CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement ("Agreement"), dated as of the Ist day of
April 2001, is made between SilverStream Software, Inc. with offices at 0
Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 ("SilverStream") and Xxxx X.
Xxxxxx, an individual with an address at 0 Xxxxxxxx Xx. Xxxxxxx, XX
01810("Consultant").
1. Services. SilverStream hereby engages Consultant to provide professional
consulting services. Consultant shall use his best efforts to perform such
special projects as may be reasonably assigned to him by SilverStream from time
to time consistent with his experience and skills. All or some of the foregoing
duties are to be performed by Consultant at such times and places as
SilverStream and the Consultant may agree from time to time. Consultant shall
use his best efforts in the performance of his obligations under this Agreement.
SilverStream shall provide such access to its information and property as may be
reasonably required in order to permit Consultant to perform his obligations
hereunder. Consultant shall cooperate with SilverStream's personnel, shall not
interfere with the conduct of SilverStream's business and shall observe all
rules, regulations and security requirements of SilverStream concerning the
safety of persons and property.
2. Term and Termination.
(a) The term of this Agreement (the "Initial Term") shall commence on 1
April 2001 and terminate on May 30, 2001. Thereafter, this Agreement may be
extended upon the mutual agreement of SilverStream and Consultant for such
additional periods of time as SilverStream and Consultant shall mutually agree
(each a "Renewal Term", and together with the Initial Term, the "Term") on such
terms as the parties may agree prior to the expiration of the Initial Term or
any Renewal Term, as the case may be.
(b) Either party may, without prejudice to any tight or remedy it may have
due to any failure of the other party to perform such other party's obligations
under this Agreement, terminate this Agreement upon seven (7) days' prior
written notice to such other party. In the event of such termination, Consultant
shall be entitled to payment for services performed through such termination
date. Such payments shall constitute full settlement of any and all claims by
Consultant of every description against SilverStream. Notwithstanding the
foregoing, SilverStream may terminate this Agreement, effective immediately upon
written notice to Consultant, if Consultant breaches or threatens to breach any
provision of Section 5.
3. Fees and Payments.
(a) SilverStream shall pay Consultant $13,000 per month for the Services
performed hereunder.
(b) Consultant shall invoice SilverStream not less often than monthly and,
in any event, within ten (10) business days after the Termination Date for all
amounts not then invoiced. Each invoice shall be submitted on the 15th of the
month. All invoices shall be payable within thirty (30) days of receipt by
SilverStream.
4. Independent Contractor. Consultant, in performance of this Agreement, is
acting as an independent contractor and not as an employee or agent of
SilverStream and shall not be considered an employee of SilverStream within the
meaning or the application of any Federal, State or local laws or regulations.
Consultant does not have any right, power or authority to create any obligation
(express or implied) on SilverStream's behalf without the express prior written
consent of SilverStream.
5. Ownership.
(a) All inventions, discoveries, computer programs, data, technology,
designs, innovations and improvements ("Inventions") and any work developed for
SilverStream under this Agreement (whether or not patentable and whether or not
copyrightable) related to the business of SilverStream which are made,
conceived, reduced to practice, created, written, designed or developed by
Consultant during performance of the Services, solely or jointly with others and
whether during normal business hours or otherwise, during the Term or thereafter
("Deliverables") shall be the sole property of SilverStream. Consultant hereby
assigns to SilverStream all Deliverables and any and all related patents,
copyrights, trademarks, trade names, and other industrial and intellectual
property rights and applications therefor, in the United States and elsewhere
and appoints any officer of SilverStream as his duly authorized attorney to
execute, file, prosecute and protect the same before any government agency,
court or authority. Upon the request of SilverStream and at SilverStream's
expense, Consultant shall execute such further assignments, documents and other
instruments as may be necessary or desirable to fully and completely assign all
Deliverables to SilverStream and to assist SilverStream in applying for,
obtaining and enforcing patents or copyrights or other rights in the United
States and in any foreign country with respect to any Deliverable. Consultant
also hereby waives all claims to moral tights in any Deliverable.
(b) Consultant shall promptly disclose to SilverStream all Inventions in
the Deliverables and will maintain adequate and current written records (in the
form of notes, sketches, drawings and as may be specified by SilverStream) to
document the conception and/or first actual reduction to practice of any
Invention. Such written records shall be available to and remain the sole
property of SilverStream at all times.
6. Proprietary Information.
(a) Consultant acknowledges that his relationship with SilverStream is one
of high trust and confidence and that in the course of his service to
SilverStream he will have access to and contact with Proprietary Information.
Consultant agrees that he will not, during the Term or at any time thereafter,
disclose to others, or use for his benefit or the benefit of others, any
Proprietary Information. For purposes of this Agreement, Proprietary Information
shall mean, by way of illustration and not limitation, the Deliverables and all
information (whether or not patentable and whether or not copyrightable) owned,
possessed or used by SilverStream including, without limitation, any Invention,
formula, vendor information, customer information, apparatus, equipment, trade
secret, process, research, report, technical data, know-how, computer program,
software, software documentation, hardware design, technology, marketing or
business plan, forecast, unpublished financial statement, budget, license,
price, cost and employee list that is communicated to, learned of, developed or
otherwise acquired by Consultant in the course of his service as a consultant to
SilverStream.
(b) Consultant's obligations under this Section 6 shall not apply to any
information that (i) is or becomes known to the general public under
circumstances involving no breach by Consultant or others of the terms of this
Section 6, (ii) is generally disclosed to third parties by SilverStream without
restriction on such third parties, or (iii) is approved for release by written
authorization of SilverStream.
(c) Upon termination of this Agreement or at any other time upon request by
SilverStream, Consultant shall promptly deliver to SilverStream all SilverStream
property including computers, access cards, equipment, records, files,
memoranda, notes, designs, data, reports, price lists, customer lists, drawings,
plans, computer programs, software, software documentation, sketches, and other
documents (and all copies or reproductions of such materials) relating to the
business of SilverStream.
(d) Consultant represents that his retention as a consultant with
SilverStream and his performance under this Agreement does not, and shall not,
breach any agreement that obligates him to keep in confidence any trade secrets
or confidential or proprietary information of his or of any other party or to
refrain from competing, directly or indirectly, with the business of any other
party. Consultant shall not disclose to SilverStream any trade secrets or
confidential or proprietary information of any other party.
(e) Consultant acknowledges that SilverStream from time to time may have
agreements with other persons or with the United States Government, or agencies
thereof, that impose obligations or restrictions on SilverStream regarding
inventions made during the course of work under such agreements or regarding the
confidential nature of such work. Consultant agrees to be bound by all such
obligations and restrictions that are known to him and to take all action
necessary to discharge the obligations of SilverStream under such agreements.
(f) Consultant acknowledges that any breach of the provisions of this
Section 6 shall result in serious and irreparable injury to SilverStream for
which SilverStream cannot be adequately compensated by monetary damages alone.
Consultant agrees, therefore, that, in addition to any other remedy it may have,
SilverStream shall be entitled to enforce the specific performance of this
Agreement by Consultant and to seek both temporary and permanent injunctive
relief (to the extent permitted by law) without the necessity of proving actual
damages.
7. No Publicity. With respect to this Agreement and unless Consultant has
SilverStream's prior written consent, Consultant will not (i) use in any form of
advertising or publicity the name of SilverStream or any of SilverStream's trade
names, its trade or service marks, its symbol or any abbreviation, contraction
or simulation thereof, or (ii) represent, directly or indirectly, that any
product or any service provided by Consultant has been approved or endorsed by
SilverStream.
8. Notices. Any notice or communication required to be given by either party
hereunder shall be in writing and shall be delivered by conventional means such
that proof of receipt is reasonably determinable and shall be sent to the
address specified in the first paragraph of this Agreement (or subsequently
identified address) to the attention of the Legal Department.
9. General.
(a) This Agreement supersedes all prior agreements and understandings
between the parties for the Services and constitutes the complete agreement and
understanding between the parties unless modified in a writing signed by
authorized representatives of both parties.
(b) This Agreement shall be binding upon, and inure to the benefit of, both
parties and their respective successors and assigns, including any corporation
with which, or into which, SilverStream may be merged or which may succeed to
its assets or business, provided, however, that the obligations of Consultant
are personal and shall not be assigned by him.
(c) This Agreement shall be construed and enforced in accordance with the
laws of The Commonwealth of Massachusetts without giving effect to its
principles of conflicts of law, and any litigation arising out of or connected
in any way with this Agreement shall take place in a court of competent
jurisdiction in Suffolk County of The Commonwealth of Massachusetts.
(d) The following sections will survive the termination of this Agreement:
2(b), 3, 4, 5, 6, 7 and 9.
(e) If any provision of this Agreement (or any portion thereof) is
determined to be invalid or unenforceable the remaining provisions of this
Agreement shall not be affected thereby and shall be binding upon SilverStream
and Consultant and shall be enforceable as though said invalid or unenforceable
provision (or portion thereof) were not contained in this Agreement.
(f) The failure by either SilverStream or Consultant to insist upon
enforcing its rights under this Agreement shall in no way constitute a waiver of
its tights as set forth in this Agreement, at law or in equity.
(g) This Agreement may be amended or modified only by a written instrument
executed by both SilverStream and Consultant.
(h) Whenever the context may require, any pronouns used in this Agreement
shall include the corresponding masculine, feminine or neuter forms, and the
singular forms of nouns and pronouns shall include the plural, and vice versa.
(i) The captions of the sections of this Agreement are for convenience of
reference only and in no way define, Emit or affect the scope or substance of
any section of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first set forth above.
SILVERSTREAM SOFTWARE, INC. CONSULTANT
By: /s/ Xxxxxxx X. Xxxxx, III By: /s/ Xxxx X. Xxxxxx
----------------------------- ------------------
Xxxxxxx X. Xxxxx III Xxxx X. Xxxxxx, individually
Vice President Human Resources
