EXHIBIT 10.35
AVANTGO, INC.
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CONSULTING AGREEMENT
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This Consulting Agreement (the "Agreement") is entered into by and between
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AvantGo, Inc. (the "Company") and X.X. Xxxxxx & Company ("Consultant").
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1. Consulting Relationship. During the term of this agreement, Consultant
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will provide consulting services (the "Services") to the Company as described on
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Exhibit A attached to this Agreement. Consultant shall use Consultant's best
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efforts to perform the Services in a manner satisfactory to the Company.
2. Fees. As consideration for the Services to be provided by Consultant
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and other obligations, the Company will compensate Consultant as described in
Exhibit B to this Agreement.
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3. Expenses. Consultant shall not be authorized to incur on behalf of the
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Company any expenses, except as expressly specified in Exhibit B, without the
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prior written consent of the Company's Chief Executive Officer. As a condition
to receipt of reimbursement, Consultant shall be required to submit to the
Company reasonable evidence that the amount involved was expended and related to
Services provided under this Agreement.
4. Term and Termination. Consultant shall serve as a consultant to the
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Company for a period commencing on March 31, 1998, and terminating on the
earlier of the date on which (a) Consultant ceases to provide services to the
Company under this Agreement, (b) Consultant shall have been paid the maximum
amount of consulting fees as provided in Exhibit B, or (c) within 30 days of a
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notice of cancellation by either the Company or the Consultant.
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Either party may terminate this Agreement at any time upon ten (10) days'
written notice.
5. Independent Contractor. Consultant's relationship with the Company
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will be that of an independent contractor and not that of an employee.
Consultant will not be eligible for any employee benefits, nor will the Company
make deductions from payments made to Consultant for taxes, all of which will be
Consultant's responsibility. Consultant agrees to indemnify and hold the Company
harmless from any liability for, or assessment of, any such taxes imposed on the
Company by relevant taxing authorities. Consultant will have no authority to
enter into contracts that bind the Company or create obligations on the part of
the Company without the prior written authorization of the Company.
6. Supervision of Consultant's Services. All services to be performed by
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Consultant, including but not limited to the Services, will be as agreed between
Consultant and the Company's Director of Marketing. Consultant will be required
to report to the Director of Marketing concerning the Services performed under
this Agreement. The nature and frequency of these reports will be left to the
discretion of the Director of Marketing.
7. Consulting or Other Services for Competitors. Consultant represents
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and warrants that Consultant will not, during the term of this Agreement,
perform any consulting or other services for any company, person or entity whose
business or proposed business in any way involves products or services which
could reasonably be determined to be competitive with the products or services
or proposed products or services of the Company.
8. Confidentiality Agreement. Consultant shall sign, or has signed, a
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Proprietary Information and Invention Assignment Agreement substantially in the
form attached to this Agreement as Exhibit C (the "Confidentiality Agreement"),
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prior to or on the date on which Consultant's consulting relationship with the
Company commences. In the event that Consultant is an entity or otherwise will
be causing individuals in its employ or under its supervision to participate in
the rendering of the Services, Consultant warrants that it shall cause each of
such individuals to execute a Confidentiality Agreement in the form attached as
Exhibit C.
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9. Conflicts with this Agreement. Consultant represents and warrants that
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neither Consultant nor any of Consultant's partners, employees or agents is
under any pre-existing obligation in conflict or in any way inconsistent with
the provisions of this Agreement. Consultant warrants that Consultant has the
right to disclose or use all ideas, processes, techniques and other information,
if any, which Consultant has gained from third parties, and which Consultant
discloses to the Company in the course of performance of this Agreement, without
liability to such third parties. Consultant represents and warrants that
Consultant has not granted any rights or licenses to any intellectual property
or technology that would conflict with Consultant's obligations under this
Agreement. Consultant will not knowingly infringe upon any copyright, patent,
trade secret or other property right of any former client, employer or third
party in the performance of the services required by this Agreement.
10. Miscellaneous.
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(a) Amendments and Waivers. Any term of this Agreement may be amended
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or waived only with the written consent of the parties.
(b) Sole Agreement. This Agreement, including the Exhibits hereto,
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constitutes the sole agreement of the parties and supersedes all oral
negotiations and prior writings with respect to the subject matter hereof.
(c) Notices. Any notice required or permitted by this Agreement shall
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be in writing and shall be deemed sufficient upon receipt, when delivered
personally or by courier, overnight delivery service or confirmed facsimile, or
forty-eight (48) hours after being deposited in the regular mail as certified or
registered mail (airmail if sent internationally) with postage prepaid, if such
notice is addressed to the party to be notified at such party's address or
facsimile number as set forth below, or as subsequently modified by written
notice.
(d) Choice of Law. The validity, interpretation, construction and
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performance of this Agreement shall be governed by the laws of the State of
California, without giving effect to the principles of conflict of laws.
(e) Severability. If one or more provisions of this Agreement are
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held to be unenforceable under applicable law, the parties agree to renegotiate
such provision in good faith. In the event that the parties cannot reach a
mutually agreeable and enforceable replacement for such provision, then (i) such
provision shall be excluded from this Agreement, (ii) the balance of the
Agreement shall be interpreted as if such provision were so excluded and
(iii)the balance of the Agreement shall be enforceable in accordance with its
terms.
(f) Counterparts. This Agreement may be executed in counterparts,
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each of which shall be deemed an original, but all of which together will
constitute one and the same instrument.
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(g) Arbitration. Any dispute or claim arising out of or in connection
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with any provision of this Agreement, excluding Section 7 hereof, will be
finally settled by binding arbitration [in San Jose, California] in accordance
with the rules of the American Arbitration Association by one arbitrator
appointed in accordance with said rules. The arbitrator shall apply California
law, without reference to rules of conflicts of law or rules of statutory
arbitration, to the resolution of any dispute. Judgment On the award rendered by
the arbitrator may be entered in any court having jurisdiction thereof.
Notwithstanding the foregoing, the parties may apply to any court of competent
jurisdiction for preliminary or interim equitable relief, or to compel
arbitration in accordance with this paragraph, without breach of this
arbitration provision. This Section 10(g) shall not apply to the Confidentiality
Agreement.
(h) Advice of Counsel. EACH PARTY ACKNOWLEDGES THAT, IN EXECUTING
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THIS AGREEMENT, SUCH PARTY HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF
INDEPENDENT LEGAL COUNSEL, AND HAS READ AND UNDERSTOOD ALL OF THE TERMS AND
PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY
PARTY BY REASON OF THE DRAFTING OR PREPARATION HEREOF.
[Signature Page Follows]
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The parties have executed this Agreement on the respective dates set forth
below.
AVANTGO, INC.
By: /s/ [ILLEGIBLE]^^
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Title: Dir. of Mktg
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Address: 0000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Date: 4/13/98
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XX XXXXXX & COMPANY, INC.
/s/ Xxxxx X. Xxxxx
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Signature
Name: Xxxxx Xxxxx
Title: Principal
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Address: 0000 Xxxxxxxxxxx Xxxx, Xxxxx 0000
Xxxx Xxxx, XX 00000
Date: 4/16/98
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SIGNATURE PAGE TO BOMBARDIER SOFTWARE, INC. CONSULTING AGREEMENT
