EXHIBIT 10(c)
Olmsted Consulting Agreement
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CONSULTING AGREEMENT
This Agreement is made effective as of April 20, 1995 between
Versus Technology, Inc., a Delaware corporation, having a principal
place of business at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, its subsidiaries and divisions (hereafter "Versus"), and
Olmsted Engineering Co., a Michigan corporation, having a principal
place of business at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇ (hereafter "Consultant").
Recitals:
A. Versus desires to receive the services of Consultant with
respect to products being developed and sold by Versus
involving the Lynx IR systems. Consultant is skilled in
technical sales, technical marketing, computer programming and
engineering services, and desires to provide its services for
hire to Versus on a non-exclusive basis. Consultant has
internally developed, and will probably continue to develop in
the future while working on its own projects, as well as on
other projects for other clients, certain proprietary and/or
Confidential Information (hereafter defined in paragraph 1)
which Consultant desires to maintain, either for its own
benefit or that of its other clients.
B. Consultant is being engaged by Versus pursuant to this
Agreement in a position of trust and confidence under which
Consultant may use, observe, or obtain Confidential
Information of Versus. Conversely, in the course of its
relationship with Consultant, Versus may observe or obtain
Confidential Information of Consultant or Consultant's other
clients. Versus agrees that it, too, will be acting in a
position of trust and confidence towards Consultant with
respect to any Confidential Information of Consultant or its
other clients.
C. It is to the mutual benefit of the parties that they both
protect their respective rights in Confidential Information,
while at the same time ensuring that Versus obtains the
benefit of discoveries, inventions, improvements, and
innovations developed by Consultant, to the extent Versus is
entitled to the same pursuant to the terms of this Agreement.
Now, therefore, it is agreed as follows:
1. "Confidential Information" shall mean apparatus, articles of
manufacture, methods, processes, products, technology,
techniques, operational methods, hardware, software, programs,
shop practices, formulae, compounds, compositions, equipment,
inventions, improvements, research data, marketing and sales
information and plans, personnel data, customer lists,
distributor data and lists, broker data and lists, broker and
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distributor leads, financial data, plans for new product
acquisitions and all other know-how and trade secrets which
are in the possession of a party, or any of its subsidiaries
or affiliated companies, and which are not generally known and
which have not been published or disclosed to the general
public. Documented Confidential Information must be so
indicated when delivered to the other party. Confidential
Information shall not be deemed to mean or include any
information which is or was known to a party prior to
disclosure to it by the other, or was independently developed
by a party without use of any know-how or trade secret of the
disclosing party. Information which is specifically produced
or created by Consultant for Versus during the time Consultant
is directly working on the projects which are the subject
matter of this Agreement, and for which Versus has paid in
accordance with this Agreement, are agreed to be within the
ambit of Confidential Information which is proprietary solely
to Versus.
2. All correspondence, memoranda, notes, figures, records,
instruments, reports, specifications, photographs, drawings,
designs, plans, papers, computer data, software, blueprints,
manuals, or other documents made or compiled by or made
available by one party to the other during the term hereof,
and any copies or abstracts thereof, which contains
Confidential Information belonging to a party shall be
returned to such party immediately upon demand therefor. For
the term of this Agreement, and for five years after
termination of this Agreement, neither party shall, without
the written consent of the other, use or disclose to others,
any Confidential Information obtained during the term of this
Agreement.
3. Versus hereby hires Consultant for a period of one year,
commencing on April 20, 1995 and ending on April 20, 1996, to
assist Versus to market, engineer, design, code, test document
(in code and users), revise, create individual customer
interfaces, and support the Lynx IR systems, thus helping
Versus achieve access to complete data transferabilities,
proper personnel back-ups and management sign off on all
procedures.
4. Consultant will promptly advise Versus of each invention,
discovery, idea, or improvement, whether or not patentable,
that is made or conceived by Consultant, either alone or with
others, during the term of this Agreement which is solely and
directly related to Consultant's work and investigations and
resulting from or suggested by work done specifically for
Versus at its request pursuant to the above undertaking
(collectively hereafter referred to as "Invention").
Consultant will promptly submit to Versus a written disclosure
of each Invention describing its nature, use, and operation.
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To this end, Consultant will maintain a record from day to day
of all work of an important character, including each
Invention in the form prescribed by Versus. Consultant will
deliver the relevant records to Versus immediately upon the
termination of this Agreement. Consultant will, without
further consideration, assign to Versus all right, title and
interest in each Invention which Consultant may possess,
whether or not patentable, and will at all times during this
Agreement and after its termination for any reason not
attributable to the fault or neglect of Versus, assist Versus
in every proper way. Versus may obtain, for its own benefit,
patents or other forms of protection for each Invention in any
and all countries. From time to time on request, Consultant
will execute all papers and do all proper things that may
reasonably be required to protect and maintain the rights of
Versus in an Invention, whether or not patented; provided,
that any costs of doing so will be paid by Versus.
5. Consultant will promptly advise Versus of each copyrighted
work that is made or created by Consultant, either alone or
with others, during the term of this Agreement, which is
solely and directly related to Consultant's work and
investigations for Versus pursuant to this Agreement. All
such works shall be deemed to have arisen out of Consultant's
agreement and shall be deemed to be works for hire.
Consultant will, without further consideration, assign to
Versus all right, title and interest in each such work which
Consultant may possess, and will, at all times during
employment and after its termination for any reason assist
Versus in every proper way; provided, that any costs of doing
so will be paid by Versus.
6. East party expressly acknowledges that any breach by it of any
of the covenants herein contained relating to use or
disclosure of Confidential Information will result in
irreparable injury to the other party for which money damages
could not adequately compensate. In the event of any such
breach or threatened breach, the non-breaching party shall be
entitled, in addition to any other rights and remedies which
it may have at law or in equity, to have an injunction issued
by any competent court of equity enjoining and restraining the
offending party and/or any other person involved therein from
continuing such breach. The existence of any claim or cause
or action which a party may have against the other or any
other person shall not constitute a defense or bar to the
enforcement of such covenants.
7. Consultant agrees that during the term of this Agreement
Consultant shall not directly or indirectly compete with
Versus in the development, production, marketing or servicing
of any product or service that relates to the work Consultant
has undertaken to perform pursuant to this Agreement; nor will
Consultant aid or become associated with others involved in
any such acts.
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8. Consultant and Versus recognize that Versus's and Consultant's
business interests are worldwide in scope. Accordingly,
Consultant shall not at any time during the period of this
Agreement and one year following termination of this Agreement
engage in or contribute its knowledge to any work which is
competitive with or similar to a product, process, apparatus,
service or development of Versus on which Consultant worked or
with respect to which Consultant had access to Confidential
Information of Versus while under contract with Versus;
however, Consultant shall be permitted to engage in such
proposed work or activity, and Versus shall furnish Consultant
with a written consent to that effect, if Consultant furnishes
to Versus clear and convincing written evidence, including
assurances from Consultant that the fulfillment of
Consultant's duties in such proposed work or activity would
not cause Consultant to disclose, base judgments upon, or use
any such Confidential Information. Following the expiration
of the one year period, each party shall continue to be
obligated under the nondisclosure of Confidential Information
clauses of this Agreement so long as it shall remain
proprietary and protectable as Confidential Information. It
is understood that the geographical area set forth in this
clause is divisible so that if this clause is invalid or
unenforceable in an included geographic area, that area is
severable and this clause remains in effect for the remaining
included geographic areas in which the clause is valid.
9. If any portion of the covenant, or the application thereof, is
invalid or unenforceable, the other portions of the covenant,
or the application thereof, shall not be affected, and shall
be given full force and effect without regard to the invalid
or unenforceable portion. If any covenant is unenforceable,
the court making such determination shall have the power to
reduce the scope of such covenant to the extent required to
make such covenant enforceable as so reduced.
10. (a) As compensation to Consultant for the services to be
rendered pursuant to this Agreement, Versus agrees to pay
Consultant a fixed annual fee in the amount of $144,000,
payable in monthly installments of $12,000, with the
first such installment to be paid concurrently with the
mutual execution and delivery of this Agreement (to cover
the month of April), and subsequent installments to be
received by Consultant on the first of each month after
May 1, 1995; provided, that the entire amount shall be
due and payable upon termination of this Agreement if
terminated for any reason not attributable to a
substantial breach of a material obligation of this
Agreement by Consultant.
(b) The first 100 man hours of Consultant's time devoted to
its work for Versus during a calendar month shall be
deemed to be fully paid by that month's $12,000
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installment. If Consultant spends more than 100 man
hours during a calendar month at the request of Versus,
Versus will pay Consultant an additional fee at the rate
of $90 per hour for all such excess hours during such
month. Any portion of the 100 hours not used in a
particular calendar month will lapse at the end of the
month.
(c) Versus also agrees to pay for any reasonable and
authorized travel or other out of pocket expenses paid or
incurred by Consultant which are directly related to the
rendering of services requested by Versus. Consultant
will periodically invoice Versus for all such additional
fees and expenses, if any, and Versus shall pay the same
on a net 15 basis. If any sums owed to Consultant by
Versus are not paid when due, or within a 15 day grace
period following the due date, Versus agrees to pay
interest on the unpaid principal at the rate of 15% per
annum, or the highest lawful rate, whichever is lower.
11. All services and products supplied to Versus will be performed
on a "best efforts" basis to meet Versus's written
specifications, without express or implied warranty by
Consultant of any kind, including specifically, but without
implied limitation, no warranty of FITNESS for a particular
purpose and no warranty of MERCHANTABILITY. Versus will
promptly inspect any deliveries to it from Consultant, and
will accept or reject the same promptly, in writing, and in
any event before commercial use or installation into any
Versus product. Upon acceptance or installation into a Versus
product, Consultant's liability shall cease, and Versus shall
be solely responsible for any products it may deliver to third
parties. In no event shall Consultant have any liability for
incidental or consequential damages.
12. This Agreement shall inure to the benefit of and be binding
upon the successors and assigns of the respective parties
hereto. This Agreement constitutes and fully integrates the
entire understanding between the parties hereto, and is
intended to supersede and cancel all prior written or oral
understandings between them dealing with the subject matter
hereof. This Agreement may not be changed orally, but only in
writing, signed by the party against whom enforcement of any
waiver, change, amendment, modification, extension or
discharge is sought. No other warranties, representations or
covenants exist that are not herein contained. All notices
required or authorized under this Agreement shall be in
writing and shall be deemed to have been duly given on the
date of service if served personally on the party to whom
notice is to be given, or the second day after mailing, if
mailed to the party to whom notice is to be given by first
class mail, registered or certified, postage prepaid and
addressed to the respective parties at the addresses set forth
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above, unless and until a different address shall be furnished
by any party desiring to change such address to the other
party. For each term and pronoun used in this Agreement, the
singular number includes the plural number, and vice versa,
and any gender, whether masculine, feminine, or neuter,
includes the other genders, as appropriate and as the context
may reasonably require. The invalidity of any paragraph,
provision or part hereof shall not affect the validity of any
other paragraph, provision or part hereof. This Agreement
shall be construed as a whole and in accordance with its fair
meaning. Captions, if any, and organization are for
convenience and shall not be used in construing its meaning.
This Agreement may be executed in one or more counterparts,
all of which shall constitute one and the same instrument and
each one of which shall be deemed an original. Each party
shall, upon reasonable request, execute and deliver such other
and further documents as may be necessary and proper to
effectuate this Agreement. This Agreement shall be
interpreted and enforced in accordance with the laws of the
State of Michigan, excluding any conflicts-of-law rule or law
which refers to the laws of another jurisdiction. In the
event of litigation arising under or in connection herewith,
each party consents to the exclusive in personam jurisdiction
of the state courts of the State of Michigan, with venue in
Traverse City, Michigan, and the nonprevailing party agrees to
pay the prevailing party's actual attorney's fees and expenses
in connection with any such litigation, in addition to any
costs, remedies or damages the court may award. This
Agreement constitutes the jointly bargained agreement of the
parties, and the construction of this Agreement shall not be
altered or influenced by the fact or presumption that one
party had a greater or lessor hand in drafting this Agreement.
Any Recitals are hereby made a part of this Agreement and all
exhibits, attachments, and schedules, if any, attached to this
Agreement are hereby incorporated herein by reference for all
applicable purposes. If the date for performance of any act
hereinafter falls on a Saturday, Sunday, or legal holiday,
then the time for performance thereof shall be deemed extended
to the next successive business day. Whenever it is provided
in this Agreement that days be counted, the first day to be
counted shall be the day following the date on which the event
causing the period to commence occurs. This Agreement is
intended solely for the benefit of the parties hereto and
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their successors and assigns, and may not be relied upon or
enforced by any third party beneficiary.
Effective as of the day and year written above.
Olmsted Engineering Co. Versus Technology, Inc.
By: ▇▇▇▇▇ TERNARVITZ By:________________________
__________________________
▇▇▇▇▇ Ternarvitz
Its: Vice President Its:_______________________
Sales and Marketing
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______________________________
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______________________________
Julian ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ SNOWDAY
______________________________
▇▇▇▇▇ Snowday
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