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EXHIBIT 10.14
INDEPENDENT CONTRACTOR
SERVICES AGREEMENT
The following confirms the agreement (the "Agreement") between Alta Software,
Inc. (the "Independent Contractor") and Cisco Systems Inc. (the "Company") with
respect to the provision of consulting services to the Company.
1. Term of Agreement. This Agreement is effective as of August 13, 1997, and
will terminate on August 31, 1998, (the "Termination Date") unless
terminated earlier pursuant to Paragraph 10 of this Agreement. The terms
and conditions of this Agreement shall apply to any Work Statement
(Attachment A) issued hereunder, whether or not the Agreement remains in
effect when performance or any claim under the Work Statement is made.
2. Independent Contractor Status. It is the express intention of the parties
to this Agreement that the Independent Contractor is not an employee,
agent, joint venture, or partner of the Company. Nothing in this Agreement
shall be interpreted or construed as creating or establishing an employment
relationship between the Company and the Independent Contractor. Both
parties understand and agree that the Independent Contractor may, and
probably will, perform services for others during the term of this
Agreement.
3. Warranties. Independent Contractor warrants that Company has the right to
make any use of the Work Product and any materials, concepts, processes, or
information contained therein as Company may determine, without violation
of any right of any third party and without creating any obligation on the
part of Company to pay any fee, penalty, or other expense in connection
with Company's use, reproduction, marketing, licensing or sale.
Independent Contractor warrants that he/she is in the business of providing
to other companies services similar to those provided to the Company under
this Agreement; Independent Contractor further warrants that he/she either
is providing, or has provided, such services to other companies.
4. Services/Ownership. Independent Contractor shall provide the services
described in any Work Statement to which this Agreement relates (the
"Services"). "Work Product" shall mean all deliverables, recommendations,
reports, designs, diagrams, specifications, writings of any nature,
photographs, artwork, audio and audio-visual works, computer programs,
inventions, discoveries and improvements developed, conceived or reduced to
practice in the course of or arising out of any Services. A Work Statement
may only be changed in writing, signed by both parties. The parties
understand and agree that Independent Contractor will have the sole
discretion to determine the method, means, and location of performing the
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Services, and that the Company has no right to, and will not, control or
determine the method, means, or place of the performance of the Services.
All Work Product shall be disclosed promptly to Company and will be the
exclusive property of Company. Independent Contractor transfers and assigns
to Company all right, title and interest in the Work Product, including all
rights in any patents, copyrights, trade secrets, inventions, copyrightable
materials or other intellectual property rights relating to the Work
Product. Independent Contractor shall execute any documents and otherwise
cooperate with Company in any action Company deems necessary to secure
fully to Company all rights in the Work Product or to obtain, maintain or
defend for Company's benefit any of the intellectual property rights
identified above.
5. Employment of Assistants. Should the Independent Contractor, in his/her
sole discretion, deem it necessary to employ assistants to aid him/her in
the performance of the Services, the parties agree that the Company will
not direct, supervise or control in any way such assistants to the
Independent Contractor in their performance of Services. The parties
further agree that such assistants are employed solely by the Independent
Contractor, and that he/she alone is responsible for providing workers'
compensation insurance for his/her employees, for paying the salaries and
wages of his/her employees, for ensuring that all required tax withholdings
are made, and for ensuring that the employee has the legal right to work in
the United States at Cisco and has obtained the proper I-9 verification.
Independent Contractor further represents and warrants that it maintains
workers' compensation insurance coverage for his/her employees and
acknowledges that it alone has responsibility for such coverage.
6. Obligations of the Independent Contractor.
a. The Independent Contractor will supply all tools and equipment necessary
to perform the Services unless otherwise agreed on each Work Statement.
b. Independent Contractor is solely responsible for all taxes, withholdings
and other similar statutory obligations; and Independent Contractor agrees
to defend, indemnify and hold Company harmless from any and all claims made
by any entity on account of an alleged failure by the Independent
Contractor to satisfy any such tax or withholding obligations.
c. Independent Contractor will use its best efforts to perform all work in
a competent and workmanlike manner substantially to agreed-to
specifications. ALL OTHER WARRANTIES, INCLUDING MERCHANTABILITY AND
FITNESS, ARE DISCLAIMED. NEITHER PARTY IS LIABLE FOR DIRECT DAMAGES
EXCEEDING THE PRICE OR
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FOR ANY INDIRECT DAMAGES EXCEEDING THE PRICE OR FOR ANY INDIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES.
7. Reporting to the Company's Facilities. Independent Contractor is not
required to report to work at the offices of the Company during any
particular work hours. Rather, Independent Contractor is free to report or
not report to the Company's offices as he/she sees fit. When Independent
Contractor does visit the Company's offices, he/she will be required to
sign in and be issued a temporary identification badge like any other
non-employee visitor to the Company's facilities.
8. Compensation. Unless designated as a "firm fixed price" and matched to a
clear statement of work all dollar figures are deemed reasonably accurate
estimates. Independent Contractor shall be paid as specified on each
Individual Work Statement. Independent Contractor shall submit to the
Company invoices for all services rendered and, assuming performance of the
work as required herein, the Company agrees to adhere to the payment
schedule as agreed upon in each Work Statement. The foregoing fees are
Independent Contractor's sole compensation for rendering Services to the
Company. Except for reimbursement of Independent Contractor's reasonable,
documented travel costs, the parties agree that the Company is not
responsible to reimburse any costs or expenses incurred by Independent
Contractor in performing the Services unless otherwise agreed to in a Work
Statement.
9. Confidential Information. Independent Contractor understands that the
Company possesses Proprietary Information as defined below which is
important to its business and that this Agreement creates a relationship of
confidence and trust between Independent Contractor and the Company with
regard to Proprietary Information.
a. For purposes of this Agreement, "Proprietary Information" is information
that was or will be developed, created or discovered by or on behalf of the
Company, or is developed, created or discovered by Independent Contractor
while performing Services, or which became or will become known by, or
was/is conveyed to the Company which has commercial value in the Company's
business. "Proprietary Information" includes, but is not limited to, trade
secrets, computer programs, ideas, techniques, inventions (whether
patentable or not), business and product development plans, customers and
other information concerning the Company's actual or anticipated business,
research or development, personnel information, Inventions (as defined in
subsection e. below), or which is received in confidence by or for the
Company from any other person. Proprietary Information does not include any
information independently developed by Independent Contractor outside the
scope of this Agreement. Nothing herein precludes Independent Contractor
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from re-using general technical expertise not involving Proprietary
Information.
b. At all times, both during the term of this Agreement and after its
termination, Independent Contractor will keep in confidence and trust, and
will not use or disclose, any Proprietary Information without the prior
written consent of an officer of the Company, except as may be necessary in
the ordinary course of performing the Services under this Agreement. In the
case whereby Independent Contractor employs an assistant, the Independent
Contractor shall require the assistant to sign a Confidential Information
agreement containing the same conditions as this Section 9 and all benefits
shall enure to Company.
c. Independent Contractor understands that the Company possesses or will
possess "Company Documents" which are important to its business. For
purposes of this Agreement, "Company Documents" are documents or other
media that contain or embody Proprietary Information or any other
information concerning the business, operations or plans of the Company,
whether such documents have been prepared by Independent Contractor or by
others. "Company Documents" include, but are not limited to, blueprints,
drawings, photographs, charts, graphs, notebooks, customer lists, computer
disks, personnel files, tapes or printouts, sound recordings and other
printed, typewritten or handwritten documents. All Company Documents are
and shall remain the sole property of the Company. Independent Contractor
agrees not to remove any Company Documents from the business premises of
the Company or deliver any Company Documents to any person or entity
outside the Company, except as required in connection with performance of
the Services under this Agreement. Independent Contractor further agrees
that, immediately upon the Company's request and in any event upon
completion of the Services, Independent Contractor shall deliver to the
Company all Company Documents, apparatus, equipment and other physical
property or any reproduction of such property, excepting only Independent
Contractor's copy of this Agreement.
d. During the term of this Agreement and for two (2) years thereafter,
neither party will hire or solicit any employee of the other party to leave
the other party for any reason. Violation of this provision may be enforced
by injunctive relief.
e. Independent Contractor will promptly disclose in writing to the Company
all "Inventions" (which term includes improvements, inventions, designs,
formulas, works of authorship, trade secrets, technology, mask works,
circuits, layouts, algorithms, computer programs, ideas, processes,
techniques, know-how and data, whether or not patentable) made, conceived,
reduced to practice or developed by Independent Contractor, either alone or
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jointly with others, during the term of this Agreement in connection with
the Services or which relate to any Proprietary Information.
All Proprietary Information and all title, patents, patent rights,
copyrights, mask work rights, trade secret rights and other intellectual
property and rights anywhere in the world (collectively "Rights") in
connection therewith shall be the sole property of the Company. Independent
Contractor hereby assigns to the Company any Rights Independent Contractor
may have or acquire in such Proprietary Information.
Independent Contractor agrees that all Inventions which Independent
Contractor makes, conceives, reduces to practice or develops (in whole or
in part, either alone or jointly with others) during the term of this
Agreement in connection with the Services or which relate to any
Proprietary Information shall be the sole property of the Company.
Independent Contractor agrees to assign and hereby assigns to the Company
all Rights to any such Inventions.
f. Independent Contractor agrees to perform, during and after the term of
this Agreement, all acts deemed necessary or desirable by the Company to
permit and assist it, at Independent Contractor's reasonable rate, in
evidencing, perfecting, obtaining, maintaining, defending and enforcing
Rights and/or Independent Contractor's assignment with respect to such
Inventions in any and all countries. Such acts may include, but are not
limited to, execution of documents and assistance or cooperation in legal
proceedings, Independent Contractor hereby irrevocably designates and
appoints the Company and its duly authorized officers and agents, as
Independent Contractor's agents and attorneys-in-fact to act for and in
behalf and instead of Independent Contractor, to execute and file any
documents and to do all other lawfully permitted acts to further the above
purposes with the same legal force and effect as if executed by Independent
Contractor.
g. Independent Contractor represents that performance of all the terms of
this Agreement will not breach any agreement to keep in confidence
Proprietary Information acquired by Independent Contractor in confidence or
in trust prior to the execution of this Agreement. Independent Contractor
has not entered into, and Independent Contractor agrees not to enter into,
any agreement either written or oral that conflicts or might conflict with
Independent Contractor's performance of the Services under this Agreement.
h. If any Rights or Inventions assigned hereunder are based on, or
incorporate, or are improvements or derivatives of, or cannot be reasonably
made, used, reproduced and distributed without using or violating
technology or Rights owned or licensed by Independent Contractor and not
assigned hereunder, Independent Contractor hereby grants the Company a
perpetual, worldwide royalty-free, non-exclusive sublicensable right and
license to
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exploit and exercise all such technology and Rights in support of the
Company's exercise or exploitation or any assigned Rights or Inventions
(including any modifications, improvements and derivatives thereof).
10. Termination of Agreement. This Agreement or any Work Statement may be
terminated by either the Company or the Independent Contractor at any time
prior to the Termination Date by written notice of termination. Such notice
may be given at any time for any reason, with or without cause.
11. Enforceability of Agreement. Independent Contractor agrees that any dispute
in the meaning, effect or validity of this Agreement shall be resolved in
accordance with the laws of the State of California without regard to the
conflict of law provisions thereof. Independent Contractor further agrees
that if one or more provisions of this Agreement are held to be
unenforceable under applicable California law, such provision(s) shall be
excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision(s) were so excluded and shall be
enforceable in accordance with the terms.
12. Assignment. This Agreement shall not be assignable by either the
Independent Contractor or the Company without the express written consent
of the other party.
13. Arbitration. Any controversy between the parties hereto involving the
construction or application of any terms, covenants or conditions of this
Agreement or any claim arising out of or relating to this Agreement will be
submitted to and be settled by final and binding arbitration in San Jose,
California, in accordance with the rules of the American Arbitration
Association then in effect, and judgment upon the award rendered by the
arbitrators may be entered in any court having jurisdiction thereof.
14. Entire Understanding. This Agreement contains the entire understanding of
the parties regarding its subject matter and can only be modified by a
subsequent written agreement executed by the Independent Contractor and the
Vice President of Human Resources.
15. Notices. All notices required or given herewith shall be addressed to the
Company or Independent Contractor at the designated addresses shown below
by registered mail, special delivery or by certified courier service:
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a. To Company: b. To Independent Contractor
Cisco Systems, Inc. Alta Software, Inc.
000 Xxxx Xxxxxx Xxxxx 00000 Xxxxxx Xxxxx Xxxx, Xxxxx 000X
Xxx Xxxx, XX 00000 Xxxxxx, XX 00000
16. Attorneys' Fees. If any action at law or in equity is necessary to enforce
or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs and necessary disbursements,
in addition to any other relief to which the party may be entitled.
Cisco Systems, Inc. Independent Contractor
Dated: 8/13/97 Dated: Aug. 13, 1997
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By: /s/ X. Xxxxx By: /s/ Xxxxxx Xxxxxxxxx
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Title: Commodity Mgr. Title: Chairman
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