EXHIBIT 10.2
CONSULTING AGREEMENT
THIS AGREEMENT is made as of this 8th day of June, 2007 by and between SPSS
Inc., a Delaware corporation having its offices at 000 X. Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000-0000 (hereinafter "SPSS"), and Xxxxxxxx X. Xxxxxxxxxxxx
(hereinafter "Consultant").
WITNESSETH:
WHEREAS, SPSS develops and markets proprietary computer software, and on
occasion desires the assistance of outside consultants in connection with its
businesses; and
WHEREAS, Consultant has expertise in certain aspects of the businesses of
SPSS and is willing to provide consulting services to SPSS under the terms and
conditions set forth below.
NOW, THEREFORE, in consideration of the mutual undertakings herein
contained, the parties hereby agree as follows:
1. RETENTION OF CONSULTANT; SERVICES TO BE PERFORMED.
(a) SPSS hereby retains Consultant to provide such consulting services to
SPSS as shall be agreed upon by the parties and specified in Exhibit A hereto
and/or in one or more separate written instruments acknowledged by both parties
and referring to this Agreement. Each such separate written instrument is hereby
incorporated by reference.
(b) At all times Consultant shall exercise reasonable skill and care in
performing such services.
(c) Consultant shall provide the services specified hereunder in the
manner, and at such times and places as Consultant sees fit, subject to
agreed-upon completion dates. Consultant acknowledges that SPSS shall not
provide equipment, supplies or employees for the use of Consultant in providing
such services.
(d) Consultant represents and warrants that Consultant is not subject to
any restrictions or restraints, contractual or otherwise, which would prevent or
limit Consultant's ability to enter into and be bound by this Agreement.
2. CONSULTING FEES.
SPSS shall compensate in the manner set forth on Exhibit A and/or in one or
more separate written instruments acknowledged by both parties and referring to
this Agreement. Each such separate written instrument is hereby incorporated by
reference. Unless otherwise acknowledged by SPSS in writing prior to any
specific project, there shall be no royalties or ongoing payments due from SPSS
to Consultant for Consultant's services hereunder in addition to the
compensation specified in accordance with the first sentence of this Paragraph
2. SPSS shall withhold no income or employment taxes from any compensation paid
to Consultant, nor shall SPSS be liable for any income or employment taxes on
any such compensation.
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3. SPSS CONFIDENTIAL INFORMATION.
(a) As used in this Agreement, the term "SPSS Confidential Information"
shall mean all Trade Secrets and Other Confidential Technical and Business
Information, as defined in Paragraph 3(b), and all Consultant Inventions, as
defined in Paragraph 3(c), whether or not reduced to writing and whether or not
patentable or protectable by copyright, which SPSS now owns or is licensed to
use, or may in the future own or be licensed to use.
(b) As used in this Agreement, the term "Trade Secrets and Other
Confidential Technical and Business Information" shall mean all confidential or
proprietary product development and design information and all confidential or
proprietary procedures, techniques, manuals, customer information,
specifications, data bases, test results, information concerning business or
product acquisitions, strategic plans, customer lists, pricing data, and
discoveries, inventions and innovations made, created, acquired or developed by
or on behalf of SPSS.
(c) As used in this Agreement, the term "Consultant Inventions" shall mean
all systems, programs, algorithms, procedures, techniques, manuals, data bases,
plans, lists, inventions, copyrights, patents, trademarks, discoveries,
innovations, concepts, ideas and software (including without limitation source
and object code and design and user documentation) conceived, compiled,
developed or acquired, in whole or in part, by Consultant in the course of
performing consulting services for SPSS (including services performed prior to
the execution of this Agreement) which relate to SPSS' business, except for
inventions which Consultant develops for other clients or on Consultant's own
time which do not make use of any SPSS resources or SPSS Confidential
Information.
(d) Consultant's obligations in Paragraphs 4 and 5 regarding SPSS
Confidential Information and Consultant Inventions shall survive the termination
of its consultancy for SPSS for any reason whatsoever.
4. CONSULTANT'S OBLIGATIONS REGARDING SPSS CONFIDENTIAL INFORMATION.
Consultant shall take the following steps to preserve the confidential and
proprietary nature of SPSS Confidential Information:
(a) During its consultancy for SPSS, Consultant shall not disclose or
transfer any of the SPSS Confidential Information other than as authorized by
SPSS within the scope of Consultant's duties for SPSS. Except to the extent
Consultant is authorized to do so in its capacity as a consultant for SPSS,
Consultant shall not sell, license or otherwise exploit any products (including
software in any form) or services which embody or utilize in whole or in part
any SPSS Confidential Information.
(b) Consultant shall take all reasonable precautions to prevent the
unauthorized disclosure (whether inadvertent or deliberate) of SPSS Confidential
Information to unauthorized persons or entities and shall promptly report to
appropriate SPSS management any such activities by others.
(c) While Consultant is permitted to retain all personal information which
is not comprised of or derived from SPSS Confidential Information (in whole or
in part), all notes, files, data, tapes, reference materials, reports, sketches,
drawings, price lists, customer lists, plans, memoranda, records and any other
document or matter comprised of, or derived from, SPSS Confidential Information
(in whole or in part) shall belong exclusively to SPSS. At the request of SPSS
or upon termination of its consultancy for SPSS, Consultant shall deliver to
SPSS all tangible materials embodying SPSS Confidential Information.
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(d) Consultant shall not use, in connection with the performance of its
duties and responsibilities to SPSS, any trade secrets or confidential technical
or business information acquired from, or developed on behalf of, Consultant's
other clients or make use of any work in which others have a proprietary
interest. Consultant shall inform SPSS of any obligations owed by him or her to
third parties regarding trade secrets, confidential information or other forms
of intellectual property which bear, in any way, upon Consultant's work for
SPSS. All work product developed by Consultant pursuant to this Agreement shall
be based on original work, SPSS proprietary information, or work in the public
domain.
5. CONSULTANT'S OBLIGATIONS REGARDING CONSULTANT INVENTIONS.
(a) All Consultant Inventions as defined in 3 C above shall belong
exclusively to SPSS, and Consultant hereby assigns to SPSS all of its right,
title and interest in and to (i) any Consultant Invention developed during its
consultancy for SPSS, and (ii) any Consultant Invention developed, in whole or
in part, using any other SPSS Confidential Information, no matter when
developed.
(b) As may be reasonably requested by SPSS (both during and after its
consultancy for SPSS), Consultant shall execute and deliver any instruments or
documents and do all other things in order to vest more fully in SPSS all
ownership rights in the Consultant Inventions (including without limitation
securing patent and copyright registrations for such Consultant Inventions).
SPSS shall reimburse Consultant for reasonable out-of-pocket expenses incurred
by him or her to comply with the foregoing.
(c) If requested by SPSS, during the term of its consultancy and for a
period of 6 months thereafter, Consultant shall promptly notify SPSS of any
invention created by him or her during the term of such consultancy or within 6
months thereafter and shall include a reasonably detailed description thereof,
so that SPSS may determine whether any such invention is a Consultant Invention
subject to this Agreement.
6. SOFTWARE LICENSE
SPSS may provide Consultant with SPSS software to allow Consultant to
fulfill its obligations hereunder. If such software is provided, SPSS grants
Consultant a non-exclusive right to use the software strictly to fulfill its
obligations under this Agreement. Any other use by Consultant is strictly
prohibited. Such right to use the SPSS shall software shall last for as long as
this Agreement is in effect or until SPSS requests Consultant to return the
software. Consultant shall use the software in accordance with the terms of this
Agreement and the agreement included with the software. If the terms of this
Consulting Agreement and the agreement included with the software conflict, the
terms of this Consulting Agreement shall prevail.
7. PUBLICITY AND ADVERTISING.
Consultant shall not publicize or advertise that Consultant is a consultant
for SPSS, nor shall Consultant utilize the name of SPSS in any fashion, without
first receiving the written permission of SPSS.
Consultant shall not solicit or work for an SPSS' customer, on anything
related to the business of SPSS that was introduced to Consultant by SPSS
without first obtaining SPSS' written approval.
8. TERM AND TERMINATION.
(a) The term of this Agreement shall commence on the date hereof and shall
continue until terminated in accordance with section 8 (b) or 8 (c) below. Upon
termination, Consultant shall return any and all proprietary software of SPSS
and internal documentation thereon, and
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any and all other SPSS proprietary information, which may be in Consultants'
possession pursuant to this Agreement, and Consultant shall not retain any
copies thereof.
(b) Unless it is stated differently in Exhibit A, SPSS may terminate this
Agreement immediately, with or without cause, upon providing Consultant with
written notification.
(c) Consultant shall have a right to terminate this Agreement upon
providing SPSS with written notification when; 1) the work set forth in Exhibit
A is completed, or 2) any subsequent work agreed to by the parties that is
performed under the terms of this Agreement is completed.
9. NON-ASSIGNABILITY BY CONSULTANT.
Consultant shall not assign this Agreement or its duties hereunder to any
other entity or person.
10. STATUS OF CONSULTANT.
(a) Consultant is retained by SPSS only for the purposes set forth in this
Agreement, and Consultant's relationship to SPSS during the term of this
Agreement shall at all times be that of an independent contractor and not an
employee. Neither party shall represent to others that the relationship between
the parties is other than as stated above. Consultant shall not represent to any
person or other entity that Consultant is an agent of, or otherwise authorized
to do business on behalf of, SPSS.
(b) Consultant shall be free to dispose of that portion of Consultant's
entire time, energy and skill as Consultant is not obligated to devote to SPSS
hereunder, in such manner and on behalf of such persons as Consultant sees fit,
subject to Consultant's obligations under this Agreement.
(c) Consultant shall perform the services required pursuant to this
Agreement at Consultant's own risk and Consultant shall have no liability under
any workers' compensation law for any injuries which Consultant may incur in the
course of performing such services.
(d) Consultant shall not be entitled to participate in any employee benefit
plan or program sponsored by SPSS.
11. INDEMNITY.
Consultant shall indemnify SPSS and its affiliates and shall hold them
harmless against all claims, damages, losses and expenses (including without
limitation attorneys' fees) arising out of or resulting from the performance of
services covered by this Agreement caused in whole or in part by any negligent
or willful act or omission of Consultant.
12. REMEDIES.
(a) Consultant acknowledges that Consultant's breach of any of the
provisions of this Agreement may cause substantial injury to SPSS which may be
irreparable and/or in amounts difficult or impossible to ascertain. Accordingly,
in the event that Consultant breaches any of the provisions of this Agreement,
SPSS shall have, in addition to all other remedies available in the event of a
breach of this Agreement, the right to injunctive or other equitable relief.
(b) In the event SPSS shall enforce any part of this Agreement through
legal proceedings, Consultant shall pay to SPSS any costs and attorneys' fees
reasonably incurred by SPSS in connection therewith.
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(c) The taking of any action by SPSS or the forbearance of SPSS to take any
action shall not constitute a waiver by SPSS of any of its rights or remedies or
relief under this Agreement or at law or in equity.
13. NOTICES.
Any notice required or permitted to be given hereunder shall be in writing
and shall be effective 3 business days after it is properly sent by registered
or certified mail to SPSS or to Consultant, as the case may be, at their
respective addresses set forth above, or to such other address as either party
may from time to time designate by notice.
14. SEVERABILITY.
The parties hereto acknowledge that, under all circumstances, the
restrictions and commitments set forth in this Agreement are necessary to
protect the parties' respective legitimate interests and are reasonable in
scope, area and time. If, despite such acknowledgment, at the time of the
enforcement of any paragraph of this Agreement a court of competent jurisdiction
shall hold that the period or scope of the provisions thereof are unreasonable
under the circumstances then existing, the maximum reasonable period or scope
under such circumstances shall be substituted for the period or scope stated
herein. Each of the provisions contained in this Agreement shall be enforceable
independently of every other provision hereof, and the invalidity or
unenforceability of any such section shall not invalidate or render
unenforceable any other provision.
15. APPLICABLE LAW.
All questions with respect to the construction and performance of this
Agreement and the rights and liabilities of the parties hereto shall be
determined in accordance with the laws of the State of Illinois without giving
effect to its conflict of law principles. The parties submit to the jurisdiction
of the courts of Illinois in respect of any matter or thing arising out of this
Agreement or pursuant thereto.
16. ENTIRE AGREEMENT.
This instrument sets forth the entire agreement between the parties with
respect to the subject matter hereof and supersedes any and all prior agreements
between the parties, written or oral. There are no agreements, understandings,
restrictions, warranties or representations between the parties other than those
set forth herein. This Agreement shall not be varied, amended or supplemented
except by a writing executed by both parties.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first above written.
SPSS Inc. Consultant
By: /s/ Xxxx Xxxxxx By /s/ Xxxxxxxx X. Xxxxxxxxxxxx
Title: President and CEO -------------------------------------
Xxxxxxxx X. Xxxxxxxxxxxx
X0000 Xxxxxxxxx Xxxxx Xxxx
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Address
Xxxx Xxxxx, XX 00000
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City State Zip
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EXHIBIT A
STATEMENT OF WORK
WORK
Assist in the process of transitioning management and partner responsibilities
to the appropriate individuals at SPSS.
Perform other reasonable tasks requested by the CEO.
PAYMENT
Consultant shall be paid $30,000 per month. Payment will be made within seven
(7) days from end of each month Consultant performs the services set forth in
this Statement of Work.
TERM
Unless terminated early in accordance with the Agreement, Consultant shall
perform the services set forth in this Statement of Work for two (2) months
beginning the date the Consulting Agreement is executed.
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