INDEPENDENT CONSULTING AGREEMENT
This Agreement is made as of March 17, 2000 between Concierge, Inc. ("Client")
and Xxxx Xxxx Consulting ("Consultant").
1. Definitions: The following definitions shall apply for purposes of this
Agreement:
a) "Work Product" means all programs, systems, data and materials,
in whatever form, first produced or created by or for Consultant
as a result of, or related to, performance of work or services
under this Agreement.
b) "Background Technology" means all programs, systems, data and
materials, in whatever form, that do not constitute Work Product
and are: (1) included in, or necessary to, the Work Product; and
(2) owned either solely by Consultant or licensed to Consultant
with a right to sublicense.
2. Services Performed by Consultant: Consultant agrees to perform the following
services for Client:
a) Provide consulting services to Client and Client's sub-contractors.
b) Provide product development services to Client.
3. Consultant's Payment: [Omitted Language]
4. Expenses:
Client shall reimburse Consultant for all reasonable travel and living expenses
necessarily incurred by Consultant while away from Consultant's regular place of
business and engaged in the performance of services under this Agreement.
Consultant agrees to maintain appropriate records and to submit copies of all
receipts necessary to verify such expenses at the time and in the manner
prescribed by Client.
5. Invoices: Consultant shall submit invoices for all services rendered.
Client shall pay the amounts agreed to herein upon receipt of such invoices.
6. Consultant an Independent Contractor: Consultant is an independent
contractor, and neither Consultant nor Consultant's staff is, or shall be
deemed, Client's employees. In its capacity as an independent contractor,
Consultant agrees and represents, and Client agrees, as follows:
a) Consultant has the right to perform services for others during the
term of this Agreement subject to
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noncompetition provisions set out in this Agreement, if any.
b) Consultant has the sole right to control and direct the means,
manner and method by which the services required by this
Agreement will be performed.
c) Consultant has the right to perform the services required by this
Agreement at any place or location and such times as Consultant
may determine.
d) Consultant will furnish all equipment and materials used to
provide the services required by this Agreement, except to the
extent that Consultant's work must be performed on or with
Client's computer or existing software.
e) The services required by this Agreement shall be performed by
Consultant, or Consultant's staff, and Client shall not be
required to hire, supervise, or pay any assistants to help
Consultant.
f) Consultant is responsible for paying all ordinary and necessary
expenses of its staff.
g) Neither Consultant nor Consultant's staff shall receive any
training from Client in the professional skills necessary to
perform the services required by this Agreement.
h) Neither Consultant nor Consultant's staff shall be required to
devote full-time to the performance of the services required by
this Agreement.
i) Client shall not provide any insurance coverage of any kind for
Consultant or Consultant's staff.
j) Client shall not withhold from Consultant's compensation any
amount that would normally be withheld from an employee's pay.
7. Ownership of Consultant's Work Product:
Subject to full payment of the consulting fees due hereunder, Consultant hereby
assigns to Client its entire right, title and interest in the Work Product
including all patents, copyrights, trade secrets and other proprietary rights in
or based on the Work Product.
Consultant shall execute and aid in the preparation of any papers that Client
may consider necessary or helpful to obtain or maintain any patents, copyrights,
trademarks or other proprietary rights at
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no charge to Client, but at Client's expense. Client shall reimburse Consultant
for reasonable out-of-pocket expenses incurred.
8. Ownership of Background Technology:
Client agrees that Consultant shall retain any and all rights Consultant may
have in the Background Technology. Subject to full payment of the consulting
fees due hereunder, Consultant hereby grants Client an unrestricted,
nonexclusive, perpetual, fully paid-up worldwide license to use and sublicense
the use of the Background Technology for the purpose of developing and marketing
its products, but not for the purpose of marketing Background Technology
separate from its products.
9. Confidential Information:
a) Consultant agrees that the Work Product is Client's sole and
exclusive property. Consultant shall treat the Work Product on a
confidential basis and not disclose it to any third party without
Client's written consent, except when reasonably necessary to
perform the services under this Agreement. Consultant shall be
relieved of this confidentiality obligation if and when Client
discloses the Work Product without any restriction upon further
disclosure.
b) During the term of this Agreement and for 1 year afterwards,
Consultant will not use or disclose to others without Client's
written consent Client's confidential information, except when
reasonably necessary to perform the services under this
Agreement. "Confidential information" is limited to:
i. any written or tangible information stamped "confidential,"
"proprietary" or with a similar legend, and
ii. any written or tangible information not marked with a
confidentiality legend, or information disclosed orally to
Consultant, that is treated as confidential when disclosed and
later summarized sufficiently for identification purposes in a
written memorandum marked "confidential" and delivered to
Consultant within 30 days after the disclosure.
c) Consultant shall have no obligation not to disclose or use any
information that:
i. was in Consultant's possession or known to Consultant, without
an obligation to keep it
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confidential, before such information was disclosed to
Consultant by Client,
ii. is or becomes public knowledge through a source other than
Consultant and through no fault of Consultant,
iii. is independently developed by or for Consultant,
iv. is disclosed by Client to others without any restriction on
use and disclosure, or
v. is or becomes lawfully available to Consultant from a
source other than Client.
d) Client acknowledges and agrees that the confidentiality
restrictions contained in this Agreement shall not apply to the
general knowledge, skills and experience gained by Consultant or
Consultant's employees while engaged by Client.
e) Consultant will not disclose to Client information or material
that is a trade secret of any third party.
f) The provisions of this clause shall survive any termination of
this Agreement.
10. Term of Agreement:
This Agreement will become effective on the date indicated in the introductory
paragraph of this Agreement, and will remain in effect for 12 months from such
date or until terminated as set forth in the section of this Agreement entitled
"Termination of Agreement."
This Agreement shall be binding, and in full effect, upon any successor
organization of either party hereto.
11. Termination of Agreement:
a) Each party has the right to terminate this Agreement if the other
party has materially breached any obligation herein and such
breach remains uncured for a period of 30 days after notice
thereof is sent to the other party.
b) If at any time after commencement of the services required by this
Agreement, Client shall, in its sole reasonable judgment, determine
that such services are inadequate, unsatisfactory, no longer needed
or substantially not conforming to the descriptions, warranties or
representations contained in this Agreement, Client may terminate
this Agreement upon 30 days' written notice to Consultant.
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c) Upon termination of this Agreement for any reason, each party shall
be released from all obligations and liabilities to the other
occurring or arising after the date of termination. However, any
termination of this Agreement shall not relieve Client from the
obligation to pay Consultant for services rendered prior to receipt
of the notice of termination and for work performed or hours
reserved for Client during the 30-day termination notice period.
12. Return of Materials:
Upon termination of this Agreement, each party shall promptly return to the
other all data, materials and other property of the other held by it.
13. Warranties and Representations: Consultant warrants and represents that:
a) 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.
b) Consultant has the authority to enter into this Agreement and to
perform all obligations hereunder, including, but not limited to,
the grant of rights and licenses to the Work Product and
Background Technology and all proprietary rights therein or based
thereon.
c) Consultant has not granted any rights or licenses to any
intellectual property or technology that would conflict with
Consultant's obligations under this Agreement.
THE WARRANTIES AND REPRESENTATIONS SET FORTH IN THIS CLAUSE ARE THE ONLY
WARRANTIES GRANTED BY CONSULTANT WITH RESPECT TO THE SOFTWARE OR
SERVICES FURNISHED HEREUNDER. CONSULTANT DISCLAIMS ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND
ANY ORAL OR WRITTEN REPRESENTATIONS, PROPOSALS OR STATEMENTS MADE PRIOR
TO THIS AGREEMENT.
14. Indemnities:
Consultant agrees to indemnify and hold harmless Client against all losses and
liabilities arising out of or resulting from all injuries or death or damage to
property, including theft, on account of performance of work or services by
Consultant or Consultant's employees or subcontractors pursuant to this
Agreement. Consultant shall maintain liability insurance sufficient to fulfill
its obligations under this paragraph, in
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amounts acceptable to Client, and shall submit proof of such insurance to Client
upon request. Such insurance may not be changed by Consultant during the term of
this Agreement with Client's prior written consent.
15. Limitation on Consultant's Liability to Client:
a) In no event shall Consultant be liable to Client for lost profits
of Client, or special, incidental or consequential damages (even
if Consultant has been advised of the possibility of such
damages).
b) Consultant's total liability under this Agreement for damages,
costs and expenses, regardless of cause, shall not exceed the
total amount of fees paid to Consultant by Client under this
Agreement.
c) Consultant shall not be liable for any claim or demand made
against Client by any third party except to the extent such claim
or demand relates to copyright, patent, trade secret or other
proprietary rights, and then only as provided in the section of
this Agreement entitled "Warranties and Representations."
d) Client shall indemnify Consultant against all claims, liabilities
and costs, including reasonable attorney fees, of defending any
third party claim or suit, other than for infringement of
intellectual property rights, arising out of or in connection with
Client's performance under this Agreement. Consultant shall
promptly notify Client in writing of such claim or suit and Client
shall have the right to fully control the defense and any
settlement of the claim or suit.
16. Employment of Assistants:
a) Consultant may, at Consultant's own expense, employ such assistants
or contractors as Consultant deems necessary to perform the
services required by this Agreement. However, Client shall have the
right to reject any of Consultant's assistants or subcontractors
whose qualifications in Client's good faith and reasonable judgment
are insufficient for the satisfactory performance of the services
required by this Agreement.
b) Consultant represents that before an employee or subcontractor of
Consultant performs any services required by this Agreement,
Consultant shall either:
i. provide Client with a signed copy of any employment or
independent contractor/consulting agreement effecting the
assignment to Consultant of such
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employee's or subcontractor's rights in all copyrightable
or patentable software or other materials he or she
creates as a result of the performance of work or services
under this Agreement; or
ii. deliver to Client an Assignment of Rights ("the
Assignment") in substantially the form attached hereto as
Exhibit A signed by such employee or subcontractor.
Consultant shall orally inform each employee or
subcontractor of the substance of the Assignment before he
or she executes such form.
17. Mediation and Arbitration:
Except for the right of Consultant to bring suit on an open account for simple
monies due Consultant, any dispute arising under this Agreement shall be
resolved through a mediation-arbitration approach. The parties agree to select a
mutually agreeable, neutral third party to help them mediate any dispute that
arises under the terms of this Agreement. If the mediation is unsuccessful, the
parties agree that the dispute shall be decided by binding arbitration under the
rules of the American Arbitration Association. The decision of the arbitrators
shall be final and binding on the parties and may be entered and enforced in any
court of competent jurisdiction by either party. Costs and fees associated with
the mediation shall be shared equally by the parties. The prevailing party in
the arbitration proceedings shall be awarded reasonable attorney fees, expert
witness costs and expenses, and all other costs and expenses incurred directly
or indirectly in connection with the proceedings, unless the arbitrators shall
for good cause determine otherwise.
18. General Provisions:
a) This Agreement is the sole and entire Agreement between the
parties relating to the subject matter hereof, and supersedes all
prior understandings, agreements and documentation relating to
such subject matter. Any modifications to this Agreement must be
in writing and signed by both parties.
b) If any provision in this Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the
remaining provisions will continue in full force without being
impaired or invalidated in any way.
c) This Agreement will be governed by the laws of the State of
California.
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d) All notices and other communications required or permitted under
this Agreement shall be in writing and shall be deemed given when
delivered personally, or five days after being deposited in the
United States mails, postage prepaid and addressed as follows, or
to such other address as each party may designate in writing:
Client:
Concierge, Inc.
000 Xxxx Xxxxxx, Xxx. 000
Xx Xxxxxxx, XX 00000-0000
Consultant:
Xxxx Xxxx Consulting
0000 XX 00xx Xx.
Xxxxxx Xxxxxx, XX 00000
e) This Agreement does not create any agency or partnership
relationship.
f) This Agreement is not assignable by either party without the
prior written consent of the other.
Client: Concierge, Inc.
By: /s/ Xxxxx X. Xxxx Date: 3/15/00
-------------------------------
(Signature)
Xxxxx X. Xxxx
Title: Chief Executive Officer
Consultant: Xxxx Xxxx Consulting
By: /s/ Xxxxx X. Xxxx Date: 3/17/00
-------------------------------
(Signature)
Xxxxx X. Xxxx
Title: Owner
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