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Contracts III

Contracts III. Employment Contracts Software Development Contracts Service Contracts. Employment Agreements.

zachery-franklin
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Contracts III

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  1. Contracts III Employment Contracts Software Development Contracts Service Contracts

  2. Employment Agreements • The employer’s principal objectives in an employment agreement should be (1) maintain employer’s ownership of patents, trade secrets and other property of the employer, (2) prevent misappropriation and misuse by employee of employer’s property, (3) ensure that the employment agreement is enforceable, and (4) establish an employment relationship that will promote innovation and creativity by the employee.

  3. Laws Impacting Employment • A company in Virginia may be subject to: • Civil Rights Acts of 1964, 1866, 1870, 1871 and 1991 • federal and Virginia Equal Pay Acts • federal & Virginia Age Discrimination In Employment Acts • Americans with Disabilities Act • Virginians with Disabilities Act • Virginia Human Rights Act • Equal Employment Opportunity Act • Affirmative Action rules and regulations for government contractors and subcontractors

  4. Laws Impacting Employment • A company in Virginia may be subject to: • federal and Virginia Wage and Hour Laws • Immigration Reform and Control Act of 1986 • Family and Medical Leave Act • Uniformed Services Employment and Reemployment Rights Act of 1994 • Occupational Safety and Health Act • Continuation Coverage Requirements of Employee Health Care Plans • Employee Retirement Income Security Act • National Labor Relations Act.

  5. Personnel Manuals • The written statements in personnel manuals may expand an employee’s rights under their employment contract and bind the employer beyond the scope of the employment contract

  6. Commitment to Security • It is important, from an information security perspective, that the personnel manual and where appropriate the employment agreement stress the company’s information security policy and procedures manuals. Stressing the individual employees responsibility for a full and continuous commitment to information security procedures will help eliminate termination problems for breach of these policies and procedures.

  7. Prior Contract Restrictions • In this age of severe shortages of highly qualified technology employees, companies must be careful to determine whether a prospective employee is subject to a current employment agreement which will restrict their employment activities.

  8. Confidentiality - Nondisclosure • The employment agreement should require the employee to agree to hold in confidence and not to disclose directly or indirectly trade secrets, confidential information obtained from the employer, or its data files during the course of employment.

  9. Virginia Non-Compete • The three key elements of a covenant not to compete are time, geographic scope, and breadth of the prohibited business activity. • In Virginia, the courts apply a “rule of reason” analysis in their determination of the enforceability of a non-compete provision. • The courts will enforce a covenant not to compete if: • (1) it is no greater than necessary to protect the legitimate interests of the employer (i.e., reasonably limited as to time and scope)

  10. Virginia Non-Compete • (2) the employer’s need for protection outweighs the injury to the employee • (3) the employer’s need for protection outweighs an likely injury to the public. • The courts also consider the specific language of the non-compete provision, the employee’s skill level and the type of business involved.

  11. Employment Law • Requiring current employees to sign an employment agreement, in Virginia and Maryland keeping your job is sufficient consideration

  12. Shrinkwrap License • Currently only enforceable in the 6th and 7th Circuits. Clickwrap is enforceable. Why? • Problem is the limitation on liability, confidentiality and no reverse engineering provisions • ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996) • Hill v. Gateway 2000, 105 F.3d 1147 (7th Cir. 1997)

  13. Case Studies • Glovatorium, Inc. v. NCR Corp., 684 F.2d 658 (9th Cir. 1982) • AccuSystems, Inc. v. Honeywell Inf. Sys.,Inc., 580 F.Supp 474 (S.D.N.Y. 1984)

  14. “Electronic” Contracting • Problem of the “Battle of the Forms’ • Problem of the Parol Evidence Rule • Problem of the “Mailbox Rule” • Problem of digital signature authentication

  15. Penetration Agreement • As the vendor would you modify any of the provisions? Why? • As the customer would you modify any of the provisions? Why?

  16. Employment Agreement • As the employer would you modify any of the provisions? Why? • As the employee would you modify any of the provisions? Why?

  17. Software Development • As the vendor would you modify any of the provisions? Why? • As the customer would you modify any of the provisions? Why?

  18. Consulting Service • As the vendor would you modify any of the provisions? Why? • As the customer would you modify any of the provisions? Why?

  19. Software Licensing • As the vendor would you modify any of the provisions? Why? • As the customer would you modify any of the provisions? Why?

  20. Network License & Maintenance • As the vendor would you modify any of the provisions? Why? • As the customer would you modify any of the provisions? Why?

  21. Software Maintenance • As the vendor would you modify any of the provisions? Why? • As the customer would you modify any of the provisions? Why?

  22. System Integration • As the vendor would you modify any of the provisions? Why? • As the customer would you modify any of the provisions? Why?

  23. Site License • As the vendor would you modify any of the provisions? Why? • As the customer would you modify any of the provisions? Why?

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