CONSULTING AGREEMENT
THIS AGREEMENT is entered into as of July 6, 2000 by and between Masterpiece
Technology Group, Inc., a corporation organized and existing under the laws of
the State of Utah having its principal place of business at 000 Xxxxx Xxxxxx
Xxxx, Xxxxxxxx, XX 00000, ("Company") and Xxxxx Xxxx, an individual with a
principal address at XX Xxx 0000, Xxxxxxxx, XX 00000 ("Consultant").
WITNESSETH:
In consideration of the premises and mutual covenants hereinafter contained, the
parties hereto agree as follows:
1. THE SERVICES
The Consultant agrees to continue to provide software development for Claims
Direct Kaiser billing modification package. Consultant has assured the company
they have the required skills as listed below that will allow the Consultant to
provide the services required:
* Microsoft Access Application development/programming: Extending the power of
applications through access as well as create a business information system.
* Microsoft Visual Basic fundamentals/programming: create sophisticated
applications capable of solving complex business problems using OLE to integrate
applications.
* Oracle Client server Database programming, administration & Oracle developer
2000.
* Design and create database structures, create shareable PL/SQL blocks of
application code as well as debug programs.
* Develop a client server application in Power Builder 5.0
* Network and hardware support, web server, windows 95 & windows NT.
2. WORK FOR HIRE
a. It is the intention of the parties hereto that all rights, including without
limitation copyright in any reports, surveys, marketing promotional and
collateral materials prepared by the Consultant pursuant to the terms of this
Agreement, or otherwise for Company (hereinafter "the Work") vest in Company.
The parties expressly acknowledge that the Work was specially ordered or
commissioned by Company, and further agree that it shall be considered a
"Work Made for Hire" within the meaning of the copyright laws of the United
States and that Company is entitled as author to the copyright and all other
rights therein, throughout the world, including, but not limited to, the right
to make such changes therein and such uses thereof, as it may determine in its
sole and absolute discretion.
b. If, for any reason, the Work is not considered a work made for hire under the
copyright law, then the Consultant hereby grants and assigns to Company, its
successors and assigns, all of its rights, title, and interest in and to the
Work, including, but not limited to, the copyright therein throughout the world
(and any renewal, extension or reversion copyright now or hereafter provided),
and all other rights therein of any nature whatsoever, whether now known or
hereafter devised, including, but not limited to the right to make such changes
therein, and such uses thereof, as Company may determine.
3. PROPRIETARY INFORMATION
a. For purposes of this Agreement, "proprietary information" shall mean any
information relating to the business of Company or any entity in which Company
has a controlling interest and shall include (but shall not be limited to)
information encompassed in all drawings, designs, programs, plans, formulas,
proposals, marketing and sales plans, financial information, costs, pricing
information, customer information, and all methods, concepts or ideas in or
reasonably related to the business of Company.
b. Consultant agrees to regard and preserve as confidential, all proprietary
information, whether Consultant has such information in memory or in writing or
other physical form. Consultant shall not, without written authority from
Company to do so, directly or indirectly, use for the benefit or purposes,
nor disclose to others, either during the term of its engagement hereunder or
thereafter, except as required by the conditions of Consultant's engagement
hereunder, any proprietary information.
c. Consultant shall not disclose any reports, recommendations, conclusions or
other results of the Services or the existence or the subject matter of this
contract without the prior written consent of Company. In Consultant's
performance hereunder, Consultant shall comply with all legal obligations it
may now or hereafter have respecting the information or other property of any
other person, firm or corporation.
d. The Consultant expressly agrees that the covenants set forth in this
Paragraph are being given to Company in connection with the engagement of the
Consultant by Company and that such covenants are intended to protect Company
against the competition by the Consultant, within the terms stated, to the
fullest extent deemed reasonable and permitted in law and equity. In the event
that the foregoing limitations upon the conduct of the Consultant are beyond
those permitted by law, such limitations, both as to time and geographical area,
shall be, and be deemed to be, reduced in scope and effect to the maximum extent
permitted by law.
e. The foregoing obligations of this Paragraph shall not apply to any part of
the information that (i) has been disclosed in publicly available sources of
information, (ii) is, through no fault of the Consultant, hereafter disclosed in
publicly available sources of information, (iii) is now in the possession of
Consultant without any obligation or confidentiality, or (iv) has been or is
hereafter lawfully disclosed to Consultant by any third party, but only to the
extent that the use or disclosure thereof has been or is rightfully authorized
by that third party.
4. INJUNCTIVE RELIEF.
Consultant acknowledges that the injury to Company resulting from any violation
by it of any of the covenants contained in this Agreement will be of such a
character that it cannot be adequately compensated by money damages, and,
accordingly, Company may, in addition to pursuing its other remedies, obtain an
injunction from any court having jurisdiction of the matter restraining any such
violation; and no bond or other security shall be required in connection with
such injunction.
5. FEES AND REIMBURSEMENT OF CERTAIN EXPENSES
a. Company shall pay Consultant a consulting fee of 227,879 shares of
unrestricted stock. This stock will be used to pay development for the ongoing
development of our Claims Direct Kaiser billing modification package software.
b. The Consultant shall provide to the Company on the first day of every month
an outline as to the Services that will be performed that month. Within ten
(10) days from the end of each and every month, Consultant will provide to
Company a statement as to the work that was performed for the prior month.
c. If in reviewing the statements made by the Consultant to the Company that are
required within ten (10) days after the close of a business month, Company
determines that Consultant is not making sufficient progress in order to
complete work for which Consultant was hired within a reasonable time, the
Company will give written notice to Consultant. Consultant shall have fifteen
(15) days to complete the work required and provide further reports to the
Company.
6. BENEFITS
The Consultant, as an independent contractor, shall not be entitled to any other
benefits other than the fees and reimbursement of expenses provided under
Paragraph 2 of this Agreement.
7. DUTY TO REPORT INCOME
The Consultant acknowledges and agrees that it is an independent contractor and
not an employee of the Company and that it is Consultant's sole obligation to
report as income all compensation received from Company pursuant to this
Agreement. The Consultant further agrees that the Company shall not be
obligated to pay withholding taxes, social security, unemployment taxes,
disability insurance premiums, or similar items, in connection with any
payments made to the Consultant pursuant to the terms of this Agreement.
8. TERM
This Agreement shall be effective beginning as of July 6, 2000, and shall
continue until date of delivery of completed product and Services; provided,
however, that either Company or Consultant may terminate this Agreement in whole
or in part at any time upon thirty (30) days' written notice to the other
party. In the event of termination or upon expiration of this Agreement,
Consultant shall return to Company any and all equipment, documents or
materials, and all copies made thereof, which Consultant received from
Company for the purposes of this Agreement and the Company shall pay to
Consultant the amounts provided in Paragraph 5 hereof through the date of
such termination or expiration.
9. INDEMNIFICATION
The Consultant shall indemnify and save Company harmless from and against all
claims arising in favor of any person, firm or corporation on account of
personal injury or property damage in any way resulting from the improper or
illegal acts of Consultant, its employees or agents. The foregoing indemnity
shall include all costs incurred by Company, including reasonable attorneys'
fees.
10. NOTICES
All notices and xxxxxxxx shall be in writing and sent via first class mail to
the respective addresses of the parties set forth at the beginning of this
Agreement or to such other address as any party may designate by notice
delivered hereunder to the other party.
11. GENERAL
a. The terms and conditions of Paragraphs 3, 4 and 5 hereof shall survive
the termination of this Agreement or completion of the Services as the case may
be.
b. Neither the Company nor Consultant shall assign this Agreement or
delegate its duties hereunder and shall not subcontract any of the Services to
be performed hereunder without the prior written consent of the other party
hereto.
c. Consultant shall perform the Services as an independent contractor and
shall not be considered an employee of Company or Partner, joint venturer or
otherwise related to Company for any purpose.
d. This Agreement shall be governed by the laws of the State of Ohio.
e. This Agreement constitutes the entire understanding between Consultant
and Company respecting the Services described herein. The terms and conditions
of any purchase order shall have no effect upon this Agreement and shall be used
for accounting purposes only.
f. The failure of either party to exercise its rights under this
Agreement shall not be deemed to be a waiver of such rights or a waiver of any
subsequent breach.
g. Any delay or nonperformance of any provision of this Agreement caused
by conditions beyond the reasonable control of the performing party shall not
constitute a breach of this Agreement, provided that the delayed party has taken
reasonable measures to notify the other of the delay in writing. The delayed
party's time for performance shall be deemed to be extended for a period equal
to the duration of the conditions beyond its control. "Conditions beyond a
party's reasonable control" include, but are not limited to, natural disasters,
acts of government after the date of the Agreement, power failure, fire, flood,
acts of God, labor disputes, riots, acts of war and epidemics. Failure of
subcontractors and inability to obtain materials shall not be considered a
condition beyond a party's reasonable control.
h. Non-Solicitation of Consultant's Employees: Company agrees not to
knowingly hire or solicit Consultant's employees during performance of this
Agreement and for a period of two years after termination of this Agreement
without Consultant's written consent.
i. Mediation and Arbitration: If a dispute arises under this Agreement,
the parties agree to first try to resolve the dispute with the help of a
mutually agreed-upon mediator in Clermont County, Ohio. Any costs and fees
other than attorney fees associated with the mediation shall be shared equally
by the parties. If the dispute is not resolved through mediation, the parties
agree to submit the dispute to binding arbitration in Clermont County, Ohio
under the rules of the American Arbitration Association. Judgment upon the
award rendered by the arbitrator may be entered in any court with jurisdiction
to do so.
j. Attorney Fees: If any legal action is necessary to enforce this
Agreement, the prevailing party shall be entitled to reasonable attorney fees,
costs and expenses.
k. Complete Agreement: This Agreement together with all exhibits,
appendices or other attachments, which are incorporated herein by reference,
is the sole and entire Agreement between the parties. This Agreement supersedes
all prior understandings, agreements and documentation relating to such subject
matter. In the event of a conflict between the provisions of the main body of
the Agreement and any attached exhibits, appendices or other materials, the
Agreement shall take precedence. Modifications and amendments to this
Agreement, including any exhibit or appendix hereto, shall be enforceable
only if they are in writing and are signed by authorized representatives of both
parties.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the date first above written.
MASTERPIECE TECHNOLOGY GROUP, INC.
Xxxxxx Xxxxx
President & CEO
/s/ Xxxxxx Xxxxx
CONSULTANT
Signature: /s/ Xxxxx Uken_
Xxxxx Xxxx
Consultant Agreement
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