FIRST AMENDMENT TO THE CONSULTING SERVICES AGREEMENT
This First Amendment to the Consulting Services Agreement Dated June 17,
2003 (this "Agreement") is made and entered into effective as of the 1st day of
January 2004, by and between DynaSig Corporation, an Arizona corporation with a
place of business at 0000 X. Xxxxxxxxxx Xx., Xxx 000, Xxxxxxxxxx, XX 00000
("DynaSig"), and OptiSense Corporation, a Delaware corporation with a place of
business at 00000 X. Xxx Xxxxx, Xxx 0 pmb 472, Xxxxxxxxxx, XX 00000 ("OSC").
RECITALS
A. WHEREAS, OSC is in the business of providing certain consulting services
to clients.
B. WHEREAS, OSC and DynaSig entered into a Consulting Services Agreement
effective June 7, 2003 (the "Original Agreement") regarding the business of
biometric signature authentication (the "Business").
C. WHEREAS, the Original Agreement restricts OSC's reimbursement of
extraordinary out-of-pocket expenses without specific approval by DynaSig.
D. WHEREAS, DynaSig desires OSC to incur extraordinary out of pocket
expenses that OSC desires to be reimbursed for.
E. WHEREAS, the Original Agreement requires DynaSig's specific approval of
such expenses.
AGREEMENTS
Now, therefore, in consideration of the promises and mutual agreements set
forth herein, DynaSig and OSC hereby agree as follows:
1. EXTRAORDINARY EXPENSE APPROVAL
During the remaining term of the Original Agreement, OSC shall provide two
technical employees at the reimbursable compensation listed on Exhibit A (the
"Employees"). OSC is solely responsible for determining any replacement for the
Employees and the manner in which the Services are to be provided; provided,
however, that OSC shall provide the Services in accordance with standards
reasonably acceptable to DynaSig.
2. OSC'S COVENANTS
(a) The Employees with all applicable laws and regulations of any
jurisdiction in which Services are provided and with all applicable DynaSig
rules, policies and standards.
(b) The Employees will comply at all times with all security provisions
in effect from time to time at DynaSig's premises with respect to access to
premises and materials and information belonging to DynaSig.
3. CONFIDENTIALITY
During the course of performance of this Agreement, the Employees may be
given access to information (regardless of whether in oral, written, electronic,
digital, magnetic or other form or media) that relates to the other's past,
present, and future research, development, business activities, customers,
products, services, and technical knowledge, and has been identified as
proprietary or confidential ("Confidential Information"). In connection
therewith, the following subsections shall apply:
(a) Confidential Information of the other party may be used by the
Employees only in connection with the Services.
(b) The Employees will execute agreements with DynaSig to protect the
confidentiality of the Confidential Information of the other in the same manner
that it protects the confidentiality of its own proprietary and confidential
information of like kind.
(c) Confidential Information may not be copied or reproduced without
the DynaSig's prior written consent.
(d) All Confidential Information made available hereunder, including
copies thereof (regardless of whether in written, electronic, digital, magnetic
or other form or media), shall be returned or destroyed (including deleting such
information from all computer systems) upon the first to occur of (i)
termination of this Agreement or (ii) if requested by DynaSig
(e) Nothing in this Agreement shall prohibit or limit either party's
use of information (including, but not limited to, ideas, concepts, know-how,
techniques, and methodologies) (i) previously known to it without obligation of
confidence, (ii) independently developed by it, (iii) acquired by it from a
third party which is not, to its knowledge, under an obligation of confidence
with respect to such information, or (iv) which is or becomes publicly available
through no breach of this Agreement.
(f) In the event either party receives a subpoena or other validly
issued administrative or judicial process requesting any portion of the
Confidential Information of the other party, it shall promptly notify the other
party and tender to it defense of such demand. Unless the demand shall have been
timely limited, quashed or extended, the recipient shall thereafter be entitled
to comply with such subpoena or other process to the extent permitted by law. If
requested by the disclosing party, the recipient shall cooperate (at the expense
of the disclosing party) in the defense of a demand.
4. INDEPENDENT CONTRACTOR
Supplying the Employees shall not impact OSC's status an independent
contractor and OSC acknowledges, and confirms to DynaSig, its status as that of
an independent contractor. However, DynaSig shall be solely responsible for the
reimbursement of any and all employment related taxes, insurance and employee
benefits with respect to the Employees.
5. OTHER ORIGINAL AGREEMENT TERMS NOT AMMENDED
All other terms of the Original Agreement remain the same with the
exception of the significant expense reimbursement agreed to in this Agreement.
In witness whereof, the parties have duly executed this Agreement as of the
day and year first above written.
DYNASIG CORPORATION OPTISENSE CORPORATION
/s/ Xxxxxxx X. Xxx /s/ Xxxxxxx X. Xxx
By: Xxxxxxx Xxx By: Xxxxxxx X. Xxx
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Its: President Its: Chief Executive Officer and President
EXHIBIT A - EMPLOYEES AND LIMITATIONS
Employee: Xxxxxxx Xxx
Compensation: $2,500 per month
Benefits: None
Taxes: All payroll taxes to be paid by DynaSig
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Employee: B. K. Rho
Compensation: $3,000 per month
Benefits: Medical benefits not to exceed $550 per month to be paid by
DynaSig
Taxes: All payroll taxes to be paid by DynaSig
