Exhibit 10.5
INDEPENDENT CONSULTANT AGREEMENT
Xxxxx X. Xxxx
This Independent Consulting Agreement ("Agreement") is entered into
effective as of the 8th day o f September, 2003, by and between Y3K Secure
Enterprise Software, Inc. with offices at 000 X. Xxxxxxx Xxxxxx, Xxxxxxxx XX.
00000 (the "Company") and Xxxxx X. Xxxx ("Consultant")
Recitals
A. WHEREAS, the Company desires to retain Consultant to provide certain
Services, and Consultant desires to perform such Services for the Company as an
independent contractor; and
B. WHEREAS, the Company and Consultant wish to set forth inwriting the
terms of their contractual relationship;
NOW, THEREFORE, in consideration of the mutual covenants and promises
hereinafter contained, the parties agree as follows:
AGREEMENT
1. Scope of Work. The Company hereby employs Consultant as an independent
contractor. Consultant shall provide the following services to the Company, as
requested by the President of the Company (the "Services"):
1.1 Manage the Quality Assurance process with internal and external resources
for the combined technologies of xSides and Y3K Products and Services
1.2 Develop and manage test plans creation for black box and white box test
1.3 Act as a project manager as situations dictate in the development of the
bundled products and services.
1.4 Consultant will be reporting to Xxxxxx Xxxxx and will be responsible for
delivering weekly status reports, and other operational material as needed, as
well as other duties as assigned.
Consultant shall not have any authority in the performance of the Services to
enter into any binding agreements, but shall only assist in negotiating
strategic relationships and the like and advise the Company accordingly. The
Company shall have final authority on whether to accept or reject any business
arrangements or agreements negotiated by Consultant. Consultant specifically
agrees that he will not at any time represent himself to be an officer or
employee of the Company or in any capacity other than an independent contractor
hired to assist the Company in various strategic initiatives. Consultant shall
not have the power or right to hire employees or enter into agreements on behalf
of the Company, terminate or modify any existing agreements, or otherwise
exercise any management decisions with respect to the Company.
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2. Term. The term of this Agreement shall be for a period of 180 days commencing
on 8th day of September. Either party may terminate this Agreement at any time
upon fifteen (15) days' prior written notice. Company may also terminate this
Agreement immediately in the event of Consultant's default in the performance of
this Agreement or material breach of any of its provisions.
3. Consulting Fees. For the Services to be rendered by Consultant to Company
pursuant to this Agreement, Consultant shall be entitled to a monthly consulting
fee (the "Consulting Fee") in the amount of Six Thousand Three Hundred and
00/100 Dollars ($ 6300.00) for the duration of this agreement and negotiated
every month thereafter. The Consulting Fee shall be paid in equal semi-monthly
installments on our before the first day and the 16th of each month. In the
event that this Agreement is terminated on a date other than the first of the
month, then the Consulting Fee for that month shall be prorated as of the date
of termination. 4. Expenses. Consultant shall be reimbursed for all reasonable
"out-of-pocket" business expenses for business travel and business entertainment
incurred in connection with the performance of Services under this Agreement as
approved by the President of the Company in advance; provided, however, that two
officers of the Company must approve business expenses aggregating more than $
100.00 monthly.
5. Proprietary Rights. Consultant agrees that all works, materials,
presentations, programs, ideas, technologies, inventions, improvements,
discoveries, processes, software designs, technical information or programs or
other properties made or conceived by Consultant, and other data and materials
resulting from Services provided under this Agreement (collectively, "Works")
are works-made-for-hire and the Works, including all ownership, patent rights,
copyrights, trade secrets and other intellectual property rights embodied
therein that all (separately and collectively the "Intellectual Properties"),
shall be the sole property of Company to the extent any Works or portions
thereof are considered to be works-made-for-hire.
6. Confidentiality. Consultant recognizes and acknowledges that during the
course of performing Services under this Agreement he shall have access to
certain information not generally known to the public, relating to the business
of Company, which may include without limitation, the existence and terms of
this Agreement, customer lists, sales and business information, prospects or
projections, processes, formulas, research or experimental work, work in
process, trade secrets, source code, software programs owned by Company,
marketing plans and procedures, Intellectual Properties (as defined in Section
5), or any other proprietary or confidential matter (collectively "Confidential
Information"). Consultant recognizes and acknowledges that this Confidential
Information constitutes a valuable, special and unique asset of Company, access
to and knowledge of which are essential to the performance of Consultant's
Services under this Agreement. Consultant acknowledges and agrees that all such
Confidential Information, including without limitation that which Consultant
conceives or develops, either alone or with others, at any time during the term
of this Agreement, is and shall remain the exclusive property of Company and
upon termination of this Agreement, no tangible form of such information or
copies shall be retained by Consultant in any form. Consultant further
recognizes, acknowledges and agrees that in order to enable Company to perform
services for its customers, such customers may furnish to it confidential
information concerning their business affairs, property, methods of operating or
other data, that the goodwill afforded to Company depends upon it and its
employees, contractors, agents and consultants preserving the confidentiality of
such information, and that such information shall be treated as Confidential
Information of Company for all purposes under this Agreement.
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7. Non-disclosure. Consultant agrees that, except as directed by Company in
writing or with the prior written permission of Company, Consultant shall not at
any time, whether during or after his employment with Company, use or disclose
to any person any Confidential Information, or permit any person to use, examine
or make copies of any documents, files, data or other information sources which
contain or are derived from Confidential Information, whether prepared by
Consultant or otherwise coming into Consultant's possession or control.
8. Possession. Consultant agrees that upon request by Company, and in any event
upon termination of this Agreement for any reason whatsoever, Consultant shall
turn over to Company all documents, notes, papers, data, files, computer discs
or other programs, office supplies or other material or work product in
Consultant's possession or under his control, whether originals, copies or
drafts, which were created pursuant to, are connected with or derived from
Consultant's services to Company, or which are related in any manner to
Company's business activities, training or research and development efforts, and
that Consultant shall delete such information from any personal computer
Consultant may have.
9. Non-competition. Consultant agrees and covenants that during the term of this
Agreement and for six (6) months after termination of this Agreement for any
reason, Consultant shall not, directly or indirectly: (a) solicit any employees
of Company or any of Company's independent contractors to become associated with
any business which is competitive with that of Company with which Consultant may
be connected in any way; or (b) solicit any customer or targeted prospective
customer of Company on behalf of any business which is directly competitive with
any aspect of the business of Company as presently conducted or as said
businesses may evolve in the ordinary course of business between the date of
this Agreement and the expiration of this covenant not to compete (the "Company
Business"), whether or not using any Confidential Information, or (c) compete
with any aspect of Company Business, whether as an owner, partner, shareholder,
consultant, advisor or in any other capacity for a business which is competitive
with Company Business.
10. Injunctive Relief. Consultant acknowledges that the breach or threatened
breach of the "Proprietary Rights," "Confidentiality," "Non-competition," or
"Non-disclosure" or any other provisions of this Agreement would give rise to
irreparable injury to Company, which injury would be inadequately compensable in
money damages. Accordingly, Company may seek and obtain injunctive relief from
the breach or threatened breach of any provision, requirement or covenant of
this Agreement, in addition to and not in limitation of any other legal remedies
that may be available.
11. Attorneys' Fees and Costs. In the event of any dispute arising out of the
subject matter of this Agreement, the prevailing party shall recover, in
addition to any other damages assessed, its reasonable attorneys' fees and court
costs incurred in litigating or otherwise settling or resolving such dispute
whether or not an action is brought or prosecuted to judgment. In construing
this Agreement, none of the parties hereto shall have any term or provision
construed against such party solely by reason of such party having drafted the
same.
12. Independent Contractor Status/Indemnity. Consultant acknowledges and agrees
that Consultant is an independent contractor and not an agent of Company.
Consultant, and any and all employees or sub-contractors of Consultant, if any,
providing services pursuant to this Agreement shall not be considered employees
of Company. Consultant acknowledges that Consultant is responsible to pay and
agrees to pay any and all applicable federal and state self-employment taxes and
fees in connection with the Services under this Agreement, and that Consultant
will abide by all applicable federal, state, and local laws in connection
therewith. Consultant acknowledges that Consultant shall not be entitled to
participate in any employee benefit plans or other fringe benefits, which might
otherwise be available to employees of Company. In the event that Company incurs
any loss, cost, claim, expense or liability, including attorney fees, as a
direct or indirect result of Consultant's material default under this Agreement
(which specifically includes Consultant's failure to pay taxes as required in
this Section or misrepresentation by Consultant of Consultant's status with
respect to the Company in violation of Section 1), then Consultant agrees to
indemnify, defend and hold the Company harmless from any and all such loss,
cost, claim, expense or liability.
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13. Governing Law. The Agreement shall be construed in accordance with the
internal laws of the State of Washington applicable to contracts made and
performed there. Consultant's obligations under this Agreement supplement and do
not supersede the obligations imposed on Consultant by the laws of the State of
Washington and the United States of America, including without limitation by the
Washington Uniform Trade Secrets Act.
14. Survival. Any provision of this Agreement which imposes an obligation after
termination or expiration of this Agreement (including without limitation the
"Proprietary Rights" "Confidentiality," "Non-disclosure," and "Non-competition"
provisions) shall survive the termination or expiration of this Agreement and be
binding on Consultant and Company.
15. Severability. The invalidity or unenforceability of any provision in the
Agreement shall not in any way affect the validity or enforceability of any
other provision and this Agreement shall be construed in all respects as if such
invalid or unenforceable provision had never been in the Agreement.
16. Assignment. The rights of Consultant hereunder shall not be assigned or
transferred without Company's prior written consent. Any assignment without
Company's prior written consent shall be null and void.
17. Amendments. This Agreement may be amended at any time by mutual consent of
the parties hereto, with any such amendment to be invalid unless in writing,
signed by Company and Consultant.
18. Entire Agreement. This Agreement constitutes the entire agreement between
the parties respecting the employment of Consultant by Company, and there are no
representations, warranties or commitments, except as set forth herein.
IN WITNESS WHEREOF, Company and Consultant have duly executed this
Agreement.
COMPANY: CONSULTANT:
Y3K Secure Enterprise Software, Inc.
/s/Xxxx Xx. Xxxx /s/ Xxxxx X. Xxxx
- ------------------------------------ -----------------
By: King Xx Xxxx, President By: Xxxxx X. Xxxx
Date: 9/8/03 Date: 9/8/03
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