EXHIBIT 10.14
INDEPENDENT CONTRACTOR AGREEMENT
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THIS INDEPENDENT CONTRACTOR AGREEMENT (this "Agreement"), is made and
entered into as of February 5, 1998, effective as of that date, by and between
SQL FINANCIALS INTERNATIONAL, INC., a Delaware corporation (hereinafter referred
to as the "Company"); and XXXXXX CONSULTING GROUP, INC., a Georgia corporation
(hereinafter referred to as the "Contractor") (the Company and the Contractor
being sometimes referred to herein as the "parties").
W I T N E S S E T H:
WHEREAS, the Contractor has been rendering services to the Company prior to
the date of this Agreement as an independent contractor; and
WHEREAS, the Company desires to continue to retain the Contractor to render
services to the Company from time to time as an independent contractor; and
WHEREAS, it is the intent of the parties that this Agreement shall apply to
the Contractor's engagement by the Company for the full term thereof and, where
applicable, after such term; and shall apply regardless of the Contractor's
description and/or location, all as same may change from time to time; and
WHEREAS, the Contractor desires to continue performing the services set
forth herein for the Company, and the Company and the Contractor mutually desire
to set forth the terms and conditions of such arrangement, all as herein set
forth;
NOW, THEREFORE, for and in consideration of the premises, the mutual
covenants herein contained, the sum of $10.00 in hand paid, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do hereby agree as follows:
1. MUTUAL AGREEMENT. By the execution of this Agreement, both parties
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evidence their assent to, and agreement to abide by, each and every term and
provision hereof.
2. DEFINITIONS. As used in this Agreement, the following words (and any
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derivative form thereof) shall have the meaning set forth below:
a. AGREEMENT. This Independent Contractor Agreement.
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b. COMPANY. SQL Financials International, Inc., a Delaware
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corporation, and any successor corporation or assignee hereof.
c. COMPENSATION. This term means any and all payments and
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remuneration provided to the Contractor by the Company, regardless of the form
thereof, including but not limited
to fees, commissions, discounts, incentives, advances and all other forms of
consideration for services rendered.
d. CUSTOMERS. Those persons, corporations, firms, partnerships, or
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any other entities whatsoever, which have purchased, licensed or leased or shall
purchase, license or lease after the date hereof, any of the Products offered by
the Company.
e. PRODUCTS. All goods, property, products, systems, or programs,
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now or hereafter offered for sale, license or lease by the Company to Customers
and prospective Customers.
3. SERVICES. The Company hereby retains the Contractor as an independent
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contractor for the Company to perform the services described on Exhibit "A"
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attached hereto and incorporated herein as well as such other services as may be
reasonably requested from time to time by the Company, subject to mutual
agreement between the Contractor and the Company, and including such similar
services performed by Contractor for the Company prior to the date hereof
(collectively the "Services") on the terms and conditions set forth herein; and
the Contractor hereby agrees to perform such Services for the Company. The
Contractor agrees to devote its skills and reasonable best efforts to the
performance of such Services. Such Services shall be performed in a
professional manner using as high a degree of skill and care as is necessary in
the Contractor's discretion under the circumstances.
4. COMPENSATION FOR SERVICES. The Company shall pay Contractor as full
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Compensation for the Services the amount set forth on Exhibit "B" attached
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hereto. The Contractor acknowledges that it has been paid in full for all
Services rendered to the Company prior to the date hereof, except unbilled
services rendered during the prior thirty (30) day period. The Contractor shall
also be reimbursed for all reasonable and necessary business expenses of the
type approved by the Company and incurred by Contractor in connection with the
performance of the Services hereunder; provided that as a condition of
reimbursement, the Contractor shall submit verification of the nature and amount
of such expenses. All such expenses shall be reimbursed by the Company within
thirty (30) days of submission of invoices, vouchers, etc., documenting such
expenses. If requested by the Contractor, any approved anticipated expenses to
be incurred by the Contractor shall be advanced by the Company to the
Contractor.
5. CONFIDENTIAL INFORMATION. For the mutual benefit of the Contractor
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and the Company, the Company has provided and may provide the Contractor such
information and training in the Products offered by the Company and give
Contractor other assistance, support and access to Confidential Information
regarding the Company's business methods, products, services and Customers, all
as deemed necessary by the Company. All information or material regarding the
Company's business, the confidentiality of which has or could have commercial
value or utility in the business in which the Company is engaged or contemplates
engaging or information which if disclosed without authorization could be
detrimental to the business of the Company, including but not limited to its
business plans, methods of operation, products, software programs, documentation
of computer programs, programming procedures, algorithms, formulas, equipment,
techniques, existing and contemplated products, services, inventions, systems,
devices (whether or not
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patentable), management programs, sales literature, financial methods and
practices, plans, pricing, selling techniques, lists of the Company's Customers,
credit and financial data of the Company, and the Company's suppliers and
present and prospective Customers, particular business requirements of the
Company's present and prospective Customers, and special methods and processes
involved in the Company's business, shall be deemed Confidential Information and
trade secrets of the Company and the Company's exclusive property; provided,
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however, that Confidential Information shall not include information that has
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entered the public domain other than through the actions of Contractor. The
Contractor shall not disclose any such Confidential Information or trade secrets
to any person or entity whatsoever, nor will it use any such Confidential
Information or trade secret concerning the Company, however obtained, other than
in the furtherance of the Company's business and at its direction provided,
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however, that nothing in this paragraph shall be construed to limit the
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Contractor's subsequent use of information and training in the Products acquired
during the course of performing the Services that is not Confidential
Information. The provisions of this paragraph shall continue in full force and
effect during the term hereof, and survive the termination hereof for any reason
whatsoever.
6. OWNERSHIP AND ASSIGNMENT OF COPYRIGHTS, PROCESSES, PRODUCTS, OR
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INVENTIONS.
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a. The Contractor acknowledges and agrees that any and all programs,
program modifications, documentation, works, manuals, pamphlets, instructional
materials, computer programs, program codes, files, tapes, other copyrightable
material, common law and statutory trademark rights, patent rights, or any
portions thereof, that have been or may be created, authored, written,
conceived, originated or discovered in whole or in part by Contractor or any of
its employees or agents during the course of (i) the performance of the Services
hereunder or (ii) the performance of any Services for the Company prior to the
date of this Agreement are and shall be the exclusive property of the Company,
and Contractor shall cooperate with the Company in the protection of the
Company's copyrights and proprietary rights therein and, to the extent deemed
desirable by the Company, the registration of such proprietary rights in the
name of the Company.
b. The Contractor shall immediately disclose and does hereby assign
to the Company all right, title and interest in and to all, systems, programs,
inventions, copyrights, patents, common law and statutory trademarks and any
other creations (all the foregoing, for purposes hereof are called "Inventions")
that the Contractor or any of its employees or agents may conceive, discover,
develop, or create or assist in whole or in part in performing the Services
hereunder. The Contractor does hereby assign to the Company all right, title
and interest in and to all Inventions that the Contractor or any of its
employees or agents may have conceived, discovered, developed, or created or
assisted in whole or in part during the performance of any Services for the
Company prior to the term of this Agreement. The Contractor shall comply with
all of the Company's instructions and sign and deliver all documents relative to
said Inventions (whether in the United States or any foreign country) requested
by the Company for the purpose of vesting, securing or confirming the Company's
title thereto.
c. Contractor represents and warrants to Company as following:
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i. NATURE OF PERSONNEL ASSIGNED TO PROJECT. The personnel to
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be assigned by Contractor to the projects contemplated by this
Agreement are and will be employees of Contractor and not
independent contractors engaged by Contractor. In the event any
such personnel are independent contractors or subcontractors
engaged by Contractor, Contractor shall immediately notify
Company before such contractors or subcontractors are permitted
to provide Services. Before any independent contractor or
subcontractor is permitted to provide Services, Contractor shall
ensure that each such contractor or subcontractor executes and
delivers to Company an agreement substantially similar to this
Agreement and which shall include, among other things, an
assignment of all proprietary rights in all Inventions developed
or produced by such contractor or subcontractor in connection
with the engagement hereunder, as well as covenants of
nondisclosure of Confidential Information and nonsolicitation of
Customers or employees.
ii. INDEPENDENT DEVELOPMENT. Any Inventions developed by
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Contractor and its employees in connection with the engagement
hereunder shall be developed through the independent, creative
efforts of Contractor and/or its employees, and shall not be
based on or derived from the proprietary rights of any third
party (other than proprietary rights used by Contractor pursuant
to a duly executed license agreement from the owner thereof, with
full authority to sublicense), nor in violation of the rights of
others.
iii. AUTHORITY OF CONTRACTOR TO ASSIGN OR SUBLICENSE. Except
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as otherwise provided herein, Contractor has the full right and
authority to assign or sublicense to Company all proprietary
rights in the Inventions created in connection with the
engagement hereunder, free and clear from any liens, claims,
licenses or encumbrances, and such assignment will not violate
any agreement, certificate or instrument to which Contractor is a
party or by which it is bound.
7. COMPANY PROPERTY. All property and materials (whether originals or
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duplicates and including, but not in any way limited to, products, product
designs, features and functionality, catalogs, price lists, quotation guides,
books, records, manuals, sales and licensing presentation literature, training
materials, calling or business cards, Customer records, Customer files, Customer
names, Customer addresses, Company Policies, rules, directives, correspondence,
documents, contracts, orders, messages, memoranda, notes, circulars, agreements,
bulletins, invoices, receipts, keys, diskettes, equipment, programs and
software) in the possession or control of the Contractor, which in any way
relate or pertain to the Company's business, whether furnished to the Contractor
by the Company or prepared, compiled, or acquired by the Contractor while
engaged by the Company, are the sole property of the Company. The Contractor
shall at any time upon request of the Company, and in any event without request
promptly on termination of this Agreement, transfer and deliver over all such
tangible materials to the Company. The Company shall be under no
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obligation to pay to the Contractor any sums of money otherwise then due the
Contractor or becoming due thereafter until the Contractor has fully and
unconditionally complied with the provisions of this paragraph.
8. CUSTOMER AND EMPLOYEE NON-SOLICITATION COVENANTS. The Contractor
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acknowledges that it is and will become intimately familiar with Customers'
names and addresses, particular needs, demands, practices, trade secrets,
methods of operation, products, services, contracts, accounts, techniques, and
other confidential information and that the protection of the Company requires
that all such knowledge and information must remain the sole and private
property of the Company not to be disclosed to any other party nor used by the
Contractor against the Company or for the Contractor's benefit, except as
expressly set forth in this Agreement; provided, however, that this paragraph
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does not apply to any such knowledge or information that has entered the public
domain other than through the actions of Contractor. Accordingly, the
Contractor does hereby further warrant, represent, covenant, and agree during
the term of this Agreement, and for a period of two (2) years thereafter, as
follows:
a. COVENANT NOT TO SOLICIT BUSINESS FROM CERTAIN CUSTOMERS. The
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Contractor acknowledges that during the course of its engagement by the Company,
Contractor and its employees and agents may be given an opportunity to, make
contact with and strengthen ties with Customers and potential Customers of the
Company. During the term of this Agreement and for a period of two (2) years
thereafter, the Contractor shall not, directly or indirectly, for itself or any
other person or entity, solicit any Customer for the purchase or license of any
product competitive with any of the Products which are offered by the Company.
As used in the previous sentence, "Products" shall not include products that
are dissimilar to the Products in features, functionality, technical design and
price.
A "Customer" for purposes of this subparagraph 8.a. means any Customer
or prospective Customer with whom Contractor through its employees and agents
had Material Contact, as defined below, during the Contractor's engagement.
"Material Contact" shall be deemed to exist between the Contractor and
each Customer or potential Customer of the Company (1) with whom the Contractor
dealt; (2) whose dealings with the Company were coordinated or supervised by the
Contractor; or (3) about whom the Contractor obtained confidential information
in the ordinary course of business as a result of such Contractor's association
with the Company; within two (2) years prior to the date of the Contractor's
termination hereof.
b. COVENANT NOT TO SOLICIT EMPLOYEES. During the term of this
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Agreement and for a period of two (2) years thereafter, neither the Contractor
nor the Company shall employ or solicit the employment of any one (1) or more
employees of the other party for the purpose of causing such employee(s) to
leave such employ or to take employment with such party or a competitor of such
party, until such employee has ceased to be employed by the other party for a
period of six (6) months; provided, however, that this paragraph shall not be
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deemed to prohibit (i) employment by the Contractor, Technology Ventures, L.L.C.
("Tech Ventures"), or any subsidiary
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of the Contractor or Tech Ventures, of any employees of the Company, if such
employment commences while Xxxxxx X. XxXxxx serves as a director of the Company
or (ii) employment by the Company, or any subsidiary of the Company, of any
employees of Contractor or Tech Ventures, if such employment commences while
Xxxxxx X. XxXxxx serves as a director of the Company.
The foregoing covenants in subparagraphs 8.a. and 8.b. on the part of
the Contractor shall be deemed covenants separate and apart from each other and
from any other provision herein contained, and the existence of any claim or
cause of action on the part of the Contractor against the Company, whether
arising from this Agreement or otherwise, shall in no way constitute a defense
to the enforcement of these covenants by the Company, nor in any way relieve the
Contractor from the effect of this paragraph. The separate covenants contained
in this paragraph are separate and severable and no one of them is dependent on
any other and all shall not be invalid if any one of them is declared invalid.
It is agreed and acknowledged by both parties that the restrictions in
the foregoing covenants in subparagraphs 8.a. and 8.b., as well as paragraphs 4,
5, 6 and 7 hereof, are reasonable, are not vague, overbroad, or indefinite, and
are designed to protect legitimate business interests of each party, and that in
the event of a breach of such covenants, the damages to either party would be
difficult or impossible to ascertain, and in addition to any other remedies
which either party may have under the law for breach of any or all of said
covenants, each party shall be entitled to injunctive and/or other equitable
relief against the violation of any said covenants. In the event that any court
of competent jurisdiction shall determine that any provision of this Agreement
or the application thereof is unenforceable because of the duration or scope
thereof, the parties hereto agree that said court in making such determination
shall have the power to reduce the duration and scope of such provision to the
extent necessary to make it enforceable, and that the Agreement in its reduced
form shall be valid and enforceable to the full extent permitted by law.
9. TERM; TERMINATION. This Agreement shall continue in full force and
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effect until (a) the completion of the AR Enhancement Project as set forth in
the September 10, 1997 engagement letter between the Company and Contractor as
amended by that certain November 14, 1997 letter agreement between the Company
and Contractor or (b) the completion of other projects mutually agreed upon as
requested by the Company from time to time, unless terminated earlier by either
party in the event of a breach by the other party of any of the terms or
conditions of this Agreement which remains uncured for a period of seven (7)
days. In the event of such earlier termination, the terminating party shall
give seven (7) days' written notice to the other party of its intention to so
terminate the Agreement. Such notice or any notice required under this
Agreement may be given to either party by delivery at the last known business
address of the other. Except for agreements and covenants herein specifically
provided to be performed or to remain in force following termination hereof, and
except for payment of any Compensation which might be owed to the Contractor for
Services performed prior to termination, neither party hereto shall, after
termination hereof, be under any further obligation to the other; provided that
Contractor shall deliver to the Company all of the Contractor's work in progress
as well as all other Company Property as set forth in paragraph 7 hereof.
Without limiting the generality of the foregoing, the parties shall remain
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obligated to one another after termination hereof with respect to each parties'
agreements and covenants contained in paragraphs 4, 5, 6, 7 and 8 hereof.
10. PAYMENT OF ADVANCES. The Contractor agrees that upon the termination
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hereof, it shall repay to the Company immediately any and all advances for
expenses, compensation, or otherwise which were paid by the Company, including
the value of goods or services furnished to it or for its benefit, not offset by
earnings or other credits due. The Contractor's duty to repay advances shall
apply to all advances not fully earned, owned by, and vested in the Contractor,
whether such advances be against fees or otherwise, and whenever made and for
whatever purpose, and even if not expressly made repayable at the time of such
advance, it being the intent of the parties that all such advances shall be
covered by this paragraph. The Company shall be entitled to offset against any
amounts otherwise owed by the Company to the Contractor, the amount of any such
advances not repaid by the Contractor.
11. CONTRACTOR'S AUTHORITY. The Contractor shall not have any power or
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authority to accept any order or to enter into any contract, undertaking, or
agreement for or on behalf of the Company or to assume or create any obligation
or responsibility, express or implied, on behalf of or in the name of the
Company or to bind the Company in any manner whatsoever.
12. INDEPENDENT CONTRACTOR ARRANGEMENT. The parties agree that nothing in
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this Agreement shall be deemed to create the relationship of partnership, joint
venture, or an employer-employee relationship. It is understood by the parties
that the Contractor is an independent contractor, responsible for all of its own
local, state, and federal taxes, the payment of all salary and benefits of its
employees and agents providing services to the Company hereunder, and as such is
not under the control or management of the Company as to how or when the
Services are performed. The Contractor, for its employees and agents, hereby
specifically waives any claim of rights or benefits, whether present or future,
under the Company's retirement plans, or fringe benefits afforded its employees,
or the Company's payment of Social Security taxes, workmen's compensation,
unemployment compensation, or like benefits normally afforded its employees;
provided further that the Contractor, in its capacity as independent contractor,
shall, if requested by the Company, obtain and give to the Company waivers from
all persons employed or otherwise retained by him, individually acknowledging
that they are not employees of the Company and acknowledging further that they
waive any claim of rights or benefits normally afforded the Company's employees.
13. GEORGIA LAW TO GOVERN. This Agreement is executed within the State of
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Georgia, although it is contemplated that performance of the duties of the
Contractor may be either within or without the State of Georgia, and as a part
of the terms hereof, the parties covenant that the laws of the State of Georgia,
without regard to the conflicts of laws provisions of said State, shall govern
this Agreement, the execution and interpretation of it, and the rights of both
parties under it, including their heirs, administrators, executors, successors,
or assigns.
14. READING OF AGREEMENT. Both parties represent that they have read and
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understand the terms and conditions of this Agreement and each party
acknowledges receipt of a copy of the same.
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15. ENTIRE AGREEMENT. This Agreement contains the entire understanding
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and agreement between the parties and all promises, representations, warranties,
or inducements made by either party to the other, not contained in writing
herein or made a part hereof by reference, are expressly superseded and shall
have no force or effect whatsoever, except as to the Company Policies,
procedures, rules, regulations, or other Company notices or communications, as
referred to in this Agreement, which are incorporated by reference thereto.
16. TIME OF ESSENCE. Time is of the essence of this Agreement.
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17. ATTORNEYS' FEES. In the event it is necessary for either party to
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employ an attorney at law to represent it or present its claim for damages,
injunction, specific performance, or recovery of money due, by reason of this
Agreement or any of the terms or provisions hereof, the other party shall pay,
in addition to such sums as may be due or such other relief to which the
complaining party may be entitled, reasonable fees for said attorney in the
event that the complaining party is the prevailing party in any cause of action
relating to this Agreement.
18. SEVERABILITY. If any covenant or other provision of this Agreement is
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invalid or unenforceable by reason of any rule of law or public policy, this
Agreement shall be construed in such a manner so as to delete therefrom the
covenant or provision so held to be invalid or unenforceable; and to the extent
that any provision is invalid or unenforceable but may be valid or enforceable
by limitation thereof, then such provision shall be enforceable to the fullest
extent permitted under the law of the jurisdiction in which enforcement is
sought; and if any particular provision is held to be invalid, illegal, or
unenforceable, all of the other covenants, terms, conditions, and provisions
shall be and remain in full force and effect.
19. BINDING EFFECT. This Agreement shall be binding upon and inure to the
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benefit of each respective party's heirs, successors, legal representatives,
executors, and assigns.
20. SUMS UNPAID AT TERMINATION. In the event of termination of this
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Agreement, it is contemplated that there may be sums due the Contractor by the
Company for Compensation, expenses, or otherwise. Regarding such sums otherwise
due by the Company to the Contractor for any reason whatsoever, it is hereby
stipulated and agreed that no such sums shall be due to or collectible by the
Contractor, its successors or assigns, if the Contractor breaches any of the
terms or conditions of this Agreement, in particular, those paragraphs relating
to protective covenants and protection of Confidential Information during or
after termination of the Agreement.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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WITNESS the hand and seal of each party, this 5th day of February, 1998.
"COMPANY":
SQL FINANCIALS INTERNATIONAL, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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XXXXXXX X. XXXXXXX, President
"CONTRACTOR":
XxXXXX CONSULTING GROUP, INC.
By: /s/ Xxxxxx X. XxXxxx
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XXXXXX X. XXXXXX, President
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