Exhibit 10.17
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is entered into effective as
of March 15, 2001 ("Effective Date") by and between iVoice (the "Company") and
Xxxxxxxx USA ("Consultant").
1. Consulting Relationship. During the term of this agreement, Consultant
will provide consulting services (the "Services") to the Company as described on
Exhibit A attached to this Agreement, as needed and as requested by the Company.
Consultant shall use Consultant's best efforts to perform the Services
in a manner satisfactory to the Company.
2. Fees. As consideration for the Services to be provided by Consultant
and other obligations, the Company shall pay to Consultant the consideration
specified in Exhibit B attached to this Agreement.
3. Support. As additional consideration for the Services to be provided by
Consultant under this Agreement, the Company will provide Consultant with such
support facilities and space as may be required in the Company's judgment to
enable Consultant to perform the Services properly.
4. Expenses. Except as specified in Exhibit C attached to this Agreement,
Consultant shall not be authorized to incur on behalf of the Company any
expenses, without the prior written consent of the Company. As a condition to
receipt of reimbursement for permitted expenses, Consultant shall be required to
submit to the Company reasonable evidence that the amount involved was expended
and related to Services provided under this Agreement.
5. Term and Termination. Consultant shall serve the Company for an initial
period of 90 days, or a reasonable time period necessary to complete the items
listed in Exhibit A, commencing on or about March 15, 2001, and may be extended
by mutual agreement of the parties.
6. Independent Contractor. Consultant's relationship with the Company will
be that of an independent contractor and not that of an employee. Consultant
will not be eligible for any employee benefits, nor will the Company make
deductions from payments made to Consultant for taxes, all of which will be
Consultant's responsibility. Consultant agrees to indemnify and hold the Company
harmless from any liability for, or assessment of, any such taxes imposed on the
Company by relevant taxing authorities. Consultant will have no authority to
enter into contracts that bind the Company or create obligations on the part of
the Company without the prior written authorization of the Company.
7. Supervision of Consultant's Services. All services to be performed by
Consultant, including but not limited to the Services, will be as agreed between
Consultant and the Company's Chief Executive Officer (CEO). Consultant will be
required to report to the CEO concerning the Services performed under this
Agreement. The nature and frequency of these reports will be left to the
discretion of the CEO.
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8. Consulting or other Services for Competitors. The Company understands
that Consultant does not presently perform or intend to perform, during the term
of this Agreement, consulting or other services for any company, person or
entity whose business or proposed business in any way involves products or
services which could reasonably be determined to be competitive with the
products or services or proposed products or services of the Company.
If, however, Consultant desires to perform such services at any time after the
Effective Date and prior to the expiration date of this Agreement, Consultant
agrees to notify the Company in writing in advance (specifying the identity of
the entity or the person) and provide information sufficient to allow the
Company to determine if such consulting would conflict with projects or products
of the Company. If the Company determines that such business is in competition
with that conducted by the Company, this Agreement shall, at the option of the
Company upon written notice to Consultant, terminate immediately.
9. Confidentiality Agreement. Consultant agrees to execute an NDA if
deemed necessary by the Company.
10. Conflicts with this Agreement. Consultant represents and warrants that
neither Consultant nor any of Consultant's partners, employees or agents is
under any pre-existing obligation in conflict or in any way inconsistent with
the provisions of this Agreement. Consultant warrants that Consultant has the
right to disclose or use all ideas, processes, techniques and other information,
if any, which Consultant has gained from third parties, and which Consultant
discloses to the Company in the course of performance of this Agreement, without
liability to such third parties. Consultant represents and warrants that
Consultant has not granted any rights or licenses to any intellectual property
or technology that would conflict with Consultant's obligations under this
Agreement. Consultant will not knowingly infringe upon any copyright, patent,
trade secret or other property right of any former client, employer or third
party in the performance of the services required by this Agreement.
11. License and Assignment of Rights. To the extent that Consultant has
intellectual property rights of any kind in any pre-existing works which are
subsequently incorporated in any work or work product produced in rendering the
Services, Consultant hereby grants the Company a royalty-free, irrevocable,
world-wide, perpetual, non-exclusive license (with the right to sublicense) to
make, have made, copy, modify, make derivative works of, use, sell, license,
disclose, publish, or otherwise disseminate or transfer such subject matter.
Consultant agrees that all inventions, original works of authorship,
developments, concepts, know-how, improvements or trade secrets which are made
by Consultant (solely or jointly with others) within the scope of and during the
period in which Consultant is providing Services to the Company are "works made
for hire" (to the greatest extent permitted by applicable law) belonging to the
Company and Consultant is compensated therefor by such amounts paid to
Consultant under this Agreement, unless regulated otherwise by the mandatory law
of the state of California. To the extent there are any conflicts between this
Section 11 and the Confidentiality Agreement, the terms of the Confidentiality
Agreement shall prevail.
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12. Miscellaneous.
(a) Amendments and Waivers. Any term of this Agreement may be amended or
waived only with the written consent of the parties.
(b) Sole Agreement. This Agreement, including the Exhibits hereto,
constitutes the sole agreement of the parties and supersedes all oral
negotiations and prior writings with respect to the subject matter hereof.
(c) Notices. Any notice required or permitted by this Agreement shall be
in writing and shall be deemed sufficient upon receipt, when delivered
personally or by a nationally-recognized delivery service (such as Federal
Express or UPS), or forty-eight (48) hours after being deposited in the U.S.
mail as certified or registered mail with postage prepaid, if such notice is
addressed to the party to be notified at such party's address as set forth below
or as subsequently modified by written notice.
(d) Choice of Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Idaho without giving effect to the principles of conflict of laws.
(e) Severability. If one or more provisions of this Agreement are held to
be unenforceable under applicable law, the parties agree to renegotiate such
provision in good faith. In the event that the parties cannot reach a mutually
agreeable and enforceable replacement for such provision, then (i) such
provision shall be excluded from this Agreement, (ii) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (iii)
the balance of the Agreement shall be enforceable in accordance with its terms.
(f) Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together will constitute one
and the same instrument.
(g) Arbitration. Any dispute or claim arising out of or in connection with
any provision of this Agreement, excluding Sections 9 and 11 hereof, will be
finally settled by binding arbitration Ada County, Idaho in accordance with the
rules of the American Arbitration Association by one arbitrator appointed in
accordance with said rules. The arbitrator shall apply Idaho law, without
reference to rules of conflicts of law or rules of statutory arbitration, to the
resolution of any dispute. Judgment on the award rendered by the arbitrator may
be entered in any court having jurisdiction thereof. Notwithstanding the
foregoing, the parties may apply to any court of competent jurisdiction for
preliminary or interim equitable relief, or to compel arbitration in accordance
with this paragraph, without breach of this arbitration provision. This Section
12(g) shall not apply to the Confidentiality Agreement.
(h) ADVICE OF COUNSEL. EACH PARTY ACKNOWLEDGES THAT, IN EXECUTING THIS
AGREEMENT, SUCH PARTY HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT
LEGAL COUNSEL, AND HAS READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF
THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY PARTY BY
REASON OF THE DRAFTING OR PREPARATION HEREOF.
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The parties have executed this Agreement as of the date first set forth above
COMPANY
xXxxxx.xxx, Inc.
000 XX. 00
Xxxxxxx, XX 00000
TEL: 000-000-0000,
By: ________________________
Xxxxx Xxxxxxx
Chief Executive Officer
CONSULTANT
XXXXXXXX USA
0000 X. Xxxxx Xxxxxx, Xxxxx X
Xxxxx, Xxxxx 00000
Tel: 0000 000 0000
By: ____________________________
Xxxx X. Xxxxxxxx
Principal Partner
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EXHIBIT A
DESCRIPTION OF CONSULTING SERVICES
Consultant's services relate to participation of the Company in the
iTeam and the Enhanced Communication Solution (see xxx.xxxxxxxxxxxxxx.xxx for
details). Consultant will provide advise and coordinate activities of the
Company as relates to the Microsoft's Web Telephony Engine and Microsoft Small
Business Server. Consultant will arrange for integration of other iTeam member
products as deemed appropriate by Consultant and the Company.
Consultant has completed the following services as of this date:
o Introduction of iVoice to the Microsoft Product Manager and approval
of support for the Speech Enabled Auto Attendant (SEAA) was given in
early March, 2001
o A meeting with the WTE Product Manager took place on March 21, 2001.
o The iTeam and the ECS are featured at www. Microsoft/xxxxxxxxx.xxx
under Third Party Products. IVoice is a featured vendor on the iTeam
website with links to the iVoice SEAA website.
o Assist in the preparation and approval of related press releases.
o Arranged for documentation regarding integration of the Special
Message On Hold Service to be sent to iVoice by API on March 10, 2001.
Consultant expects to complete the following during the term of the
Agreement subject to successful demonstration of SEAA and approval by WTE and
SBS2000 Product Managers.Once the barge-in is complete, iVoice can deliver a
product to the WTE group, at which point the marketing activities below would
begin.
o Coordinate the iVoice - WTE team activities with regard to conversion
to the SEAA and gain technical approval (subject to completion by
iVoice team)
o Coordinate the iVoice - API development activities with regard to
integration of the SMOH service with the SEAA.
o Coordinate the iVoice - SBS2000 team activities with regard to
approval of co-marketing of SEAA with SBS 2000.
o Arrange for integration of SEAA demo with the iTeam demonstration
platform featured on the iTeam website.
o Coordinate the iVoice - MS Marketing activities with regard to
arranging for participation as MS partner in the MS Pavilion and MS
Theatre at the CT Expo and/or ComSol Expo.
A-1
EXHIBIT B
CONSIDERATION
Within 10 (ten) days of the execution of this agreement, iVoice will immediately
issue to XXXXXXXX USA 200,000 shares of iVoice Class A common stock. The shares
will be registered in the upcoming registration statement under the Securities
Act of 1933
B-1
EXHIBIT C
DESCRIPTION OF AUTHORIZED EXPENSES
Charges relating to travel from Boise to Seattle for Xxxxxxx iVoice
meeting (50%).
Charges relating to conference calls between iVoice and WTE, SBS and
API.
Charges relating to integration of SEAA integration with iTeam demo
website.
Charges for other travel or communications requested by iVoice.
C-1
