Exhibit 10.12
FORM OF CONSULTING AGREEMENT
Effective ___________________________, 1999, Xxxxxx Healthcare Corporation,
acting through its _______ Division having an address at _____, ("BAXTER") and
______, residing at _____ ("Consultant") agree to the following terms and
conditions under which Consultant has agreed to provide BAXTER with Consulting
Service during the period ending _____ from the Effective Date of this
Agreement.
1. Scope of Work
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The services performed by Consultant for BAXTER pursuant to this Agreement
shall be deemed to be within the general field of _____ ("Field of the
Agreement"). Consulting Service shall mean those services to be performed by
Consultant for XXXXXX as outlined in the attached Exhibit A.
2. Compensation
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BAXTER shall pay Consultant for Consulting Service actually requested by
and provided to BAXTER at the rate of _____. Consultant has agreed to provide
BAXTER with a minimum of _____ of Consulting Service under this Agreement.
Consultant also recognizes that any obligation specifying a minimum number of
hours to be made available by Consultant shall not be interpreted as binding
BAXTER to use Consultant for the specified number of hours. BAXTER shall only be
obligated to pay Consultant for the actual number of hours requested by BAXTER
and provided by Consultant.
In the event that BAXTER requests Consultant to provide Consulting Service
at a location away from the metropolitan area of Consultant's regular place of
business, BAXTER will reimburse Consultant for reasonable travel and living
expenses incurred by Consultant. It is understood and agreed that BAXTER will
stipulate the places and locations where Consultant will provide the Consulting
Service. Payment for the Consulting Service and any travel expenses will be made
upon submission by Consultant, and approval by BAXTER of an itemized account of
the Consulting Service provided, travel expenses incurred, and payments due.
3. Manner of Performance
---------------------
Consultant represents that Consultant has the requisite expertise, ability
and legal right to render the Consulting Service, and will perform the
Consulting Service in an efficient manner and in accordance with the terms of
this Agreement. Consultant will abide by all laws, rules and regulations that
apply to the performance of the Consulting Service and when on XXXXXX'x
premises, will comply with XXXXXX'x policies with respect to conduct of
visitors.
In performing the Consulting Service, Consultant will comply with Baxter
Shared Values: Standards for Business Ethics, a copy of which Consultant
acknowledges having received, read and understood.
Consultant is an independent contractor, and shall not be considered an
employee of XXXXXX. XXXXXX will not be responsible for Consultant's acts while
performing the Consulting Services, whether on XXXXXX'x premises or elsewhere,
and Consultant will not have authority to speak for, represent, or obligate
BAXTER in any way.
4. Confidentiality
---------------
During discussions leading up to this Agreement, and during the course of
the Consulting Service performed pursuant to this Agreement, it is anticipated
that Consultant will learn confidential and/or proprietary information of
BAXTER. Consultant will keep confidential, and not use, except in connection
with the Consulting Service to be provided hereunder, information which is
provided to Consultant by BAXTER and/or developed by Consultant while performing
Consulting Service, including without limitation, information concerning BAXTER
products, manufacturing processes, customers, product pricing, and technical
know-how, unless and until BAXTER consents to disclosure, or unless such
information otherwise was previously known by Consultant, as documented by
Consultant in writing, or becomes generally available to the public through no
fault of Consultant. The obligations of non-use and confidentiality of such
information shall survive the termination of this Agreement.
Consultant further represents that any and all information disclosed to
BAXTER, or used for the benefit of BAXTER by Consultant does not include any
confidential, trade secret or proprietary information of others.
Consultant will not disclose to others, without XXXXXX'x consent, the fact that
it is providing Consulting Service for BAXTER. Upon termination of this
Agreement, Consultant will return to BAXTER all copies of drawings,
specifications, manuals and other printed or reproduced material (including
information stored on machine readable media) provided to Consultant by BAXTER
or developed by Consultant during the performance of Consulting Services under
this Agreement.
5. Conflicts of Interest
---------------------
Consultant represents that it has advised BAXTER in writing prior to the
date of signing this Agreement of any relationship with third parties, including
competitors of BAXTER, which would present a conflict of interest with the
Consulting Service, or which would prevent Consultant from carrying out the
terms of this Agreement. Consultant agrees to advise BAXTER of any such
relationships that arise during the term of this Agreement.
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BAXTER will have the option to terminate this Agreement without further
liability to Consultant, upon learning of the occurrence of any of the described
events except to pay for any Consulting Service actually rendered. Consultant
shall have no recourse against BAXTER for termination under this Article.
6. Relationship with Others
------------------------
During the term of this Agreement, and for one year after its termination
date, Consultant agrees not to perform any service within the Field of the
Agreement or which may utilize any of the information obtained from BAXTER or
any information developed during the course of performing the Consulting Service
for BAXTER, for any other entity, and in particular any other entity engaged in
the development, manufacture, distribution or sales of medical care products or
services.
7. Indemnification
---------------
Consultant agrees to indemnify and hold BAXTER harmless for any injury
occurring to the property or person of Consultant as a result of Consultant's
performance of Consulting Services under this Agreement, provided that said
injury has not occurred because of the gross negligence of XXXXXX.
8. Ownership of Developments
-------------------------
Consultant agrees and does hereby assign to BAXTER, any and all of
Consultant's interest in any inventions or discoveries, which includes all
written materials and other works which may be subject to copyright, and all
patentable and unpatentable inventions, discoveries, and ideas (including but
not limited to any computer software) which are reduced to practice, conceived
or written by Consultant during the term of this Agreement, and for 90 days
after it expires, and which are based upon any information received from BAXTER,
and/or developed as a result of performing the Consulting Service for BAXTER
(hereinafter "Development"). Consultant agrees to hold all such Developments
confidential in accordance with Article 4 of this Agreement.
Consultant shall disclose promptly to BAXTER each such inventions or
discoveries and, upon XXXXXX'x request and at XXXXXX'x expense, Consultant will
assist BAXTER, or anyone it designates, in filing and prosecuting patent or
copyright applications in any country in the world. Each copyrightable work, to
the extent permitted by law, will be considered a work made for hire and the
authorship and copyright of the work shall be in XXXXXX'x name. Consultant will
execute all papers and do all things which may be necessary or advisable, in the
opinion of BAXTER, to prepare, file and prosecute such applications, and to
evidence the assignment in BAXTER, or its designee, of all right, title and
interest in and to such Development.
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BAXTER agrees to compensate Consultant for any time Consultant actually
spends in response to a specific request for assistance by BAXTER under this
Article. If for any reason Consultant's interest in such Development is
subordinate to another party, or if Consultant's interest in such Development
has been released to another party pursuant to a contract or governmental
regulation, Consultant agrees to notify BAXTER and take whatever steps XXXXXX
xxxxx necessary to convert or transfer such third party's interest in such
Development to Consultant for subsequent transfer to BAXTER under the terms of
this Agreement. Furthermore, if for any reason BAXTER is unable to obtain
Consultant's execution of any paper necessary to prepare, file and/or prosecute
such applications, Consultant hereby conveys to BAXTER its power of attorney
only for the purpose of executing any such papers necessary to prepare, file
and/or prosecute such applications.
9. Disclosures to BAXTER
---------------------
If during the term of this Agreement, Consultant discloses any
copyrightable works, inventions, discoveries, or ideas to BAXTER which were
conceived or written prior to this Agreement, or which are not based upon any
information received from BAXTER, and/or developed as a result of performing the
Consulting Service under this Agreement, BAXTER will have no liability to
Consultant because of its use of such works, inventions, discoveries or ideas,
except liability for infringement of any valid copyright or patent now or
hereafter issued thereon.
10. Term
----
The term of this Agreement is as specified on the first page of this
Agreement. The parties agree that this Agreement may be extended by mutual
written agreement. BAXTER shall have the right to terminate this Agreement upon
sixty (60) days written notice to Consultant. Consultant agrees that he shall
have no recourse against BAXTER, beyond that provided for under Article 2, for
XXXXXX'x earlier termination. XXXXXX'x only obligation upon such termination is
to compensate Consultant for any time actually spent by Consultant in providing
Consulting Services under this Agreement and for properly reimbursable travel
expenses.
11. General
-------
No assignment by Consultant of this Agreement, or any sums due under it,
will be binding on BAXTER without XXXXXX'x prior written consent. This Agreement
supersedes all prior agreements and understandings between the parties
respecting the subject matter of this Agreement. This Agreement may not be
changed or terminated orally by or on behalf of either party. In the event
either party breaches this Agreement, the other party will have the right to
terminate the Agreement. In the event of the actual or threatened breach of any
of the terms of paragraphs 4, 6, and 8, BAXTER will have the right to specific
performance and injunctive relief. The rights granted by this paragraph are in
addition to all other remedies and rights available at law or in equity. This
Agreement shall be construed according to the laws of California for contracts
made within that state.
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12. Severability
------------
If any of the provisions of this Agreement are void or unenforceable, the
remaining provisions shall nevertheless be effective, the intent being to
effectuate this Agreement to the fullest extent possible.
CONSULTANT XXXXXX HEALTHCARE CORPORATION
_____ DIVISION
By: ______________________________ By: ______________________________
Title: ___________________________ Title: ___________________________
Date: ____________________________ Date: ____________________________
Soc. Sec. No.: __________________
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