Consulting Services Agreement – Support.com Inc.
SUPPORT.COM, INC.
CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement (“Agreement”) is made by and between
Support.com, Inc., a Delaware corporation with its principal place of business
at 1900 Seaport Blvd. 3rd Floor, Redwood City, CA 94063
(“Support.com”), and Richard Mandeberg, an individual with a residence or
principal place of business at 11671 Putter Way, Los Altos, CA 94024
(“Consultant”), and is effective as of the Employment Separation Date as
provided in the Parties153 Separation Agreement to which this Agreement is
attached, or the date of signature by both Parties below, whichever occurs last
(the “Effective Date”).
The parties agree as follows:
1. STATEMENT OF WORK FOR SERVICES.
1.1 Contract Components. Subject to the terms and conditions of this
Agreement, Consultant shall perform the services requested by Support.com as
described in the Statements of Work attached hereto as Exhibit A (the
“Services”). A Statement of Work sets forth the Services to be delivered, the
time schedules for delivery and all fees, costs and related expenses to be paid
by Support.com. The parties may enter into additional Statements of Work for
such additional consideration as the parties may mutually agree, and, if so,
each will constitute a separate contract subject to the terms and conditions of
this Agreement. Each Additional Statement of Work shall be in writing, properly
executed by the parties, reference this Agreement number, and shall be prepared
in substantially the same form as Exhibit A. Statements of Work may be amended
in a writing properly executed by the parties.
1.2 Performance. Consultant shall perform the Services in a careful,
professional, workmanlike and timely manner. In the event that the Services are
performed on Support.com or its customers153 (“End Customer”) premises, Consultant
agrees, while working on Support.com or End Customer premises, to observe all
Support.com or End Customer rules and policies, including, but not limited to
security of, access to or use of Support.com or End Customer premises or other
properties. Consultant will protect Support.com and its End Customers153
proprietary or Confidential Information as set forth in Section 3 below.
Consultant shall not remove any property of Support.com or its End Customers,
including but not limited to any Confidential Information, from Support.com or
its End Customers153 premises without the prior written consent of Support.com.
1.3 Project Management. [Deleted].
1.4 Right to Reject Consultant Employees. [Deleted.]
1.5 Subcontractors and Third Parties. Consultant shall not use
independent consultants, subcontractors or other persons other than Consultant
to perform the Services without the express written consent of Support.com.
2. TERM AND TERMINATION.
2.1 Term. This Agreement shall commence on the Effective Date and
shall continue until August 31, 2010 unless terminated earlier in accordance
with the provisions of this Section 2 or upon the mutual agreement of the
parties (the “Term”).
2.2 Termination for Convenience. [Deleted.]
2.3 Termination for Breach. If either party defaults in the
performance of any material provision of this Agreement, or of the Parties153
Separation Agreement, the non-defaulting party may terminate this Agreement upon
seven (7) days153 written notice thereof in the event the default remains uncured
or cannot be cured. Such termination will result in immediate cessation of
Consultant153s continuation of service under the Company153s stock plans and any
further payments under Section 2(a) of the Separation Agreement will cease.
Without limiting the foregoing, the Parties acknowledge and agree that if,
for example, Consultant breaches the non-disparagement provisions of the
Separation Agreement, or breaches the non-solicitation provisions of the CIIA as
attached to the Separation Agreement, then Support.com may terminate this
Consulting Agreement for cause as provided herein if the breach remains uncured
or cannot be cured.
2.4 Return of Materials; Cooperation. Upon termination of this
Agreement for any reason, Consultant shall promptly return to Support.com (i)
all Work Product (as defined in Section 3 below), software, records, materials,
equipment, drawings and documents which are owned, leased or licensed by
Support.com; and (ii) any data or documents of any nature pertaining to or
incorporating any Confidential Information of Support.com (as defined in Section
3 below), including any copies thereof, regardless of when obtained by or made
available to Consultant. Additionally, Consultant shall prepare and submit such
documentation as may be necessary to evidence the results of the Services and
the progress of Consultant in the performance of the Services.
2.5 Non-Solicitation of Support.com Employees and Contractors.
Contractor agrees that, during the term of this Agreement and for a period of
twelve (12) months thereafter, Consultant will not solicit or induce any
employee or independent contractor of Support.com to terminate or breach any
employment, contractual or other relationship with Support.com.
2.6 Survival. The termination of this Agreement for any reason shall
not terminate the obligations or liabilities of the parties under Sections 2, 3,
4 and 5, each of which shall survive any such termination.
3. PROPRIETARY INFORMATION; CONFIDENTIALITY; TRADING
RESTRICTIONS.
3.1 Confidentiality. Consultant agrees to keep confidential and not to
disclose or make any unauthorized use of any trade secrets, confidential
information, knowledge, data or other information of Support.com relating to
products, research and development activities, processes,
software, titles, concepts, know-how, designs, formulas, test data, customer
lists, business plans, marketing plans and strategies, and pricing strategies or
other subject matter pertaining to any business or research of Support.com, or
any of Support.com153s clients, customers, consultants, licensees or affiliates,
or which Consultant knows or has reason to know is considered confidential by
Support.com (collectively referred to herein as “Confidential Information”),
which Consultant may have produced, obtained, learned or otherwise acquired
during the course of rendering services to Support.com (including, but not
limited to, the Services). Consultant153s duty to maintain such Confidential
Information in confidence hereunder shall survive the termination of this
Agreement for a period of three (3) years, except to the extent that any such
Confidential Information becomes generally known in the industry through no
direct or indirect fault of Consultant. Consultant agrees to use such
Confidential Information solely in connection with the performance of Services
and for no other purpose.
3.2 Disclosure and Assignment of Inventions. All worldwide rights,
title and interest in and to the programs, systems, data, concepts, ideas or
materials conceived, produced or reduced to practice by Consultant, alone or
with others, resulting from or relating to the Services, and the improvements
and inventions made thereon, including without limitation all copyrightable or
patentable materials (collectively the “Work Product”), and all intellectual
property rights in and to the Work Product, shall belong exclusively to
Support.com. Consultant hereby assigns and transfers in perpetuity to
Support.com without further compensation all of Consultant153s worldwide rights,
title and interest in and to the Work Product, including, but not limited to,
all patent rights, copyrights, mask work rights, trade secret rights and other
proprietary rights therein. Consultant agrees to promptly disclose all Work
Product in writing to Support.com, to execute such patent, copyright and other
documents of assignment, transfer or registration, and to provide such other
assistance as Support.com may reasonably request, at Support.com153s expense, in
order to assist Support.com in obtaining, perfecting, evidencing or protecting
its rights. In the event that Support.com is unable to obtain Consultant153s
signature to any lawful and necessary document required to apply for or
prosecute any patent, copyright or other applications with respect to any Work
Product (or renewals, extensions, continuations, divisions or improvements
thereof), Consultant irrevocably designates and appoints Support.com and its
duly authorized officers and agents as Consultant153s agents and attorneys-in-fact
to act for, and on Consultant153s behalf, to execute and file any such document
with the same legal force and effect as if executed by Consultant.
3.3 Maintenance and Return of Records. Consultant agrees to keep and
maintain adequate and current written records of all Work Product (in the form
of notes, sketches, drawings and as may be specified by Support.com), which
records shall be available to and remain the sole property of Support.com at all
times. At the end of the project, the Consultant agrees to return all Work
Product, Confidential Information, notes, reports, lists and any other material
related to the project back to Support.com.
3.4 Other Obligations. Consultant acknowledges that Support.com from
time to time may have agreements with customers and other third parties which
impose obligations or restrictions on Support.com regarding inventions or
creative works made during the course of work thereunder or regarding the
confidential nature of such work. Consultant agrees to be bound by all such
obligations and restrictions, of which Consultant is informed, and to take all
action necessary to discharge the obligations of Support.com thereunder upon
notice of same from Support.com.
3.5 Rights of Others. Consultant represents and warrants to
Support.com that the Work Product or any part thereof does not and will not
infringe or misappropriate any proprietary right of any third party. Consultant
represents that Consultant153s performance of this Agreement does not, and will
not, breach any agreement to keep in confidence proprietary information,
knowledge or data acquired by Consultant in confidence or in trust prior to or
during Consultant153s association with Support.com. Consultant will not disclose
to Support.com, or induce Support.com to use, any confidential or proprietary
information or material belonging to any previous or current employer or others.
Consultant agrees not to enter into any agreement, either written or oral, in
conflict with the provisions of this Agreement.
3.6 Competitive Activities. During the period in which Consultant is
performing services for Support.com and for two (2) years thereafter, Consultant
shall not engage in any activity that is in any way competitive with the
business or demonstrably anticipated business of Support.com (including, without
limitation, rendering any services that are similar to the Services to any party
to whom Services are being rendered under this Agreement), and Consultant shall
not assist any other person or entity in competing or preparing to compete with
any business or demonstrably anticipated business of Support.com.
3.7 Trading Restrictions. During the period in which Consultant is
performing services for Support.com, Consultant agrees to comply with the
Support.com Insider Trading Policy, which is expressly incorporated herein by
this reference. The Insider Trading Policy contains several restrictions on the
trading of Support.com shares, including but not limited to, preventing
Consultant from trading in Support.com shares on material inside information and
restricting the time during which Consultant may trade to certain trading
windows throughout the calendar year.
4. LIMITATION OF LIABILITY. SUPPORT.COM SHALL NOT BE
LIABLE OR OBLIGATED WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR
UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE
THEORY FOR (I) ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE FEES PAID BY
SUPPORT.COM TO CONSULTANT HEREUNDER DURING THE TWELVE MONTH PERIOD PRIOR TO THE
CAUSE OF ACTION, OR (II) ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES
(INCLUDING, WITHOUT LIMITATION, FOR ANY LOST REVENUE, PROFITS OR DATA), OR (III)
ANY MATTER BEYOND ITS REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION
OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS
AND EXCLUSIONS MAY NOT APPLY TO CONSULTANT.
5. MISCELLANEOUS.
5.1 Notices. Any notice, demand, request or other communications
hereunder shall be in writing and shall be deemed sufficient when delivered
personally or sent by facsimile (with prompt confirmation of receipt) or upon
deposit in the U.S. mail, as certified or registered first class mail, with
postage prepaid, and addressed, if to Support.com, at its principal place of
business set forth above, Attention: Legal Department and if to Consultant, at
Consultant153s principal place of business set forth above, unless another address
shall have been designated in the manner provided in this Section 5.1.
5.2 Successors and Assigns. The rights and benefits of this Agreement
shall inure to the benefit of, and be enforceable by, Support.com153s successors
and assigns. The rights and obligations of Consultant under this Agreement may
only be assigned with the prior written consent of Support.com and will be
binding upon Consultant153s heirs, legal representatives and permitted assigns.
5.3 Further Actions. Both parties agree to execute any additional
documents and take such further action as may be reasonably necessary to carry
out the purposes of this Agreement.
5.4 Injunctive Relief. In addition to any of the other remedies
available to Support.com, Consultant agrees that Support.com and/or
Support.com153s shareholders shall be entitled to a decree of specific performance
or an injunction restraining violations of Section 3 of this Agreement. No
remedy provided herein is intended to be exclusive of any other remedy, and each
and every remedy shall be cumulative and shall be in addition to every other
remedy given hereunder or now or hereafter existing at law or in equity.
5.5 Governing Law. This Agreement shall be governed in all respects by
the substantive laws of the State of California, United States of America
(excluding conflict of laws rules) as applied to agreements entered into and to
be performed entirely within the State of California between California
residents, without regard to the U.N. Convention on Contracts for the
International Sale of Goods. Any dispute regarding this Agreement shall be
subject to the exclusive jurisdiction of the California state courts in and for
Santa Clara County, California or, if there is federal jurisdiction, the United
States District Court for the Northern District of California, and the parties
agree to submit to the personal and exclusive jurisdiction and venue of these
courts.
5.6 Attorneys Fees. In the event any legal action becomes necessary to
enforce or interpret the terms of this Agreement, the substantially prevailing
party shall be entitled, in addition to its court costs, to such reasonable
attorneys153 fees, expert witness and legal expenses as may be fixed by a court.
5.7 Severability. If any provision of this Agreement is held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remaining provisions shall continue in full force and effect.
5.8 No Continuation of Consulting beyond Term. Nothing contained
herein shall confer upon Consultant any right to continue to render services to
Support.com (including the Services) or to become employed by Support.com, and
Support.com reserves all rights to terminate Consultant153s services (including
the Services) in accordance with the provisions of Section 2.
5.9 Expenses. Each party hereto shall pay such party153s own expenses
incurred (including, without limitation, the fees of counsel) on such party153s
behalf in connection with negotiating this Agreement or any transactions
contemplated by this Agreement.
5.10 Entire Agreement. This Agreement and the Separation Agreement of
even date herewith embody the entire agreement and understanding of the parties
hereto, and supersede all prior or contemporaneous written or oral
communications or agreements between Support.com and Consultant, regarding the
subject matter hereof. This Agreement may only be amended by written agreement
between Support.com and Consultant. By signing and delivering this Agreement
and/or
any Exhibit, Attachment, Amendment, or Addendum hereto, each party will be
deemed to represent to the other that the signing party has not made any
changes to such document from the draft(s) originally provided to the other
party by the signing party, or vice versa, unless the signing party has
expressly called such changes to the other party153s attention in writing (e.g.,
by “redlining” the document or by a comment memo or e-mail).
5.11 Waivers. The failure of either party to insist upon the
performance of any of the terms, covenants, or conditions of this Agreement or
to exercise any right hereunder, shall not be construed as a waiver or
relinquishment of the future performance of any rights, and the obligations of
the party with respect to such future performance shall continue in full force
and effect.
5.12 Counterparts. This Agreement may be executed in one or more
counterparts each of which shall be an original and all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Effective Date.
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Support.com, Inc. |
Consultant: Richard Mandeberg |
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By: |
Signed: |
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Name: |
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Title: |
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EXHIBIT A TO CONSULTING AGREEMENT
STATEMENT OF WORK #1
DESCRIPTION OF SERVICES
Weekly reporting, consulting and other services with respect to the
transition of business development responsibilities to new management personnel
in a professional and positive manner, including without limitation:
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Transition for existing accounts and account relationships |
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Transition for prospective accounts and account relationships |
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Transition for existing business development team personnel |
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Orientation and support of new business development lead |
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Maintenance of positive and professional interactions with all involved, |
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Other reporting and consulting projects as reasonably requested by |
SCHEDULE
Commencing on the Effective Date and continuing weekly through the Term.
PROJECT MANAGER
Support.com Project Manager.
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Joshua Pickus |
Consultant Project Manager
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Richard Mandeberg |
DESCRIPTION OF COMPENSATION ARRANGEMENTS
Fees and Hours.
Fees are due as provided in the Parties153 Separation Agreement. Work is
estimated to involve at least 20% of FTE for Consultant based on past
employment.
Payment. As provided in the Parties153 Separation Agreement. All
consideration provided in relation to the Parties153 Separation Agreement is
inclusive of Consultant153s services as provided in this Statement of Work #1.
Consultant acknowledges and agrees that all payments made may be subject to
customary withholding for taxes as may be applicable.
Expense Reimbursement. Support.com shall reimburse Consultant for all
reasonable expenses incurred under this Agreement at Support.com153s request and
with Support.com153s prior written approval. Reimbursable expenses shall be
invoiced to Support.com on a monthly basis, together with all supporting
documentation required by Support.com, and Support.com shall pay such invoices
within thirty (30) days of receipt of invoice.
IN WITNESS WHEREOF, the parties hereto have executed this SOW #1 to the
Consulting Services Agreement (“Agreement”) as of the date set forth below and
acknowledge that this SOW #1 hereby incorporates and is otherwise governed by
the terms set forth in the Agreement, to which this SOW #1 is attached.
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Support.com, Inc. |
Consultant: Richard Mandeberg |
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Signed: |
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