EXHIBIT 10.10
MASTER CONSULTING CONTRACT AND NON-DISCLOSURE AGREEMENT
This consulting agreement ("Agreement") is between Lightning Rod Software ("LRS"
or "you"), a Delaware corporation with a place of business at 0000 Xxxxx Xxx
Xxxxx Xxxxxxxxxxx, XX 00000 and Dialogic Corporation ("Dialogic"), a New Jersey
corporation with a place of business at 0000 Xxxxx Xxx, Xxxxxxxxxx, Xxx Xxxxxx
00000.
WHEREAS, Dialogic desires to engage LRS to provide certain engineering,
technical and/or professional services;
WHEREAS, LRS desires to provide such engineering, technical and/or professional
services to Dialogic in accordance with the terms and conditions of this
Agreement; and
NOW, THEREFORE, in consideration of the premises, the mutual covenants and
agreements of Dialogic and LRS, as hereinafter set forth, and other good and
valuable consideration, the receipt and legal sufficiency of which the parties
do hereby acknowledge, the parties hereto do hereby agree as follows:
1. COVERAGE.
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A. Dialogic engages your services as a consultant. You agree that you are an
independent contractor, and you are not authorized to bind Dialogic or act as
its agent except as explicitly approved by an authorized employee of Dialogic.
B. This Agreement will cover all services and deliverables provided by you and
your employees and consultants to Dialogic as are described on such Schedules as
are executed from time to time by both parties to this Agreement (the
"Schedules") each of which Schedules shall be consecutively numbered and annexed
hereto. You and your employees and consultants will provide such services and
deliverables in accordance with the provisions of this Agreement and the
applicable Schedule.
C. A Statement of Scope of Work (the "Statement of Work") shall be included in
each Schedule. Each Statement of Work will contain a description of the tasks to
be performed by you and your employees and consultants, the deliverables to be
produced by you and your employees and consultants, acceptance criteria, a
schedule of performance and a schedule of payment of fees and charges.
2. PRICE & PAYMENT.
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A. In consideration of the services and deliverables provided by you and your
employees and consultants under this Agreement, Dialogic will pay you the fees
and charges specified in the particular Statement of Work associated with such
services and deliverables. Dialogic will reimburse you and your employee's and
consultant's reasonable expenses (as detailed in the particular Statement of
Work) incurred in connection with performing the services and developing and
providing the deliverables. Such expenses must be approved by your Dialogic
supervisor. This agreement does not establish a franchise or agency.
B. Dialogic will pay (1) such charges and fees in accordance with the payment
schedule detailed in the particular Statement of Work, and (2) such expenses in
accordance with monthly invoices (provided by LRS) detailing the particular
expenses for that month
3. TERM.
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This Agreement shall continue for an initial term of one (1) year from the date
it is signed by both parties hereto and shall be automatically renewed for
successive one (1) year periods thereafter, unless terminated as provided
herein.
4. RELATIONSHIP
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A. Your employees and consultants will not participate in Dialogic benefit plans
that Dialogic normally provides to its employees. All persons furnished by you
shall be considered solely your employees or consultants or agents, and you
shall be responsible for providing all employee benefits and for the payment of
all unemployment, social security and other payroll, employment taxes, F.I.C.A.,
Medicare and federal, state and local withholding taxes including contributions
from them when required by law.
B. You have assured Dialogic that you have described your background truly and
completely and your consulting with Dialogic does not violate any other
obligation that you or any of your employees or consultants may have.
5. USE OF INFORMATION.
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A. During your and your employee's and consultant's assignment with Dialogic,
you and your employees and consultants may have been, and may in the future be,
exposed to Confidential Information of Dialogic. The term "Confidential
Information" means all confidential or proprietary information of Dialogic, its
affiliates, customers or other third parties and any information gained by you
or your consultant as a result of being part of Dialogic's sale process with
respect to Dialogic's consulting service business. You agree that you will
advise all of your employees and consultants of their obligations respecting
Confidential Information and will secure written agreements from each such
employee and consultant agreeing to be bound thereby. In this regard you agree
that you and your employees and consultants will:
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o not disclose any Confidential Information to any person except other
employees or agents of Dialogic who need to know the Confidential
Information in order to do their jobs for Dialogic;
o not use the Confidential Information for any purpose other than to
perform under this Agreement; and
o maintain and safeguard the Confidential Information in accordance with
the terms and conditions of this Agreement and the CNDA referenced on
the first page of this Agreement.
B. These confidentiality obligations will continue even after your assignment
with Dialogic is over, until such time as the Confidential Information enters
the public domain.
C. This agreement will not apply to information (i) that is already available to
the public; (ii) that becomes available to the public other than by unauthorized
disclosure; or (iii) that you develop without any use of any of the Confidential
Information. If you or your employees or consultants are required to produce
information due to legal or regulatory requirement, you will promptly notify
Dialogic and cooperate with Dialogic's efforts to assure that its confidential
information is protected.
6. OWNERSHIP OF CREATED MATERIALS.
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A. During your and your employee's and consultant's assignment under this
agreement, you or your employees or consultants may create, and may in the
future again create, certain materials (including, without limitation, any
deliverables created under any Statement of Work) for Dialogic. The term
"Created Materials" means anything that you or your employees or consultants
have created or done (including, without limitation, the services provided and
deliverables created under any Statement of Work), or may in the future create
or do, for Dialogic by yourself or themselves or with others. Created Materials
may be tangible things like documents, drawings, prototypes, reports,
schematics, software, specifications, etc., or may be intangible things like
concepts, discoveries, ideas, information, etc. Something is a Created Material
if you or your employees or consultants created or did it during all the time
spent on any consulting project, even if you or your employees or consultants
created or did it only in part, or only together with other people, or out of
normal business hours, so long as it is related in any way to the business of
Dialogic or any of Dialogic's subsidiaries or affiliates.
B. With respect to Created Materials, you agree (and will cause each of your
employees and consultants to agree) that:
o they will be the sole and exclusive property of Dialogic; and you and
your employees and consultants assign to Dialogic all of your rights
in Created Materials; unless written permission to keep specific
materials is obtained from Dialogic.
o you and your employees and consultants will keep complete, dated and
witnessed notebooks of the conception, origin, development and
reduction to practice of Created Materials and will provide and
disclose such notebooks to Dialogic;
o you and your employees and consultants will disclose all Created
Materials, including your notebooks, to Dialogic promptly and
completely;
o to the extent a copyright or patent or other intellectual property
right may be obtained in any Created Material, that copyright is
assigned to Dialogic and you and your employees and consultants retain
no rights therein or to the Created Materials under applicable
copyright, patent or other intellectual property laws;
o You agree that, to the maximum extent permitted by applicable law,
neither you nor your employees or consultants will assert any "moral
rights" or similar rights against Dialogic or its licensees or assigns
with respect to the Created Materials;
o You and your employees and consultants will sign any documents, and
assist Dialogic in any applications or proceedings, that may be
necessary to secure for Dialogic the ownership or protection of the
Created Materials and any patents, copyrights or other proprietary
rights related to the Created Materials. If necessary for Dialogic,
you and your employees and consultants will do these things even after
your assignment with Dialogic is over, in which case Dialogic will pay
you a reasonable fee for the time that you spend on its behalf and
reimburse you for any ordinary and necessary out-of-pocket expenses
that you incur;
o you and your employees and consultants will deliver to Dialogic all
Created Materials when your assignment with Dialogic is over; and
o you will secure written agreements from each employee involved in work
for Dialogic to abide by these requirements respecting Created
Materials.
C. Except as otherwise provided in this Section 6(C), Dialogic shall have no
right, title or interest in any LRS Pre-Existing Information incorporated in any
Created Materials. In the event that LRS Pre-Existing Information is
incorporated in Created Materials, LRS grants to Dialogic the same rights with
respect to the LRS Pre-existing Information as granted under the "Software
License Agreement" or "Fixed Fee Software License", as applicable, between
Dialogic and you. As used herein, "LRS Pre-
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Existing Information" means LRS's specifications, designs, plans, drawings,
software, data prototypes or other technical or business information related to
the Lightning Rod Interaction Manager(TM) computer software which (i) existed
prior to full execution of this Agreement and as evidenced by the written record
kept by LRS in the ordinary course of its business and (ii) is considered
proprietary or confidential. LRS and Dialogic will identify and detail any and
all LRS Pre-Existing Information in each Statement of Work.
7. TERMINATION
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A. Either party may terminate this Agreement, if the other party fails to
perform or observe any material term or condition of this Agreement and such
failure continues unremedied for thirty (30) days after receipt of written
notice thereof.
B. Notwithstanding anything to the contrary contained herein, (i) Dialogic shall
have the right to terminate this Agreement and any SOW upon thirty (30) days
written notice to LRS and (ii) LRS shall have the right to terminate this
Agreement and any SOW upon thirty (30) days written notice to Dialogic if LRS
substantially ceases to do business relating to the LRS Software by terminating
the employment of all of its technical and professional services employees.
C. Dialogic may terminate this Agreement by exercising the "Option" in
accordance with Section 11.
D. The following provisions shall survive any expiration or termination of this
Agreement: 4. Relationship; 5. Use of Information; 6. Ownership of Created
Materials; 7. Termination; 8. Indemnification; 11. Option to Exercise
Superceding Agreement and 13. Miscellaneous.
8. INDEMNIFICATION.
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A. You agree to indemnify and save harmless Dialogic from and against any
losses, damages, claims, demands, suits and liabilities (including reasonable
attorneys' fees) that arise out of or result from injuries or death to persons
or damage to property caused by your fraud, willful misconduct or grossly
negligent acts or grossly negligent omissions, or those of persons furnished by
you or in any way arising out of your performance of this Agreement; or
assertions made by persons furnished by you under Workers' Compensation or
similar acts. You agree to defend Dialogic at Dialogic's request against any
such claims, demands or suits. You agree to maintain Comprehensive General
Liability insurance in effect during the period of this contract in an amount
equal to not less than one million dollars and to name Dialogic as an additional
insured thereunder and to provide Dialogic with proof of such insurance upon
request.
B. THE AMOUNT OF THE DIRECT DAMAGES, INCLUDING COUNSEL FEES AND COSTS, FROM ANY
CAUSE OF ACTION WHATSOEVER HEREUNDER AND REGARDLESS OF THE FORM OF ACTION,
WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, IS LIMITED TO AND WILL NOT
EXCEED THE GREATER OF THE AMOUNTS PAID TO LRS UNDER THIS AGREEMENT OR $500,000
EXCEPT THAT DIRECT DAMAGES ARISING FROM THE MISREPRESENTATION, WILLFUL
MISCONDUCT OR GROSS NEGLIGENCE OF THE OTHER PARTY OR A BREACH OF SECTION 5 ("USE
OF INFORMATION") OR SECTION 8 ("INDEMNIFICATION") HEREOF BY THE OTHER PARTY
SHALL NOT BE LIMITED.
C. EXCEPT WITH RESPECT TO THE INDMEMNIFICATION UNDER SECTION 8 OR A BREACH OF
THE "USE OF INFORMATION" PROVISIONS UNDER SECTION 5, NEITHER PARTY SHALL BE
LIABLE TO THE OTHER OR TO ANY OTHER PERSON OR ENTITY FOR LOST PROFITS OR ANY
INDIRECT, SPECIAL, RELIANCE, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE ARISING
OUT OF THIS AGREEMENT OR ANY OBLIGATION RESULTING THEREFROM, WHETHER IN AN
ACTION FOR OR ARISING OUT OF BREACH OF WARRANTY, BREACH OF CONTRACT, DELAY,
NEGLIGENCE, STRICT TORT LIABILITY OR OTHERWISE.
9. FORCE MAJEURE.
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Except with respect to payment obligations, neither party shall be held
responsible for any delay or failure in performance to the extent that such
delay or earthquakes, floods, wars, water, the elements, labor disputes,
government requirements, civil or military authorities, acts of God or by the
public enemy, inability to secure raw materials or transportation facilities,
acts or omissions of carriers or suppliers or other causes beyond its reasonable
control.
10. ASSIGNMENT.
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You shall not assign any right or interest under this Agreement or delegate or
subcontract performance hereunder without the express written consent of
Dialogic. Any attempted assignment or delegation in contravention of the above
provision shall be void and ineffective.
11. OPTION TO OFFER EMPLOYMENT TO AND TO EMPLOY THE LRS ENGINEERING AND
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DEVELOPMENT GROUP AND TO A EXERCISE A STRATEGIC MARKETING AGREEMENT
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A. Notwithstanding anything to the contrary contained herein, LRS hereby grants
to Dialogic the option ("Option") to (i) terminate the SOW under which LRS
assigns to Dialogic on a full-time basis the current and future members of the
Lightning Rod Software's engineering group (which will include at least the
current members of the LRS engineering group listed in Exhibit A attached
hereto, or their replacements) to provide certain development
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activities and services for Dialogic with respect to the Licensed Software
("Engineering Service SOW"); (ii) interview and offer employment to and/or
employ such members; and (iii) enforce the provisions of a superceding Strategic
Marketing Agreement which shall be negotiated within thirty (30) days following
the full execution of this Agreement by both Parties ("Strategic Marketing
Agreement"). The Option will be exercised, if at all, by written notice from
Dialogic to LRS on or before August 1, 2001, delivered together with a copy,
executed by Dialogic, of the Strategic Marketing Agreement.
B. Notwithstanding anything to the contrary contained in Section 11(A), Dialogic
will have no obligation to interview and/or offer employment to any such members
and shall determine, in its sole and absolute discretion, which such members, if
any, to interview and/or offer employment to and/or employ. If and when a LRS
member accepts an offer of employment with Dialogic, LRS will immediately
terminate its relationship with such member including consideration related to
any benefits or compensation previously provided by LRS. LRS acknowledges and
agrees that any member of the LRS engineering group who becomes employed with
Dialogic in accordance with this Section 11 shall in no way be limited as to the
work they may perform as an employee of Dialogic as a result of their prior
employment by or relationship with LRS (e.g., any confidentiality or
non-disclosure agreement between LRS and such member or any other type of
confidentiality or non-disclosure obligation of such member to LRS shall be
deemed null and void and without further force and effect) and that as an
employee of Dialogic each such member is permitted to use for any purpose any
tangible and non-tangible information learned or acquired as a result of their
employment by or relationship with LRS and to provide such information to
Dialogic.
C. LRS will indemnify and hold harmless Dialogic for any and all liabilities and
other damages arising out of or relating to (i) any severance obligations
relating to the termination by LRS of any of the members as a result of Dialogic
employing or not employing such members in accordance with this Section 11, (ii)
any violation by LRS of its obligations arising under "COBRA", or (iii) any
benefit plans of LRS. LRS agrees that any and all liabilities for any
responsibility to provide COBRA benefits whether arising out of the members
terminated as a result of Dialogic employing or not employing such members in
accordance with this Section 11 shall be fully the responsibility and liability
of LRS, and Dialogic shall have no liability whatsoever or responsibility to
provide COBRA benefits to any of LRS's members, and, without limiting the
foregoing, LRS shall fully comply with all applicable laws and regulations
relating to such COBRA benefits and obligations.
D. Nothing herein shall be deemed either to affect or limit in any way the
management prerogatives of Dialogic with respect to the members who accept
offers of employment (including, without limitation, the right of Dialogic to
modify compensation or the right of Dialogic to terminate the employment of any
member), or to create or to grant to such members any third-party beneficiary
rights or claims or cause of action of any kind or nature against Dialogic.
Nothing herein shall prevent Dialogic from terminating any such member at any
time for cause or for any other reason as determined by Dialogic in its sole
discretion.
12. STRATEGIC MARKETING
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During the term of any particular SOW, Dialogic shall use reasonable efforts to
market and promote LRS's professional support services with respect to LRS's
Interaction Manager(TM) computer software programs, including working together
on marketing programs, cooperating on consulting service opportunities
(including the "Intel call center project", if applicable) and joint meetings
and efforts with CCSSD sales and marketing.
13. MISCELLANEOUS
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A. The construction, interpretation and performance of this Agreement shall be
governed by the law of New Jersey, except its choice-of-law rules. The terms and
conditions contained in this Agreement, including its Appendices, supersede all
prior oral or written understandings between the parties and shall constitute
the entire Agreement between them concerning the subject matter of this
Agreement and shall not be contradicted, explained, or supplemented by any
course of dealing.
B. All notices required or permitted to be given hereunder shall be in writing,
shall make reference to this Agreement, and shall be delivered by hand, or
dispatched by prepaid air courier or by registered or certified airmail, postage
prepaid, to the address identified above. Such notices shall be deemed served
when received by addressee or, if delivery is not accomplished by reason of some
fault of the addressee, when tendered for delivery. Either Party may give
written notice of a change of address and, after notice of such change has been
received, any notice or request shall thereafter be given to such Party at such
changed address.
C. In providing the services under this Agreement, LRS will proceed with
diligence and such services will be executed in accordance with ordinarily
acceptable practices in the field to which the work pertains, as well as any
standards set forth in the particular Statement of Work.
D. Neither party will issue or release for publication any articles or
advertising or publicity matter relating to the work performed hereunder or
mentioning or implying the name of the other party or any of its affiliates or
personnel of the foregoing, unless prior written consent is granted by such
party.
E. If any paragraph, or clause thereof, of this Agreement will be held to be
invalid or unenforceable in
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any jurisdiction in which this Agreement applies, then the meaning of such
paragraph or clause will be construed so as to render it enforceable to the
extent feasible; and if no feasible interpretation would save such paragraph or
clause, it shall be severed from this Agreement and the remainder will remain in
full force and effect. However, in the event such paragraph or clause is
considered an essential element of the Agreement, the Parties will promptly
negotiate a replacement thereof.
F. If either party fails, at any time, to enforce any right or remedy available
to it under this Agreement, that failure will not be construed to be a waiver
of the right or remedy with respect to any other breach or failure by the other
party.
G. THIS IS THE ENTIRE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SERVICES
PROVIDED HEREUNDER AND SUPERSEDES ALL PRIOR AGREEMENTS, PROPOSALS OR
UNDERSTANDINGS, WHETHER WRITTEN OR ORAL.
H. This Agreement may be executed in one or more counterparts and by the
different parties hereto in separate counterparts, each of which when executed
will be deemed to be an original but all of which taken together will constitute
one and the same agreement. Facsimile signatures on this Agreement will be
deemed original for all purposes.
If this document accurately states our agreement about your assignment, please
sign below and return it to Dialogic. When you have done so, this document will
become the complete agreement between you and Dialogic with respect to your
engagement, and will supersede any previous discussions and communication.
Lightning Rod Software, Inc. DIALOGIC CORPORATION
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxx
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Title: CEO Title: President
--------------------------- Communications Product Group
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Date: March 2, 2001 Date: March 2, 2001
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EXHIBIT A
TO THE MASTER CONSULTING CONTRACT
AND NON-DISCLOSURE AGREEMENT BETWEEN
DIALOGIC AND LIGHTNING ROD SOFTWARE
LIGHTNING ROD SOFTWARE'S ENGINEERING GROUP AS OF FEBRUARY 27, 2001:
o Xxxxxx Xxxxxxx
o Nantus Bredenkamp
o Tiaan Geldenhuys
o Solly Noomahomed
o Xxxxxx Xxxxxx
o Xxxxxx Xxxxx
o Xxxxxxxx Xxxxxx
o Xxx Xxxxxx
o Xxxxxx Xxxx
o Xxxxx Xxxxxx
o Xxxxxxx Xxxxxx
o Xxxx Xxxxxxx
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