Exhibit 10.10
VIRNETX, INC.
MASTER CONSULTING AGREEMENT
This Consulting Agreement (the “Agreement”) is made as
of February 23, 2006 by and between VirnetX, Inc., a Delaware
corporation (the “ Company ”), and Magenic
Technologies, Inc. (“ Consultant ”).
1.
Consulting Relationship . During the term of
this Agreement, Consultant will provide consulting services to the
Company as described on Exhibit A attached to this Agreement
(the “ Services ”). Consultant represents
that Consultant is duly licensed (as applicable) and has the
qualifications, the experience and the ability to properly perform
the Services. Consultant shall use Consultant’s best
efforts to perform the Services such that the results are
satisfactory to the Company.
2.
Fees . As consideration for the Services to be
provided by Consultant and other obligations, the Company shall pay
to Consultant the amounts specified in Exhibit A attached to this
Agreement at the times specified therein.
3.
Expenses . Consultant shall not be authorized
to incur on behalf of the Company any expenses and will be
responsible for all expenses incurred while performing the Services
except as expressly specified in Exhibit A unless otherwise
agreed to by the Company’s President, which consent shall be
evidenced in writing for any expenses in excess of $1,000. As
a condition to receipt of reimbursement, Consultant shall be
required to submit to the Company reasonable evidence that the
amount involved was both reasonable and necessary to the Services
provided under this Agreement.
4.
Term and Termination . Consultant shall serve
as a consultant to the Company for a period specified in Exhibit
A ; provided however the Consulting Relationship shall
terminate prior to such date if (a) Consultant completes the
provision of the Services to the Company under this Agreement, or
(b) Consultant shall have been paid the maximum amount of
consulting fees as provided in Exhibit A.
Notwithstanding the above, either party may terminate this
Agreement at any time upon ten days’ written notice. In
the event of such termination, Consultant shall be paid for any
portion of the Services that have been performed prior to the
termination.
Should either party default in the performance of this Agreement or
materially breach any of its obligations under this Agreement,
including but not limited to Consultant’s obligations under
the Confidential Information and Invention Assignment Agreement
between the Company and Consultant referenced below, the
non-breaching party may terminate this Agreement immediately if the
breaching party fails to cure the breach within 20 business days
after having received written notice by the non-breaching party of
the breach or default.
5.
Independent Contractor . Consultant’s
relationship with the Company will be that of an independent
contractor and not that of an employee.
(a)
Method of Provision of Services . Consultant
shall be solely responsible for determining the method, details and
means of performing the Services. Consultant may, at
Consultant’s own expense, employ or engage the services of
such employees, subcontractors, partners or agents, as Consultant
deems necessary to perform the Services (collectively, the “
Assistants ”). The Assistants are not and shall
not be employees of the Company, and Consultant shall be wholly
responsible for the professional performance of the Services by the
Assistants such that the results are satisfactory to the Company.
Consultant shall expressly advise the Assistants of the terms
of this Agreement, and shall require each Assistant to execute and
deliver to the Company a Confidential Information and Invention
Assignment Agreement substantially in the form attached to this
Agreement as Exhibit B (the “ Confidentiality
Agreement ”).
(b)
No Authority to Bind Company . Consultant
acknowledges and agrees that Consultant and its Assistants have no
authority to enter into contracts that bind the Company or create
obligations on the part of the Company without the prior written
authorization of the Company.
(c)
No Benefits . Consultant acknowledges and
agrees that Consultant and its Assistants shall not be eligible for
any Company employee benefits and, to the extent Consultant
otherwise would be eligible for any Company employee benefits but
for the express terms of this Agreement, Consultant (on behalf of
itself and its employees) hereby expressly declines to participate
in such Company employee benefits.
(d)
Withholding; Indemnification . Consultant shall
have full responsibility for applicable withholding taxes for all
compensation paid to Consultant or its Assistants under this
Agreement, and for compliance with all applicable labor and
employment requirements with respect to Consultant’s
self-employment, sole proprietorship or other form of business
organization, and with respect to the Assistants, including state
worker’s compensation insurance coverage requirements and any
U.S. immigration visa requirements. Consultant agrees to
indemnify, defend and hold the Company harmless from any liability
for, or assessment of, any claims or penalties with respect to such
withholding taxes, labor or employment requirements, including any
liability for, or assessment of, withholding taxes imposed on the
Company by the relevant taxing authorities with respect to any
compensation paid to Consultant or its Assistants.
6.
Supervision of Consultant’s Services .
All of the services to be performed by Consultant, including
but not limited to the Services, will be as agreed between
Consultant and the Company’s President or supervisor
designated by the President. Consultant will be required to
report to the President or supervisor designated by the President
concerning the Services performed under this Agreement. The
nature and frequency of these reports will be left to the
discretion of the President or supervisor designated by the
President.
7.
Consulting or Other Services for Competitors .
Consultant represents and warrants that Consultant does not
presently perform or intend to perform, during the term of the
Agreement, consulting or other services for, or engage in or intend
to engage in an employment relationship with, companies who
businesses or proposed businesses in any way involve products or
services which would be competitive with the Company’s
products or services, or those products or services proposed or in
development by the Company during the term of the Agreement (except
for those companies, if any, listed on Exhibit C attached
hereto). If, however, Consultant decides to do so, Consultant
agrees that, in advance of accepting such work, Consultant will
promptly notify the Company in writing, specifying the organization
with which Consultant proposes to consult, provide services, or
become employed by and to provide information sufficient to allow
the Company to determine if such work would conflict with the terms
of this Agreement, including the terms of the Confidentiality
Agreement, the interests of the Company or further services which
the Company might request of Consultant. If the Company
determines that such work conflicts with the terms of this
Agreement, the Company reserves the right to terminate this
Agreement immediately. In no event shall any of the Services
be performed for the Company at the facilities of a third party or
using the resources of a third party.
8.
Confidentiality Agreement . Consultant shall
sign, or has signed, a Confidentiality Agreement, on or before the
date Consultant begins providing the Services.
9.
Conflicts with this Agreement . Consultant
represents and warrants that neither Consultant nor any of the
Assistants is under any pre-existing obligation in conflict or in
any way inconsistent with the provisions of this Agreement.
Consultant represents and warrants that Consultant’s
performance of all the terms of this Agreement will not breach any
agreement to keep in confidence proprietary information acquired by
Consultant in confidence or in trust prior to commencement of this
Agreement. Consultant warrants that Consultant has the right
to disclose and/or or use all ideas, processes, techniques and
other information, if any, which Consultant has gained from third
parties, and which Consultant discloses to the Company or uses in
the course of performance of this Agreement, without liability to
such third parties. Notwithstanding the foregoing, Consultant
agrees that Consultant shall not bundle with or incorporate into
any deliveries provided to the Company herewith any third party
products, ideas, processes, or other techniques, without the
express, written prior approval of the Company. Consultant
represents and warrants that Consultant has not granted and will
not grant any rights or licenses to any intellectual property or
technology that would conflict with Consultant’s obligations
under this Agreement. Consultant will not knowingly infringe
upon any copyright, patent, trade secret or other property right of
any former client, employer or third party in the performance of
the Services.
10.
Miscellaneous .
(a)
Amendments and Waivers . Any term of this
Agreement may be amended or waived only with the written consent of
the Company.
(b)
Sole Agreement . This Agreement, including the
Exhibits hereto, constitutes the sole agreement of the parties and
supersedes all oral negotiations and prior writings with respect to
the subject matter hereof.
(c)
Notices . Any notice required or permitted by
this Agreement shall be in writing and shall be deemed sufficient
upon receipt, when delivered personally or by courier, overnight
delivery service or confirmed facsimile, 48 hours after being
deposited in the regular mail as certified or registered mail
(airmail if sent internationally) with postage prepaid, if such
notice is addressed to the party to be notified at such
party’s address or facsimile number as set forth below, or as
subsequently modified by written notice.
(d)
Choice of Law . The validity, interpretation,
construction and performance of this Agreement shall be governed by
the laws of the State of California, without giving effect to the
principles of conflict of laws.
(e)
Severability . If one or more provisions of
this Agreement are held to be unenforceable under applicable law,
the parties agree to renegotiate such provision in good faith.
In the event that the parties cannot reach a mutually
agreeable and enforceable replacement for such provision, then (i)
such provision shall be excluded from this Agreement, (ii) the
balance of the Agreement shall be interpreted as if such provision
were so excluded and (iii) the balance of the Agreement shall be
enforceable in accordance with its terms.
(f)
Counterparts . This Agreement may be executed
in counterparts, each of which shall be deemed an original, but all
of which together will constitute one and the same instrument.
(g)
Advice of Counsel . EACH PARTY ACKNOWLEDGES
THAT, IN EXECUTING THIS AGREEMENT, SUCH PARTY HAS HAD THE
OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL,
