Intellectual Property Rights, Confidentiality and Non-Competition Agreement - China Finance Online Co. Ltd. and Zhongshan Qian
INTELLECTUAL PROPERTY RIGHTS, CONFIDENTIALITY AND NON-COMPETITION AGREEMENT
This agreement is entered into between the Parties as below on the date of
March 31, 2004.
Party A: China Finance Online Co., Ltd., a limited liability company duly
incorporated and validly existing under the laws of the People's Republic of
China (the "PRC")
Party B: Mr. Zhongshan Qian, a citizen of PRC having the identification
number of 710403842.
WHEREAS, Party B is an employee of Party A and has access to the research
and development achievements and various types of confidential information
related to technology, markets, customers, etc. owned by Party A; and
WHEREAS, the Parties wish to protect Party A's intellectual property
rights and business secrets and safeguard both Parties' interests.
NOW, THEREFORE, the Parties agree as follows:
ARTICLE I INTELLECTUAL PROPERTY RIGHTS
1.1 Technical achievements
1.1.1 Technical achievements
During the period when Party B is employed by Party A and for one year
after both Parties terminate their employment relationship, all technical
achievements, including, but not limited to, discoveries, inventions, know-how,
concepts, processes, products, methods and renovations (hereinafter referred to
as "technical achievements"), related to the businesses, products, programs and
services of Party A that are contemplated, developed and accomplished by Party
B, whether independently or jointly with others, shall be deemed Party A's
technical achievements and absolute property and all the corresponding rights
including intellectual property rights shall belong solely to Party A.
1.1.2 Safekeeping of materials
Party B agrees to record and keep the technical achievements developed by
Party A, whether independently or jointly with others, according to the formats
or methods required by Party A while Party B is employed by Party A. These
materials belong to Party A exclusively and Party A has the right to retrieve
the above mentioned materials at any time.
1.1.3 Application for intellectual property rights
Party B agrees to help Party A or Party A's agents, at Party A's expense,
to protect Party A's interests in the aforesaid technical achievements and their
related intellectual property rights by appropriate means in any countries,
including by disclosing all relevant information and data and by executing all
relevant legal documents. Party B agrees that the relevant legal documents
executed according to the aforesaid obligations shall survive the termination of
the
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employment relationship between the Parties. If Party B fails to sign the
relevant legal documents due to psychological, physical or any other reasons,
Party B agrees to delegate Party A or Party A's authorized person or agents as
Party B's proxy to sign the aforesaid legal documents on behalf of or in the
interest of Party B and to exercise other activities permitted by laws in order
to obtain relevant patents, copyrights and other intellectual property rights.
The actions of the persons delegated by Party B shall have the same binding
effect as Party B's action and such delegation shall be irrevocable.
1.2 Prior achievements
Party B shall list all inventions, original works with copyrights,
improvements, renovations and other business secrets (hereinafter referred to as
"prior achievements") that are related to the businesses, products and research
and development of Party A but not transferred to Party A prior to Party B's
employment by Party A, in the appendix to this agreement. Party B agrees that
Party B shall not have any "prior achievement" if Party B does not list such
prior achievement in the appendix of this agreement.
During the period Party B is employed by Party A, if Party B introduces
any "prior achievements" in which Party B has ownership or interests in the
products, processes and machines of Party A, Party B agrees to give Party A
non-exclusive, irrevocable, permanent and global permission to produce, revise,
use or sell the above products, processes, machines or related "prior
achievements" and Party A shall not be required to pay any fees to Party B.
ARTICLE II. CONFIDENTIALITY
2.1 Confidential information
2.1.1 Party B agrees that Party A has the complete ownership of its
"confidential information" regardless of the forms of storage, and Party B shall
keep all such confidential information secret. "Confidential information"
includes but not limited to the following:
a. Party A's archives, including but not limited to contracts, personnel
archives, administrative documents, lists of suppliers, etc.;
b. Party A's technical materials, including but not limited to all
development plans, development prospectuses, technical files, technical
diagrams, drawings, formulas, models and relevant technical articles, technical
reports, etc. owned by Party A;
c. Party A's sales materials, including but not limited to all quality
management methods, pricing methods, sales methods, customers' materials, etc.
owned by Party A;
d. Party A's financial materials, including but not limited to all bank
account materials, stockholders' materials, investment background, etc. owned by
Party A;
e. All the intellectual property rights (including those exclusively owned
by Party A, those owned by Party A and other companies or those owned by Party A
now and developed by Party A in the future);
f. Technical achievements contemplated, developed and accomplished by
Party B as set forth in Article I of this agreement;
g. Technical achievements contemplated, developed and accomplished by
other employees of Party A;
h. Any third party's confidential information which Party A has the
responsibility to
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keep confidential pursuant to laws and agreements between Party A and such third
party; and
i. Any other information that Party A claims as confidential.
2.1.2 Unprotected information:
a. Information acquired from the public media, except in circumstances
where the public learns the information because Party A fails to fulfill its
confidentiality obligations; and
b. Information that Party A legitimately obtains from a third party with
whom Party A has never signed a confidentiality agreement.
2.2 Implementation of confidentiality agreement
2.2.1 Party B has the responsibility and duty to keep confidential all
confidential information and to abide by and strictly implement all
confidentiality regulations;
2.2.2 Party B shall not provide or disclose confidential information to
any third parties (including irrelevant employees of Party A) without Party A's
written approval;
2.2.3 Party B shall not use confidential information for any purpose other
than for fulfilling Party A's assignments or responsibilities;
2.2.4 Party B shall not copy confidential information other than for the
purposes of job requirements. If confidential information has to be copied due
to work requirements, the copies (including but not limited to files, discs,
CDs, computer memories, etc.) are exclusively owned by Party A and Party B shall
clearly mark the copies and protect and manage the copies;
2.2.5 Party B shall not take any media carrying confidential information
(including but not limited to files, discs, CDs, computer memories, etc.) out of
Party A's offices without Party A's written approval;
2.2.6 Party B shall not talk about the content of any confidential
information in public or through public media (including but not limited to
telephones, e-mail, internet, etc.). If Party B must deliver confidential
information through public media, Party B shall adopt confidentiality measures
such as encryption, passwords, dispersion, etc. according to Party B's
confidentiality requirements;
2.3 Return and destruction of confidential files
2.3.1 Party B shall return or destroy confidential information at the
request of Party A.
2.3.2 If Party A does not set forth specific requirements, Party B shall
return confidential information to Party A within three working days after the
use of the confidential information.
2.3.3 When Party B terminates the employment relationship with Party A,
Party B shall return all original files and copies that contain, represent,
display, record or constitute confidential information, including but not
limited to devices, records, data, notes, reports, proposals, business cards,
letters, specifications, drawings, equipment, materials, etc. to Party A. Party
B agrees to sign Appendix II of this agreement as a "Letter of Guarantee".
2.4 Information about prior employers
Party B agrees that Party B shall not inappropriately use or disclose the
confidential
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information or business secrets of any other individuals or institutions in
which Party B has worked as a part-time employee in the past or where Party B
works now when Party B works for Party A. Party B shall not take the aforesaid
confidential information or relevant unpublicized information to Party A.
ARTICLE III NON-COMPETITION
3.1 Party B agrees to neither directly or indirectly be involved in
businesses in competition against Party A or develop products identical or
similar to those of Party A for third parties on behalf of himself or, in his
capacity as owner, manager, shareholder, advisor, director, official, partner,
employee, etc. of any other business entities while Party B works for Party A or
within one year after the termination of the employment relationship between
both Parties.
3.2 During the one year after the termination of the employment
relationship between both Parties, Party B shall neither abet, solicit, attempt
to employ or employ any of Party A's current employees (including those people
employed by Party A from six months before the termination of the employment
relationship between both Parties to six months after the termination of such
employment relationship), nor assist other individuals or entities to employ the
aforesaid people or encourage any employees of Party A to terminate their
employment contracts with Party A.
3.3 During the one year after the termination of the employment contract
between both Parties, Party B shall not remove or try to remove any customers or
potential customers from Party A.
3.4 If Party B violates any terms of this article, the content of the
article shall continue to be effective for one year after the date on which
Party B breached the article.
ARTICLE IV NOTIFICATION OF PARTY B'S NEW EMPLOYER
Party B agrees that Party A has the right to notify Party B's new employer
of Party B's rights and obligations under this agreement after the termination
of the employment relationship between both Parties.
ARTICLE V RESPONSIBILITIES UPON DEFAULT
Both Parties agree that any defaulting activities on the part of Party B
will cause material or irrevocable damage to Party A. Therefore, Party A has the
right to take all legal measures to reduce the losses to Party A brought about
by Party B's violation of this agreement. Party B shall pay for all economic
losses suffered by Party A and take all legal responsibilities.
ARTICLE VI DISPUTE RESOLUTION
6.1 All disputes from the implementation of this agreement or related to
this agreement shall be resolved through friendly consultation between both
Parties.
6.2 If negotiation fails to settle the dispute, either Party has the right
to make an arbitration application to the Beijing Arbitration Commission. The
arbitration shall be the final verdict and have binding force on both Parties.
ARTICLE VII RIGHTS RESERVATION
7.1 If one Party does not exercise its rights or take actions in response
to the defaulting acts of the other Party, it shall not be regarded as
renouncing its rights or abstaining from
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pursuing the other Party's defaulting responsibilities or duties.
7.2 If one Party renounces its rights against the other Party or abstains
from pursuing the other Party's breaches, it shall not be regarded as renouncing
any other rights or abstaining from investigating and affixing responsibility of
other breaches.
7.3 All renouncements of rights must be in writing.
ARTICLE VIII MISCELLANEOUS
8.1 Any revision of this agreement shall take effect only after
negotiation and signature by both Parties;
8.2 If the articles of this agreement are in conflict with the articles of
other agreements and contracts between both Parties, the articles of this
agreement shall control;
8.3 The titles in this agreement are used only for convenience of reading
and shall not affect the meaning of this agreement.
8.4 If an article of this agreement is ruled to be invalid, illegal or
inapplicable according to laws and regulations, the validity, legality and
execution of other articles of this agreement shall not be affected.
8.5 The agreement shall be binding in the principle as below: the binding
effects of the agreement shall not be affected by the length of employment
between the Parties, the reason for terminating the employment relationship
between the Parties and the amount of Party B's remuneration or salaries paid by
Party A. Party B shall still be liable to his/her obligations under the
agreement after the termination of the employment between the Parties for
whichever reasons. No amendment or changes of the agreement shall be made upon
the termination of the employment.
ARTICLE IX GOVERNING LAW
9.1 The establishment, validity, explanation, execution and dispute
settlement of this agreement shall be governed by the laws and regulations of
the People's Republic of China.
ARTICLE X NOTICE
10.1 Any notice or communication required or allowed under this agreement,
regardless of the communication method, shall take effect upon actual delivery.
10.2 The "actual delivery" in the above article refers to the arrival of
any notice at the legal domicile, residence or mailing address of the receiving
Party.
10.3 If a Party alters its notification address or mailing address, it
shall notify the other Party of its new address within three days after the
alteration. Otherwise, the defaulting Party shall be held responsible for all
consequent legal liabilities.
ARTICLE XI ENTIRE AGREEMENT
This agreement and all of its appendices constitutes the entire agreement
agreed upon by the Parties and supersedes all prior oral or written
negotiations, representations or agreements reached by the Parties.
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ARTICLE XII VALIDITY AND TERM
12.1 This agreement shall take effect after both Parties sign and affix
seals on the agreement.
12.2 This agreement shall be effective until the employment relationship
between both Parties is terminated. However, during the one year after the
termination of this agreement, any confidential information of Party A known to
Party B before the termination of the agreement shall be handled according to
this agreement. Meanwhile, the articles which are agreed to survive the
termination of the employment relationship between both Parties shall remain
binding upon the Parties.
12.3 The agreement shall be executed in two counterparts and one
counterpart shall be retained by each party. The two counterparts shall have
equal validity and legal effect.
Party A: China Finance Online Co., Ltd.
/s/ COMPANY SEAL
/s/ Jun Ning
_____________________________
(Authorized representative)
Date: April 1, 2004
Party B: Mr. Zhongshan Qian
/s/ Zhongshan Qian
____________________________
Date: April 1, 2004
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APPENDIX I
LIST OF PARTY B'S PRIOR ACHIEVEMENTS
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APPENDIX II
LETTER OF GUARANTEE
I, ______________, hereby guarantee that I have returned and no longer
hold any original files or copies that contain, represent, display, record or
make use of confidential information, including devices, records, data, notes,
reports, proposals, name lists, letters, specifications, drawings, equipment,
materials, etc., to __________________________ (hereinafter referred to as "the
Company").
I further guarantee that I have abided by all the articles of the
Agreement of Intellectual Property Rights, Confidentiality and Non-competition
(hereinafter referred to as "the Agreement") executed by me and the Company,
including making reports to the Company about any technical achievements
developed by me alone or collectively with others.
I further agree that I will continue to abide by the regulations of the
Agreement and keep the confidential information selected by the Agreement highly
confidential.
I further agree that I will neither employ any employees of the Company,
nor solicit, encourage or abet any employees to terminate their employment
contracts with the Company in any form or in any other's name during the 12
months after my the date of my execution of this letter of guarantee.
Signed By:
Date: