STANDARD TERMS AND CONDITIONS OF SALE
Evolutia
Blockchain Finance, LLC
CONFIDENTIAL INFORMATION AND INVENTION ASSIGNMENT AGREEMENT
As a condition of becoming retained (or
Consultant’s consulting relationship being continued) by Evolutia Blockchain Finance,
LLC, a Delaware corporation, or
any of its current or future subsidiaries, affiliates, successors or assigns
(collectively, the “”), and in consideration of Consultant’s
consulting relationship with the Company and receipt of the compensation now
and hereafter paid by the Company, the receipt of Confidential Information (as
defined below) while associated with the Company, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Consultant hereby agrees to the following:
1.
Relationship
This Confidential Information and Invention Assignment Agreement
(this “”) will apply to Consultant’s consulting relationship
with the Company. If that relationship
ends and the Company, within one (1) year thereafter, either employs Consultant
or re-engages Consultant as a consultant, this Agreement will also apply to
such later employment or consulting relationship, unless the parties hereto
otherwise agree in writing. Any
employment or consulting relationship between the parties hereto, whether
commenced prior to, upon or after the date of this Agreement, is referred to
herein as the “.”
2.
The Company and Consultant
acknowledge that Consultant may have performed work, activities, services or
made efforts on behalf of or for the benefit of the Company, or related to the
current or prospective business of the Company in anticipation of Consultant’s
involvement with the Company, that would have been “Services” if performed
during the term of this Agreement, for a period of time prior to the Effective
Date of this Agreement (the “”). Accordingly, if and to the extent that,
during the Prior Consulting Period: (i) Consultant received access to any
information from or on behalf of the Company that would have been Confidential
Information (as defined below) if Consultant received access to such
information during the term of this Agreement; or (ii) Consultant (a)
conceived, created, authored, invented, developed or reduced to practice any
item (including any intellectual property rights with respect thereto) on
behalf of or for the benefit of the Company, or related to the current or
prospective business of the Company in anticipation of Consultant’s involvement
with the Company, that would have been an Invention (as defined below) if
conceived, created, authored, invented, developed or reduced to practice during
the term of this Agreement; or (b) incorporated into any such item any
pre-existing invention, improvement, development, concept, discovery or other
proprietary information that would have been a Prior Invention (as defined
below) if incorporated into such item during the term of this Agreement; then
any such information shall be deemed “Confidential Information” hereunder and
any such item shall be deemed an “Invention” or “Prior Invention” hereunder,
and this Agreement shall apply to such activities, information or item as if
disclosed, conceived, created, authored, invented, developed or reduced to
practice during the term of this Agreement.
3.
Consulting Agreement. Consultant has entered into an agreement with the Company on or about the date hereof to provide various services to the Company (the “Consulting Agreement”). The services rendered by Consultant under the Consulting Agreement are referred to herein as the “Services” and this Agreement is intended to supplement and form an integral part of the Consulting Agreement.
4.
Confidential
Information
(a)
Protection of Information. Consultant understands that
during the Relationship, the Company intends to provide Consultant with certain
information, including Confidential Information (as defined below), without
which Consultant would not be able to perform Consultant’s duties to the
Company. At all times during the term of
the Relationship and thereafter, Consultant shall hold in strictest confidence,
and not use, except for the benefit of the Company to the extent necessary to
perform the Services, and not disclose to any person, firm, corporation or
other entity, without written authorization from the Company in each instance,
any Confidential Information that Consultant obtains from the Company or
otherwise obtains, accesses or creates in connection with, or as a result of,
the Services during the term of the Relationship, whether or not during working
hours, until such Confidential Information becomes publicly and widely known
and made generally available through no wrongful act of Consultant or of others
who were under confidentiality obligations as to the item or items
involved. Consultant shall not make
copies of such Confidential Information except as authorized by the Company or
in the ordinary course of the provision of Services.
(b)
Consultant understands that “” means any
and all information and physical manifestations thereof not generally known or
available outside the Company and information and physical manifestations
thereof entrusted to the Company in confidence by third parties, whether or not
such information is patentable, copyrightable or otherwise legally
protectable. Confidential Information
includes, without limitation: (i)
Company Inventions (as defined below); and (ii) technical data, trade secrets,
know-how, research, product or service ideas or plans, software codes and
designs, algorithms, developments, inventions, patent applications, laboratory
notebooks, processes, formulas, techniques, biological materials, mask works,
engineering designs and drawings, hardware configuration information,
agreements with third parties, lists of, or information relating to, employees
and consultants of the Company (including, but not limited to, the names,
contact information, jobs, compensation, and expertise of such employees and
consultants), lists of, or information relating to, suppliers and customers
(including, but not limited to, customers of the Company on whom Consultant
called or with whom Consultant became acquainted during the Relationship),
price lists, pricing methodologies, cost data, market share data, marketing
plans, licenses, contract information, business plans, financial forecasts,
historical financial data, budgets or other business information disclosed to
Consultant by the Company either directly or indirectly, whether in writing,
electronically, orally, or by observation.
(c)
Consultant’s agreements in this Section 4 are
intended to be for the benefit of the Company and any third party that has
entrusted information or physical material to the Company in confidence. During the term of the Relationship and
thereafter, Consultant will not improperly use or disclose to the Company any
confidential, proprietary or secret information of Consultant’s former clients
or any other person, and Consultant will not bring any such information onto
the Company’s property or place of business.
(d)
Other Rights.
This Agreement is intended to supplement, and not to supersede, any
rights the Company may have in law or equity with respect to the protection of
trade secrets or confidential or proprietary information.
(e)
Notwithstanding the foregoing, the U.S.
Defend Trade Secrets Act of 2016 (“”) provides that 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 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 (iii) in a complaint or other
document filed in a lawsuit or other proceeding, if such filing is made under
seal. In addition, DTSA provides that 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.
5.
Ownership of Inventions
Inventions Retained and Licensed.Exhibit APrior InventionsExhibit AExhibit A
(b)
If in the course of the Relationship,
Consultant uses or incorporates into any of the Company’s products, services,
processes or machines any Invention not assigned to the Company pursuant to
Section 5(d) of
this Agreement in which Consultant has an interest, Consultant will promptly so
inform the Company in writing. Whether
or not Consultant gives such notice, Consultant hereby irrevocably grants to
the Company a nonexclusive, fully paid-up, royalty-free, assumable, perpetual,
worldwide license, with right to transfer and to sublicense, to practice and
exploit such Invention and to make, have made, copy, modify, make derivative works
of, use, sell, import, and otherwise distribute such Invention under all
applicable intellectual property laws without restriction of any kind.
(c)
Consultant understands that “” means discoveries,
developments, concepts, designs, ideas, know how, modifications, improvements,
derivative works, inventions, trade secrets and/or original works of
authorship, whether or not patentable, copyrightable or otherwise legally
protectable. Consultant understands this
includes, but is not limited to, any new product, machine, article of
manufacture, biological material, method, procedure, process, technique, use,
equipment, device, apparatus, system, compound, formulation, composition of
matter, design or configuration of any kind, or any improvement thereon. Consultant understands that “” means any and all Inventions that Consultant or Consultant’s
personnel may solely or jointly author, discover, develop, conceive, or reduce
to practice in connection with, or as a result of, the Services performed for
the Company or otherwise in connection with the Relationship, except as
otherwise provided in Section 5(g)
below.
(d)
Consultant will promptly
make full written disclosure to the Company, will hold in trust for the sole
right and benefit of the Company, and hereby assigns to the Company, or its
designee, all of Consultant’s right, title and interest throughout the world in
and to any and all Company Inventions and all patent, copyright, trademark,
trade secret and other intellectual property rights and other proprietary
rights therein. Consultant hereby waives
and irrevocably quitclaims to the Company or its designee any and all claims,
of any nature whatsoever, that Consultant now has or may hereafter have for
infringement of any and all Company Inventions. Any assignment of Company Inventions includes
all rights of attribution, paternity, integrity, modification, disclosure and
withdrawal, and any other rights throughout the world that may be known as or
referred to as “moral rights,” “artist’s rights,” “droit moral,” or the like
(collectively, “”).
To the extent that Moral Rights cannot be assigned under applicable law,
Consultant hereby waives and agrees not to enforce any and all Moral Rights,
including, without limitation, any limitation on subsequent modification, to
the extent permitted under applicable law.
If Consultant has any rights to the Company Inventions, other than Moral
Rights, that cannot be assigned to the Company, Consultant hereby
unconditionally and irrevocably grants to the Company during the term of such
rights, an exclusive, irrevocable, perpetual, worldwide, fully paid and royalty-free
license, with rights to sublicense through multiple levels of sublicensees, to
reproduce, distribute, display, perform, prepare derivative works of and
otherwise modify, make, have made, sell, offer to sell, import, practice
methods, processes and procedures and otherwise use and exploit, such Company Inventions.
(e)
Consultant shall keep and
maintain adequate and current written records of all Company Inventions made or
conceived by Consultant or Consultant’s personnel (solely or jointly with
others) during the term of the Relationship.
The records may be in the form of notes, sketches, drawings, flow
charts, electronic data or recordings, laboratory notebooks, or any other
format. The records will be available to
and remain the sole property of the Company at all times. Consultant shall not remove such records from
the Company’s place of business or systems except as expressly permitted by
Company policy which may, from time to time, be revised at the sole election of
the Company for the purpose of furthering the Company’s business. Consultant shall deliver all such records
(including any copies thereof) to the Companyat the time of termination of the Relationship as provided for in
Section 6 and
Section 7.
(f)
Consultant shall assist the
Company, or its designee, at its expense, in every proper way in securing the
Company’s, or its designee’s,rights
in the Company Inventions and any copyrights, patents, trademarks, mask work
rights, Moral Rights, or other intellectual property rights relating thereto in
any and all countries, including the disclosure to the Company or its designee
of all pertinent information and data with respect thereto, the execution of
all applications, specifications, oaths, assignments, recordations, and all
other instruments which the Company or its designee shall deem necessary in
order to apply for, obtain, maintain and transfer such rights, or if not
transferable, waive and shall never assert such rights, and in order to assign
and convey to the Company or its designee, and any successors, assigns and
nominees the sole and exclusive right, title and interest in and to such
Company Inventions, and any copyrights, patents, mask work rights or other
intellectual property rights relating thereto.
Consultant’s obligation to execute or cause to be executed, when it is
in Consultant’s power to do so, any such instrument or papers shall continue
during and at all times after the end of the Relationship and until the
expiration of the last such intellectual property right to expire in any
country of the world. Consultant hereby
irrevocably designates and appoints the Companyand its duly authorized officers and agents as Consultant’s agent
and attorney-in-fact, to act for and in Consultant’s behalf and stead to
execute and file any such instruments and papers and to do all other lawfully
permitted acts to further the application for, prosecution, issuance,
maintenance or transfer of letters patent, copyright, mask work and other
registrations related to such Company Inventions. This power of attorney is coupled with an
interest and shall not be affected by Consultant’s subsequent incapacity.
(g)
Subject to the requirements of applicable
state law, if any, Consultant understands that the Company Inventions will not
include, and the provisions of this Agreement requiring assignment of
inventions to the Companydo not
apply to, any invention which qualifies fully for exclusion under the
provisions of applicable state law, if any, attached hereto as . In order to assist in the determination of
which inventions qualify for such exclusion, Consultant will advise the Company
promptly in writing, during and for a period of twelve (12) months immediately
following the termination of the Relationship, of all Inventions solely or
jointly conceived or developed or reduced to practice by Consultant or
Consultant’s personnel in connection with, or as a result of, the Services
performed for the Company during the period of the Relationship.
6.
Company Property;
Returning Company Documents
Consultant acknowledges that Consultant has no expectation of privacy
with respect to the Company’s telecommunications, networking or information
processing systems (including, without limitation, files, e-mail messages, and
voice messages) and that Consultant’s activity and any files or messages on or
using any of those systems may be monitored or reviewed at any time without
notice. Consultant further acknowledges
that any property situated on the Company’s premises or systems and owned by
the Company, including disks and other storage media, filing cabinets or other
work areas, is subject to inspection by Company personnel at any time with or
without notice. At the time of
termination of the Relationship, Consultant will deliver to the Company (and
will not keep in Consultant’s possession, recreate or deliver to anyone else)
any and all devices, records, data, notes, reports, proposals, lists,
correspondence, specifications, drawings, blueprints, sketches, laboratory
notebooks, materials, flow charts, equipment, other documents or property, or
reproductions of any of the aforementioned items developed by Consultant or
Consultant’s personnel pursuant to the Relationship or otherwise belonging to
the Company, its successors or assigns.
7.
Termination
Certification
In the event of the termination of the Relationship, Consultant shall
sign and deliver the “” attached hereto as ;
however, Consultant’s failure to sign and deliver the Termination Certification
shall in no way diminish Consultant’s continuing obligations under this
Agreement.
8.
Notice to Third Parties During the periods of time
during which Consultant is restricted in taking certain actions by the terms of
Section 9 of
this Agreement (the “”), Consultant shall inform any
entity or person with whom Consultant may seek to enter into a business
relationship (whether as an owner, employee, independent contractor or
otherwise) of Consultant’s contractual obligations under this Agreement. Consultant acknowledges that the Company may,
with or without prior notice to Consultant and whether during or after the term
of the Relationship, notify third parties of Consultant’s agreements and
obligations under this Agreement. Upon written
request by the Company, Consultant will respond to the Company in writing
regarding the status of Consultant’s engagement or proposed engagement with any
party during the Restriction Period.
9.
Solicitation of Employees, Consultants and Other Parties. As described
above, Consultant acknowledges that the Company’s Confidential Information
includes information relating to the Company’s employees, consultants,
customers and others, and Consultant will not use or disclose such Confidential
Information except as authorized by the Company in advance in writing. Consultant further agrees as follows:
(a)
During the term of the Relationship, and for a period of twelve (12) months immediately
following the termination of the Relationship for any reason, whether with or
without cause, Consultant shall not, directly or indirectly, solicit any of the
Company’s employees or consultants to terminate their relationship with the
Company, or attempt to solicit employees or consultants of the Company, either
for Consultant or for any other person or entity.
(b)
During the term of the
Relationship, Consultant will not influence any of the Company’s clients,
licensors, licensees or customers from purchasing Company products or services
or solicit or influence or attempt to influence any client, licensor, licensee,
customer or other person either directly or indirectly, to direct any purchase
of products and/or services to any person, firm, corporation, institution or
other entity in competition with the business of the Company.
10.
No Change to Duration of Relationship
Consultant understands and acknowledges that this Agreement does not
alter, amend or expand upon any rights Consultant may have to continue in the
consulting relationship with, or in the duration of Consultant’s consulting
relationship with, the Company under any existing agreements between the
Company and Consultant, including without limitation the Consulting Agreement,
or under applicable law.
11.
Representations and Covenants
(a)
Facilitation of Agreement. Consultant shall
execute promptly, both during and after the end of the Relationship, any proper
oath, and to verify any proper document, required to carry out the terms of
this Agreement, upon the Company’s written request to do so.
(b)
No Conflicts. Consultant
represents and warrants that Consultant’s performance of all the terms of this
Agreement does not and will not breach any agreement Consultant has entered
into, or will enter into, with any third party, including without limitation
any agreement to keep in confidence proprietary information or materials
acquired by Consultant in confidence or in trust prior to or during the Relationship. Consultant will not disclose to the Company
or use any inventions, confidential or non-public proprietary information or
material belonging to any previous client, employer or any other party. Consultant will not induce the Company to use
any inventions, confidential or non-public proprietary information, or material
belonging to any previous client, employer or any other party
Consultant further represents that
Consultant does not presently perform or intend to perform, during the term of
the Consulting Agreement, consulting or other services for, and Consultant is
not presently employed by and has no intention of being employed by, companies
whose businesses or proposed businesses in any way involve products or services
that would be competitive with the Company’s products or services, or those
products or services proposed or in development by the Company during the term
of the Consulting Agreement. If, however, Consultant decides to do so,
Consultant agrees that, in advance of accepting such employment or agreeing to
perform such services, Consultant will promptly notify the Company in writing,
specifying the organization to which Consultant proposes to render services,
and provide information sufficient to allow the Company to determine if such work
would conflict with the interests of the Company.
(c)
Consultant
certifies and acknowledges that Consultant has carefully read all of the
provisions of this Agreement, that Consultant understands and has voluntarily
accepted such provisions, and that Consultant will fully and faithfully comply
with such provisions.
12.
Electronic Delivery. Nothing herein is intended to imply a right to participate in any of the Company’s equity incentive plans, however, if Consultant does participate in such plan(s), the Company may, in its sole discretion, decide to deliver any documents related to Consultant’s participation in the Company’s equity incentive plan(s) by electronic means or to request Consultant’s consent to participate in such plan(s) by electronic means. Consultant hereby consents to receive such documents by electronic delivery and agrees, if applicable, to participate in such plan(s) through an on-line or electronic system established and maintained by the Company or a third party designated by the Company.
13.
Miscellaneous
(a)
The validity,
interpretation, construction and performance of this Agreement, and all acts
and transactions pursuant hereto and the rights and obligations of the parties
hereto shall be governed, construed and interpreted in accordance with the laws
of the state of Delaware without giving effect to principles of conflicts of
law.
(b)
Except as described in
Section 3, this
Agreement sets forth the entire agreement and understanding between the Company
and Consultant relating to its subject matter and merges all prior discussions
between the parties to this Agreement.
No amendment to this Agreement will be effective unless in writing
signed by both parties to this Agreement.
The Company shall not be deemed hereby to have waived any rights or
remedies it may have in law or equity, nor to have given any authorizations or
waived any of its rights under this Agreement, unless, and only to the extent,
it does so by a specific writing signed by a duly authorized officer of the
Company. Any subsequent change or changes in
Consultant’s duties, obligations, rights or compensation will not affect the
validity or scope of this Agreement.
(c)
This Agreement will be
binding upon Consultant’s successors and assigns, and will be for the benefit
of the Company, its successors, and its assigns.
(d)
Any notice, demand or request required or permitted
to be given under this Agreement shall be in writing and shall be deemed
sufficient when delivered personally or by overnight courier or sent by email,
or 48 hours after being deposited in the U.S. mail as certified or registered
mail with postage prepaid, addressed to the party to be notified at such
party’s address as set forth on the signature page, as subsequently modified by
written notice, or if no address is specified on the signature page, at the
most recent address set forth in the Company’s books and records.
(e)
If one or more of the
provisions in this Agreement are deemed void or unenforceable to any extent in
any context, such provisions shall nevertheless be enforced to the fullest
extent allowed by law in that and other contexts, and the validity and force of
the remainder of this Agreement shall not be affected. The Company and Consultant have attempted to
limit Consultant’s right to use, maintain and disclose the Company’s
Confidential Information, and to limit Consultant’s right to solicit employees
and customers only to the extent necessary to protect the Company from unfair
competition. Should a court of competent
jurisdiction determine that the scope of the covenants contained in
Section 9
exceeds the maximum restrictiveness such court deems reasonable and
enforceable, the parties intend that the court should reform, modify and
enforce the provision to such narrower scope as it determines to be reasonable
and enforceable under the circumstances existing at that time. In the event that any court or government
agency of competent jurisdiction determines that, notwithstanding the terms of
the Consulting Agreement specifying Consultant’s Relationship with the Company
as that of an independent contractor, Consultant’s provision of services to the
Company is not as an independent contractor but instead as an employee under
the applicable laws, then solely to the extent that such determination is
applicable, references in this Agreement to the Relationship between Consultant
and the Company shall be interpreted to include an employment relationship, and
this Agreement shall not be invalid and unenforceable but shall be read to the
fullest extent as may be valid and enforceable under the applicable laws to
carry out the intent and purpose of this Agreement.
(f)
Consultant acknowledges that violation of
this Agreement by Consultant may cause the Company irreparable harm, and
therefore Consultant agrees that the Company will be entitled to seek
extraordinary relief in court, including, but not limited to, temporary
restraining orders, preliminary injunctions and permanent injunctions without
the necessity of posting a bond or other security (or, where such a bond or security
is required, that a $1,000 bond will be adequate),in addition to and
without prejudice to any other rights or remedies that the Company may have for
a breach of this Agreement.
(g)
.
(h)
This Agreement may be
executed in any number of counterparts, each of which when so executed and
delivered shall be deemed an original, and all of which together shall
constitute one and the same agreement. Execution of a facsimile or
scanned copy will have the same force and effect as execution of an original,
and a facsimile or scanned signature will be deemed an original and valid
signature.
The parties
have executed this Confidential Information and Invention Assignment Agreement
on the respective dates set forth below, to be effective as of the Effective
Date first above written.
EXHIBIT A
TERMINATION CERTIFICATION
This is
to certify that Consultant does not have in Consultant’s possession, nor has
Consultant failed to return, any devices, records, data, notes, reports,
proposals, lists, correspondence, specifications, drawings, blueprints,
sketches, laboratory notebooks, flow charts, materials, equipment, other
documents or property, or copies or reproductions of any aforementioned items
belonging to Evolutia
Blockchain Finance, LLC, a Delaware
corporation, its subsidiaries, affiliates, successors or assigns (collectively,
the “”).
Consultant
further certifies that Consultant has complied with all the terms of the
Company’s Confidential Information and Invention Assignment Agreement (the “”)signed by Consultant, including the reporting of any Inventions
(as defined therein), conceived or made by Consultant or Consultant’s personnel
(solely or jointly with others) covered by the Confidentiality Agreement, and
Consultant acknowledges Consultant’s continuing obligations under the Confidentiality
Agreement.
Consultant
further agrees that, in compliance with the Confidentiality Agreement,
Consultant will preserve as confidential all trade secrets, confidential
knowledge, data or other proprietary information relating to products,
processes, know-how, designs, formulas, developmental or experimental work,
computer programs, data bases, other original works of authorship, customer
lists, business plans, financial information or other subject matter pertaining
to any business of the Company or any of its employees, clients, consultants or
licensees.
Consultant
further agrees that for twelve (12) months immediately following the
termination of Consultant’s Relationship with the Company, Consultant shall not
either directly or indirectly solicit any of the Company’s employees or
consultants to terminate their relationship with the Company, or attempt to
solicit employees or consultants of the Company, either for Consultant or for
any other person or entity.
Further,
Consultant agrees that Consultant shall not use any Confidential Information of
the Company to influence any of the Company’s clients or customers from
purchasing Company products or services or to solicit or influence or attempt
to influence any client, customer or other person either directly or
indirectly, to direct any purchase of products and/or services to any person,
firm, corporation, institution or other entity in competition with the business
of the Company.