保密和不竞争协议范本-员工(英文).doc

CONFIDENTIALITY AND NON COMPETITION AGREEMENT BY AND BETWEEN NAME OF THE EMPLOYER AND NAME OF THE EMPLOYEE TABLE OF CONTENTS 1 DEFINITIONS 1 2 REPRESENTATIONS WARRANTIES AND UNDERTAKINGS CONFIDENTIALITY 2 3 REPRESENTATIONS WARRANTIES AND UNDERTAKINGS NON COMPETITION 4 4 EMPLOYMENT AFTER TRAINING 5 5 INTELLECTUAL PROPERTY 5 6 RETURN OF MATERIALS 6 7 LIABILITY FOR BREACH 6 8 APPLICABLE LAWS 6 9 SETTLEMENT OF DISPUTES 6 10 INTEGRITY AND SEVERABILITY 7 11 OTHERS 7 SCHEDULE I 9 1 THIS AGREEMENT is made in place of execution name of the city and province the People s Republic of China the PRC on this date day of month year by and between the following two parties Party A Insert Name of the Employer a company duly established in the PRC with its legal address at Insert address Party A shall hereinafter be referred to as the Employer and Party B Insert Name of the Employee a citizen of the PRC whose identity card number is Insert number of Insert address Party B shall hereinafter be referred to as the Employee WHEREAS A On Insert date Party A and Party B executed an Employment Contract in accordance with the laws of the PRC and both acknowledge that Party B is an employee of Party A B The Employer possesses advanced technology in the area of Insert business scope C The Employee agrees to maintain the strictest confidentiality in respect of such technology and other business secrets belonging to the Employer and not to engage in any business or otherwise compete with the Employer at any time during his or her employment with the Employer or for a period of three 3 years after termination of such employment After friendly discussions and negotiation Party A and Party B have agreed to the following terms and conditions with respect to the Employee s duties of confidentiality and non competition 1 DEFINITIONS Unless otherwise required by the context of this Agreement the following terms used in this Agreement shall have the meanings set forth below 1 1 Confidential Information shall mean any information which is contained stored archived or recorded either in electronic format on any computer disc CD ROM CD hard drive or software or which is incorporated reproduced or embodied in any document or other tangible item in either case belonging to or used by the Employer or any other company or legal person in which it has any interest including without limitation any subsidiary company equity or contractual or co operative joint venture Affiliate comprising a any proprietary software whether developed or in the process of development and whether or not intended to be used as part of an operating system any networking design conversion and or translation programmes and any information stored or recorded on any of the foregoing b any information regarding the business and affairs customers and suppliers of the Employer or any Affiliate the disclosure of which to any competitor or to the general public would or might be detrimental to the interests of the Employer or any Affiliate c any information which the customers of the Employer or any Affiliate consider confidential and in respect of which the Employer or any Affiliate may be subject to confidentiality or non disclosure obligations express implied or otherwise and d any information concerning the employees of the Employer or any Affiliate including rates of pay or other information the disclosure of which would or might be detrimental to any such employee e all other information of any nature whatsoever which may be disclosed or made known to the Employee at any time during the course of his or her employment by the Employer whether or not he or she is performing duties for or is undergoing training by the Employer or any Affiliate which other information may include technologies business strategies and methods technical specifications or know how computer programmes designs blueprints drawings techniques processes lists of customers suppliers or prices discount rates methods of accounting and bookkeeping research data of all kinds and management methods and f the technology and related materials listed in Schedule I 1 2 Business Secrets shall have the same meaning as Confidential Information 2 REPRESENTATIONS WARRANTIES AND UNDERTAKINGS CONFIDENTIALITY 2 1The Employee hereby represents warrants and undertakes to the Employer a that his or her employment by the Employer and execution of the Employment Contract will not breach any covenant or agreement which the Employee has entered into with any of his or her former employers or any obligation owed to any other company or individual in either case concerning confidentiality or non competition by the Employee b that he or she understands and is fully aware that all Confidential Information is the exclusive property of the Employer and its Affiliates as the case may be that the strictest confidentiality must be maintained at all times in respect thereof that substantial efforts funds and other resources have been invested in the development of Confidential Information and that unauthorised disclosure of the same would or might be highly detrimental to the interests of the Employer and its Affiliates c that during and after his or her employment by the Employer the Employee will maintain the strictest confidentiality in respect of all Business Secrets of the Employer and its Affiliates comply with all rules promulgated by the Employer or any of its Affiliates to protect the Confidential Information and not in any circumstances disclose any of the Confidential Information to any person company organisation or other entity without the prior written consent of the Employer or relevant Affiliate and then only if such disclosure is in the best interests of the Employer or relevant Affiliate d that during his or her employment with the Employer he or she shall not remove any Confidential Information from the premises of the Employer or relevant Affiliate copy or in any way duplicate or reproduce any Confidential Information or transmit any Confidential Information by electronic means except with the prior written consent of the Employer or relevant Affiliate The Employee further acknowledges that he or she may be liable to criminal prosecution if he or she commits any breach of this clause 2 1 d e that during his or her employment by the Employer the Employee will forthwith report to the Employer or relevant Affiliate any events or circumstances which will or might jeopardise the safety or confidentiality of any Business Secrets and will take appropriate measures to protect the same and f that during and after his or her employment with the Employer the Employee will maintain the strictest confidentiality in respect of all information whether or not constituting Confidential Information regarding customers or suppliers of the Employer or any Affiliate or other companies or persons related to the business carried on by the Employer or any Affiliate and will not disclose such information to any person company organisation or other entity or use such information whether or not the Employer or such Affiliate is subject to any express or implied obligation to keep such information confidential 3 REPRESENTATIONS WARRANTIES AND UNDERTAKINGS NON COMPETITION 3 1The Employee hereby represents warrants and undertakes to the Employer a that his or her employment by the Employer and execution of the Employment Contract will not breach any covenant or agreement which the Employee has entered into with any of his or her former employers or any obligation owed to any other company or individual in either case concerning any duty of non competition b that during his or her employment by the Employer and within the period of three 3 years after termination of such employment the Employee will not directly or indirectly establish carry on be engaged or participate in work for or provide financial support to or guarantee the obligations of or advise any business company or other organisation which competes with or carries on any activity similar to any carried on by the Employer or any Affiliate or be concerned in any such other business company or other organisation as principal owner agent shareholder employee or otherwise 1 c That for so long as the Employee complies in all respects with sub clause b of this clause and all other provisions of this Agreement in all respects the Employer shall provide compensation to the Employee equal to three 3 months salary one month salary at the end of each of such three 3 years which shall be calculated based on the salary payable in the month immediately preceding termination of the Employee s employment but excluding any bonus or other benefits and the Employee shall bear all Personal Income Tax payable by himself or herself in respect of such compensation In the event that the Employee fails to comply as aforesaid the Employer shall be entitled forthwith to cease paying the aforementioned compensation and to take action against the Employee on account of such non compliance 2 d that during his or her employment by the Employer and within the period of three 3 years after termination of such employment the Employee will not directly or indirectly solicit or request any customers or suppliers to withdraw or cancel any of their actual or potential business from or with the Employer or any Affiliate 1 Regulations of the Shanghai Municipal Labour and Social Security Bureau specify that if during the term of the non competition agreement the enterprise waives the requirement that the employee perform his her non competition obligation it should give the employee one month s prior notice thereof 2 Regulations of the Shanghai Municipal Labour and Social Security Bureau specify that if the employee is not paid wage compensation in accordance with the agreement due to a reason attributable to the enterprise and the enterprise still fails to do so after a request by the employee the employee may terminate the non competition agreement e that during his or her employment by the Employer and within the period of three 3 years after termination of such employment the Employee will not directly or indirectly induce any other employee of the Employer or any Affiliate to terminate his or her employment with the Employer or such Affiliate and f that during and after termination of his or her employment by the Employer the Employee will not make any statement or disclose information which is derogatory of or which might otherwise be detrimental to the reputation and interests of the Employer or any of its Affiliates or their respective directors officers or employees 4 EMPLOYMENT AFTER TRAINING 4 1To develop the Employee s technical skills the Employer will send the Employee abroad to receive Insert period technology training program at the Employer s expense The Employee acknowledges that the Employer will incur considerable expenditure in providing such training and that he or she will have access to and learn about the Employer s advanced technology through such training program In consideration of the Employer providing such training he or she agrees to work for the Employer for a minimum period of time after receiving such training On the basis of fairness and equality the Employee and the Employer have agreed that after the Employee has received such training he or she shall subject as otherwise required by the Employer work for the Employer or any Affiliate designated by the Employer for at least three 3 years Should the Employee resign from his or her employment before expiry of such three 3 year period he or she shall pay to the Employer a penalty equal to 50 of expenditure incurred by the Employer in providing all training to the Employee at any time during his or her employment and shall not be paid any separation payment by the Employer In such event the obligations of the Employee in relation to confidentiality and non competition shall continue to have full force and effect 3 5 INTELLECTUAL PROPERTY 5 1The Employee hereby acknowledges that all intellectual property or other proprietary rights in or to any invention or discovery which he or she creates or designs at any time during his or 3 According to regulations of the Shanghai Municipal Labour and Social Security Bureau if the specified term of service is longer than the term of the labour contract and the enterprise at the expiration of the term of the labour contract waives the requirements concerning the balance of the service term the labour contract may terminate However the enterprise may not pursue the liability of the employee for compensation which arose during his her term of service If the enterprise continues to offer the employee a position and requires him her to continue performance of the service term after his her labour contract has expired the parties should execute a new labour contract If the parties fail to reach a consensus on the terms of the new labour contract the parties should continue performance in accordance with the provisions of the original labour contract If the enterprise does not provide a position during the term of continued performance it will be deemed to have waived the requirements concerning the balance of the service term and the labour relationship will terminate her employment by the Employer or any Affiliate or provided that the same is based on or derived from any invention or discovery created or designed by him or her during his or her employment within the period of one 1 year after termination of such employment are the exclusive property of the Employer and the Employee shall not claim any proprietary rights in respect thereof 6 RETURN OF MATERIALS 6 1Upon the termination of his or her employment the Employee shall forthwith return to the Employer or the relevant Affiliate all computers discs CDs software documents papers books materials archives receipts vehicles credit cards correspondence manuals records and other company property and copies thereof which are under his or her possession and control 7 LIABILITY FOR BREACH 7 1Any breach by the Employee of his or her obligations under this Agreement shall constitute a fundamental breach hereof and the Employer shall be entitled forthwith to terminate the Employee s employment by the Employer The Employee shall compensate the Employer and any Affiliates in respect of all losses suffered by them resulting from such breach and shall not be entitled to any separation payment from the Employer 7 2The Employee further agrees that should he or she be unable or unwilling to perform his or her obligations under this Agreement the Employer shall be entitled forthwith to terminate the Employee s employment by the Employer and the Employee shall compensate the Employer and any Affiliates in respect of all losses suffered by them resulting from such breach and the Employee shall not be entitled to any separation payment from the Employer 8 APPLICABLE LAWS 8 1The interpretation and implementation of this Agreement shall be governed by the laws of the PRC 9 SETTLEMENT OF DISPUTES 9 1The Parties agree to use their best endeavours to resolve any dispute arising from or relating to this Agreement through amicable consultations In the event that the Parties are unable to resolve such dispute through consultations such dispute shall be presented to the court in the district where the Employer is located or if the Employer so decides in the district where any breach of this Agreement is alleged to have been committed b