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EXHIBIT 10.18
CONSULTING AGREEMENT
This Agreement ("Agreement") is entered into as of the 19th day of
November, 1996 ("Effective Date") by and between Excite, Inc., a California
corporation located at 0000 X. Xxxxxxxxx Xxxxxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx
00000 ("Excite"), and Xxxxxx X. Xxxx ("Consultant").
RECITALS
Consultant desires to perform, and Excite desires to have Consultant perform,
consulting services as an independent contractor to Excite.
Therefore, the parties agree as follows:
1. SERVICES PROVIDED TO EXCITE
a) Consultant will perform the services (the "Services")
described in Exhibit A (the "Project Description").
b) Consultant will use his best efforts to perform the Services
to achieve the results described in the Project Description
and within the time limits stated therein.
c) Because the Services are personal and unique, Consultant may
not assign Consultant's rights or delegate Consultant's duties
under this Agreement either in whole or in part without the
prior written consent of Excite. Any attempted assignment or
delegation without such consent will be void.
2. PAYMENT TO CONSULTANT
a) As sole compensation for the performance of the Services,
Excite will pay Consultant the consulting rate stated in the
Project Description in accordance with the terms set forth
therein. Any reasonable and necessary expenses incurred by
Consultant in performing the Services will be reimbursed by
Excite, provided that all such expenses are properly
documented and accounted for in accordance with the
requirements of the Internal Revenue Service, and provided
further that all expenses exceeding one hundred dollars ($100)
are subject to Excite's prior approval.
b) Consultant will invoice Excite on a monthly basis for the
number of hours spent and expenses incurred in performing the
Services. Excite will pay each such invoice no later than
thirty (30) days after receipt.
c) Consultant will receive no royalty or other remuneration on
the production or distribution of any products or services
developed by Excite and/or Consultant in connection with or
based upon the Services.
3. TERM
The term of this Agreement will begin on the Effective Date
and will end at the earlier of (i) Consultant's employment by
Excite in a full time capacity or (ii) six (6) months later,
unless at that time the Services are still being performed in
a timely manner pursuant to a Project
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Description which specifies a later completion date, in which
case the term of this Agreement will terminate on such
completion date.
4. RELATIONSHIP OF THE PARTIES
a) Consultant is an independent contractor and is not an agent or
employee of, and has no authority to bind, Excite, by contract
or otherwise. Consultant will perform the Services under the
general direction of Excite, but Consultant will determine, in
Consultant's sole discretion, the manner and means by which
the Services are accomplished, subject to the requirement that
Consultant shall at all times comply with applicable law.
Excite has no right or authority to control the manner or
means by which the Services are accomplished.
(b) Consultant will report as self-employment income all
compensation received by Consultant pursuant to this
Agreement. Consultant will indemnify Excite and hold it
harmless from and against all claims, damages, losses and
expenses, including reasonable fees and expenses of attorneys
and other professionals, relating to any obligation imposed by
law on Excite to pay any withholding taxes, social security,
unemployment or disability insurance, or similar items in
connection with compensation received by Consultant pursuant
to this Agreement. Consultant will not be entitled to receive
any vacation or illness payments, or to participate in any
plans, arrangements, or distributions by Excite pertaining to
any bonus, stock option, profit sharing, insurance or similar
benefits for Excite's employees.
c) Consultant will maintain adequate insurance to protect
Consultant from: (i) claims under worker's compensation and
state disability acts; (ii) claims for damages because of
bodily injury, sickness, disease or death which arise out of
any negligent act or omission of Consultant; and (iii) claims
for damages because of injury to or destruction of tangible or
intangible property, including loss of use resulting
therefrom, which arise out of any negligent act or omission of
Consultant.
5. PROPERTY OF EXCITE
a) For the purposes of this Agreement, "Designs and Materials"
means all designs, discoveries, inventions, products,
services, computer programs, procedures, improvements,
developments, drawings, notes, documents, information and/or
materials made, conceived and/or developed by Consultant alone
and/or with others which result from or relate to the
Services.
b) Consultant hereby irrevocably transfers and assigns any and
all of his right, title, and interest in and to Designs and
Materials including, but not limited to, all copyrights,
patent rights, trade secrets and trademarks, to Excite.
Designs and Materials will be the sole property of Excite and
Excite will have the sole right to determine the treatment of
any Designs and Materials, including the right to keep them as
trade secrets, to file and execute patent applications on
them, to use and disclose them without prior patent
application, to file registrations for copyright or trademark
on them in its own name, or to follow any other procedure that
Excite deems appropriate.
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c) Consultant will: (i) disclose promptly in writing to Excite
all Designs and Materials; (ii) cooperate with and assist
Excite to apply for, and to execute any applications and/or
assignments reasonably necessary to obtain, any patent,
copyright, trademark or other statutory protection for Designs
and Materials in Excite's name as Excite deems appropriate;
and (iii) otherwise treat all Designs and Materials as
"Confidential Information," as defined below. These
obligations to disclose, assist, execute and keep confidential
will survive any expiration or termination of this Agreement.
d) "Moral Rights" means any right to claim authorship of a work,
any right to object to any distortion or other modification of
a work and any similar right existing under the law of any
country in the world or under any treaty. Consultant hereby
irrevocably transfers and assigns to Excite any and all Moral
Rights that Consultant may have in any Services and/or Designs
and Materials. Consultant also hereby forever waives and
agrees never to assert against Excite, its successors or
licensees any and all Moral Rights Consultant may have in any
Services and/or Designs and Material, even after expiration or
termination of this Agreement.
6. CONFIDENTIAL INFORMATION
a) Consultant may acquire information and materials from Excite
and knowledge about the business, products, programming
techniques, experimental work, customers, clients and
suppliers of Excite in connection with providing the Services.
Consultant agrees that all such knowledge, information and
materials acquired, the existence, terms and conditions of
this Agreement, and the Designs and Materials, are and will be
the trade secrets and confidential and proprietary information
of Excite (collectively "Confidential Information") whether or
not the information is explicitly designated as "confidential"
or "proprietary".
b) Confidential Information will not include information that (i)
is in or enters the public domain without breach of this
Agreement, (ii) Consultant lawfully receives from a third
party without restriction on disclosure and without breach of
a nondisclosure obligation or (iii) Consultant knew prior to
receiving such information from Excite.
c) Consultant agrees (i) that he will not disclose to any third
party or use any Confidential Information disclosed to
Consultant by Excite except as expressly permitted in this
Agreement and (ii) that he will take all reasonable measures
to maintain the confidentiality of all Confidential
Information in his possession or control, which will in no
event be less than the measures Consultant uses to maintain
the confidentiality of Consultant's own information of similar
importance.
7. INDEMNITY
Consultant will indemnify and, at Excite's option, defend
Excite and hold it harmless from and against all claims,
damages, losses and expenses, including court costs and
reasonable fees and expenses of attorneys, expert witnesses,
and other professionals, arising out of or resulting from: (i)
any action by a third party against Excite that is based on
any claim that any Services performed under this Agreement, or
their results, infringe a patent, copyright or other
proprietary right or violate a trade secret and/or (ii) any
action by a third party that is based on
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any negligent act or omission or willful conduct of Consultant
which results in any bodily injury, sickness, disease or
death, any injury or destruction to tangible or intangible
property (including computer programs and data) or any loss of
use resulting therefrom, or any violation of any statute,
ordinance, or regulation.
8. TERMINATION AND EXPIRATION
a) Either party may terminate this Agreement in the event of a
breach by the other party of this Agreement if such breach
continues uncured for a period of ten (10) days after written
notice.
b) Excite may terminate this Agreement at any time, for any
reason or no reason, by written notice to Consultant.
c) The election by Excite to terminate this Agreement in
accordance with its terms shall not be deemed an election of
remedies, and all other remedies provided by this Agreement or
available at law or in equity shall survive any termination.
d) Upon the expiration or termination of this Agreement for any
reason, each party will be released from all obligations to
the other arising after the date of expiration or termination,
except that expiration or termination of this Agreement will
not relieve Consultant of his obligations under Sections 4(b),
4(c), 5(c), 6, 7 or 10(c), nor will expiration or termination
relieve Consultant or Excite from any liability arising from
any breach of this Agreement.
e) Upon the expiration or termination of this Agreement for any
reason, Consultant will promptly notify Excite of all
Confidential Information, including but not limited to the
Designs and Materials, in Consultant's possession and, at the
expense of Consultant and in accordance with Excite's
instructions, will promptly deliver to Excite all such
Confidential Information.
9. LIMITATION OF LIABILITY
IN NO EVENT SHALL EXCITE BE LIABLE FOR ANY SPECIAL,
INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND IN
CONNECTION WITH THIS AGREEMENT, EVEN IF EXCITE HAS BEEN
INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.
10. COVENANTS, WARRANTIES AND REPRESENTATIONS
a) Consultant will not during the term of this Agreement,
directly or indirectly, in any individual or representative
capacity, engage or participate in or provide services to any
business that is competitive with the types and kinds of
business being conducted by Excite.
b) Consultant represents and warrants that Consultant is not
under any pre-existing obligation inconsistent with the
provisions of this Agreement.
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c) Because of the trade secret subject matter of Excite's
business, Consultant agrees that he will not solicit the
services of any of the employees, consultants, suppliers or
customers of Excite during the term of this Agreement and for
six (6) months thereafter.
11. DISPUTE RESOLUTION
a) The parties agree that any breach of either of the parties'
obligations regarding confidentiality (Section 6), exclusivity
(Section 10(a)) and/or non-solicitation (Section 10(c)) would
result in irreparable injury for which there is no adequate
remedy at law. Therefore, in the event of any breach or
threatened breach of a party's obligations regarding
confidentiality (Section 6), exclusivity (Section 10(a))
and/or non-solicitation (Section 10(c)), the aggrieved party
will be entitled to seek equitable relief in addition to its
other available legal remedies in a court of competent
jurisdiction. For the purposes of this section only, the
parties consent to venue in either the state courts of the
county in which Excite has its principal place of business or
the United States District Court for the Northern District of
California.
b) In the event of disputes between the parties arising from or
concerning in any manner the subject matter of this Agreement,
other than disputes arising from or concerning confidentiality
(Section 6), exclusivity (Section 10(a)) and/or
non-solicitation (Section 10(c)), the parties will first
attempt to resolve the dispute(s) through good faith
negotiation. In the event that the dispute(s) cannot be
resolved through good faith negotiation, the parties will
refer the dispute(s) to a mutually acceptable mediator for
hearing in the county in which Excite has its principal place
of business.
c) In the event that disputes between the parties arising from or
concerning in any manner the subject matter of this Agreement,
other than disputes arising from or concerning confidentiality
(Section 6), exclusivity (Section 10(a)) and/or
non-solicitation (Section 10(c)), cannot be resolved through
good faith negotiation and mediation, the parties will refer
the dispute(s) to the American Arbitration Association for
resolution through binding arbitration by a single arbitrator
pursuant to the American Arbitration Association's rules
applicable to commercial disputes. The arbitration will be
held in the county in which Excite has its principal place of
business.
12. GENERAL
a) Governing Law. This Agreement will be governed by and
construed in accordance with the laws of the State of
California, notwithstanding the actual state or country of
residence or incorporation of Consultant.
b) Notice. Any notice under this Agreement will be in writing and
delivered by personal delivery, express courier, confirmed
facsimile, confirmed email or certified or registered mail,
return receipt requested, and will be deemed given upon
personal delivery, one (1) day after deposit with express
courier, upon confirmation of receipt of facsimile or email or
five (5) days after deposit in the mail. Notices will be sent
to a party at its address set forth below or such other
address as that party may specify in writing pursuant to this
Section.
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c) No Agency. The parties are independent contractors and will
have no power or authority to assume or create any obligation
or responsibility on behalf of each other. This Agreement will
not be construed to create or imply any partnership, agency or
joint venture.
d) Entire Agreement. This Agreement is the complete and exclusive
agreement between the parties with respect to the subject
matter hereof, superseding any prior agreements and
communications (both written and oral) regarding such subject
matter. This Agreement may only be modified, or any rights
under it waived, by a written document executed by both
parties.
e) Severability. In the event that any of the provisions of this
Agreement are held by to be unenforceable by a court or
arbitrator, the remaining portions of the Agreement will
remain in full force and effect.
f) Force Majeure. Any delay in or failure of performance by
either party under this Agreement will not be considered a
breach of this Agreement and will be excused to the extent
caused by any occurrence beyond the reasonable control of such
party including, but not limited to, acts of God, power
outages and governmental restrictions.
Consultant Excite, Inc.
By: /s/ XXXXXX X. XXXX By: /s/ XXXXXX XXXX
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Name: Xxxxxx X. Xxxx Name: Xxxxxx Xxxx
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Date: 11-19-96 Title: Pres. and CEO
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Date: 11-19-96
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000 Xxxxxxx Xxxx 0000 X. Xxxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxxxxx 00000 Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
415.943.1200 (voice)
000.000.0000 (fax)
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EXHIBIT A
PROJECT DESCRIPTION
Services
General consulting services on an executive level regarding financial
and administrative planning and organization and corporate financial strategies.
Compensation
Two hundred thousand (200,000) options to purchase shares of the common
stock of Excite, Inc. (the "Options"), at a price and conditions to be
determined by the Compensation Committee of the Excite Board of Directors.
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