CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement ("Agreement") is entered into by and between
Annuncio Software, Inc., a California corporation with an office at 0000 X. Xx
Xxxxxx Xxxx Xxxxx 000, Xxxxxxxx Xxxx, XX 00000 ("Annuncio") and Xxxxxxx.xxx, a
Nevada corporation, with offices at 0000 Xxxx Xxx., Xxxxxxxx, XX 00000
("Company"). This Agreement is effective as of October 11, 2000 (the "Effective
Date").
In consideration of the mutual covenants contained herein, the parties agree to
the following terms and conditions.
1. SERVICES
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Annuncio agrees to perform for the company those consulting and/or advisory
services ("Services") in the form and manner described in any properly executed
Statement of Work ("SOW"), such as that SOW attached hereto as Exhibit A and
made a part hereof. Each SOW shall constitute a separate agreement which
incorporates the terms and conditions of this Agreement. In the event the terms
of the SOW conflict with the terms of this Agreement, the terms of the SOW shall
prevail.
2. COMPENSATION
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2.1 Services. For all Services performed under an SOW or other request for
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Services that references this Agreement, Company shall pay Annuncio for
performing the Services as shown in the applicable SOW or at the then-current
Annuncio standard rates, whichever are applicable.
2.2 Expenses. The Company shall also reimburse Annuncio for the reasonable
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and necessary travel and living expenses of its personnel engaged in the
performance of Services at locations other than Annuncio facilities, together
with other reasonable out-of-pocket expenses incurred in connection with
performance of the Services.
2.3 Payments. Annuncio shall invoice Company for all amounts on or after
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the due date. Payment terms shall be net 30 days. Any amounts due Annuncio
under this Agreement not received by the date due shall be subject to a service
charge of one and one-half percent (1.5%) per month, or the maximum charge
permitted by law, whichever is less. All payments are non-refundable. Unless
Company provides Annuncio with a valid tax exemption or direct pay certificate,
Company is responsible for all taxes, duties, and customs fees which may be
assessed on the amounts paid for Service performed hereunder, excluding taxes
based on Annuncio's income.
3. OBLIGATIONS
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3.1 Annuncio's Obligations. Annuncio shall perform or caused to be
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performed the obligations described in each SOW. Annuncio shall provide
sufficient, qualified personnel capable of performing all of Annuncio's duties
and obligations under this Agreement and any SOW.
3.2 Company's Obligations. Company shall:
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(a) designate and provide one (1) customer point of contact for a given SOW,
responsible for answering and resolving Annuncio's questions and issues related
to the project(s) described in the SOW;
(b) provide sufficient, qualified personnel capable of performing all of
Company's duties and obligations under this Agreement and under any SOW;
(c) provide Annuncio with reasonable and necessary access to Company's
facilities during Company's normal business hours and otherwise as reasonably
requested by Annuncio in order to facilitate Annuncio's performance of the
Services outlined in each SOW;
(d) provide Annuncio with such reasonable and necessary working space and
office support (including but not limited to access to telephones, photocopying
equipment, and the like) as Annuncio may reasonable request;
(e) perform such other duties and tasks specifically designated in an SOW to
facilitate Annuncio's performance of the Services outlined thereunder; and
(f) provide Annuncio with at least ten (10) days advance notice of desired
staffing extensions. If Company provides less than ten (10) business days
notice for releasing consultants, Annuncio may invoice Company for two (2) full
days of consulting Services per consultant released.
4. CONFIDENTIALITY
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4.1 Definition. Confidential Information means any information disclosed by
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either party ("Disclosing Party") to the other party ("Receiving Party"), either
directly or indirectly, in writing, orally, electronically, visually, or by
inspection of tangible objects (including without limitation documents,
prototypes, samples, plant and equipment), which is designated as
"Confidential," "Proprietary" or some similar designation or should be
reasonable understood to be confidential or proprietary. Confidential
Information includes, without limitation, all information relating to the source
code of any Annuncio Software, the operation of the Software, the Documentation,
or the terms and conditions of this Agreement to be Confidential Information.
Company's client accounts and information concerning marketing and advertising
services, all site and business development plans, and specific events and
features planned for or by Company are deemed confidential information.
Confidential Information also includes, but is not limited to, trade secrets,
computer programs, software, documentation, formulas, data, inventions,
techniques, marketing plans, strategies, forecasts, customer lists, employee
information, financial information, confidential information concerning either
party's business or organization, as either party has conducted it or as either
party may conduct it in the future, information concerning any or either party's
past, current or possible future products or methods, including information
about either party's research, development, engineering, purchasing,
manufacturing, accounting, marketing, selling, leasing and/or software
(including third party software).
4.2 Definition Exclusion. Confidential Information shall exclude
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information that: (a) was independently
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developed by the Receiving Party without any use of the Disclosing Party's
Confidential Information or by the Receiving Party's employees or other agents
(or independent contractors hired by the Receiving Party) who have not been
exposed to the Disclosing Party's Confidential Information; (b) becomes known to
the Receiving Party, without restriction, from a source other than the
Disclosing Party without breach of this Agreement and that had a right to
disclose it; (c) was in the public domain at the time it was disclosed or
becomes in the public domain through no act or omission of the Receiving Party;
or (d) was rightfully known to the Receiving Party, without restriction, at the
time of disclosure.
4.3 Non-use and Non-disclosure. Each party agrees not to use any
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Confidential Information of the other party for any purpose except to perform
its obligation or exercise its rights under this Agreement. Each party agrees
not to disclose any Confidential Information of the other party to third parties
or to such party's employees, except those employees of the receiving party who
are required to have the information in order to perform such party's
obligations under this Agreement. Neither party shall reverse engineer,
disassemble or decompile any prototypes, software or other tangible objects
which embody the other party's Confidential Information and which are provided
to the party hereunder. Each party agrees that it shall take reasonable
measures to protect the secrecy of and avoid disclosure and unauthorized use of
the Confidential Information of the other party. Without limiting the
foregoing, each party shall take at least those measures that it takes to
protect its own most rightly confidential information and shall ensure that its
employees who have access to Confidential Information of the other party have
signed a non-use and non-disclosure agreement in content similar to the
provisions hereof, prior to any disclosure of Confidential Information to such
employees. Each party shall reproduce the other party's proprietary rights
notices on any such approved copies, in the same manner in which such notices
were set forth in or on the original.
4.4 Compelled Disclosure. If a Receiving Party is, or believes that it will
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be, compelled by a court or other authority to disclose Confidential Information
of the Disclosing Party, it shall give the Disclosing Party prompt notice so
that the Disclosing Party may take steps to oppose such disclosure.
4.5 Residuals. Annuncio shall have the right to use and exploit Residuals
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for any purpose after the return of Company's Confidential Information. As used
herein, "Residuals" shall mean ideas, information and understanding retained in
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the memory of Annuncio's employees as a result of their review, evaluation and
testing of the Confidential Information of Company after the return thereof, but
shall not include Company's Confidential Information.
5. OWNERSHIP
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5.1 Definition. For purposes of this Agreement, the term "ownership" shall
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refer to ownership of all intellectual property rights including, but not
limited to , all patent, copyright, trade secret and trademark rights, as
applicable, with respect to the subject intellectual property.
5.2 Confidential Information. Neither party shall obtain, by virtue of this
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Agreement, any rights, title or interest in any Confidential Information or
other property or materials of the other party or of third parties. Within
fifteen (15) days after termination of this Agreement, each party shall certify
in writing to the other that all copies of Confidential Information in any form,
including partial copies, have been destroyed, returned used solely as the
other party so directs.
5.3 Work Product. For any Work Product provided to Company by Annuncio in
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the course of performing the Services hereunder, Company agrees that such Work
Product is the sole property of Annuncio, subject to the license contained in
this Section 5.3 and provided that Company will retain any Confidential
Information contained in the Work Product. Work Product shall mean any
expression of Annuncio's findings, analyses, conclusions, opinions,
recommendations, ideas, techniques, know-how, designs, programs, enhancements,
software, and other technical information provided. Annuncio hereby grants to
Company a worldwide, perpetual, royalty-free license to use the work Product,
solely for its own internal purposes and pursuant to the terms of the License
Agreement between Company and Annuncio. NO other grants of licenses or rights
to Company shall be implied from the provisions stated in this Agreement.
5.4 Further Assurances. Each party agrees to execute any additional
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documents deemed reasonable necessary to effect and evidence the other party's
rights with respect to the intellectual property elements set forth above.
6. TERMS AND TERMINATION
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6.1 Term. This Agreement will commence on the date first written above and
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will continue until final completion of the Services or termination as provided
below.
6.2 Termination. Either party may terminate this Agreement at any time upon
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giving ten (10) business days prior written notice thereof to the other party,
provided, however, that if such termination is based upon an allege breach of a
material provision of this Agreement or an SOW, then the party allegedly in
breach shall have thirty (30) days to cure the alleged breach. Company shall
pay Annuncio for any Services performed up to the effective date of termination.
The above thirty (30) day period shall not apply to breaches of Section 4,
Confidentiality, and Section 5, Ownership, above.
6.3 Survival. Upon such termination all rights and duties of the parties
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toward each other shall cease except sections entitled Confidentiality,
Ownership, Limitations of Remedies and Damages, Independent Contractor, Notice,
Separate Agreement and Miscellaneous shall survive termination of this
Agreement.
7. WARRANTY.
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Each party represents and warrants that (i) it has the right to enter into this
Agreement, (ii) an authorized representative has executed this Agreement, and
(iii) it will comply with any applicable laws and regulation pertaining to this
Agreement and the provision of Services hereunder. Annuncio also warrants that
the Services provided hereunder will be performed in a workmanlike and
professional manner in accordance with recognized industry standards. ANNUNCIO
DISCLAIMS ALL
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OTHER WARRANTIES, EITHER IMPLIED OR EXPRESS, INCLUDING ANY AND ALL IMPLIED
WARRANTIES OF TITLE MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
NON-INFRINGEMENT.
8. INDEMNITY.
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8.1 Patent and Copyright Indemnity. Annuncio shall indemnify and defend
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Company against any claims that any Work Product (as defined in Section 5.3
above) delivered to Company pursuant to this Agreement or any SOW under this
Agreement infringes any United States or Canadian patent or copyright, provided
that Annuncio is given prompt notice of such claim and is given information,
reasonable assistance and the sole authority to defend or settle said claim. In
defense or settlement of such a claim, Annuncio shall, in its reasonable
judgment and at its option and expense; (i) obtain for company the right to
continue to use the work Product; (ii) replace or modify the Work Product so
that it becomes non-infringing while giving equivalent performance; or (iii) if
Annuncio cannot obtain the remedies in (i) or (ii), as its sole obligation,
terminate the license for the infringing Work Product and return only the
Services fees paid by Company for such Work Product. Annuncio shall have no
liability to indemnify or defend Company to the extent: (i) the alleged
infringement is based on infringing information furnished by the company; (ii)
the alleged infringement is the result of a modification made by anyone other
than Annuncio; or (iii) Company uses the Work Product other than in accordance
with this Agreement, any delivered documentation, or the underlying software
license to use the Work Product.
8.2 Other Indemnity. Each party ("Indemnifying Party") shall indemnify and
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hold the other party ("Indemnified Party") harmless against any claim, including
costs and reasonable attorneys' fees, in which the Indemnified Party is named as
a result of the grossly negligent or intentional acts or grossly negligent or
intentional failures to act by the Indemnifying Party, its employees or agents,
while performing obligation hereunder, which result in death, personal injury,
or tangible property damage. This indemnification obligation is contingent upon
the Indemnified Party providing the Indemnifying Party with Prompt written
notice of such claim, all necessary information, all reasonable assistance in
the defense of such action, and sole authority to defend or settle such claim.
9. LIMITATION OF REMEDIES AND DAMAGES.
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THE LIABILITY OF ANNUNCIO ARISING HEREUNDER SHALL BE LIMITED TO FEES PAID BY
COMPANY HEREUNDER. ANNUNCIO SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL,
INCIDENTAL, OR INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS
OF BUSINESS PROFITS AND/OR BUSINESS INTERRUPTION, WHETHER FORESEEABLE OR NOT,
AND WHETHER ARISING IN CONTRACT, TORT, OR NEGLIGENCE EVEN IF A REPRESENTATIVE OF
ANNUNCIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS
SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED
REMEDY.
10. GENERAL.
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10.1 Assignment. Neither party may assign this Agreement or any right or
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obligation hereunder without the other party's prior written consent; provided
however, that Annuncio may assign this Agreement without such consent to any
successor as a result of any merger, consolidation or other corporate
reorganization of such party or any sale of all or substantially all of the
assets of Annuncio. Notwithstanding the foregoing, this Agreement shall be
binding upon and inure to the benefit of the permitted successors and assigns of
each party.
10.2 Independent Contractor. Nothing in this Agreement shall in any way be
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construed to constitute Annuncio as an agent, employee or representative of the
Company, but Annuncio shall perform the Services hereunder as an independent
contractor.
10.3 Non-Solicitation. Company acknowledges and agrees that the employees
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and consultants of Annuncio who perform the Services are a valuable asset to
Annuncio and are difficult to replace. Accordingly, Company agrees that, for
the term of this Agreement and for a period of 12 months thereafter, it will not
offer employment as an employee, independent contractor, or consultant to any
Annuncio employee or consultant. In the event Company breaches the provisions
of this Section 10.3, the parties agree that it would be difficult to determine
the amount of actual damages to Annuncio that would result from such breach.
The parties further agree that in the event Company breaches the provision of
this Section 10.3, Company shall pay Annuncio liquidated damages of $50,000 for
each such breach, which is the parties' good faith estimate of the amount of
damages to Annuncio from such breach. IN addition, unless Annuncio agrees
Company shall not contract for implementation -related services with any
Annuncio subcontractors and former Annuncio or Annuncio subcontractor employees
who voluntarily departed their positions) who are or have been directly
associated with Annuncio's provision of Services hereunder. The prohibition
shall remain in effect for a period of six (6) months from the date of the third
party departure. Company's failure to comply with this provision may at
Annuncio's sole discretion result in (i) Annuncio removing all existing
consultant resources from Company sites and/or (ii) the immediate termination of
this Agreement and any existing SOS in effect between the Parties, resulting in
no further obligation by Annuncio to provide Services to Company.
10.4 Notice. All notices or other communications referenced under this
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Agreement shall be made in writing and sent to the address designated above,
designated in a specific SOW, or designated from time to time in writing by
either party. All notices shall be deemed given to the other party if delivered
"receipt confirmed" using one of the following methods: registered or certified
first class mail, postage prepaid; delivery by a recognized courier delivery
services; or electronic mail.
10.5 Force Majeure. Except for Company's obligation to pay Annuncio,
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neither party shall be liable for any failure to perform its obligations under
this Agreement or
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any SOW if prevented from doing so by a cause or causes beyond its control,
including without limitation, acts of God or public enemy, failure of suppliers
to perform, fire, floods, storms, earthquakes, riots, strikes, war and
restraints of government.
10.6 Separate Agreements. All Services provided herein are acquired
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separately from any software licenses agreed to between the Parties.
Specifically, Company may acquire software licenses without consulting services.
Company understands and agrees that this Agreement and any SOW(s) comprise
separate and independent contractual obligations from any software license or
exhibit thereto. Company shall not withhold payments that are due and payable
under this Agreement because of the status of any software licenses or exhibits,
not shall Company withhold payments that are due and payable relating to
software licenses or schedules because of the status of work performed
hereunder.
10.7 Insurance. Annuncio shall maintain statutory minimum Workers'
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Compensation and Employer's Liability Insurance as required by the laws of any
state or country in which Services are performed.
10.8 Miscellaneous. This Agreement shall be governed by the laws of the
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State of California as applied to agreements entered into and performed within
California by residents of that state. Each party hereby expressly consents to
the nonexclusive personal jurisdiction and venue of the state and federal courts
located in the federal Northern District of California for any lawsuit filed
there against the Company arising from or relating to this Agreement. This
Agreement and the Exhibits hereto form the entire agreement of the parties and
supersede any prior verbal or written understandings, communications,
representations and agreement between the parties with respect to the subject
matter hereof. This Agreement may only be amended or modified by a writing
signed by a duly authorized representative of both parties and all proposed
variations, edits, or additions (whether submitted by Annuncio or Company) to
this Agreement or any SOW are objected to and deemed material unless otherwise
agreed to in writing. NO purchase order or other ordering document that
purports to modify or supplement the printed text of this Agreement or any SOW
shall add to or vary the terms of this Agreement or SOW. Waiver of any term or
provision of this Agreement or forbearance to enforce any term or provision by
either party shall not constitute a waiver as to any subsequent breach or
failure of the same term or provision or a waiver of any other term or provision
of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
ANNUNCIO SOFTWARE, INC. XXXXXXX.XXX
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxxxxx
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Print Name: Xxxxx Xxxxxxx Print Name: Xxxxxx Xxxxxxxx
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Title: CFO & VP Finance and Operations Title: EVP Sales and Marketing
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