1
EXHIBIT 10.9
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made and entered into as of the
24th day of March, 2000 by and between ICX XXXXXXXXXXX.XXX, a corporation duly
organized and existing in the State of California (the "Company"), and
BUSINESSWARE INC., a corporation duly organized and existing in the State of
California, (the "Consultant").
WITNESSETH
WHEREAS, the Company desires to engage the Consultant to perform certain
services of economic use to the Company in the conduct of its business, and the
Consultant desires to be so engaged by the Company and has represented that it
possesses the necessary skills and expertise required to perform such services;
NOW, THEREFORE, in consideration of the mutual premises and the promises
and representation herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties, intending to be legally bound, hereby agree as follows:
1. ENGAGEMENT OF THE CONSULTANT:
(a) By its execution of this Agreement, the Company hereby engages
Consultant to perform the specific services set forth on
Schedule A attached hereto, as the same may be amended from time
to time during the Term hereof ("Schedule A"), and such other
services as the Company may reasonably request from time to time
during the Term (as hereinafter defined) of this Agreement
(collectively, the "Services"), subject to and in accordance
with the terms and conditions hereinafter set forth.
(b) By its execution of this Agreement, the Consultant agrees to be
so engaged, and to perform faithfully the Services to the best
of its ability during the Term hereof, subject to and in
accordance with the terms and conditions see forth herein.
(c) The Company may periodically request during the Term hereof
written reports concerning the Consultant's progress, project
status and other matters pertaining to its performance of the
Services, and the Consultant shall promptly provide such reports
to the Company at no additional charge, upon the request of the
Company or as otherwise required by Schedule A. To the extent
that any such delay is caused by circumstances beyond either
party's reasonable control, the applicable time periods
described above shall be extended to allow for such delay.
-1-
2
2. COMPENSATION/TAXES.
(a) As full and complete consideration for the Services to be
performed by the Consultant hereunder, the Company agrees to pay
the Consultant the total fees (the "Fees") set forth on Schedule
B attached hereto, as the same may be amended from time to
time during the Term hereof ("Schedule B"), inclusive of any and
all amounts representing taxes due or becoming due and payable
thereon by the Consultant, which taxes shall be the Consultant's
complete responsibility. Payment of the fees specified in
Schedule B is subject to completion of the Services
to the satisfaction of the Company.
(b) The Fees expressly set forth on Schedule B include all sums due
and owing of every kind and description including, but not
limited to, reimbursable expenses for telephone calls, mileage
and services such as copying costs and mailing expenses. Unless
these costs are specifically agreed to in the future as separate
reimbursable expense items in writing, the Company will not pay
the Consultant therefor.
(c) Any such expense which is not expressly set forth on Schedule B
must be approved in writing by an authorized representative of
the Company. All authorized expenses shall be corroborated by
appropriate, itemized receipts with supportive documentation and
shall be submitted in accordance with the Company's instructions
therefor. Any tickets purchased for air or ground transportation
are to be for "coach" fares.
3. DELEGATION OF DUTIES; KEY PERSONNEL.
(a) The Consultant shall be the primary responsible person for the
full and proper performance of all Services hereunder. The
Consultant shall not have, without the prior written consent of
the Company, the right to delegate to employees or independent
contractors, or to sub-contract, any of the Services, and in no
event shall any such delegation of duties alter or amend any
provision of this Agreement, including with respect to
compensation to the Consultant or payment of expenses, nor shall
it relieve the Consultant of any obligation, liability or other
duty owed to the Company hereunder.
(b) Under no circumstances shall the Consultant engage or permit any
employee, independent contractor or sub-contractor to perform
any of the Services, or to receive or obtain any Confidential
Information (as hereinafter defined) concerning the Company or
the Services, without first obtaining the written agreement of
such person or contractor to be bound by all of the terms and
conditions contained herein, including without limitation, with
respect to the treatment of Confidential Information, the
proprietary rights of the Company in any products or results of
the Services, non-competition and compliance with laws.
-2-
3
4. PROPRIETARY RIGHTS OF THE COMPANY IN CONSULTANT'S WORK PRODUCT. By its
execution of this Agreement, the Consultant expressly acknowledges to,
and agrees with, the Company, that in the performance of its duties
hereunder it will be responsible for providing to the Company certain
concepts, ideas and materials which are intended to be incorporated into
and/or used in conjunction with other materials prepared by or on behalf
of the Company for commercial purposes, including without limitation
certain written and/or graphic materials that qualify for protection
under the United States Copyright Act (the "Works"). By its execution
hereof, the Consultant expressly acknowledges to, and agrees with, the
Company that it hereby assigns and will assign all of its present and
future rights, title and interest in and to all such materials, items,
designs, ideas, concepts and other work product resulting from the
Services created or developed by the Consultant, including, without
limitation, all Works, and all previous versions and drafts, and all
derivations, improvements, modifications or other alterations made from
or to such Works by the Consultant, and the copyrights in all of the
foregoing (the "Assigned Items"). All of such Assigned Items, upon such
assignment, shall be and remain the exclusive property of the Company,
as to which the Company shall have the perpetual, sole and unfettered
use for any and all purposes, and no other party, including without
limitation, the Consultant shall have any rights to reproduce, adapt,
distribute, perform, display or otherwise use in any other manner, any
of the Assigned Items. By its execution of this Agreement, the
Consultant represents and acknowledges to the Company that the
compensation recited in Schedule B hereof shall be the only
consideration to be paid to the Consultant for performance of
the Services and the assignment of all Assigned Items hereunder, and
that such compensation represents fair and adequate consideration
therefor. The Consultant agrees with the Company that, to the extent
that any of the Works would qualify to be "works made for hire", as
defined in Section 101 of the United States Copyright Act, then such
Works shall be considered "works made for hire" for purposes of this
Agreement. The Consultant further agrees with the Company that, to the
extent any of the Assigned Items are derived from any concepts, ideas,
methods, designs or other items which are proprietary to the Consultant,
or any employee or agent thereof, and which are ever deemed not to have
been assigned, or required to be assigned, hereunder, then the
Consultant and/or such employee or agent hereby grants to the Company a
non-exclusive, perpetual, royalty-free license to use all of such
concepts, ideas, methods, designs or other items, which license is
granted as a part of the Services to be provided hereunder and the
consideration for which is expressly included in the total compensation
set forth in Schedule B, it being the express intent of the parties that
the Company obtain from the Consultant hereunder, without
further consideration, the unrestricted ownership of and right to use
all of the Works/product developed by the Consultant in the performance
of its Services hereunder, of whatever kind or nature.
5. CONFIDENTIALITY.
(a) Consultant hereby represents and warrants to the Company that
the performance of the Services by Consultant will not violate
any proprietary rights of third parties, including, without
limitation, patents, copyrights, trade or service marks or trade
secrets, and that Consultant's Services to the Company hereunder
will not
-3-
4
violate any obligations or confidential relationships (whether
created by contract or by operation of law) which Consultant may
have to/with any third party. Consultant agrees to indemnify,
defend and hold harmless the Company, its officers, directors,
employees, agents and representatives from and against any
and/or all liability, loss, cost and expense (including
reasonable attorneys' fees and court costs), causes of action,
claims or demands arising in any manner whatsoever out of
Consultant's breach of its representations and warranties
herein, including without limitation these contained in the
Section 5(a).
(b) Consultant agrees to hold in trust and confidence all of the
information regarding the Company's business, the Services
performed hereunder and the results thereof (i) disclosed by
Company, its agents or employees to Consultant hereunder; (ii)
obtained from the Company or otherwise learned as a result of
the Services performed for the Company; and/or (iii) used as a
basis for and/or contained in any reports prepared by Consultant
for the Company hereunder (the "Confidential Information"). The
existence and substance of this Agreement shall be included as
Confidential Information. Consultant will not disclose all or
any part of the Confidential Information to any third party nor
make any press release regarding the existence of this Agreement
nor make any commercial or other use thereof without the prior
written consent of the Company provided, however, that
Consultant may use the Company's name as a trade reference.
(c) It is understood, however, that the foregoing restrictions in
Paragraph 5(b) above shall not apply to any portion of the
Confidential Information which Consultant can clearly
demonstrate falls within any of the following categories: (i)
information that as of the time of disclosure to the Consultant,
was already known to Consultant without obligation of
confidentiality, as demonstrated by appropriate documentary
evidence antedating the relationship between Consultant and the
Company; (ii) information obtained after the date hereof by
Consultant from a third party which is lawfully in possession of
such information and not in violation of any contractual or
legal obligation to the Company to maintain confidentiality with
respect to such information; or (iii) information which is or
becomes part of the public domain through no fault of the
Company or its employees.
(d) Consultant agrees to restrict access to all of the Confidential
Information within its organization to only such limited group
of authorized employees and/or agents who (i) require such
information in connection with their activities as contemplated
by this Agreement, and (ii) have agreed in writing with
Consultant to maintain the confidential nature of all
proprietary information, including that of third parties,
received by them in the course of their employment or
engagement.
(e) Upon termination of this Agreement, or earlier upon the
Company's request, Consultant shall deliver all items containing
any Confidential Information to the Company or make such other
disposition thereof as the Company may direct, and shall certify
to the Company that it has retained no copies of the same.
-4-
5
(f) Disclosure of Confidential Information to Consultant hereunder
shall not constitute any option, grant or license to Consultant
under any patent or other rights now or hereinafter held by the
Company, its subsidiaries, or any of its affiliated companies to
use or exploit the same for any purpose.
6. NON-COMPETITION/COMPLIANCE WITH LAWS.
(a) The Company agrees that Consultant may engage in other business
activities provided they do not affect Consultant's ability to
perform the Services or its other obligations hereunder, or to
carry out its responsibilities to the Company hereunder,
provided, however, that for the entire Term of this Agreement,
and for a period of six (6) months thereafter, Consultant shall
not provide services, for its own account or to any other party,
in the development or production of any product which directly
competes with the specific product or products of the Company
for which Consultant shall provide Services hereunder.
(b) Consultant shall comply with all statutes, ordinances, and
regulations of all federal, state, county, and municipal or
local governments, and of any and all of the departments and
bureaus thereof, applicable to the carrying on of its business
and the conduct of the performance of Services for the Company.
(c) Consultant shall perform the Services in accordance with the
highest level of business and professional ethics.
7. TERM, TERMINATION AND CANCELLATION.
(a) This Agreement shall commence on the date set forth in the
Preamble to this Agreement, and shall continue and remain in
effect (unless earlier terminated as set forth in this Paragraph
7) until all duties and obligations of the parties have been
discharged.
(b) This Agreement may be terminated immediately upon written Notice
(as hereinafter defined) in the event of a breach by one party
of any material obligation hereunder which, if and to the extent
it is curable, is not cured within fifteen (15) days of Notice
of such breach having been given by the party not in breach to
the other ("Cause"). This Agreement may be terminated by either
party without cause upon sixty (60) days' prior written notice
to the non-terminating party.
(c) Any other provision of this Agreement notwithstanding, the
Company shall have the right, within its sole discretion, to
terminate the Services of Consultant without further liability
hereunder for any reason whatsoever upon ten (10) days prior
Notice to Consultant. In such event, the Company shall not be
liable to Consultant for any further charges except for such
work which Consultant can demonstrate was properly performed
prior to the date of termination.
-5-
6
8. NOTICES.
To be effective, all communications and notices relating to this
Agreement ("Notice") are to be in writing and shall be given by prepaid:
(i) overnight courier service, in which case notice shall be deemed
effective upon delivery; or (ii) Certified U.S. mail, return receipt
requested, in which case notice shall be deemed effective three (3) days
following deposit with the U.S. mail. The addresses for giving Notice
shall be the parties respective addresses first set forth above (in the
case of the Company, with a copy to the General Counsel), or any other
address as shall be as follows:
If to the Company: ICX Xxxxxxxxxxx.xxx.
000 Xxxxxx xx Xxxxxxxx
Xxx Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxx
President/CEO
With a copy (which shall
not constitute notice) to: Xxxxxxxx, August & Xxxxxxxxx
Xxxxx Xxxxx, Xxxxx 0000
000 Xxxxx Xxxxxxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxxxx X. August
Partner
If to the Consultant: Xxxxx Xxxxxx
c/o BusinessWare, Inc.
0000 Xxxxxx Xxxxxxxxxx, Xxx 0
Xxx Xxxxxxxx, XX 00000-0000
9. INDEPENDENT CONTRACTOR.
It is understood and agreed that in performing the Services for Company
hereunder, Consultant shall act in the capacity of an independent
contractor and not as an employee or agent of the Company. Consultant
agrees that it shall not represent itself as the agent or legal
representative of the Company for any purpose whatsoever. Consultant
shall be solely responsible for the remuneration of and the payment of
any and all taxes with respect to its employees and subcontractors and
any claims with respect thereto and shall be solely responsible for the
withholding and payment of all federal, state, and local income taxes as
well as all FICA and FUTA taxes applicable to it, its employees, and its
subcontractors. Consultant acknowledges that as an independent
contractor, neither it nor any of its employees or subcontractors shall
be eligible for any Company employee benefits, including, but not
limited to, vacation, medical, dental, or pension benefits.
-6-
7
10. REPRESENTATIONS AND WARRANTIES OF THE PARTIES. EACH PARTY HERETO MAKES
THE FOLLOWING REPRESENTATIONS AND WARRANTIES TO THE OTHER PARTY HERETO
AS INDICATED BELOW:
(a) the Consultant hereby represents and warrants for the benefit of
the Company as follows:
(i) he/she is an adult individual residing in the County of
Orange, State of California, and has full authority and
capacity to enter into, execute, deliver and perform
this Agreement in accordance with its terms, which
Agreement, once so executed and delivered, shall be the
valid and binding agreement of the Consultant,
enforceable against her by any court of competent
jurisdiction;
(ii) the Consultant is not bound by or subject to any order,
ruling, judgment, contract, agreement or other
arrangement which would prohibit it from entering into
or performing this Agreement, or which requires the
approval or consent of any third party in connection
therewith; and
(iii) the Consultant possesses the necessary education,
background and experience to perform successfully all of
the Services, and there is nothing which is not
expressly called for in this Agreement which the
Consultant shall require in order to complete the
performance of such Services in the time allotted.
(b) the Company hereby represents and warrants for the benefit of
the Consultant as follows:
(i) the Company is a corporation duly organized and existing
under the laws of the State of California, with full
power to enter into, execute and perform this Agreement
in accordance with its terms, and the person signing
this Agreement for and on behalf of the Company is the
duly authorized executive officer of the Company holding
the position set forth below its name at the end of this
Agreement, with full power and authority to enter into,
execute and bind the Company to this Agreement;
(ii) once executed by such authorized representative, this
Agreement shall be the legally binding obligation of the
Company, enforceable against the Company by any court of
competent jurisdiction in accordance with its terms; and
(iii) the Company is not bound by or subject to any order,
ruling, judgment, contract, agreement or other
arrangement which would prohibit it from entering into
or performing this Agreement, or which requires the
approval or consent of any third party in connection
therewith.
-7-
8
11. GENERAL.
(a) The parties agree not to hire or solicit or assist others
(either directly or indirectly) to hire the other's personnel
assigned to this project during the term of this Agreement, and
any extensions thereof, and for a period of six (6) months after
the completion thereof, unless mutually agreed to in writing by
an authorized officer of the party whose employee is to be
hired.
(b) No right or interest in this Agreement shall be assigned by
Consultant without the prior written permission of the Company,
and no delegation of the performance of the Services or other
obligations owed by Consultant to the Company shall be made
without the prior written consent of the Company.
(c) Except as otherwise provided in Paragraph 2(e) hereof, either
party's waiver of any breach or failure to enforce any of the
terms and conditions of this Agreement at any time shall not in
any way affect, limit or waive such party's right thereafter to
enforce and compel strict compliance with every term and
condition thereof.
(d) This Agreement shall be governed by and construed in accordance
with the internal laws of the State of California applicable to
the performance and enforcement of contracts made within such
state, without giving effect to the law of conflicts of laws
applied thereby. In the event of any dispute regarding
Proprietary Rights arises between the parties arising out of or
resulting from this Agreement, the parties hereby agree to
accept the exclusive jurisdiction of the Courts of the State of
California sitting in and for the County of Orange. In the event
either party shall be forced to bring any legal action to
protect or defend its rights hereunder, then the prevailing
party in such proceeding shall be entitled to reimbursement from
the non-prevailing party of all fees, costs and other expenses
(including, without limitation, the reasonable expenses of its
attorneys) in bringing or defending against such action.
(e) All of the representations and warranties made by either party
in the Agreement and the obligations of Consultant under
Sections 2(e), 4, 5 and 6 expressly shall survive the
termination/expiration of this Agreement.
(f) The parties expressly acknowledge to and agree with each other
that in the event certain of the promises and covenants of the
Consultant contained herein were to be breached, it should
result in irreparable injury to the Company for which monetary
damages may not be adequate or ascertainable. In such event, the
Company shall be entitled to seek specific performance,
injunctive or other equitable relief, and such rights and
remedies of the Company or Consultant shall be cumulative and
non-exclusive, and in addition to all other of the Company's
rights and remedies available at law and/or equity hereunder.
(g) The Consultant hereby agrees, promptly upon the request of the
Company, to do such further things and take such further actions
as may be reasonably necessary to effect
-8-
9
the transactions contemplated by this Agreement including,
without limitation, to execute, deliver and, if necessary, file
such documents of assignment, conveyance and transfer as may be
required in connection with the valid assignment of any Works or
other Assigned Items hereunder.
(h) This Agreement constitutes the complete agreement between the
parties hereto and supersedes all prior communications and
agreements between the parties with respect to the subject
matter hereof, whether oral or written and may not be modified
or otherwise amended except by a further writing executed by
both parties hereto, which writing makes specific reference to
the changes to be made to this Agreement.
IN WITNESS WHEREOF, the parties hereto by their duly authorized
representatives have executed this Agreement upon the date first set forth
above.
THE COMPANY: [BusinessWare and Xxxxx Xxxxxx have
previously produced software and
ICX XXXXXXXXXXX.XXX: systems in areas of contact
management, and may commercialize
such software in the future.
By: Notwithstanding the foregoing,
--------------------------------- BusinessWare hereby declares that
Xxxx Xxxxxx nothing developed specifically for
President/CEO ICX is or shall be part of such
commercialized software without ICX
permission.]
THE CONSULTANT:
BUSINESSWARE, INC.
By:
---------------------------------
Xxxxx Xxxxxx, Owner
-9-
10
SCHEDULE A
DUTIES OF THE CONSULTANT
During the Term of this Agreement, the Consultant shall be responsible to
perform the tasks set forth below, as the same may be amended from time to time
in accordance with the Agreement. as follows:
1. Develop website software applications as directed by duly
designated employee(s) of the Company; and,
2. to provide such other assistance and guidance as the Company may
reasonably request from time to time during the Term of this
Agreement.
-10-
11
SCHEDULE B
COMPENSATION TO THE CONSULTANT
During the Term of this Agreement, the Consultant shall be entitled to receive
the compensation set forth below, as the same may be amended from time to time
in accordance with the Agreement, as follows:
Payment to Consultant shall be mutually determined by the Company and
Consultant or a per-task basis. To this end, Consultant shall provide a
quotation to Company each task reasonably requested by Company.
-11-
