EXHIBIT 10.4
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QUINTEK TECHNOLOGIES, INC
CONSULTING AGREEMENT
This Consulting Agreement is effective February 3, 2003 between Quintek
Technologies, Inc (the "Company") and XXXX XXXX, ("Consultant").
1. Scope and Term of Services. Consultant shall provide the services
specified in Exhibit A, Section 1 in a professional and competent manner.
Consultant shall coordinate Consultant's efforts with persons specified in
Exhibit A, Section 2. Consultant shall provide such services during the period
shown in Exhibit A, Section 3.
2. Payment. Company shall pay Consultant as specified in Exhibit A,
Section 4. Payments to consultant shall not be subject to income or employment
tax withholding. Consultant hereby indemnifies Company against any obligation
imposed on Company to pay withholding taxes resulting from a court's or
governmental entity's determination that Consultant is not an independent
contractor to Company.
3. Expenses. Company agrees to reimburse Consultant for all reasonable
business and travel expenses actually incurred and paid by Consultant in the
performance of his services on behalf of the Company in accordance with the
Company's expense reimbursement policy as from time to time in effect.
4. Confidentiality.
(a) Consultant shall keep confidential all proprietary
information, technical data, trade secrets or know-how, including, but not
limited to, research, product plans, products, services, customers, customer
lists, markets, software, developments, inventions, processes, formulas,
technology, patent applications, patent disclosures, designs, drawings,
engineering, marketing, finances or other business information relating to
Company or Company's suppliers, customers, corporate partners, investors or
other consultants, disclosed by Company or any such supplier, customer,
corporate partner, investor or other consultant, directly or indirectly, in
writing, orally or by inspection ("Confidential Information"). Confidential
Information shall not, however, include any information which Consultant can
establish (i) was publicly known and made generally available in the public
domain prior to the time of disclosure to Consultant by Company or any Company
supplier, customer, corporate partner, investor or other consultant; (ii)
becomes publicly known and made generally available to Consultant by Company or
any of Company's suppliers, customers, corporate partners, investors or other
consultants through no action or inaction of Consultant; or (iii) is in the
possession of Consultant, without confidentiality restrictions, at the time of
disclosure by Company as shown by Consultant's files and records immediately
prior to the time of disclosure. Nothing in this Agreement shall be deemed to
prohibit Consultant from disclosing and Confidential Information that is (i)
pursuant to the written consent of Company or (ii) required by law, provided,
however, that in the event of such requirement, unless prohibited by law, prior
to disclosing any Confidential Information, Consultant will notify Company of
the scope and source of such legal requirement, and shall give Company the
opportunity to challenge the need to disclose and/or limit the scope of
disclosed information.
(b) Consultant will not use any Confidential Information for
any purpose except to perform Consultant's obligations hereunder. Consultant
shall not reverse engineer, analyze, disassemble or decompile any prototypes,
samples, software or other tangible objects which embody Company's Confidential
Information and which are provided to Consultant hereunder.
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(c) Consultant shall take all reasonable measures to protect
the secrecy of and avoid disclosure and unauthorized use of the Confidential
Information. Without limiting the foregoing, Consultant shall take at least
those measures that Consultant takes to protect Consultant's own most highly
confidential information and shall not disclose any Confidential Information to
any third party or allow any third party access to any Confidential Information.
Consultant shall immediately notify Company in the event of any unauthorized use
or disclosure of the Confidential Information.
(d) Nothing in this Agreement is intended to grant any rights
to Consultant under any patent application, patent, tradename, copyright or
other proprietary right of Company, nor shall this Agreement grant Consultant
any rights to Confidential Information except as expressly set forth herein.
(e) Consultant represents that Consultant's performance of
this Agreement does not and will not conflict with any agreement binding on
Consultant to keep confidential a third party's proprietary information or trade
secrets.
(f) Upon Company's request, Consultant will return to Company
all documents and other tangible objects containing or representing Confidential
Information and all copies thereof that are in possession of Consultant.
(g) Consultant acknowledges that Company may possess or
receive Confidential Information of third parties (other than the Company's
suppliers, customers, corporate partners, investors and other consultants) to
which Consultant will have access. Consultant shall treat such third party
information as "Confidential Information," and intends that such third parties
benefit from Consultant's obligations under this Section 4 regarding such
Confidential Information.
5. Inventions, Patents and Technology. Consultant shall disclose and
assign and transfer to the Company any and all inventions, improvements,
discoveries, developments, original works of authorship, trade secrets, or other
intellectual property ("Proprietary Information") that directly relate to the
business of the Company and which are conceived, developed or reduced to
practice during the performance of the consulting services provided hereunder.
If Consultant conceives, develops or reduces to practice during the performance
of the consulting services hereunder Proprietary Information that does not
relate to the business of the Company, Consultant shall give the Company written
notice describing such Proprietary Information in general terms and the Company
shall have thirty (30) days from receipt of such notice to notify Consultant if
it desires to use such Proprietary Information in which event the Company and
Consultant shall in good faith negotiate terms and conditions for the Company to
obtain such rights. Consultant shall treat all Proprietary Information as
Confidential Information of the Company governed by this Agreement. Except as
otherwise provided, the Company shall be the sole owner of any and all
Proprietary Information, including all patents that may result therefrom, and
Consultant shall have no right to use the Proprietary Information for any
purpose whatsoever other than to perform services for the Company hereunder.
Consultant shall execute such documentation as is reasonably requested by
Company in connection with the foregoing.
6. Conflicts of Interest. Consultant represents that, to the best of
Consultant's knowledge, this Agreement does not conflict with any agreement or
obligation binding on Consultant. Consultant represents that, except as
otherwise disclosed in Exhibit B, Consultant is not presently retained by any
entity that develops, designs, produces, licenses or sells products competitive
with any of the Company's existing or proposed products. During the period
Consultant is rendering to Company hereunder, Consultant shall not accept
retention by any company or other entity which Consultant believes will develop,
design, produce, license or sell products that are competitive with Company's
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existing or proposed products without first obtaining approval from Company,
which shall not be unreasonably withheld. If, during the period that Consultant
is rendering services to the Company, another company or other entity that has
retained Consultant commences development, design, production, licensing or sale
of a product that is or may be directly competitive with Company existing or
proposed products, then Consultant shall promptly inform Company of the such
event and obtain Company's approval regarding the continued performance or
termination of Consultant's services under this Agreement.
7. Termination. Either party may terminate this Agreement at any time
upon 30 days prior written notice to the other party. Upon termination, all
rights and obligations of the parties to each other shall cease except that (a)
Consultant's obligations under Sections 4, 5 and 9, and the limitations set
forth in Section 10, shall survive such termination, and (b) if the Company
chooses to terminate the agreement, then Company shall pay Consultant all
amounts owing to Consultant for the full term of the agreement and any approved
expenses, or (c) if Consultant chooses to terminate the agreement then Company
shall pay Consultant within thirty (30) days after the date of termination all
amounts owing to Consultant for services (pro-rated for any partial month) and
any approved expenses.
8. Independent Contractor Relationship. The parties are independent
contractors and neither party is the agent of the other for any purpose. Neither
party has authority to assume any obligation for the other or to make any
representation on behalf of the other. Consultant is not an employee of Company
for the purposes of any employee benefit plan, income tax withholding, FICA
taxes, unemployment benefits or otherwise. Subject to the terms and conditions
set forth in Exhibit A hereto, Consultant will set Consultant's work hours and
will control the order and sequence of performance of the services.
9. Arbitration and Equitable Relief. Any dispute arising out of this
Agreement shall be settled by arbitration held in Venture County, California, in
accordance with the rules of the American Arbitration Association. The
arbitrator may award injunctions or other equitable relief. The arbitrator's
decision shall be final, conclusive and binding on the parties to the
arbitration. Judgment may be entered on the arbitrator's decision in any court
of competent jurisdiction. During the arbitration proceedings, Company and
Consultant shall each pay 50% of the costs of arbitration and shall each
separately pay its respective counsel fees and expenses. As part of the
arbitration award the arbitrator shall award such costs, fees and expenses to
the party which prevails as to the majority of the issues raised in the
arbitration. Consultant agrees that it would be impossible or inadequate to
measure the Company's damages from breach of Section 4 or 5. Accordingly, if
Consultant breaches or threatens to breach Section 4 or 5, Company may, in
addition to any other right or remedy, upon award of the arbitrator, obtain an
injunction restraining such breach or threatened breach and specific performance
of such provision, without delivery by Company of a bond or other security.
10. Miscellaneous. This Agreement shall bind and inure to the benefit
of the parties hereto and their affiliates and successors in business.
Consultant may not subcontract any services to be provided under this Agreement
or assign this Agreement without Company's prior written consent. Any attempted
subcontract or assignment by Consultant shall be deemed a breach of this
Agreement and shall terminate Consultant's rights to use or hold any
Confidential Information or Proprietary Information. This Agreement shall be
governed by the laws of the State of California, without reference to conflict
of laws principles. Any failure to enforce any provision of this Agreement shall
not constitute a waiver thereof or of any other provision hereof. This Agreement
sets forth the entire understanding and agreement of the parties with regard to
the subject matter hereof and supersedes all prior and contemporaneous written
and oral agreements, arrangements and understandings related to the subject
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matter hereof. In the event of any inconsistency between this Agreement and any
statement contained in or transmitted with any Confidential Information, this
Agreement shall control. This Agreement may not be amended, nor any obligation
waived, except by a writing signed by both parties hereto. Any notice under this
Agreement shall be in writing and shall be deemed delivered ten (10) days after
being mailed to the other party at the address set forth at the end of this
Agreement or at such other address given pursuant to this provision, and shall
also be considered delivered upon transmission by facsimile to a number
previously designated by the recipient for ordinary communications if a
confirming letter is mailed on the same day.
QUINTEK TECHNOLOGIES, INC CONSULTANT
By: _____________________________ By: _____________________________
Title: ____________________________ Title: ____________________________
Address:
000 Xxxxxxxxxxxx Xxx, Xxxxx X
Xxxxxxxxx, XX 00000
SSN: _________________
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EXHIBIT A
1. Scope of Services: XXXX XXXX, Consultant, will advise and make himself
available to the Company and its advisors in the development of a consumables
sales operation.
2. Primary Point of Contact: Consultant will report directly to the Chairman and
CEO of the Company. Consultant will assist any other advisors or consultants of
the Company, at the request of the Chairman and CEO.
3. Term of Service: Term of service will be 30 days from the execution of this
agreement.
4. Payment: Initial payment for the first 30 days of service shall be $9,000 or
200,000 shares of Quintek Technologies, Inc., common stock. Payment shall be
made in cash or restricted Quintek common stock, at the sole option of the
Company . If paid in stock Company agrees to file a registration statement on
the shares within six months.
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EXHIBIT B
Entities by whom the Consultant is retained that develop, design, produce,
license or sell products competitive with any of the Company's existing or
proposed products:
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