1008-00006 · Client 1008 · Transaction Documents/Final Templates

piia-mid-entry-level-tier-final.docx DOCUMENT Funds

11 / 12 ← → ✕

PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT

Mid-Level and Entry-Level Employee Tier

Lumos Analytics Inc.

Effective Date: [Insert Date]

Prepared May 29, 2024 Prepared by: Devon Archer (CA Bar No. 318274) and Nadia Petrov (CA Bar No. 342891), Calderwood & Harkness LLP Template Designation: Final Execution-Ready Template — for use with mid-level (Manager, Analyst) and entry-level (Associate, Junior Engineer) California-based employees

Right-click to update Table of Contents

PREAMBLE

This Proprietary Information and Inventions Agreement (this "Agreement") is entered into as of the date set forth on the signature page below (the "Effective Date") by and between:

"Company": Lumos Analytics Inc., a Delaware corporation with its principal place of business at [Insert Company Address]; and

"Employee": [Insert Employee Full Legal Name], an individual residing in the State of California.

The Company and Employee are each referred to herein individually as a "Party" and collectively as the "Parties."

RECITALS. WHEREAS, Employee is being employed by, or is continuing employment with, the Company in a [Insert Title/Position] capacity, and the Company and Employee desire to set forth in writing the terms and conditions governing the protection of the Company's proprietary information and intellectual property;

WHEREAS, as a condition of Employee's employment or continued employment with the Company, and in consideration of the compensation and benefits provided to Employee in connection with such employment, Employee agrees to the terms and conditions of this Agreement;

WHEREAS, the Company is engaged in the business of [Insert general description — e.g., development and provision of technology-based analytics solutions], and the Company's success depends, in substantial part, upon the protection of its Confidential Information, trade secrets, and intellectual property;

WHEREAS, the Company has a legitimate and substantial interest in protecting its Confidential Information, trade secrets, intellectual property, customer relationships, and goodwill, all of which have been developed at considerable expense and effort;

WHEREAS, Employee acknowledges receipt of this Agreement and represents that Employee has had a reasonable opportunity to review this Agreement in its entirety prior to execution, and has been advised of Employee's right to consult with legal counsel of Employee's own choosing regarding the terms and conditions contained herein; and

WHEREAS, this Agreement is intended to comply with the laws of the State of California, including but not limited to California Labor Code §§ 2870–2872, California Business & Professions Code § 16600 (as amended), and the federal Defend Trade Secrets Act, 18 U.S.C. § 1836 et seq.

NOW, THEREFORE, in consideration of the mutual promises, covenants, and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

ARTICLE 1 — DEFINITIONS

As used in this Agreement, the following terms shall have the meanings set forth below. Unless the context requires otherwise, words importing the singular include the plural and vice versa, and references to a "Section" or "Article" refer to sections or articles of this Agreement.

1.1 "Assigned Inventions" means all inventions, improvements, discoveries, developments, concepts, ideas, original works of authorship, formulas, processes, methods, techniques, software, algorithms, data models, designs, and trade secrets, whether or not patentable or copyrightable, that: (a) are made, conceived, developed, or reduced to practice by Employee, whether alone or jointly with others, during the Employment Period; and (b) either: (i) relate, at the time of conception or reduction to practice, to the Company's business or to the Company's actual or demonstrably anticipated research or development; (ii) result from any work performed by Employee for the Company, whether or not during regular business hours; or (iii) are developed using the Company's equipment, supplies, facilities, or Confidential Information (including Trade Secrets).

Notwithstanding the foregoing, the term "Assigned Inventions" does not include any invention that qualifies fully under the provisions of California Labor Code § 2870, the text of which is set forth in Exhibit B attached hereto and incorporated herein by reference. Employee bears the burden of establishing that any particular invention falls within the protections of California Labor Code § 2870.

1.2 "Company Technology" means all intellectual property, technology, software (in source code and object code form), algorithms, data structures, data models, machine-learning models, products, services, methodologies, processes, technical documentation, specifications, user interfaces, application programming interfaces, databases, and know-how that are owned by, developed by, or licensed to the Company, whether created before, during, or after Employee's employment with the Company, and all improvements, modifications, derivative works, and enhancements thereto.

1.3 "Confidential Information" means all non-public information, in any form or medium, that is disclosed to, learned by, or made available to Employee during the Employment Period, or that Employee obtains or has access to by reason of Employee's employment with the Company, and that relates to the Company's business, operations, products, services, customers, vendors, partners, finances, or technology. Without limiting the generality of the foregoing, Confidential Information includes, but is not limited to:

(a) customer and prospective customer lists, customer data, customer identities, and information regarding customer preferences, needs, and purchasing patterns;

(b) pricing strategies, fee structures, discount schedules, and billing information;

(d) product roadmaps, development timelines, product specifications, and plans for future products or services;

(e) marketing strategies, advertising plans, market research, and competitive analyses;

(f) employee information, including compensation data, organizational charts, and staffing plans;

(g) source code, object code, algorithms, software architectures, data models, machine-learning training data, and technical specifications;

(h) vendor and supplier information, contract terms, and procurement strategies; and

(i) any other information designated by the Company as confidential or proprietary, or that a reasonable person would understand to be confidential given the nature of the information and the circumstances of disclosure.

The definition of Confidential Information set forth in this Section 1.3 is intended to be a streamlined and accessible summary appropriate for mid-level and entry-level positions within the Company and is not intended to be exhaustive.

Exclusions. Notwithstanding the foregoing, Confidential Information does not include information that:

(a) is or becomes generally available to the public through no act or omission of Employee that constitutes a breach of this Agreement;

(b) was known to Employee, without any obligation of confidentiality, prior to receipt of such information from the Company, as demonstrated by competent written records;

(c) is received by Employee from a third party who is not, to Employee's knowledge, subject to any obligation of confidentiality to the Company with respect to such information and who is not otherwise prohibited from disclosing such information; or

(d) is independently developed by Employee without reference to or use of any Confidential Information, as demonstrated by competent written records.

The burden of establishing that any of the foregoing exclusions applies shall rest with the Party seeking to invoke such exclusion. A specific item of information shall not be deemed to fall within an exclusion merely because it is embraced by more general information that is publicly available or that is in Employee's possession on a non-confidential basis.

1.4 "Trade Secret(s)" means information, including a formula, pattern, compilation, program, device, method, technique, or process, that derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use, and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy, as defined under the California Uniform Trade Secrets Act, California Civil Code § 3426 et seq., and the federal Defend Trade Secrets Act, 18 U.S.C. § 1836 et seq.

1.5 "Prior Inventions" means all inventions, original works of authorship, developments, improvements, and trade secrets that were made, conceived, or first reduced to practice by Employee prior to the commencement of Employee's employment with the Company, whether made individually or jointly with others, as identified and described by Employee in Exhibit A attached hereto. Prior Inventions are excluded from the scope of this Agreement's invention-assignment provisions to the extent, and only to the extent, they are properly listed in Exhibit A.

1.6 "Employment Period" means the period beginning on Employee's first date of employment with the Company and ending on the date of termination of Employee's employment with the Company for any reason, whether voluntary or involuntary, with or without cause.

ARTICLE 2 — CONFIDENTIALITY OBLIGATIONS

2.1 Non-Disclosure Obligation. Employee agrees that, during the Employment Period and for the applicable period set forth in Section 2.3 following the termination of Employee's employment, Employee shall not, directly or indirectly, use, disclose, publish, disseminate, or otherwise make available to any person or entity any Confidential Information, except: (a) as necessary in the faithful and diligent performance of Employee's authorized duties for the Company; or (b) as expressly authorized in advance and in writing by a duly authorized officer of the Company. Employee shall not use Confidential Information for Employee's own personal benefit or for the benefit of any third party.

2.2 Scope of Obligation. Employee shall exercise reasonable care to prevent the unauthorized disclosure, publication, or use of Confidential Information. At a minimum, Employee shall use the same degree of care that Employee uses to protect Employee's own confidential and proprietary information, but in no event less than a reasonable degree of care. Employee acknowledges that all Confidential Information is and shall remain the sole and exclusive property of the Company (or, where applicable, the property of a third party that has entrusted such information to the Company) and that Employee has no right, title, or interest in or to any Confidential Information except as expressly provided herein.

2.3 Duration of Confidentiality Obligations.

(a) Trade Secrets. Employee's obligations under this Article 2 with respect to Trade Secrets shall continue for as long as the applicable information retains its status as a trade secret under applicable federal and state law, which duration may be indefinite.

(b) Non-Trade-Secret Confidential Information. Employee's obligations under this Article 2 with respect to Confidential Information that does not constitute a Trade Secret shall survive for a period of three (3) years following the date of termination of Employee's employment with the Company, regardless of the reason for such termination.

(c) Clarification. Nothing in this Section 2.3 shall be construed to limit or reduce any protections available to the Company under applicable law with respect to Trade Secrets or other proprietary 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, notebooks, memoranda, correspondence, manuals, media, devices, equipment, prototypes, models, samples, and any other materials (whether in physical or electronic form) that contain, reflect, embody, or are based upon any Confidential Information or Company Technology, together with all copies, summaries, excerpts, and derivatives thereof, regardless of the medium in which such materials are stored;

(b) permanently delete and destroy all electronic copies of Confidential Information stored on Employee's personal devices (including, without limitation, personal computers, laptops, tablets, smartphones, external storage drives, and cloud-based storage accounts), and, upon the Company's request, certify in writing that such deletion has been completed; and

(c) return to the Company all Company-owned or Company-issued devices, equipment, access badges, keys, credit cards, and other property of the Company in Employee's possession, custody, or control.

Employee acknowledges that Employee has no expectation of privacy with respect to the Company's telecommunications, information technology, or other systems, equipment, or resources, and that Employee's activities and files on such systems are subject to monitoring and review by the Company.

2.5 Third-Party Confidential Information. Employee agrees that during the Employment Period, Employee shall not improperly use or disclose any confidential, proprietary, or trade secret information belonging to any former employer or other third party. Employee shall not bring to the Company's premises, or upload to the Company's systems, any documents, files, or materials containing the confidential or proprietary information of any former employer or third party. Employee represents and warrants that Employee's performance of duties for the Company will not require Employee to use or disclose any such third-party confidential information. If at any time Employee believes that Employee's duties for the Company would require or compel Employee to use or disclose such third-party information, Employee shall promptly notify Employee's manager or the Company's Legal Department.

2.6 No Restriction on Protected Activity. Nothing in this Agreement shall be construed to restrict or limit Employee's right to:

(a) discuss wages, hours, or other terms and conditions of employment with other employees or with a labor organization, as protected under Section 7 of the National Labor Relations Act, 29 U.S.C. § 157, or any applicable state law;

(b) file a charge, complaint, or report with, or communicate or cooperate with, any federal, state, or local governmental agency or commission, including but not limited to the Equal Employment Opportunity Commission (EEOC), the National Labor Relations Board (NLRB), the Securities and Exchange Commission (SEC), the Occupational Safety and Health Administration (OSHA), or the California Department of Fair Employment and Housing (DFEH), in connection with a possible violation of any law, rule, or regulation;

(d) exercise rights under the California Labor Code, including the right to discuss working conditions; or

(e) engage in any other activity that is protected by applicable federal, state, or local law.

Employee is not required to provide prior notice to the Company before engaging in any of the foregoing protected activities, and Employee shall not be required to obtain the Company's prior authorization before engaging in any such activity. This Agreement does not limit Employee's right to receive a monetary award from a governmental agency pursuant to a whistleblower or similar program.

ARTICLE 3 — INVENTION ASSIGNMENT

3.1 Assignment of Assigned Inventions. Employee hereby irrevocably assigns to the Company, and agrees to assign to the Company, all right, title, and interest in and to all Assigned Inventions (as defined in Section 1.1), including but not limited to all intellectual property rights therein and thereto — specifically including, without limitation, all patent rights (including the right to file patent applications in any jurisdiction and all rights arising therefrom), copyrights (including the right to reproduce, distribute, display, perform, and create derivative works), trade secret rights, trademark rights, mask work rights, moral rights (to the extent waivable under applicable law), and all other rights of any kind or nature, whether now known or hereafter arising, throughout the world. This assignment is effective as of the date each Assigned Invention is conceived, created, or first reduced to practice, and no further action or consideration shall be required to vest such rights in the Company.

3.2 California Labor Code § 2870 Exclusion. Notwithstanding Section 3.1, this Agreement does not require, and shall not be construed to require, the assignment of any invention that qualifies fully under the provisions of California Labor Code § 2870. Specifically, the assignment obligation set forth in Section 3.1 does not apply to any invention that Employee developed entirely on Employee's own time without using the Company's equipment, supplies, facilities, or trade secret information, unless the invention: (a) relates, at the time of conception or reduction to practice of the invention, to the Company's business, or to the Company's actual or demonstrably anticipated research or development; or (b) results from any work performed by the Employee for the Company. The full text of California Labor Code § 2870 is reproduced in Exhibit B attached hereto. Employee acknowledges that Employee has reviewed and understands the provisions of California Labor Code § 2870, and that in any dispute regarding the applicability of Section 2870, the burden of proof shall be on the Employee claiming the benefits of its provisions, as provided in California Labor Code § 2872.

3.3 Disclosure of Inventions. Employee agrees to promptly and fully disclose to the Company, in writing, all inventions, improvements, discoveries, developments, original works of authorship, software, algorithms, ideas, and trade secrets that Employee makes, conceives, or reduces to practice, whether alone or jointly with others, during the Employment Period. Such disclosure is required regardless of whether Employee believes the invention constitutes an Assigned Invention, so that the Company may make a timely determination as to whether the invention falls within the scope of this Agreement. The Company shall treat disclosures made pursuant to this Section 3.3 as confidential to the extent permissible under applicable law. If Employee believes that a disclosed invention is not an Assigned Invention, Employee may so state at the time of disclosure, and the Company shall review the matter and advise Employee of its determination in a reasonable period of time.

3.4 Prior Inventions. Employee has identified and described on Exhibit A attached hereto all Prior Inventions, if any, that Employee made prior to commencement of employment with the Company and that Employee wishes to exclude from the scope of this Agreement. If no Prior Inventions are listed on Exhibit A, or if Employee has checked the box on Exhibit A indicating "No Prior Inventions," Employee represents and warrants that there are no such Prior Inventions. If in the course of Employee's employment with the Company, Employee incorporates into a Company product, process, or service any Prior Invention owned by Employee or in which Employee has an interest, Employee hereby grants to the Company a non-exclusive, royalty-free, fully paid-up, irrevocable, perpetual, worldwide license (with the right to sublicense through multiple tiers) to make, have made, use, sell, offer for sale, import, copy, modify, create derivative works based upon, distribute, publicly display, publicly perform, and otherwise exploit such Prior Invention as part of or in connection with such Company product, process, or service.

3.5 Works Made for Hire. Employee acknowledges and agrees that all original works of authorship that are created, conceived, or prepared by Employee, whether alone or jointly with others, within the scope of Employee's employment and that are protectable by copyright, are "works made for hire" as that term is defined in the United States Copyright Act, 17 U.S.C. § 101, and that the Company is and shall be the author and owner of such works for all purposes. To the extent that any such work is determined by a court of competent jurisdiction not to be a "work made for hire," Employee hereby irrevocably assigns to the Company all right, title, and interest in and to such work, including all copyrights therein, throughout the world. Employee hereby waives all claims to moral rights in any such works to the fullest extent permitted by applicable law.

3.6 Cooperation. Employee agrees to cooperate fully with the Company, both during and after the Employment Period, and to execute and deliver all documents, applications, declarations, oaths, assignments, and other instruments, and to take all other actions, that the Company may reasonably request in order to: (a) apply for, obtain, perfect, evidence, record, or enforce the Company's rights in any Assigned Invention in any and all countries; (b) prosecute, maintain, or defend any patent, copyright registration, trademark registration, or other intellectual property right relating to any Assigned Invention; and (c) assign, transfer, or convey to the Company or its designee(s) the full and exclusive right, title, and interest in and to any Assigned Invention. Following the termination of the Employment Period, the Company shall reimburse Employee for reasonable, documented, out-of-pocket expenses incurred by Employee in connection with such cooperation upon submission of appropriate documentation. The obligations set forth in this Section 3.6 shall survive termination of this Agreement and the Employment Period.

3.7 Power of Attorney. In the event that the Company is unable, after reasonable effort, to secure Employee's signature on any document or instrument needed to apply for, obtain, perfect, evidence, record, or enforce any patent, copyright, trademark, or other intellectual property right or protection relating to any Assigned Invention, whether by reason of Employee's physical or mental incapacity, unavailability, unwillingness, or any other reason, Employee hereby irrevocably designates and appoints the Company and each of its duly authorized officers and agents as Employee's agent and attorney-in-fact, to act for and on Employee's behalf and in Employee's stead, to execute, verify, acknowledge, deliver, and file any such document or instrument, and to perform all other lawfully permitted acts necessary to further the purposes set forth in this Article 3, with the same legal force and effect as if personally executed by Employee. Employee acknowledges and agrees that this power of attorney is coupled with an interest and is irrevocable.

ARTICLE 4 — RESTRICTIVE COVENANT PROVISIONS

4.1 No Non-Compete. This Agreement does not contain any covenant not to compete with the Company, whether during or after the Employment Period. The Company expressly acknowledges that post-employment covenants not to compete are void and unenforceable under California Business & Professions Code § 16600, which provides that "every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void." Accordingly, no provision of this Agreement shall be interpreted or construed to restrict Employee's ability to engage in any lawful profession, trade, or business following the termination of Employee's employment with the Company.

4.2 No Customer Non-Solicitation. This Agreement does not contain any covenant restricting Employee from soliciting, contacting, transacting business with, or providing services to any customer, client, prospective customer, or business partner of the Company following the termination of Employee's employment. The Company acknowledges that such restrictions are void and unenforceable under California Business & Professions Code § 16600.

4.3 Acknowledgment Regarding California Law. Employee and the Company each acknowledge and agree that California Business & Professions Code § 16600, as amended by Senate Bill 699 (adding § 16600.5, effective January 1, 2024) and Assembly Bill 1076 (adding Labor Code § 432.5, effective January 1, 2024), prohibits the inclusion of void non-compete and other restrictive covenant provisions in employment agreements entered into with California-based employees and may impose civil liability, including the recovery of attorneys' fees and costs, upon any party that attempts to enforce a void restrictive covenant provision. The Parties intend for this Agreement to comply fully with these statutory requirements and all other applicable provisions of California law.

4.4 Non-Interference with Company Employees (During Employment Period Only). During the Employment Period, Employee agrees not to actively solicit, recruit, or encourage any employee of the Company to leave the Company's employment in order to accept employment with a competitor of the Company. This provision applies only during the Employment Period and does not impose any post-employment restriction on Employee's conduct. For the avoidance of doubt, this Section 4.4 does not restrict Employee from engaging in general advertising or job postings that may be seen by Company employees, nor does it restrict Employee from providing a reference for a Company employee upon request, nor does it restrict Employee's activities following the termination of Employee's employment with the Company.

ARTICLE 5 — DEFEND TRADE SECRETS ACT — WHISTLEBLOWER IMMUNITY NOTICE

5.1 Notice of Immunity Under 18 U.S.C. § 1833(b). Pursuant to the Defend Trade Secrets Act of 2016, 18 U.S.C. § 1833(b), Employee is hereby notified that:

(a) Immunity for Confidential Disclosure to Government or in Litigation. 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.

(b) Use of Trade Secret Information in Anti-Retaliation Lawsuit. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual — (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.

Nothing in this Agreement is intended to conflict with the protections set forth in 18 U.S.C. § 1833(b), or to create liability for disclosures of trade secrets that are expressly permitted by such statute. Employee is encouraged to consult Employee's own legal counsel if Employee has questions regarding the scope of the protections described in this Article 5.

ARTICLE 6 — EMPLOYMENT RELATIONSHIP

6.1 At-Will Employment. Employee acknowledges and agrees that Employee's employment with the Company is "at will." This means that either the Company or Employee may terminate the employment relationship at any time, with or without cause, and with or without advance notice. This Agreement does not alter or modify the at-will nature of Employee's employment with the Company, and no provision of this Agreement shall be construed as creating any obligation on the part of the Company to continue Employee's employment for any specific period of time. The at-will employment relationship can only be modified by a written agreement signed by the Chief Executive Officer or the Chief People Officer of the Company that expressly states the intention to alter the at-will nature of the employment relationship.

6.2 No Obligation to Employ. Nothing in this Agreement confers upon Employee any right to continued employment with the Company, or restricts in any way the Company's right to terminate Employee's employment or to adjust Employee's compensation, benefits, duties, title, or reporting structure at any time, subject to applicable law.

6.3 Survival. The obligations of Employee under this Agreement shall survive the termination of Employee's employment with the Company, regardless of the reason for such termination and regardless of whether such termination is initiated by the Company or by Employee. Without limiting the generality of the foregoing, the provisions of Article 2 (Confidentiality Obligations), Article 3 (Invention Assignment), Article 5 (Defend Trade Secrets Act — Whistleblower Immunity Notice), and the applicable provisions of Article 4 (Restrictive Covenant Provisions) and Article 7 (Remedies) shall survive and remain in full force and effect following the termination of the Employment Period.

ARTICLE 7 — REMEDIES

7.1 Equitable Relief. Employee acknowledges and agrees that a breach or threatened breach of this Agreement may cause the Company irreparable harm for which monetary damages alone would be an inadequate remedy. Accordingly, in addition to any other remedies available to the Company at law or in equity, the Company shall be entitled to seek and obtain temporary, preliminary, and permanent injunctive relief, specific performance, or other equitable remedies from a court of competent jurisdiction, without the necessity of proving actual damages or posting a bond or other security, to the fullest extent permitted by applicable law. The pursuit of equitable relief shall not preclude the Company from simultaneously or subsequently seeking monetary damages or any other remedy to which the Company may be entitled. Employee acknowledges that the Company's remedies under this Section 7.1 are cumulative and not exclusive of any other remedies available under this Agreement, at law, or in equity.

7.2 No Waiver. The failure or delay by the Company to enforce any provision of this Agreement, or to exercise any right, power, or remedy hereunder, shall not constitute a waiver of the Company's right to enforce such provision or to exercise such right, power, or remedy at any time in the future. No waiver by the Company of any breach or default of any provision of this Agreement shall be effective unless made in writing and signed by a duly authorized representative of the Company, and no such waiver shall be construed as a waiver of any subsequent breach or default of the same or any other provision.

ARTICLE 8 — GENERAL PROVISIONS

8.1 Governing Law. This Agreement shall be governed by, construed, and enforced in accordance with the internal laws of the State of California, without regard to the principles of conflict of laws that would result in the application of the laws of any other jurisdiction. To the extent applicable, this Agreement shall also be governed by and construed in accordance with federal law, including the Defend Trade Secrets Act, 18 U.S.C. § 1836 et seq.

8.2 Forum Selection. Any legal action, suit, or proceeding arising out of, relating to, or in connection with this Agreement, or any alleged breach thereof, shall be brought exclusively in the state courts of the State of California sitting in the County of San Francisco, or in the United States District Court for the Northern District of California. Each Party hereby irrevocably consents and submits to the exclusive personal jurisdiction and venue of such courts for the purposes of any such action, suit, or proceeding. Each Party hereby waives any objection that it may now or hereafter have to the laying of venue of any such action, suit, or proceeding 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.

8.3 Entire Agreement. This Agreement, together with Exhibit A (Prior Inventions Disclosure Schedule) and Exhibit B (Notice Pursuant to California Labor Code § 2870), each of which is incorporated herein by reference, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous oral or written agreements, representations, warranties, understandings, negotiations, and discussions between the Parties relating to the same subject matter. For the avoidance of doubt, this Agreement does not supersede any separate offer letter, employment agreement, equity award agreement, or other agreement between the Company and Employee, except to the extent that any such prior agreement contains provisions relating to confidentiality, non-disclosure, invention assignment, or restrictive covenants that conflict with the provisions of this Agreement, in which case the provisions of this Agreement shall control and supersede such conflicting provisions.

8.4 Amendments. This Agreement may not be amended, supplemented, or otherwise modified except by a written instrument duly executed by both Parties. No oral modification, course of dealing, or waiver of any provision of this Agreement shall be effective to amend or modify the terms hereof.

8.5 Severability. If any provision of this Agreement, or the application of any provision to any person or circumstance, is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such invalidity, illegality, or unenforceability shall not affect the validity, legality, or enforceability of any other provision of this Agreement, and the remaining provisions shall continue in full force and effect. In the event that any provision of this Agreement is held to be invalid, illegal, or unenforceable, such provision shall be reformed, construed, and enforced to the minimum extent necessary to render it valid and enforceable, consistent with the intent of the Parties as expressed in this Agreement.

8.6 Assignment. The Company may freely assign this Agreement, and all of its rights and obligations hereunder, to any successor-in-interest (whether by merger, consolidation, acquisition of all or substantially all of the Company's assets, or otherwise) or to any affiliate of the Company, without the consent of Employee, and this Agreement shall inure to the benefit of such successor or affiliate. Employee may not assign this Agreement, or any rights or obligations hereunder, without the prior written consent of the Company, and any attempted assignment in violation of this provision shall be null and void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs, executors, administrators, legal representatives, successors, and permitted assigns.

8.7 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument. Execution and delivery of this Agreement by exchange of facsimile copies or portable document format (PDF) copies bearing the facsimile or electronic signature of a Party shall constitute a valid and binding execution and delivery of this Agreement by such Party. Electronic signatures, including those generated through Brightwater Software, Ashford Health IT, or similar electronic signature platforms, shall have the same legal force and effect as original ink signatures and shall be treated as original signatures for all purposes.

8.8 Notice. Any notice, request, demand, or other communication required or permitted to be given 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 all delivery charges prepaid; or (c) three (3) business days after deposit in the United States mail, certified mail, return receipt requested, postage prepaid, in each case addressed to the Party at the address set forth on the signature page of this Agreement, or at such other address as such Party may designate from time to time by written notice delivered in accordance with this Section 8.8.

IN WITNESS WHEREOF, the Parties have executed this Proprietary Information and Inventions Agreement as of the date(s) set forth below.

SIGNATURE PAGE

COMPANY:

LUMOS ANALYTICS INC.

By: ________

Name: [Insert Authorized Signatory Name]

Title: [Insert Title]

Date: ________

Address: [Insert Company Address]

EMPLOYEE:

________________________________________

Name: [Insert Employee Full Legal Name]

Title/Position: [Insert Title/Position]

Date: ________

Address: [Insert Employee Address]

EXHIBIT A — PRIOR INVENTIONS DISCLOSURE SCHEDULE

EXHIBIT A PRIOR INVENTIONS DISCLOSURE SCHEDULE

Instructions to Employee: In accordance with Section 3.4 of the Proprietary Information and Inventions Agreement (the "Agreement") to which this Exhibit A is attached, please list below all inventions, original works of authorship, developments, improvements, and trade secrets that: (a) were made, conceived, or first reduced to practice by you prior to the commencement of your employment with Lumos Analytics Inc.; and (b) you wish to exclude from the scope of the invention-assignment provisions contained in Article 3 of the Agreement. Please provide a brief description of each such Prior Invention, the approximate date of invention, and any applicable identifying number (e.g., patent number, patent application number, or copyright registration number). If additional space is needed, you may attach supplemental pages clearly labeled as "Exhibit A — Supplemental Page(s)" and signed and dated by you.

If you have no Prior Inventions to disclose, please check the box below.

No Prior Inventions — Employee represents and warrants that there are no Prior Inventions to disclose. Employee certifies that Employee has no inventions, original works of authorship, developments, improvements, or trade secrets made prior to employment with the Company that are relevant to or could be implicated by Employee's work for the Company.

Employee Signature: ________ Print Name: ________

Date: ________

EXHIBIT B — NOTICE PURSUANT TO CALIFORNIA LABOR CODE § 2870

EXHIBIT B NOTICE PURSUANT TO CALIFORNIA LABOR CODE § 2870

In accordance with California Labor Code § 2872, Lumos Analytics Inc. (the "Company") hereby provides the following written notification of the provisions of California Labor Code § 2870 to Employee. This notice is provided concurrently with the execution of the Proprietary Information and Inventions Agreement (the "Agreement") to which this Exhibit B is attached.

California Labor Code § 2870 — Application of Provision Providing That Employee Shall Assign or Offer to Assign Rights in Invention to Employer

(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer's equipment, supplies, facilities, or trade secret information except for those inventions that either:

(1) Relate at the time of conception or reduction to practice of the invention to the employer's business, or actual or demonstrably anticipated research or development of the employer; or

(2) Result from any work performed by the employee for the employer.

(b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.

California Labor Code § 2872 — Notification Condition of Employment Agreement

If an employment agreement entered into after January 1, 1980, contains a provision requiring the employee to assign or offer to assign any of his or her rights in any invention to his or her employer, the employer must also, at the time the agreement is made, provide a written notification to the employee that the agreement does not apply to an invention which qualifies fully under the provisions of Section 2870. In any suit or action arising thereunder, the burden of proof shall be on the employee claiming the benefits of its provisions.

Employee Acknowledgment. Employee acknowledges that Employee has received and reviewed this Exhibit B and understands the provisions of California Labor Code §§ 2870 and 2872 as set forth above. Employee further acknowledges that the invention-assignment provisions contained in Article 3 of the Agreement do not apply to any invention that qualifies fully under the provisions of California Labor Code § 2870, and that Employee bears the burden of proving entitlement to the protections of Section 2870 in any dispute regarding the same.

Employee Signature: ________ Print Name: ________

Date: ________

Document Reference: [Insert internal reference / template version number] Prepared by Calderwood & Harkness LLP for Lumos Analytics Inc. CONFIDENTIAL — FOR INTERNAL USE ONLY

No.

PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
Mid-Level and Entry-Level Employee Tier
Lumos Analytics Inc.
Effective Date: [Insert Date]
Prepared May 29, 2024 Prepared by: Devon Archer (CA Bar No. 318274) and Nadia Petrov (CA Bar No. 342891), Calderwood & Harkness LLP Template Designation: Final Execution-Ready Template — for use with mid-level (Manager, Analyst) and entry-level (Associate, Junior Engineer) California-based employees
Right-click to update Table of Contents
PREAMBLE
This Proprietary Information and Inventions Agreement (this "Agreement") is entered into as of the date set forth on the signature page below (the "Effective Date") by and between:
"Company": Lumos Analytics Inc., a Delaware corporation with its principal place of business at [Insert Company Address]; and
"Employee": [Insert Employee Full Legal Name], an individual residing in the State of California.
The Company and Employee are each referred to herein individually as a "Party" and collectively as the "Parties."
RECITALS.  WHEREAS, Employee is being employed by, or is continuing employment with, the Company in a [Insert Title/Position] capacity, and the Company and Employee desire to set forth in writing the terms and conditions governing the protection of the Company's proprietary information and intellectual property;
WHEREAS, as a condition of Employee's employment or continued employment with the Company, and in consideration of the compensation and benefits provided to Employee in connection with such employment, Employee agrees to the terms and conditions of this Agreement;
WHEREAS, the Company is engaged in the business of [Insert general description — e.g., development and provision of technology-based analytics solutions], and the Company's success depends, in substantial part, upon the protection of its Confidential Information, trade secrets, and intellectual property;
WHEREAS, the Company has a legitimate and substantial interest in protecting its Confidential Information, trade secrets, intellectual property, customer relationships, and goodwill, all of which have been developed at considerable expense and effort;
WHEREAS, Employee acknowledges receipt of this Agreement and represents that Employee has had a reasonable opportunity to review this Agreement in its entirety prior to execution, and has been advised of Employee's right to consult with legal counsel of Employee's own choosing regarding the terms and conditions contained herein; and
WHEREAS, this Agreement is intended to comply with the laws of the State of California, including but not limited to California Labor Code §§ 2870–2872, California Business & Professions Code § 16600 (as amended), and the federal Defend Trade Secrets Act, 18 U.S.C. § 1836 et seq.
NOW, THEREFORE, in consideration of the mutual promises, covenants, and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE 1 — DEFINITIONS
As used in this Agreement, the following terms shall have the meanings set forth below. Unless the context requires otherwise, words importing the singular include the plural and vice versa, and references to a "Section" or "Article" refer to sections or articles of this Agreement.
1.1 "Assigned Inventions" means all inventions, improvements, discoveries, developments, concepts, ideas, original works of authorship, formulas, processes, methods, techniques, software, algorithms, data models, designs, and trade secrets, whether or not patentable or copyrightable, that: (a) are made, conceived, developed, or reduced to practice by Employee, whether alone or jointly with others, during the Employment Period; and (b) either: (i) relate, at the time of conception or reduction to practice, to the Company's business or to the Company's actual or demonstrably anticipated research or development; (ii) result from any work performed by Employee for the Company, whether or not during regular business hours; or (iii) are developed using the Company's equipment, supplies, facilities, or Confidential Information (including Trade Secrets).
Notwithstanding the foregoing, the term "Assigned Inventions" does not include any invention that qualifies fully under the provisions of California Labor Code § 2870, the text of which is set forth in Exhibit B attached hereto and incorporated herein by reference. Employee bears the burden of establishing that any particular invention falls within the protections of California Labor Code § 2870.
1.2 "Company Technology" means all intellectual property, technology, software (in source code and object code form), algorithms, data structures, data models, machine-learning models, products, services, methodologies, processes, technical documentation, specifications, user interfaces, application programming interfaces, databases, and know-how that are owned by, developed by, or licensed to the Company, whether created before, during, or after Employee's employment with the Company, and all improvements, modifications, derivative works, and enhancements thereto.
1.3 "Confidential Information" means all non-public information, in any form or medium, that is disclosed to, learned by, or made available to Employee during the Employment Period, or that Employee obtains or has access to by reason of Employee's employment with the Company, and that relates to the Company's business, operations, products, services, customers, vendors, partners, finances, or technology. Without limiting the generality of the foregoing, Confidential Information includes, but is not limited to:
(a) customer and prospective customer lists, customer data, customer identities, and information regarding customer preferences, needs, and purchasing patterns;
(b) pricing strategies, fee structures, discount schedules, and billing information;
(c) financial data, revenue figures, projections, budgets, and business plans;
(d) product roadmaps, development timelines, product specifications, and plans for future products or services;
(e) marketing strategies, advertising plans, market research, and competitive analyses;
(f) employee information, including compensation data, organizational charts, and staffing plans;
(g) source code, object code, algorithms, software architectures, data models, machine-learning training data, and technical specifications;
(h) vendor and supplier information, contract terms, and procurement strategies; and
(i) any other information designated by the Company as confidential or proprietary, or that a reasonable person would understand to be confidential given the nature of the information and the circumstances of disclosure.
The definition of Confidential Information set forth in this Section 1.3 is intended to be a streamlined and accessible summary appropriate for mid-level and entry-level positions within the Company and is not intended to be exhaustive.
Exclusions. Notwithstanding the foregoing, Confidential Information does not include information that:
(a) is or becomes generally available to the public through no act or omission of Employee that constitutes a breach of this Agreement;
(b) was known to Employee, without any obligation of confidentiality, prior to receipt of such information from the Company, as demonstrated by competent written records;
(c) is received by Employee from a third party who is not, to Employee's knowledge, subject to any obligation of confidentiality to the Company with respect to such information and who is not otherwise prohibited from disclosing such information; or
(d) is independently developed by Employee without reference to or use of any Confidential Information, as demonstrated by competent written records.
The burden of establishing that any of the foregoing exclusions applies shall rest with the Party seeking to invoke such exclusion. A specific item of information shall not be deemed to fall within an exclusion merely because it is embraced by more general information that is publicly available or that is in Employee's possession on a non-confidential basis.
1.4 "Trade Secret(s)" means information, including a formula, pattern, compilation, program, device, method, technique, or process, that derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use, and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy, as defined under the California Uniform Trade Secrets Act, California Civil Code § 3426 et seq., and the federal Defend Trade Secrets Act, 18 U.S.C. § 1836 et seq.
1.5 "Prior Inventions" means all inventions, original works of authorship, developments, improvements, and trade secrets that were made, conceived, or first reduced to practice by Employee prior to the commencement of Employee's employment with the Company, whether made individually or jointly with others, as identified and described by Employee in Exhibit A attached hereto. Prior Inventions are excluded from the scope of this Agreement's invention-assignment provisions to the extent, and only to the extent, they are properly listed in Exhibit A.
1.6 "Employment Period" means the period beginning on Employee's first date of employment with the Company and ending on the date of termination of Employee's employment with the Company for any reason, whether voluntary or involuntary, with or without cause.
ARTICLE 2 — CONFIDENTIALITY OBLIGATIONS
2.1 Non-Disclosure Obligation. Employee agrees that, during the Employment Period and for the applicable period set forth in Section 2.3 following the termination of Employee's employment, Employee shall not, directly or indirectly, use, disclose, publish, disseminate, or otherwise make available to any person or entity any Confidential Information, except: (a) as necessary in the faithful and diligent performance of Employee's authorized duties for the Company; or (b) as expressly authorized in advance and in writing by a duly authorized officer of the Company. Employee shall not use Confidential Information for Employee's own personal benefit or for the benefit of any third party.
2.2 Scope of Obligation. Employee shall exercise reasonable care to prevent the unauthorized disclosure, publication, or use of Confidential Information. At a minimum, Employee shall use the same degree of care that Employee uses to protect Employee's own confidential and proprietary information, but in no event less than a reasonable degree of care. Employee acknowledges that all Confidential Information is and shall remain the sole and exclusive property of the Company (or, where applicable, the property of a third party that has entrusted such information to the Company) and that Employee has no right, title, or interest in or to any Confidential Information except as expressly provided herein.
2.3 Duration of Confidentiality Obligations.
(a) Trade Secrets. Employee's obligations under this Article 2 with respect to Trade Secrets shall continue for as long as the applicable information retains its status as a trade secret under applicable federal and state law, which duration may be indefinite.
(b) Non-Trade-Secret Confidential Information. Employee's obligations under this Article 2 with respect to Confidential Information that does not constitute a Trade Secret shall survive for a period of three (3) years following the date of termination of Employee's employment with the Company, regardless of the reason for such termination.
(c) Clarification. Nothing in this Section 2.3 shall be construed to limit or reduce any protections available to the Company under applicable law with respect to Trade Secrets or other proprietary 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, notebooks, memoranda, correspondence, manuals, media, devices, equipment, prototypes, models, samples, and any other materials (whether in physical or electronic form) that contain, reflect, embody, or are based upon any Confidential Information or Company Technology, together with all copies, summaries, excerpts, and derivatives thereof, regardless of the medium in which such materials are stored;
(b) permanently delete and destroy all electronic copies of Confidential Information stored on Employee's personal devices (including, without limitation, personal computers, laptops, tablets, smartphones, external storage drives, and cloud-based storage accounts), and, upon the Company's request, certify in writing that such deletion has been completed; and
(c) return to the Company all Company-owned or Company-issued devices, equipment, access badges, keys, credit cards, and other property of the Company in Employee's possession, custody, or control.
Employee acknowledges that Employee has no expectation of privacy with respect to the Company's telecommunications, information technology, or other systems, equipment, or resources, and that Employee's activities and files on such systems are subject to monitoring and review by the Company.
2.5 Third-Party Confidential Information. Employee agrees that during the Employment Period, Employee shall not improperly use or disclose any confidential, proprietary, or trade secret information belonging to any former employer or other third party. Employee shall not bring to the Company's premises, or upload to the Company's systems, any documents, files, or materials containing the confidential or proprietary information of any former employer or third party. Employee represents and warrants that Employee's performance of duties for the Company will not require Employee to use or disclose any such third-party confidential information. If at any time Employee believes that Employee's duties for the Company would require or compel Employee to use or disclose such third-party information, Employee shall promptly notify Employee's manager or the Company's Legal Department.
2.6 No Restriction on Protected Activity. Nothing in this Agreement shall be construed to restrict or limit Employee's right to:
(a) discuss wages, hours, or other terms and conditions of employment with other employees or with a labor organization, as protected under Section 7 of the National Labor Relations Act, 29 U.S.C. § 157, or any applicable state law;
(b) file a charge, complaint, or report with, or communicate or cooperate with, any federal, state, or local governmental agency or commission, including but not limited to the Equal Employment Opportunity Commission (EEOC), the National Labor Relations Board (NLRB), the Securities and Exchange Commission (SEC), the Occupational Safety and Health Administration (OSHA), or the California Department of Fair Employment and Housing (DFEH), in connection with a possible violation of any law, rule, or regulation;
(c) provide truthful testimony or information in any governmental investigation, proceeding, or hearing;
(d) exercise rights under the California Labor Code, including the right to discuss working conditions; or
(e) engage in any other activity that is protected by applicable federal, state, or local law.
Employee is not required to provide prior notice to the Company before engaging in any of the foregoing protected activities, and Employee shall not be required to obtain the Company's prior authorization before engaging in any such activity. This Agreement does not limit Employee's right to receive a monetary award from a governmental agency pursuant to a whistleblower or similar program.
ARTICLE 3 — INVENTION ASSIGNMENT
3.1 Assignment of Assigned Inventions. Employee hereby irrevocably assigns to the Company, and agrees to assign to the Company, all right, title, and interest in and to all Assigned Inventions (as defined in Section 1.1), including but not limited to all intellectual property rights therein and thereto — specifically including, without limitation, all patent rights (including the right to file patent applications in any jurisdiction and all rights arising therefrom), copyrights (including the right to reproduce, distribute, display, perform, and create derivative works), trade secret rights, trademark rights, mask work rights, moral rights (to the extent waivable under applicable law), and all other rights of any kind or nature, whether now known or hereafter arising, throughout the world. This assignment is effective as of the date each Assigned Invention is conceived, created, or first reduced to practice, and no further action or consideration shall be required to vest such rights in the Company.
3.2 California Labor Code § 2870 Exclusion. Notwithstanding Section 3.1, this Agreement does not require, and shall not be construed to require, the assignment of any invention that qualifies fully under the provisions of California Labor Code § 2870. Specifically, the assignment obligation set forth in Section 3.1 does not apply to any invention that Employee developed entirely on Employee's own time without using the Company's equipment, supplies, facilities, or trade secret information, unless the invention: (a) relates, at the time of conception or reduction to practice of the invention, to the Company's business, or to the Company's actual or demonstrably anticipated research or development; or (b) results from any work performed by the Employee for the Company. The full text of California Labor Code § 2870 is reproduced in Exhibit B attached hereto. Employee acknowledges that Employee has reviewed and understands the provisions of California Labor Code § 2870, and that in any dispute regarding the applicability of Section 2870, the burden of proof shall be on the Employee claiming the benefits of its provisions, as provided in California Labor Code § 2872.
3.3 Disclosure of Inventions. Employee agrees to promptly and fully disclose to the Company, in writing, all inventions, improvements, discoveries, developments, original works of authorship, software, algorithms, ideas, and trade secrets that Employee makes, conceives, or reduces to practice, whether alone or jointly with others, during the Employment Period. Such disclosure is required regardless of whether Employee believes the invention constitutes an Assigned Invention, so that the Company may make a timely determination as to whether the invention falls within the scope of this Agreement. The Company shall treat disclosures made pursuant to this Section 3.3 as confidential to the extent permissible under applicable law. If Employee believes that a disclosed invention is not an Assigned Invention, Employee may so state at the time of disclosure, and the Company shall review the matter and advise Employee of its determination in a reasonable period of time.
3.4 Prior Inventions. Employee has identified and described on Exhibit A attached hereto all Prior Inventions, if any, that Employee made prior to commencement of employment with the Company and that Employee wishes to exclude from the scope of this Agreement. If no Prior Inventions are listed on Exhibit A, or if Employee has checked the box on Exhibit A indicating "No Prior Inventions," Employee represents and warrants that there are no such Prior Inventions. If in the course of Employee's employment with the Company, Employee incorporates into a Company product, process, or service any Prior Invention owned by Employee or in which Employee has an interest, Employee hereby grants to the Company a non-exclusive, royalty-free, fully paid-up, irrevocable, perpetual, worldwide license (with the right to sublicense through multiple tiers) to make, have made, use, sell, offer for sale, import, copy, modify, create derivative works based upon, distribute, publicly display, publicly perform, and otherwise exploit such Prior Invention as part of or in connection with such Company product, process, or service.
3.5 Works Made for Hire. Employee acknowledges and agrees that all original works of authorship that are created, conceived, or prepared by Employee, whether alone or jointly with others, within the scope of Employee's employment and that are protectable by copyright, are "works made for hire" as that term is defined in the United States Copyright Act, 17 U.S.C. § 101, and that the Company is and shall be the author and owner of such works for all purposes. To the extent that any such work is determined by a court of competent jurisdiction not to be a "work made for hire," Employee hereby irrevocably assigns to the Company all right, title, and interest in and to such work, including all copyrights therein, throughout the world. Employee hereby waives all claims to moral rights in any such works to the fullest extent permitted by applicable law.
3.6 Cooperation. Employee agrees to cooperate fully with the Company, both during and after the Employment Period, and to execute and deliver all documents, applications, declarations, oaths, assignments, and other instruments, and to take all other actions, that the Company may reasonably request in order to: (a) apply for, obtain, perfect, evidence, record, or enforce the Company's rights in any Assigned Invention in any and all countries; (b) prosecute, maintain, or defend any patent, copyright registration, trademark registration, or other intellectual property right relating to any Assigned Invention; and (c) assign, transfer, or convey to the Company or its designee(s) the full and exclusive right, title, and interest in and to any Assigned Invention. Following the termination of the Employment Period, the Company shall reimburse Employee for reasonable, documented, out-of-pocket expenses incurred by Employee in connection with such cooperation upon submission of appropriate documentation. The obligations set forth in this Section 3.6 shall survive termination of this Agreement and the Employment Period.
3.7 Power of Attorney. In the event that the Company is unable, after reasonable effort, to secure Employee's signature on any document or instrument needed to apply for, obtain, perfect, evidence, record, or enforce any patent, copyright, trademark, or other intellectual property right or protection relating to any Assigned Invention, whether by reason of Employee's physical or mental incapacity, unavailability, unwillingness, or any other reason, Employee hereby irrevocably designates and appoints the Company and each of its duly authorized officers and agents as Employee's agent and attorney-in-fact, to act for and on Employee's behalf and in Employee's stead, to execute, verify, acknowledge, deliver, and file any such document or instrument, and to perform all other lawfully permitted acts necessary to further the purposes set forth in this Article 3, with the same legal force and effect as if personally executed by Employee. Employee acknowledges and agrees that this power of attorney is coupled with an interest and is irrevocable.
ARTICLE 4 — RESTRICTIVE COVENANT PROVISIONS
4.1 No Non-Compete. This Agreement does not contain any covenant not to compete with the Company, whether during or after the Employment Period. The Company expressly acknowledges that post-employment covenants not to compete are void and unenforceable under California Business & Professions Code § 16600, which provides that "every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void." Accordingly, no provision of this Agreement shall be interpreted or construed to restrict Employee's ability to engage in any lawful profession, trade, or business following the termination of Employee's employment with the Company.
4.2 No Customer Non-Solicitation. This Agreement does not contain any covenant restricting Employee from soliciting, contacting, transacting business with, or providing services to any customer, client, prospective customer, or business partner of the Company following the termination of Employee's employment. The Company acknowledges that such restrictions are void and unenforceable under California Business & Professions Code § 16600.
4.3 Acknowledgment Regarding California Law. Employee and the Company each acknowledge and agree that California Business & Professions Code § 16600, as amended by Senate Bill 699 (adding § 16600.5, effective January 1, 2024) and Assembly Bill 1076 (adding Labor Code § 432.5, effective January 1, 2024), prohibits the inclusion of void non-compete and other restrictive covenant provisions in employment agreements entered into with California-based employees and may impose civil liability, including the recovery of attorneys' fees and costs, upon any party that attempts to enforce a void restrictive covenant provision. The Parties intend for this Agreement to comply fully with these statutory requirements and all other applicable provisions of California law.
4.4 Non-Interference with Company Employees (During Employment Period Only). During the Employment Period, Employee agrees not to actively solicit, recruit, or encourage any employee of the Company to leave the Company's employment in order to accept employment with a competitor of the Company. This provision applies only during the Employment Period and does not impose any post-employment restriction on Employee's conduct. For the avoidance of doubt, this Section 4.4 does not restrict Employee from engaging in general advertising or job postings that may be seen by Company employees, nor does it restrict Employee from providing a reference for a Company employee upon request, nor does it restrict Employee's activities following the termination of Employee's employment with the Company.
ARTICLE 5 — DEFEND TRADE SECRETS ACT — WHISTLEBLOWER IMMUNITY NOTICE
5.1 Notice of Immunity Under 18 U.S.C. § 1833(b). Pursuant to the Defend Trade Secrets Act of 2016, 18 U.S.C. § 1833(b), Employee is hereby notified that:
(a) Immunity for Confidential Disclosure to Government or in Litigation. 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.
(b) Use of Trade Secret Information in Anti-Retaliation Lawsuit. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual — (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.
Nothing in this Agreement is intended to conflict with the protections set forth in 18 U.S.C. § 1833(b), or to create liability for disclosures of trade secrets that are expressly permitted by such statute. Employee is encouraged to consult Employee's own legal counsel if Employee has questions regarding the scope of the protections described in this Article 5.
ARTICLE 6 — EMPLOYMENT RELATIONSHIP
6.1 At-Will Employment. Employee acknowledges and agrees that Employee's employment with the Company is "at will." This means that either the Company or Employee may terminate the employment relationship at any time, with or without cause, and with or without advance notice. This Agreement does not alter or modify the at-will nature of Employee's employment with the Company, and no provision of this Agreement shall be construed as creating any obligation on the part of the Company to continue Employee's employment for any specific period of time. The at-will employment relationship can only be modified by a written agreement signed by the Chief Executive Officer or the Chief People Officer of the Company that expressly states the intention to alter the at-will nature of the employment relationship.
6.2 No Obligation to Employ. Nothing in this Agreement confers upon Employee any right to continued employment with the Company, or restricts in any way the Company's right to terminate Employee's employment or to adjust Employee's compensation, benefits, duties, title, or reporting structure at any time, subject to applicable law.
6.3 Survival. The obligations of Employee under this Agreement shall survive the termination of Employee's employment with the Company, regardless of the reason for such termination and regardless of whether such termination is initiated by the Company or by Employee. Without limiting the generality of the foregoing, the provisions of Article 2 (Confidentiality Obligations), Article 3 (Invention Assignment), Article 5 (Defend Trade Secrets Act — Whistleblower Immunity Notice), and the applicable provisions of Article 4 (Restrictive Covenant Provisions) and Article 7 (Remedies) shall survive and remain in full force and effect following the termination of the Employment Period.
ARTICLE 7 — REMEDIES
7.1 Equitable Relief. Employee acknowledges and agrees that a breach or threatened breach of this Agreement may cause the Company irreparable harm for which monetary damages alone would be an inadequate remedy. Accordingly, in addition to any other remedies available to the Company at law or in equity, the Company shall be entitled to seek and obtain temporary, preliminary, and permanent injunctive relief, specific performance, or other equitable remedies from a court of competent jurisdiction, without the necessity of proving actual damages or posting a bond or other security, to the fullest extent permitted by applicable law. The pursuit of equitable relief shall not preclude the Company from simultaneously or subsequently seeking monetary damages or any other remedy to which the Company may be entitled. Employee acknowledges that the Company's remedies under this Section 7.1 are cumulative and not exclusive of any other remedies available under this Agreement, at law, or in equity.
7.2 No Waiver. The failure or delay by the Company to enforce any provision of this Agreement, or to exercise any right, power, or remedy hereunder, shall not constitute a waiver of the Company's right to enforce such provision or to exercise such right, power, or remedy at any time in the future. No waiver by the Company of any breach or default of any provision of this Agreement shall be effective unless made in writing and signed by a duly authorized representative of the Company, and no such waiver shall be construed as a waiver of any subsequent breach or default of the same or any other provision.
ARTICLE 8 — GENERAL PROVISIONS
8.1 Governing Law. This Agreement shall be governed by, construed, and enforced in accordance with the internal laws of the State of California, without regard to the principles of conflict of laws that would result in the application of the laws of any other jurisdiction. To the extent applicable, this Agreement shall also be governed by and construed in accordance with federal law, including the Defend Trade Secrets Act, 18 U.S.C. § 1836 et seq.
8.2 Forum Selection. Any legal action, suit, or proceeding arising out of, relating to, or in connection with this Agreement, or any alleged breach thereof, shall be brought exclusively in the state courts of the State of California sitting in the County of San Francisco, or in the United States District Court for the Northern District of California. Each Party hereby irrevocably consents and submits to the exclusive personal jurisdiction and venue of such courts for the purposes of any such action, suit, or proceeding. Each Party hereby waives any objection that it may now or hereafter have to the laying of venue of any such action, suit, or proceeding 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.
8.3 Entire Agreement. This Agreement, together with Exhibit A (Prior Inventions Disclosure Schedule) and Exhibit B (Notice Pursuant to California Labor Code § 2870), each of which is incorporated herein by reference, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous oral or written agreements, representations, warranties, understandings, negotiations, and discussions between the Parties relating to the same subject matter. For the avoidance of doubt, this Agreement does not supersede any separate offer letter, employment agreement, equity award agreement, or other agreement between the Company and Employee, except to the extent that any such prior agreement contains provisions relating to confidentiality, non-disclosure, invention assignment, or restrictive covenants that conflict with the provisions of this Agreement, in which case the provisions of this Agreement shall control and supersede such conflicting provisions.
8.4 Amendments. This Agreement may not be amended, supplemented, or otherwise modified except by a written instrument duly executed by both Parties. No oral modification, course of dealing, or waiver of any provision of this Agreement shall be effective to amend or modify the terms hereof.
8.5 Severability. If any provision of this Agreement, or the application of any provision to any person or circumstance, is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such invalidity, illegality, or unenforceability shall not affect the validity, legality, or enforceability of any other provision of this Agreement, and the remaining provisions shall continue in full force and effect. In the event that any provision of this Agreement is held to be invalid, illegal, or unenforceable, such provision shall be reformed, construed, and enforced to the minimum extent necessary to render it valid and enforceable, consistent with the intent of the Parties as expressed in this Agreement.
8.6 Assignment. The Company may freely assign this Agreement, and all of its rights and obligations hereunder, to any successor-in-interest (whether by merger, consolidation, acquisition of all or substantially all of the Company's assets, or otherwise) or to any affiliate of the Company, without the consent of Employee, and this Agreement shall inure to the benefit of such successor or affiliate. Employee may not assign this Agreement, or any rights or obligations hereunder, without the prior written consent of the Company, and any attempted assignment in violation of this provision shall be null and void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs, executors, administrators, legal representatives, successors, and permitted assigns.
8.7 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument. Execution and delivery of this Agreement by exchange of facsimile copies or portable document format (PDF) copies bearing the facsimile or electronic signature of a Party shall constitute a valid and binding execution and delivery of this Agreement by such Party. Electronic signatures, including those generated through Brightwater Software, Ashford Health IT, or similar electronic signature platforms, shall have the same legal force and effect as original ink signatures and shall be treated as original signatures for all purposes.
8.8 Notice. Any notice, request, demand, or other communication required or permitted to be given 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 all delivery charges prepaid; or (c) three (3) business days after deposit in the United States mail, certified mail, return receipt requested, postage prepaid, in each case addressed to the Party at the address set forth on the signature page of this Agreement, or at such other address as such Party may designate from time to time by written notice delivered in accordance with this Section 8.8.
IN WITNESS WHEREOF, the Parties have executed this Proprietary Information and Inventions Agreement as of the date(s) set forth below.
SIGNATURE PAGE
COMPANY:
LUMOS ANALYTICS INC.
By: ________
Name: [Insert Authorized Signatory Name]
Title: [Insert Title]
Date: ________
Address: [Insert Company Address]
EMPLOYEE:
________________________________________
Name: [Insert Employee Full Legal Name]
Title/Position: [Insert Title/Position]
Date: ________
Address: [Insert Employee Address]
EXHIBIT A — PRIOR INVENTIONS DISCLOSURE SCHEDULE
EXHIBIT A PRIOR INVENTIONS DISCLOSURE SCHEDULE
Instructions to Employee: In accordance with Section 3.4 of the Proprietary Information and Inventions Agreement (the "Agreement") to which this Exhibit A is attached, please list below all inventions, original works of authorship, developments, improvements, and trade secrets that: (a) were made, conceived, or first reduced to practice by you prior to the commencement of your employment with Lumos Analytics Inc.; and (b) you wish to exclude from the scope of the invention-assignment provisions contained in Article 3 of the Agreement. Please provide a brief description of each such Prior Invention, the approximate date of invention, and any applicable identifying number (e.g., patent number, patent application number, or copyright registration number). If additional space is needed, you may attach supplemental pages clearly labeled as "Exhibit A — Supplemental Page(s)" and signed and dated by you.
If you have no Prior Inventions to disclose, please check the box below.
No Prior Inventions — Employee represents and warrants that there are no Prior Inventions to disclose. Employee certifies that Employee has no inventions, original works of authorship, developments, improvements, or trade secrets made prior to employment with the Company that are relevant to or could be implicated by Employee's work for the Company.
Employee Signature: ________ Print Name: ________
Date: ________
EXHIBIT B — NOTICE PURSUANT TO CALIFORNIA LABOR CODE § 2870
EXHIBIT B NOTICE PURSUANT TO CALIFORNIA LABOR CODE § 2870
In accordance with California Labor Code § 2872, Lumos Analytics Inc. (the "Company") hereby provides the following written notification of the provisions of California Labor Code § 2870 to Employee. This notice is provided concurrently with the execution of the Proprietary Information and Inventions Agreement (the "Agreement") to which this Exhibit B is attached.
California Labor Code § 2870 — Application of Provision Providing That Employee Shall Assign or Offer to Assign Rights in Invention to Employer
(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer's equipment, supplies, facilities, or trade secret information except for those inventions that either:
(1) Relate at the time of conception or reduction to practice of the invention to the employer's business, or actual or demonstrably anticipated research or development of the employer; or
(2) Result from any work performed by the employee for the employer.
(b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.
California Labor Code § 2872 — Notification Condition of Employment Agreement
If an employment agreement entered into after January 1, 1980, contains a provision requiring the employee to assign or offer to assign any of his or her rights in any invention to his or her employer, the employer must also, at the time the agreement is made, provide a written notification to the employee that the agreement does not apply to an invention which qualifies fully under the provisions of Section 2870. In any suit or action arising thereunder, the burden of proof shall be on the employee claiming the benefits of its provisions.
Employee Acknowledgment. Employee acknowledges that Employee has received and reviewed this Exhibit B and understands the provisions of California Labor Code §§ 2870 and 2872 as set forth above. Employee further acknowledges that the invention-assignment provisions contained in Article 3 of the Agreement do not apply to any invention that qualifies fully under the provisions of California Labor Code § 2870, and that Employee bears the burden of proving entitlement to the protections of Section 2870 in any dispute regarding the same.
Employee Signature: ________ Print Name: ________
Date: ________
Document Reference: [Insert internal reference / template version number] Prepared by Calderwood & Harkness LLP for Lumos Analytics Inc. CONFIDENTIAL — FOR INTERNAL USE ONLY
No. | Title of Prior Invention | Date of Invention (Approximate) | Brief Description | Identifying Number (Patent No., Application No., or "N/A")
1.
2.
3.
4.
5.

PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT

PREAMBLE

SIGNATURE PAGE

COMPANY:

LUMOS ANALYTICS INC.

EMPLOYEE:

EXHIBIT A PRIOR INVENTIONS DISCLOSURE SCHEDULE

Record

Parties

Dates

Amounts