INDEPENDENT CONTRACTOR AGREEMENT
This
agreement is made and entered into by and between Tier Technologies, Inc.
(“Tier”), a Delaware Corporation and Xxxxxx X. Xxxxxxxxx, an
individual (the “Contractor”).
In
consideration of the mutual covenants and agreements set forth herein, the
parties agree as follows:
SECTION
1 - SERVICES AND DUTIES
Tier
hereby retains Contractor to perform consulting services for Tier as specified
in the Statement of Work attached hereto as Appendix A (the
“Services”). Statements of Work may be modified or updated as set
forth in Section 6 herein.
SECTION
2 - ENTIRE AGREEMENT
This
Agreement and any referenced appendices hereto, including Statements of Work and
the terms and conditions contained therein, constitute the entire Agreement
between Contractor and Tier with respect to the Services. In the
event of any direct conflict in terms or conditions between the Statement of
Work and this Agreement, the terms of the Statement of Work shall
control.
SECTION
3 - INDEPENDENT CONTRACTOR
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3.1
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Contractor
agrees that in rendering all Services hereunder, Contractor shall act and
be considered for all purposes as an independent contractor to Tier, not
as an employee or agent of Tier. Contractor agrees that
payments for services cannot be made without a properly completed and
signed IRS Form W-9 submitted with this Agreement. (available as a print
out document at xxxx://xxx.xxxxxxxx.xxx/xxx/xxx-xxx/xx0.xxx;
or as a fill-in document at xxxx://xxx.xxxxxxxx.xxx/xxx/xxx-xxxx/xx0.xxx). In
its capacity as an independent contractor, Contractor agrees and
represents, and Tier agrees, that
Contractor:
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(a)
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has
the right to control and direct the means and methods of performing the
Services, subject to the general direction of
Tier;
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(b)
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shall
use his/her own tools, equipment, and supplies in performing the
Services;
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(c)
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receives
compensation from Tier only as set out in the Statement of Work, and that
Contractor shall not at any time be eligible to participate in benefits of
any sort which Tier offers to its
employees;
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(d)
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is
responsible for paying all ordinary and necessary expenses (except as
otherwise provided in the Statement of Work), including, but not limited
to, all applicable taxes, insurances, workers’ compensation insurance, and
state disability insurance;
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(e)
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maintains
a place of business at a location other than the premises of
Tier;
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(f)
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shall
be fully liable for negligent or willful injurious acts or omissions of
itself and its agents causing harm to persons or property;
and
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(g)
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is
free to accept work from other clients, including fulltime or part-time
employment with other entities.
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3.2
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Contractor
agrees not to represent itself as Tier’s agent or attorney for any purpose
to any party.
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3.3
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Contractor
warrants that the Services performed hereunder shall be timely
provided.
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SECTION
4 - TERM
This
Agreement shall be effective October 1, 2008 and thereafter shall remain in
effect through the close of business on November 30, 2008.
SECTION
5 - PAYMENT
Tier
shall make payment to Contractor in accordance with the terms set forth in the
Statement of Work.
SECTION
6 - MODIFICATIONS
The
parties may modify this Agreement and/or the Statement of Work by mutual
agreement only, which shall be set forth in writing.
SECTION
7 - DATA AND PROPRIETARY RIGHTS
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7.1
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Tier
shall own exclusively the Materials. In consideration of the
amounts paid to Contractor by Tier hereunder, Contractor hereby assigns
all rights, title and interest, including any and all copyrights, patents,
trademarks, and trade secrets embodied in or part of such Materials to
Tier. Contractor agrees to give Tier all assistance reasonably
required by Tier to perfect the foregoing assignment of
rights.
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7.2
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To
the extent that any preexisting proprietary materials are contained in the
Materials, Contractor hereby grants to Tier an irrevocable, nonexclusive,
worldwide, royalty free, transferable license to use, execute, reproduce,
display, perform, distribute copies of, and prepare derivative works based
upon, such preexisting materials, and to authorize, or sub-license others
to do any, some or all of the
foregoing.
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SECTION
8 - TERMINATION
This
Agreement shall automatically terminate at close of business on November 30,
2008.
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SECTION
9 - CONFIDENTIAL INFORMATION / XXXXXXX XXXXXXX
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9.1
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Contractor
agrees that it shall keep in confidence all information relating to the
methodologies, products, product plans, trade secrets, secret processes,
programs, program listings, source code, object code, formulas, cost
information, marketing information, price lists, business forms, financial
records, customers and markets of Tier, plus any designs, business plans,
business opportunities, finances, research, development, know-how or
personnel data and all other confidential knowledge, data and information
related to the business and affairs of Tier (collectively, “Proprietary
Information”) that may be acquired pursuant to, or in connection with,
this Agreement or the relationship contemplated by this
Agreement. During and for a period of three (3) years after the
term of this Agreement, Contractor will not, without the prior written
consent of an officer of Tier, publish, communicate, divulge or disclose
any of such Proprietary Information. Notwithstanding the foregoing, it is
agreed that Proprietary Information shall not include any information
which: (i) is known to Contractor at the time of disclosure to Contractor
by Tier; (ii) has become publicly known through no wrongful act of
Contractor; (iii) has been rightfully received by Contractor from a third
party without restriction on disclosure and without breach of any
agreement with Tier; or (iv) has been approved for release by written
authorization executed by an authorized officer of
Tier.
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9.2 Contractor agrees that it shall not be permitted to
trade Tier common stock on the basis of material nonpublic information or
pass on such information to others.
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SECTION
10 - INDEMNIFICATION
10.1
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Contractor
will indemnify Tier against, and hold Tier harmless from, any claim that
any of the materials delivered to Tier in the course of providing the
Services infringe any third party’s intellectual property rights
including, but not limited to, patent, copyright, trademark or trade
secret.
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10.2
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Contractor
agrees that it will indemnify Tier against, and hold Tier harmless from,
any tax liability, cost, expense (including reasonable
attorneys’ fees), or other penalty should it be deemed an employee of Tier
for withholding tax purposes by the Internal Revenue Service or any state
or local government agency or other applicable
entity.
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SECTION
11 - TAXES
Contractor
shall be responsible for the withholding and/or payment, as required by law, of
federal, state and local taxes imposed on Contractor because of the performance
of the Services hereunder. Further, Contractor shall comply with all
federal and state benefits laws applicable to Contractor, if any, including
making deductions and contributions for social security and unemployment
taxes. Each party shall be responsible for the payment of other
taxes, if any, imposed upon it in connection with, or as a result of, this
Agreement.
SECTION
12 – NON-ASSIGNMENT
Contractor
shall not assign this Agreement without Tier’s prior written
consent.
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SECTION
13 - APPLICABLE LAW, VENUE AND JURISDICTION
This
Agreement shall be governed by and construed in accordance with the laws of the
Commonwealth of Virginia, excluding its conflicts of law
rules. Exclusive jurisdiction and venue for any claim or action
arising out of or relating to this Agreement shall be in the state or federal
courts located in the Commonwealth of Virginia. The parties shall submit to the
jurisdiction of, and accept that venue is proper in, these courts in any legal
action or proceeding. Each party agrees that any such court shall have in personam jurisdiction over
it and consents to service of process in any manner authorized by the law of the
Commonwealth of Virginia.
SECTION
14 - MISCELLANEOUS
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14.1
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Cumulation of
Remedies. All remedies available to either party for
breach of this Agreement are cumulative and may be exercised concurrently
or separately, and the exercise of any one remedy shall not be deemed an
election of such remedy to the exclusion of all other
remedies.
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14.2
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Notice. Any
notice or other communication hereunder shall be in writing. If
to Tier: Xxxx Xxxxxxxxxxx, Tier, 00000 Xxxxxxxxx Xxxx., Xxxxx
000, Xxxxxx, XX 00000, with a copy to: Legal Dept. (same
address), Attn: General Counsel. If to
Contractor: notices will be sent to name and address stated in signature
block.
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14.3
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Waiver. No
term or provision hereof shall be deemed waived and no breach excused
unless such waiver or consent shall be in writing and signed by the party
claimed to have waived or
consented.
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14.4
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Attorneys’
Fees. If any action at law or in equity is necessary to
enforce the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorney’s fees, expert witness costs, costs of
suit and expenses, in addition to any other relief to which such
prevailing party may be entitled.
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14.5
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Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall
be deemed an original and all of which shall constitute one
instrument.
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IN
WITNESS WHEREOF, the parties have executed this Agreement on the date indicated
below.
AGREED AND ACCEPTED: | AGREED AND ACCEPTED: |
TIER TECHNOLOGIES, INC. | Xxxxxx X. Xxxxxxxxx |
00000 Xxxxxxxxx Xxxx., Xxxxx 000 | 0000 Xxxxxxxxxx Xxxxxxxxx |
Xxxxxx, XX 00000 | Xxxxxxx, XX 00000 |
By: | /s/ Xxxxxx X. Xxxxxxxx | By: | /s/ Xxxxxx X. Xxxxxxxxx | |
Print
Name:
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Xxxxxx X. Xxxxxxxx | Print Name: | Xxxxxx X. Xxxxxxxxx | |
Title: | Chief Financial Officer | Title: | Sr. Vice President | |
Date: | August 6, 2008 | Date: | August 4, 2008 |
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APPENDIX
A
STATEMENT
OF WORK
This
Statement of Work is entered into pursuant to, and subject to the terms and
conditions of, the Independent Contractor Agreement between Tier Technologies,
Inc. (“Tier”) and Xxxxxx X. Xxxxxxxxx (“Contractor”).
A.
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Description of
Services Contractor is to
perform:
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Contractor
will provide consulting services to assist Tier in the delivery and completion
of transitional services as agreed with Informatix pursuant to the Purchase
Agreement executed on June 30, 2008; assist in the wind-down of the pension
practice, and such other mutually agreed assignments between the contractor and
Xxx Xxxxxxxx, Chief Executive Officer or his designee.
B.
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Project time
table:
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Start
Date: October 1, 2008
End
Date: Close of Business November 30, 2008
C.
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Special
Conditions:
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Contractor
shall be permitted to provide the Services remotely. To the extent
any travel or other expenses incurred by Contractor in performing the Services
is required, Contractor agrees to advise Tier in advance of such expenses and
Tier agrees to reimburse Contractor. Original receipts are required
in the event any expenses are approved as reimbursable.
D.
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Staffing and
Fees: Tier will pay Contractor at the following rate
according to the following rate table. The amount in the rate
table represents the maximum fee Tier will pay to
Contractor.
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Staffing
Rates
Name
of Contractor
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Retainer
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Xxxxxx
X. Xxxxxxxxx
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$19,866
/ Monthly
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E.
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Payment:
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Contractor
will invoice Tier for its services once a month, on the last day of the
month. Invoices shall be remitted to the following
address:
Xxxx Xxxxxxxxxxx
Vice President
Tier Technologies, Inc.
00000 Xxxxxxxxx Xxxx., Xxxxx
000
Xxxxxx, XX 00000
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Tier
will pay Contractor within 30 days from receipt of a Contractor’s
invoice.
AGREED AND ACCEPTED: | AGREED AND ACCEPTED: |
TIER TECHNOLOGIES, INC. | Xxxxxx X. Xxxxxxxxx |
00000 Xxxxxxxxx Xxxx., Xxxxx 000 | 0000 Xxxxxxxxxx Xxxxxxxxx |
Xxxxxx, XX 00000 | Xxxxxxx, XX 00000 |
By: | /s/ Xxxxxx X. Xxxxxxxx | By: | /s/ Xxxxxx X. Xxxxxxxxx |
Print
Name:
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Xxxxxx X. Xxxxxxxx | Print Name: | Xxxxxx X. Xxxxxxxxx |
Title: | Chief Financial Officer | Title: | Sr. Vice President |
Date: | August 6, 2008 | Date: | August 4, 2008 |
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