EXHIBIT 10.2.11
SILICON GRAPHICS
CONSULTING AGREEMENT
This CONSULTING AGREEMENT is made and entered into as of April 30, 1999, by and
between LINUXCARE, a COMPANY organized under the laws of CALIFORNIA
("Consultant"), having a place of business at 000 XXXXXXXX XX XXX XXXXXXXXX, XX
00000 and Silicon Graphics, Inc., a Delaware corporation ("SGI"), having a place
of business at 0000 X. Xxxxxxxxx Xxxx., Xxxxxxxx Xxxx, XX 00000-0000.
WHEREAS, Consultant is in the business of providing consulting services; and
WHEREAS, SGI desires Consultant to provide its consulting services to SGI, and
Consultant desires to provide such services to SGI.
NOW, THEREFORE, the parties hereto agree as follows:
1.0. DEFINITIONS.
1.1 "Agreement" means Consulting Agreement.
1.2 "Confidential Information" means any information about SGI's customers,
employees, marketing, technology or products that should reasonably be
understood to be proprietary and/or confidential in nature.
1.3 "Consultant" means the individual or independent business entity
identified above and, individually and collectively, the agents, employees,
officers, partners and principals of such individual or business entity.
1.4 "Licensed Rights" means any preexisting intellectual property rights
owned and/or licensable by Consultant, its employees or any third party that are
required for SGI to exercise its rights in the Work Product or benefit from
Services.
1.5 "Services" means the services to be performed by Consultant hereunder,
which shall be described on Exhibit A hereto.
1.6 "Work Product" means any and all concepts, data, designs, ideas,
information, inventions, know-how, processes, techniques, and works of
authorship or the like developed or created by Consultant during the course of
performing Services, regardless of the form of embodiment. Work Product shall
(i) include all copyrights, property rights associated therewith, and (ii) in
the case of copyrights, be considered (to the extent permitted by law) works
made for hire within the meaning of the Copyright Act (17 U.S.C. (S) 101 et
seq.).
2.0 INDEPENDENT CONTRACTOR STATUS. The parties acknowledge and agree that
Consultant is an independent contractor and not an employee, agent, joint
venturer or partner of SGI. Consultant acknowledges and agrees that, as an
independent contractor, Consultant will not be entitled to (i) make claim for
unemployment, worker's compensation or disability, or (ii) receive any vacation,
health, retirement or other benefits, pursuant to this Agreement or Consultant's
relationship with SGI. SGI will not make state or federal unemployment insurance
contributions on behalf of Consultant, or withhold FICA (Social Security)
contributions or state and federal income taxes from its payments to Consultant,
and Consultant agrees that it shall make such contributions and withhold such
taxes for any of its employees performing Services. Consultant's Federal
taxpayer identification number is 00-0000000 and local business license/permit
number is __________________________.
3.0 PERFORMANCE OF SERVICES.
3.1. Services; Progress Reports. Consultant agrees to provide the Services
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to SGI, and to promptly deliver to SGI any Work Product resulting from the
performance of Services. Consultant will report its progress on its performance
of Services to SGI at the time and in the manner reasonably requested by SGI.
3.2. Method of Performing and Scheduling of Services. Consultant will
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determine the general method, details and means of performing the Services,
provided that Consultant shall strictly observe any SGI policies or procedures
applicable to the workplace if using the premises and/or equipment of SGI.
Consultant will use its best efforts to complete the Services in accordance with
the schedule set forth in Exhibit A.
3.3. Changes in Scope of Work. SGI shall have the right to change the scope
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of the Services, if (i) such change is reasonably acceptable to Consultant, and
(ii) the parties mutually agree on the terms applicable to any such change,
including changes to Consultant's compensation (if any), which shall be set
forth i a signed, written amendment to this Agreement.
4.0 COMPENSATION; INVOICES AND PAYMENT.
4.1. Compensation and Expenses. SGI will pay the applicable amount(s) set
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forth on Exhibit A to Consultant following Consultant's completion and deliver,
and SGI's acceptance of, the Services and Work Product. Consultant shall be
responsible for all costs and expenses incidental to its performance of the
Services, except as otherwise expressly set forth on Exhibit A.
4.2. Invoices and Payment. Consultant shall submit invoices to SGI at least
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every thirty (30) days, but not more often than weekly (once every five (5)
working days, together with sufficiently detailed information for SGI to verify
all invoice items. SGI will pay Consultant net thirty (30) days after SGI's
receipt of Consultant's invoice or acceptance of Services and/or Work Product,
whichever is later. SGI will not be liable for and will not pay any invoice that
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Consultant submits to SGI more than ninety (90) days after Consultant performed
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and SGI accepted the associated Services.
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5.0 CONFIDENTIAL INFORMATION
5.1. Confidential Information. Consultant shall maintain in strict
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confidence all Confidential Information that Consultant receives in the course
of providing Services or otherwise in connection with its relationship with SGI.
5.2 Exclusions. The restrictions in Section 5.1 above shall not apply to
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information that Consultant can clearly show (i) was already lawfully known to
Consultant; (ii) was independently developed by Consultant; (iii) becomes
rightfully known to Consultant from another source, without restriction on
subsequent disclosure or use; or (iv) is or becomes part of the public domain
through no wrongful act of Consultant.
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6.0 OWNERSHIP OF WORK PRODUCT; LICENSED AND RESIDUAL RIGHTS.
6.1. Ownership of Work Product. Consultant agrees that, in consideration
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for SGI's payment to Consultant hereunder, all Work Product shall become the
property of SGI. To the extent that any such Work Product may not, under
applicable law, be considered works made for hire, Consultant agrees to assign
on an exclusive basis al of Consultant's right, title and interest in and to the
Work Product to SGI. Accordingly, Consultant agrees that it shall (i) not use
any Work Product for the benefit of any party other than SGI, (ii) execute an
assignment agreement in the form attached hereto as Exhibit B on completion of
Services, and (iii) perform such other acts (including, but not limited to,
cooperating with and assisting SGI in the protection and enforcement of SGI's
rights in the Work Product by adjudication or otherwise) and execute such other
documents and instruments as SGI may now or hereafter deem reasonably necessary
or desirable to evidence the transfer of sole ownership of all Work Product to
SGI. If, by operation of law, Consultant is deemed to retain any rights in and
to any intellectual property created hereunder, Consultant, to the extent that
any such rights conflict with any assignment of rights made by Consultant to SGI
hereunder, hereby waives all such rights.
6.2. Licensed Rights. To the extent Licensed Rights are required under
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this Agreement, Consultant grants or will cause to be granted to SGI before the
expiration of the term hereof a fully-paid, irrevocable, worldwide, non-
exclusive license and right to make, have made, sell, possess, use, disclose,
reproduce, prepare derivative works based on, distribute, sublicense, perform
and display works, products or the like that incorporate or are based on, in
whole or in part, Licensed Rights. Consultant represents that there shall be no
Licensed Rights required hereunder unless specifically noted and described on
Exhibit A.
6.3. Residual Rights Of Consultant. Notwithstanding anything to the
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contrary herein, Consultant shall be free to use its general skills, know-how
and expertise in the course of providing its services to others, provide that
Consultant shall not specifically disclose any Confidential Information and/or
providing Work Product to any third party in so doing.
7.0. WARRANTIES.
7.1. Warranties. Consultant represents and warrants to SGI that:
a. General. Consultant has all requisite right and authority to enter into this
Agreement and the performance of its obligations hereunder will not conflict
with any of its agreements with or obligations to any third party.
b. Independent Contractor. Consultant will establish and maintain its status as
an independent contractor by participating in SGI's independent contractor
evaluation and scoring process from time to time as specified by SGI.
c. Performance of Services. Consultant will perform all Services in a good and
workmanlike manner, in accordance with the best practices of Consultant's
industry, and the Services and Work Product will conform to the applicable
specification and/or statement of work set forth herein.
d. Year 2000 Compliance. To the extent that Work Product Licensed Rights and any
other deliverable items hereunder are comprised of computer hardware and/or
software, such items will use a four (4) digit representation of the year and
process (including, without limitation, inputting, outputting, retrieving and
storing) without error information and/or data that includes or refers to
dates and/or time on any day in any year before, during, and after the
twenty-first century, including any leap day or year.
e. Intellectual Property Rights. The Work Product, Licensed Material and any
associated deliverables shall not violate any patent, copyright, trademark,
trade secret or other intellectual property right of any third party.
7.2. Warranty Exclusions. THE FOREGOING WARRANTIES ARE EXCLUSIVE, AND
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CONSULTANT DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
8.0 INSURANCE. Consultant shall obtain and maintain in full force and effect
during the term of this Agreement (i) commercial general liability insurance
(including contractual liability coverage) with coverage limits of not less than
One Million Dollars ($1,000,000) per occurrence, naming SGI as an additional
insured thereunder, and (iii) worker's compensation insurance as required by
law. At the time of execution of this Agreement, Consultant shall provide SGI
with a certificate of insurance evidencing the insurance coverages required
under this Section 8. The insurance companies now or hereafter issuing the
foregoing insurance policies shall be reasonably acceptable to SGI. Any
modification, renewal, replacement or cancellation of such insurance coverages
shall require at least thirty (30) days prior written notice to SGI.
9.0 INDEMNIFICATION. Consultant shall indemnify, defend and hold SGI harmless
from and against any and all third party claims, suits, proceedings, damages,
costs, liabilities and expenses (including, without limitation, reasonable
attorneys' fees) arising from the negligence or willful misconduct of Consultant
in connection with Consultant's performance of Services or relationship with SGI
hereunder. The foregoing indemnification shall also apply to damage or loss to
the property of SGI arising from the actions or inactions of Consultant's
employees or agents, whether in the course of their employment or not, including
but not limited to acts of theft, vandalism or the like.
10.0. TERM; TERMINATION.
10.1. Term. This Agreement will become effective on the date first set
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forth above and will continue in effect through the earlier of the completion of
the Services and delivery of the Work Product, or the completion date set forth
on Exhibit A, unless terminated earlier in accordance with this Section 10.
10.2 Termination of Services and/or Agreement for Convenience by SGI. SGI
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may terminate this Agreement and/or all or any portion for the Services by
giving written notice to Consultant. On receipt of such notice, Consultant shall
cease providing Services, advise SGI of the extent to which Consultant has
completed, and collect
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and deliver to SGI whatever Work Product then exists, regardless of the form of
embodiment, in the manner requested by SGI. After SGI receives and accepts
Consultant's detailed statement of any terminated-related expenses and costs
incurred by Consultant, SGI shall make a final settlement payment to Consultant
for all work performed through the date of such termination within thirty (30)
days.
10.3. Termination of Agreement for Default. If a party fails to cure any
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breach of its obligations hereunder within ten (10) days after its receipt of
written notice thereof from the other party, then the other party may terminate
this Agreement at any time thereafter by providing the defaulting party with
written notice of termination.
10.4. Delivery Of Materials Upon Termination. Consultant agrees, covenants
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and promises that, in the event of termination or expiration of this Agreement
for any reason, Consultant will promptly and without request surrender and
deliver to SGI all materials containing, embodying or otherwise evidencing any
Confidential Information, regardless of whether any such item or the information
therein was prepared, produced or authored by Consultant, except that Consultant
may retain a copy of this Agreement for its records.
10.5. Survival. Sections 5, 6, 7, 10.5, 11.1, 11.2 and 11.8 hereof shall
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survive the expiration or earlier termination of this Agreement.
11.0. GENERAL.
11.1 Resolution of Disputes. The parties agree that they will make good
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faith efforts to settle any dispute, claim or controversy arising out of or
relating to this Agreement by discussion, negotiation and/or mediation.
11.2 Governing Law; Venue, Waiver of Jury Trial. This Agreement shall be
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governed by and interpreted in accordance with the laws of the State of
California, excluding its choice of law rules. Any adjudicated dispute
regarding the interpretation or validity of or otherwise arising out of this
Agreement, or relating to Services provided under this Agreement, shall be
subject to the exclusive jurisdiction of the California state courts in and for
Santa Xxxxx, County, California (or, if there is federal jurisdiction, the U.S.
District Court for the Northern District of California), and SGI and Consultant
agree to submit to the personal and exclusive jurisdiction and venue of these
courts. The parties hereto expressly waive any right they have to a jury trial
and agree that any court proceeding under this Agreement shall be tried by a
judge without a jury.
11.3 Non-exclusive Relationship. This Agreement is non-exclusive.
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Consultant shall have the right to perform work for others during the term of
this Agreement. SGI may cause similar work to be performed by its own personnel
or other contractors or consultants during the term of this Agreement.
11.4. Record Keeping. Consultant agrees to keep records regarding its
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performance of Services and invoices to SGI for a period of at least three (3)
years after the expiration or termination of this Agreement, and that it shall
produce such records for inspection and audit by SGI on SGI's written request.
11.5 Representation by Counsel. Consultant hereby certifies and represents
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that it has been, or had the opportunity to be, represented by counsel in the
negotiation of this Agreement.
11.6 Assignment. No Portion of this Agreement or any of Consultant's rights
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(including, without limitation, the right to payment hereunder) duties or
obligations hereunder may be assigned and/or delegated by Consultant.
11.7 Modifications. Any modifications of this Agreement shall be in
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writing and signed by both parties.
11.8 Complete Agreement. This Agreement, including all attachments hereto,
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constitutes the complete and exclusive statement of the agreement between SGI
and Consultant, and it supersedes all proposals, oral or written, and all other
communications between SGI and Consultant relating to the subject matter of this
Agreement.
SILICON GRAPHICS, INC CONSULTANT
By: Xxxx Xxxxxxxxxx By:
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(NAME PRINT OR TYPE) (NAME PRINT OR TYPE)
EDUCATION MANAGER
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TITLE TITLE
4/30/99
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DATE DATE
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EXHIBIT A
DESCRIPTION OF SERVICES, WORK PRODUCT, AND COMPENSATION
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Item Description of Services and Work Product Completion Payment on
# Date Completion
(if any)
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1 LINUX TRAINING CLASS 5/8/99
1 LINUX TRAINING CLASS 5/22/99
1 LINUX TRAINING CLASS 6/12/99
2 LINUX TRAINING CLASS TO BE
ASIA/PACIFIC DETERMINED
2 LINUX TRAINING CLASS
EUROPE 6/5/99
6/12/99
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Statement of Work or project Description/Quotation of Consultant Attached:
X
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Yes No
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Consultant (by/date)
/s/ Xxxx Xxxxxxxxxx 4/30/99
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SGI (by/date)
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EXHIBIT B
ASSIGNMENT OF INTELLECTUAL PROPERTY RIGHTS
This ASSIGNMENT OF INTELLECTUAL PROPERTY RIGHTS ("Assignment") is made and
entered into this day of 4/30, 1999, by and between LINUXCARE ("Consultant") and
Silicon Graphics, Inc. ("SGI").
Consultant and SGI have entered into a Consulting Agreement (the "Agreement") of
even date herewith pur-suant to which Consultant has agreed to provide Services
and/or create certain Work Product for SGI. Unless otherwise defined herein,
the defined terms used in this Assignment shall have the same meanings as set
forth in the Agreement.
1.0. DESCRIPTION OF WORK PRODUCT. Work Product consists of and is described as:
PRODUCT is training classes in which consultant is owner of intellectual
property except for 1 module on SGI IriX/LINUX differences.
2.0. ASSIGNMENT AND TRANSFER OF INTELLECTUAL PROPERTY RIGHTS. In consideration
of SGI's obligation to pay Consultant the compensation described on Exhibit A to
the Agreement. Consultant hereby grants, assigns, conveys and transfers, and
agrees to grant, assign, convey and transfer from time to time, on an exclusive
basis, to SGI all of Consultant's right, title and interest in and to all Work
Product now or hereafter created or developed by Consultant during the course of
performing the Services, without the necessity of further consideration. This
Assignment shall be operative with respect to all intellectual property rights
in and to all Work Product, including, without limitation, (i) all copyrights
worldwide, including all rights of regis-tration and publication, rights to
create derivative works, and all other rights incident to copyright ownership,
for the residue now unexpired of the present term of any and all such copyrights
and any term thereafter during which the Work Product shall be entitled to
copyright, and (ii) all trade secrets, inventions, know-how, ideas and
confidential information embodied or reflected in Work Product, for the longest
period of protection accorded to such interests under applicable law. This
Assignment shall be binding upon and inure to the benefit of the parties hereto
and their respective successors, assigns and legal representatives.
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Consultant (by/date)
/s/ Xxxx Xxxxxxxxxx 4/30/99
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SGI (by/date)
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