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EXHIBIT 10.9
CONSULTING AGREEMENT INTERVU INC. / J. XXXXXXX XXXXXX
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This CONSULTING AGREEMENT (the "Agreement"), made and entered into this 28th Day
of January 1998, by and between J. Xxxxxxx Xxxxxx, (hereinafter "CONSULTANT"),
and InterVU Inc., a Delaware corporation, having a principal place of business
at Solana Beach, California (hereinafter "CLIENT").
ARTICLE 1
TERM AND TERMINATION
1.1 TERM. This Agreement will become effective on the date
first shown above and will continue in effect through the
completion of each Work Order (as described in Section 3.1
hereof). The initial Work Order is attached as Supplement
1.
1.2 TERMINATION. Client may, at its sole option, terminate
any Work Order, or any portion thereof, upon seven (7)
days' advance written notice. Upon receipt of such notice,
Consultant shall advise Client of the extent to which work
has been performed and completed through such date, and
collect and deliver to Client whatever work product then
exists in the manner requested by Client. Consultant shall
be paid for all work performed through the date of
termination.
1.3 SURVIVAL. In the event of any termination of this
Agreement, Articles 5, 6, and 7 hereof shall survive and
continue in effect.
ARTICLE 2
INDEPENDENT CONTRACTOR STATUS
2.1 INTENTION OF PARTIES. It is the intention of the
parties that Consultant be an independent contractor and
not an employee, agent, joint venture, or partner of
Client. Nothing in this Agreement shall be interpreted or
construed as creating or establishing the relationship of
employer and employee between Client and either Consultant
or any employee or agent of Consultant.
2.2 NONEXCLUSIVE. Consultant shall retain the right to
perform work for others during the terms of this Agreement.
Client shall retain the right to cause work of the same or
a different kind to be performed by its own personnel or
other contractors during the term of this Agreement.
ARTICLE 3
SERVICES TO BE PERFORMED BY CONSULTANT
3.1 WORK PLAN. All work performed by Consultant shall be
documented in a Work Order signed by authorized
representatives of both parties. Each Work Order shall set
forth, at a minimum, the work to be done, the number of
Consultant's personnel to be assigned to Client's work, the
estimated duration of each assignment, and the fees for the
work to be performed. Consultant shall have the right to
accept or decline any proposed Work Order.
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CONSULTING AGREEMENT INTERVU INC. / J. XXXXXXX XXXXXX
3.2 METHOD OF PERFORMING SERVICES. Consultant, in
conjunction with its personnel, will determine the method,
details, and means of performing the work to be carried out
for Client. Client shall have no right to, and shall not,
control the manner or determine the method of accomplishing
such work. Client may, however, require Consultant's
personnel to observe at all times the security and safety
policies of Client. In addition, Client shall be entitled
to exercise a broad general power of supervision and
control over the results of work performed by Consultant to
ensure satisfactory performance. This power of supervision
shall include the right to inspect, stop work, make
suggestions or recommendations as to the details of the
work, and request modifications to the scope of the Work
Order.
3.3 SCHEDULING. Consultant will try to accommodate work
schedule request of Client to the fullest extent possible.
Should any personnel of Consultant be unable to perform
scheduled services because of illness, resignation, or
other causes beyond Consultant's reasonable control,
Consultant will attempt to replace such personnel within a
reasonable time, but Consultant shall not be liable for
failure if it is unable to do so, giving due regard to its
other commitments and priorities.
3.4 REPORTING. Client will advise Consultant of the
individuals to whom Consultant's manager will report
progress on day-to-day work. Client and Consultant shall
develop appropriate administrative procedures for
performance of work at Client's site.
3.5 PLACE OF WORK. Consultant's personnel will perform all
work for Client primarily at Client's premises except when
such projects or tasks may, as mutually determined, be
performed off-site. Client agrees to provide working space
and facilities, and any other services and materials
Consultant may reasonably request in order to perform their
work. Client recognizes that there may be a need to train
Consultant in the unique procedures used at Client's
location. When Client determines that such training is
necessary, Client shall, unless otherwise agreed in
writing, pay Consultant for its personnel's training time.
ARTICLE 4
COMPENSATION
4.1 RATES. The current schedule of fees for work performed
by Consultant shall be set forth as part of each Work
Order. Unless otherwise stated, Consultant reserves the
right to change such schedule for any Work Order upon at
least sixty (60) day's advance notice or at any time for
any new Work Order or modified portion of an existing Work
Order.
4.2 ESTIMATES. Estimates of total fees for projects may be
provided in a Work Order, but Consultant does not guarantee
such estimates. Consultant will, however, notify Client as
soon as possible if it will exceed the estimate, and Client
may then terminate the project and pay only for services
actually rendered if Client so chooses.
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CONSULTING AGREEMENT INTERVU INC. / J. XXXXXXX XXXXXX
4.4 INVOICES. Consultant shall submit invoices to Client
monthly for the services furnished and other expenses
incurred hereunder. Each invoice will provide a breakdown
of work performed and the related expense items.
4.5 DATE FOR PAYMENT OF COMPENSATION. Client shall pay each
invoice in full within fifteen (15) days after receipt.
4.6 EXPENSES. Except as otherwise agreed in this Agreement
for the applicable Work Order, Client shall be responsible
for all costs and expenses incident to the performance of
services for Client.
ARTICLE 5
TREATMENT OF CONSULTANT'S PERSONNEL
5.1 COMPENSATION OF CONSULTANT'S PERSONNEL. Consultant
shall bear sole responsibility for payment of compensation
to its personnel. Consultant shall pay and report, for all
personnel assigned to Client's work, federal and state
income tax withholding, social security taxes, Medicare
taxes, and unemployment insurance applicable to such
personnel as employees of Consultant. Consultant shall bear
sole responsibility for any health or disability insurance,
retirement benefits, or other welfare or pension benefits,
if any, to which such personnel may be entitled. Consultant
agrees to defend, indemnify, and hold harmless Client,
Client's officers, directors, employees and agents, and the
administrators of Client's benefit plans, from and against
any claims, liabilities, or expenses relating to such
compensation, tax, insurance, or benefit matters; provided
that Client shall (1) promptly notify Consultant of each
such claim when and as it comes to Client's attention; (2)
cooperate with consultant in the defense resolution of such
claim; and (3) not settle or otherwise dispose of such
claim without Consultant's prior written consent, such
consent not to be unreasonably withheld.
5.2 WORKERS' COMPENSATION. Notwithstanding any other
workers' compensation or insurance policies maintained by
Client, Consultant shall procure and maintain workers'
compensation coverage sufficient to meet the statutory
requirements of every state in which Consultant is engaged
in Client's work.
5.3 CONSULTANT'S AGREEMENTS WITH PERSONNEL. Consultant
shall obtain and maintain in effect written agreements with
each of its personnel who participate in any of Client's
work under any Work Order. Such agreements shall contain
terms sufficient for Consultant to comply with all
provisions of this Agreement, and shall confirm that such
personnel shall have no status as employees of Client and
no claim under any Client benefit plan.
5.4 STATE AND FEDERAL TAXES. As neither Consultant nor its
personnel are Client's employees, Client shall not take any
action or provide Consultant's personnel with any benefits
or commitments inconsistent with any of such undertakings
by Consultant. In particular:
o Client will not withhold FICA (Social Security)
from Consultant's payments.
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CONSULTING AGREEMENT INTERVU INC. / J. XXXXXXX XXXXXX
o Client will not withhold Medicare from
Consultant's payments.
o Client will not make state or federal
unemployment insurance contributions on behalf
of Consultant.
o Client will not withhold state or federal income
tax from payments to Consultant.
o Client will not make disability insurance
contributions on behalf of Consultant.
o Client will not obtain workers' compensation
insurance on behalf of Consultant or its
personnel.
ARTICLE 6
INTELLECTUAL PROPERTY RIGHTS
6.1 CONFIDENTIALITY. Consultant shall maintain in strict
confidence, and shall use and disclose only as authorized
by Client, all information of a competitively sensitive or
proprietary nature that it receives in connection with the
work performed for Client pursuant to each Work Order.
Consultant shall require its personnel to agree to do
likewise. Client shall take reasonable steps to identify
for the benefit of Consultant and its personnel any
information of a competitively sensitive or proprietary
nature, including the use of confidentiality notices in
written material where appropriate. These restrictions
shall not be construed to apply to (1) information
generally available to the public; (2) information released
by Client generally without restriction; (3) information
independently developed or acquired by Consultant or its
personnel without reliance in any way on other protected
information of Client; or (4) information approved for the
use and disclosure of Consultant or its personnel without
restriction. Notwithstanding the foregoing restrictions,
Consultant and its personnel may use and disclose any
information (1) to the extent required by an order of any
court or other governmental authority or (2) as necessary
to protect their interest in this Agreement, but in each
case only after Client has been so notified and has had the
opportunity, if possible, to obtain reasonable protection
for such information in connection with such disclosure.
6.2 OWNERSHIP OF WORK PRODUCT. All copyrights, patents,
trade secrets, or other intellectual property rights
associated with any ideas, concepts, techniques, inventors,
processes, or works of authorship developed or created by
Consultant during the course of performing Client's work
(Collectively, the "Work Product") shall belong exclusively
to Client.
6.3 RESIDUAL RIGHTS OF PERSONNEL. Notwithstanding anything
to the contrary herein, Consultant shall be free to use and
employ their general skills, know-how, and expertise, and
to use, disclose, and employ any generalized ideas,
concepts, know-how, methods, techniques, or skills gained
or learned during the course of any assignment, so long as
it or they acquire and apply such information without
disclosure of any confidential or proprietary information
of Client and without any unauthorized use or disclosure of
Work Product.
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CONSULTING AGREEMENT INTERVU INC. / J. XXXXXXX XXXXXX
ARTICLE 7
LIMITATIONS
7.1 DISCLAIMER. CONSULTANT DOES NOT MAKE ANY WARRANTY,
EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES RENDERED,
OR THE RESULTS OBTAINED FROM THEIR WORK, INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL
CONSULTANT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL,
SPECIAL, OR INDIRECT DAMAGES, OR FOR ACTS OF NEGLIGENCE
THAT ARE NOT INTENTIONAL OR RECKLESS IN NATURE, REGARDLESS
OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
7.2 TOTAL LIABILITY. Client agrees that Consultant's
liability hereunder for damages, regardless of the form of
action, shall not exceed the total amount paid for services
under the applicable estimate or in the authorization for
the particular service if no estimate is provided.
7.3 FORCE MAJEURE. Consultant shall not be liable to Client
for any failure or delay caused by events beyond
Consultant's control, including, without limitation,
Client's failure to furnish necessary information,
sabotage, failures or delays in transportation or
communications, failures or substitutions of equipment,
labor disputes, accidents, shortages of labor, fuel, raw
materials, or equipment, or technical failures.
ARTICLE 8
GENERAL PROVISIONS
8.1 NOTICES. Any notices to be given hereunder by either
party to the other may be effected either by personal
delivery in writing or by mail, registered or certified,
postage prepaid with return receipt requested. Mailed
notices shall be addressed to the parties at the addresses
appearing in the introductory paragraph of this Agreement,
but each party may change such address by written notice in
accordance with this paragraph. Notices delivered
personally will be deemed communicated as of actual
receipt. Mailed notices will be deemed communicated as of
two days after mailing.
8.2 NO DISCRIMINATION. Consultant agrees that in the
performance of this Agreement it will not discriminate or
permit discrimination against any person or group of
persons on the grounds of sex, race, color, religion, or
natural origin in any manner prohibited by the laws of the
United States.
8.3 INSURANCE. To the extent that Consultant may perform
work at Client's premises, Client shall maintain
comprehensive general liability insurance including broad
form property damage coverage, with limits of at least $1
million combined single limit for personal injury and
property damage for each occurrence.
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CONSULTING AGREEMENT INTERVU INC. / J. XXXXXXX XXXXXX
8.4 ENTIRE AGREEMENT OF THE PARTIES. This Agreement
supersedes any and all agreements, either oral or written,
between the parties hereto with respect to the rendering of
services by Consultant for Client and contains all the
covenants and agreements between the parties with respect
to the rendering of such services in any manner whatsoever.
Each party to this agreement acknowledges that no
representations, inducements, promises, or agreements,
orally or otherwise, have been made by any party, or anyone
acting on behalf of any party, that are not embodied
herein, and that no other agreement, statement, or promise
not contained in this agreement shall be valid or binding.
Any modification of this agreement will be effective only
if it is in writing signed by authorized personnel of both
parties.
8.5 PARTIAL INVALIDITY. If any provision in this agreement
is held by a court of competent jurisdiction to be invalid,
void, or unenforceable, the remaining provisions will
nevertheless continue in full force without being impaired
or invalidated in any way.
8.6 GOVERNING LAW. This Agreement will be governed by and
construed in accordance with the laws of the State of
Delaware.
8.7 SUCCESSORS. This Agreement shall inure to the benefit
of, and be binding upon, Consultant and Client, their
successors and assigns.
CLIENT CONSULTANT
InterVU Inc.
/s/ XXXXX X. XXXXXX /s/ J. XXXXXXX XXXXXX
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BY: Xxxxx X. Xxxxxx BY: J. Xxxxxxx Xxxxxx
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TITLE: CEO TITLE:
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DATE: DATE:
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CONSULTING AGREEMENT INTERVU INC. / J. XXXXXXX XXXXXX
SUPPLEMENT 1
This SUPPLEMENT 1 (Work Order) is hereby incorporated as an addition to the
Consulting Agreement (the "Agreement"), dated January 28, 1998, made between
CONSULTANT (hereinafter "Consultant") and InterVU Inc. (hereinafter "Client").
WORK ASSIGNMENT:
Assist and advise management team members in the areas of sales, marketing and
business development.
LENGTH OF ENGAGEMENT:
Not to exceed twelve months.
ESTIMATED NUMBER OF WORKING DAYS:
As needed.
COMPENSATION FOR SERVICES:
Consultant shall be paid a monthly rate of Three Thousand dollars per month
($3,000) .
Agreed:
/s/ XXXXX XXXXXX /s/ J. XXXXXXX XXXXXX
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Xxxxx Xxxxxx (date) J. Xxxxxxx Xxxxxx (date)
Union Club
000 X. 00xx Xx.
Xxx Xxxx, XX 00000
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