EXHIBIT NO. 6.10
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CONSULTING AGREEMENT BETWEEN INTEGRATED
SYSTEMS INTERNATIONAL, INC. AND KASSTECH, INC.
DATED MARCH 14, 2000
CONSULTING AGREEMENT
CONSULTING AGREEMENT, entered into as of the 14th day of March, 2000,
by and between Integrated Systems International, Inc., a Nevada corporation,
with its principal place of business at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (the "Company"), and Kasstech, Inc., a Delaware corporation, having an
office at 0000 XXXXXXXXX XXXX, XXXXXXXX, XX 00000, the ("Consultant").
W I T N E S S E T H :
WHEREAS, the Company wishes to engage the Consultant to perform certain
research and development and other related technology services upon the terms
and conditions contained herein; and
WHEREAS, the Consultant wishes to accept such engagement by the Company
upon the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual promises contained
herein and for other good and valuable consideration, the parties hereto
hereby agree as follows:
1. ENGAGEMENT
The Company hereby engages the Consultant and the Consultant hereby
accepts such engagement upon the terms and conditions set forth herein.
2. TERM
(a) The term of this Consulting Agreement shall commence on the date
hereof and end on March 31, 2005, unless sooner terminated pursuant to the terms
contained herein.
(b) Notwithstanding the above, the Company may terminate this Agreement
upon written notice to the Consultant if (i) the designated representative of
the Consultant approved by the Company is not providing services required
hereunder or (ii) the Consultant shall materially breach its obligations under
this Agreement and in either case, such failure or breach is not cured within 10
days after written notice from the Company.
3. SERVICES TO BE RENDERED
(a) The Consultant shall perform such research and development
and other technology related services for the Company as shall be requested by
the Company from time to time (the "Projects").
(b) Initially, the Consultant shall perform all acts and
services the Company deems necessary (including preparation of technical
information and drawings and coordinating/consulting
with the Company's patent counsel) to cause the prompt filing of patent
applications with respect to two (2) provisional patents presently owned by (or
being assigned to) the Company, namely (i) "Automated Search Engine" and
(ii) "Anti-Bootleg Audio Encryption", and shall thereafter perform all acts and
services necessary to obtain US Patent and Trademark office grant of said
patents.
(c) The Consultant shall designate at all times one (1)
qualified representative (subject to the Company's approval) who shall be
available to work on the Company's Projects on a full-time basis. Until
otherwise agreed by the Company, the designated representative shall be
Xxxxxxx Xxxxxxx. In the event that, at any time, the services requested by
the Company shall require more than one full-time representative of the
Consultant then the parties shall, in good faith, negotiate additional
compensation payable to the Consultant for such services.
4. COMPENSATION
For the services rendered hereunder, the Company shall pay and
the Consultant shall accept the following compensation:
(a) From the commencement of the term hereof until
termination, the Consultant shall receive a consulting fee of $120,000 per
annum, payable monthly.
(b) The Consultant shall receive any bonus or other
compensation as the Board of Directors may determine from time to time.
5. EXPENSES
(a) During the term of this Agreement, the Company shall, upon
presentation of proper vouchers, reimburse the Consultant for all expenses
incurred by the Consultant or its representative directly in connection with his
performance of services hereunder provided such expenses were approved in
advance by the Company.
(b) The Consultant shall be entitled to four (4) weeks of paid
vacation per calendar year. Vacation entitlements are non-cumulative and if the
Consultant fails to use any or all of its four (4) weeks vacation allotment
during a particular calendar year, such vacation shall be deemed forfeited
forever. Notwithstanding the foregoing, the parties agree that for the calendar
year ending December 31, 2000, the Consultant will be entitled to two (2) weeks
of paid vacation.
(c) The Consultant shall receive as paid days off all national
holidays, sick days, and personal days that the Company, pursuant to established
policy, recognizes and observes.
(d) In no event shall the Company be liable for payment of any
salaries, wages or other compensation payable by the Consultant to its
representative(s) performing services for the Company hereunder.
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6. COVENANTS AND RESTRICTIONS
(a) The Consultant hereby covenants and agrees that the
Consultant will not at any time subsequent to the date hereof and continuing for
a period of two (2) years from the termination of this Agreement, reveal,
divulge, or make known to any Person any Confidential Information (as
hereinafter defined) made known to the Consultant or of which Consultant has
become aware, regardless of whether developed, prepared, devised or otherwise
created in whole or in part by the efforts of the Consultant and except to the
extent so authorized in writing by the Company in order to carry out the terms
of this Agreement or except as required by law. For purposes of this Agreement,
the term "Confidential Information" shall mean (i) any technical, scientific or
engineering information relating to the Company's products and/or services, (ii)
information relating to any customer of the Company, including without
limitation, the names, addresses, telephone numbers and sales records of, or
pertaining to any such customer, and (iii) price lists, methods of operation and
other information pertaining to the Company and which the Company, in its sole
discretion, regards as confidential and in the nature of trade secrets.
Notwithstanding anything contained herein to the contrary, Confidential
Information as used herein shall not include that which (i) was in the public
domain prior to receipt hereunder in the same context as the disclosure made
hereunder, (ii) the Consultant can show was in his possession and in the same
context prior to his receipt, (iii) subsequently becomes known to the Consultant
as a result of disclosure by third parties not in the course of this Agreement
and as a matter of right and without restriction on disclosure, or (iv)
subsequently comes into the public domain in the same context as the disclosure
by the Company through no fault of the Consultant.
(b) The Consultant further covenants and agrees that the
Consultant will retain all of such Confidential Information in trust for the
sole benefit of the Company, and will not divulge or deliver or show any of such
Confidential Information to any unauthorized person and will not make use of or
in any manner seek to turn to account any of such Confidential Information in an
independent business however unrelated to the business of the Company. The
Consultant further agrees that upon the termination of this Agreement or upon
the request of the Company, the Consultant will either supply or return to the
Company, in accordance with the Company's request, all Confidential Information
in the Consultant's possession, including, without limitation, all account
lists, records and data related to all customers of the Company.
(c) The Consultant shall cause each and every one of its
representatives performing services for the Company pursuant to this Agreement,
and each of its principals, officers and employees to observe and be bound by
the provisions of this Section 6.
(d) The Consultant acknowledges that his breach or
threatened violation of any of the restrictive covenants contained in this
Section 6 may cause irreparable damage to the Company for which remedies at
law would be inadequate. The Consultant further acknowledges that the
restrictive covenants set forth herein are essential terms and conditions of
this Agreement. The Consultant therefore agrees that the Company shall be
entitled to a decree or order by any court of competent jurisdiction
enjoining such threatened or actual violation of any of such covenants. Such
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decree or order, to the extent appropriate, shall specifically enforce the full
performance of any such covenant by the Consultant and the Consultant hereby
consents to the jurisdiction of any such court of competent jurisdiction. This
remedy shall be in addition to all other remedies available to the Company at
law or equity. If any portion of this Section 6 is adjudicated to be invalid or
unenforceable, this Section 6 shall be deemed amended to delete therefrom the
portion so adjudicated, such deletion to apply only with respect to the
operation of this Section 6 in the jurisdiction in which such adjudication is
made.
7. PROPRIETARY PROPERTY
(a) The parties hereto hereby agree that Proprietary
Property (as hereinafter defined) shall be the sole and exclusive property of
the Company, except as provided below. For purposes hereof, the term
"Proprietary Property" shall mean inventions, discoveries, improvements and
ideas, whether patentable or not, made solely by the Consultant or jointly
with others, which relate to the Company's business, including any of its
products, services, processes, technology, research, product development,
marketing programs, manufacturing operations, or engineering activities.
(b) The Consultant shall promptly disclose to the
Company in writing all Proprietary Property, including those in the formative
stages, created during the term hereof, irrespective of whether created
during normal business hours. In addition, the Consultant hereby agrees to
promptly disclose to the Company all Proprietary Property created subsequent
to the date of termination hereof, irrespective of the reasons for
termination hereof, which relate to or constitute an improvement on
Proprietary Property or Confidential Information, as defined herein.
(c) The Consultant hereby agrees and acknowledges
that the Consultant shall have no right, title or interest in or with respect
to any Proprietary Property, except as described below, and will during the
term hereof or at any time subsequent to the termination hereof, at the
Company's request and expense, execute any and all patent applications and
assignments to the Company and take any and all action as required by the
Company to perfect and maintain the Company's rights and interests in and
with respect to the Proprietary Property.
(d) The Consultant hereby agrees to maintain written
records concerning the Proprietary Property and agrees to make those records
available to the Company at all times.
(e) Notwithstanding anything contained herein to the
contrary, Proprietary Property shall not include inventions or discoveries
with respect to which all of the following conditions apply:
(i) no equipment, supplies, facilities or
Confidential Information of the Company was used in
its development;
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(ii) it does not relate the Company's business
and/or any proposed or planned products or services
of the Company, including any research and
development activities; and
(iii) it does not result from any work performed
by the Consultant for the Company.
(f) During or subsequent to the Consultant's engagement
by the Company, the Consultant will not, directly or indirectly, lecture
upon, publish articles concerning, use, disseminate, disclose, sell or offer
for sale any Proprietary Property without the Company's prior written
permission.
(g) The foregoing provisions of this Section shall be
binding upon each and every representative of the Consultant performing
services for the Company and each of the Consultant's principals, officers
and employees.
8. PRIOR AGREEMENTS
The Consultant represents that it is not now under any written
agreement, nor has it previously, at any time, entered into any written
agreement with any person, firm or corporation, which would or could in any
manner preclude or prevent it from giving freely and the Company receiving the
exclusive benefit of its services.
9. NON-COMPETE
The Consultant recognizes that the Proprietary Property is a special
and unique asset of the Company and needs to be protected from improper
disclosure. In consideration of the disclosure of the Proprietary Property to
the Consultant, the Consultant agrees and covenants that for a period of two (2)
years following the termination of his engagement for any reason whatsoever, the
Consultant will not directly or indirectly engage in any business that is
competitive to the Company. This covenant shall apply to the geographical area
that includes the entire continental United States. "Directly or indirectly
engaging in any business that is competitive" includes, but is not limited to:
(a) engaging in a business as an owner, partner or agent, (b) becoming a
consultant, employee or agent of any third party that is engaged in such
business, (c) becoming interested directly or indirectly in any such business,
or (d) soliciting any customer of the Company for the benefit of a third party
that is engaged in such business. The Consultant agrees that this non-compete
provision will not adversely affect the Consultant's livelihood. The provisions
of this Section 9 shall be binding upon each representative of the Consultant
performing services for the Company, as well as the Consultant's principals,
officers and employees.
10. MEDIATION AND ARBITRATION.
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(a) If any dispute, controversy or claim arises in
connection with the performance or breach of this Agreement between the
parties, a party hereto may, upon written notice to the other parties,
request facilitated negotiations. Such negotiations shall be assisted by a
neutral facilitator acceptable to all parties and shall require the best
efforts of the parties to discuss with each other in good faith their
respective positions and, respecting their different interest, to finally
resolve such dispute.
(b) A party may disclose any facts to the other parties
or to the facilitator which such party believes, in good faith, to be
necessary to resolve the dispute. All such disclosures shall be deemed in
furtherance of settlement efforts and thus confidential. Except as agreed to
by all parties, the facilitator shall keep confidential all information
disclosed during the negotiations. The facilitator shall not act as a witness
for either party in any subsequent arbitration between the parties.
(c) Such facilitated negotiations shall conclude within
sixty (60) days from receipt of the written notice, unless extended by mutual
consent of the parties. The costs incurred by each party in such negotiations
shall be borne by it. Any fees or expenses of the facilitator shall be borne
equally by all parties.
(d) If any dispute, controversy or claim arises in
connection with the performance or breach of this Agreement which cannot be
resolved by facilitated negotiations, then such dispute, controversy or claim
shall be settled by arbitration in accordance with the laws of the State
of New York and the then current Commercial Arbitration Rules of the American
Arbitration Association, except that no pre-hearing discovery will be
permitted unless specifically authorized by the arbitration panel. The
confidentiality provisions applicable to facilitated negotiations shall also
apply to arbitration.
(e) The award issued by the arbitration panel may be
confirmed in a judgment by any federal or state court of competent
jurisdiction. All reasonable costs of both parties, as determined by the
arbitration panel, including (i) the fees and expenses of the American
Arbitration Association and of the arbitration panel, and (ii) the costs,
including reasonable attorneys' fees, incurred to confirm the award in court,
shall be borne entirely by the non-prevailing party (to be designated by the
arbitration panel in the award) and may not be allocated between the parties
by the arbitration panel.
11. MISCELLANEOUS
(a) This Agreement shall inure to the benefit of and be
binding upon the Company, its successors and assigns, and upon the Consultant,
his heirs, executors, administrators, legatees and legal representatives.
(b) Should any part of this Agreement, for any reason
whatsoever, be declared invalid, illegal, or incapable of being enforced in
whole or in part, such decision shall not affect the validity of any remaining
portion, which remaining portion shall remain in full force and
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effect as if this Agreement had been executed with the invalid portion thereof
eliminated, and it is hereby declared the intention of the parties hereto that
they would have executed the remaining portion of this Agreement without
including therein any portion which may for any reason be declared invalid.
(c) This Agreement shall be construed and enforced in
accordance with the laws of the State of New York applicable to agreements made
and to be performed in such State without application of the principles of
conflicts of laws of such State.
(d) This Agreement and all rights hereunder are personal
to the Consultant and shall not be assignable, and any purported assignment
in violation thereof shall be null and void. Any person, firm or corporation
succeeding to the business of the Company by merger, consolidation, purchase
of assets or otherwise, shall assume by contract or operation of law the
obligations of the Company hereunder; provided, however, that the Company
shall, notwithstanding such assumption and/or assignment, remain liable and
responsible for the fulfillment of the terms and conditions of the Agreement
on the part of the Company.
(e) This Agreement constitutes the entire agreement
between the parties hereto with respect to the terms and conditions of the
Consultant's engagement by the Company, as distinguished from any other
contractual arrangements between the parties pertaining to or arising out of
their relationship, and this Agreement supersedes and renders null and void
any and all other prior oral or written agreements, understandings, or
commitments pertaining to the Consultant's engagement by the Company. This
Agreement may only be amended upon the written agreement of both parties
hereto.
(f) Any notice, statement, report, request or demand
required or permitted to be given by this Agreement shall be in writing, and
shall be sufficient if delivered in person or if addressed and sent by
certified mail, return receipt requested, postage prepaid, to the parties at
the addresses set forth above, or at such other place that either party may
designate by notice in the foregoing manner to the other. If mailed as
aforesaid, any such notice shall be deemed given three (3) days after being
so mailed.
(g) The failure of either party to insist upon the strict
performance of any of the terms, conditions and provisions of this Agreement
shall not be construed as a waiver or relinquishment of future compliance
therewith, and said terms, conditions and provisions shall remain in full force
and effect. No waiver of any term or any condition of this Agreement on the part
of either party shall be effective for any purpose whatsoever unless such waiver
is in writing and signed by such party.
(h) The provisions of Sections 6, 7, 9, 10 and 11 of this
Agreement shall survive any termination of this Agreement.
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(i) The headings of the paragraphs herein are inserted
for convenience and shall not affect any interpretation of this Agreement.
(j) The parties acknowledge and agree that the Consultant
and its representatives performing services hereunder for the Company are
acting as independent contractors, and that nothing contained herein shall be
deemed to create an employer-employee relationship between the parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
Kasstech Inc. Integrated Systems International, Inc.
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxx Xxxxx
________________________________ By:__________________________________
CEO Name Xxxx Xxxxx
Title: Chairman
AGREED TO:
/s/ Xxxxxxx X. Xxxxxxx
__________________________________
Kystol X. Xxxxxxx, Individually
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