1
EXHIBIT B
EXHIBIT B
CONSULTING AND NON-COMPETITION AGREEMENT
This Agreement is made on February 1, 2004 between Aptus Corp., (the "Company")
and Xxxxx Xxxx (the "Consultant"), a marketer of computer software and services,
and is effective on February 1, 2004. The Consultant has extensive experience
regarding the marketing of computer software and services both as packaged goods
and online, and the Company seeks to benefit from the Consultant's expertise by
retaining the Consultant as an exclusive Technical Consultant. The Consultant
wishes to perform consulting services for the Company. Accordingly, the Company
and the Consultant agree as follows:
1. Services
a. The consultant shall provide advice and consulting services to
the Company with respect to matters related to selling and
marketing QwikQuote software and related services online. The
Consultant shall be engaged by the Company as a consultant for
the exchange of ideas only and under the terms of this
Agreement, shall not direct or conduct research for or on
behalf of the Company.
b. Upon request by the Company and in return for compensation
detailed in Article 2, the Consultant shall keep the Company
informed about applications, features, and specifications in
the area of software reselling as they may broaden or change
from time to time as well as be available for assisting in
quality control issues.
c. The Company acknowledges that the Consultant is an employee of
dotPhoto, Inc. and is subject to the dotPhoto 's policies,
including policies concerning consulting, conflicts of
interest, and intellectual property. If there is a conflict
between Consultant's obligations under dotPhoto's policies and
any of Consultant's obligations to Company pursuant to this
Agreement, the Consultant's obligations under the dotPhoto
policies take priority over any obligations the Consultant may
have to the Company by reason of this agreement.
2. Non-Competition
The Consultant represents to the Company that the Consultant
does not have any agreement to provide consulting services to
any other party, firm, or company in the sales quoting
software industry on matters relating to the scope of this
consultancy, and will not enter into any such agreement during
the term of this Agreement. The Consultant agrees that he
shall not, for the period commencing on February 1, 2004 and
ending on January 31, 2005, own an equity interest in, or
manage, or act as a director or agent of, operate, be employed
by, or perform consulting services for, any firm, person,
corporation or enterprise which is engaged in the business of
creating, marketing or reselling sales quoting software or
services.
3. Compensation
As full consideration for the consulting services provided by
the Consultant, the Company shall pay to the Consultant
$10,000 upon signing of this agreement. The Company will also
pay $7,000 in consideration of the Consultant's
non-competition agreement upon signing of this agreement.
4. Confidentiality
a. Either party may disclose to the other party any information
that the disclosing party would normally freely disclose to
the other members of the scientific community at large,
whether by publication, by presentation at seminars, or in
informal scientific discussions.
b. The parties may wish, from time to time, in connection with
work contemplated under this Agreement, to disclose
confidential information to each other ("Confidential
Information"). Each party will use reasonable efforts to
prevent the disclosure of any of the other party's
Confidential Information to third parties for a period of one
year from receipt thereof. The recipient may acquire
information that pertains to the discloser's processes,
equipment, programs, developments, or plans that is both (i)
disclosed or made known by the disclosure to the recipient and
(ii) identified in writing as "proprietary" by the disclosure.
The recipient agrees not to disclose any Confidential
Information to third parties or to use any Confidential
Information for any purpose other than performance of the
services contemplated by this Agreement, without prior written
consent of the Company.
c. Confidential Information subject to paragraph 4(b) does not
include information that (i) is or later becomes available to
the public through no breach of this Agreement by the
recipient; (ii) is obtained by the recipient from a third
party who had the legal right to disclose the information to
the recipient; (iii) is already in the possession of the
recipient on the date this Agreement becomes effective; (iv)
is independently developed by recipient; or (v) is required to
be disclosed by law, government regulation, or court order. In
addition, Confidential Information subject to paragraph 4(b)
does not include information generated by the Consultant
unless the information (i) is generated as a direct result of
the performance of consulting services under this Agreement
and (ii) is not generated in the course of the Consultant's
activities as a dotPhoto.
5. Return of Materials
The Consultant agrees to promptly return, following the
termination of this Agreement or upon earlier request by the
Company, all drawings, tracings, and written materials in the
Consultant's possession and (i) supplied by the Company in
conjunction with the Consultant's consulting services under
this Agreement or (ii) generated by the Consultant in the
performance of consulting services under this Agreement and
not generated in the course of the Consultant's activities as
a dotPhoto employee.
6. Defense and Indemnification
The company agrees, at its sole expense, to defend the
Consultant against, and to indemnify and hold the Consultant
harmless from, any claims or suits by a third party against
the Consultant or any liabilities or judgments based thereon,
either arising form the Consultant's performance of services
for the Company under this Agreement or arising from any
Company products which result from the Consultant's
performance of services under this Agreement.
7. Term and Termination
This Agreement shall be for a term of 12 months, renewable upon
reasonable terms and conditions as may be agreed upon by the
Company and the Consultant.
8. Miscellaneous
a. This Agreement shall inure to the benefit of and be binding
upon the respective heirs, executors, successors,
representatives, and assigns of the parties, as the case may
be.
b. The relationship created by this Agreement shall be that of
independent contractor, and the Consultant shall have no
authority to bind or act as agent for the Company or its
employees for any purpose.
c. The Company will not use the Consultant's name in any
commercial advertisement or similar material used to promote
or sell products, unless the Company obtains in advance the
written consent of both the Consultant.
d. This Agreement replaces all previous agreements and the
discussions relating to the subject matters hereof and
constitutes the entire agreement between the Company and the
Consultant with respect to the subject matters of this
Agreement. This Agreement may not be modified in any respect
by any verbal statement, representation, or agreement made by
any employee, officer, or representative of the Company, or by
any written documents unless it is signed by an officer of the
Company and by the Consultant.
e. If any term or provision of this Agreement is deemed invalid,
contrary to, or prohibited under applicable laws or regulation
of any jurisdiction, this Agreement (save only this sentence)
shall be invalid.
IN WITNESS WHEREOF, the parties have executed this Agreement effective the date
first stated above.
By:/s/ Xxxx X. Xxxxx
President
By: /s/ Xxxxx Xxxx
Xxxxx Xxxx, Consultant
