\n Address for Notice REVOLUTIONARY SOFTWARE, INC.
\n —————— a California corporation
\n Revolutionary Software, Inc.
\n 131 Rathburn Way
\n Santa Cruz, CA 95061
\n ATTN: Evan Schaffer
\n Fax: 408 427 0942
\n By: \/s\/ EVAN SCHAFFER
\n ————————–
\n Name: Evan Schaffer, President<\/p>\n Address for Notice XOOM, INC.
\n —————— a Delaware corporation
\n 433 California Street, Suite 910
\n San Francisco, CA 94104
\n Fax: (415) 445-2526
\n By: \/s\/ LAURENT MASSA
\n ————————–
\n With a copy to: Laurent Massa, President<\/p>\n
Morrison & Foerster
\n 425 Market Street
\n San Francisco, CA 94105
\n ATTN: Bruce A. Mann, Esq.<\/p>\n
<\/c><\/s><\/caption>\n<\/table>\n
16<\/p>\n
SCHEDULE 4.6(B)
\n —————<\/p>\n
Intellectual Property
\n ———————<\/p>\n
Revolutionary Software, Inc. is the holder and exclusive owner of the
\ncopyright for the Sitemail Web-based e-mail product currently running at
\nhttp:\/\/sitemail.com. Revolutionary Software, Inc. applied for a registered
\ncopyright on May 13, 1998.<\/p>\n
Besides Revolutionary Software, Inc., the Sitemail software is currently
\nbeing used by Global Bridges\/Robert Kohler. Global Bridges\/Robert Kohler is the
\nholder of a trademark for a Sitemail logo.<\/p>\n
17<\/p>\n
EXHIBIT A
\n ———<\/p>\n
SECURED PROMISSORY NOTE<\/p>\n
$262,500
\n June 11, 1998
\n San Francisco, California<\/p>\n
FOR VALUE RECEIVED, the undersigned XOOM, Inc. (“Debtor”) promises to pay
\nto the order of Revolutionary Software, Inc. (“RSI”), at 131 Rathburn Way, Santa
\nCruz, California ,or such other place as the holder hereof may designate in
\nwriting, the principal sum of Two Hundred Sixty-two Thousand Five Hundred
\nDollars, ($262,500), in twenty-five successive, monthly installments of Ten
\nThousand Five Hundred Dollars ($10,500) each, beginning on July 5, 1998 and
\ncontinuing on the fifth day of each succeeding calendar month through and
\nincluding July 5, 2000, at which time all amounts hereunder shall be due and
\npayable.<\/p>\n
Amounts outstanding under this Note shall bear simple interest at the
\nannual rate of five percent (5%). This Note is being delivered pursuant to an
\nAsset Purchase Agreement between RSI and Debtor of even date herewith (the
\n“Asset Purchase Agreement”), and is secured by certain Collateral pursuant to a
\nSecurity Agreement (the “Security Agreement”) executed by Debtor in favor of RSI
\nof even date herewith (as defined in such Security Agreement).<\/p>\n
At the option of Debtor, all or any portion of any unpaid sum hereunder may
\nbe prepaid without premium or penalty at any time or from time to time after the
\ndate hereof.<\/p>\n
This Note is nonrecourse against Debtor, and the sole remedy of RSI holder
\nshall be against the Collateral. If RSI shall at any time take action to
\nenforce the collection of the indebtedness evidenced by this Note, RSI shall
\nproceed to foreclose under or otherwise enforce the Security Agreement (and no
\ndeficiency judgment shall be sought in connection with any such foreclosure)
\ninstead of instituting suit upon this Note or a provision thereof. If as a
\nresult of such foreclosure and the sale of the Collateral under the Security
\nAgreement, a lesser sum is realized therefrom than the amount then due and owing
\nunder this Note, Debtor shall have no liability therefor, and RSI shall never
\ninstitute any action, suit, claim or demand at law or in equity against Debtor
\nfor or on account of such deficiency.<\/p>\n
This Note is subject to a right of offset in accordance with Section 9.2 of
\nthe Asset Purchase Agreement. Debtor shall have the right to offset against and
\ndeduct from all amounts otherwise payable to RSI under the terms of the this
\nNote any sums owing by RSI to Debtor pursuant to the Asset Purchase Agreement.<\/p>\n
A-1<\/p>\n
Upon a default by Debtor in making any payment of an installment when due
\nhereunder, and the continuation thereof for (10) days after written notice by
\nthe holder hereof, all of the unpaid indebtedness evidenced by this Note shall
\nbecome immediately due and payable at the option of the holder, and the holder
\nmay proceed to exercise any rights or remedies that it may have under the
\nSecurity Agreement.<\/p>\n
Debtor agrees that if any legal action is necessary to enforce or collect
\nthis Note, the prevailing party shall be entitled to reasonable attorneys’ fees
\nin addition to any other relief to which that party may be entitled.<\/p>\n
Debtor hereby waives demand, notice, and protest hereunder.<\/p>\n
This Note shall be interpreted and enforced in all respects in accordance
\nwith the internal laws of the State of California.<\/p>\n
IN WITNESS WHEREOF, the undersigned has caused this Note to be executed by
\nits officers duly authorized to do so.<\/p>\n
DEBTOR:<\/p>\n
XOOM, INC.<\/p>\n
By:_______________________
\n Laurent Massa, President<\/p>\n
A-2<\/p>\n
EXHIBIT B<\/p>\n
Earnout Targets
\n —————<\/p>\n
1. Seller shall be entitled to 51,912 Shares if, at any time prior to May 31,
\n1999, Seller is able to scale Sitemail for use by five million (5,000,000) Xoom
\nMembers, or Seller is able, by May 31, 1999, to scale Sitemail to effectively
\nhandle the lesser of five million (5,000,000) Xoom Members or as many Xoom
\nMembers as then desire to subscribe to Sitemail, with minimal down time.<\/p>\n
2. Seller shall be entitled to 51,912 Shares if, at any time prior to May 31,
\n1999, Seller is able to integrate into Sitemail features such as a personal
\norganizer\/calendar and other comparable features which enable Xoom to maintain
\nits position relative to its competitors, i.e. HotMail, WhoWhere and iName,
\nprovided, however, that the additional features to be added will be acquired,
\nlicensed or otherwise sourced from third parties, and Consultant’s
\nresponsibilities in this area shall be to integrate and cause such software
\napplications to reasonably communicate and interact with Sitemail, and
\nConsultant shall not be responsible for the development of such features and
\napplications (i.e, calendar functions, messaging, fax, paging, etc.).<\/p>\n
B-1<\/p>\n
EXHIBIT C<\/p>\n
Security Agreement<\/p>\n
EXHIBIT D TO EXHIBIT 10.12<\/p>\n
SECURITY AGREEMENT
\n ——————<\/p>\n
This Security Agreement (“Agreement”) is made as of June 11, 1998, by XOOM,
\nInc. (“Debtor”) in favor of Revolutionary Software, Inc., a California
\ncorporation (“Secured Party”).<\/p>\n
RECITALS:
\n ——– <\/p>\n
(1) Secured Party and Debtor have entered into that certain Asset Purchase
\nAgreement as of this date (the “Asset Purchase Agreement”), pursuant to which
\nSecured Party transferred to Debtor Sitemail Application Software and all
\nrelated intellectual property.<\/p>\n
(2) Debtor has executed that certain promissory note as of this date
\npayable to Secured Party (the “Note”), which evidences Debtor’s obligation to
\npay Secured Party the balance of the purchase price of the Collateral (as
\ndefined in Section 1) and interest thereon. To secure such payment, Secured
\nParty has required Debtor to grant a security interest in the Collateral
\npursuant to the terms and conditions of this Security Agreement.<\/p>\n
NOW, THEREFORE, it is hereby agreed as follows:<\/p>\n
1. Definitions. As used in this Security Agreement:
\n ———– <\/p>\n
1.1 “Agreements” means, collectively, this Agreement, the Note and
\n ———-
\nthe Asset Purchase Agreement.<\/p>\n
1.2 “Commercial Code” means the Commercial Code of the State of
\n —————
\nCalifornia as the same may be in effect from time to time.<\/p>\n
1.3 “Collateral” means the web-based e-mail program known as
\n ———-
\n“Sitemail” and all related intellectual property and licensee rights together
\nwith any related enhancements, developments and work-in-progress owned by
\nDebtor.<\/p>\n
1.4 “Event of Default” means any event described in Section 7.
\n —————- <\/p>\n
1.5 “Lien” means any security interest, pledge, lien, claim, charge,
\n —-
\nencumbrance, of or on any of the Collateral.<\/p>\n
1.6 “Obligations” means all principal and interest due under the
\n ———–
\nNote and all attorneys’ fees incurred by Secured Party in connection with the
\ncollection or enforcement thereof, or this Agreement, and any payment
\nobligations of Debtor under that Consulting Agreement between Debtor and
\nSecured Party of even date herewith.<\/p>\n
2. Grant. Debtor hereby grants to Secured Party a security interest in
\n —–
\nthe Collateral to secure the timely payment and performance of the Obligations.<\/p>\n
3. Representations and Warranties of Debtor. Debtor hereby represents and
\n —————————————-
\nwarrants to Secured Party as follows:<\/p>\n
1<\/p>\n
3.1 Debtor is the owner of the Collateral subject to no Liens except
\nfor the Lien created by this Security Agreement, and, upon execution of this
\nAgreement evidencing the grant of the Collateral to Secured Party, Secured
\nParty shall have a first priority security interest in the Collateral subject
\nto no Liens other than the Lien created by this Agreement.<\/p>\n
3.2 There exists no condition or restriction relating to or
\naffecting the transfer of the Collateral except as provided in the Asset
\nPurchase Agreement, or under applicable federal and state commercial codes.<\/p>\n
4. Covenant of Debtor. Until termination of this Security Agreement,
\n ——————
\nDebtor further covenants that it will not create, incur or suffer to exist any
\nLien other than the Lien created by this Agreement without the prior written
\nconsent of Secured Party.<\/p>\n
5. Reasonable Care. Debtor shall be deemed to have exercised reasonable
\n —————
\ncare in the custody and preservation of the Collateral in its possession if the
\nCollateral is accorded treatment substantially equal to that which Debtor
\naccords its own intellectual property.<\/p>\n
6. Further Assurances. Each of the parties hereto agrees to execute and
\n ——————
\ndeliver all such further instruments and documents, and take all such further
\naction as may be necessary or desirable to carry out the intent of this
\nAgreement. Debtor further agrees that at any time and from time to time, at the
\nexpense of Debtor, Debtor will promptly execute and deliver all such further
\ninstruments and documents, and take all such further action, as may be necessary
\nor desirable, or that Secured Party may reasonably request, in order to perfect
\nand protect any security interest granted or purported to be granted hereby or
\nto enable Secured Party to exercise and enforce the rights and remedies
\nhereunder with respect to any Collateral.<\/p>\n
7. Events of Default.
\n —————– <\/p>\n
7.1 The occurrence of any of the following shall constitute an
\n“Event of Default” under this Agreement:<\/p>\n
(a) Failure by Debtor to pay any amount owed under the Note
\nwhen due or in the payment or performance of any of the other Obligations, if
\nsuch failure continues for a period of ten (10) days after written notice of
\nsuch failure is given to Debtor.<\/p>\n
(b) The insolvency of, the appointment of a receiver for or for
\nany of the property of, any assignment for the benefit of creditors by or
\nfiling of a petition under bankruptcy, insolvency or debtor’s relief law, or
\nfor any readjustment of indebtedness, composition or extension by or against
\nDebtor.<\/p>\n
7.2 Upon the occurrence of an Event of Default, all Obligations
\nshall, at the option of Secured Party, without demand or notice, become
\nimmediately due and payable. Secured Party shall have all of the rights and
\nremedies available under contract or applicable law, which include those of a
\nsecured party under the Commercial Code, at <\/p>\n
2<\/p>\n
law, or in equity, and the right to take possession of the Collateral (if not
\nthen in Secured Party’s possession), and sell and dispose of the same, or any
\npart thereof, at a public or private sale.<\/p>\n
7.3 It shall be deemed commercially reasonable to conduct a private
\nsale or other disposition of the Collateral even though a higher price might
\nhave been obtained for the Collateral at a public sale under compliance with
\nany applicable laws or regulations.<\/p>\n
7.4 The proceeds of any sale or disposition of the Collateral may be
\napplied by Secured Party first to the payment of expenses of collection,
\nincluding without limitation reasonable attorneys’ fees, and then to the
\npayment of the outstanding principal and accrued interest due under the Note
\nin such order of application as provided by the Note, and any balance of such
\nproceeds shall be returned to Debtor. In the event that the proceeds of any
\nsale are insufficient to satisfy the Obligations, Debtor shall have no
\nindividual or personal liability for any deficiency.<\/p>\n
8. Notices. All notices required hereunder shall be in writing and
\n ——-
\nshall be delivered pursuant to the notice provisions in the Asset Purchase
\nAgreement.<\/p>\n
9. Amendment, Etc. No amendment or waiver of any provision of this
\n —————
\nAgreement nor consent to any departure by Debtor herefrom shall in any event
\nbe effective unless the same shall be in writing and signed by Secured Party
\nand Debtor, and then such waiver or consent shall be effective only in the
\nspecific instance and for the specific purpose for which given.<\/p>\n
10. Continuing Security Interest, Assignment. This Agreement shall
\n —————————————-
\ncreate a continuing security interest in the Collateral and shall (a) remain
\nin full force and effect until indefeasible payment in full of the Obligations
\nand (b) be binding upon Secured Party and Debtor, and their successors and
\npermitted assigns. Secured Party may assign or otherwise transfer the Note to
\nany other person or entity, and such other person or entity shall thereupon
\nbecome vested with all the rights granted to Secured Party herein or
\notherwise. Debtor may not assign or transfer Debtor’s obligations under this
\nAgreement without Secured Party’s prior consent.<\/p>\n
11. Expenses and Attorneys’ Fees. Debtor shall reimburse Secured Party
\n —————————-
\nfor any and all out-of-pocket expenses, including, without limitation,
\nreasonable attorneys’ fees, paid or otherwise incurred by Secured Party in
\nconnection with the collection and enforcement of this Security Agreement or
\nthe Note.<\/p>\n
12. Entire Agreement. This Agreement, the Note and the Asset Purchase
\n —————-
\nAgreement embody the entire agreement and understanding between Debtor and
\nSecured Party relating to the Collateral and supersede any prior agreements and
\nunderstandings between Debtor and Secured Party relating to the Collateral.<\/p>\n
13. No Waiver. No waiver of any breach or default shall be deemed a
\n ———
\nwaiver of any later breach or default of the same or any other provision of this
\nAgreement. No failure or delay on the part of Secured Party in exercising any
\npower, right or privilege <\/p>\n
3<\/p>\n
under this Agreement shall operate as a waiver thereof, and no single or
\npartial exercise of any such power, right or privilege shall preclude any
\nfurther exercise thereof, or the exercise of any further power, right or
\nprivilege.<\/p>\n
14. Rights Cumulative. All rights and remedies existing under this
\n —————–
\nAgreement are cumulative to, and not exclusive of, any other rights or
\nremedies available under contract or applicable law.<\/p>\n
15. Severability. In the event that any provision of this Agreement
\n ————
\nbecomes or is declared by a court of competent jurisdiction to be illegal,
\nunenforceable or void, this Agreement shall continue in full force and effect
\nwithout such provision.<\/p>\n
16. Waiver of Notice. To the fullest extent permitted by law, Debtor
\n —————-
\nhereby waives presentment, demand, protest, notice of dishonor and all other
\nnotices and demands, as well as any applicable statute of limitations.<\/p>\n
17. Termination. This Agreement shall continue in effect until no
\n ———–
\nObligations shall be outstanding.<\/p>\n
18. Governing Law. This Agreement shall be governed by and construed in
\n ————-
\naccordance with the internal laws of the State of California.<\/p>\n
IN WITNESS WHEREOF, the Debtor has executed and delivered this Security
\nAgreement as of the date written above.<\/p>\n
DEBTOR:<\/p>\n
XOOM, Inc.<\/p>\n
By:________________________
\n Laurent Massa, President<\/p>\n
4<\/p>\n
EXHIBIT D
\n ———<\/p>\n
Consulting Agreement
\n ——————–<\/p>\n
EXHIBIT D TO EXHIBIT 10.12<\/p>\n
CONSULTING AGREEMENT<\/p>\n
This Consulting Agreement (the “Agreement”) is entered into as of this 11th
\nday of June, 1998, by and between XOOM, Inc., a Delaware corporation (the
\n“Company”), and Revolutionary Software, Inc. (“Consultant”).<\/p>\n
RECITALS
\n ——–<\/p>\n
A. The Company desires to obtain the services of Consultant, on its own
\nbehalf and on behalf of all existing and future Affiliated Companies (defined as
\nany corporation or other business entity or entities that directly or indirectly
\ncontrols, is controlled by, or is under common control with the Company), upon
\nthe terms and conditions set forth below.<\/p>\n
B. The Company has spent significant time, effort and money to develop or
\notherwise acquire certain Proprietary Information (as defined below), which the
\nCompany considers vital to its business and goodwill.<\/p>\n
C. The Proprietary Information will necessarily be communicated to or
\nacquired by Consultant in the course of providing consulting services to the
\nCompany, and the Company desires to obtain the services of Consultant, only if,
\nin doing so, it can protect its Proprietary Information and goodwill.<\/p>\n
Accordingly, the parties agree as follows:<\/p>\n
AGREEMENT
\n ———<\/p>\n
1. Consulting Period.
\n —————– <\/p>\n
The Company hereby retains the Consultant and Consultant agrees to render
\nto the Company those services described in Section 2 of this Agreement for the
\nperiod (the “Consulting Period”) commencing on the date of this Agreement and
\nending upon the end of the twelfth full month after the date hereof (the “Term
\nDate”).<\/p>\n
2. Duties; Responsibilities; Authority.
\n ———————————– <\/p>\n
(a) The Consultant hereby accepts engagement with the Company to assist
\nin the integration of Sitemail, a web-based e-mail program, into the Company’s
\noperations, as more fully described on Exhibit A attached hereto, or such other
\nservices as shall be agreed in good faith between Consultant and the President
\nof the Company so as to utilize Consultant’s capabilities.<\/p>\n
(b) The Consultant shall have no authority to enter into contracts which
\nbind the Company or create obligations on the part of the Company without the
\nexpress prior authorization of the Company. The Consultant shall have no
\nauthority to hire other persons, either as consultants, independent contractors
\nor employees, in such a manner as would in any <\/p>\n
27<\/p>\n
way cause XOOM to incur any liability to such persons without the express prior
\nwritten authorization of the Company’s President.<\/p>\n
3. Compensation; Benefits; Expenses.
\n ——————————– <\/p>\n
(a) Compensation. In consideration of the services to be rendered
\n ————
\nhereunder, including, without limitation, services to any Affiliated Company,
\nConsultant shall be entitled to a professional fee of $10,000 per month, payable
\non the __ day of each month, except as may be mutually agreed between Consultant
\nand the Company, during the term of this Agreement. There shall be no
\nwithholdings from this payment, and Consultant shall be solely responsible for
\nall social security, tax, disability, and other state and federal assessments.<\/p>\n
(b) Benefits. Other than the compensation specified in the above Section
\n ——–
\n3(a), Consultant and its employees shall not be entitled to any direct or
\nindirect compensation or fringe benefits for services performed hereunder, nor
\nshall any employee of Consultant be eligible to participate in any employee
\nbenefit plans provided by the Company or any Affiliated Company to its
\nemployees.<\/p>\n
(c) Expenses. The Company shall reimburse Consultant for reasonable
\n ——–
\ntravel and other business expenses (i) incurred by Consultant in the performance
\nof duties hereunder in accordance with the Company’s general policies, as they
\nmay be amended from time to time during the course of this Agreement, and (ii)
\napproved by the Company in writing in advance. The Consultant shall bill the
\nCompany for expenses as incurred incident to services performed, referencing all
\ntravel and expenses incurred with appropriate purchase orders and receipts.<\/p>\n
4. Termination of Consulting Relationship.
\n ————————————– <\/p>\n
(a) By Company For Cause. The Company may terminate, without liability,
\n ——————–
\nthe Consulting Period for Cause (as defined below) at any time and without
\nnotice and the Company shall have no further obligation to Consultant hereunder,
\nprovided the Company pays Consultant the compensation described in Section 3(a)
\nfor any periods prior to such termination. Compensation for any partial month in
\nwhich Consultant provides services prior to such termination shall be calculated
\npro rata to the number of days in such month. Termination shall be for Cause if
\ndue to: (1) any act of fraud, dishonesty, or gross negligence (including any
\nfailure to act) made, engaged in, or conducted by Consultant in the course of
\nproviding the services contemplated under this Agreement; (2) willful and wanton
\nmisrepresentation to the Company which is materially injurious to the Company;
\nor (3) willful failure without reasonable justification to comply with a
\nmaterial, reasonable and lawful instruction by the Company.<\/p>\n
(b) At Will. At any time, either the Company or Consultant may terminate,
\n ——-
\nwithout liability, the Consulting Period for any reason, with or without cause,
\nby giving thirty (30) days’ advance written notice to the other party. If
\nConsultant terminates the consulting relationship with the Company pursuant to
\nthis Section 4(b), the Company shall have the option, in its complete
\ndiscretion, to terminate Consultant immediately without the running of the
\nnotice period, and such termination shall be deemed termination for cause. The
\nCompany shall pay<\/p>\n
28<\/p>\n
Consultant the compensation to which it is entitled pursuant to Section 3(a) for
\nservices rendered through the date of termination, and thereafter all
\nobligations of the Company hereunder shall terminate. Consultant hereby agrees
\nthat the Company may dismiss it under this Section 4(b) without regard (i) to
\nany general or specific policies (whether written or oral) of the Company
\nrelating to the employment, retention or termination of its employees or
\nconsultants, or (ii) to any statements made to Consultant, whether made orally
\nor contained in any document, pertaining to Consultant’s relationship with the
\nCompany; provided, however, that if the Company terminates Consultant without
\ncause prior to the end of the Consulting Period, the Company shall continue
\npaying Consultant its monthly compensation through the end of the Consulting
\nPeriod.<\/p>\n
5. Termination Obligations.
\n ———————– <\/p>\n
(a) Consultant hereby acknowledges and agrees that all personal property,
\nincluding, without limitation, all books, manuals, records, reports, notes,
\ncontracts, lists, blueprints, and other documents, or materials, or copies
\nthereof, Proprietary Information (as defined below), and equipment furnished to
\nor prepared by Consultant in the course of or incident to rendering of services
\nto the Company (but without affecting Consultant’s rights as Secured Party under
\nthat Security Agreement between Consultant and the Company of even date
\nherewith), including, without limitation, records and any other materials
\npertaining to Invention Ideas (as defined below), belong to the Company and
\nshall be promptly returned to the Company upon termination of the Consulting
\nPeriod. Following termination, the Consultant will not retain any written or
\nother tangible material containing any Proprietary Information.<\/p>\n
(b) The representations and warranties contained herein and Consultant’s
\nobligations under Sections 4, 5, 6, and 7 shall survive termination of the
\nConsulting Period and the expiration of this Agreement.<\/p>\n
(c) Consultant undertakes to ensure that its employees comply with all of
\nthe requirements and obligations described in Sections 5 through 9 hereof,
\ninclusive, and shall be liable for any breach by any of its employees of such
\nsections.<\/p>\n
6. Proprietary Information.
\n ———————– <\/p>\n
(a) Defined. “Proprietary Information” is all information and any idea in
\n ——-
\nwhatever form, tangible or intangible, pertaining in any manner to the business
\nof the Company or any Affiliated Company, or to its clients, consultants, or
\nbusiness associates, unless: (i) the information is or becomes publicly known
\nthrough lawful means; (ii) the information was rightfully in Consultant’s
\npossession or part of Consultant’s general knowledge prior to the Consulting
\nPeriod; or (iii) the information is disclosed to Consultant without confidential
\nor proprietary restrictions by a third party who rightfully possesses the
\ninformation (without confidential or proprietary restriction) and did not learn
\nof it, directly or indirectly, from the Company.<\/p>\n
(b) General Restrictions on Use. Consultant agrees to hold all
\n —————————
\nProprietary Information in strict confidence and trust for the sole benefit of
\nthe Company and not to, directly<\/p>\n
29<\/p>\n
or indirectly, disclose, use, copy, publish, summarize, or remove from the
\nCompany’s premises any Proprietary Information (or remove from the premises any
\nother property of the Company), except (i) during the Consulting Period to the
\nextent necessary to carry out Consultant’s responsibilities under this
\nAgreement, and (ii) after termination of the Consulting Period as specifically
\nauthorized in writing by the Company’s Board of Directors.<\/p>\n
(c) Interference with Business; Competitive Activities. Consultant
\n ————————————————–
\nacknowledges that the pursuit of the activities forbidden by this Section 6(c)
\nwould necessarily involve the use or disclosure of Proprietary Information in
\nbreach of Section 6(b), but that proof of such breach would be extremely
\ndifficult. To forestall such disclosure, use, and breach, and in consideration
\nof retaining Consultant under this Agreement, Consultant agrees that during the
\nConsulting Period and for a period of one (1) year after termination of the
\nConsulting Period, Consultant shall not, for itself or any third party, directly
\nor indirectly (i) divert or attempt to divert from the Company (or any
\nAffiliated Company) any business of any kind in which it is engaged, including,
\nwithout limitation, the solicitation of or interference with any of its
\nsuppliers or customers; or (ii) employ, solicit for employment, or recommend for
\nemployment any person employed by the Company, or by any Affiliated Company.<\/p>\n
(d) Remedies. Nothing in this Section 6 is intended to limit any remedy
\n ——–
\nof the Company under the California Uniform Trade Secrets Act (California Civil
\nCode Section 3426), or otherwise available under law.<\/p>\n
7. Consultant’s Inventions and Ideas.
\n ——————————— <\/p>\n
(a) Defined. The term “Invention Ideas” means any and all ideas,
\n ——-
\nprocesses, trademarks, service marks, inventions, technology, computer programs,
\noriginal works of authorship, designs, formulas, discoveries, patents,
\ncopyrights, and all improvements, rights, and claims related to the foregoing
\nthat are conceived, developed, or reduced to practice by the Consultant alone or
\nwith others in the course of providing consulting services to the Company.<\/p>\n
(b) Disclosure. Consultant agrees to maintain adequate and current
\n ———-
\nwritten records on the development of all Invention Ideas and to disclose
\npromptly to the Company all Invention Ideas and relevant records, which records
\nwill remain the sole property of the Company. Consultant further agrees that all
\ninformation and records pertaining to any idea, process, trademark, service
\nmark, invention, technology, computer program, original work of authorship,
\ndesign, formula, discovery, patent, or copyright that Consultant does not
\nbelieve to be an Invention Idea, but is conceived, developed, or reduced to
\npractice by Consultant (alone or with others) during his Consulting Period or
\nduring the one year period following termination of the Consulting Period, shall
\nbe promptly disclosed to the Company (such disclosure to be received in
\nconfidence). The Company shall examine such information to determine if in fact
\nthe idea, process, or invention, etc., is an Invention Idea subject to this
\nAgreement.<\/p>\n
(c) Assignment. Consultant agrees to assign to the Company, without
\n ———-
\nfurther consideration, his entire right, title, and interest (throughout the
\nUnited States and in all foreign countries), free and clear of all liens and
\nencumbrances, in and to each Invention Idea, which<\/p>\n
30<\/p>\n
shall be the sole property of the Company, whether or not patentable. In the
\nevent any Invention Idea shall be deemed by the Company to be patentable or
\notherwise registrable, Consultant shall assist the Company (at Company’s
\nexpense) in obtaining letters patent or other applicable registrations thereon
\nand shall execute all documents and do all other things (including testifying at
\nthe Company’s expense) necessary or proper to obtain letters patent or other
\napplicable registrations thereon and to vest the Company, or any Affiliated
\nCompany specified by the Company, with full title thereto. Should the Company be
\nunable to secure Consultant’s signature on any document necessary to apply for,
\nprosecute, obtain, or enforce any patent, copyright, or other right or
\nprotection relating to any Invention Idea, whether due to Consultant’s mental or
\nphysical incapacity or any other cause, Consultant hereby irrevocably designates
\nand appoints Company and each of its duly authorized officers and agents as
\nConsultant’s agent and attorney in fact, to act for and in Consultant’s behalf
\nand stead and to execute and file any such document, and to do all other
\nlawfully permitted acts to further the prosecution, issuance, and enforcement of
\npatents, copyrights, or other rights or protections with the same force and
\neffect as if executed and delivered by Consultant.<\/p>\n
(d) Exclusions. Except for the relational database management system
\n ———-
\ndeveloped by Consultant known as rdb, Consultant acknowledges that there are no
\nideas, processes, trademarks, service marks, technology, computer programs,
\noriginal works of authorship, designs, formulas, inventions, discoveries,
\npatents, copyrights, or improvements to the foregoing that it desires to exclude
\nfrom the operation of this Agreement. To the best of Consultant’s knowledge,
\nthere is no existing contract in conflict with this Agreement or any other
\ncontract to assign ideas, processes, trademarks, service marks, inventions,
\ntechnology, computer programs, original works of authorship, designs, formulas,
\ndiscoveries, patents, or copyrights that is now in existence between Consultant
\nand any other person or entity.<\/p>\n
(e) Post-Termination Period. Because of the difficulty of establishing
\n ———————–
\nwhen any idea, process, invention, etc., is first conceived or developed by
\nConsultant, or whether it results from access to Proprietary Information or the
\nCompany’s equipment, facilities, and data, Consultant agrees that any idea,
\nprocess, trademark, service mark, technology, computer program, original work of
\nauthorship, design, formula, invention, discovery, patent, copyright, or any
\nimprovement, rights, or claims having a direct bearing or relevance to the
\nCompany’s assets or operations shall be presumed to be an Invention Idea if it
\nis conceived, developed, used, sold, exploited, or reduced to practice by
\nConsultant or with the aid of Consultant within six (6) months year after
\ntermination of the Consulting Period. Consultant can rebut the above presumption
\nif it proves that the invention, idea, process, etc., (i) was first conceived or
\ndeveloped after termination of the Consulting Period, (ii) was conceived or
\ndeveloped entirely on Consultant’s own time without using the Company’s
\nequipment, supplies, facilities, or Proprietary Information, and (iii) did not
\nresult from any work performed by Consultant for the Company.<\/p>\n
8. Independent Contractor Relationship.
\n ———————————– <\/p>\n
(a) Nature of Relationship. In performing services to the Company
\n ———————-
\npursuant to this Agreement, Consultant’s relationship with the Company will be
\nthat of an independent <\/p>\n
31<\/p>\n
contractor and nothing in this Agreement should be construed to create a
\npartnership, joint venture, or employer-employee relationship. Consultant
\nacknowledges and agrees that neither Consultant nor any person associated with
\nConsultant shall be entitled to receive or otherwise participate in any employee
\nbenefits of any nature which the Company provides or makes available to any of
\nits employees.<\/p>\n
(b) Taxes and Records. Consultant agrees that it will be solely
\n —————–
\nresponsible for, and will file and pay on a timely basis, all withholding
\nrequired by federal, state or local law with respect to Consultant’s performance
\nof the services.<\/p>\n
9. No Conflict of Interest.
\n ———————– <\/p>\n
Consultant agrees during the term of this Agreement not to accept work or
\nenter into a contract or accept an obligation, inconsistent or incompatible with
\nConsultant’s obligations under this Agreement or the scope of services rendered
\nfor Company. Consultant warrants that to the best of Consultant’s knowledge,
\nthere is no other contract or duty now in existence inconsistent with this
\nAgreement. Consultant further agrees not to disclose to the Company, or bring
\nonto the Company’s premises, or induce the Company to use any confidential
\ninformation that belongs to anyone other than the Company or Consultant.
\nConsultant agrees to indemnify the Company from any and all loss or liability
\nincurred by reason of the alleged breach by Consultant of any confidentiality or
\nservices agreement with anyone other than the Company.<\/p>\n
10. Assignment; Successors and Assigns.
\n ———————————- <\/p>\n
Consultant shall not assign, sell, transfer, delegate or otherwise
\ndispose of, whether voluntarily or involuntarily, or by operation of law, any
\nrights or obligations under this Agreement, nor shall Consultant’s rights be
\nsubject to encumbrance or the claims of creditors. Any purported assignment,
\ntransfer, or delegation shall be null and void. Nothing in this Agreement shall
\nprevent the consolidation of the Company with, or its merger into, any other
\ncorporation, or the sale by the Company of all or substantially all of its
\nproperties or assets, or the assignment by the Company of this Agreement and the
\nperformance of its obligations hereunder to any successor in interest or any
\nAffiliated Company. Subject to the foregoing, this Agreement shall be binding
\nupon and shall inure to the benefit of the parties and their respective heirs,
\nlegal representatives, successors, and permitted assigns, and shall not benefit
\nany person or entity other than those enumerated above.<\/p>\n
11. Notices.
\n ——- <\/p>\n
All notices or other communications required or permitted hereunder shall
\nbe made in writing and shall be deemed to have been duly given if delivered by
\nhand or mailed, postage prepaid, by certified or registered mail, return receipt
\nrequested, and addressed to the Company at:<\/p>\n
XOOM, INC.
\n 433 California Street
\n San Francisco, CA 94104<\/p>\n
32<\/p>\n
Attention: Laurent Massa, President
\n Fax (415) 445-2526<\/p>\n
and to the Consultant at:<\/p>\n
Revolutionary Software, Inc.
\n 131 Rathburn Way
\n Santa Cruz, CA 95062-1035
\n Attention: Evan Schaffer, President
\n Fax (408) 427 0342<\/p>\n
Notice of change of address shall be effective only when done in accordance with
\nthis section.<\/p>\n
12. Entire Agreement.
\n —————- <\/p>\n
The terms of this Agreement are intended by the parties to be the full
\nand final expression of their agreement with respect to the retention of
\nConsultant by the Company and may not be contradicted by evidence of any prior
\nor contemporaneous agreement. The parties further intend that this Agreement
\nshall constitute the complete and exclusive statement of its terms and that no
\nextrinsic evidence whatsoever may be introduced in any judicial, administrative,
\nor other legal proceeding involving this Agreement. This Agreement fully
\nsupersedes any prior oral or written consulting or other agreements between the
\nConsultant and the Company.<\/p>\n
13. Amendments.
\n ———-
\n This Agreement may not be modified or amended, except by an instrument in
\nwriting, signed by the Consultant and by a duly authorized representative of the
\nCompany.<\/p>\n
14. Severability; Enforcement.
\n ————————- <\/p>\n
If any provision of this Agreement shall be held to be invalid,
\nunenforceable, or void, the remainder of this Agreement shall remain in full
\nforce and effect. It is the intention of the parties that the covenants
\ncontained in Section 6 and 7 shall be enforced to the greatest extent (but to no
\ngreater extent) in time, area, and degree of participation as is permitted by
\nthe law of that jurisdiction whose law is found to be applicable to any acts
\nallegedly in breach of these covenants.<\/p>\n
15. Governing Law.
\n ————- <\/p>\n
This Agreement shall be governed by and construed in accordance with the
\nlaws of the State of California, without regard to conflicts of law principles.<\/p>\n
33<\/p>\n
16. Consultant Acknowledgment.
\n ————————- <\/p>\n
Consultant acknowledges (i) that he has consulted with or has had the
\nopportunity to consult with independent counsel of his own choice concerning
\nthis Agreement and has been advised to do so by the Company, and (ii) that it
\nhas read and understands the Agreement, is fully aware of its legal effect, and
\nhas entered into it freely based on his own judgment and not in reliance upon
\nany representation or promises made by the Company other than those contained in
\nwriting herein.<\/p>\n
17. Remedies.
\n ——– <\/p>\n
(a) Injunctive Relief. The parties agree that in the event of any breach
\n —————–
\nor threatened breach of any of the covenants in Sections 6 or 7, the damage or
\nimminent damage to the value and the goodwill of the Company’s business will be
\nirreparable and extremely difficult to estimate, making any remedy at law or in
\ndamages inadequate. Accordingly, the parties agree that the Company shall be
\nentitled to injunctive relief without bond against Consultant in the event of
\nany breach or threatened breach of any such provisions by Consultant, in
\naddition to any other relief (including damages) available to the Company under
\nthis Agreement or under law.<\/p>\n
(b) Enforcement. In the event of any legal action required to enforce or
\n ———–
\ndefend this Agreement, the prevailing party shall be entitled to an award of
\nattorneys’ fees and legal costs, in addition to other relief.<\/p>\n
The parties have duly executed this Agreement as of the date first
\nwritten above.<\/p>\n
COMPANY CONSULTANT<\/p>\n
XOOM, Inc. Revolutionary Software, Inc.<\/p>\n
By:____________________________ By:___________________________
\n Laurent Massa, President Evan Schaffer, President<\/p>\n
34<\/p>\n
EXHIBIT A
\n ———<\/p>\n
Description of Duties
\n ———————<\/p>\n
Consultant shall assist the Company in the following areas:<\/p>\n
1. Maintaining the service and transferring the maintenance knowledge relating
\n to Sitemail to XOOM’s engineering staff.<\/p>\n
2. Assisting in the move of Sitemail technology and service to XOOM including
\n DNS and other related technical transfers of the service.<\/p>\n
3. Transition of Sitemail customer service and membership to XOOM.<\/p>\n
4. Continued development to scale the Sitemail software to handle five million
\n XOOM members using XOOM’s web-based e-mail program developed with Sitemail.<\/p>\n
35<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[9374],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9623,9622],"class_list":["post-43316","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-xoom-inc","corporate_contracts_industries-technology__programming","corporate_contracts_types-planning__asset","corporate_contracts_types-planning"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43316","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43316"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43316"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43316"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43316"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}