EXHIBIT 10.36
AVANTGO, INC.
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CONSULTING AGREEMENT
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This Consulting Agreement (the "Agreement") is entered into by and
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between AvantGo, Inc. (the "Company") and XX Xxxxxx ("Consultant").
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1. Consulting Relationship. During the term of this agreement,
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Consultant will provide consulting services (the "Services") to the Company as
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described on Exhibit A attached to this Agreement. Consultant shall use
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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
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Consultant and other obligations, the Company will compensate Consultant as
described in Exhibit B to this Agreement.
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3. Expenses. Consultant shall not be authorized to incur on behalf of
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the Company any expenses, except as expressly specified in Exhibit B, without
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the prior written consent of the Company's Chief Executive Officer. As a
condition to receipt of reimbursement, 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.
4. Term and Termination. Consultant shall serve as a consultant to
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the Company for a period commencing on December 1, 1998, and terminating on the
earlier of the date on which (a) Consultant ceases to provide services to the
Company under this Agreement, (b) Consultant shall have been paid the maximum
amount of consulting fees as provided in Exhibit B, or (c) within 30 days of a
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notice of cancellation by either the Company or the Consultant.
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Either party may terminate this Agreement at any time upon ten (10)
days' written notice.
5. Independent Contractor. Consultant's relationship with the Company
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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.
6. Supervision of Consultant's Services. All services to be performed
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by Consultant, including but not limited to the Services, will be as agreed
between Consultant and the Company's Director of Marketing. Consultant will be
required to report to the Director of Marketing concerning the Services
performed under this Agreement. The nature and frequency of these reports will
be left to the discretion of the Director of Marketing.
7. Consulting or Other Services for Competitors. Consultant
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represents and warrants that Consultant will not, during the term of this
Agreement, perform any 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.
8. Confidentiality Agreement. Consultant shall sign, or has signed, a
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Proprietary Information and Invention Assignment Agreement substantially in the
form attached to this Agreement as Exhibit C (the "Confidentiality Agreement"),
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prior to or on the date on which Consultant's consulting relationship with the
Company commences. In the event that Consultant is an entity or otherwise will
be causing individuals in its employ or under its supervision to participate in
the rendering of the Services, Consultant warrants that it shall cause each of
such individuals to execute a Confidentiality Agreement in the form attached as
Exhibit C.
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9. Conflicts with this Agreement. Consultant represents and warrants
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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.
10. Miscellaneous.
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(a) Amendments and Waivers. Any term of this Agreement may be amended
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or waived only with the written consent of the parties.
(b) Sole Agreement. This Agreement, including the Exhibits hereto,
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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
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be in writing and shall be deemed sufficient upon receipt, when delivered
personally or by courier, overnight delivery service or confirmed facsimile, or
forty-eight (48) hours after being deposited in the regular mail as certified or
registered mail (airmail if sent internationally) with postage prepaid, if such
notice is addressed to the party to be notified at such party's address or
facsimile number as set forth below, or as subsequently modified by written
notice.
(d) Choice of Law. The validity, interpretation, construction and
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performance of this Agreement shall be governed by the laws of the State of
California, without giving effect to the principles of conflict of laws.
(e) Severability. If one or more provisions of this Agreement are held
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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
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of which shall be deemed an original, but all of which together will constitute
one and the same instrument.
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(g) Arbitration. Any dispute or claim arising out of or in connection
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with any provision of this Agreement, excluding Section 7 hereof, will be
finally settled by binding arbitration [in San Jose, California] in accordance
with the rules of the American Arbitration Association by one arbitrator
appointed in accordance with said rules. The arbitrator shall apply California
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 10(g) shall not apply to the Confidentiality
Agreement.
(h) Advice of Counsel. EACH PARTY ACKNOWLEDGES THAT, IN EXECUTING THIS
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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.
[Signature Page Follows]
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The parties have executed this Agreement on the respective dates set forth
below.
AVANTGO, INC.
By: /s/ [ILLEGIBLE]
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Title: Director of Mktg
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Address: 0000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Date: 12-11-98
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/s/ [ILLEGIBLE]
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Signature
Name:
Title: Principal
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Address:
Date: 12-11-98
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SIGNATURE PAGE TO BOMBARDIER SOFTWARE, INC. CONSULTING AGREEMENT
EXHIBIT A
DESCRIPTION OF CONSULTING SERVICE
Description of Services Schedule/Deadline
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1. Conduct initial fact finding and prepare a December 15
workplan for completing revisions to the
AvantGo Business Plan
2. Complete revisions to the AvantGo Business January 29
Plan
EXHIBIT B
COMPENSATION
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Check applicable payment terms:
[_] For Services rendered by Consultant under this Agreement, the Company shall
pay Consultant monthly under net 30 day terms. Unless otherwise agreed upon
in writing by Company, Company's maximum liability for all Services
performed during the term of this Agreement shall not exceed $]. An
additional $ will be allocated for any additional work authorized in
writing by AvantGo.
[_] Consultant shall be paid $________ per month, payable in arrears on the
_______ day of each month following the end of the month in which the
Services are rendered. Consultant shall provide Services of at least
________ hours per week. Unless otherwise agreed upon in writing by
Company, Company's maximum liability for all Services performed during the
term of this Agreement shall not exceed $__________.
[_] Consultant shall be paid $________ upon the execution of this Agreement and
$_____ upon completion of the Services specified on Exhibit A to this
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Agreement.
[x] Consultant is authorized to incur the following expenses:
Out of pocket expenses, billed at cost with receipts and documentation --
maximum of 15% of fees
[x] Other:
Consultant shall be payed time and materials up to but not exceeding
$15,000 for the month of December. Additional fees to be agreed upon in writing
based on initial review of requirements._______________________________________
_______________________________________________________________________________
_______________________________________________________________________________
EXHIBIT C
AVANTGO, INC.
PROPRIETARY INFORMATION AND
INVENTION ASSIGNMENT AGREEMENT
As a condition of my becoming employed (or my employment being continued)
or my being retained as a consultant (or my consulting relationship being
continued) by AvantGo, Inc., a Delaware corporation, or any of its current or
future subsidiaries, affiliates, successors or assigns (collectively, the
"Company"), and in consideration of my employment or consulting relationship
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with the Company and my receipt of the compensation now and hereafter paid to me
by the Company, I agree to the following:
1. Employment or Consulting Relationship. I understand and acknowledge
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that this Agreement does not alter, amend or expand upon any rights I may have
to continue in the employ of or in a consulting relationship with, or the
duration of my employment or consulting relationship with, the Company under any
existing agreements between the Company and me or under applicable law. Any
employment or consulting relationship between the Company and me, whether
commenced prior to or upon the date of this Agreement, shall be referred to
herein as the "Relationship."
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2. At Will Employment. I understand and acknowledge that my Relationship
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with the Company is and shall continue to be at will, as defined under
applicable law, meaning that either I or the Company may terminate the
Relationship at any time for any reason or no reason, without further obligation
or liability.
3. Proprietary Information.
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(a) Company Information. I agree at all times during the term of the
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Relationship and thereafter, to hold in strictest confidence, and not to use,
except for the benefit of the Company, or to disclose to any person, firm or
corporation without written authorization of the REPORTING_TO of the Company,
any Proprietary Information of the Company that I obtain or create. I further
agree not to make copies of such Proprietary Information except as authorized by
the Company. I understand that "Proprietary Information" means any Company
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proprietary information, technical data, trade secrets or know-how, including,
but not limited to, research, product plans, products, services, suppliers,
customer lists and customers (including, but not limited to, customers of the
Company on whom I called or with whom I became acquainted during the
Relationship), prices and costs, markets, software, developments, inventions,
processes, formulas, technology, designs, drawings, engineering, hardware
configuration information, marketing, licenses, finances, budgets or other
business information disclosed to me by the Company either directly or
indirectly in writing, orally or by drawings or observation of parts or
equipment or created by me during the period of the Relationship, whether or not
during working hours. I understand that "Proprietary Information" includes, but
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is not limited to, information pertaining to any aspects of the Company's
business which is either information not known by actual or potential
competitors of the Company or is proprietary information of the Company or its
customers or suppliers, whether of a technical nature or otherwise. I further
understand that Proprietary Information does not include any of the foregoing
items which has become publicly known and made generally available through no
wrongful act of mine or of others who were under confidentiality obligations as
to the item or items involved.
(b) Former Employer Information. I represent that my performance of
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all terms of this Agreement as an employee or consultant of the Company have not
breached and will not breach
any agreement to keep in confidence proprietary information, knowledge or data
acquired by me in confidence or trust prior or subsequent to the commencement of
the Relationship, and I will not use in the course of the Relationship, disclose
to the Company, or induce the Company to use, any inventions, confidential or
proprietary information or material belonging to any previous employer or any
other party.
(c) Third Party Information. I recognize that the Company has received
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and in the future will receive from third parties their confidential or
proprietary information subject to a duty on the Company's part to maintain the
confidentiality of such information and to use it only for certain limited
purposes. I agree to hold all such confidential or proprietary information in
the strictest confidence and not to disclose it to any person, firm or
corporation or to use it except as necessary in carrying out my work for the
Company in a manner consistent with the Company's agreement with such third
party.
4. Inventions.
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(a) Inventions Retained and Licensed. I have attached hereto, as
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Exhibit A, a list describing all inventions, original works of authorship,
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developments, improvements, and trade secrets that were made by me prior to the
Relationship (collectively referred to as "Prior Inventions"), which belong to
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me, which relate to the Company's proposed or current business, products or
research and development, and which are not assigned to the Company hereunder;
or, if no such list is attached, I represent that there are no such Prior
Inventions. If in the course of the Relationship, I incorporate into a Company
product, process or machine a Prior Invention owned by me or in which I have an
interest, the Company is hereby granted and shall have a non-exclusive, royalty-
free, irrevocable, perpetual, worldwide license (with the right to sublicense)
to make, have made, copy, modify, make derivative works of, use, sell and
otherwise distribute such Prior Invention as part of or in connection with such
product, process or machine.
(b) Assignment of Inventions. I agree that I will promptly make full
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written disclosure to the Company, will hold in trust for the sole right and
benefit of the Company, and hereby assign, and agree to assign, to the Company,
or its designee, all my right, title and interest throughout the world in and to
any and all inventions, original works of authorship, developments, concepts,
know-how, improvements or trade secrets, whether or not patentable or
registrable under copyright or similar laws, that I may solely or jointly
conceive or develop or reduce to practice, or cause to be conceived or developed
or reduced to practice, during the period of time of the Relationship
(collectively referred to as "Inventions"), except as provided in Section 4(e)
below. I further acknowledge that all inventions, original works of authorship,
developments, concepts, know-how, improvements or trade secrets which are made
by me (solely or jointly with others) within the scope of and during the period
of the Relationship are "works made for hire" (to the greatest extent permitted
by applicable law) and are compensated by my salary (if I am an employee) or by
such amounts paid to me under any applicable consulting agreement or consulting
arrangements (if I am a consultant), unless regulated otherwise by mandatory
law.
(c) Maintenance of Records. I agree to keep and maintain adequate and
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current written records of all Inventions made by me (solely or jointly with
others) during the term of the Relationship. The records may be in the form of
notes, sketches, drawings, flow charts, electronic data or recordings,
laboratory notebooks, and any other format. The records will be available to and
remain the sole property of the Company at all times. I agree not to remove such
records from the Company's place of business except as expressly permitted by
Company policy which may, from time to time, be revised at the sole election of
the Company.
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(d) Patent and Copyright Registrations. I agree to assist the
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Company, or its designee, at the Company's expense, in every proper way to
secure the Company's rights in the Inventions and any copyrights, patents,
trademarks, mask work rights, moral rights, or other intellectual property
rights relating thereto in any and all countries, including the disclosure to
the Company of all pertinent information and data with respect thereto, the
execution of all applications, specifications, oaths, assignments and all other
instruments which the Company shall deem necessary in order to apply for, obtain
maintain and transfer such rights and in order to assign and convey to the
Company, its successors, assigns and nominees the sole and exclusive rights,
title and interest in and to such Inventions, and any copyrights, patents, mask
work rights or other intellectual property rights relating thereto. I further
agree that my obligation to execute or cause to be executed, when it is in my
power to do so, any such instrument or papers shall continue after the
termination of this Agreement. If the Company is unable because of my mental or
physical incapacity or unavailability or for any other reason to secure my
signature to apply for or to pursue any application for any United States or
foreign patents or copyright registrations covering Inventions or original works
of authorship assigned to the Company as above, then I hereby irrevocably
designate and appoint the Company and its duly authorized officers and agents as
my agent and attorney in fact, to act for and in my behalf and stead to execute
and file any such applications and to do all other lawfully permitted acts to
further the application for, prosecution, issuance, maintenance or transfer of
letters patent or copyright registrations thereon with the same legal force and
effect as if executed by me. I hereby waive and irrevocably quitclaim to the
Company any and all claims, of any nature whatsoever, which I now or hereafter
have for infringement of any and all proprietary rights assigned to the Company.
(e) Exception to Assignments. I understand that the provisions of
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this Agreement requiring assignment of Inventions to the Company do not apply to
any invention which qualifies fully under the provisions of California Labor
Code Section 2870 (attached hereto as Exhibit B). I will advise the Company
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promptly in writing of any inventions that I believe meet such provisions and
that are not disclosed on Exhibit A.
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5. Returning Company Documents. I agree that, at the time of termination
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of the Relationship, I will deliver to the Company (and will not keep in my
possession, recreate or deliver to anyone else) any and all devices, records,
data, notes, reports, proposals, lists, correspondence, specifications,
drawings, blueprints, sketches, laboratory notebooks, materials, flow charts,
equipment, other documents or property, or reproductions of any aforementioned
items developed by me pursuant to the Relationship or otherwise belonging to the
Company, its successors or assigns. I further agree that to any property
situated on the Company's premises and owned by the Company, including disks and
other storage media, filing cabinets or other work areas, is subject to
inspection by Company personnel at any time with or without notice. In the event
of the termination of the Relationship, I agree to sign and deliver the
"Termination Certificate" attached hereto as Exhibit C.
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6. Notification to Other Parties.
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(a) Employees. In the event that I leave the employ of the Company, I
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hereby consent to notification by the Company to my new employer about my rights
and obligations under this Agreement.
(b) Consultants. I hereby grant consent to notification by the
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Company to any other parties besides the Company with whom I maintain a
consulting relationship, including parties with whom such relationship commences
after the effective date of this Agreement, about my rights and obligations
under this Agreement.
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7. Solicitation of Employees, Consultants and Other Parties. I agree that
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during the term of the Relationship, and for a period of twenty-four (24) months
immediately following the termination of the Relationship for any reason,
whether with or without cause, I shall not either directly or indirectly
solicit, induce, recruit or encourage any of the Company's employees or
consultants to terminate their relationship with the Company, or take away such
employees or consultants, or attempt to solicit, induce, recruit, encourage or
take away employees or consultants of the Company, either for myself or for any
other person or entity. Further, for a period of twenty-four (24) months
following termination of the Relationship for any reason, with or without cause,
I shall not solicit any licensor to or customer of the Company or licensee of
the Company's products, in each case, that are known to me, with respect to any
business, products or services that are competitive to the products or services
offered by the Company or under development as of the date of termination of the
Relationship.
7. Representations and Covenants.
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(a) Facilitation of Agreement. I agree to execute promptly any proper
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oath or verify any proper document required to carry out the terms of this
Agreement upon the Company's written request to do so.
(b) Conflicts. I represent that my performance of all the terms of
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this Agreement will not breach any agreement to keep in confidence proprietary
information acquired by me in confidence or in trust prior to commencement of
the Relationship. I have not entered into, and I agree I will not enter into,
any oral or written agreement in conflict with any of the provisions of this
Agreement.
(c) Voluntary Execution. I certify and acknowledge that I have
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carefully read all of the provisions of this Agreement and that I understand and
will fully and faithfully comply with such provisions.
8. General Provisions.
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(a) Governing Law. The validity, interpretation, construction and
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performance of this Agreement shall be governed by the laws of the State of
California, without giving effect to the principles of conflict of laws.
(b) Entire Agreement. This Agreement sets forth the entire agreement
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and understanding between the Company and me relating to the subject matter
herein and merges all prior discussions between us. No modification or amendment
to this Agreement, nor any waiver of any rights under this Agreement, will be
effective unless in writing signed by the party to be charged. Any subsequent
change or changes in my duties, obligations, rights or compensation will not
affect the validity or scope of this Agreement.
(c) Severability. If one or more of the provisions in this Agreement
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are deemed void by law, then the remaining provisions will continue in full
force and effect.
(d) Successors and Assigns. This Agreement will be binding upon my
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heirs, executors, administrators and other legal representatives and will be for
the benefit of the Company, its successors, and its assigns.
(e) Survival. The provisions of this Agreement shall survive the
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termination of the Relationship and the assignment of this Agreement by the
Company to any successor in interest or other assignee.
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(f) ADVICE OF COUNSEL. I ACKNOWLEDGE THAT, IN EXECUTING THIS
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AGREEMENT, I HAVE HAD THE OPPORTUNITY TO SEEK THE ADVICE OF LEGAL COUNSEL, AND I
HAVE 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.
[Signature Page Follows]
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The parties have executed this Agreement on the respective dates set forth
below:
COMPANY: EMPLOYEE OR CONSULTANT:
AVANTGO, INC. ________, an Individual:
By:______________________ ________________________________
Signature
Title:___________________
Date:____________________ Date:___________________________
Address: Address:
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
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EXHIBIT A
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LIST OF PRIOR INVENTIONS
AND ORIGINAL WORKS OF AUTHORSHIP
EXCLUDED FROM SECTION 4
Identifying Number
Title Date or Brief Description
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___ No inventions or improvements
___ Additional Sheets Attached
Signature of Employee/Consultant:_____________________________
Print Name of Employee/Consultant:____________________________
Date:_________________________________________________________
EXHIBIT B
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Section 2870 of the California Labor Code is as follows:
(a) Any provision in an employment agreement which provides that an
employee shall assign, or offer to assign, any of his or her rights in an
invention to his or her employer shall not apply to an invention that the
employee developed entirely on his or her own time without using the employer's
equipment, supplies, facilities, or trade secret information except for those
inventions that either:
(1) Relate at the time of conception or reduction to practice of the
invention to the employer's business, or actual or demonstrably anticipated
research or development of the employer; or
(2) Result from any work performed by the employee for the employer.
(b) To the extent a provision in an employment agreement purports to
require an employee to assign an invention otherwise excluded from being
required to be assigned under subdivision (a), the provision is against the
public policy of this state and is unenforceable.
EXHIBIT C
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TERMINATION CERTIFICATE
This is to certify that I do not have in my possession, nor have I failed
to return, any devices, records, data, notes, reports, proposals, lists,
correspondence, specifications, drawings, blueprints, sketches, materials,
equipment, other documents or property, or reproductions of any aforementioned
items belonging to AvantGo, Inc., its subsidiaries, affiliates, successors or
assigns (together the "Company").
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I further certify that I have complied with all the terms of the Company's
Proprietary Information and Invention Assignment Agreement signed by me,
including the reporting of any inventions and original works of authorship (as
defined therein), conceived or made by me (solely or jointly with others)
covered by that agreement.
I further agree that, in compliance with the Proprietary Information and
Invention Assignment Agreement, I will preserve as confidential all trade
secrets, confidential knowledge, data or other proprietary information relating
to products, processes, know-how, designs, formulas, developmental or
experimental work, computer programs, data bases, other original works of
authorship, customer lists, business plans, financial information or other
subject matter pertaining to any business of the Company or any of its
employees, clients, consultants or licensees.
I further agree that for twenty-four (24) months from this date, I will not
hire any employees or consultants of the Company and I will not solicit, induce,
recruit or encourage any of the Company's employees or consultants to leave
their employment, nor will I solicit any of the Company's licensors, customers
or licensees to terminate any relationship with the Company.
Date:_______________________________
____________________________________
(Signature)
_____________________________________
(Type/Print Name)
EXHIBIT B
COMPENSATION
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Check applicable payment terms:
[x] For Services rendered by Consultant under this Agreement, the Company shall
pay Consultant monthly under net 30 day terms. Unless otherwise agreed upon
in writing by Company, Company's maximum liability for all Services
performed during the term of this Agreement shall not exceed $]. An
additional $ will be allocated for any additional work authorized in
writing by AvantGo.
[_] Consultant shall be paid $_______ per month, payable in arrears on the
________ day of each month following the end of the month in which the
Services are rendered. Consultant shall provide Services of at least
_______ hours per week. Unless otherwise agreed upon in writing by Company,
Company's maximum liability for all Services performed during the term of
this Agreement shall not exceed $_________.
[_] Consultant shall be paid $________ upon the execution of this Agreement and
$________ upon completion of the Services specified on Exhibit A to this
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Agreement.
[x] Consultant is authorized to incur the following expenses:
Out of pocket expenses, billed at cost with receipts and documentation --
maximum of 15%
[x] Other:
Consultant shall be payed time and materials up to but not exceeding
$15,000 for the month of December. Additional fees to be agreed upon in writing
based on initial review of requirements
Addendum: A maximum of $35,000 additional fees authorized for completion of
the Plan.
________________________________________________________________________________
________________________________________________________________________________
