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EXHIBIT 10.30
CONSULTING AGREEMENT
This CONSULTING AGREEMENT (the "Agreement") is made and entered into by
and between MAI Systems Corporation ("MAI") with its principal place of business
located at 0000 Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxx 00000, and Zohar Loshitzer
("Consultant"), an individual with his principal place of business or principal
residence located at 0000 Xxxx Xxxxxxx Xxxx, Xxxxxxx Xxxxx, XX 00000. In
consideration of the mutual premises and covenants set forth herein, the parties
hereto agree as follows:
1. Services. MAI hereby engages Consultant to provide such services as
MAI may assign to Consultant from time to time. The initial services to be
performed by Consultant hereunder shall include those specified in Exhibit "A"
attached hereto, and the term during which the services are to be performed (the
"Consulting Term") shall be as specified in Exhibit "A," subject to extension by
mutual agreement of MAI and Consultant, and subject to termination as provided
in Paragraph 3 below). During the Consulting Term, Consultant agrees to devote
such time and efforts to the performance of his or her duties hereunder as
necessary to adequately perform his or her duties hereunder and to serve MAI
diligently and to the best of his or her abilities. Unless otherwise specified
in Exhibit "B" attached hereto, Consultant shall be free to pursue any other
employment or ventures during the Consulting Term so long as such other
employment or ventures do not unreasonably interfere with the provision of
services by Consultant to MAI hereunder.
2. Payment by MAI. For the services performed by Consultant hereunder
during the Consulting Term, MAI shall pay to Consultant compensation as set
forth in Exhibit "C" attached hereto.
3. Termination. Either party may terminate this Agreement upon written
notice to the other party in the event of a material breach of this Agreement by
the other party. MAI may terminate this Agreement without cause at any time upon
written notice to Consultant.
4. Relationship of Consultant and MAI. Nothing contained in this
Agreement shall be construed as creating a joint venture, partnership or
employment relationship between Consultant and MAI, and Consultant shall not
have the right, power or authority to create any obligation or duty, express or
implied, on behalf of MAI. Consultant acknowledges and agrees that as an
independent contractor, Consultant shall be solely responsible for payment of
any and all taxes, worker's compensation, unemployment insurance and similar
taxes or fees required to be paid in conjunction with any services rendered by
Consultant. Consultant shall be solely responsible for obtaining all necessary
insurance for performing services hereunder. Consultant agrees to indemnify and
hold MAI harmless against any claim, loss or damage to others or Consultant,
including wrongful death, personal property and personal injury damages, arising
from any act or performance of duties and responsibilities pursuant to this
Agreement, and to pay all costs and expenses, including reasonable attorneys'
fees, relating thereto.
5. Compliance with Laws. Consultant shall comply with all laws,
including without limitation ordinances, rules, regulations and statutes, and
shall comply with all MAI policies and procedures in connection with the
performance of Consultant's duties and responsibilities pursuant to this
Agreement.
6. Assignment. Consultant is being engaged because of his or her unique
abilities and talents. Accordingly, Consultant agrees that he or she will
personally perform any and all services required hereunder, and Consultant may
not assign or transfer or delegate this Agreement or any rights or duties of
performance.
7. Proprietary Rights and Confidential Information
7.1 For purposes of this Agreement, "Confidential Information"
shall mean any information or material proprietary to MAI or designated as
confidential information by MAI and not generally known by non-MAI personnel,
which Consultant develops or of which Consultant may obtain knowledge or access
through or as a result of Consultant's relationship with MAI (including
information conceived, originated, discovered or developed in whole or in part
by Consultant), including but not
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limited to information relating to discoveries, inventions, software in various
stages of development, specifications, research, development, processes,
procedures, "know-how", marketing and development plans, and financial
information. INFORMATION PUBLICLY KNOWN THAT IS GENERALLY EMPLOYED BY THE TRADE
AT OR AFTER THE TIME CONSULTANT FIRST LEARNS OF SUCH INFORMATION, OR GENERIC
INFORMATION OR KNOWLEDGE WHICH CONSULTANT WOULD HAVE LEARNED IN THE COURSE OF
SIMILAR WORK ELSEWHERE IN THE TRADE, SHALL NOT BE DEEMED PART OF THE
CONFIDENTIAL INFORMATION.
7.2 Consultant agrees that Consultant shall hold in confidence
and shall not at any time during or after the Consulting Term (i) directly or
indirectly reveal, report, publish, disclose, or transfer the Confidential
Information or any part thereof to any person or entity, (ii) use any of the
Confidential Information or any part thereof for any purpose other than in the
course of Consultant's work for MAI, or (iii) assist any person or entity other
than MAI to secure any benefit from the Confidential Information or any part
thereof to solicit business from or provide services or products of any type to
any of MAI's customers.
7.3 In the event that the services performed by Consultant for
MAI include the creation or conception of works of authorship or inventions, the
provisions of Exhibit "D" shall govern such works of authorship and inventions.
7.4 Consultant shall not during the Consulting Term or at any
time during the period of six (6) months immediately after the expiration or
termination of this Agreement, directly or indirectly solicit, interfere with,
or entice away from MAI, any customer, licensee, licensor, distributor,
representative, consultant or source of supply of MAI, or attempt to do so.
7.5 Consultant shall not during the Consulting Term or at any
time during the period of six (6) months immediately after the expiration or
termination of this Agreement encourage, solicit or hire any employee or
consultant of MAI to leave the employment or consultancy of MAI in order to work
for, advise or assist Consultant or any third party.
8. Surrender of Books and Records. All notes, data, reference materials,
sketches, drawings, memoranda, documentation and records in any way
incorporating or reflecting any of the Confidential information and all
proprietary rights therein, including without limitation copyrights, shall, as
between MAI and Consultant, belong to MAI, and Consultant agrees to turn over to
MAI all copies of such materials in Consultant's possession or control, whether
or not completed, upon expiration or termination of this Agreement or at any
earlier time upon MAI's request. Consultant agrees that on the termination of
his or her work with MAI in any manner, Consultant will, if MAI so requests,
participate in an exit interview conducted by a representative of MAI.
9. Advertising and Publicity. Consultant shall not use the name of MAI
in publicity releases or advertising without MAI's prior written consent.
10. Severability. If any provision of this Agreement shall be determined
by a court of competent jurisdiction to be unlawful, void, or for any reason,
unenforceable, it shall be deemed stricken from, and shall in no way affect the
validity or enforceability of, the remaining provisions of this Agreement.
Similarly, if any provision of this Agreement shall be determined by a court of
competent jurisdiction to be overly broad in duration, geographical coverage or
substantive scope, such provision shall be deemed narrowed to the broadest term
or extent permitted by applicable law.
11. Waiver. Performance of any obligation required of a party hereunder
may be waived only by a written waiver signed by the other party, which waiver
shall be effective only with respect to the specific obligation described
therein. The waiver by either party hereto of a breach of any provision of this
Agreement by the other shall not operate or be construed as a waiver of any
subsequent breach of the same provision or any other provision of this
Agreement, whether or not similar.
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12. Exclusion. In no event shall MAI's liability to Consultant hereunder
exceed the amount of compensation and expenses payable to Consultant pursuant to
the terms of this Agreement. MAI shall not be liable to Consultant for indirect,
special, consequential or punitive damages arising out of or relating to this
Agreement, even if MAI has been apprised of the possibility of such damages.
13. Entire Agreement. This Agreement constitutes the entire
understanding and contract between the parties hereto regarding Consultant's
engagement by MAI and supersedes any and all prior or contemporaneous oral or
written representations or communications with respect to the subject matter
hereof, all of which communications are merged herein. This Agreement shall be
governed by, and construed in accordance with, the internal laws of the State of
California. This Agreement may not be modified, amended, or in any way altered
except by an instrument in writing and signed by both of the parties hereto.
14. Costs and Expenses. If either party to this Agreement brings an
action against the other party to enforce his or its rights under this
Agreement, the prevailing party shall be entitled to recover his or its costs
and expenses, including without limitation, attorneys' fees and costs, incurred
in connection with such action, including any appeal of such action.
IN WITNESS WHEREOF, the parties have executed this Consulting Agreement
as of the 15th day of July, 2000.
MAI Systems Corporation
By:
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Title:
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CONSULTANT
Signature:
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Name (Printed): Zohar Loshitzer
Social Security Number:
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EXHIBIT "A"
Description of initial duties to be performed by Consultant:*
consulting on technology decisions for MAI and general consulting for MAI's
CIMPRO division.
Consulting Term:** Month-to-month
* The parties understand that Consultant may also be assigned to perform
additional or different services hereunder.
** The Consulting Term specified above is subject to extension by mutual
agreement of MAI and Consultant, and subject to termination as provided in
Paragraph 3 of the Consulting Agreement to which this Exhibit is attached.
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EXHIBIT "B"
Additional limitations, if any, on Consultant's right to pursue other
employment or ventures during the Consulting Term: none.
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EXHIBIT "C"
Compensation:
$96.15 per hour.
Rights, if any, to receive reimbursement for expenses:
Unless otherwise specified, all expenses must be approved by MAI in advance in
order to qualify for reimbursement. All claims for expenses shall be reasonable
and documented in accordance with MAI's standard policies and procedures with
respect thereto.
Timing of payments and requirements for submission of invoices:
payment of invoices within 30 days of submission.
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EXHIBIT "D"
Terms Governing Inventions and Works of Authorship
Conceived or Made by Consultant During the Performance
of Consultant's Duties and Responsibilities
Consultant agrees that any and all inventions or original works of
authorship in whole or in part conceived or made by Consultant during the
performance of Consultant's duties and responsibilities to MAI hereunder which
relate to MAI's business or MAI's actual or demonstrably anticipated research
and development or which are made through the use of any of the Confidential
Information or any of MAI's equipment, facilities, supplies, trade secrets or
time, or which result from any work performed by Consultant for MAI, shall
belong exclusively to MAI and shall be deemed part of the Confidential
Information for purposes of this Agreement whether or not fixed in a tangible
medium of expression. Without limiting the foregoing, Consultant agrees that any
such original works of authorship shall be deemed to be "works made for hire"
and that MAI shall be deemed the author thereof under the U.S. Copyright Act
(Title 17 of the U.S. Code), provided that in the event and to the extent such
works are determined not to constitute "works made for hire" as a matter of law,
Consultant hereby irrevocably assigns and transfers to MAI all right, title and
interest in and to such works of authorship, including but not limited to
copyrights. Consultant agrees to execute any and all documents required to
assign to MAI all of the rights described in this Exhibit "D" and to cooperate
with MAI in securing for MAI any available protection for any such inventions,
ideas and original works of authorship, including without limitation patents and
copyrights. Consultant hereby waives the "moral rights" or droit moral of
authors as said terms are commonly understood. Consultant warrants and
represents that any works of authorship or inventions conceived or made by
Consultant during the performance of Consultant's duties and responsibilities to
MAI hereunder will be original creations by Consultant and that Consultant has
the right to grant the rights granted to MAI pursuant to the terms of this
Agreement, and that MAI's exercise of its rights under this Agreement will not
infringe upon or violate any of the rights of others, including without
limitation rights relating to copyright, trade secret, patent, privacy,
publicity, defamation or contract. To the extent that Section 2870 of the
California Labor Code (set forth below) is deemed to apply to the relationship
between Consultant and MAI notwithstanding that Consultant is not an employee of
MAI, this agreement shall be construed in accordance with the provisions of
Section 2870.
2870. Employment Agreements; Assignment of Rights
(a) Any provision in an employment agreement which provides that
an employee shall assign or offer to assign any of his or her rights in an
invention to his or her employer shall not apply to an invention that the
employee developed entirely on his or her own time without using the employer's
equipment, supplies, facilities, or trade secret information, except for those
inventions that either:
(1) Relate at the time of conception or reduction to
practice of the invention to the employer's business or actual or demonstrably
anticipated research or development of the employer.
(2) Result from any work performed by the employee for the
employer.
(b) To the extent a provision in an employment agreement purports
to require an employee to assign an invention otherwise excluded from being
required to be assigned under subdivision (a), the provision is against the
public policy of this state and is unenforceable.
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