INDEPENDENT CONSULTANT AGREEMENT
THIS AGREEMENT is made and entered into at Tacoma, Washington this 3rd day
of May 2001, by and between Insynq Inc., a Delaware corporation (hereinafter
referred to as "Insynq"), and Xxxxxx X. Xxxxxxx, an individual (hereinafter
referred to as "Consultant").
This Agreement is made with reference to the following facts and
objectives:
RECITALS
WHEREAS, Insynq core business includes ASP Solutions and proprietary
technology; and
WHEREAS, Consultant is known by INSYNQ to possess the knowledge of the
relevant industries, have substantial contacts within those industries, and to
possess the creative wherewithal to create new revenue streams for or add value
to INSYNQ by identifying new or additional strategic partners, and through
keeping INSYNQ at the forefront of new markets created by emerging
technologies, and by presenting new business opportunities through joint
ventures with outside companies or parties; and
WHEREAS, Consultant desires to invest a substantial portion of his time
and energies to help INSYNQ meet these goals and INSYNQ desires to engage
Consultant's services; and
WHEREAS, INSYNQ and Consultant desire to enter into this agreement whereby
Consultant will furnish services to INSYNQ, and INSYNQ will compensate
Consultant, on the terms and conditions hereinafter set forth.
NOW THEREFORE, in consideration of the foregoing and the covenants and
premises hereinafter set forth to be performed hereunder, and intending to be
legally bound, the parties agree as follows:
AGREEMENT
1. ENGAGEMENT OF CONSULTANT. In addition to the general consulting
services set forth in paragraph 2 herein, INSYNQ hereby retains the services of
Consultant, and Consultant hereby accepts its engagement, to act as consultant
on such projects as INSYNQ and Consultant shall mutually determine on the terms
and conditions set forth in this agreement.
2. GENERAL CONSULTING SERVICES. Consultant shall perform the following
services at the request of INSYNQ's management:
a. Strategic planning;
b. Identify and pursue strategic alliances;
c. Evaluate and develop cooperative venture proposals and
participate in negotiations at the request of management;
d. Travel to perform the aforesaid services as requested by
management.
3. NON-EXCLUSIVE SERVICES. Consultant will devote time and energy to
the business of INSYNQ as reasonably necessary to perform the services
described in this agreement. During the term of this agreement, Consultant may
provide consulting services to other clients in businesses that may indirectly
compete with INSYNQ. The parties recognize that the demands on Consultant's
time to adequately perform the services hereunder will vary from time to time
according to each project. Consultant will both use its best efforts to
communicate with INSYNQ's management regarding any demands on Consultant's time
or availability to the extent that the same can reasonably be anticipated.
4. TERM. The term of this agreement is for Two (2) year commencing
May 3, 2001 and ending May 3, 2003. This agreement shall automatically renew
for additional successive term of One (1) year unless either party notifies the
other party in writing not less than thirty (30) days prior to the end of the
term, including any extensions thereof, of said party's intent not to renew.
5. COMPENSATION OF CONSULTANT.
A. CONSULTANT'S EXPENSES. All expenses incurred by Consultant in
representing INSYNQ including, but not limited to, travel expense,
entertainment, shall be paid by Consultant
B. CONSULTING FEE. INSYNQ shall pay to Consultant a consulting fee
during the term of this agreement as described in Exhibit A and incorporated by
reference.
6. STATUS OF CONSULTANT AS INDEPENDENT CONTRACTOR. Consultant shall
perform his services hereunder as an independent contractor. Consultant shall
not be deemed an Employee of INSYNQ for any purpose. INSYNQ is interested only
in the results obtained by Consultant and, with the exception of general policy
statements and regulations adopted by INSYNQ from time to time respecting the
conduct of business hereunder, implemented for the purpose of insuring
satisfactory performance of this Agreement and the preservation of INSYNQ's
goodwill, INSYNQ shall have no control over the manner or means by which
Consultant performs its services under this Agreement. Consultant shall have
the obligation to supervise and control the persons hired or engaged by it and
Consultant shall be solely responsible for the acts of its agents and/or
Consultants. Consultant warrants and represents that all persons hired or
engaged by Consultant shall be subject to each and all of the terms, provisions
and conditions of this Agreement applying to Consultant. Consultant shall
have, as between the parties, the exclusive right to select, engage, and fix
the compensation of or discharge its agents and/or Consultants and shall, with
respect to all such persons, perform all obligations and discharge all
liabilities imposed upon employers under labor, wage-hours, workers
compensation, unemployment compensation or insurance, social security and other
federal, state, and municipal laws and regulations. Consultant shall not list
the offices of INSYNQ as Consultant's place of business.
7. LIMITATION OF AUTHORITY. Consultant's authority is strictly limited
to the terms of this engagement as set forth in this agreement. Except as
expressly provided herein, Consultant shall have no right or power to enter
into a contract or commitment on behalf of INSYNQ or to bind or obligate or to
incur obligations or liabilities on behalf of INSYNQ in any manner unless such
authority is expressly granted in a writing duly executed by and on behalf of
INSYNQ. Without limiting the generality of the foregoing, neither party shall
have any authority to employ or engage the services of any person on behalf of
the other.
8. COMPLIANCE WITH LAWS. In performing its duties hereunder, Consultant
and INSYNQ shall each shall comply with all applicable laws, ordinances, codes,
regulations or orders as may be in effect in each jurisdiction in which
services are performed, whether municipal, county, state or federal.
9. CONFIDENTIALITY. During the performance of services under this
agreement, Consultant will receive information regarding INSYNQ's business,
including, but not limited to, information about INSYNQ's products, processes,
know-how, designs, customers, customer lists, business plans, marketing plans
and strategies, strategic partners, price lists and pricing strategies, and
other subject matter pertaining to the business of INSYNQ and its clients,
licensees and affiliates. Consultant acknowledges that such information
constitutes valuable trade secrets belonging to INSYNQ and Consultant agrees to
keep all such information confidential, except as INSYNQ may otherwise consent
in writing, and not to disclose, or make any use of such confidential
information (other than for the benefit of INSYNQ) at any time either during or
subsequent to Consultant's engagement under this agreement. Upon termination
of this agreement, Consultant shall account for and surrender to INSYNQ all
records, samples, displays, books, price lists, customer lists and all computer
files, recording tapes, transcriptions, notebooks, or other media containing
any information which is confidential and proprietary to INSYNQ, and all other
property or things of value belonging to INSYNQ in Consultant's possession or
under Consultant's control. The confidentiality provisions herein do not apply
to information which Consultant can show by prior written documents (i) was in
the public domain or publicly known or available prior to the date of
disclosure, (ii) becomes generally available to the public other than as a
result of a disclosure by Consultant, or its Consultants, agents, advisors,
representative, and affiliates, or (iii) becomes available to Consultant on a
non-confidential basis from a source other than any party named in this
Agreement, or their respective advisors, provided that such sources are not
known by Consultant to be bound by a confidentiality agreement with or
obligation of secrecy to any party with respect to such information.
10. WORK PRODUCT PROPRIETARY TO INSYNQ. All ideas, concepts, themes,
designs, works of art, compositions, inventions, processes, improvements or
other creations of Consultant, its agents or Consultants, conceived, produced,
or developed for INSYNQ pursuant to this agreement, either individually or
jointly in collaboration with others, shall belong to and be the sole and
exclusive property of INSYNQ. Consultant shall cooperate with any efforts by
INSYNQ to obtain copyrights, trademarks, patents, or any other form of
protection of intellectual property, including, upon INSYNQ's request,
assisting in completing and executing applications for registration of the work
with the appropriate office or agency.
11. ARBITRATION. The Consultant and the Company shall submit to
mandatory binding arbitration in any controversy or claim arising out of, or
relating to, this Agreement or any breach hereof. Such arbitration shall be
conducted in accordance with the commercial arbitration rules of the American
Arbitration Association in effect at that time, and judgment upon the
determination or award rendered by the arbitrator may be entered in any court
having jurisdiction thereof. The arbitrator is hereby authorized to award to
the prevailing party the costs (including reasonable attorneys' fees and
expenses) of any such arbitration.
12. MISCELLANEOUS.
A. NO ASSIGNMENT. The services of Consultant under this agreement
are unique and of unusual value to INSYNQ based on the personal skills and
expertise possessed by Consultant and its key Consultants. Consultant shall
not assign this agreement or its rights hereunder without the written consent
of INSYNQ. INSYNQ shall not assign this agreement or its rights hereunder
without the written consent of Consultant.
B. GOVERNING LAW. The laws of the State of Washington applicable
to contracts made and to be performed in the State of Washington shall govern
in any dispute arising out of or under this appointment or any sales made by
INSYNQ.
C. HOLD HARMLESS. Each party shall indemnify and hold the other
harmless from and against any and all liability, loss, costs, expenses,
including without limitation reasonable attorneys' fees and costs of suit, or
damages however caused by reason of any injury (whether to body, property, or
personal of business character or reputation) sustained by any person or to any
person or to property by reason of any act, neglect, default, or omission of
said party or any of its Consultants, agents or representatives. Nothing
herein is intended to nor shall it relieve either party from liability for its
own act(s), omission, or negligence.
D. NOTICES. Any notices to be given pursuant to this agreement by
either party shall be in writing and shall be deemed given as follows:
(a) when personally delivered to the intended recipient;
(b) when sent by certified or registered mail, upon the date on
which a return receipt was signed by the intended recipient;
(c) twenty-four (24) hours after deposit for next day delivery,
properly addressed, postage and/or fees prepaid or charged to the sender's
account, with the United States Postal Service Express Mail, Federal Express,
United Parcel Service, DHL WorldWide Express, Airborne Express, or other
equivalent carrier (unless said twenty-four hour period expires on a Sunday or
legal holiday, in which case Notice shall be deemed given forty-eight (48)
hours after deposit with a carrier named above);
(d) when transmitted by electronic means, and such transmission
is electronically confirmed by the intended recipient as having been received;
or
(e) when transmitted or delivered by any of the means described
in Section 12.D(a) through (d), and the party accepting or signing for said
delivery or confirming receipt thereof at the home or office of the intended
recipient is a party whom the sender has reason to believe will promptly
communicate the notice to the recipient.
For purposes of mail or overnight delivery, a properly addressed notice
shall be addressed as follows:
To INSYNQ:
Xxxx X. Xxxxx, Chief Executive Officer
0000 Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
FAX: 000-000-0000
To Consultant:
Xxxxxx X. Xxxxxxx
0000X 00xx Xx., #000, Xxxxxxx, XX 00000
FAX: 000-000-0000
E. WAIVER OF BREACH. The waiver by INSYNQ or Consultant of the
breach of any provision of this agreement by the other party, or the failure to
exercise any right granted under this agreement shall not operate or be
construed as the waiver of any subsequent breach by the other party or the
waiver of the right to exercise any such right in the future.
F. ENTIRE AGREEMENT. This agreement, together with any promotion
orders executed by the parties pursuant to this agreement, sets forth the
entire understanding and agreement between the parties with respect to the
services to be performed for INSYNQ by Consultant. No modification or
amendment to any of the provisions of this agreement shall have any force or
effect unless in writing and signed by both parties.
G. BINDING EFFECT. Subject to the restriction upon assignment by
Consultant contained in paragraph 12.A hereof, this Agreement shall be binding
upon and inure to the benefit of the heirs, executors, personal
representatives, successors and assigns of the parties hereto.
H. TITLES. The headings or titles to the paragraphs of this
appointment are intended for convenience only and shall have no effect upon the
construction or interpretation of any part of this Agreement.
I. ATTORNEYS' FEES. In the event that any arbitration shall be
commenced by either party arising out of the interpretation or enforcement of
this agreement, the prevailing party shall be entitled to recover from the
other party its reasonable attorneys' fees and costs of suit incurred therein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers on the day first above written.
INSYNQ, INC.
By: /s/ Xxxx X. Xxxxx
Xxxx X. Xxxxx, Chief Executive Officer
CONSULTANT
By: /s/ Xxxxxx X. Xxxxxxx
Name: __________________________________
Xxxxxx X. Xxxxxxx
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EXHIBIT "A"
COMPENSATION SCHEDULE
With respect to business developed between Insynq and any Telecommunications or
Cable company procured by Consultant (hereinafter referred to as "Company"):
COMMISSIONS:
Commission schedule based upon the life of all user accounts, as follows:
Year One 3%
Year Two 3.5%
Year Three 1.5%
STOCK OPTION SCHEDULE:
1. Option for 250,000 shares of common stock vesting upon consummation of
contract with Company at an exercise price of the effective date of
Consulting Agreement. Option will expire on the fifth anniversary of
the vesting date.
2. Option for 250,000 shares of common stock, vesting on the One (1) year
anniversary of the contract with Company with an exercise price of the
effective date of Consulting Agreement. Option will be awarded based
upon percentage of first year quota of 3,000 accounts (i.e. 3,000
accounts - 100% of option, 2,250 accounts - 75% of option, 3,750
accounts - 125% of option). Option will expire on the Fifth (5)
anniversary of the vesting date.
3. Option for 250,000 shares of common stock, vesting on the Second (2)
anniversary of the contract with Company with an exercise price of the
effective date of Consulting Agreement. Option will be awarded based
upon percentage of second year quota of 8,000 accounts (i.e. 8,000
accounts - 100% of option, 6,000 accounts - 75% of option, 10,000
accounts - 125% of option). Option will expire on the Fifth (5)
anniversary of the vesting date.
4. Such options shall be awarded from the 2000 Long Term Incentive Plan.
A sale of Insynq, Inc. would accelerate all unearned options on a projected
percentage basis determined from inception-to-date performance tracking, or
100%, whichever is greater.
For purposes of this Compensation Schedule, the term "Account" shall be
construed to include any single user, individual or end user, or subscriber of
any Insynq service acquired, directly or indirectly, through a relationship
with Company. Commissions and Options will be payable on a Contracted vs.
Collected basis.
With respect to all other business:
As determined between parties in writing.
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FIRST AMENDMENT TO INDEPENDENT CONSULTANT AGREEMENT
This First Amendment to the Independent Consultant Agreement is entered
into by hand and between Insynq, Inc. ("Insynq") and Xxxxxx X. Xxxxxxx
("Consultant") on May 30th, 2001.
R E C I T A L S
WHEREAS, Insynq and Consultant entered into the Independent Consultant
Agreement ("Agreement") on May 3rd, 2001; and
WHEREAS, Insynq and Consultant desire to amend the Agreement;
NOW THEREFORE, in consideration of the mutual covenants contained herein
and for other valuable consideration, the sufficiency of which Insynq and
Consultant acknowledge, Insynq and Consultant agree as follows:
1. Paragraph 12 of the Agreement is amended by adding a new subsection
(J) as follows:
"J. ASSIGNMENT OF CONTRACTS. Insynq shall assign beta test contracts
or any other agreements made with any Telecommunications or Cable
company procured to Insynq by Consultant to another party only after
such other party agrees to assume Insynq's obligations under this
Consulting Agreement.
2. Exhibit "A" Compensation Schedule shall be amended to add the
following additional compensation to the compensation already set
forth in Exhibit A:
Immediately after execution of an agreement with any
Telecommunications or Cable company procured to Insynq by Consultant
for any relationship that would allow such companies to market,
resell or purchase services from Insynq, Consultant shall be issued
500,000 shares of common stock of Insynq. Insynq agrees to register
and qualify the issuance of the 500,000 shares to Consultant under
all applicable federal and state securities laws prior to execution
of any such agreement. Upon issuance, the shares will be subject to
"trickle out" of 50,000 shares per month.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
Independent Consultant Agreement to be executed on the day first above written.
INSYNQ, INC. CONSULTANT
By:___________________________________ By:________________________________
Xxxx X. Xxxxx, Chief Executive Officer Xxxxxx X. Xxxxxxx
