CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement (this "Agreement") is made and entered
into effective as of the 17th day of June 2003, 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, contemporaneously with this Agreement, DynaSig has entered the
business of biometric signature authentication (the "Business").
C. WHEREAS, Xxxxxxx Xxx, the President of OptiSense, ("Xxx") has been doing
development work on the Business prior to the formation of DynaSig.
D. WHEREAS, DynaSig desires development services.
E. WHEREAS, DynaSig desires to engage OSC to provide, and OSC desires to
provide, services to DynaSig as specified herein to assist DynaSig in fulfilling
its business plan.
AGREEMENTS
Now, therefore, in consideration of the promises and mutual agreements set
forth herein, DynaSig and OSC hereby agree as follows:
1. GENERAL ENGAGEMENT
(a) During the term of this Agreement, OSC shall provide (i) technical
consulting services related to, among other activities, those scheduled on
Exhibit A plus such other consulting services as may be requested from time to
time by DynaSig (the "Services"). OSC is solely responsible for determining 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.
(b) DynaSig acknowledges that OSC's performance of the Services may be
dependent on timely decisions and approvals by DynaSig and OSC shall be entitled
to rely on all decisions and approvals of DynaSig in connection with the
Services. Further, DynaSig acknowledges that OSC will be relying upon the
information that DynaSig provided or will provide and DynaSig hereby represents
and warrants that such information is and shall be true, accurate and complete
to the best of DynaSig's knowledge.
2. NO AUTHORITY TO BIND DYNASIG
OSC shall not have any right, power or authority to create any obligation,
express or implied, or make any representation on behalf of DynaSig except as
OSC may be expressly authorized in advance in writing from time to time by
DynaSig and then only to the extent of such authorization.
3. TERM
(a) The term of this Agreement shall commence on the date hereof and
shall continue until December 31, 2004.
(b) Throughout the term of this Agreement, either party may terminate
this Agreement, with or without cause and without penalty, upon 30 days written
notice.
(e) Either party may, upon 30 days written notice identifying
specifically the basis for such notice, terminate this Agreement for breach of a
material term or condition of this Agreement, provided the breaching party shall
be given opportunity to cure any such breach within the 30-day period, which
will result in no termination of this Agreement based upon such breach.
(f) Sections 6, 8, 9, 11, 12 and 13 of this Agreement shall survive
termination of this Agreement for any reason.
5. CONSIDERATION
Monthly Services Fee. DynaSig pay OSC a fee of $16,000 per month on the
last day of each month starting on June 30, 2003.
6. EXPENSES
OSC shall cover all expenses in its monthly fee. DynaSig shall reimburse
OSC for all actual extraordinary out-of-pocket expenditures incurred by OSC in
connection with the Services if approved in advance.
7. RELEASE AND ASSIGNMENT
Xxx hereby assigns all his rights in any knowledge related to the Business
to DynaSig. Xxx hereby releases any other claims he may have related to the
Business except as specified in this agreement or future agreements. Xxx
acknowledges that all work he did was "work for hire" and that he has no claim
on any of the technology developed. Xxx will execute any further formal
documents related to this release and assignment and assist DynaSig in filing a
patent or patents for his prior work and assign such patents, royalty free, to
DynaSig.
8. WARRANTY
OSC warrants that the Services will be performed in a professional and
workmanlike manner and shall reperform any work not in compliance with this
warranty brought to its attention within 30 days after that work is performed.
OSC does not warrant and will not be responsible for the performance of any
third party product or service. The preceding is OSC's only warranty concerning
the Services and is made expressly in lieu of all other warranties and
representations, express or implied, including, without limitation, any implied
warranties of merchantability, fitness for a particular purpose or otherwise.
9. OSC'S COVENANTS
(a) OSC, its employees and agents will comply at all times with all
applicable laws and regulations of any jurisdiction in which Services are
provided and with all applicable DynaSig rules, policies and standards.
(b) OSC, its employees and agents 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.
(c) OSC shall not use DynaSig's name in any promotional materials or
other communications with third parties without DynaSig's prior written consent.
(d) OSC is legally authorized to engage in business in the United
States and will provide DynaSig satisfactory evidence of such authority upon
request.
10. CONFIDENTIALITY
During the course of performance of this Agreement, OSC 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 OSC only
in connection with the Services.
(b) OSC agrees 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. Access to the
Confidential Information shall be restricted to those OSC personnel engaged in a
use permitted hereby.
(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.
11. INDEMNIFICATION
(a) Each party (an "Indemnifying Party") shall indemnify and hold the
other party, its employees and agents (each, an "Indemnified Party"), harmless
from and against all claims, demands, loss, damage or expense, including
reasonable attorneys' fees (collectively, "Losses"), to the extent such Losses
are caused by the negligence, willful acts or omissions or breach of this
Agreement of or by the Indemnifying Party and except to the extent such Losses
are caused by the negligent or willful acts or omissions of the Indemnified
Party.
(b) To receive the foregoing indemnity, the Indemnified Party must
promptly notify the Indemnifying Party in writing of a claim or suit and provide
reasonable cooperation (at the Indemnifying Party's expense) and full authority
to defend or settle the claim or suit. Neither party shall have any obligation
to indemnify the other under any settlement made without its written consent.
12. INDEPENDENT CONTRACTOR
OSC is and shall remain an independent contractor and OSC acknowledges, and
confirms to DynaSig, its status as that of an independent contractor. Nothing
herein shall be deemed or construed to create a joint venture, partnership,
agency or employment relationship between the parties for any purpose, including
but not limited to taxes or employee benefits. OSC shall be solely responsible
for payment of any and all employment related taxes, insurance and employee
benefits with respect to OSC's personnel.
13. GOVERNING LAW; VENUE
This Agreement shall be governed by and construed in accordance with the
laws of the State of Arizona, without reference to choice of law principles.
The parties agree to bring any actions related to this Agreement only in the
state and federal courts sitting in Maricopa County, Arizona.
14. SEVERABILITY
If any term or provision of this Agreement shall be found by a court of
competent jurisdiction to be invalid, illegal or otherwise unenforceable, the
same shall not effect the other terms or provisions hereof or the whole of this
Agreement, but such term or provision shall be deemed modified to the extent
necessary in the court's opinion to render such term or provision enforceable,
and the rights and obligations of the parties shall be construed and enforced
accordingly, preserving to the fullest permissible extent the intent and
agreements of the parties herein set forth.
15. NOTICE
Any notice or other communication given pursuant to this Agreement shall be
in writing and shall be effective either when delivered personally to the party
for whom intended, or five days following deposit of the same into the United
States mail (certified mail, return receipt requested, or first class postage
prepaid), addressed to such party at the address set forth on the initial page
of this Agreement. Either party may designate a different address by notice to
the other given in accordance herewith.
16. FORCE MAJEURE
Neither party shall be liable for any delays or failures in performance due
to circumstances beyond its control.
17. COMPLETE AGREEMENT; AMENDMENT
This Agreement sets forth the entire understanding between the parties
hereto and supercedes all prior agreements, arrangements and communications,
whether oral or written, with respect to the subject matter hereof. No other
agreements, representations, warranties or other matters, whether oral or
written, shall be deemed to bind the parties hereto with respect to the subject
matter hereof. This Agreement may not be modified or amended except by the
mutual written agreement of the parties.
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
Its: President Its: Chief Executive Officer and President
EXHIBIT A - INITIAL SERVICES
1. Develop sensors suitable for use in the signature authentication pen.
2. Select appropriate control methodology and control unit.
3. Design pen electronics to minimize the size.
4. Design and procure pen casings.
5. Fabricate and test the prototypes and define manufacturing
specifications.
6. Develop firmware and software algorithms for the signature verification.
7. Develop interface software for Internet and LAN applications.
