[OT] Borland Legal ToolBox - Trade Secrets
From: Andrew Rybenkov (arybenkov_at_hotmail.com)
Date: 11/11/03
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Date: Tue, 11 Nov 2003 21:23:45 +0300
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COPYRIGHTS | PATENTS | TRADEMARKS | CONTRACTS | INSURANCE | ARTICLES | LAWSUITS
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Trade Secrets and Confidentiality
What is Confidential or Proprietary Information?
Why is it Important?
What is Your Role in Protecting Confidential Information?
Guidelines For Protecting Confidential Information And Trade Secrets
Standard Reciprocal Non Disclosure Agreement
Standard Addendum to Modify Other Company's Non Disclosure Agts
Unsolicited Product/Idea Submissions
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What is Confidential or Proprietary Information?
Your company develops information which it uses in its business. This information may relate to technical matters, such
as the development of a new product or service, or to non technical matters, such as marketing information. All of this
belongs to your company, and together constitutes a very valuable and important asset, much like our buildings,
fixtures, and inventory.
Examples of proprietary information (also called "trade secrets") include inventions, source code, formulas, processes,
new business ideas, customer information, marketing plans, unannounced product ship dates, sales forecasts, and interim
sales and financial results. These are just examples, of course, and your company's proprietary information includes
many more specific items than are listed here.
Proprietary information will often be in writing. But even if it is not, it still is important company property. An idea
or customer data which is "in a person's head" is just as entitled to protection from misuse or disclosure to others.
If you ever have any questions concerning what qualifies as proprietary information, or whether a particular document or
piece of information is company property, please see consult your legal advisor.
Why is it Important?
Yours is not the only business in your field. You face very stiff competition for the software you sell. If you are to
remain in business, you must protect and use all of your assets wisely, because that is what your competitors do.
Any particular item of proprietary information gives you an "edge" over your competition. But it only remains useful if
you know what it is and they don't. Therefore, it is very important that proprietary documents and data stay strictly
within your company.
What is Your Role in Protecting Confidential Information?
Studies show that most loss of proprietary data occurs not through deliberate theft or industrial espionage, but simply
because of employee carelessness. In another part of this section concerning procedures, we have described the
guidelines and procedures which are necessary for protecting your trade secrets. Your personal attention to following
these rules may make the difference. Do not create exceptions because it seems easier or more convenient at the time.
If you ever observe any violation of your company's procedures or notice anything which makes you suspect a possible
breach of security, please report it immediately to your management.
If your employment with your company terminates for any reason, remember your obligation to return all materials and
equipment. In addition, do not forget that your obligation to protect your company's proprietary information continues
after you leave.
With the cooperation of everyone in your company who works with proprietary information, you will be able to utilize
this very important asset to increase your company's success. This will benefit all of your employees.
Guidelines For Protecting Confidential Information And Trade Secrets
Company business must not be discussed off premises:
Visitors to the company should be escorted at all times. Visitors should sign in and out at the entrances, and be
escorted by a company employee while they are in the facilities. Take care not to allow access to areas which are off
limits to visitors.
Documents which might contain proprietary information should be stamped "CONFIDENTIAL." All department managers should
develop a set of written procedures describing the type of proprietary information likely to be generated within their
departments. Be familiar with these procedures and follow them carefully. Generally, any document which contains
internal product data, engineering data, or marketing information should be plainly marked with the term, COMPANY
CONFIDENTIAL. All personnel documents should be classified this way. If you have any doubt as to whether a document
should be stamped, you should stamp it. Documents which are stamped should never leave the premises, except under
specific arrangement with your supervisor. Photocopies should be limited to the number necessary for distribution. When
a working copy is no longer needed, it should be destroyed. Remember the overall objective: we want to identify all our
proprietary information and keep it within the Company.
Company equipment should not be taken from the premises without authorization. Although certain employees may find it
convenient to do some work at home, this must be done only with the specific and continuing approval of your supervisor.
It is the employee's responsibility to account for Company equipment and materials at all times.
Employee publications and speeches on technical matters should first be submitted to your supervisor for review. Certain
employees may have the opportunity to present papers or publish articles or books in their area of technical expertise.
The Company encourages this. However, in order to be sure that proprietary technical data or product plans are not
inadvertently disclosed, all such materials must be provided in advance to your supervisor for review. If there is any
disagreement concerning what should or should not be included, you are assured that the matter will be thoroughly
discussed with you and upper management.
All agreements and purchase orders that might involve use or disclosure of proprietary information should be reviewed
and approved by your department manager.
Standard Reciprocal Non Disclosure Agreement
No Nonsense Confidential Disclosure Agreement
Effective Date: _______________________,19_____
Participant (Company): ________________________
In order to protect certain confidential information which may be
disclosed between them, Borland International, Inc. ("Borland")
and the "Participant" identified above agree that:
1. The Discloser(s) of confidential information is (are):
On behalf of Borland:
___________________________________________ :Name
___________________________________________ :Title
On behalf of Participant:
___________________________________________ :Name
___________________________________________ :Title
2. The confidential information disclosed under this Agreement
is described as:
___________________________________________
___________________________________________
3. A party receiving confidential information under this
Agreement ("Recipient") shall use the confidential information
only for the purpose of:
____________________________________________
____________________________________________
____________________________________________
4. A Recipient's duty to protect confidential information
disclosed under this Agreement expires
___________________________________________.
5. A Recipient shall protect the disclosed confidential
information by using the same degree of care, but no less than a
reasonable degree of care, to prevent the unauthorized use,
dissemination or publication of the confidential information as
the Recipient uses to protect its own confidential information
of a like nature.
6. A Recipient shall have a duty to protect only that
confidential information which is (a) disclosed by the Discloser
in writing and is marked as confidential at the time of the
disclosure, or which is (b) disclosed by the Discloser in any
other manner and is identified as confidential at the time of
the disclosure and is also summarized and designated as
confidential in a written memorandum delivered to the Recipient's
representative named in paragraph 1 above within 30 days of the
disclosure.
7. This Agreement imposes no obligation upon a Recipient with
respect to confidential information which (a) was in the
Recipient's possession before receipt from the Discloser; (b) is
or becomes a matter of public knowledge through no fault of the
Recipient; (c) is rightfully received by the Recipient from a
third party without a duty of confidentiality; (d) is disclosed
by the Discloser to a third party without a duty of
confidentiality on the third party; (e) is independently
developed by the Recipient; (f) is disclosed under operation of
law; or (g) is disclosed by the Recipient with the Discloser's
prior written approval.
8. Neither party acquires any intellectual property rights under
this Agreement except the limited right to use set out in
paragraph 3 above.
9. Neither party has an obligation under this Agreement to
purchase or otherwise acquire any service or item from the other
party.
10. Neither party has an obligation under this Agreement to
commercially offer any products using or incorporating the
confidential information. The Discloser makes no representation
or warranty that any product or business plans disclosed to the
Recipient will be marketed or carried out as disclosed, or at
all. Any actions taken by the Recipient in response to the
disclosure of the confidential information shall be solely at
its risk.
11. Recipient acknowledges and agrees that the confidential
information is provided on an AS IS basis. DISCLOSER MAKES NO
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE CONFIDENTIAL
INFORMATION AND HEREBY EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. IN NO EVENT SHALL THE DISCLOSER BE LIABLE FOR ANY
DIRECT, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES IN
CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OR USE OF ANY
PORTION OF THE CONFIDENTIAL INFORMATION.
12. Nothing in this Agreement shall be construed to preclude
either party from using, marketing, licensing, and/or selling any
independently developed software or other materials that are
similar or related to the confidential information disclosed
under this Agreement.
13. Upon the Discloser's written request, the Recipient shall
return to the Discloser or destroy all written materials
containing the confidential information and the Recipient shall
deliver to the Discloser a written statement signed by the
Recipient certifying same within 5 days.
14. The parties do not intend that any agency or partnership
relationship be created between them by this Agreement.
15. All additions or modifications to this Agreement must be
made in writing and must be signed by both parties.
16. This Agreement is made under and shall be construed
according to the laws of the State of California.
BORLAND INTERNATIONAL
PARTICIPANT
___________________________________________
Authorized Signature
____________________________________________
Authorized Signature
___________________________________________
Name
____________________________________________
Name
___________________________________________
Title
____________________________________________
Title
______________________________________________
Address
______________________________________________
Standard Addendum to Modify Other Company's Non Disclosure Agts
Use the following Addendum whenever you are handed a "Non Disclosure" or "Confidentiality" Agreement under which another
company is disclosing information to your company and the other company wants you to maintain the information disclosed
in confidence. In other words, you can sign the other company's non disclosure agreement if they also agree to sign the
following Addendum (which modifies the other company's agreement). When in doubt about signing someone else's non
disclosure agreement, the following effectively neutralizes the usual harsh provisions found in most non disclosure
agreements. It is fair because all the terms of this Addendum are reciprocal (i.e., apply to both parties equally).
[Standard Addendum to be added to A Non Disclosure or Confidentiality
Agreement that Another Company Wishes You to Sign]
STANDARD ADDENDUM TO
CONFIDENTIALITY AGREEMENT
Reference is made to that certain Confidentiality Agreement dated
simultaneously herewith (the "Agreement") between Borland
International, Inc. ("Borland") and the company specified below.
Notwithstanding anything in the Agreement to the contrary, for
good and valuable consideration the receipt of which is hereby
acknowledged, the parties hereby modify and amend the Agreement
with the following provisions of this Addendum:
1. Each party warrants and represents that: (a) it has the
right to enter into this Agreement; (b) it has the right to make
the disclosures intended to be covered by this Agreement; (c) it
is making the disclosure on it's own initiative and the other
party has not solicited it.
2. Each party acknowledges that certain activities which
either of our companies may undertake may be competitive with
activities of the other. Without limiting the generality of the
foregoing, there may be projects completed in the past, currently
underway or undertaken in the future in which each company
develops technology or business plans which might be similar to
or competitive with the other. Based upon the foregoing, we each
acknowledge and agree that nothing contained herein shall be
construed as limiting any of either party's current or future
development projects or business plans. Each party and its
subsidiaries may freely use all business information, data
processing ideas and concepts, and other information disclosed
hereunder, for any purpose, including the use of such information
in the development, manufacture, marketing and maintenance of its
products and services, subject only to: (i) an obligation, for a
period of two (2) years from receipt thereof, to protect from
disclosure to third parties all items marked "Confidential" or
"Proprietary" received from or created by the other party, using
the same care and discretion the receiving party employs to
protect its own information which it does not wish to be
published, disseminated or disclosed, and (ii) the disclosing
party's trademark rights, copyrights, and patent rights (if any).
3. Any obligation relating to the exchange or protection of
information hereunder shall not apply to any information which:
a. is already previously known to the receiving party without
obligation of confidence;
b. is or becomes publicly disclosed without breach of this Letter
Agreement;
c. is rightfully received from a third party without obligation of
confidence;
d. is independently developed outside of this Letter Agreement by
the receiving party;
e. is released for disclosure by the written consent of the party
entitled to require protection.
Disclosure of information shall not be precluded if such disclosure
is:
1. in response to a valid order of a court or other governmental
body of the united States or any political subdivision thereof;
or
2. required by law; or
3. necessary to establish rights under this Agreement;
provided however, the disclosing party shall limit the disclosure of
items marked "confidential" or "Proprietary" to the extent required
for such purposes and give prior notice to the other party and use
all reasonable efforts to obtain protective orders or other forms
of confidential protection, if available.
4. Confidential or proprietary information, regardless of
how defined in the Agreement, shall be limited to the information
actually disclosed hereunder.
5. Neither party shall be obligated to institute against
any third party any action or proceeding, at law, in equity or
otherwise, to enforce any rights claimed by the other.
6. To the extent this Agreement, if at all, requires a
party to take any action by instruction, agreement or otherwise
with its employees, agents, contractors or other persons
permitted access to the information contained in the other
party's disclosure, such action shall be limited to those actions
which such party reasonably deems appropriate under the
circumstances.
7. To the extent this Agreement, if at all, requires a
party to use measures, devices or procedures equivalent or
similar to those used by the other party in securing its own
confidential information, such measures, devices or procedures
shall be those which such party reasonably deems appropriate for
protecting the confidentiality of information of the same nature.
8. Each party shall retain a copy of any tangible material
submitted to the receiving party and releases the receiving party
from liability for any loss of or damage to such material.
9. Each party agrees not to disclose the fact that it is
disclosing information to the other, except insofar as disclosing
such fact is reasonably necessary to carry out and effectuate the
terms of this Agreement.
10. The terms of this Agreement control over any
proprietary legends, or restriction, which might be written or
stamped on the materials exchanged.
11. Each party shall bear its own expenses and costs with
regard to all discussions, disclosures and activities relating
to this Agreement. If the parties agree to conduct such
discussions, disclosures or activities at secure locations
other than a work location of a party or at the office of an
parties' attorney, the cost of such off site space and
facilities will be shared equally by the parties.
12. GENERAL PROVISIONS.
Modification. This Agreement shall not be modified,
amended, canceled or in any way altered except by an instrument
in writing and signed by both of the parties hereto.
Waiver. The waiver by either party hereto of a breach
of any provision of this Agreement by the other shall not operate
or be construed as a waiver of any subsequent breach of the same
provision or any other provision of this Agreement.
Breach. A party shall not be deemed to be in breach of
any of its obligations hereunder unless and until the other party
shall have given such party written notice by certified or
registered mail, return receipt requested, specifying the nature
of such breach and such party shall have failed to cure such
breach within thirty (30) days after such party's receipt of such
written notice.
Severability. If any provision of this Agreement is
found void, invalid or unenforceable, it will not affect the
validity of the balance of this Agreement which shall remain
valid and enforceable according to its terms.
Governing Law. This Agreement shall be construed and
enforced in accordance with the laws of California applicable to
agreements wholly executed and wholly performed therein.
Choice of Forum. Any action at law or in equity
arising under this Agreement shall be filed only in the Superior
Court of the State of California for the County of Los Angeles or
the United States District Court for the Central District of
California. The parties hereby consent and submit to the
personal jurisdiction of such courts for the purposes of
litigating any such action.
Entire Agreement. This Agreement (which comprises this
Rider and portions of the attached Agreement which do not
conflict with this Rider) constitutes the entire understanding
and contract between the parties and supersedes any and all prior
and contemporaneous, oral or written representations,
communications, understandings and agreements between the parties
with respect confidence information of the respective parties.
The parties acknowledge and agree that neither of the parties is
entering into this Agreement on the basis of any representations
or promises not expressly contained herein.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date specified below.
____________________________ BORLAND INTERNATIONAL, INC.
Signature: __________________ Signature____________________
Printed Name: _______________ Printed Name:________________
Title: ______________________ Title: ______________________
Dated: ______________________ Dated: ______________________
(This is the effective
date of the Agreement)
Unsolicited Product/Idea Submissions
Purpose of this Procedure
Software developers may frequently receive communications from other software developers who want you to market,
purchase or license their product, or enter into various types of business relationships or otherwise do business with
them.
These situations can represent a legal exposure to you. Should you reject an unsolicited idea or product submission and
then later develop and market a similar product, the independent developer might claim that your product was based on
his/her design.
How should you handle these inquiries? This section is intended to answer that question.
Unsolicited Product/Idea Submission Procedure
The following procedure has been developed for use when an unsolicited product or product idea is received.
Most product and idea submissions will warrant an immediate rejection. In such cases, whatever materials you have
received should be immediately returned to the sender with a form letter set forth below entitled for internal purposes,
"Letter of Rejection."
The program and any related documentation should not be shown to any of company employees other than those necessary to
review of program and implement these procedures. The fewer the number of your people who handle the program, the
better. No unsolicited materials should be given to a programmer of your company without first consulting your legal
advisor.
Do not say, or even imply, that the product has been "shown around" your company.
If the program appears suitable for further evaluation, you should send all of the materials you receive to your
business development department or legal advisor You should consider sending a Release Form drafted by your attorney to
the sender, together with a letter stating that the product cannot be considered or reviewed without this form being
signed and sent back to your company.
If, after evaluation, the program is rejected by your company, a rejection letter should be sent to the sender (together
with the submitted materials).
Letter of Rejection w/ no evaluation
DRAFT
Letter to Accompany Return of Unsolicited Product
(Assumes No Evaluation: Immediate Rejection)
Dear __________
Your recent unsolicited letter and the accompanying information
which you sent for our evaluation has been forwarded directly to
me for reply.
Based on the non confidential disclosure of materials that we
received, we do not feel that your proposal meets our needs
at this time. Accordingly, I am returning the your materials, with
our thanks for your kind consideration.
If you have questions, please feel free to contact me.
Sincerely,
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