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SOURCEFORGE, INC.
CONSULTING AGREEMENT
This
Consulting Agreement (“
Agreement ”)
is entered into as of June 9, 2008 by and between SourceForge, Inc.
(the “
Company ”)
and Ali Jenab (“
Consultant ”).
The Company desires to retain Consultant as an independent
contractor to perform consulting services for the Company, and
Consultant is willing to perform such services, on the terms
described below. In consideration of the mutual promises contained
herein, the parties agree as follows:
1
.
Services and Compensation .
Consultant agrees to perform for the Company the services described
in
Exhibit A (the
“
Services ”),
and the Company agrees to pay Consultant the compensation described
in
Exhibit A for
Consultant’s performance of the Services.
2.
Confidentiality .
A
.
Definition .
“
Confidential Information ”
means any non-public information that relates to the actual or
anticipated business or research and development of the Company,
technical data, trade secrets or know-how, including, but not
limited to, research, product plans or other information regarding
Company’s products or services and markets therefor, customer
lists and customers (including, but not limited to, customers of
the Company on whom Consultant called or with whom Consultant
became acquainted during the term of this Agreement), software,
developments, inventions, processes, formulas, technology, designs,
drawing, engineering, hardware configuration information,
marketing, finances or other business information. Confidential
Information does not include information that (i) is known to
Consultant at the time of disclosure to Consultant by the Company
as evidenced by written records of Consultant, (ii) has become
publicly known and made generally available through no wrongful act
of Consultant or (iii) has been rightfully received by
Consultant from a third party who is authorized to make such
disclosure.
B.
Nonuse and Nondisclosure .
Consultant will not, during or subsequent to the term of this
Agreement, (i) use the Confidential Information for any
purpose whatsoever other than the performance of the Services on
behalf of the Company or (ii) disclose the Confidential
Information to any third party. Consultant agrees that all
Confidential Information will remain the sole property of the
Company. Consultant also agrees to take all reasonable precautions
to prevent any unauthorized disclosure of such Confidential
Information. Without the Company’s prior written approval,
Consultant will not directly or indirectly disclose to anyone the
existence of this Agreement or the fact that Consultant has this
arrangement with the Company.
C.
Former Client Confidential Information .
Consultant agrees that Consultant will not, during the term of this
Agreement, improperly use or disclose any proprietary information
or trade secrets of any former or current employer of Consultant or
other person or entity with which Consultant has an agreement or
duty to keep in confidence information acquired by Consultant, if
any. Consultant also agrees that Consultant will not bring onto the
Company’s premises any unpublished document or proprietary
information belonging to any such employer, person or entity unless
consented to in writing by such employer, person or
entity.
D.
Third Party Confidential Information .
Consultant recognizes that the Company has received and in the
future will receive from third parties their confidential or
proprietary information subject to a duty on the Company’s
part to maintain the confidentiality of such information and to use
it only for certain limited purposes. Consultant agrees that,
during the term of this Agreement and thereafter, Consultant owes
the Company and such third parties a duty to hold all such
confidential or proprietary information in the strictest confidence
and not to disclose it to any person, firm or corporation or to use
it except as necessary in carrying out the Services for the Company
consistent with the Company’s agreement with such third
party.
E.
Return of Materials .
Upon the termination of this Agreement, or upon Company’s
earlier request, Consultant will deliver to the Company all of the
Company’s property, including but not limited to all
electronically stored information and passwords to access such
property, or Confidential Information that Consultant may have in
Consultant’s possession or control.
3.
Ownership .
A.
Assignment .
Consultant agrees that all copyrightable material, notes, records,
drawings, designs, inventions, improvements, developments,
discoveries and trade secrets conceived, discovered, developed or
reduced to practice by Consultant, solely or in collaboration with
others, during the term of this Agreement that relate in any manner
to the business of the Company that Consultant may be directed to
undertake, investigate or experiment with or that Consultant may
become associated with in work, investigation or experimentation in
the Company’s line of business in performing the Services
under this Agreement (collectively, “
Inventions ”),
are the sole property of the Company. Consultant also agrees to
assign (or cause to be assigned) and hereby assigns fully to the
Company all Inventions and any copyrights, patents, mask work
rights or other intellectual property rights relating to all
Inventions.
B.
Further Assurances .
Consultant agrees to assist Company, or its designee, at the
Company’s expense, in every proper way to secure the
Company’s rights in Inventions and any copyrights, patents,
mask work rights or other intellectual property rights relating to
all Inventions in any and all countries, including the disclosure
to the Company of all pertinent information and data with respect
to all Inventions, the execution of all applications,
specifications, oaths, assignments and all other instruments that
the Company may deem necessary in order to apply for and obtain
such rights and in order to assign and convey to the Company, its
successors, assigns and nominees the sole and exclusive right,
title and interest in and to all Inventions, and any copyrights,
patents, mask work rights or other intellectual property rights
relating to all Inventions. Consultant also agrees that
Consultant’s obligation to execute or cause to be executed
any such instrument or papers shall continue after the termination
of this Agreement.
C.
Pre-Existing Material s.
Subject to
Section 3.A ,
Consultant agrees that if, in the course of performing the
Services, Consultant incorporates into any Invention developed
under this Agreement any pre-existing invention, improvement,
development, concept, discovery or other proprietary information
owned by Consultant or in which Consultant has an interest,
(i) Consultant will inform Company, in writing before
incorporating such invention, improvement, development, concept,
discovery or other proprietary information into any Invention, and
(ii) the Company is hereby granted a nonexclusive,
royalty-free, perpetual, irrevocable, worldwide license to make,
have made, modify, use and sell such item as part of or in
connection with such Invention. Consultant will not incorporate any
invention, improvement, development, concept, discovery or other
proprietary information owned by any third party into any Invention
without Company’s prior written permission.
D.
Attorney-in-Fact .
Consultant agrees that, if the Company is unable because of
Consultant’s unavailability, dissolution, mental or physical
incapacity, or for any other reason, to secure Consultant’s
signature for the purpose of applying for or pursuing any
application for any United States or foreign patents or mask work
or copyright registrations covering the Inventions assigned to the
Company in
Section 3.A ,
then Consultant hereby irrevocably designates and appoints the
Company and its duly authorized officers and agents as
Consultant’s agent and attorney-in-fact, to act for and on
Consultant’s behalf to execute and file any such applications
and to do all other lawfully permitted acts to further the
prosecution and issuance of patents, copyright and mask work
registrations with the same legal force and effect as if executed
by Consultant.
4.
Conflicting Obligations .
A.
Conflicts .
Consultant certifies that Consultant has no outstanding agreement
or obligation that is in conflict with any of the provisions of
this Agreement or that would preclude Consultant from complying
with the provisions of this Agreement. Consultant will not enter
into any such conflicting agreement during the term of this
Agreement. Consultant’s violation of this
Section 4.A will
be considered a material breach under
Section 6.B .
B.
Substantially Similar Designs .
In view of Consultant’s access to the Company’s trade
secrets and proprietary know-
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