the Company's efforts to obtain such protective relief. If such protective order or other remedy is not obtained, Employee shall disclose only that portion of the Confidential Information that is legally required to be disclosed, and shall use commercially reasonable efforts to ensure that confidential treatment is accorded to such information.
2.4 Return of Materials. Upon the termination of Employee's employment with the Company for any reason, or at any time upon the Company's written request, Employee shall immediately:
(a) return to the Company all documents, files, records, reports, memoranda, notebooks, drawings, plans, specifications, prototypes, samples, devices, equipment, laptops, mobile phones, tablets, USB drives, external hard drives, access cards, keys, and any other materials of any kind and in any medium (whether physical or electronic) that contain, reflect, embody, or relate to Confidential Information, Company Technology, or any other property of the Company, regardless of whether such materials were prepared by Employee or by others;
SECTION 3: RESTRICTIVE COVENANT ACKNOWLEDGMENTS
SECTION 4: INVENTION ASSIGNMENT
4.1 Assignment of Assigned Inventions. Employee hereby irrevocably assigns, transfers, and conveys to the Company, and agrees to assign, transfer, and convey to the Company, all of Employee's right, title, and interest in and to all . This assignment includes, without limitation, all worldwide rights in and to any and all patents, patent applications, copyrights, copyright registrations, trade secret rights, trademark rights, mask work rights, moral rights (to the extent waivable), and all other intellectual property rights of any kind or nature whatsoever, in any and all . Employee agrees to assist the Company, and the Company's designees, at the Company's sole expense, in every proper way to secure, perfect, register, and enforce the Company's rights in any and any intellectual property rights therein, in any and all countries, including, without limitation, by executing patent applications, copyright registration applications, trademark applications, assignments, declarations, oaths, affidavits, powers of attorney, and any other documents and instruments that the Company may reasonably request in connection with the prosecution, registration, maintenance, enforcement, or defense of such rights.
4.4 Moral Rights Waiver. To the fullest extent permitted by applicable law, Employee hereby irrevocably waives and agrees not to assert any and all moral rights that Employee may have in any Assigned Inventions, including, without limitation, any rights of attribution, integrity, disclosure, withdrawal, and any other rights that may be known as or referred to as "moral rights," "artist's rights," "droit moral," or the like, under any applicable law of any jurisdiction. To the extent that any moral rights cannot be waived under applicable law, Employee agrees not to assert such rights against the Company or its successors, assigns, or licensees.
4.5 Works Made for Hire. Employee acknowledges and agrees that all original works of authorship created by Employee, solely or jointly with others, within the scope of Employee's employment with the Company, including, without limitation, all software, documentation, reports, analyses, presentations, designs, and other written or graphic materials, are "works made for hire" as that term is defined in Section 101 of the United States Copyright Act, 17 U.S.C. § 101, and that the Company is and shall be deemed the sole author and owner of such works and of all copyrights therein.
4.6 Power of Attorney. Employee hereby irrevocably designates and appoints the Company, and the Company's duly authorized officers, employees, and agents, as Employee's agent and attorney-in-fact, coupled with an interest, for the limited purpose of acting for and on behalf of Employee to execute, verify, acknowledge, deliver, and file any documents, and to take any other actions, that may be necessary or desirable to perfect, register, maintain, enforce, or defend the Company's rights in any Assigned Inventions and any intellectual property rights therein, including, without limitation, patent applications, copyright registration applications, trademark applications, assignments, and related filings, in any and all jurisdictions worldwide. This power of attorney shall be exercised by the Company solely in the event that Employee is unavailable, unable, or unwilling to execute such documents or take such actions after the Company has made reasonable efforts to obtain Employee's cooperation, and only to the extent necessary to give effect to the assignments and obligations set forth in this Section 4.
SECTION 5: COMPANY PROPERTY
5.1 Ownership. All documents, files, records, reports, memoranda, notebooks, correspondence, drawings, designs, specifications, data, databases, devices, equipment, tools, prototypes, samples, models, and any other materials of any kind and in any medium (whether physical or electronic) that are furnished to Employee by the Company, or that are created, developed, compiled, or assembled by Employee, solely or jointly with others, in the course of Employee's employment with the Company, are and shall remain the sole and exclusive property of the Company. Employee shall have no ownership interest in any such materials, and Employee shall not remove any such materials from the Company's premises or systems except as reasonably necessary for the performance of Employee's duties and in accordance with the Company's applicable policies.
5.2 Return Upon Termination.
SECTION 6: NON-SOLICITATION OF EMPLOYEES
6.1 During-Employment Restriction. During the Employment Period, Employee shall not, directly or indirectly, whether on Employee's own behalf or on behalf of any other person, firm, corporation, partnership, or other entity: (a) solicit, recruit, encourage, entice, or induce any employee of the Company to terminate, resign from, or otherwise cease his or her employment or engagement with the Company; or (b) hire, engage, or retain, or assist any other person or entity in hiring, engaging, or retaining, any employee of the Company, or any person who was an employee of the Company within the preceding six (6) months, without the prior written consent of the Company's Chief Executive Officer or General Counsel.
SECTION 7: AT-WILL EMPLOYMENT
Nothing in this Agreement shall be construed to create a contract of employment between the Company and Employee for any specified period of time or to limit in any way the right of either Party to terminate the employment relationship. Employee's employment with the Company is and shall remain "at-will," which means that either the Company or Employee may terminate the employment relationship at any time, for any reason or for no reason, with or without cause, and with or without advance notice, subject only to such notice or other requirements as may be imposed by applicable law. No officer, director, employee, agent, or representative of the Company has any authority to enter into any agreement with Employee that alters the at-will nature of Employee's employment, unless such agreement is in writing and signed by the Company's Chief Executive Officer or an authorized member of the Company's Board of Directors. This Agreement does not guarantee Employee any particular position, compensation, duties, benefits, or terms of employment.
SECTION 9: REPRESENTATIONS AND WARRANTIES
9.1 Employee Representations. Employee represents and warrants to the Company as follows:
(a) Employee is not a party to, and is not bound by, any employment agreement, consulting agreement, non-competition agreement, non-solicitation agreement, confidentiality agreement, invention assignment agreement, or any other agreement, obligation, or understanding with any former employer, client, or third party that would prevent, restrict, or impair Employee's ability to perform Employee's duties and responsibilities for the Company or to comply with the terms of this Agreement.
(b) Employee has not brought to the Company, and will not bring to the Company or use in the course of Employee's employment with the Company, any confidential or proprietary information, trade secrets, documents, materials, or other property belonging to any former employer, prior client, or any other third party, except as has been expressly authorized in writing by such third party and disclosed to the Company's General Counsel.
SECTION 10: REMEDIES
10.1 Equitable Relief. Employee acknowledges and agrees that: (a) the Confidential Information and intellectual property of the Company are among the Company's most valuable assets; (b) Employee's position with the Company affords Employee access to and knowledge of the Company's most sensitive Confidential Information and Trade Secrets; (c) any breach or threatened breach by Employee of the confidentiality obligations set forth in Section 2, would cause the Company immediate and irreparable harm for which monetary damages would be an inadequate remedy; and (d) the injury to the Company from any such breach or threatened breach would be difficult or impossible to measure or calculate with precision. Accordingly, in addition to any other remedies available to the Company at law or in equity (including monetary damages), the Company shall be entitled to seek temporary restraining orders, preliminary and permanent injunctive relief, specific performance, and any other equitable remedies that may be appropriate to enforce the provisions of this Agreement, without the necessity of proving actual damages . The rights and remedies set forth in this Section 10.1 are cumulative and shall be in addition to, and not in lieu of, any other rights and remedies available to the Company under this Agreement, at law, or in equity.
10.2 Indemnification. Employee agrees to indemnify, defend, and hold harmless the Company, and the Company's directors, officers, employees, agents, successors, and assigns, from and against any and all losses, liabilities, claims, demands, damages, costs, and expenses (including, without limitation, reasonable attorneys' fees, expert witness fees, and costs of litigation or arbitration) arising out of, resulting from, or relating to any breach or alleged breach by Employee of any provision of this Agreement, including, without limitation, any misappropriation or unauthorized disclosure of Confidential Information, any failure to assign Assigned Inventions as required by this Agreement, or any breach of Employee's representations and warranties set forth in Section 9.
SECTION 11: GENERAL PROVISIONS
11.1 Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the
11.2 Forum Selection. Any legal action, suit, or proceeding arising out of, relating to, or in connection with this Agreement, or any breach or alleged breach hereof, shall be brought exclusively in the Each Party irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of venue in any such court, and any claim that any such action, suit, or proceeding brought in any such court has been brought in an inconvenient forum.
11.3 Severability. If any provision of this Agreement (or any portion thereof) is found by a court of competent jurisdiction to be invalid, illegal, void, or unenforceable under applicable law, such provision (or portion thereof) shall be modified, to the minimum extent necessary, to make it valid, legal, and enforceable while preserving the original intent of the Parties, or, if such modification is not possible, such provision (or portion thereof) shall be severed from this Agreement, and the remaining provisions of this Agreement shall continue in full force and effect and shall be binding upon the Parties.
11.4 Entire Agreement. This Agreement, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations, representations, warranties, and communications, whether written or oral, between the Parties relating to the subject matter hereof, In the event of any conflict between the terms of this Agreement and the terms of any other agreement between the Parties, the terms of this Agreement shall control with respect to the subject matter hereof.
11.5 Amendment. This Agreement may not be amended, modified, supplemented, or waived except by a written instrument duly executed by both Parties. No oral modification of this Agreement shall be effective for any purpose. No course of dealing between the Parties shall be deemed to constitute an amendment or modification of this Agreement.
11.6 Waiver. The failure of either Party to enforce any provision of this Agreement at any time, or the failure to require at any time the performance by the other Party of any provision of this Agreement, shall in no way be construed as a waiver of such provision or a waiver of the right to enforce such provision at a later time. A waiver by either Party of any breach of this Agreement shall not be construed as a waiver of any subsequent breach of the same or any other provision. No waiver shall be effective unless it is set forth in writing and signed by the waiving Party.
11.7 Assignment. The Company may freely assign this Agreement, and all of its rights and obligations hereunder, to any successor in interest to the Company, without the prior consent of Employee. Upon any such assignment, the rights and obligations of the Company under this Agreement shall inure to the benefit of, and be binding upon, such successor in interest. Employee may not assign, delegate, or transfer this Agreement, or any of Employee's rights or obligations hereunder, without the prior written consent of the Company, and any attempted assignment or delegation without such consent shall be null and void.
11.8 Notices. All notices, demands, requests, consents, approvals, and other communications required or permitted under this Agreement shall be in writing and shall be deemed duly given: (a) upon personal delivery; (b) one (1) business day after deposit with a nationally recognized overnight courier service (with confirmation of delivery); (c) three (3) business days after deposit in the United States mail, by certified or registered mail, return receipt requested, postage prepaid; or (d) upon transmission by electronic mail (with confirmation of receipt), in each case addressed as follows:
If to the Company:
Lumos Analytics Inc.
Attn: General Counsel
2200 Pacific Avenue, Suite 1400 San Francisco, CA 94115
Email: generalcounsel@lumosanalytics.com
If to Employee:
[Insert Employee Full Legal Name] [Insert Employee Address] [Insert Employee Email Address]
Either Party may change its address for notice purposes by providing written notice to the other Party in accordance with this Section 11.8.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Parties have executed this Proprietary Information & Inventions Agreement as of the Effective Date first written above.
LUMOS ANALYTICS INC.
By: ________
Name: [Insert Authorized Signatory Name]
Title: [Insert Title]
Date: ________
EMPLOYEE
Signature: ________
Print Name: [Insert Employee Full Legal Name]
Date: ________
— End of Proprietary Information & Inventions Agreement (Executive Tier) —