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[COMPANY NAME] No. _________ |
SOCIALIST REPUBLIC OF VIETNAM Independence - Freedom - Happiness ------------------- |
CONFIDENTIALITY AND RELATED MATTERS AGREEMENT*
This Confidentiality and Related Matters Agreement (Agreement) is entered into on [insert date] by and between the following parties:
(1) Company name: ................................................................................................................................
Company registration number:...........................................................................................................................
Registered address: ...........................................................................................................................................
Legal Representative: ........................................................................................................................................
Permanent residence address............................................................................................................................
Position: ............................................................................................................................................................
Hereinafter referred to as the “Company”
(2) Mr./Ms. ..............................................................................................................................................
ID Card No. .......................................................................................................................................................
Permanent residence address...........................................................................................................................
Temporary residence address............................................................................................................................
Hereinafter referred to as the “Employee”
WHEREAS:
A. On [insert the commencement date], the Company and the Employee entered into a labour contract to reflect the Employee’s full-time employment with the Company as [insert Employee’s position] (Labour Contract);
B. On [insert date], the Company and the Employee entered into a Deed of Assignment of Copyright to reflect the assignment of all copyright in the work of the Employee during his/her term of employment with the Company (Assignment of Copyright Agreement);
BOTH PARTIES hereby agree to the following provisions:
1. Definition and interpretation
1.1 Definition
(a) Enterprise includes any corporation, firm, partnership, proprietorship, or other venture, and may also include the Employee’s own business (if any).
(b) Group Companies means the Company and each of its parent, subsidiary and affiliated companies, and the successors and assigns of the Company and each such parent, subsidiary and affiliated company.
(c) Group Company Confidential Information means any trade secret or confidential or proprietary business information of any Group Company, whether or not any such Group Company Confidential Information has been conceived, originated, discovered, or developed in whole or in part by the Employee. Group Company Confidential Information includes any information which the Employee have been told is confidential or which the Employee might reasonably expect any Group Company would regard as confidential, including, but not limited to, to information concerning any Group Company’s business plans, operations, research materials, products, strategies, marketing, sales, inventions, designs, copyright, costs, legal strategies, and finances; information concerning any Group Company Customer, Supplier or Employee (including contact information relating to such persons and entities); information received from third parties under confidential conditions; or other valuable financial, commercial, business, technical, or marketing information concerning any Group Company or any of the products or services made, developed, or sold by any Group Company. Group Company Confidential Information does not include knowledge or information which was known to the Employee prior to the date the Employee first became employed by a Group Company, or knowledge or information that is in the public domain or generally available to the public (except if the knowledge or information is in the public domain or generally available to the public because of the Employee’s fault or negligence).
(d) Group Company Customer or Supplier means any actual or prospective customer, client, supplier, source of supply, licensee, licensor, author or other contributor, or distributor of any Group Company.
(e) Group Company Employee means an employee of any Group Company.
(f) Group Company Property means the property of, or relating to, any Group Company including: Group Company Confidential Information (in any form), Group Company cars, mobile telephones, laptop and desktop computers, credit cards, equipment, passes, keys, cards, samples, IT/telecommunications log-on details, passwords, data, disks and documents. “Disks and documents” include correspondence, files, e-mails, memos, reports, minutes, plans, records, surveys, software, diagrams, computer print-outs, manuals, documentation relating to any Group Company Customer, Supplier or Employee, any electronic storage device such as a PDA or USB drive, memory sticks or cards, CDs, hard drives, or any other medium for storing information, including all copies and summaries.
1.2 Interpretation
(a) Nothing in this Agreement affects the Employee’s implied and express obligations during the Employee’s employment by the Company to act in the best interests of the Company and to faithfully serve the Company, including by not carrying out any secondary employment that would prejudice the Company or any other Group Company.
(b) Headings do not form part of this Agreement.
(c) In this Agreement there are references to periods of specific duration occurring immediately prior to the end of the Employee’s employment with the Company. Where the Employee’s employment with the Company ceases and the Employee’s actual period of employment is less than such periods, the duration of those periods shall be deemed to be the duration of the Employee’s employment with the Company. This paragraph does not concern any period of garden leave. The Employee’s period of actual employment with the Company does not include any deemed period of employment referable to any prior service with a Group Company.
(d) Where a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning. For example, references to “Group Company Customers, Suppliers or Employees” in this Agreement and like references shall be interpreted by reference to the definitions of “Group Company Customer or Supplier” and “Group Company Employee”.
(e)The word “include” is not a word of limitation.
(f) The word “approach” includes to solicit, to canvass, to deal with, and to accept any approach from.
(g) The word “be involved with” includes to, directly or indirectly, set up, assist, join, be engaged in, or provide any advice or services to, as a member, shareholder, unit holder, director, consultant, adviser, contractor, principal, agent, manager, employee, beneficiary, partner, associate, trustee, financier, or in any other capacity.
(h) The word “business carried on by any Group Company” includes any business that, at the time the Employee’s employment with the Company ceases, was being considered, being researched or under development by a Group Company at any time during the last [12 months][1] of the Employee’s employment (but only if the Employee obtained or knew material Group Company Confidential Information about any such business at any time during that period).
2. Protection of Group Company Confidential Information
2.1 The Employee hereby acknowledges and agrees that in performing the Employee’s duties as an employee of the Company under the Labour Contract, the Employee has from time to time required, and had access to, Group Company Confidential Information.
2.2 Upon termination of employment, the Employee hereby acknowledges and agrees the following:
a) the Employee will hold all Group Company Confidential Information in the strictest confidence;
b) during the Employee’s employment with the Company, except when acting within the scope of the Employee’s duties as an employee of the Company, the Employee did not:
(i) disclose or reveal to any person any Group Company Confidential Information;
(ii) remove from any Group Company’s premises, or copy or transmit or use, any records containing Group Company Confidential Information (whether in hard or soft format); and
c)after the date of the termination of the employment, the Employee will not disclose or reveal to any person any Group Company Confidential Information without prior written authorisation from the Company; nor will the Employee use, directly or indirectly, Group Company Confidential Information for the Employee’s own advantage or for the advantage of others without such prior authorisation.
2.3 If the Employee is required by law to disclose Group Company Confidential Information, the Employee will where practicable provide the Company with advance notice of that requirement.
3. Reasonable restriction on competition with Group Companies
3.1During the Employee’s employment with the Company and for [three years][2] immediately following the date of the termination of the employment, the Employee shall not be employed by, or be involved with, a Competitor.
3.2 A “Competitor” for the purposes of this Agreement, is an enterprise which competes with, or is preparing to compete with, a business carried on by any Group Company:
a) in which business the Employee actively worked in the last [six months][3] of the Employee’s employment with the Company; or
b) about which business the Employee holds material Group Company Confidential Information.
4. Reasonable restrictions on solicitation of customers, suppliers and employees of Group Companies (and related activities)
4.1 During the Employee’s employment with the Company and for [three years][4] immediately following the cessation of the Employee’s employment, the Employee shall not, indirectly or directly:
a) approach any Group Company Customer or Supplier with a view to obtaining its, his or her services, custom or business for a Competitor;
b) induce or assist any Group Company Employee to leave his or her employment with any Group Company to work for, or be involved with, a Competitor; or
c) interfere with the relationship between any Group Company and any Group Company Customer, Supplier or Employee.
5. Protection of Group Company intellectual property
5.1 All writings, artwork, developments, inventions, techniques, methods, improvements, products, devices, programs, or systems (Work) that the Employee conceives, develops or makes during the Employee’s employment with the Company that are within the scope of the Employee’s employment or connected in any way with such employment are and shall be the sole property of the Company.
5.2 The Employee irrevocably and unconditionally waives in favour of the Company all rights granted by any relevant legislation in connection with the Employee’s authorship of any copyright works during the course of the Employee’s employment with any Group Company, including any moral rights and any right to claim an additional payment with respect to use or exploitation of those works in accordance with the laws of Vietnam.
5.3 The Employee agrees that:
a)the salary, bonuses or any other incomes paid by the Company to the Employee during the term of the employment is full compensation for:
(i) the Employee’s assignment in favour of the Company of all present and future Work conceived, developed or made during the Employee’s employment with any Group Company that are within the scope of the Employee’s employment or connected in any way with such employment; and
(ii) uses of copyright works made by the Employee during the course of the Employee’s employment with any Group Company in accordance with the laws of Vietnam; and
b) the Employee shall not make any claims against any Group Company with respect to those copyright works.
5.4 To the extent that any Work that the Employee conceives, develops or makes during the Employee’s employment by any Group Company that is within the scope of the Employee’s employment or connected in any way with such employment does not automatically become the property of the Company under applicable laws, then the Employee assigns to the Company all interests and rights in any such Work including worldwide copyright in all forms and media, now or hereafter known, in accordance with the laws of Vietnam. The Employee also irrevocably grants to the Company a power of attorney to execute on the Employee’s behalf all documents necessary to effect any transfers of rights in any such Work, any acknowledgments of rights in any such Work, and any renewal rights worldwide with respect to any such Work. The Employee acknowledges that the Employee has a continuing obligation to cooperate fully in the establishment and maintenance of all rights of any Group Company in any Work throughout the world by executing such documents as may reasonably be requested for such purposes, such as copyright applications, patent applications, and assignments thereof to the Company. If for any reason any Work is not assigned to the Company, then:
a) the Employee unconditionally and irrevocably waives the enforcement of the Employee’s rights in the Work against the Company, and waives all claims and causes of action of any kind against the Company with respect to the Work and the Company’s use of the Work;
b) the Employee agrees, at the Company’s request and expense, to consent to and join in any action with the Company to enforce the Employee’s rights in the Work against third parties; and
c) the Employee unconditionally and irrevocably grants to the Company during the term of the Employee’s rights in the Work an exclusive, irrevocable, perpetual, worldwide, fully paid and royalty-free license without any further consideration, and with rights to sublicense through multiple levels of sub-licensees, to reproduce, to create derivative works of, to distribute, to publicly perform and to publicly display (by all means now known or later developed) the Work.
6. Return of Group Company Property
By the date of the termination of the employment, or at such other time that the Company directs, the Employee will deliver to the Company all Group Company Property in the Employee’s possession, custody or control.
7. Proof of compliance with this Agreement
Upon the date of the termination of the employment, the Company may require the Employee to provide sufficient evidence confirming that the Employee is not in breach of this Agreement, or about to breach this Agreement. Where the Employee joins a Competitor, or the Employee is about to join a Competitor, such proof may include separate written assurances from the Competitor and the Employee that the Employee will not be in breach of this Agreement. Any proof must be satisfactory in the opinion of the Company in its sole discretion.
8. Remedies
8.1 The Employee and the Company hereby acknowledge and agree that any failure of the Employee to comply with any term of this Agreement shall result in the Employee incurring the obligations to pay to the Company an amount of VND [200,000,000.00][5] (Liquidated Damages).
8.2 The Liquidated Damages shall be acknowledged and agreed by the Employee and the Company as comprising the estimated compensation for damage or loss caused by the default of the Employee to the Company under this Agreement. Any obligation of the Company to evidence the actual loss or damage caused by the default of the Employee to the Company is hereby waived by the Employee.
8.3 In addition to the Liquidated Damages, the Company is entitled to:
a) obtain an injunction prohibiting the Employee from violating this Agreement or other equitable relief; and
b) take action under this Agreement to protect any third party beneficiaries including any Group Company which may be injured by a breach or threatened breach of this Agreement. To the extent permitted by law, those third parties may also independently take action against the Employee under this Agreement.
8.4 If the Employee receives from any person, company, business entity or other organisation an offer of employment during the operation of the restrictions under clause 3 or 4 of this Agreement, the Employee will forthwith provide to such person, company, business entity or other organisation a full and accurate copy of this Agreement. The Employee confirms that the Company or any other Group Company may do so at their discretion. The Employee is otherwise strictly prohibited from disclosing this Agreement to any third party other than for the purpose of obtaining professional advice or if required by law.
9. Governing law
This Agreement and any disputes relating to it, including those pertaining to or arising out of its interpretation, performance, amendment or enforcement, shall be governed by and construed in accordance with the laws of Vietnam.
10. Severability
If any provision of this Agreement is held to be unenforceable, such provision will be distinct and severable from the other provisions of this Agreement, and such unenforceability will not affect the validity and enforceability of the remaining provisions.
11. Entire agreement and amendment
11.1 This Agreement constitutes the sole and entire agreement between the Company and the Employee relating to its subject matter, and it supersedes and cancels all previous agreements or understandings between the parties to the extent that any such agreement or understanding is inconsistent, in whole or in part, with the provisions of this Agreement.
11.2 The Employee agrees and acknowledges that:
a) this Agreement may not be modified, altered, or changed except upon the express written consent of the Company;
b) the waiver by the Company of a breach of any of the provisions of this Agreement will not operate or be construed as a waiver of any other provision of this Agreement or a waiver of any subsequent breach of the same provision; and
c) in executing this Agreement the Employee has not relied on any statements, promises, or representations made by any Group Company except as specifically stated in this Agreement.
12. Survival
The Employee and the Company acknowledge and agree that this Agreement will survive the termination of the Employee’s employment, including the unilateral termination of the Employment by the Company.
Signed for and on behalf of:_________________________
by its legal representative on ________________________
__________________________
Mr/Ms. ___________________________________________
Signed by [insert name of employee] on _________________
__________________________
[1] The period can be adjusted by the company
[2] The period can be adjusted by the company
[3] The period can be adjusted by the company
[4] The period can be adjusted by the company
[5] The number can be adjusted
*It’s important to note that this document is not customized for your particular situation. If you’re using such document for serious matters, it’s highly recommended that you customize and edit them to fit your situation.
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