exv10w2



 






Exhibit 10.2




CONFIDENTIAL INFORMATION AND

ASSIGNMENT OF INVENTIONS AGREEMENT




     This Agreement is made as of the                      day of                     ,      , between OrthoLogic, Corp., a
Delaware corporation with its principal place of business in Arizona (the “Company”), and
                                         (the “Individual”).



RECITALS




     A. The Individual is engaged by the Company, or is about to be engaged by the Company, as its
                                        (the “Engagement”).



     B. The Individual has been, or will be, given access by the Company to confidential and
proprietary information of the Company.



     C. The Company has retained the Individual pursuant to the terms of                                                             .



AGREEMENTS




     IN CONSIDERATION of the foregoing and other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Individual and the Company agree as follows:



     1. Nondisclosure of Proprietary Information. The Company invents, develops,
manufactures and markets processes and products that involve experimental or inventive work. The
Company’s success depends upon the protection of these processes and products by patent or by
secrecy. The Individual has had, or may have, access to the Company’s “Proprietary Information.”
Access to this Proprietary Information is given to the Individual only if the Individual agrees to
keep that information secret as follows:



          (a) “Proprietary Information” shall mean: (i) any and all methods, inventions, improvements,
information, data or discoveries, whether or not patentable, relating to the business or operations
of the Company that are secret, proprietary, confidential or generally undisclosed, (including
information originated or provided by the Individual during the term of the Engagement) in any area
of knowledge, including information concerning trade secrets, processes, software, products,
patents, inventions, formulae, apparatus, techniques, technical data, improvements, specifications,
servicing, attributes and relative attributes relating to any of the Company’s equipment, devices,
processes or products; and (ii) if and to the extent maintained as confidential by the Company, the
identities of the Company’s customers and potential customers (“Customers”) including Customers the
Individual successfully cultivates or maintains during his Engagement using the Company’s products,
name or infrastructure; the identities of contact persons at Customers; the preferences, likes,
dislikes and technical and other requirements of Customers and contact persons with respect to
product types, pricing, sales calls, timing, sales terms, rental terms, lease terms, service plans,
and other marketing terms and techniques; the Company’s business methods, practices, strategies,
forecasts, know-how, pricing, and marketing plans and techniques; the identity of key accounts; the
identity of potential key accounts; and the identities of the Company’s key Patient Service
Representatives and employees. Notwithstanding the foregoing, Proprietary Information shall not be
deemed to include (i) information that was known to the



 









 







Individual prior to the Engagement with the Company; or (ii) information that is or hereafter
becomes publicly available or known to the general public without a breach or fault on the part of
the Individual; or (iii) information that is made available to third parties by the Company without
restrictions on disclosure; or (iv) information that is rightfully received by the Individual
subsequent to the termination of the Engagement from a third party without any obligation of
confidentiality, or (v) information that is independently developed by the Individual subsequent to
the termination of the Engagement without the use of Proprietary Information; or (vi) information
that the Individual is requested or required to disclose by a court, by governmental action or
otherwise in connection with legal proceedings (by oral question, interrogatories, requests for
information or documents, subpoena, civil investigative demand or similar process), provided the
Individual gives the Company reasonable notice of such request or requirement so that the Company
may seek a protective order, if appropriate.



          (b) The Individual acknowledges that the Company has exclusive property rights to all
Proprietary Information and the Individual hereby assigns all rights he might otherwise possess in
any Proprietary Information to the Company. Except as required in the performance of the duties of
his Engagement with the Company or as otherwise permitted pursuant to this Agreement, the
Individual will not at any time during or after the term of his Engagement, without the prior
written consent of the Company, directly or indirectly use, communicate, disclose, disseminate,
lecture upon, publish articles or otherwise put in the public domain, any Proprietary Information.



          (c) All documents, records, notebooks, notes, memoranda, data bases, and similar repositories
containing Proprietary Information made or compiled by the Individual at any time, including any
and all copies thereof, are and shall be the property of the Company, shall be held by him in trust
solely for the benefit of the Company, and shall be delivered to the Company by him on the
termination of his Engagement or at any other time upon the request of the Company.



          (d) The Individual agrees to certify in writing at or before final termination of the
Engagement that the Individual no longer has in the Individual’s possession, custody or control of
any copies of any business documents generated at or relating to the Company nor any Proprietary
Information, whether in hard copy, on a computer’s hard drive, on disks or in any other form or
media.



          (e) For a period of three (3) years following the termination of the Engagement, the
Individual agrees to provide notification, at the start of any new engagement or employment, to all
subsequent employers or contracting parties who are involved in any way in the medical products or
services industry or are otherwise competitors of the Company, of the terms and conditions of this
Agreement, along with a copy of this Agreement.



     2. Inventions.



          (a) For purposes of this Section 2, the term “Inventions” shall mean discoveries, concepts,
and ideas, whether patentable or not, including improvements, know-how, data, processes, methods,
formulae, and techniques, concerning any past, present or prospective Company activities that the
Individual makes, discovers or conceives (whether or not during the hours of his Engagement or with
the use of the Company’s facilities, materials or personnel), either solely or jointly with others
during his Engagement by the Company and, if based on Proprietary



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Information, at any time after termination of such Engagement. All Inventions shall be solely
the property of the Company and the Individual agrees to perform the requirements of this Section
with respect thereto without the payment by the Company of any royalty or any consideration other
than as provided in this Agreement.



          (b) The Individual shall maintain written notebooks in which he shall set forth on a current
basis information as to all Inventions describing in detail the procedures employed and the results
achieved as well as information as to any studies or research projects undertaken on the Company’s
behalf, whether or not in the Individual’s opinion a given research project has resulted in an
Invention. The written notebooks shall at all times be the property of the Company and shall be
surrendered to the Company upon termination of his Engagement or upon request of the Company.



          (c) The Individual shall apply, at the Company’s request and expense, for United States and
foreign letters patent upon the Inventions, either in the Individual’s name or otherwise as the
Company shall desire.



          (d) The Individual hereby assigns to the Company all of his rights to Inventions, and to
applications for United States and/or foreign letters patent and to United States and/or foreign
letters patent granted upon Inventions.



          (e) The Individual shall acknowledge and deliver promptly to the Company without charge to the
Company but at its expense such written instruments (including applications and assignments) and do
such other acts, such as giving testimony in support of the Individual’s inventorship, as may be
necessary in the reasonable opinion of the Company to obtain, maintain, extend, reissue and enforce
United States and/or foreign letters patent relating to the Inventions and to vest the entire right
and title thereto in the Company or its nominee.



          (f) The Individual’s obligation to assist the Company in obtaining and enforcing patents for
Inventions in any and all countries shall continue beyond the Engagement provided the performance
of such obligations do not unreasonably interfere with the Individual’s then regular business
activities or employment, but the Company shall compensate the Individual at a reasonable rate for
time actually spent by him at the Company’s request on such assistance. If after reasonable
efforts the Company is unable for any reason whatsoever to secure the Individual’s signature to any
lawful and necessary document required to apply for or execute any patent application with respect
to any Inventions, including renewals, extensions, continuations, division or continuations in part
thereof, the Individual hereby irrevocably designates and appoints the Company and its duly
authorized officers and agents, as his agents and attorneys-in-fact to act for and in his behalf
and instead of the Individual, to execute and file any application and to do all other lawful
permitted acts to further the prosecution and issuance of patents with the same legal force and
effect as if executed by the Individual.



          (g) As a matter of record the Individual has identified on Exhibit A attached hereto all
inventions or improvements relevant to the activity of the Company which have been made or
conceived or first reduced to practice by the Individual alone or jointly with others prior to his
Engagement by the Company, that he desires to remove from the operation of this Section 2; and the
Individual covenants that such list is complete. It is understood and agreed that such inventions
and improvements shall not be subject to the provisions of this Agreement. If there is no



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such list or if no Exhibit A is attached, the Individual represents that he has made no such
inventions and improvements at the time of signing this Agreement.



          (h) No provisions of this Section shall be deemed to limit the restrictions application to the
Individual under Section 1.



     3. Shop Rights. The Company shall also have the royalty-free right to use in its
business, and to make, use and sell products, processes and/or services derived from any
inventions, discoveries, concepts and ideas, whether or not patentable, including processes,
methods, formulas and techniques, as well as improvements thereof or know-how related thereto,
which are not within the scope of Inventions as defined in Section 2 but which are conceived or
made by the Individual during the period he is engaged by the Company with the use or assistance of
the Company’s facilities, materials or personnel.



     4. Compliance with Law and Amendment by Court: If there is any conflict between any
provision of this Agreement and any statute, law, regulation or judicial precedent, the latter
shall prevail, but the provisions of this Agreement thus affected shall be curtailed and limited
only to the extent necessary to bring them within the requirements of the law. If any part of this
Agreement shall be held by a court of proper jurisdiction to be indefinite, invalid or otherwise
unenforceable, the entire Agreement shall not fail on account thereof, but: (i) the balance of the
Agreement shall continue in full force and effect unless such construction would clearly be
contrary to the intention of the parties or would result in an unconscionable injustice; and (ii)
the court shall amend the Agreement to the extent necessary to make the Agreement valid and
enforceable.



     5. Freedom From Engagement Restrictions. The Individual represents and warrants that
the Individual has not entered into any agreement, whether express, implied, oral, or written, that
poses an impediment to the Individual’s Engagement by the Company including the Individual’s
compliance with the terms of this Agreement. In particular, the Individual is not subject to a
preexisting non-competition agreement, and no restrictions or limitations exist respecting the
Individual’s ability to perform fully the Individual’s obligations with the Company including the
Individual’s compliance with the terms of this Agreement.



     6. Third Party Trade Secrets. During the Individual’s Engagement by the Company, the
Individual agrees not to copy, refer to, or in any way use information which is proprietary to any
third party (including any previous employer). The Individual represents and warrants that the
Individual has not improperly taken any documents, listings, hardware, software, discs, or any
other tangible medium that embodies Proprietary Information from any third party, and that the
Individual does not intend to copy, refer to, or in any way use information which is proprietary to
any third party in performing the Individual’s duties for the Company.



     7. Injunctive Relief; Legal Fees. The Individual acknowledges that a breach of this
Agreement is likely to result in irreparable and unreasonable harm to the Company, that damages
caused by a breach would be extremely difficult to calculate, and that injunctive relief, as well
as damages, would be appropriate. In the event of any action to enforce the provisions of this
Agreement, the non-prevailing party shall be responsible for paying all reasonable costs and
expenses (including, without limitation, reasonable attorneys’ fees) incurred by the prevailing
party in connection with such action; provided, however, that if there is no clear
prevailing party in such



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action, the court or arbiter hearing such action will make the determination as to each
party’s responsibility for paying such costs and expenses.



     8. Successors and Assigns. This Agreement shall be binding upon the Individual, his
heirs, executors, assigns, and administrators and shall inure to the benefit of the Company, its
successors, and assigns.



     9. Prior Agreements; Waiver; Severability. This Agreement constitutes the entire
Agreement between the parties pertaining to the subject matter contained in it and supersedes those
provisions of all prior and contemporaneous agreements, representations and understandings of the
parties pertaining to the same subject matter. No waiver of any of the provisions of this
Agreement shall be deemed to, or shall constitute a waiver of, any other provisions, whether or not
similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless
executed in writing by the party making the waiver.



     10. Governing Law. This Agreement is entered into in Arizona and shall be governed by
the laws of the State of Arizona for all purposes. The parties hereby submit themselves to the
courts of the State of Arizona, located in the County of Maricopa, for the purpose of personal
jurisdiction in any action to enforce this Agreement.



     11. Construction. The language in all parts of this Agreement shall in all cases be
construed as a whole according to its fair meaning and not strictly for or against either party.
The headings contained in this Agreement are for reference purposes only and will not affect the
meaning or interpretation of this Agreement in any way. All terms used in one number or gender
shall be construed to include any other number or gender as the context may require. The parties
agree that each party has reviewed this Agreement and has had the opportunity to have counsel
review the same and that any rule of construction to the effect that ambiguities are to be resolved
against the drafting party shall not apply in the interpretation of this Agreement. Whenever the
words “include,” “includes,” or “including” are used in the Agreement, they shall be deemed to be
followed by the words “without limitation.”



     12. Consultation. The Individual is advised to obtain the advice of legal counsel
before signing this Agreement. By their signatures below, the Individual and the Company’s
representative acknowledge that they have each read the entire contents of this Agreement, that
they fully understand the terms and conditions hereof, and that each has independently had an
opportunity to review and discuss the Agreement with the advisor(s) or counsel of their respective
choosing.





ORTHOLOGIC CORP.




By:



Name:


Title:







INDIVIDUAL




 



Name:


Date:









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EXHIBIT A




Ladies and Gentlemen:




     The following is a complete list of all inventions or improvements relevant to the subject
matter of my engagement by OrthoLogic (the “Company”) which have been made or conceived or first
reduced to practice by me alone or jointly with others prior to my engagement by the Company:



                        No inventions or improvements



                        See below



     




     




     




                        Additional sheets attached



     






      












Name




Date: