Services Agreement - Worldwide Wireless Systems Inc. and Vanguard Research Inc.
SERVICES AGREEMENT
This Agreement is made and entered into as of the 20th day of
October, 1998, between Worldwide Wireless Systems Inc., a Delaware corporation
(herein "Client"), and Vanguard Research, Inc., a Virginia corporation (herein
"VRI").
WHEREAS, VRI has knowledge and experience in the areas of the Internet
and related technologies and Internet systems support, and Client desires to
engage the services of VRI in one or more of these areas.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained, it is mutually agreed as follows:
1. Engagement, Term and Compensation. Client hereby engages VRI
for the performance of consulting and other services (the "Services") in
accordance with the Statement of Work annexed hereto as Exhibit A and by this
reference incorporated into this Agreement.
1.1. The term of this Agreement shall commence as of November
1, 1998 and shall end on April 30, 1999, subject, however, to earlier
termination pursuant to the terms and conditions of this Agreement.
1.2. VRI shall be paid for the Services at the hourly rate of
$120.00. The maximum allowable number of hours per week shall be 35.
1.3. VRI shall also be reimbursed for its reasonable travel
expenses in performing the Services.
2. Assignments and Reports.
2.1. Client shall have the responsibility to determine and to
advise VRI of Client's weekly project requirements and to provide VRI with
guidance and assignments as necessary for development of the project.
2.2. VRI will perform all assignments given to VRI in
accordance with the reasonable standards of performance set forth in the
Statement of Work and/or written task orders issued by Client from time to time
and accepted by VRI.
2.3. In addition to any other duties specified VRI will make
such written reports as may be directed and will participate in such periodic
reviews of VRI's assignments as may be requested by Client.
3. Acceptance.
3.1. VRI hereby accepts the engagement and will provide the
Services to Client in accordance with the Statement of Work and any written task
order accepted by VRI.
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3.2. Under no circumstances will VRI hold VRI out as an
employee or agent of Client, nor shall Client hold itself out as an employee or
agent of VRI. The relationship between Client and VRI is one of independent
contractors, and no employee of one party shall be deemed to be an employee of
the other party.
4. Proprietary Information. The parties anticipate that it may be
necessary for either party to transfer or disclose Proprietary Information (a
defined herein) to the other party. As an express condition to such disclosure,
both parties agree as follows:
4.1. "Proprietary Information" means all information disclosed
by the disclosing party ("Discloser") to the receiving party ("Recipient") (in
writing, orally or in any other form) that is described as or provided under
circumstances indicating that it is confidential or proprietary, including
without limitation, business plans, technical data, product ideas, personnel,
contracts and financial information, unless:
(a) the information is or becomes publicly known
through lawful means;
(b) the information was rightfully in Recipient's
possession or part of Recipient's general knowledge prior to exploring the
possibility of a business transaction of mutual interest;
(c) the information is disclosed to Recipient without
confidential or proprietary restriction by a third party who rightfully
possesses the information (without confidential or proprietary restriction) and
did not learn of it, directly or indirectly, from Discloser; or
(d) the information is required to be disclosed
pursuant to the order of a court or government agency (in such case, the party
directed by such order shall notify the other party as soon as possible prior to
such disclosure so that such other party may elect to intervene.)
4.2. Recipient shall hold all Proprietary Information in
strict confidence and shall not disclose or transfer Proprietary Information to
any third party. Recipient shall disclose Proprietary Information only to
employees who need to know such information and who have signed agreements that
obligate them to use and keep confidential the Proprietary Information as
required under this Section 4. Recipient shall take all reasonable measures to
protect its own confidential and Proprietary Information, to protect the
confidentiality and avoid the unauthorized use, disclosure, publication, or
dissemination of Proprietary Information. No copies of Proprietary Information
may be made unless approved in writing by Discloser.
4.3. The Recipient for three (3) years from the date of its
receipt shall hold such information in trust and confidence, shall use
Proprietary Information only for the
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purpose of this Agreement, and shall not disclose such information to any third
party without prior written approval of the Discloser.
4.4. Such Proprietary Information shall remain the property of
the transmitting party and shall be returned (along with all copies thereof in
any format) upon the earlier of (i) written request or (ii) upon the receiving
party's determination that it no longer has a need for such Proprietary
Information or (iii) the termination of this Agreement.
5. Termination. This Agreement may be terminated in accordance
with the following:
5.1. By either party upon the occurrence of a material breach
of any provision of this Agreement by the other party, and the breaching party's
failure to cure such breech within thirty (30) days after receiving notice
thereof from the non-breaching party.
5.2. By either party, at its option, immediately upon notice,
if a receiver is appointed for the other party or its property; the other party
becomes insolvent or makes an assignment for the benefit of its creditors; the
other party seeks relief or if proceedings are commenced against the other
party, or on its behalf under any bankruptcy, insolvency or debtor's relief law,
and such proceedings have not been vacated or set aside within sixty (60) days
from the date of commencement thereof; or if the other party is liquidated or
dissolved.
5.3. Upon termination of this Agreement, all rights and
obligations of the parties hereunder will terminate forthwith, except as to the
continuing obligations of the parties under Sections 4, 6 and 7 and any
remaining obligation of Client under Section 12. Sections 8, 10, 13, 14 and 15
shall also survive termination. During the period between the giving of such
notice and the date of termination, each party will continue to perform its
obligations hereunder.
6. Limitation of Liability.
NEITHER PARTY SHALL BE LIABLE FOR DAMAGES RESULTING FROM LOSS OF DATA,
PROFITS, USE OF PRODUCTS, OR FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL,
PUNITIVE OR EXEMPLARY DAMAGES IN CONNECTION WITH THIS AGREEMENT OR SERVICES OR
GOODS PROVIDED HEREUNDER.
7. Intellectual Property Rights.
7.1. No license to the other party, under any trademark,
patent or copyright or applications which am now or may hereafter be owned by
the transmitting party, is either granted or implied by the conveying of
information to the receiving party. None of the information which may be
submitted or exchanged by the parties shall constitute any representation,
warranty, assurance, guarantee or inducement by either party to the other with
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respect to the infringement of trademarks, patents, copyrights or any right of
privacy, or other rights of third persons.
7.2. Neither party shall acquire directly or by implication
any rights in the background patents and inventions of the other party hereto,
including, but not limited to, inventions described and claimed in applications
for U.S. patents filed prior to the date of this Agreement. In addition, neither
party shall acquire directly or by implication any rights in data or copyrights
in works of authorship, including software, firmware or other forms of computer
programs, created by one or more employees of one of the parties hereto during
the term of this Agreement shall be the sole property of that party. Copies of
data and works of authorship released by the party owning such to the other
party hereto (a) shall be treated by the recipient in accordance with Section 4
"Proprietary Information" of this Agreement and (b) shall be treated by
Recipient in accordance with the applicable U.S. Copyright Laws.
7.3. Any inventions or discoveries made or conceived by one or
more employees of one of the parties hereto during the term of this Agreement
shall be the sole property of that party. In the event of any invention made
jointly by one or more employees of one party with one or more employees of the
other party in the course of work under this Agreement, the parties shall
establish their respective rights by negotiations between them.
8. No Additional Warranties. Except as expressly set forth in
this Agreement, VRI hereby specifically disclaims any representations or
warranties, express or implied, regarding the consulting services, including any
implied warranty of merchantability or fitness for a particular purpose and
implied warranties arising from a course of dealing or course of performance.
9. Notices. Except as otherwise provided herein, any notice or
communication to be given pursuant to the terms of this Agreement must be in
writing. Notice will be deemed given when received if: (a) delivered personally;
(b) sent by confirmed telex or facsimile; (c) sent by commercial overnight
courier with written verification of receipt; (d) sent by registered or
certified mail/return receipt requested postage prepaid; or (e) sent by
electronic mail. Such notice shall be treated as having been received upon the
earlier of actual receipt or three (3) days after posting.
If to Client:
Worldwide Wireless Systems Inc.
25 Broad Street
Suite 16M
New York, New York 10004
Attn: David E. Padilla, President and CEO
Phone: (212) 509-2119
Fax No.: (212) 509-2152
E-mail: xjpadilla@worldnet.att.com
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With a copy to:
Morrison & Foerster LLP
1290 Avenue of the Americas
New York, New York 10104-0050
Attn: Mark L. Mandel, Esq.
Phone: (212) 468-8231
Fax No.: (212) 468-7900
E-mail: mmandel@mofo.com
If to VRI:
Vanguard Research, Inc.
10400 Eaton Place, Suite 450
Fairfax, VA 22030-2201
Attn: Kellie K. Banker
Phone: (703) 934-6300
Fax No.: (703) 273-9398
E-mail: kbanker@vriffx.com
or to such address, or marked to the attention of such person, as either party
may be written notice direct. Any such notice shall be considered to have been
given when personally delivered or mailed in the manner herein provided.
10. Nonsolicitation of Employees. During the term of this
Agreement and for a period of twelve (12) months after its termination, neither
party shall solicit for employment, hire or otherwise retain any employee of the
other party assigned to work on the assignments described herein without prior
written approval of the party whose employee is being considered for an offer or
hire.
11. Assignment of the Agreement. VRI shall not assign its rights
and/or obligations under this Agreement without the prior written consent of
Client, such consent not be unreasonably withheld.
12. Billings.
12.1. Invoices are to be submitted twice a month on the 1st
and 15th day of each month, including any reasonable expenses. Invoices are due
and payable within ten (10) days of invoice date.
12.2. All payments required by this Agreement are exclusive of
taxes, and Client shall bear and be responsible for the payment of all such
taxes, including, but not limited to, all sales, use, rental receipt, personal
property, value added, consumption, goods
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and services, or other taxes which may be levied or assessed in connection with
this Agreement, excluding taxes based on VRI's income.
12.3. Client hereby agrees to pay VRI $16,800.00 on the date
hereof as payment for the services to be completed by VRI during the month of
November.
13. Entire Agreement. With respect to the subject matter hereof,
this Agreement supersedes and cancels all prior negotiations, writings,
commitments, agreements and understandings, either oral or written, regarding
the subject matter herein, if any, between VRI and Client and contains the
entire agreement between the parties hereto and may not be modified except in a
writing signed by the duly authorized representatives of VRI and of Client.
14. Applicable Law. This Agreement is entered into under, and is
to be construed in accordance with, the laws of the State of New York, exclusive
of its choice of law principles. Any dispute, controversy or claim arising under
or relating to this Agreement shall be resolved by a state or federal court
sitting in the Borough of Manhattan in the City of New York in the State of New
York. Each party hereby waives any jurisdictional, venue or inconvenient forum
objections to such court. In any action to enforce this Agreement, the
prevailing party will be entitled to costs and attorneys' fees.
15. Section Headings and Severability. The section headings herein
are inserted for the convenience of the parties, are not a part hereof, and
shall have no effect upon the construction or interpretation of this Agreement.
In the event that any of the provisions of this Agreement shall be held by a
court or other tribunal of competent jurisdiction to be unenforceable, such
provisions shall be limited or eliminated to the minimum extent necessary so
that this Agreement shall otherwise remain in full force and effect and
enforceable.
16. Force Majeure. No party shall be liable for failure to perform
or delay in performing its obligations under this Agreement, and shall not be
deemed to be in breach of its obligations hereunder, if and to the extent and
for so long as such failure or delay in performance or breach is due to natural
disaster; wars; strikes or labor disputes; any loss or disruption of facilities;
or other cause beyond the control of such party. In the event of such, the
affected party shall promptly provide the other parties with notice of such
occurrence and shall diligently attempt to restore or continue its performance.
17. Counterparts. This Agreement may be executed in counterparts,
each of which when executed and delivered shall be deemed an original and both
of which shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on their behalf as of the date and year first above written.
WORLDWIDE WIRELESS SYSTEMS, INC.
Signature:/s/David E. Padilla
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Name: David E. Padilla
Title: President and Chief Executive Officer
VANGUARD RESEARCH, INC.
Signature:/s/Mel Chaskin
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Name: Mel Chaskin
Title: President and Chief Executive Officer
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EXHIBIT A
VRI will perform the following Services for and on behalf of Client:
1. Manage the roll out of the Internet Services (as defined in that
certain Agreement for Internet Access Services proposed to be entered into by
the Client and FreeLinQ Communications Corporation), including, but not limited
to, the following:
o Coordinate with and manage vendors, resellers, and partners
o Recommend and implement network design and solutions
o Coordinate with and develop strategic relationships with
partners
o Recommend, design, and manage build out of back office
functionality
o Develop and contract with third party vendors
2. Recommend future strategic direction for Client's new and existing
services.
3. Support Client's staff in their execution of related services.
4. Aid Client's executive staff in organizational design and
implementation.
5. Perform other business development activities/processes as defined.
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