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Exhibit 10.1 CONSULTING AGREEMENT
This Consulting Agreement
("Agreement") is made and entered into as of the 26th day of
August, 2008, by and between Vermillion, Inc. (the
"Company"), and Richard G. Taylor ("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 terms set forth more fully
below. In consideration of the mutual promises contained herein,
the parties hereto (the "Parties") agree as follows:
1. SERVICES AND
COMPENSATION
(a) Consultant
agrees to perform for the Company the services ("Services")
described in Exhibit A, attached hereto.
(b) The
Company agrees to pay Consultant the compensation set forth in
Exhibit A for the performance of the Services.
2.
CONFIDENTIALITY
(a)
Definition . "Confidential Information" means any
information, technical data, trade secrets or know-how that
Consultant knows or should know to be considered to be proprietary
by the Company, including, but not limited to, research, product
plans, products, services, suppliers, customer lists and customers,
prices and costs, markets, software, developments, inventions,
laboratory notebooks, processes, formulas, technology, designs,
drawings, engineering, hardware configuration information,
marketing, licenses, finances, compensation packages, budgets or
other business information disclosed by the Company either directly
or indirectly in writing, orally or by drawings or through
Consultant’s allowed observation of parts or equipment, or
through creation by Consultant in the course of providing the
Services during the term of this Agreement. Consultant also
understands that Confidential Information includes, but is not
limited to, information pertaining to any aspects of the
Company’s business that is either information not known by
actual or potential competitors of the Company or is proprietary
information of the Company or its customers or suppliers, whether
of a technical nature or otherwise. Further, Confidential
Information, as defined herein, may include, but is not limited to,
information disclosed to Consultant prior to the formal
incorporation of the Company and information disclosed to the
Company by third parties. Confidential Information does not include
information that Consultant can establish (i) was publicly
known and made generally available in the public domain prior to
the time of disclosure to Consultant by the Company;
(ii) becomes publicly known and made generally available after
disclosure to Consultant by the Company through no wrongful action
or inaction of Consultant; (iii) is in the possession of
Consultant, without confidentiality restrictions, at the time of
disclosure to Consultant by the Company as shown by
Consultant’s files and records immediately prior to the time
of disclosure; or (iv) has been approved for release by the
Company’s prior written authorization.
(b)
Non-Use and Non-Disclosure . Consultant will not, during or
subsequent to the term of this Agreement, use the Company’s
Confidential Information for any purpose whatsoever other than the
performance of the Services on behalf of the Company. Consultant
will not, during or subsequent to the term of this Agreement,
disclose the Company’s Confidential Information to any third
party. Consultant shall not reverse engineer, disassemble or
decompile any prototypes, software or other tangible objects, that
embody the Company’s Confidential Information. Consultant
further agrees to take all reasonable precautions to prevent any
unauthorized disclosure of such Confidential Information including,
but not limited to, having each employee of Consultant, if any,
with access to any Confidential Information, execute a
nondisclosure agreement containing provisions no less favorable to
the Company and protective of Confidential Information than those
contained in this Agreement.
Consultant shall not make any copies of Confidential Information
unless Consultant has received prior written approval for such
action from the Company; and in such event, Consultant shall
reproduce on any such approved copies, any of Company’s
proprietary rights and confidentiality notices in the same manner
in which such notices were set forth in or on the original.
Consultant shall immediately notify the Company in the event of any
unauthorized use or disclosure of Confidential Information.
(c)
Former Employer’s Confidential Information .
Consultant agrees that Consultant will not, during the term of this
Agreement, improperly use, disclose, or induce the Company to use
any proprietary information or trade secrets of any former or
concurrent employer or other person or entity, and that Consultant
will not bring onto the premises of the Company 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. Consultant will indemnify the Company and hold it
harmless from and against all claims, liabilities, damages and
expenses, including reasonable attorneys fees and costs of suit,
arising out of or in connection with any violation or claimed
violation of a third party’s rights resulting in whole or in
part from the Company’s use of the work product of Consultant
under this Agreement.
(d)
Third Party Confidential Information . Consultant recognizes
that the Company has received and in the future will receive
confidential or proprietary information of third parties 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 Consultant owes the Company and
such third parties, during the term of this Agreement and
thereafter, a duty to hold all such confidential or proprietary
information in the strictest confidence and not to disclose it to
any person, firm, corporation or other entity 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 . All documents and other tangible
objects containing or representing Confidential Information and all
copies thereof that are in the possession of Consultant shall be
and remain the property of the Company, and Consultant shall
promptly return such Confidential Information and all copies
thereof to the Company upon termination of this Agreement or upon
the Company’s earlier request.
3. OWNERSHIP
(a)
Assignment . Consultant agrees that all copyrightable
material, notes, records, drawings, designs, inventions,
improvements, developments, discoveries and trade secrets
(collectively, "Inventions") conceived, made or discovered by
Consultant, solely or in collaboration with others, during the
period 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
line of business of Company in performing the Services hereunder,
are the sole property of the Company. In addition, any Inventions
made by Consultant that constitute copyrightable subject matter
shall be considered "works made for hire" as that term is defined
in the United States Copyright Act. Consultant hereby assigns fully
(and agrees to further assign or cause to be assigned, as necessary
to effect such full assignment) to the Company all Inventions and
any copyrights, patents, mask work rights or other intellectual
property rights relating thereto.
(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 the Inventions and any
copyrights, patents, mask work rights or other intellectual
property rights relating thereto in any and all countries,
including in the disclosure to the Company of all pertinent
information and data with respect thereto, the execution of all
applications, specifications, oaths, assignments and all other
instruments that the Company shall 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 such Inventions, and
any copyrights, patents, mask work rights or other intellectual
property rights relating thereto. Consultant further agrees that
Consultant’s obligation to execute or cause to be executed
any such instrument or papers, when it is in Consultant’s
power to do so, shall continue after the termination of this
Agreement.
(c)
Pre-Existing Materials . Consultant
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