AGREEMENT FOR CONSULTING SERVICES



 




EXHIBIT 10.30




AOL Confidential




CONFIDENTIAL

AGREEMENT FOR CONSULTING SERVICES



     THIS AGREEMENT FOR CONSULTING SERVICES is made and entered into as of
September 30, 2002 (the “Effective Date”), by and between America Online, Inc.,
a Delaware corporation, with offices at 22000 AOL Way, Dulles, Virginia 20166
(hereinafter referred to as “AOL”), and Viewpoint Corporation, a Delaware
corporation, with principal offices at 498 7th Avenue, New, York, New York
10018 (hereinafter referred to as “Consultant”) (each a “Party” and
collectively the “Parties”).



     AOL,
operates the America Online® brand service, an interactive computer
communications, information and transactions service. Consultant is familiar
with the America Online® brand service. AOL desires to engage the services of
Consultant and Consultant desires to accept such engagement upon the terms and
conditions set forth herein.



     NOW, THEREFORE, in consideration of the mutual promises set forth herein,
AOL and Consultant hereby agree as follows:





	1.	 	Services and Scope of Work





	 	1.1	 	 Services. Consultant agrees to provide to AOL consulting,
software engineering, and digital content production services
(collectively, “Consulting Services”) as they are described on
Schedule 1 attached hereto as Exhibit A and on such schedules as are
executed from time to time by both Parties to this Agreement (the
“Schedules”). Each Schedule shall be consecutively numbered and
annexed hereto. Consulting Services shall be provided in accordance
with the provisions of this Agreement and the applicable Schedule.
	 
	 	1.2	 	 Scope of Work. Each Schedule shall contain a description of the
tasks to be performed by Consultant, the deliverables and
documentation, if any, to be produced by Consultant (collectively,
“Deliverables”), acceptance criteria for each Deliverable (for
technical services or if otherwise applicable), a schedule of
performance, a schedule of payments and a statement of Consultant’s
then-current rates, if applicable. The Parties acknowledge and agree
that each Schedule is subject to specific timeframes and the Parties
shall use good faith efforts to execute each Schedule in a timely
manner; provided that each Schedule shall be reviewed by the
appropriate legal personnel of both Parties prior to execution by
either Party. Without limiting the foregoing, prior to the execution
of any Schedule or statement of work involving non-recurring
engineering services (“NRE Services”), Consultant and AOL shall work
together to prepare a detailed proposal for NRE Services, which
proposal shall include, without limitation, all major assumptions on
which the NRE Services are based (e.g., pricing, use and
applicability of NRE Services, etc.).
	 
	 	1.3	 	 Performance of Services. Unless otherwise specified by AOL,
Consultant has the right to (i) control and direct the means, manner
and method by which the Consulting Services are performed, and (ii)
perform the Consulting Services at any place or location and at such
time as Consultant may reasonably determine. Unless otherwise agreed
to by the Parties in writing or on a Schedule, Consultant shall (i)
observe the










 




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	 	 	 	working hours, working rules and polices of AOL while working on
AOL’s premises, and (ii) furnish all equipment and materials used to
perform the Consulting Services, including but not limited to
telephone lines, personal computers and modems.





	1.4	 	 Other Work.





	 	(a)	 	Consultant has the right to perform services for others during
the term of this Agreement as long as Consultant performs the
Consulting Services with not less than the level of diligence with
which Consultant performs services for any other party. The Parties
understand and agree that in the course of performing the Consulting
Services, Consultant shall have access to AOL’s proprietary
information. In order to ensure compliance with the confidentiality
provisions of this Agreement and to adequately protect such
proprietary information, Consultant shall implement and enforce
appropriate “Chinese wall” procedures; such procedures are set forth
on Exhibit E attached hereto. Notwithstanding and without limiting
the foregoing, Consultant shall not perform services for an AOL
Competitor that are substantially similar to services Consultant is
then performing for AOL. “Substantially similar” means that (i) the
services involve the same Viewpoint technology (e.g., ZoomView); and
(ii) the services make use of the same promotional theme (e.g., a
board game theme). For the avoidance of doubt, however, Consultant’s
performance of services involving general product modeling with
animations, advertisements, and other general digital content
production services shall not constitute substantially similar
services to the Consulting Services hereunder. As used herein, “AOL
Competitor” shall mean any entity listed on Exhibit D hereto;
provided that AOL may update such list no more often than once per
quarter, upon written notice to Consultant. In the event that
Consultant violates any provision of this Section 1.4, AOL shall have
the right to terminate this Agreement immediately upon written notice
to Consultant, without regard to any cure period set forth in this
Agreement.
	 
	 	1.5	 	 Compliance with Applicable Law. Consultant shall ensure that
Consultant complies with all applicable local, state and federal law
and AOL’s then-current Terms of Service in performing the Consulting
Services.





	2.	 	Consultant Personnel





	 	2.1	 	 Consultant Project Manager. Consultant will appoint for each
Schedule a qualified member of its staff to act as project manager
(the “Consultant Project Manager”), whose duties shall be to act as
liaison between AOL and Consultant.
	 
	 	2.2	 	 Independent Contractor; No Agency. Consultant is an
independent contractor. Consultant shall not be deemed for any
purpose to be an employee of AOL. AOL shall not be responsible to
Consultant or any governing body for any payroll-related taxes
related to the performance of the services, including but not limited
to, withholding or other taxes related to federal or state income
tax, social security benefits or unemployment compensation.
Consultant further represents and warrants that Consultant qualifies
as an independent contractor under the provisions of the Internal
Revenue Code and its common law rules and, as such, Consultant is
filing all required forms and necessary payments appropriate to the
Consultant’s tax status. Neither Party is an agent, representative or
partner of the other Party. Neither Party shall have any right,
power or authority to enter into any agreement for or on behalf of,
or incur










 




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	 	 	 	any obligation or liability on behalf of, or to otherwise bind, the
other Party. This Agreement shall not be interpreted or construed
to create an employment relationship, an association, agency, joint
venture or partnership between the Parties or to impose any
liability attributable to such a relationship upon either Party.
	 
	 	2.3	 	 Consultant’s Employees and Assistants. From time to time,
Consultant may, subject to the terms and conditions set forth in this
Agreement, engage employees, independent contractors, consultants,
volunteer assistants or other persons or entities (collectively,
“Assistants”) to aid Consultant in performing Consultant’s duties
under this Agreement. AOL has no relationship with or to such
Assistants and such Assistants are not employees, agents,
consultants, representatives, assistants or independent contractors
of AOL. Consultant shall be fully and solely responsible for the
supervision and payment of such Assistants and for all work performed
by such Assistants and any third party subcontractors approved by AOL
as provided in this Agreement.





	3.	 	Project Management





	 	3.1	 	 AOL Project Manager. AOL shall designate a project manager for
each Schedule (the “AOL Project Manager”) who shall act as a liaison
between AOL and Consultant.
	 
	 	3.2	 	 Progress Reports and Meetings. If requested by AOL, Consultant
shall submit a detailed progress report (“Progress Report”) to the
AOL Project Manager during the term of each Schedule as more fully
set forth in the individual Schedule. Progress Reports shall detail
work performed to date and estimated time and cost to complete. If
AOL so requests, Consultant shall hold status meetings with the AOL
Project Manager, at which the AOL Project Manager and Consultant’s
designated representative shall review the status of the Consulting
Services. In the event that as a result of any such meeting, either
Party requires changes to any Deliverable that has already been
accepted by AOL, such changes shall be subject to a change order and
potentially additional fees as mutually agreed by the Parties. With
respect to Consulting Services performed on a time and materials
basis, AOL acknowledges that preparation of a Progress Report(s) may
result in increased fees.
	 
	 	3.3	 	 Accounts. If deemed necessary by AOL, Consultant may be given
an account(s) for the America Online® brand service for the exclusive
purpose of enabling it and its agents to perform Consultant’s duties
under this Agreement. The account(s) shall be of the type determined
by AOL to be necessary for Consultant to perform its duties
hereunder. Consultant shall be responsible for any premium charges,
transaction charges, communication surcharges or other charges
incurred by any such account(s), other than AOL’s standard monthly
subscription charge. Consultant shall be responsible for the actions
taken under or through its account(s), which actions shall be subject
to AOL’s then-applicable Terms of Service. Upon termination of this
Agreement, the account(s), and any associated usage credits and
related screen names or similar rights, shall automatically
terminate. AOL shall have no liability for loss of data or content
related to termination of any account.
	 
	 	3.4	 	 Software Tools. AOL shall determine in its sole discretion,
which of its proprietary software tools (each a “Tool”) shall be made
available to Consultant in order for Consultant to perform its duties
hereunder. Consultant shall be granted a










 




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	 	 	 	nonexclusive license to use any such Tool, which license shall be
subject to: (i) Consultant’s compliance with all rules and
regulations relating to use of the Tools, as published from time to
time by AOL, (ii) AOL’s right to withdraw or modify such license at
any time, and (iii) Consultant’s express recognition that AOL
provides all Tools on an “as is” basis, without warranties of any
kind.





	4.	 	Fees, Expenses, Records, and Taxes





	 	4.1	 	 Fees. Each Schedule shall set forth the fee due for the
Consulting Services to be provided pursuant to the Schedule and
Consultant agrees to invoice AOL as set forth in the Schedule. All
Consulting Services to be performed on a time and materials basis
shall be invoiced in arrears. Any fees to be paid by AOL hereunder
for digital content production services may be reduced pursuant to
Section 8.7(b)(ii) of the License Agreement (as defined in Section 9
of this Agreement), so long as AOL makes the appropriate elections
under the License Agreement. The Parties shall designate on each
Schedule the amount (if any) by which the fees for such Schedule are
reduced. Consultant’s hourly rates for digital content production
services performed for the first twelve (12) month period during the
Term (the “First Agreement Year”) will be as set forth on Exhibit F
attached hereto. Following the First Agreement Year, Consultant
shall provide AOL with a discount of fifteen percent (15%) from its
standard rates for digital content production services performed
during the Term; provided that in no event shall the rates charged by
Consultant to AOL for digital content production services increase by
more than five percent (5%) per successive 12-month period during the
Term.
	 
	 	4.2	 	 Expenses. Consultant shall be entitled to reimbursement of the
categories of expenses set forth on the applicable Schedule.
Consultant shall invoice AOL on a monthly basis for expenses incurred
as a result of performing Consulting Services in accordance with the
Schedule. Such expenses shall be limited to reasonable out-of-pocket
expenses necessarily and actually incurred by the Consultant in the
performance of its services hereunder, provided that: (i) AOL has
given its prior written consent for any such expenses, including
without limitation, travel expenses; (ii) the expenses have been
detailed on a form acceptable to AOL and submitted to the appropriate
AOL Project Manager for review and approval; and (iii) if requested
by AOL, the Consultant submits supporting documentation in addition
to the approved expense form. Monthly expenses shall not exceed the
amount set forth in the relevant Schedule without the prior written
approval of the AOL Project Manager. Any travel expenses shall
comply with AOL’s travel policy, a copy of which has been provided to
Consultant, and AOL may, at AOL’s sole discretion, require Consultant
to make travel arrangements through an AOL-approved travel agency.
	 
	 	4.3	 	 Review of Fees and Expenses. Consultant will submit the charges
and/or expenses to be invoiced for services performed and the
applicable time reports or documentation under any Schedule and
Acceptance Certificate in the form attached hereto as Exhibit C to
the AOL Project Manager for approval prior to actual invoicing. The
charges and/or expenses invoiced in accordance with this Section 4,
except for any amounts disputed by AOL, shall be payable by AOL
within thirty (30) days of AOL’s receipt of each invoice, accompanied
by an Acceptance Certificate executed by the AOL Project Manager.










 




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	 	4.4	 	 Maximum Dollar Amount. Notwithstanding anything to the
contrary contained herein, AOL shall not be liable for any charges
and/or expenses under any Schedule for work in excess of the Maximum
Dollar Amount specified on such Schedule.
	 
	 	4.5	 	 Records. Consultant shall maintain complete and accurate
accounting records, in a form in accordance with generally accepted
accounting principles, to substantiate Consultant’s charges and
expenses hereunder and Consultant shall retain such records for a
period of four (4) years from the date of final payment under any
Schedule.
	 
	 	4.6	 	 Taxes. Consultant shall be responsible for determining the
applicability of any sales, use, excise, or similar taxes which may
be applicable to the performance of the Consulting Services, if any.
Consultant shall clearly and separately state any applicable taxes on
Consultant’s invoice to AOL for corresponding Consulting Services.
AOL shall pay applicable taxes on the invoice or, in lieu of the
payment of any such taxes, AOL may provide Consultant with a
certificate acceptable to the taxing authorities exempting AOL from
payment of these taxes. Consultant shall pay all taxes collected from
AOL to the appropriate taxing authority. Consultant, and not AOL,
shall be obligated to pay any applicable taxes not invoiced to AOL on
the invoice for corresponding Consulting Services, including without
limitation, any and all interest, penalties and attorneys’ fees.
Consultant shall bear any and all costs, and shall indemnify AOL for
any and all costs, of or associated with any determination of
applicable taxes, the collection of such taxes and the payment of
such taxes to the taxing authority (except to the extent AOL has
wrongfully failed to pay such taxes or provide a certificate(s) as
provided above), including, without limitation, penalties, interest
and attorneys’ fees.





	5.	 	Acceptance of Services





		
	 	     All Consulting Services and Deliverables delivered by the Consultant
pursuant to the Agreement and the attached Schedules shall be subject to
acceptance by AOL. Acceptance criteria shall be fully set forth in the
applicable Schedule. AOL shall provide Consultant with the information,
data, drawings, designs, or other materials and resources listed and
described in the Scope of Work that are reasonably necessary for
Consultant to perform the Services (the “Reference Materials”). If
Consultant is delayed in completing the Deliverables set forth in any
Schedule primarily due to a failure by AOL to perform its obligations
under such Schedule, including delivery of any Reference Materials, and
Consultant notifies AOL in writing of such failure and the resulting
delay, then the time for performance/delivery dates referenced in the
Schedule shall each be extended by the amount of time of Consultant’s
delay directly attributable to such failure by AOL.





	6.	 	Term and Termination





	 	6.1	 	 Term. This Agreement shall commence on the Effective Date and
shall continue in full force and effect thereafter unless and until
it is terminated or expires in accordance with the provisions of this
Agreement or any Schedule or, if it is not terminated and no
expiration is provided in any applicable Schedule, until satisfactory
completion of the services provided for herein and in all Schedules
and acceptance thereof by AOL (“Project Completion”). The Parties
understand and agree that certain rights and










 




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	 	 	 	obligations hereunder are dependent upon the continuation in force
of the License Agreement (as defined in Section 9) and that in the
event that the License Agreement expires or terminates prior to the
expiration or termination of this Agreement, the Parties will
promptly review the status of any Schedules hereunder.
	 
	 	6.2	 	 Termination For Breach. Either Party may terminate this
Agreement at any time in the event of a material breach by the other
Party which remains uncured after thirty (30) days written notice
thereof (or such shorter period as may be specified in this Agreement
or in any applicable Schedule).
	 
	 	6.3	 	 Termination Upon Notice. Notwithstanding anything to the
contrary herein or in any Schedule, AOL may terminate this Agreement
or any Schedule hereunder for any reason by giving the Consultant two
weeks’ prior written notice of its election to terminate said
Agreement or Schedule.
	 
	 	6.4	 	 Termination for Bankruptcy/Insolvency. Either Party may
terminate this Agreement immediately following written notice to the
other Party if the other Party (i) ceases to do business in the
normal course, (ii) becomes or is declared insolvent or bankrupt,
(iii) is the subject of any proceeding related to its liquidation or
insolvency (whether voluntary or involuntary) which is not dismissed
within ninety (90) calendar days or (iv) makes an assignment for the
benefit of creditors.
	 
	 	6.5	 	 AOL Rights and Payment Upon Termination. If either Party
terminates the Agreement, AOL agrees to pay Consultant for all
expenses incurred by the Consultant with AOL’s approval up to the
effective date of termination. In the event AOL terminates this
Agreement or any Schedule under Section 6.3 prior to the completion
of the services rendered under each Schedule, (a) Consultant shall be
compensated a pro-rata share of the fee due to Consultant under this
Agreement and the applicable Schedule, and (b) if applicable, AOL
shall pay Consultant for all Progress Milestones (as set forth in the
applicable Schedule) completed and accepted by AOL and a pro-rata
share of the Progress Milestone Consultant is working to complete at
the time the applicable schedule is terminated. Termination under
this Agreement shall not affect AOL’s rights in and to all
Deliverables, Materials (as defined in Exhibit B) and work product
created by Consultant pursuant to this Agreement prior to such
termination.





	7.	 	Terms and Conditions. The terms and conditions set forth on Exhibit
B attached hereto are hereby made a part of this Agreement.
	 
	8.	 	Prior Agreements. This Agreement supercedes the Consulting Services
Agreement between the Parties dated March 21, 2002 and the services
performed thereunder including, but not limited to, services performed
in accordance with the following:





	 	        •	 	Viewpoint Ad Format Sales CD Statement of Work dated January 29,
2002;
	 
	 	        •	 	Channel Content Statement of Work dated March 12,
2002 (NASCAR Project) and Change Order dated April 9, 2002;
	 
	 	        •	 	Scope of Work dated March 21, 2002 (Scooby Doo Project);
	 
	 	        •	 	Scope of Work dated May 9, 2002 (Shop@AOL Project);
	 
	 	        •	 	Scope of Work dated June 19, 2002 (NBC project);
	 
	 	        •	 	Scope of Work dated June 28, 2002 (AIM 8-Legged Freaks project);
	 
	 	        •	 	Scope of Work dated July 29, 2002 (Old Navy Project);










 



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	 	        •	 	Scope of Work dated August 12, 2002 (Teens/CDC project); and
	 
	 	        •	 	Scope of Work dated August 14, 2002 (Gateway desktop project).





		
	 	     The Production Services Agreement dated January 25, 2002 and the Statement
of Work dated February 4, 2002 (entitled “3D Navigation User Interface
Design and Implementation”) shall continue in force.





	9.	 	Affiliates. To the extent any of AOL’s Affiliates wish to engage
Consultant to perform Consulting Services upon the terms set forth hereunder,
such Affiliate shall execute a Schedule hereunder (an “Affiliate Schedule”).
Such action shall have the same effect as if such AOL Affiliate entered into
this Agreement separately with Consultant and all references to AOL therein
were to such AOL Affiliate. Such Affiliate Schedule shall be subject to all
terms and conditions of this Agreement and the Affiliate executing such
Schedule shall be solely responsible for any payment or other obligations
incurred under such Schedule. Similarly, all obligations of Consultant under
any Affiliate Schedule shall be solely to the Affiliate executing such Schedule
and not to AOL. As used herein, “Affiliate” shall have the meaning set forth
in the Amended and Restated License and Services Agreement by and between AOL
and Consultant, dated as of July 19, 2001, as amended (the “License
Agreement”).




     IN WITNESS WHEREOF, the Parties hereto, each acting under due and proper
authority, have executed this Agreement as of the date first written above.




	 	 	 
	AMERICA ONLINE, INC	 	
CONSULTANT
	By:        /s/  Geo
Hunt

Print Name: Geo Hunt	 	
By:        /s/  Robert E. Rice


Print Name: Robert E. Rice
	Title: SVP, Technology Business Development	 	
Title: President and CEO
	Date: September 30, 2002	 	
Date: September 30, 2002












 





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EXHIBIT B




Terms and Conditions





	I.	 	NO RIGHTS IN AOL PROPERTY/TRADEMARKS



No Ownership or License. Nothing in this Agreement shall convey to Consultant
any right, license, title, interest in and to the Work (as defined below), the
AOL” look and feel”, or any other AOL property, property interest, license or
right.



No Right to Post Content. Unless specifically directed to do so by AOL,
Consultant shall have no right to post or display content or other materials in
any area of the AOL Network. As used in this Agreement, AOL Network shall mean
(i) the America Online® brand service, (ii) any international versions of the
America Online service, and (iii) any other product or service owned, operated,
distributed or authorized to be distributed by or through AOL or its affiliates
worldwide (which may include, without limitation, Internet sites promoting AOL
products and services and any “offline” information browsing products of AOL or
its Affiliates).



No Right to Use Trademarks. Consultant shall have no right to use any AOL
trade name, trademark or service mark without AOL’s prior written consent or as
specifically set forth in a Schedule.





	II.	 	CONFIDENTIALITY/PROPRIETARY RIGHTS/ /NON-SOLICITATION



Confidentiality. Each Party acknowledges that Confidential Information may be
disclosed to the other Party during the course of this Agreement. Each Party
agrees that it will take reasonable steps, at least substantially equivalent to
the steps it takes to protect its own proprietary information, during the term
of this Agreement, and for a period of three years following expiration or
termination of this Agreement, to prevent the duplication or disclosure of
Confidential Information of the other Party, other than by or to its employees
or agents who must have access to such Confidential Information to perform such
Party’s obligations hereunder, who will each agree to comply with this Section.
Notwithstanding the foregoing, either Party may issue a press release or other
disclosure containing Confidential Information without the consent of the other
Party, to the extent such disclosure is required by law, rule, regulation or
government or court order. In such event, the disclosing Party will provide,
if reasonably possible, at least five (5) business days prior written notice of
such proposed disclosure to the other Party. Further, in the event such
disclosure is required of either Party under the laws, rules or regulations of
the Securities and Exchange Commission or any other applicable governing body,
such Party will (i) redact mutually agreed-upon portions of this Agreement to
the fullest extent permitted under applicable laws, rules and regulations and
(ii) submit a request to such governing body that such portions and other
provisions of this Agreement receive confidential treatment under the laws,
rules and regulations of the Securities and Exchange Commission or otherwise be
held in the strictest confidence to the fullest extent permitted under the
laws, rules or regulations of any other applicable governing body. For
purposes of this Agreement, “Confidential Information” shall mean any
information relating to or disclosed in the course of the Agreement, which is
or should be reasonably understood to be confidential or proprietary to the
disclosing Party, including, but not limited to, the material terms of this
Agreement, information about AOL Members, AOL end-users, AOL broadband service
registration information, technical processes and formulas, source codes,
product designs, sales, cost and other unpublished financial information,
product and business plans, projections, and marketing data. “Confidential
Information” will not include information (a) already lawfully known to or
independently developed by the receiving Party, (b) disclosed in published
materials, (c) generally known to the public, or (d) lawfully obtained from any
third party.



Without limiting the generality of the foregoing, Consultant shall not collect
AOL Member screennames from public or private areas of the AOL Network and
shall comply with AOL’s bulk e-mail policy.



Injunctive Relief. The Parties acknowledge that disclosure of either Party’s
Confidential Information by the other Party will give rise to irreparable
injury to the disclosing Party, its subsidiaries and/or affiliated companies or
the owner of such information, inadequately compensable in damages.
Accordingly, the disclosing Party may seek and obtain injunctive relief against
the breach or threatened breach of the foregoing undertakings, in addition to
any other legal remedies which may be available.



Proprietary Rights. Upon acceptance of the Deliverables in accordance with
this Agreement, Consultant shall be deemed to have assigned to AOL and AOL
shall acquire (i) all of Consultant’s copyrights to the digital images
comprising each Deliverable, (ii) all of Consultant’s right, title, and
interest in the object code version of any files included as part of any
Deliverable, and (iii) any and all other IP rights in and versions of all
Deliverables (except as specifically set forth herein with respect to the
Non-AOL Content Elements) (the “Content Elements,” “Work” or “Materials”) that
are created by Consultant for the specific purpose of composing the
Deliverables (“AOL Elements”). To the extent that Content Elements that are
not created by Consultant for the specific purpose of composing the
Deliverables (“Non-AOL Elements”) are included in the Deliverables, Consultant
hereby grants to AOL a non-exclusive, worldwide, perpetual right and license to
use, display, reproduce, distribute, perform or modify the Non-AOL Elements.
However, such Deliverable shall not be considered a derivative work (as defined
by U.S. copyright law) and AOL shall own any customized enhancement(s) or
addition(s) to the Non-AOL Elements so incorporated, including the intellectual
property rights therein. The Parties hereby acknowledge and agree that all
Non-AOL Elements and all of Consultant’s proprietary methodologies for delivery
of its services (“Consultant Tools”), including but not limited to Consultant’s
proprietary software tools and design concepts, process guidelines and
methodologies, which are used by Consultant in performing the Services, are and
shall remain the exclusive property of Consultant.



Consultant grants to AOL at no additional cost a perpetual, worldwide,
non-exclusive, non-transferable license to use the Consultant Tools. AOL
acknowledges that as part of Consultant’s performance of Services, Consultant
may develop or modify software tools, programming aids,






 







 





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algorithms, code libraries, translators, diagnostic aids, and other software
(“Consultant Modifications”). Such Consultant Modifications and all
intellectual property related thereto shall remain the sole and exclusive
property of Consultant, except as set forth below regarding AOL Customization.
To the extent AOL requires a Broadcast License in connection with any
Deliverable(s), the Parties agree and acknowledge that Consultant has granted
such Broadcast License under the License Agreement (as defined in Section 9 of
this Agreement). Notwithstanding the foregoing, in the event that providing the
Deliverables hereunder, including without limitation Consultant’s ZoomView
technology, requires the development, modification, enhancement, customization
or creation of material based upon AOL Confidential Information (the “AOL
Customization”), any and all AOL Customization is the property of AOL and all
title and interest therein shall vest in AOL and shall be deemed to be a work
made for hire. “AOL Customization” shall not be deemed to include any
Consultant Confidential Information. To the extent that title to any such AOL
Customization may not, by operation of law, vest in AOL or such works may not
be considered works made for hire, Consultant hereby irrevocably assigns to AOL
all rights, title and interest in and to such AOL Customization. All AOL
Customization shall belong exclusively to AOL, and AOL shall have the right to
obtain and to hold in its own name, copyrights, registrations, patents, or such
other protection as may be appropriate to the subject matter, and any
extensions and renewals thereof, provided that such protections do not conflict
with copyrights, registrations, patents, or such legal protection in such
non-customized materials as may already be owned by Consultant. Consultant
agrees to give AOL and any person designated by AOL such reasonable assistance,
at AOL’s expense, as is required to perfect, secure, and protect AOL’s
intellectual property and other rights set forth in this Paragraph.



Unless otherwise requested by AOL, upon the completion of the services to be
performed under each Schedule or upon the earlier termination of such Schedule,
Consultant shall immediately turn over to AOL all Work, including without
limitation, any and all Materials, developed pursuant to such Schedule.



Securities Trading Policy. Consultant agrees, for the term of this Agreement
and for as long thereafter as Consultant has access to material, non-public
information of AOL, to comply with terms of AOL’s securities trading policy
(the “Securities Policy”), a copy of which has been provided to Consultant, as
revised from time to time, to the same extent as employees of AOL are obligated
to comply with the Securities Policy.



Non-Solicitation. During the term of this Agreement, AOL shall not hire or
attempt to hire any Restricted Employee (as defined below) to join the Product
Content group within the Product Marketing department or the Client Engineering
Group within the AOL Technology department. Notwithstanding the foregoing, AOL
may employ any person who (a) initially contacts AOL without solicitation,
directly or indirectly, by AOL or (b) responds to any general media
solicitation of employment or engagement by AOL or to any solicitation or
inquiry from a recruiter retained by AOL provided that such person is not
specifically identified or targeted by AOL for such solicitation or inquiry.
The following individuals shall be deemed Restricted Employees: Sree Kotay,
Executive Vice President and Chief Technology Officer; Ales Holecek, Senior
Vice President, Technology; Javier Roca, Senior Design Manager; and Jeffrey
Jouppi, Technical Designer.





	III.	 	REPRESENTATIONS AND WARRANTIES



Representations and Warranties. Consultant represents and warrants that: (a)
Consultant is or will promptly and prior to the Effective Date become familiar
with AOL’s current or then-current Terms of Service Agreement; (b) Consultant
has or shall have the proper skill, training, and background so as to be able
to perform in a competent and professional manner and that all work will be
performed in accordance with applicable standards; (c) provided AOL has free,
good and clear title to the information provided to Consultant in connection
with the performance of this Agreement (“AOL Originals”), AOL shall receive
free, good and clear title to all Work which may be developed by Consultant
under this Agreement or which is provided or delivered to AOL by Consultant or
Consultant’s Assistants, agents or representatives pursuant to this Agreement;
including without limitation the Materials, which title shall be free and clear
of any and all liens, encumbrances, claims or litigation, whether pending or
threatened, (d) provided the AOL Originals do not infringe or violate (i) any
copyright, trademark, patent, (ii) any other proprietary or other right of any
third party, including but not limited to any third party right to privacy,
(iii) any applicable law or regulation, or (iv) any AOL current or then-current
standards and guidelines made available to Consultant by AOL, no Work,
Deliverable or other materials delivered by Consultant to AOL hereunder,
including without limitation Materials, shall infringe on or violate (i) any
copyright, trademark, patent, any music performance or other music related
right, (ii) any other proprietary or other right of any third party, including
but not limited to any third party right to privacy, (iii) any applicable law
or regulation, or (iv) AOL’s Terms of Service or any AOL service guidelines or
standards made available to Consultant by AOL, and (e) provided the AOL
Originals do not contain any scandalous, libelous or unlawful matter or
material, no Work, Deliverable or other materials delivered by Consultant to
AOL hereunder, including without limitation, Materials, shall contain any
scandalous, libelous or unlawful matter or material.



Each Party represents and warrants to the other Party that: (i) such Party has
the full corporate right, power and authority to enter into this Agreement, to
grant the licenses granted hereunder and to perform the acts required of it
hereunder; (ii) the execution of this Agreement by such Party, and the
performance by such Party of its obligations and duties hereunder, do not and
will not violate any agreement to which such Party is a party or by which it is
otherwise bound; (iii) when executed and delivered by such Party, this
Agreement will constitute the legal, valid and binding obligation of such
Party, enforceable against such Party in accordance with its terms; and (iv)
such Party acknowledges that the other Party makes no representations,
warranties or agreements related to the subject matter hereof which are not
expressly provided for in this Agreement.





	IV.	 	INDEMNITY



Indemnity. Consultant shall defend, indemnify and hold harmless AOL, its
officers, directors, agents, Affiliates (as defined in the License Agreement),
distributors, franchisees and employees from any and all loss and third party
claims, demands, liabilities, costs or expenses, including without limitation
reasonable attorneys’ fees and expenses (“Liabilities”) resulting from (a)
claims of libel, defamation, violation of right of copyright infringement
trademark infringement or other infringement or any third party right, fraud,
false advertising, misrepresentation, product liability or violation of any
law,





 







 





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statute, ordinance, rule or regulation throughout the world based on any
software, program, service and or other materials furnished to AOL by
Consultant pursuant to the terms of this Agreement, including without
limitation, the Work or Materials, or the use thereof by AOL, and (b)
Consultant’s material breach of any obligation, duty, representation or
warranty contained in this Agreement or in any Schedule attached hereto. AOL
will notify Consultant of any claim, demand or action (an “Action”) for which
indemnity is claimed within ten (10) days of receipt of written notice of such
Action, and will give Consultant control of the defense and of the claim,
action or allegation. Consultant’s counsel defending such Action shall be
subject to AOL’s prior written approval. AOL reserves the right to participate
fully in and assume joint control of the defense of any Action, at its cost and
expense. Settlement of any Action shall be subject to AOL’s prior written
approval.



Consultant agrees, should AOL’s use of any service, program, and/or other
material furnished to AOL by Consultant be enjoined by any court, to promptly
obtain, at no expense to AOL, the right to continue to use the items so
enjoined or, at no expense to AOL, provide AOL promptly with substitute items
that are functionally equivalent to the enjoined products. If Consultant can
not secure AOL’s right to continue using such items or substitute such items as
provided herein, Consultant agrees to refund all sums earned under this
Agreement relating to the provision of such items.



AOL shall defend, indemnify and hold harmless Consultant, its officers,
directors, agents, distributors, franchisees and employees from any and all
Liabilities solely resulting from Consultant’s authorized use of any materials
provided by AOL to Consultant to perform Consultant’s obligations hereunder.





	V.	 	GENERAL



Excuse. Neither Party shall be liable for, or be considered in breach of or
default under this Agreement on account of, any delay or failure to perform as
required by this Agreement as a result of any causes or conditions which are
beyond such Party’s reasonable control and which such Party is unable to
overcome by the exercise of reasonable diligence.



Notice. Any notice, approval, request, authorization, direction or other
communication under this Agreement will be given in writing and will be deemed
to have been delivered and given for all purposes (i) on the delivery date if
delivered by confirmed facsimile; (ii) on the delivery date if delivered
personally to the Party to whom the same is directed; (iii) one business day
after deposit with a commercial overnight carrier, with written verification of
receipt; or (iv) five business days after the mailing date, whether or not
actually received, if sent by U.S. mail, return receipt requested, postage and
charges prepaid, or any other means of rapid mail delivery for which a receipt
is available. In the case of AOL, such notice will be provided to both the AOL
Project Manger and the Deputy General Counsel (fax no. 703-265-1105), each at
the address of AOL set forth in the first paragraph of this Agreement. In the
case of Consultant, except as otherwise specified herein, the notice address
shall be the address for Consultant set forth in the first paragraph of this
Agreement, with the other relevant notice information, including the recipient
for notice and, as applicable, such recipient’s fax number to be as reasonably
identified by AOL.



No Waiver. The failure of either Party to insist upon or enforce strict
performance by the other Party of any provision of this Agreement or to
exercise any right under this Agreement shall not be construed as a waiver or
relinquishment to any extent of such Party’s right to assert or rely upon any
such provision or right in that or any other instance; rather, the same shall
be and remain in full force and effect.



Entire Agreement. This Agreement sets forth the entire agreement and
supersedes any and all prior agreements of the Parties with respect to the
transactions set forth herein. Neither Party shall be bound by, and each Party
specifically objects to, any term, condition or other provision which is
different from or in addition to the provisions of this Agreement (whether or
not it would materially alter this Agreement) and which is proffered by the
other Party in any correspondence or other document, unless the Party to be
bound thereby specifically agrees to such provision in writing.



Amendment. No change, amendment or modification of any provision of this
Agreement shall be valid unless set forth in a written instrument signed by the
Party subject to enforcement of such amendment.



Further Assurances. Consultant shall take such action (including, but not
limited to, the execution, acknowledgment and delivery of documents) as may
reasonably be requested by AOL for the implementation or continuing performance
of this Agreement.



Assignment. Consultant shall not assign this Agreement or any right, interest
or benefit under this Agreement without the prior written consent of AOL.
Assumption of the Agreement by any successor to Consultant (including, without
limitation, by way of merger, consolidation or sale of all or substantially all
of Consultant’s stock or assets) shall be subject to AOL’s prior written
approval. Subject to the foregoing, this Agreement shall be fully binding
upon, inure to the benefit of and be enforceable by the Parties hereto and
their respective successors and assigns.



Subcontract. No work or services to be performed by Consultant hereunder shall
be subcontracted to or performed on behalf of Consultant by any third party,
except upon written permission by AOL, or as set forth in any Schedule.



Construction; Severability. In the event that any provision of this Agreement
conflicts with the law under which this Agreement is to be construed or if any
such provision is held invalid by a court with jurisdiction over the Parties to
this Agreement, (i) such provision shall be deemed to be restated to reflect as
nearly as possible the original intentions of the Parties in accordance with
applicable law, and (ii) the remaining terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect.



Remedies. Except where otherwise specified, the rights and remedies granted to
a Party under this Agreement are cumulative and in addition to, and not in lieu
of, any other rights or remedies which the Party may possess at law or in
equity.



Applicable Law. This Agreement shall be interpreted, construed and enforced in
all respects in accordance with the laws of the State of New York except for
its conflicts of laws principles. Each Party irrevocably consents to





 







 





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the exclusive jurisdiction of the state courts and federal courts situated in
New York City in connection with any action to enforce the provisions of this
Agreement to recover damages or other relief for breach or default under this
Agreement or otherwise arising under or by reason of this Agreement.
Notwithstanding the foregoing, any judgments entered into in an action under
this Agreement may be enforced in any court of competent jurisdiction.



Export Controls. Both Parties shall adhere to all applicable laws, regulations
and rules relating to the export of technical data and shall not export or
re-export any technical data, any products received from the other Party or the
direct product of such technical data to any proscribed country listed in such
applicable laws, regulations and rules unless properly authorized.



Publicity. Consultant agrees that it will not, without prior written consent
of AOL, use in advertising, publicity, or otherwise the name of AOL, or refer
to the existence of this Agreement in press releases, advertising, or materials
distributed to prospective customers.



Duty to Inform. Consultant shall promptly inform AOL of any information
related to the Consulting Services, including without limitation the Work,
Materials, and Deliverables, which could reasonably lead to a claim, demand or
liability of or against AOL and/or its Affiliates by any third party.



Limitations. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY
INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGE OF ANY KIND OR NATURE,
WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT (INCLUDING, WITHOUT
LIMITATION, THE BREACH OF THIS AGREEMENT OR ANY TERMINATION OF THIS AGREEMENT),
TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE OR STRICT LIABILITY) OR
OTHERWISE, EVEN IF ANY OTHER PARTY HAS BEEN WARNED OF THE POSSIBILITY OF ANY
SUCH LOSS OR DAMAGE IN ADVANCE; PROVIDED THAT CONSULTANT SHALL REMAIN LIABLE TO
AOL AND/OR ITS AFFILIATES TO THE EXTENT ANY DISCLAIMED DAMAGES ARE AWARDED TO A
THIRD PARTY OR INCLUDED IN A SETTLEMENT AND ARE SUBJECT TO INDEMNIFICATION AS
SET FORTH ABOVE.



Workers’ Compensation Insurance. No workers’ compensation insurance shall be
obtained by AOL concerning Consultant. Consultant shall comply with the
applicable workers’ compensation law concerning Consultant and shall provide to
AOL a certificate of workers’ compensation insurance upon request.



Comprehensive General Liability Insurance. Consultant further agrees to secure
and maintain, at Consultant’s sole cost and expense, Comprehensive General
Liability Insurance for damage claims due to bodily injury (including death),
or property damage caused by or arising from acts or omissions of Consultant.
The minimum limits of such insurance will be one million dollars
($1,000,000.00). Maintenance of the foregoing insurance will in no way be
interpreted as relieving Consultant of any responsibility whatsoever.



Headings. The captions and headings used in this Agreement are inserted for
convenience only and shall not affect the meaning or interpretation of this
Agreement.



Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original and all of which together shall constitute one and
the same document.



Surviving Sections. The following sections shall survive the termination of
this Agreement: 2.2 (“Independent Contractor”); 2.3 (“Consultant’s Employees
and Assistants”); 4.6 (“Taxes”) of this Agreement and this Exhibit B.




 







 





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EXHIBIT C




ACCEPTANCE CERTIFICATE

SCHEDULE NO. ___ DATED___[insert Schedule date]_____TO

AGREEMENT FOR CONSULTING SERVICES

BETWEEN

AMERICA ONLINE, INC. AND _____________

DATED AS OF __[insert main agreement date]___(the “Agreement”)




	 	 	 
	1.        Deliverables and documentation to be produced by Consultant:	 	
AOL Approval
	          2A:	 	 
	 	 	


	          2B:	 	 
	 	 	


	          2C:	 	 
	 	 	


	          2D:	 	 
	 	 	


	2.       Time for Performance/Delivery	 	
AOL Approval
	          2A:	 	 
	 	 	


	          2B:	 	 
	 	 	


	          2C:	 	 
	 	 	


	          2D:	 	 
	 	 	


	3.       Acceptance testing criteria for each Deliverable:	 	
AOL Approval




	 	 	 	 	 	 	 
	          Applicable as described below	 	 	Not Applicable	 	 	 
		
		
	
	 	




	 	 	 
	         Item 2A:	 	 
	 	 	


	         Item 2B:	 	 
	 	 	


	         Item 2C:	 	 
	 	 	


	         Item 2D:	 	 
	 	 	


	4.       Payments approved by AOL:	 	
AOL Approval




	 	 	 	 	 	 	 
	 	 	
Monthly
	 	 	 	

	 	
	 	 	 	 	 
	 	 	
Upon Completion	 	 	 	 
	 	 	 	 	 	 	

	 	
	 	 	 	 	 
	 	 	
Other (describe:
	)	 	 	 
	 	 	


	 	 	 	

	 	
	 	 	 	 	 
	 	 	
Progress Payments as follows:	 	 	 	 
	 	
	 	 	 	 	 





 







 





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	 	 	Progress Payments	 	Progress Milestones	 	AOL Approval
	 	 	
	 	
	 	

	Item 2A:	 	
$     
	 	     
	 	     
	 	 	
	 	
	 	

	Item 2B:	 	
$     
	 	     
	 	     
	 	 	
	 	
	 	

	Item 2C:	 	
$     
	 	     
	 	     
	 	 	
	 	
	 	

	Item 2D:	 	
$     
	 	     
	 	     
	 	 	
	 	
	 	





Payment for Partial Performance.



If AOL terminates this Agreement or any Schedule under Section 6.3 of the
Agreement, AOL shall pay Consultant through the Progress Milestone accepted and
approved above; and the amount set forth above for the Progress Milestone
Consultant is working to complete at the time the Agreement or Schedule is
terminated.





 







 





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EXHIBIT D




List of AOL Competitors



Yahoo!


Microsoft Networks and brands (e.g., Hotmail; MSN; MSN Messenger, etc.)


Earthlink


United Online (Net Zero and Juno)


Amazon


Ebay


USA Interactive


Comcast


Lycos


AT&T Broadband


Cox Communications


Charter Communications


Cablevision




 







 





AOL Confidential




EXHIBIT E




Chinese Wall Protection of AOL Confidential and Proprietary Information



In order to protect the vital confidential and proprietary interests of AOL,
Consultant shall be responsible for implementing the following security
measures with respect to Consultant’s employees and Assistants, as well as to
any aspect relating to Consultant’s performance of the Consulting Services.
Consultant is committed to protecting the confidentiality of all AOL
confidential and proprietary information. Consultant shall also implement any
other security measures reasonably requested by AOL.



1) Notification. Consultant shall notify and distribute copies of this Exhibit
E to all people working on this matter including, without limitation, the
employees listed herein, clerks, and administrative and other staff and
instruct such people to follow the procedures required to adhere to the
requirements and procedures set forth in this Exhibit E.



2) Assignment of project code name. Consultant shall assign a project “code
name” to the Consulting Services. All references to the Consulting Services
shall be under this project code name and only those employees and Assistants
working on the project shall know that the project is for AOL. All Code Names
shall mirror the name of the project as reflected on the applicable Schedule.



3) Consultant Team Members. Consultant shall provide to AOL in writing a list
of employees that are assigned to provide Consulting Services (the “Consulting
Services Team”) and shall update such list in writing within three (3) business
days of any change in the Consulting Services Team. In addition to the
restrictions set forth in Section 1.4 of the Agreement, during the term of any
Schedule and for two (2) months (the “Buffer Period”) after the earliest of (i)
AOL’s deployment of deliverables set forth in any such Schedule; (ii) AOL’s
final acceptance of all deliverables set forth in any such Schedule; or (iii)
the expiration or termination of such Schedule, no member of the Consulting
Services Team shall perform services for any AOL Competitor which are
substantially similar to services Consultant is then performing for AOL.
Notwithstanding anything to the contrary in this Agreement or any Exhibit
hereto, the expiration of the Buffer Period does not relieve Consultant or its
employees or agents of any confidentiality obligations under the Agreement.



4) No internal references to the AOL project. Consultant employees assigned
to perform Consulting Services, including those who have worked or will work on
any aspect relating to the Consulting Services shall not discuss, exchange
documents, or communicate (including, without limitation, email, intranet, and
all other means of communications) with any other non AOL team member or
Consultant’s other employees in any manner regarding the Consulting Services.



5) Confidentiality Agreements executed by all Consultant team members.
Consultant shall require that the members of the Consulting Services Team shall
execute Consultant’s standard confidentiality agreement, a copy of which has
been provided by AOL.



6) Restricted Access to Paper Files: The files and documents relating to the
Consulting Services shall be kept in a secure place and will not be part of any
central filing system; instead, they will be maintained in separate file
cabinets which will bear the following legend:




RESTRICTED ACCESS



THESE FILES ARE SUBJECT TO AN ETHICAL WALL PURSUANT TO AN AGREEMENT DATED
     , 2002. IMPORTANT: DO NOT DISCUSS THIS MATTER OR PROVIDE ACCESS TO
THIS FILE OR ANY DOCUMENTS RELATING TO THIS MATTER.



A copy of this Exhibit E shall be prominently placed in each of the paper files
relating to the Consulting Services.





 







 





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EXHIBIT F

CONSULTANT HOURLY RATES




Digital Content Production Services




	 	 	 	 	 	 	 	 	 	 	 	 	 
	Category	 	Type	 	Viewpoint Rate Card	 	AOL Rate Card
	
	 	
	 	
	 	

	Models
	 	Models	 	$	167	 	 	$	142	 
	Digitizing
	 	Digitizing	 	$	123	 	 	$	105	 
	Animations
	 	Camera & Object Animations	 	$	208	 	 	$	177	 
	 
	 	Animated Textures	 	$	187	 	 	$	159	 
	 
	 	Text Annotations	 	$	170	 	 	$	145	 
	 
	 	Bit-Map Annotations	 	$	332	 	 	$	282	 
	Photo Studio
	 	Photographic Time	 	$	221	 	 	$	188	 
	Web Integration
	 	Web Integration	 	$	217	 	 	$	185	 
	Web Design
	 	Web Design	 	$	234	 	 	$	199