EXHIBIT 10.18
CONSULTING AGREEMENT
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This Consulting Agreement ("Agreement") is made and entered into as of the
fifteenth day of May 1998 by and between XOOM, Inc ("Company"), a Delaware
corporation, and Xxxxx X. Xxxxxxxxx ("Consultant"). Company desires to engage
Consultant as an independent contractor to perform consulting services for
Company and Consultant is willing to perform such services, on the terms and
conditions set forth below. In consideration of the mutual promises contained
herein, the parties agree as follows:
1. SERVICES AND COMPENSATION
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(a) Company hereby engages Consultant, and Consultant accepts such
engagement, subject to the terms and conditions contained herein, to perform for
Company the services described in Attachment 1 (the "Services"). If Company
requests and Consultant agrees to provide additional Services, the parties will
sign a separate Attachment to this Agreement describing the additional Services
and compensation. Each Attachment for new services shall be successively
numbered (e.g., 1., 2, etc). Each Attachment for changes to existing Services
shall be successively numbered (e.g. 1.A, 1.B, etc.). All Attachment(s) must be
executed by the parties, and are subject to the terms and conditions of this
Agreement. Consultant agrees to use reasonable commercial efforts to meet any
delivery dates for work product set forth in the Attachment(s) and to deliver
work product to Company that conforms to the project specifications set forth in
such Attachment(s). Consultant warrants that the Services will be performed in
accordance with all reasonable professional standards for similar services.
(b) In consideration for the performance of the Services by
Consultant, Company agrees to pay Consultant the compensation set forth in the
applicable Attachment on a net 30 basis following receipt of Consultant's
invoice. Company shall not be responsible for any expenses or costs incurred by
Consultant that are not identified in any Attachment, unless authorized in
advance in writing by Company.
2. CONFIDENTIALITY
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(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 configuration information,
marketing, finances or other business information disclosed by Company either
directly or indirectly in writing, orally or by drawings or inspection of parts
or equipment.
(b) Consultant will not, during or subsequent to the term of this
Agreement, use Company's Confidential Information for any purpose whatsoever
other than the performance of the Services on behalf of Company or disclose
Company's Confidential Information to any third party, and it is understood that
said Confidential Information shall remain the sole property of 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 Consultant, if any, with access to any
Confidential Information, execute a nondisclosure agreement containing
provisions in Company's favor substantially similar to
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Sections 2, 3 and 5 of this Agreement. Confidential Information does not include
information which (i) is known to Consultant at the time of disclosure to
Consultant by 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. Without 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 arrangement
with Company.
(c) Consultant agrees that Consultant will not, during the term of
this Agreement, improperly use or disclose any proprietary information or trade
secrets of 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 Company any 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 Company and hold it
harmless from and against all claims, liabilities, damages and expenses,
including reasonable attorneys fees and costs of suit, arising out of or in
connection with any violation or claimed violation of a third party's rights
resulting in whole or in part from Company's use of the work product of
Consultant under this Agreement.
(d) Consultant recognizes that Company has received and in the
future will receive from third parties their confidential or proprietary
information subject to a duty on Company's part to maintain the confidentiality
of such information and to use it only for certain limited purposes. Consultant
agrees that Consultant owes 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 to use it except as necessary in carrying out
the Services for Company consistent with Company's agreement with such third
party.
(e) Upon the termination of this Agreement, or upon Company's
earlier request, Consultant will deliver to Company all of Company's property or
Confidential Information in tangible form that Consultant may have in
Consultant's possession or control.
3. OWNERSHIP
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(a) Consultant agrees that all results and proceeds of Consultant's
services, including without limitation all project deliverables, work-in-
progress, copyrightable material, notes, records, drawings, designs, inventions,
improvements, developments, discoveries and trade secrets (collectively, "Work
Product") conceived, made or discovered by Consultant, solely or in
collaboration with others, during the period of this Agreement which relate in
any manner to the business of Company that Consultant may be directed to
undertake, investigate or experiment with or which Consultant may become
associated with in work, investigation or experimentation in the line of
business of Company in performing the Services hereunder, are the sole property
of Company. In addition, any Work Product which constitute copyrightable subject
matter shall be considered "works made for hire" as that term is defined in the
United States Copyright Act with Company as the sole author and owner thereof.
Consultant further agrees to assign and does hereby irrevocably and fully assign
to Company without reservation all
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right, title and interest in and to the Work Product, including without
limitation all rights therein and thereto throughout the universe in perpetuity
in any and all media whether now known or hereafter devised, and any and all
copyrights, patents, mask work rights trade secrets, database rights or other
intellectual property rights relating thereto, however denominated. Consultant
hereby waives any so-called "moral rights" in and to the Work Products and
agrees to waive and not assert any so-called "moral rights" against Company or
its successors, assigns or licensees.
(b) Consultant agrees to assist Company, or its designee, at
Company's expense, in every proper way to secure Company's rights in the Work
Product, to confirm the assignment to and ownership of the Work Product by
Company, and to secure Company's rights to any copyrights, patents, mask work
rights or other intellectual property rights relating thereto in any and all
countries, including the disclosure to Company of all pertinent information and
data with respect thereto, the execution of all applications, specifications,
oaths, assignments and all other instruments which Company shall deem necessary
in order to apply for and obtain such rights and in order to assign and convey
to Company, its successors, assigns and nominees the sole and exclusive rights,
title and interest in and to such Work Product, 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 performing the
Services, Consultant incorporates into any Work Product developed hereunder any
invention, improvement, development, concept, discovery or other proprietary
information owned by Consultant or in which Consultant has an interest,
Consultant shall notify Company in advance and obtain Company's prior written
consent, and Company is hereby granted and shall have a nonexclusive, royalty-
free, perpetual, irrevocable, worldwide license to make, have made, modify, use
and sell such item as part of or in connection with such Work Product.
(d) Consultant agrees that if Company is unable for any reason to
promptly secure Consultant's signature for any document confirming Company's
ownership rights hereunder, or to apply for or to pursue any application for any
United States or foreign patents or mask work or copyright registrations or
recordations covering the Work Product assigned to Company above, then
Consultant hereby irrevocably designates and appoints Company and its duly
authorized officers and agents as Consultant's agent and attorney-in-fact, which
appointment shall be deemed a power coupled with an interest, to act for 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 confirmation of Company's
ownership rights hereunder and the prosecution and issuance of patents,
copyright and mask work registrations thereon with the same legal force and
effect as if executed by Consultant.
4. REPORTS
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Consultant agrees that it will from time to time during the term of
this Agreement or any extension thereof keep Company advised as to Consultant's
progress in performing the Services hereunder and that Consultant will, as
requested by Company, prepare written reports
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with respect thereto. It is understood that the time required in the preparation
of such written reports shall be considered time devoted to the performance of
Consultant's Services.
5. CONFLICTING OBLIGATIONS
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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 not enter into any such conflicting
Agreement during the term of this Agreement.
6. TERM AND TERMINATION
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(a) This Agreement will commence on the date first written above and
will continue until the earlier of (i) final completion of the Services or (ii)
earlier termination as provided below.
(b) Upon such termination all rights and duties of the parties
toward each other shall cease except:
(i) that 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; provided that this Agreement
was not terminated by Company due to the breach or default by Consultant; and
(ii) Sections 2 (Confidentiality), 3 (Ownership) and 8
(Independent Contractor) shall survive termination of this Agreement, and
(iii) Consultant shall return to Company any and all Work
Product, whether completed or in progress, and all materials supplied by Company
to Consultant, including without limitation, software, tapes, listings, document
or equipment.
7. ASSIGNMENT
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The Services to be performed by Consultant hereunder are personal in
nature, and Company has engaged Consultant as a result of Consultant's unique
expertise relating to such Services. Neither this Agreement nor any right,
interest, duty or obligation hereunder may be assigned, transferred or delegated
by either party without the express written consent of the other party.
8. INDEPENDENT CONTRACTOR
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Nothing in this Agreement shall in any way be construed to constitute
Consultant as an agent, employee or representative of Company, but Consultant
shall perform the Services hereunder as an independent contractor. Consultant
agrees to furnish (or reimburse Company for) all tools and materials necessary
to accomplish this contract, and shall incur all expenses associated with
performance, except as expressly provided in the Attachment(s) of this
Agreement. Consultant acknowledges and agrees that Consultant is obligated to
report as
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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 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. BENEFITS
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Consultant acknowledges and agrees, and it is the intent of the
parties hereto, that Consultant receive no benefits from Company, either as an
independent contractor or employee. If Consultant is reclassified by a state or
federal agency or court as an employee for tax or other purposes, Consultant
will become a non-benefit employee and will receive no benefits from Company,
except those mandated by state or federal law, even if by the terms of the
benefit plans or programs of Company in effect at the time of such
reclassification Consultant would otherwise be eligible for such benefits.
10. ARBITRATION AND EQUITABLE RELIEF
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(a) Except as provided in Section 10(d) below, Company and
Consultant agree that any dispute or controversy arising out of, relating to or
in connection with the interpretation, validity, construction, performance,
breach or termination of this Agreement shall be settled by binding arbitration
to be held in Santa Clara, California in accordance with the Commercial
Arbitration Rules of the American Arbitration Association as then in effect (the
"Rules"). The decision of the arbitrator shall be final, conclusive and binding
on the parties to the arbitration. Judgment may be entered on the arbitrator's
decision in any court of competent jurisdiction.
(b) The arbitrator(s) shall apply California law to the merits of
any dispute or claim, without reference to conflicts of law rules. Consultant
hereby consents to the personal jurisdiction of the state and federal courts
located in California for any action or proceeding arising from or relating to
this Agreement or relating to any arbitration in which the parties are
participants.
(c) Company and Consultant shall each pay one-half of the costs and
expenses of such arbitration, and each shall separately pay its counsel fees and
expenses.
(d) Consultant agrees that it would be impossible or inadequate to
measure and calculate 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, Company will have available, in addition to
any other right or remedy available, the right to obtain from any court of
competent jurisdiction 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 issuances of such injunction and to
the ordering of such specific performance.
(e) CONSULTANT HAS READ AND UNDERSTANDS SECTION 10, WHICH DISCUSSES
ARBITRATION. CONSULTANT UNDERSTANDS THAT BY SIGNING THIS AGREEMENT, CONSULTANT
AGREES TO SUBMIT ANY CLAIMS
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ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, OR THE
INTERPRETATION, VALIDITY, CONSTRUCTION, PERFORMANCE, BREACH OR TERMINATION
THEREOF, EXCEPT AS PROVIDED IN SECTION 10(D), TO BINDING ARBITRATION, AND THAT
THIS ARBITRATION CLAUSE CONSTITUTES A WAIVER OF CONSULTANT'S RIGHT TO A JURY
TRIAL AND RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS OF
THE RELATIONSHIP BETWEEN THE PARTIES.
11. INDEMNITY
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Consultant agrees to defend and indemnify Company from and against
any and all claims, demands or liability arising out of or relating to (i) any
injury to persons or damage to property caused by breach of contract, willful
misconduct or negligent acts by Consultant or by the acts of persons furnished
by Consultant in the performance of this Agreement, or (ii) any alleged
infringement by the Work Product of any copyright, trademark, trade secret,
patent or other intellectual property right of any third party.
12. GOVERNING LAW
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This Agreement, the rights and obligations of the parties hereto, and
any claims or disputes thereto, shall be governed by and construed in accordance
with the laws of the State of California without reference to conflict of law
principles.
13. ENTIRE AGREEMENT
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This Agreement is the entire agreement of the parties and supersedes
any prior or contemporaneous agreements between them, whether written or oral,
with respect to the subject matter hereof. This Agreement may not be modified,
replaced or rescinded except pursuant to a written instrument signed by a duly
authorized representative of each party. If any provision of this Agreement is
determined by a court of competent jurisdiction or other adjudicative body, such
determination shall not affect the validity or enforceability of any other part
or provision of this Agreement. Waiver of any breach, or failure to enforce any
term of this Agreement shall not be deemed a waiver of any breach or right to
enforce which may thereafter occur, and no waiver hereunder shall be effective
unless in writing and signed by a duly authorized representative of the party to
be charged with such waiver.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
COMPANY: Xxxxx X. Xxxxxxxxx
_________________________
/s/ Xxxxxxx Xxxxx /s/ Xxxxx X. Xxxxxxxxx
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Authorized Signature Authorized Signature
Xxxxxxx Xxxxx Xxxxx X. Xxxxxxxxx
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C.E.O Consultant
Address: 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000 Address: 00000 Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000 Xxx Xxxxx, XX 00000
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ATTACHMENT 1
SERVICES AND COMPENSATION
This Schedule describes Services to be provided by Consultant to Company under
this Consulting Agreement dated May 15, 1998.
1. Description of Services: Provide Financial and Investor Relations advise
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during the pre-IPO period and for a period of 18 months and to serve as a
member of the Board of Directors.
2. Services to be completed by (date): The initial term of the agreement is 18
months.
3. Fee for Services: Consultant will receive Options for 25,000 shares at the
current Fair Market Value and they will vest over a 24 month period; in
addition, Consultant will receive an additional 25,000 shares when the
Company has a successful IPO. Consultant will also be paid $10,000 per month
for 18 months--paid in the form of Common Stock.
4. Consultant will also receive a fee (payable in Common Stock of the Company)
equal to 5% of any investments, which are made by investors, which
Consultant introduces to the Company during the period of May 15, 1998
through June 30, 1998.
COMPANY: Xxxxx X. Xxxxxxxxx
_________________________
/s/ Xxxxxxx Xxxxx /s/ Xxxxx X. Xxxxxxxxx
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Authorized Signature Authorized Signature
Xxxxxxx Xxxxx Xxxxx X. Xxxxxxxxx
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C.E.O Consultant
May 15 1998 5/15/98
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Date Date
