Exhibit 99.2
SumTotal Systems,
Inc.
INDEPENDENT CONTRACTOR
AGREEMENT
Contractor’s Name: Donald E.
Fowler
Contractor’s Federal Tax ID
Number:
Type of Business Entity:
AGREEMENT
This Independent Contractor Agreement (this
“Agreement”) is made and entered into as of
October 25, 2005 (the “Effective Date”) by the
above-named Contractor with SUMTOTAL SYSTEMS, INC., a Delaware
corporation, including its wholly-owned subsidiaries. In
consideration of the covenants and conditions hereinafter set
forth, SumTotal Systems and Contractor agree as follows:
1. Definitions.
For purposes of this Agreement, the following
definitions shall apply:
(a) “SumTotal Systems”
means SumTotal Systems, Inc., a Delaware corporation, of Mountain
View, California, and its wholly-owned subsidiaries, successors and
assigns.
(b) “Contractor” means
the above-named contractor, its successors and assigns, and
includes without limitation its officers, employees, directors,
shareholders, agents and representatives.
(c) “Worker(s)” means
the individual or individuals who, on behalf of Contractor, provide
the actual services to SumTotal Systems under this Agreement. If
Contractor is an unincorporated sole proprietor, then the term
“Worker(s)” includes the individual who is the sole
proprietor of Contractor. If Contractor is a legal entity, then the
term “Worker(s)” means the employees or independent
contractors of Contractor who provide the actual services to
SumTotal Systems pursuant to this Agreement.
(d) “Confidential
Information” means any type of information or material
disclosed to or known by Contractor or any of the Worker(s) as a
consequence of or through Contractor’s retention by SumTotal
Systems (including information conceived, originated, discovered,
or developed in whole or in part by Contractor or any of its
Worker(s)), which is not generally known by non-SumTotal Systems
personnel and including but not limited to information which
relates to research, development, trade secrets, know how,
inventions, technical data, software, manufacturing, purchasing,
accounting, engineering, marketing, merchandising and selling,
business plans or strategies, and information entrusted to SumTotal
Systems or its principal officers or employees by third parties.
Confidential Information also includes any data or business or
financial books, records or other information of or pertaining to
SumTotal Systems. INFORMATION GENERALLY KNOWN OR READILY
ASCERTAINABLE BY PROPER MEANS AT OR AFTER THE TIME THAT CONTRACTOR
OR THE WORKER(S) FIRST LEARN OF SUCH INFORMATION, OR GENERAL
INFORMATION OR KNOWLEDGE WHICH CONTRACTOR OR THE WORKER(S) WOULD
HAVE LEARNED IN THE COURSE OF SIMILAR RETENTION OR WORK ELSEWHERE
IN THE TRADE, SHALL NOT BE DEEMED TO BE CONFIDENTIAL INFORMATION.
In any dispute between SumTotal Systems and Contractor over whether
information is Confidential Information or not, it shall be
Contractor’s burden to show that such information is not
Confidential Information.
(e) “Developments” means
original works of authorship, discoveries, inventions, concepts,
ideas, plans, proposals, improvements to existing technology and
all other subject matter ordinarily comprehended by the term
“development,” which, in whole or in part, Contractor
or the Worker(s) make, conceive, develop, discover, reduce to
practice or fix in a tangible medium of expression, alone or with
others, if the Development results from any services that
Contractor or the Worker(s) provide to SumTotal Systems or involves
the use or assistance of SumTotal Systems’ facilities,
materials, personnel or Confidential Information.
“Developments” need not be patented, trademarked, or
copyrighted, and includes but is not limited to computer programs,
product documentation, processes, machines, products, compositions
of matter, formulae, algorithms, techniques, advertising,
promotional or public relations plans, strategies or campaigns and
any written or tangible expression relating thereto.
“Developments” also includes any original works of
authorship, discoveries, inventions, concepts, ideas, plans,
proposals and improvements to existing technology that Contractor
or the Worker(s) bring to SumTotal Systems for use in the course of
SumTotal Systems’ business or for incorporation into any
Developments that belong to SumTotal Systems.
2. Results, Deliverables and
Performance.
Contractor shall achieve the results and provide
the deliverables and/or services set forth in each statement of
work (each a “Statement of Work”) similar to that which
is attached as Exhibit A in accordance with the terms and
conditions of this Agreement, and on the price, delivery dates and
specifications described in each Statement of Work. Both parties
shall execute each Statement of Work and each is incorporated
herein by this reference. The terms
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of this Agreement will control over any
conflicting terms in the Statements of Work. Contractor may
delegate the performance of specific duties hereunder to the
Worker(s) unless otherwise prohibited by this Agreement, but
Contractor shall at all times remain solely responsible for
fulfilling the duties and other obligations imposed on Contractor
by this Agreement. Contractor and the Worker(s) shall not be
subject to SumTotal Systems’ control or direction over the
performance of services pursuant to this Agreement. SumTotal
Systems shall be concerned only with the results accomplished and
the deliverables provided, not with the details and methods of
Contractor’s or the Worker(s)’ performance. All
services to be performed by Contractor and Worker(s) are to be
performed at SumTotal Systems’ or Contractor’s premises
or at such other location as may be determined by SumTotal Systems.
Contractor acknowledges that, unless otherwise agreed to in
writing, SumTotal Systems will not provide facilities or premises
for Contractor’s use.
3. Delivery and Payment Terms.
Time is of the essence in the performance of
services hereunder. Contractor shall pay all expenses incident to
providing services under this Agreement, and SumTotal Systems will
not reimburse any of those expenses, except to the extent it may
expressly agree otherwise in a Statement of Work. SumTotal
Systems’ only payment obligation is to Contractor. SumTotal
Systems has no obligation to make any payments of any kind to any
of the individual Worker(s). SumTotal agrees to pay Contractor
under the terms set forth in the applicable Statement of
Work.
4. Obligations of Contractor Regarding
Developments.
(a) Disclosure and Assignment
. Contractor shall inform SumTotal Systems promptly and fully in
writing of all Developments. Without additional or further
consideration, Contractor shall (i) apply, at SumTotal
Systems’ request and expense, for United States and foreign
copyrights, patents, utility models and other legal protection of
intellectual property either in Contractor’s name, the
Worker(s)’ name(s) or otherwise as SumTotal Systems shall
direct; (ii) assign and do hereby assign to SumTotal Systems
all of Contractor’s rights to Developments, and to United
States and foreign copyrights, patents, patent applications,
utility models and other legal protection of intellectual property
granted upon such Developments, and hereby agree that SumTotal
Systems and/or its authorized agent shall have full control over
all such legal protection of intellectual property, including
without limitation the right to amend or abandon the same;
(iii) sign and deliver promptly to SumTotal Systems such
written instruments, testify in any legal proceedings, and do such
other acts, as may be necessary or appropriate in the opinion of
SumTotal Systems to secure and maintain for SumTotal Systems
exclusive rights in United States and foreign copyrights, patents,
patent applications, utility models and other legal protection of
intellectual property for all Developments and (iv) waive and
hereby do waive any moral rights Contractor has or may have in the
Developments.
(b) Work Made for Hire . It
is agreed that all work produced by Contractor and the Worker(s)
pursuant to this Agreement shall be considered “work made for
hire” as defined in 17 U.S.C. § 101. All
copyrights in any copyrightable work that does not meet the
requirements to be a work made for hire are hereby assigned by
Contractor to SumTotal Systems effective immediately upon the work
being fixed and the copyright coming into being.
(c) Statutory Notice . The
parties acknowledge that Contractor shall be and act as an
independent contractor in its performance under this Agreement, and
that neither Contractor nor the Worker(s) are employees of SumTotal
Systems. Contractor is hereby notified that, notwithstanding
anything else that may be contained in this Agreement to the
contrary, the assignment of inventions in this Agreement does not
apply to inventions for which no equipment, supplies, facilities,
or trade secret information of SumTotal Systems was used and which
were developed entirely on Contractor’s or the
Worker(s)’ own time, unless (a) the invention relates
(i) directly to the business of SumTotal Systems, or
(ii) to SumTotal Systems’ actual or demonstrably
anticipated research or development, or (b) the invention
results from any work performed by Contractor or the Worker(s) for
the SumTotal Systems. Contractor acknowledges that all Developments
will necessarily result from services performed by Contractor or
the Worker(s) for SumTotal Systems, and that all Developments also
will necessarily relate to SumTotal Systems’ business and/or
its actual or anticipated research or development. Contractor
therefore agrees that SumTotal Systems will own all rights in all
Developments, regardless of how Contractor or the Worker(s) may be
classified in the future by a court, administrative agency,
settlement or otherwise.
5. Rights of SumTotal Systems Regarding
Developments.
SumTotal Systems shall have the exclusive right
to all Developments, without additional or further consideration to
Contractor, including but not limited to the right to own, make,
use, sell, have made, rent, lease or lend, copy, prepare derivative
works of, perform or display publicly all Developments.
6. Confidentiality.
The parties recognize that, in performing
services pursuant to this Agreement, Contractor possibly may obtain
Confidential Information about SumTotal Systems, or confidential
information about other publicly traded companies. Similarly,
during the term of this Agreement, Contractor possibly may have or
obtain confidential, proprietary or trade secret information that
belongs to third parties (including third parties who have retained
or employed Contractor or the Worker(s)). Contractor therefore
agrees to the following:
(a) SumTotal Systems’
Confidential Information . Contractor and the Worker(s) shall
maintain all Confidential Information in the strictest confidence,
and shall take all necessary precautions needed to preserve the
confidentiality of Confidential Information. Except as
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required in Contractor’s duties to
SumTotal Systems, Contractor and the Worker(s) shall never directly
or indirectly use, disseminate, lecture upon, publish articles
concerning, make known, or otherwise disclose or make available to
any person, firm, corporation or other entity not confidentially
bound to SumTotal Systems, any Confidential Information without
written permission from SumTotal Systems. If Contractor or any of
the Worker(s) is served with any subpoena or other compulsory
judicial or administrative process calling for production of
Confidential Information, Contractor will immediately notify
SumTotal Systems in order that SumTotal Systems may take such
action as it deems necessary to protect its interest.
(b) Insider Trading .
Contractor understands that confidential information about SumTotal
Systems or other publicly traded companies may be considered
material nonpublic information under the securities laws.
Cont
