Aptix Corporation
0000 Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xx. 00000
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is made and entered as of November 1,
2000 by and between Aptix Corporation, a California corporation, (the
"Company"), and Oryx Ventures, LLC, a California limited liability company
("Consultant"). The Company desires to retain Consultant as an independent
contractor to perform consulting services for the Company and Consultant is
willing to perform such services, on Terms set forth more fully below. In
consideration of the mutual promises contained herein, the parties agree as
follows:
1. SERVICES AND COMPENSATION
(a) Consultant agrees to consult with the Board of
Directors, the officers of the Corporation, and other
Corporation employees, at reasonable times,
concerning certain strategic business matters,
including, but not limited to: (i) executive
recruiting, (ii) business development and strategic
marketing, (iii) debt and/or equity financing
strategies.
(b) The company agrees to pay Consultant a management fee of $12,500 per
month for a period of up to six months.
2. CONFIDENTIALITY
(a) "Confidential Information" means any Company proprietary
information, technical data, trade secrets or know-how, including,
but not limited to, research, product plans, products, services,
customers, customer lists, markets, software, developments,
inventions, processes, formulas, technology, designs, drawings,
engineering, hardware configurations, information, marketing,
finances or other drawings or inspections of parts or equipment.
Confidential Information does not include information which (i) is
known to Consultant at the time of disclosure to Consultant by the
Company as evidenced by written records of Consultant (ii) has
become publicly known and made generally available through no
wrongful act of Consultant, or (iii) has been rightfully received by
Consultant from a third party who is authorized to make such
disclosure.
(b) Consultant will not, during or subsequent to the terms of this
Agreement for up to five years after date of this Agreement, use the
Company's Confidential Information for any purpose whatsoever other
than the performance of the Services on behalf of the Company or
disclose the Company's Confidential Information to any third party,
and it is understood that said Confidential
Information shall remain the sole property of the Company.
Consultant further agrees to take all reasonable precautions to
prevent any unauthorized disclosure of such Confidential Information
including, but not limited to, having each employee of containing
provisions in the Company's favor substantially similar to sections,
2, 3, and 5 to this Agreement. Without the Company's prior written
approval, Consultant will not directly or indirectly disclose to
anyone the existence of this Agreement or the fact that Consultant
has this agreement with the Company.
(c) Consultant agrees that Consultant will not, during the term of this
Agreement improperly use or disclose any proprietary information or
trade secrets to any former or current employer or other person or
entity with which Consultant has an agreement or duty to keep in
confidence information acquired by Consultant in confidence, if any
and that Consultant will not bring onto the premises of the Company
an unpublished document or proprietary information belonging to such
employer, person or entity unless consented to in writing by such
employer, person or entity. Consultant will indemnify the Company
and hold it harmless from and against all claims, liabilities,
damages, and expenses, including reasonable attorneys fees and cost
of suite, arising out of or in connection with any violation or
claimed violation to a third party's rights resulting in whole or in
part from the Company's use of the work product of Consultant under
this Agreement.
(d) Consultant recognizes that the Company has received 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 purpose. Consultant agrees that Consultant owes
the Company and such third parties, during the term of this
Agreement and thereafter, a duty to hold all such confidential or
proprietary information in the strictest confidence and not to
disclose it to any person, firm or corporation or the use of it
except as necessary in carrying out the Services for the Company
consistent with the Company's agreement with such third party.
(e) Upon termination of this Agreement or upon Company's earlier
request, Consultant will deliver to the Company all of the Company's
property or Confidential Information in tangible form that
Consultant may have in Consultant's possession or control.
3. OWNERSHIP
(a) Consultant agrees that all copyrightable material, notes, records,
drawings, designs, inventions, improvements, developments,
discoveries and trade secrets (collectively, "Inventions")
conceived, made or discovered by Consultant, solely or in
collaboration with others, working for or employed by Company during
the period of this Agreement which relate in any matter to the
business of the Company that Consultant may be directed to
undertake, investigate or experiment with, or which Consultant may
become associated with in work, investigations or experimentations
in the line of business of and for the Company, "except those
matters which are governed in its entirety by California Labor Code,
section 2870 (hereafter section 2870) or as otherwise expressly
excepted in this Agreement. In performing the Services thereunder,
are the sole property of the Company in addition, any Inventions
which constitute copyrightable subject matter within the course and
scope of the work performed for the Company, other than section 2870
work shall be considered "works made for hire" as the term is
defined in the United States Copyright Act. Consultant further
agrees to assigning (or cause to be assigned) and does hereby assign
fully to the Company all such inventions and any copyrights, patent,
mask work rights or other intellectual property rights relating to
such work provided for by the Company.
(b) Consultant agrees to assist 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, mask work
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 and obtain 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. Consultant further agrees that
Consultant's obligation to execute or cause to be executed, when it
is in Consultant's power to do so, any such instrument or papers
shall continue after the termination of this Agreement.
(c) Consultant agrees that if in the course of the Services, Consultant
incorporates into any Invention developed hereunder any invention,
improvement, development concept, discovery or other proprietary
information owned by Consultant or in which Consultant has an
interest, discovery or other proprietary information owned by
Consultant or in which Consultant has and interest, the Company is
hereby granted and shall have non-exclusive, royalty-free,
perpetual, irrevocable, worldwide license to make, have made,
modify, use and sell such item as part of or in connection with such
Inventions.
(d) Consultant agrees that if the Company is unable because of
Consultant's unavailability, dissolution, mental or physical
incapacity, or for any other reason, to secure Consultant's
signature to apply for or to pursue any application for any United
States or foreign patents or mask work or copyrights registrations
covering the Inventions assigned to the Company above, then
Consultant hereby irrevocably designates and appoints the Company
and its duly authorized officers and agents as Consultant's agent
and attorney in fact, to act and in Consultant's behalf and stead to
execute and file any such applications and to do all other lawfully
permitted acts to further the prosecution and issuance of patents,
copyright and mask work registrations thereon with the same legal
force and effect as if executed by Consultant's.
4. REPORTS
Consultant agrees that it will from time to time during the term of
this Agreement or any extension thereof keep the Company advised as
to Consultant's progress in performing the Services hereunder and
that Consultant will, as requested by the Company, prepare written
reports with respect thereto. It is understood that the time
required in preparation of such written reports shall be considered
time devoted to the performance of Consultant's Services.
5. CONFLICTING OBLIGATIONS
(a) Consultant certifies that Consultant has no outstanding agreement or
obligation that is in conflict with any of the provisions of this
Agreement or that would preclude Consultant from complying with the
provisions hereof, and further certifies that Consultant will
disclose to Company any future agreement to mutually determine that
there will be no such conflict during the term of this Agreement.
(b) In view of Consultants access to the Company's trade secrets and
proprietary know-how, Consultant further agrees that Consultant will
not, without Company's prior written consent, design identical or
substantially similar designs as those developed under this
Agreement for any third party during the term of this Agreement and
for a period of twelve (12) months after the termination of this
Agreement.
6. TERM AND TERMINATION
(a) Consultant shall devote up to 10 man-days of work, per month over a
six month term, principally through the services of Xxxxxx Xxxxxxxx.
(b) The Company or Consultant may terminate this Agreement upon giving
two weeks prior notice thereof to the other party. Any such notice
shall be addressed to Consultant at the address shown below or such
other address as either party may notify the other of and shall be
deemed given upon delivery if personally delivered, or forty-eight
(48) hours after deposited in the Unites States mail, postage
prepaid, registered or certified mail, return receipt requested. The
Company may terminate this Agreement immediately and without prior
notice if Consultant refuses to or is unable to perform the Services
or is in breach of any material provision of this Agreement.
(c) Upon such termination all rights and duties of the parties toward
each other shall cease except: (i) That the Company shall be obliged
to pay, within thirty (30) days of the effective date of
termination, all amounts owing to Consultant for unpaid Services and
related expenses, if any, in accordance with the provisions of
Section 1 (Services and Compensation) hereof; and (ii) Section 2
(Confidentiality), 3 (Ownership) and 8 (Independent Contractors)
shall survive termination of this Agreement.
7. ASSIGNMENT
Neither this Agreement nor any right hereunder or interest herein may be
assigned or transferred by Consultant without the written consent of the
Company.
8. INDEPENDENT CONTRACTOR
Nothing in this Agreement shall in any way be construed to constitute
Consultant as an agent, employee or representative of the Company, but
Consultant shall perform the services hereunder as an independent
contractor. Consultant agrees to furnish (or reimburse the Company for)
all tools and materials necessary to accomplish this contract, and shall
incur all expenses associated with performance, except as expressly
provided on Exhibit A of this Agreement. Consultant acknowledges and
agrees that Consultant is obligated to report as income all compensation
received by Consultant pursuant to this Agreement, and Consultant agrees
to and acknowledges the obligation to pay all self-employment and other
taxes thereon. Consultant further agrees to indemnify the Company and
hold it harmless to the extent of any obligation imposed on Company (i)
to pay in withholding taxes or similar items or (ii) resulting from
Consultant's being determined not to be an independent contractor.
9. EQUITABLE RELIEF
Consultant agrees that it would be impossible or inadequate to measure
and calculate the Company's damages from any breach of the covenants set
forth in Sections 2 or 3 herein. Accordingly, Consultant agrees that if
Consultant breaches Sections 2 or 3, the Company will have available, in
addition to any other right or remedy available, the right to obtain
from any court of competent jurisdiction in an injunction restraining
such breach or threatened breach and specific performance of any such
provision. Consultant further agrees that no bond or other security
shall be required in obtaining such equitable relief and Consultant
hereby consents to the issuance of such injunction and to the ordering
of such specific performance.
10. GOVERNING LAW
This Agreement shall be governed by the laws of the State of California
11. ENTIRE AGREEMENT
This Agreement is the entire agreement of the parties and supersedes any
prior agreements between them with respect to the subject matter hereof.
No amendment or modification of this Agreement shall be effective unless
it is in writing and signed by the parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the day and year first above written.
CONSULTANT APTIX CORPORATION
By: /s/ Xxxx Xxxxxxxx By: /s/ Xxx Xxxxxx
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Title: CEO Title: CEO
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Address:__________________
