Operations & Sales Roles Employment Agreement Terms
EAST COAST FACILITIES, INC. EMPLOYMENT AGREEMENT
This Agreement is dated this [Date] between East Coast Facilities, Inc. ("Employer") and [Your Name] of [Your Address], SS# [Your Social] - - ("Employee").
1. Term of Employment. The nature of the employment relationship between Employer and Employee is at-will and may be terminated at any time by either Employee or Employer upon written notice to the other, for any or no reason, with or without cause. Further, Employer can demote, transfer, suspend or otherwise discipline Employee in its sole and absolute discretion. Nothing contained in this Agreement, or in any written or unwritten policies of Employer, including the Employee Handbook, shall be construed to create any other term of employment or a requirement of cause for termination, demotion, or transfer.
2. Compensation. Employee's starting compensation is set forth in Addendum "A," and may be adjusted based on business necessity and Employee's job performance.
3. Job Duties. Employee will render services that are consistent with the title, position and responsibilities of [Your Role] working for a business of the size and conducting operations comparable to Employer. See Addendum for job title and description.
Employee will make every effort to and will conduct himself/herself at all times so as to advance the best interests of Employer, and will devote full time and effort exclusively to the business affairs of Employer.
Employee agrees that at all times he/she will observe, respect and comply with all personnel policies and procedures of Employer then existing, whether written or oral, pertaining to the performance of Employee's duties.
4. Benefits. Employee will be entitled to participate in all of Employer's employee benefit programs, on the same terms and conditions as these programs are available to other full time employees of Employer and as set out in the Employee Manual. Employee understands and acknowledges that Employer retains the right during the term of this Agreement to amend, modify, rescind, delete, supplement or add to any of its existing employee benefit programs, at Employer's sole and absolute discretion, upon written notice to Employee.
5. Non-Disclosure. (1) Employer may provide and make available to Employee certain information regarding its business, including without limitation: actual and potential client and customer names, addresses, telephone numbers, and specific characteristics; research and development materials; pending projects or proposals; methods of production; computer techniques and processing capabilities; proprietary computer programs; business plans and projections, including new product, facility or expansion plans; pricing information (such as price lists, quotation guides, previous or outstanding quotations, or billing information); estimating programs and methodology; the techniques used in, approaches to, or results of any market research; other marketing data; advertising sources; Employee salaries, contracts and wage information; and financial information about Employer; whether written or verbal, or contained on computer hardware or software, disk, tape, microfiche or other media ("Information"). This Information is of substantial value and highly confidential, is not known to the general public, is the subject of Employer’s reasonable efforts to maintain its secrecy, constitutes the professional and trade secrets of Employer, and is being provided and disclosed to Employee solely for use in connection with his or her employment by Employer.
In consideration of his or her employment pursuant to this Agreement and being made privy to such confidential and trade secret information belonging to Employer, Employee hereby agrees to hold in confidence and not to use or disclose this Information or articles thereof to third parties, except to the extent appropriate and necessary to fulfill his or her duties hereunder and shall treat this information as a trade secret belonging to Employer.
(2) Any and all information, knowledge, know-how, and techniques, which the aforementioned entities or their officers designate as confidential shall be deemed confidential for the purposes of this Agreement, except information which he/she can demonstrate came to his/her attention prior to disclosure hereof or which had become or becomes a part of the public domain through publication or communication by others but in no event by or through any act of his/hers. In particular, and without limitation to the foregoing, he/she will at no time divulge or use for the benefit of any other person(s), partnership, proprietorship, association, corporation or entity, any confidential information, knowledge or know-how concerning the systems of operation, programs, services, products, clients or practices of Employer and/or pertaining to the business of the Employer which may be communicated to him/her. Any and all information, knowledge, know-how, techniques and information which Employer, its affiliates, or the respective officers of each, designate as confidential shall be deemed confidential for the purposes of this Agreement, except information which he/she can demonstrate came to his/her attention prior to the disclosure thereof by Employer or which, at or after the time of disclosure by Employer, has become a part of the public domain through publication or communication by others (but in no event through any act of him/her).
(3) Employee further agrees that he or she:
6.1 Employee further agrees that he or she shall not, whether directly or indirectly, employ, solicit for employment, retain, solicit for retention, or advise or recommend to any other individual or entity that they hire, employ, retain, or solicit for employment or retention any person employed by Employer or any person retained by Employer as an independent contractor during the Term.
6.2 Employee further agrees that he or she shall not, whether directly or indirectly, undertake any act with the intent to disrupt, impair or interfere with the business of Employer in any way, whether by way of interfering with or disrupting its relationships with customers, agents, representatives, contractors, or suppliers, or otherwise, during the Term.
6.3 Employee warrants that the above restrictions will not prevent Employee from earning a living, and that they are necessary to protect the trade secrets of Employer, as Employee's solicitation would necessarily involve Employee's use of Employer's trade secrets.
6.4 Employee agrees that the two year restriction shall re-set and begin anew following any period in which any of the terms of this Paragraph 6 were violated by the Employee.
7. Conflict with Employer's Interests. Employee further agrees that due to the nature of Employer's business, any conduct in which Employee engages that is in contravention of the terms of Paragraphs 5 and 6 above would actually be in direct conflict with the essential enterprise-related interests of Employer. Employee further agrees that any breach of the terms of Paragraphs 5 and 6 of this Employment Agreement by Employee would actually constitute and result in material and substantial disruption of Employer's operation.
8. Works for Hire. All information developed or generated wholly or partially by Employee during his/her employment with Employer, including all intermediate and partial versions thereof ("Work Product"), whether or not protected by copyright, will be the sole property of Employer upon its creation, and, in the case of copyrightable works, upon its fixation in a tangible medium of expression.
All copyrightable aspects of the Work Product are "works made for hire" within the meaning of the Copyright Act of 1976 ("the Act"), as amended, of which Employer is to be deemed the "author" within the meaning of the Act. All such copyrightable works, as well as all copies of such works in whatever medium fixed or embodied, will be owned exclusively by Employer upon their creation and Employee will have no interest in any of them.
If any of the Work Product, or any part or element of the Work Product, is found as a matter of law not to be a "work made for hire," within the meaning of the Act, Employee will assign to Employer the sole and exclusive right, title and interest in and to all such works, and all copies of the works, without further consideration, and will assist Employer to register and, from time to time thereafter, to enforce all patents, copyrights, and other rights and protections relating to any of the Work Product.
9. Dispute Resolution. The Employer and Employee have entered into this Agreement in the belief that it is mutually advantageous to each of them. It is with the same spirit of cooperation that they pledge to attempt, in good faith, to amicably resolve any dispute. Therefore, if a dispute arises, the parties shall utilize the following described procedures. If a party commences any legal action, other than as provided for in Paragraph 9.4 hereof, without having first complied with all of the provisions of this Paragraph 9 regarding Dispute Resolution, the other party shall be entitled to a thirty (30) day abatement or stay of the action upon filing the appropriate procedural application and bringing this provision to the attention of the court or other legal authority having jurisdiction.
9.1. Initiation of Procedure. Should a dispute arise, the initiating party (meaning, that party asserting the existence of a dispute) shall give written notice to the other party, describing the exact nature of the dispute, its/his/her claim(s) for relief and identifying one or more individuals with authority to resolve the dispute on such party’s behalf. The responding party shall have five (5) business days within which to designate in writing one or more individuals with authority to resolve the dispute (“Authorized Individuals”). The Employee may name him/herself as the Authorized Individual on his/her behalf or may choose another individual.
9.2. Direct Negotiations. The Authorized Individuals shall be entitled to investigate the Dispute as they deem appropriate, but agree to meet promptly, and in no event later than fifteen (15) days from the date of the initiating party’s written notice, to negotiate a resolution of the Dispute. Authorized Individuals shall meet in person or by electronic transmission at times and places as they may agree. However, if the Dispute has not been resolved within fifteen (15) days from the date of their initial meeting, the parties shall cease direct negotiations and shall submit the Dispute to mediation in accordance with the procedure described below.
9.3. Mediation. In mediation, each party shall be represented by persons with authority to negotiate a resolution of the Dispute.
9.3.1. Within five (5) business days after the parties cease initial negotiations, the parties shall make a good faith effort to select a mutually convenient location for mediation. If the parties cannot timely agree on a mutually convenient location, the location shall be Allentown, Pennsylvania, or the State in which the employee works.
9.3.2. Within five (5) business days after the parties agree upon a location for the mediation, or the location is determined pursuant to 9.3.1. hereof, the parties shall make a good faith effort to select a person to mediate the Dispute. If the parties are unable to agree on a mediator, the American Arbitration Association, or such other independent dispute resolution organization as shall be approved by the Employer, shall be asked to supply a list of at least five (5) potentially qualified attorney-mediators within ten (10) business days. Within five (5) business days after receipt of the list, the parties shall rank the proposed mediators in numerical order of preference, simultaneously exchange such lists, and the individual receiving the highest combined ranking shall be the mediator. If such person is not available, the parties shall proceed to contact the individual whom was the next highest in ranking.
9.3.3. The parties and the mediator shall determine a convenient date for the mediation; however, if the parties are unable to agree, the mediator shall set the date. Both parties shall attempt in good faith to agree on procedures for the expeditious exchange of information in the possession of the other party which is desired to prepare for the mediation. Each party will deliver a concise summary of its view on the Dispute to the mediator at least seven (7) days before the first scheduled mediation session.
9.3.4. The mediator shall determine the format for the mediation and the mediation session shall be private. The mediator shall keep confidential all information learned in private caucus with any party unless specifically authorized by such party to make disclosure of the information. The parties agree that the medication shall be governed by such rules as the mediator shall prescribe before the first scheduled session.
9.3.5. Both parties agree to participate in the mediation to its conclusion. The mediation shall be terminated by: (1) the execution of a settlement agreement; or (2) a declaration by the mediator that mediation is terminated; or (3) a declaration by both parties (and not by one of the parties unilaterally) that the mediation is terminated at the conclusion of one full day’s session.
9.3.6. The fees and expenses of the mediator shall be shared equally by the parties. The mediator shall be disqualified as a witness, expert or counsel for any party with respect to the Dispute and any related matters. Mediation is a compromise negotiation for purposes of Federal Rules of Evidence and constitutes privileged communication under Pennsylvania law. The entire mediation process is confidential, and any statements, offers, views and opinions shall not be discoverable or admissible in any legal proceeding for any purpose; provided, however, that evidence which is otherwise discoverable or admissible is not excluded from discovery or admission as a result of its use in the mediation.
9.4. Arbitration. Any controversy, dispute or claim between any Employee and the Employer, or its officers, agents or other employees, shall be settled by binding arbitration, at the request of either party, provided the procedures in paragraphs 9.2 and 9.3 have first been satisfied. The arbitability of any controversy, dispute or claim under this policy shall be determined by application of the substantive provisions of the Federal Arbitration Act (9 U.S.C. sections 1 and 2) and by application of the procedural provisions of the American Arbitration Association. Arbitration shall be the exclusive method for resolving any Dispute; provided, however, that either party may request provisional relief from a court of competent jurisdiction.
9.4.1. The claims which are to be arbitrated under this policy include, but are not limited to claims for wages and other compensation, claims for breach of contract (express or implied), claims for violation of public policy, wrongful termination, tort claims, claims for unlawful discrimination and/or harassment (including, but not limited to, race, religious creed, color, national origin, ancestry, physical or mental disability, gender identity or expression, medical condition (cancer related or genetic characteristic), marital status, age (over 40), pregnancy, sex or sexual orientation ) to the extent allowed by law, and claims for violation of any federal, state, or other government law, statute, regulation, or ordinance, except for claims for workers' compensation and unemployment insurance benefits.
9.4.2. The Employee and the Employer will select an arbitrator by mutual agreement. If the Employee and the Employer are unable to agree on a neutral arbitrator, either party may elect to obtain a list of arbitrators from the American Arbitration Association, or any other reputable dispute resolution organization. The Employee and the Employer will alternately strike names from the list, with the Employee striking the first name, until only one name remains. The remaining person shall be the arbitrator.
9.4.3. The demand for arbitration must be in writing and must be made by the aggrieved party within the statute of limitations period provided under applicable state and/or federal law for the particular claim. Failure to make a written demand within the applicable statutory period constitutes a waiver to raise that claim in any forum. Arbitration proceedings will be held in or in the county and state where the Employee works or worked.
9.4.4. The arbitrator shall apply applicable Commonwealth and/or federal substantive law to determine issues of liability and damages regarding all claims to be arbitrated, and shall apply the Federal rules of evidence to the proceeding. The parties shall be entitled to conduct reasonable discovery, including conducting depositions, requesting documents and requesting responses to interrogatories, and the arbitrator shall have the authority to determine what constitutes reasonable discovery. The arbitrator shall hear motions for summary disposition as provided in the Federal rules of civil procedure and applicable case law.
9.4.5. Within thirty days following the hearing and the submission of the matter to the arbitrator, the arbitrator shall issue a “reasoned” decision and award, which shall be signed and dated. The arbitrator's decision shall decide all issues submitted by the parties, and the arbitrator may not decide any issue not submitted. The arbitrator shall be authorized to award only those remedies in law or equity which are requested by the parties and allowed by law.
9.4.6. The cost of the arbitrator and other incidental costs of arbitration, which would not otherwise be incurred in a court proceeding, shall be borne by the Employer. The parties shall each bear their own costs and attorneys' fees in any arbitration proceeding.
9.4.7. Both the Employer and employees understand that by using arbitration to resolve disputes they are giving up any right that they may have to a judge or jury trial with regard to all issues concerning the parties’ relationship.
9.4.8. Either party may seek to confirm and/or enforce the arbitration award in any competent court of law. However, there shall be no right to appeal the arbitration award.
10. Miscellaneous. No provision of this Agreement may be amended, modified, waived or discharged unless such amendment, modification, waiver or discharge is agreed to in writing signed by Employee and on behalf of Employer by Employer’s designated representative. No waiver by either party at any time of any breach by the other party of or compliance with any condition or provision of this Agreement to be performed by such other party will be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. No agreements or representations, oral or otherwise, express or implied, have been made by either party which are not set forth expressly in this Agreement. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the Commonwealth of Pennsylvania.
11. Section Headings. The section headings appearing in this Agreement have been inserted for the purpose of convenience and ready reference. They are not intended to, and do not define, limit, or extend the scope or intent of the provision to which they pertain.
12. Severability. If any term, covenant or condition of this Agreement or the application thereof to any person or circumstance is determined to be invalid or unenforceable, the remainder of the Agreement will not be affected thereby, and will continue to be valid and enforceable to the fullest extent permitted by law.
13. Survival of Terms. Notwithstanding any other provision in this Agreement to the contrary, the provisions of paragraphs 5, 6 and 9, hereof shall survive termination of this Agreement and shall not merge therewith.
14. Notices. (a) Any notice required or permitted to be given to the Employee shall be sufficiently given if delivered to the Employee personally or if mailed by registered mail to the Employee’s address last known to the Employer. (b) Any notice required or permitted to be given to the Employer shall be sufficiently give if delivered to or mailed by registered mail to the Employer at its registered office. (c) Any notice given pursuant to and in accordance with this paragraph shall be deemed to be received by the recipient on the third business day after mailing, if sent by registered mail, and on the day of delivery, if delivered by hand.
INTENDING TO BE BOUND, this Agreement has been duly executed and delivered by Employee and by the duly authorized officer of Employer on the date first above written.
[Your Name]
EMPLOYEE:
_________________________
EAST COAST FACILITIES, INC.:
______________________________
By: ______________________
[Authorizing Director]
Title: Director of Home Office
This Agreement is dated this [Date] between East Coast Facilities, Inc. ("Employer") and [Your Name] of [Your Address], SS# [Your Social] - - ("Employee").
1. Term of Employment. The nature of the employment relationship between Employer and Employee is at-will and may be terminated at any time by either Employee or Employer upon written notice to the other, for any or no reason, with or without cause. Further, Employer can demote, transfer, suspend or otherwise discipline Employee in its sole and absolute discretion. Nothing contained in this Agreement, or in any written or unwritten policies of Employer, including the Employee Handbook, shall be construed to create any other term of employment or a requirement of cause for termination, demotion, or transfer.
2. Compensation. Employee's starting compensation is set forth in Addendum "A," and may be adjusted based on business necessity and Employee's job performance.
3. Job Duties. Employee will render services that are consistent with the title, position and responsibilities of [Your Role] working for a business of the size and conducting operations comparable to Employer. See Addendum for job title and description.
Employee will make every effort to and will conduct himself/herself at all times so as to advance the best interests of Employer, and will devote full time and effort exclusively to the business affairs of Employer.
Employee agrees that at all times he/she will observe, respect and comply with all personnel policies and procedures of Employer then existing, whether written or oral, pertaining to the performance of Employee's duties.
4. Benefits. Employee will be entitled to participate in all of Employer's employee benefit programs, on the same terms and conditions as these programs are available to other full time employees of Employer and as set out in the Employee Manual. Employee understands and acknowledges that Employer retains the right during the term of this Agreement to amend, modify, rescind, delete, supplement or add to any of its existing employee benefit programs, at Employer's sole and absolute discretion, upon written notice to Employee.
5. Non-Disclosure. (1) Employer may provide and make available to Employee certain information regarding its business, including without limitation: actual and potential client and customer names, addresses, telephone numbers, and specific characteristics; research and development materials; pending projects or proposals; methods of production; computer techniques and processing capabilities; proprietary computer programs; business plans and projections, including new product, facility or expansion plans; pricing information (such as price lists, quotation guides, previous or outstanding quotations, or billing information); estimating programs and methodology; the techniques used in, approaches to, or results of any market research; other marketing data; advertising sources; Employee salaries, contracts and wage information; and financial information about Employer; whether written or verbal, or contained on computer hardware or software, disk, tape, microfiche or other media ("Information"). This Information is of substantial value and highly confidential, is not known to the general public, is the subject of Employer’s reasonable efforts to maintain its secrecy, constitutes the professional and trade secrets of Employer, and is being provided and disclosed to Employee solely for use in connection with his or her employment by Employer.
In consideration of his or her employment pursuant to this Agreement and being made privy to such confidential and trade secret information belonging to Employer, Employee hereby agrees to hold in confidence and not to use or disclose this Information or articles thereof to third parties, except to the extent appropriate and necessary to fulfill his or her duties hereunder and shall treat this information as a trade secret belonging to Employer.
(2) Any and all information, knowledge, know-how, and techniques, which the aforementioned entities or their officers designate as confidential shall be deemed confidential for the purposes of this Agreement, except information which he/she can demonstrate came to his/her attention prior to disclosure hereof or which had become or becomes a part of the public domain through publication or communication by others but in no event by or through any act of his/hers. In particular, and without limitation to the foregoing, he/she will at no time divulge or use for the benefit of any other person(s), partnership, proprietorship, association, corporation or entity, any confidential information, knowledge or know-how concerning the systems of operation, programs, services, products, clients or practices of Employer and/or pertaining to the business of the Employer which may be communicated to him/her. Any and all information, knowledge, know-how, techniques and information which Employer, its affiliates, or the respective officers of each, designate as confidential shall be deemed confidential for the purposes of this Agreement, except information which he/she can demonstrate came to his/her attention prior to the disclosure thereof by Employer or which, at or after the time of disclosure by Employer, has become a part of the public domain through publication or communication by others (but in no event through any act of him/her).
(3) Employee further agrees that he or she:
(a) Will regard and preserve the Information as highly confidential and the trade secrets of Employer;
(b) Will not disclose, nor permit to be disclosed, any of the Information to any person or entity, absent written consent and approval from Employer;
(c) Will not photocopy or duplicate, and will not permit any person to photocopy or duplicate, any of the Information without Employer's written consent and approval;
(d) Will not make any use of Information for his or her own benefit or the benefit of any person or entity other than Employer;
(e) Will return all Information to Employer within twenty-four (24) hours after request for same;
(f) Will not disclose, nor permit to be disclosed, any of the following Information to any person or entity, directly or indirectly: All services and procedures relating to maintenance services; all systems of operation, services, programs, products, procedure, policies, standards, techniques, specifications and criteria which now comprise or in the future may comprise a part of the Employer’s system of performing maintenance services; Employer’s operating manuals and any and all supplements and/or amendments thereto; services, techniques and systems for maintenance services; client service systems and techniques; brochures, sales kits, form contracts and/or forms; business systems; client lists; records pertaining to clients or billings; computer software and processing technologies; methods of advertising and promotion; instructional materials; staff composition and organization quality assurance programs; supervision systems; recommended services; methods and techniques for cost control; recordkeeping systems and materials; bookkeeping systems and materials; business forms; product and service order forms; general operations materials; revenue reports; activity schedules; job descriptions; advertising, promotional and public relations materials, campaigns, guidelines and philosophy; specifications, systems standards, techniques, philosophies and materials, guidelines, policies and procedures concerning Employer’s system of performing maintenance services; additions to, deletions from and modifications and variations of the components constituting Employer’s system of performing maintenance services; or the systems and methods of operations which are now, or may in the future, be employed by Employer, including all standards and specifications relating thereto and the means and manner of soliciting clients for same; and all other components, specifications, standards, requirements and duties imposed by Employer; and
(g) Employee further agrees that during the term of his/her employment / service / association / ownership participation, and for a period of one (1) year immediately following the expiration or termination thereof (for any reason whatsoever) Employee will not, either directly or indirectly, engage or participate in any other business which offers, sells, solicits clients for or performs landscape maintenance services or any service similar thereto; further, Employee is prohibited from engaging in any such competitive business as a proprietor, partner, investor, shareholder, director, officer, employee, principal, agent, advisor, or consultant thereof, if such other business shall be located within Employer’s markets; nor will Employee divert to any other entity any business that should be handled by the business of the Employer, or any of its other affiliates; and further, it is the intention of this provision to preclude not only direct competition but also forms of indirect competition, such as consultation for competitive businesses, service as an independent contractor for such competitive businesses, or any assistance or transmission of information of any kind or nature whatsoever which would be of any material assistance to a competitor; and further, nothing herein shall prevent Employee from owning for investment purposes up to an aggregate of five (5%) per cent of the capital stock for any competitive business, provided that said business is publicly held corporation whose stock is listed and traded on a national or regional stock exchange, or through the National Association of Securities Dealers Automated Quotation System (NASDAQ), and provided that Employee does not control any such company; and further, it is the intention of this provision that any person or entity having any legal or beneficial interest in or traceable to, down or through Employee to be bound by the provisions of this covenant, including (without limitation) his/her spouse, brother, brother-in-law, sister, sister-in-law, parent, parent-in-law, child, son-in law or daughter-in-law; any direct or indirect beneficiary; any partner (general or limited) or proprietor of his/her’s; and, any other such related person or entity, regardless of how many levels, tiers or degrees of relationship there may be between any such described person or entity and the Employee; and finally, Employee further agrees that upon the expiration or termination of his/her term of employment/service/association, he/she shall immediately refrain from any and all contacts with customers, for any purpose whatsoever.
6. Non-Solicitation. Employee further agrees that during his or her employment with Employer and for two (2) years after its termination by either party ("Term"), Employee shall not, whether directly or indirectly, solicit, communicate with or otherwise contact any of Employer's customers for the purpose of conducting any business with them which is substantially similar to the business conducted by Employer. For purposes of this Paragraph, "Customer" shall mean any person or entity with which Employer has actually done business or solicited for business during the Term.6.1 Employee further agrees that he or she shall not, whether directly or indirectly, employ, solicit for employment, retain, solicit for retention, or advise or recommend to any other individual or entity that they hire, employ, retain, or solicit for employment or retention any person employed by Employer or any person retained by Employer as an independent contractor during the Term.
6.2 Employee further agrees that he or she shall not, whether directly or indirectly, undertake any act with the intent to disrupt, impair or interfere with the business of Employer in any way, whether by way of interfering with or disrupting its relationships with customers, agents, representatives, contractors, or suppliers, or otherwise, during the Term.
6.3 Employee warrants that the above restrictions will not prevent Employee from earning a living, and that they are necessary to protect the trade secrets of Employer, as Employee's solicitation would necessarily involve Employee's use of Employer's trade secrets.
6.4 Employee agrees that the two year restriction shall re-set and begin anew following any period in which any of the terms of this Paragraph 6 were violated by the Employee.
7. Conflict with Employer's Interests. Employee further agrees that due to the nature of Employer's business, any conduct in which Employee engages that is in contravention of the terms of Paragraphs 5 and 6 above would actually be in direct conflict with the essential enterprise-related interests of Employer. Employee further agrees that any breach of the terms of Paragraphs 5 and 6 of this Employment Agreement by Employee would actually constitute and result in material and substantial disruption of Employer's operation.
8. Works for Hire. All information developed or generated wholly or partially by Employee during his/her employment with Employer, including all intermediate and partial versions thereof ("Work Product"), whether or not protected by copyright, will be the sole property of Employer upon its creation, and, in the case of copyrightable works, upon its fixation in a tangible medium of expression.
All copyrightable aspects of the Work Product are "works made for hire" within the meaning of the Copyright Act of 1976 ("the Act"), as amended, of which Employer is to be deemed the "author" within the meaning of the Act. All such copyrightable works, as well as all copies of such works in whatever medium fixed or embodied, will be owned exclusively by Employer upon their creation and Employee will have no interest in any of them.
If any of the Work Product, or any part or element of the Work Product, is found as a matter of law not to be a "work made for hire," within the meaning of the Act, Employee will assign to Employer the sole and exclusive right, title and interest in and to all such works, and all copies of the works, without further consideration, and will assist Employer to register and, from time to time thereafter, to enforce all patents, copyrights, and other rights and protections relating to any of the Work Product.
9. Dispute Resolution. The Employer and Employee have entered into this Agreement in the belief that it is mutually advantageous to each of them. It is with the same spirit of cooperation that they pledge to attempt, in good faith, to amicably resolve any dispute. Therefore, if a dispute arises, the parties shall utilize the following described procedures. If a party commences any legal action, other than as provided for in Paragraph 9.4 hereof, without having first complied with all of the provisions of this Paragraph 9 regarding Dispute Resolution, the other party shall be entitled to a thirty (30) day abatement or stay of the action upon filing the appropriate procedural application and bringing this provision to the attention of the court or other legal authority having jurisdiction.
9.1. Initiation of Procedure. Should a dispute arise, the initiating party (meaning, that party asserting the existence of a dispute) shall give written notice to the other party, describing the exact nature of the dispute, its/his/her claim(s) for relief and identifying one or more individuals with authority to resolve the dispute on such party’s behalf. The responding party shall have five (5) business days within which to designate in writing one or more individuals with authority to resolve the dispute (“Authorized Individuals”). The Employee may name him/herself as the Authorized Individual on his/her behalf or may choose another individual.
9.2. Direct Negotiations. The Authorized Individuals shall be entitled to investigate the Dispute as they deem appropriate, but agree to meet promptly, and in no event later than fifteen (15) days from the date of the initiating party’s written notice, to negotiate a resolution of the Dispute. Authorized Individuals shall meet in person or by electronic transmission at times and places as they may agree. However, if the Dispute has not been resolved within fifteen (15) days from the date of their initial meeting, the parties shall cease direct negotiations and shall submit the Dispute to mediation in accordance with the procedure described below.
9.3. Mediation. In mediation, each party shall be represented by persons with authority to negotiate a resolution of the Dispute.
9.3.1. Within five (5) business days after the parties cease initial negotiations, the parties shall make a good faith effort to select a mutually convenient location for mediation. If the parties cannot timely agree on a mutually convenient location, the location shall be Allentown, Pennsylvania, or the State in which the employee works.
9.3.2. Within five (5) business days after the parties agree upon a location for the mediation, or the location is determined pursuant to 9.3.1. hereof, the parties shall make a good faith effort to select a person to mediate the Dispute. If the parties are unable to agree on a mediator, the American Arbitration Association, or such other independent dispute resolution organization as shall be approved by the Employer, shall be asked to supply a list of at least five (5) potentially qualified attorney-mediators within ten (10) business days. Within five (5) business days after receipt of the list, the parties shall rank the proposed mediators in numerical order of preference, simultaneously exchange such lists, and the individual receiving the highest combined ranking shall be the mediator. If such person is not available, the parties shall proceed to contact the individual whom was the next highest in ranking.
9.3.3. The parties and the mediator shall determine a convenient date for the mediation; however, if the parties are unable to agree, the mediator shall set the date. Both parties shall attempt in good faith to agree on procedures for the expeditious exchange of information in the possession of the other party which is desired to prepare for the mediation. Each party will deliver a concise summary of its view on the Dispute to the mediator at least seven (7) days before the first scheduled mediation session.
9.3.4. The mediator shall determine the format for the mediation and the mediation session shall be private. The mediator shall keep confidential all information learned in private caucus with any party unless specifically authorized by such party to make disclosure of the information. The parties agree that the medication shall be governed by such rules as the mediator shall prescribe before the first scheduled session.
9.3.5. Both parties agree to participate in the mediation to its conclusion. The mediation shall be terminated by: (1) the execution of a settlement agreement; or (2) a declaration by the mediator that mediation is terminated; or (3) a declaration by both parties (and not by one of the parties unilaterally) that the mediation is terminated at the conclusion of one full day’s session.
9.3.6. The fees and expenses of the mediator shall be shared equally by the parties. The mediator shall be disqualified as a witness, expert or counsel for any party with respect to the Dispute and any related matters. Mediation is a compromise negotiation for purposes of Federal Rules of Evidence and constitutes privileged communication under Pennsylvania law. The entire mediation process is confidential, and any statements, offers, views and opinions shall not be discoverable or admissible in any legal proceeding for any purpose; provided, however, that evidence which is otherwise discoverable or admissible is not excluded from discovery or admission as a result of its use in the mediation.
9.4. Arbitration. Any controversy, dispute or claim between any Employee and the Employer, or its officers, agents or other employees, shall be settled by binding arbitration, at the request of either party, provided the procedures in paragraphs 9.2 and 9.3 have first been satisfied. The arbitability of any controversy, dispute or claim under this policy shall be determined by application of the substantive provisions of the Federal Arbitration Act (9 U.S.C. sections 1 and 2) and by application of the procedural provisions of the American Arbitration Association. Arbitration shall be the exclusive method for resolving any Dispute; provided, however, that either party may request provisional relief from a court of competent jurisdiction.
9.4.1. The claims which are to be arbitrated under this policy include, but are not limited to claims for wages and other compensation, claims for breach of contract (express or implied), claims for violation of public policy, wrongful termination, tort claims, claims for unlawful discrimination and/or harassment (including, but not limited to, race, religious creed, color, national origin, ancestry, physical or mental disability, gender identity or expression, medical condition (cancer related or genetic characteristic), marital status, age (over 40), pregnancy, sex or sexual orientation ) to the extent allowed by law, and claims for violation of any federal, state, or other government law, statute, regulation, or ordinance, except for claims for workers' compensation and unemployment insurance benefits.
9.4.2. The Employee and the Employer will select an arbitrator by mutual agreement. If the Employee and the Employer are unable to agree on a neutral arbitrator, either party may elect to obtain a list of arbitrators from the American Arbitration Association, or any other reputable dispute resolution organization. The Employee and the Employer will alternately strike names from the list, with the Employee striking the first name, until only one name remains. The remaining person shall be the arbitrator.
9.4.3. The demand for arbitration must be in writing and must be made by the aggrieved party within the statute of limitations period provided under applicable state and/or federal law for the particular claim. Failure to make a written demand within the applicable statutory period constitutes a waiver to raise that claim in any forum. Arbitration proceedings will be held in or in the county and state where the Employee works or worked.
9.4.4. The arbitrator shall apply applicable Commonwealth and/or federal substantive law to determine issues of liability and damages regarding all claims to be arbitrated, and shall apply the Federal rules of evidence to the proceeding. The parties shall be entitled to conduct reasonable discovery, including conducting depositions, requesting documents and requesting responses to interrogatories, and the arbitrator shall have the authority to determine what constitutes reasonable discovery. The arbitrator shall hear motions for summary disposition as provided in the Federal rules of civil procedure and applicable case law.
9.4.5. Within thirty days following the hearing and the submission of the matter to the arbitrator, the arbitrator shall issue a “reasoned” decision and award, which shall be signed and dated. The arbitrator's decision shall decide all issues submitted by the parties, and the arbitrator may not decide any issue not submitted. The arbitrator shall be authorized to award only those remedies in law or equity which are requested by the parties and allowed by law.
9.4.6. The cost of the arbitrator and other incidental costs of arbitration, which would not otherwise be incurred in a court proceeding, shall be borne by the Employer. The parties shall each bear their own costs and attorneys' fees in any arbitration proceeding.
9.4.7. Both the Employer and employees understand that by using arbitration to resolve disputes they are giving up any right that they may have to a judge or jury trial with regard to all issues concerning the parties’ relationship.
9.4.8. Either party may seek to confirm and/or enforce the arbitration award in any competent court of law. However, there shall be no right to appeal the arbitration award.
10. Miscellaneous. No provision of this Agreement may be amended, modified, waived or discharged unless such amendment, modification, waiver or discharge is agreed to in writing signed by Employee and on behalf of Employer by Employer’s designated representative. No waiver by either party at any time of any breach by the other party of or compliance with any condition or provision of this Agreement to be performed by such other party will be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. No agreements or representations, oral or otherwise, express or implied, have been made by either party which are not set forth expressly in this Agreement. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the Commonwealth of Pennsylvania.
11. Section Headings. The section headings appearing in this Agreement have been inserted for the purpose of convenience and ready reference. They are not intended to, and do not define, limit, or extend the scope or intent of the provision to which they pertain.
12. Severability. If any term, covenant or condition of this Agreement or the application thereof to any person or circumstance is determined to be invalid or unenforceable, the remainder of the Agreement will not be affected thereby, and will continue to be valid and enforceable to the fullest extent permitted by law.
13. Survival of Terms. Notwithstanding any other provision in this Agreement to the contrary, the provisions of paragraphs 5, 6 and 9, hereof shall survive termination of this Agreement and shall not merge therewith.
14. Notices. (a) Any notice required or permitted to be given to the Employee shall be sufficiently given if delivered to the Employee personally or if mailed by registered mail to the Employee’s address last known to the Employer. (b) Any notice required or permitted to be given to the Employer shall be sufficiently give if delivered to or mailed by registered mail to the Employer at its registered office. (c) Any notice given pursuant to and in accordance with this paragraph shall be deemed to be received by the recipient on the third business day after mailing, if sent by registered mail, and on the day of delivery, if delivered by hand.
INTENDING TO BE BOUND, this Agreement has been duly executed and delivered by Employee and by the duly authorized officer of Employer on the date first above written.
[Your Name]
EMPLOYEE:
_________________________
EAST COAST FACILITIES, INC.:
______________________________
By: ______________________
[Authorizing Director]
Title: Director of Home Office
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