INTELLECTUAL PROPERTY
AND
NON-DISCLOSURE AGREEMENT
This Agreement made and entered into this __th of ___ 20__ in the City of Pasig, Metro
Manila by and between:
Philippine Health Insurance Corporation, a Government Corporation duly organized
and existing under the laws of the Philippines with principal office located at 17th Floor,
City State Center Building, 709 Shaw Blvd. corner Oranbo Drive, Pasig City represented
in this act by its President and Chief Executive Officer, DR. EDUARDO P. BANZON
and hereinafter referred to as the PHILHEALTH
And
COSMOTECH PHILIPPINES, INC., a Domestic IT Solutions Provider with principal
address located at Cosmotech Center, 7761 St. Paul Street, San Antonio Village, Makati
City represented in this act by its President, EMILIO G. FEDERIZO, hereinafter
referred to as the COSMOTECH.
(collectively the “PARTIES”)
W I T N E S S E T H:
WHEREAS, COSMOTECH is engaged in the delivery of Information
Technology (IT) solutions and services such as HR Software customization and
implementation, biometrics, and HR consultancy;
WHEREAS, PHILHEALTH has a specific requirements for the acquisition,
installation and implementation of Human Resource Information System (HRIS) fully
integrated with biometrics, while COSMOTECH has the software, hardware and
expert services needed to completely provide and deliver these requirements;
WHEREAS, COSMOTECH has offered PHILHEALTH, and PHILHEALTH has
accepted COSMOTECH’s offer, to supply the solutions and services needed to
perform, complete and deliver PHILHEALTH’s requirements for its HRIS Project
subject to the terms and conditions set forth in this Agreement and in a separate Terms
of Reference;
WHEREAS, the PARTIES, in the course of work or project implementation, will
provide confidential information concerning the business, operation, or products
NOW THEREFORE, for and in consideration of the foregoing premises and the
mutual covenants hereinafter stipulated, the PARTIES hereto agree as follows:
ARTICLE I – DEFINITION OF TERMS
1. The term “Confidential Information” in this Agreement includes, but not limited
to:
1.1 Trade secrets and confidential know-how of which youeither Parties become
aware or generate in the course of, or in connection with, your contract with
the PHILHEALTHthis Agreement;
1.2 Information in relation to the PHILHEALTH’s business, operations or
strategies, intellectual or other property, or actual or prospective clients,
suppliers or competitors. This may include strategy or planning material,
financial information, marketing plans or strategies, business plans, secret
processes, sales procedures, policies and procedures, computer software and
programs; and
1.3 Documents, whether in written or electronic form, electronic transfers and
data and any other information that is of a confidential nature including all
personal and other information of clients or employees of the PHILHEALTH
and any other party in connection with the business of the PHILHEALTH.
Information is not confidential if it is in the public domain or comes into the
public domain, unless it came into the public domain by a breach of
confidentiality, itor is already known by the other person at the time this
document is entered into, or it is obtained lawfully from a third party without
any breach of confidentiality.
2. The term “Source- Code” in this Agreement refers to the Human Resource
Information System (HRIS) and related systems, components, and collection of
files needed to convert from human-readable form to computer –executable
form. The source codeSource Code may be converted into an executable filesfile
and librarieslibrary. Included in the source-codesSource Code are the source
code for the following:
2.1 Human Resource Information System (HRIS)
3. The term “Intellectual Property” or “IP” refers to Integra Payroll Master Human
Resource Information System (HRIS) IP rights composed of distinct types of
creations of the mind for which property rights are recognized as such under the
Intellectual Property Code of the Philippines and other related and applicable
laws and regulations. This includes the rights of COSMOTECH in the ownership
of the brand name and software product “Integra Payroll Master Human
Resource Information System (HRIS)”.
4. “RELEASING PARTY” refers to the company owning and releasing the SourceCode or Confidential Information.
5. “RECEIVING PARTY” refers to the company who receives the Source- Code or
Confidential Information from the other party.
ARTICLE II – NON-DISCLOSURE
1. The PARTIES agree and undertake to hold the Source-code Code and
Confidential Information as absolutely secret and in the strictest confidence and
shall not at any time use for its own benefit, or the benefitsbenefit of any other
party, disclose or permit to be disclosed to any third party any of the
Confidential Information.
2. The PARTIES undertake to inform its Employees who may have access to the
Source-code Code and Confidential Information that such information should be
kept in the strictest confidence, and to procuresecure clear and unambiguous
written undertakings from the Employees not to disclose any of the Confidential
Information to any person or firm whether during or after their employment
with the PHILHEALTH or COSMOTECH. In the event of any breach by any of
the Employees of any such undertakings as to non-disclosure which they have
given, RECEIVING PARTY shall inform the RELEASING PARTY of such breach
immediately and upon the request of the other PARTY enforceenforcing that
undertaking.
This shall be covered by a separate non-disclosure agreement between
PhilhealthPHILHEALTH and its appointed employeesEmployees.
3. PHILHEALTH acknowledges and recognizes that COSMOTECH owns all
intellectual property rights and the Source-code Code of the software product
Human Resource Information System (HRIS). All documents, records and other
materials of every kind pertaining to the Source-code Code shall be and remain
the exclusive property of COSMOTECH, and Confidential Information shall be
and remain the exclusive property of the PARTY releasing the information at all
times. Each PARTY may at any time request the prompt return of all such
documents, records and materials and copies thereof that are in the RECEIVING
PARTY’s possession or under its control.
4. All rights, title and interest in the Source- Code and Confidential Information
remain in the PARTY owning such right, title, and interest. No license, whether
express or implied, in the Source- Code and Confidential Information is granted
to the other PARTY other than to use the Source- Code and Confidential
Information in the manner and to the extent authorized by the RELEASING
PARTY in writing.
5. RECEIVING PARTY shall not, at all times, assign, transfer, convey, license or
otherwise dispose of, wholly or partially, the rights and obligations under this
Agreement except with the prior written consent of the releasingRELEASING
PARTY.
ARTICLE III – SOURCE- CODE AND, INTELLECTUAL
PROPERTIESPROPERTY AND OTHER PROPRIETARY RIGHTS
COSMOTECH agrees to provide a copy of the source-codeSource Code of the final
version of the customized Human Resource Information System (HRIS) subject to the
following conditions:
1.
All intellectual property rights over the software product Human Resource
Information System (HRIS), including, but not limited to, its components and
trademarks, shall remain with COSMOTECH. The execution of this Agreement
does not, in any manner, imply that any intellectual property right or ownership of
any rights over the subject software product or the Source-code Code thereof is
being assigned, in part or in whole, to PHILHEALTH.
2. CopyA copy of the Source-code Code referred to in the previous clause is provided
only as a sustainability measure for PHILHEALTH in the event COSMOTECH
defaultdefaults in its responsibility to maintain or support the product in the future.
PHILHEALTH shall be allowed to access and modify sourcethe Source Code and
the related products only withunder the following conditions only:
3.
2.1
In writing, COSMOTECH or its duly authorized representative
declares in writing that it is no longer capable to render or extend
maintenance and support to the product for whatever reason.
2.2
The CompanyCOSMOTECH is dissolved or closed-down and failed
to assign its rights and responsibilities ofover the Human Resource
Information System (HRIS) Products to a new representative and no
longer capable to render product support or maintenance.
2.3
The CompanyCOSMOTECH is acquired by new entity wherein the
new Company will issue a declaration or stoppage of product
support.
The accessAccess to source-codeSource Code shall not allow PHILHEALTH to sell,
rent, or distribute the Human Resource Information System (HRIS) product.
Access to the source-codeSource Code is for maintenance and support purposes
only to allow it to sustain and maintain the system in the event COSMOTECH
defaults in its responsibility to maintain or support the product in the future
referred to in the previous clause, and does not transfer any ownership over any of
the intellectual property rights of the subject product in part or as a whole in the
event of all the conditions stated in Article III Section 2 of this agreement.
4.
Protocol and procedures on the codeSource Code updates, maintenance and
safekeeping should be put in place and included as either as part of this or in a
separate agreement to be discussed and mutually agreed upon by both PARTIES.
5. PARTIES shall appoint a Custodian, who shouldwill receive and keep the copy of
the Source Code referred to in the previous clauses. The Custodian must be a
Disinterested Third Party disinterested third party mutually acceptable to both
PARTIES of the Source-code and be expressly named in the agreementAgreement.
The namesname should be updated regularly when there are changes in names in
the future. The Custodian shall ensure the safekeeping of the latest version in
production and keep track of version history. It shall also be the responsibility of
the Custodian to act as the Third-Party Source Code Escrow Agent and ensure that
the Source-code Code is deposited in a safe and secure location, preferably through.
For this reason, PARTIES agree that a third-party source code escrow agent. Bank
shall act as the Custodian and Third -Party Source Code Escrow Agent, where the
source codeSource Code is deposited and kept inside the Bank Depository Box with
corresponding keys that shall be kept by CosmotechCOSMOTECH but shall be
released to PhilHealthPHILHEALTH in the event of all of the conditions stated in
Article III Section 2 of this Agreement are present. The Custodian shall be required
to sign a Non-Disclosure Agreement.
6. The Custodian who should be a disinterested Thirdthird party, in this case, shall be
a Trustworthytrustworthy and Respectable Major Bankrespectable major bank
operating and located in the Philippines and must meet and have the following
requirements:.



Trust License issued by the Banko Sentral ng Pilipinas.
Offers Escrow Agency Services, specifically Source-Code Escrow Services
under their Trust Products and Services.
As a provider of Escrow Agency Services, it must offer beyond mere
custodianship of the Source Code, it must act as a third and impartial
party to intervene or hold and administer the escrow agreement/contracts
and see to it that the provisions of the escrow are faithfully complied with
by both parties.
6.1
The selection of the Custodian or the Third Party Source Code Escrow
Agent, a Bank in this case, in accordance to the qualifications under Article III
Section 6 by Cosmotech Philippines Inc. shall be communicated in writing to and
approved by PhilHealth within fifteen (15) days upon signing of this contract.
6.26.1 The cost for the Third-Party Source Code Escrow Agent under
Article III, Section 5 and cost of the inspection and review by an
independent body of good reputation under Article III Section 7 shall
be toof this Agreement shall be on the account of Cosmotech.
COSMOTECH.
6.36.2 Cosmotech shall provide a mini fire proof vault with corresponding
keys that shall be kept by Cosmotech but shall be released to
Philhealth in the event of all the conditions stated in Article III
Section 2 of this Agreement. Cosmotech shall provide a Security Seal
Stickers to be signed by both parties after it is kept inside the vault
and every time it is needed to be opened.
6.46.3 It shall be the responsibility of CosmotechCOSMOTECH to inform
both PhilhealthPHILHEALTH and the Third-Party Source Code
Escrow Agent through a formal written letter forif any of the
conditions
stated
in
Article
III,
Section
2
of
this
agreement.Agreement is present. This shall allow the third party
source code escrow agentenable the Third-Party Source Code Escrow
Agent
to
release
the
source
codeSource
Code
to
PhilhealthPHILHEALTH.
7. The Custodian is under the obligation to have the source-code inspected, tested,
and reviewed by an independent body of good reputation at the time of initial
deposit and at the time of each subsequent deposit of the source-code in escrow to
verify that it corresponds to the program subject hereof. The Custodian shall permit
such inspections and testing of the same upon request. The result of such inspection
shall be reduced into writing which shall be submitted to PhilHealth.
7. In the event that there will be updated release version , Cosmotech shall present all
features to PhilHealth’s duly authorized representative before the compiled Source
Code shall be deposited to Third Party Escrow Agent for safekeeping.
ARTICLE IV – OTHER TERMS AND CONDITIONS
1. The obligations and undertakings contained in or referred to in this Agreement
shall survive without any limitation of time.
2. This Agreement shall be governed by and enforced in accordance with the laws
of the Philippines and the parties of this Agreement shall submit to the
exclusive jurisdiction of the courts of Pasig City, Metro Manila.
3. No failure or delay on the part of the PARTIES to exercise any right, power
remedy under this Agreement shall operate as a waiver, nor shall any single or
partial exercise by the PARTIES of any right, power or remedy. The rights,
powers and remedies provided in this Agreement are cumulative and are not
exclusive of any rights, powers or remedies by law.
4. If any provision of this Agreement shall be construed to be illegal or invalid, they
shall not affect the legality validity and enforceability of the other provisions of
this Agreement. The illegal or invalid provision shall be deleted and no longer
incorporated in this Agreement but all other provisions of this Agreement shall
continue.
5. For any notice under this Agreement to be effective, it must be made in writing
and sent to the address of the appropriate party within a reasonable period of
time.
6. No amendment or modification ofto any provision of this Agreement will be
effective unless it is done in writing and signed by both PARTIES.
ARTICLE V – DISPUTE AND CONFLICT / ARBITRATION
The PARTIES shall use their best efforts to settle amicably all disputes arising out of or
in connection with this Agreement or the interpretation thereof.
Any dispute between the above PARTIES as to matters arising pursuant to this
Agreement which cannot be settled amicably within Thirty Daysthirty (30) days after
receipt by one PARTY of the other PARTY’S request for such an amicable settlement
may be submitted by either party for arbitration.
The arbitral award and any decision rendered in accordance with the foregoing shall be
appealable by way of a petition for review to the Court of Appeals.
IN WITNESS WHEREOF, the partiesPARTIES have executed this agreementAgreement
effective as of the date first written above.
PHILIPPINE HEALTH INSURANCE
CORPORATION
COSMOTECH PHILIPPINES, INC.
DR. EDUARDO P. BANZON
President and CEO
EMILIO G. FEDERIZO
President
Signed in the presence of:
SVP EDGAR JULIO S. ASUNCION
DR. ALVIN B. MARCELO
Legal Services Sector
Chief Information Officer
DR. CLEMENTINE A. BAUTISTA
ATTY. HANNAH LORRAINE A. DALISAY
OIC - Senior Manager
Human Resource Department
OIC - Division Chief
Accounting and Internal
Control Department
___________________________
Witness for COSMOTECH
________________________
Witness for COSMOTECH
EMPLOYEE NON-DISCLOSURE AGREEMENT
FOR GOOD CONSIDERATION, and in consideration of being assigned as Custodian
of the Human Resource Information System (HRIS) source-code under the HRIS
Project, the undersigned employee hereby agrees and acknowledges:
1. That during the course of my employment and being assigned as Custodian
of the Human Resource Information System (HRIS) source-code, whose
intellectual property is owned by COSMOTECH PHILIPPINES, INC. may be
disclosed to me the Intellectual Property, proprietary information or trade
secrets of the COSMOTECH PHILIPPINES, INC. Said IP and trade secrets
may consist of technical information such as methods, processes, formulae,
compositions, systems, techniques, inventions and computer programs.
2. I agree that I shall not during, or at any time after the termination of my
employment with the Company, use for myself or others, or disclose or
divulge to others including future employees, such proprietary data of
COSMOTECH PHILIPPINES, INC. in violation of this Agreement.
3.
That upon the termination of my employment from the Company:
a. I shall return to the Corporation all documents, digital materials,
proprietary information, including but not necessarily limited to:
drawings, blueprints, reports, manuals, correspondence and all other
materials and all copies thereof relating in any way to the Human
Resource Information System (HRIS) HRIS, or in any way obtained by
me during the course or employment. I further agree that I shall not
retain copies, notes or abstracts of the foregoing.
b. The Corporation or COSMOTECH PHILIPPINES, INC. may notify any
future or prospective employer or third party of the existence of this
agreement, and shall be entitled to full injunctive relief for any breach.
c. This agreement shall be binding upon me and my personal
representative and successors in interest, and shall inure to the benefit
of the Corporation and COSMOTECH PHILIPPINES, INC., its
successors and assigns.
Signed this ____ day of _________ 20__
____________________________
Employee Name and Signature
ACKNOWLEDGMENT
REPUBLIC OF THE PHILPPINES)
PASIG CITY, METRO MANILA ) S.S.
BEFORE ME, a Notary Public, for and in Pasig City, Metro Manila, personally
came and appeared the following with their respective identification documents, to wit:
Name
ID Document
DR. EDUARDO P. BANZON
Philippine Health Insurance Corp.
______________________________
EMILIO G. FEDERIZO
Cosmotech Philippines, Inc .
_______________________________
who are personally known to me or identified by me through competent evidence of
identity. The herein persons represented to me that the signatures on this instrument
were voluntarily affixed by them which they acknowledged as their free and voluntary
act and deed and that of the corporation they respectively represent.
This document refers to a Non-Disclosure Agreement, consisting of seven (7) pages,
including this page of the acknowledgment, is signed by the parties and their
instrumental witnesses on each and every page hereof.
WITNESS MY HAND AND SEAL on this _____ day of _____ 20___, at Pasig
City, Metro Manila
Doc. No. ____:
Page No. ____;
Book No. ____’
Series of 2012