EXHIBIT 10.15
CONSULTING AGREEMENT
This consulting agreement (the "Agreement") is entered into and is
effective as of 12/1/96 (the "Effective Date") by and between ENACT Health
Management Systems ("Company") and XXXXX XXXXX CASCADIA VENTURES ("Consultant").
The Company desires to retain the Consultant as an independent contractor
to perform consulting services for the Company from time to time and the
Consultant is willing to perform such services, on the basis set forth more
fully below.
In consideration of the mutual promises contained herein, the Company and
the Consultant mutually agree as follows:
1. SERVICES. The Consultant agrees to perform the Services described in
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any Project assignment pursuant hereto in a workmanlike manner according to the
schedule of work set forth therein. A copy of the form of Project Assignment is
attached hereto as Exhibit A. The Consultant agrees not to perform similar
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services during the term of this Agreement for any other manufacturer or seller
of products or services directly competitive with products or services
manufactured or sold by the Company unless the Company gives prior written
consent.
2. PAYMENT FOR SERVICES. The Company shall pay the Consultant the fee set
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forth in the Project Assignment for the performance of the Services, together
with reimbursement for the Consultant's direct costs, as provided therein.
3. RELATIONSHIP OF PARTIES. The Consultant shall perform the Services
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under the general direction of the Company, but the Consultant shall determine,
in the Consultant's sole discretion, the manner and means by which the Services
are accomplished, subject to the express condition that the Consultant shall at
all times comply with applicable law. The Consultant is an independent
contractor and the Consultant is not an agent or employee of the Company, and
has no authority whatsoever to bind the Company by contract or otherwise.
4. THE COMPANY RULES. The Consultant shall observe the working hours,
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working rules and holiday schedules of the Company while working on the
Company's premises.
5. EMPLOYMENT TAXES AND BENEFITS. The Consultant acknowledges and agrees
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that it shall be the obligation of the Consultant to report as income all
compensation received by the Consultant pursuant to this Agreement and the
Consultant agrees to indemnify the Company and hold it harmless to the extent of
any obligation imposed on the Company to pay any withholding taxes, social
security, unemployment or disability insurance or similar items, including the
interest and penalties thereon, in connection with any payments made to the
Consultant by the Company pursuant to this Agreement.
6. INVENTIONS. All designs, artwork software programs, brochures, manuals,
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products, procedures, drawings, notes, documents, information, materials,
discoveries and inventions (hereafter "Designs and Inventions") made, conceived
or developed by the Consultant alone or with others which result from or relate
to the Services, or which the Consultant may receive from the Company while
performing the Services, shall be the sole property of the Company. The Company
shall have the sole right to determine the method of protection for any such
Designs and Inventions, including the right to keep the same as trade secrets,
to file and execute patent applications thereon, to use and disclose the same
without prior patent application, to file registrations for copyright or
trademark thereon in its own name, or to follow any other procedure that the
Company deems appropriate. The Consultant agrees (a) to disclose promptly in
writing to the Company all such Designs and Inventions, (b) that the Company has
a power of attorney to apply for the Consultant's name, and to execute any
applications and/or assignments reasonably necessary to obtain any patent,
copyright, trademark or other statutory protection for such Designs and
Inventions in the Company's name as the Company deems appropriate. These
obligations to disclose, assist, and execute shall survive termination of this
Agreement. At the Company's option, it shall be entitled to use the name of the
Consultant in advertising and other materials.
7. CONFIDENTIALITY. The Consultant agrees to hold the Company's
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Confidential Information in strict confidence and not to disclose such
Confidential Information to any third parties. For purposes hereof,
"Confidential Information" shall include all confidential and proprietary
information disclosed by the Company including but not limited to technical and
business information relating to the Company's current and proposed products,
research and development, production, manufacturing and engineering processes,
costs, profit or margin information, finances, customers, suppliers, marketing
and production, personnel and future business plans. "Confidential Information"
also includes propriety or confidential information of any third party who may
disclose such information to the Company or the Consultant in the course of the
Company's business. The above obligations shall not apply to Confidential
Information which is already known to the Consultant at the time it is
disclosed, or which before being divulged either (a) has become publicly known
through no wrongful act of the Consultant; (b) has been rightfully received from
a third party without restriction on disclosure and without breach of this
Agreement; (c) has been independently developed by the Consultant; (d) has been
approved for release by written authorization of the Company; (e) has been
disclosed pursuant to a requirement of a government agency or of law.
8. TERMINATION. This Agreement shall commence on the date first written
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below and shall continue until terminated as follows:
(a) Either party may terminate the Agreement in the event of a breach
by the other of any of its obligations contained herein if such breach continues
uncured for a period of ten (10) days after written notice of such breach to the
other party;
(b) Either party may terminate this Agreement upon written notice to
the other party if either party is adjudicated bankrupt, files a voluntary
petition of bankruptcy, makes a general assignment for the benefit of creditors,
is unable to meet its obligations in the normal course of business as they fall
due or if a receiver is appointed on account of insolvency;
(c) Either party may terminate this Agreement for its convenience upon
ten (10) day's written notice to the other if there is no outstanding Project
Assignment.
Upon the termination of this Agreement for any reason, each party shall be
released from all obligations and liabilities to the other or arising after the
date of such termination, except that any termination shall not relieve the
Consultant or the Company of their obligations under Paragraphs 5, 6, 7, and 9,
nor shall any such termination relieve the Consultant or the Company from any
liability arising from any breach of this Agreement.
9. GENERAL
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(a) PRE-EXISTING OBLIGATIONS. The Consultant represents and warrants
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that the Consultant is not under any pre-existing obligation or obligations
inconsistent with the provisions of this Agreement.
(b) ASSIGNMENT. The rights and liabilities of the parties hereto shall
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bind an inure to the benefit of their respective successors, executors and
administrators, as the case may be, provided that, as the Company has contracted
for the Consultant's services, the Consultant may not assign or delegate its
obligations under this Agreement either in whole or in part without the prior
written consent of the Company.
(c) EQUITABLE RELIEF. Because the Services are personal and unique
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and because the Consultant shall have access to and become acquainted with the
confidential information of the Company, the Consultant agrees that the Company
shall have the right to enforce this Agreement and any of its provisions by
injunction, specific performance or any other equitable relief with prejudice to
any other rights and remedies that the Company may have for the breach of this
Agreement.
(d) ATTORNEY'S FEES. If any action at law or in equity is necessary
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to enforce the terms of this Agreement, the prevailing party shall be entitled
to reasonable attorney's fees, costs and expenses in addition to any other
relief to which such prevailing party may be entitled.
(e) GOVERNING LAW: SEVERABILITY. This Agreement shall be governed by
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and construed in accordance with the laws of the State of California. If any
provision of this Agreement is for any reason found by a court of competent
jurisdiction to be unenforceable, the remainder of this Agreement shall continue
in full force and effect.
(f) COMPLETE UNDERSTANDING MODIFICATION. This Agreement constitutes
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the full and complete understanding and agreement of the parties hereto and
supersedes all prior understandings and agreements. Any waiver, modification or
amendment of any provision of this Agreement shall be effective only if in
writing and signed by the parties thereto.
(g) NOTICES. Any notices required or permitted hereunder shall be
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given to the appropriate party at the address specified below or at such other
address as the party shall specify in writing. Such notice shall be deemed given
upon personal delivery to the appropriate address or sent by certified or
registered mail, three days after the date of mailing.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the date
written below.
ENACT HEALTH MANAGEMENT SYSTEMS CASCADIA VENTURES
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Consultant's Business Name
/s/ Xxxx Xxxxxxx 12/1/96 /s/ Xxxxx Xxxxx 1/10/97
_____________________________________ ----------------------------------
By (Signature) Date By (Signature) Date
Xxxx Xxxxxxx, Chief Executive Officer XXXXX XXXXX
_____________________________________ ----------------------------------
Printed Name and Title Printed Name and Title
EXHIBIT A
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Project Assignment #____
under Consulting Agreement dated 1/10/97
Project:
The Consultant shall render such services as the Company may from time to time
request in connection with Business Development, including, without limiting the
generality of the foregoing:
Schedule of Work:
The work will commence on 12/1/96, and end on 5/1/97.
Fees and Reimbursement:
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A. Fee: $10,000 per month.
B. Reimbursement for the following, as approved in advance by the Company:
1. Outside services at cost:
2. Direct charges at cost:
3. Travel and subsistence at cost:
The Consultant shall invoice the Company semi-monthly for services and
expenses and shall provide such reasonable receipts or other
documentation of expenses as the Company might request, including copies
of time records.
Payment Terms: net 30 days from receipt of invoice. The Company will be
invoiced on the 15th and last day of the month.
C. Maximum chargeable on this contract, including all items in paragraphs A
and B above, is $60,000 and $10,000 ?????.
Signed,
Company: /s/
Consultant: /s/ Xxxxx Xxxxx
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