EXHIBIT 10.3
INDEPENDENT CONSULTANT SERVICES AGREEMENT
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This agreement ("Agreement") is made by and between 1st Step, Inc., a Delaware
corporation ("1st Step"), and Xxxxx Xxxxxxxx, an individual ("Consultant") and
is effective as of Feb 18th 2002 ("Effective Date").
1. ENGAGEMENT OF SERVICES. Herein is a description of the services to be
provided by Consultant pursuant to the terms of this Agreement
("Consulting Services"). Consultant hereby agrees to utilize his best
efforts in performing the Consulting Services.
2. COMPENSATION. The Consultant's compensation for the Consulting Services
is will be a total fee of $84,000.
3. INDEPENDENT CONTRACTOR RELATIONSHIP. Consultant's relationship with 1st
Step is that of an independent contractor, and nothing in this
Agreement is intended to, or should be construed to, create a
partnership, agency, joint venture or employment relationship.
Consultant will not be entitled to any of the benefits that 1st Step
may make available to its employees, including, but not limited to,
group health or life insurance, profit sharing or retirement benefits.
Consultant is not authorized to make any representation, contract or
commitment on behalf of 1st Step unless specifically requested or
authorized in writing to do so by a 1st Step manager. Consultant is
solely responsible for, and will file, on a timely basis, all tax
returns and payments required to be filed with, or made to, any
federal, state or local tax authority with respect to the performance
of services and receipt of fees under this Agreement. Consultant is
solely responsible for, and must maintain adequate records of, expenses
incurred in the course of performing services under this Agreement. No
part of Consultant's compensation will be subject to payroll taxes. 1st
Step will regularly report amounts paid to Consultant by filing Form
1099-MISC with the Internal Revenue Service.
4. INTELLECTUAL PROPERTY RIGHTS.
4.1. DISCLOSURE AND ASSIGNMENT OF INTELLECTUAL PROPERTY.
4.1.a. Intellectual Property. "Intellectual Property" includes any
and all articles, new or useful art, discoveries,
improvements, technical developments, know-how, formulae,
processes, manufacturing techniques, trade secrets, ideas, or
inventions, whether or not patentable and all copyrightable
works, designs, maskworks, trademarks, patents, patent
applications, artwork and software, that Consultant, solely or
jointly with others, makes, conceives or reduces to practice
within the scope of Consultant's work for 1st Step under this
Agreement.
4.1.b. Disclosure and Ownership of Intellectual Property. Consultant
agrees to make and maintain adequate and current records of
all inventions, which records shall be and remain the property
of 1st Step. Consultant agrees to promptly disclose every
invention to 1st Step. Consultant hereby assigns and agrees to
assign to 1st Step or its designee its entire right, title and
interest worldwide in all Intellectual Property.
4.1.c. Assistance. Consultant agrees to execute upon 1st Step's
request a signed transfer of ownership to 1st Step for all,
inventions and all works subject to copyright protection,
including, but not limited to, content articles, computer
programs, notes, sketches, drawings and reports. Consultant
agrees to assist 1st Step in any reasonable manner to obtain
and enforce 1st Step's benefit patents, copyrights, maskworks,
and other property rights in any and all countries, and
Consultant agrees to execute, when requested, patent,
copyright or similar applications and assignments to 1st Step
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and any other lawful documents deemed necessary by 1st Step to
carry out the purpose of this Agreement. If called upon to
render assistance under this paragraph, Consultant will be
entitled to a fair and reasonable fee in addition to
reimbursement of authorized expenses incurred at the prior
written request of 1st Step. In the event that 1st Step is
unable for any reason to secure Consultant's signature to any
document required to apply for or execute any patent,
copyright, maskwork or other applications with respect to any
Intellectual Property (including improvements, renewals,
extensions, continuations, divisions or continuations in part
thereof), Consultant hereby irrevocably designates and
appoints 1st Step and its duly authorized officers and agents
as its agents and attorneys-in-fact to act for and in its
behalf and instead of Consultant, to execute and file any such
application and to do all other lawfully permitted acts to
further the prosecution and issuance of patents, copyrights,
maskworks or other rights thereon with the same legal force
and effect as if executed by Consultant.
4.2. CONFIDENTIAL INFORMATION.
4.2.a. Definition of Confidential Information. "Confidential
Information" as used in this Agreement shall mean any and all
technical and non-technical information and proprietary
information, including without limitation, techniques,
sketches, drawings, models, Intellectual Property, apparatus,
equipment, algorithms, software programs and software source
code documents, related to the current, future and proposed
products and services of 1st Step, its suppliers and
customers, 1st Step's information concerning research,
experimental work, development, design details and
specifications, engineering information, financial
information, procurement requirements, purchasing and
manufacturing information, customer lists, business forecasts,
sales and merchandising and marketing plans and information.
4.2.b. Nondisclosure and Nonuse Obligations. Consultant will use the
Confidential Information solely to perform Consulting Services
for the benefit of 1st Step. Consultant agrees that it shall
treat all Confidential Information of 1st Step with the same
degree of care as it accords to its own Confidential
Information, and Consultant represents that it exercises
reasonable care to protect its own Confidential Information,
and Consultant represents that it exercises reasonable care to
protect its own Confidential Information. If Consultant is not
an individual, Consultant agrees that it shall disclose
Confidential Information only to those employees who need to
know such information and certifies that such employees have
previously agreed, either us a condition of employment, or in
order to obtain the Confidential Information, to he bound by
terms and conditions substantially similar to those of this
Agreement. Consultant agrees not to communicate any
information to 1st Step in violation of the Proprietary rights
of any third party. Consultant will immediately give notice to
1st Step of any unauthorized use or disclosure of the
Confidential Information. Consultant agrees to assist 1st Step
in remedying any such unauthorized use or disclosure of the
Confidential Information.
4.2.c. Exclusions from Nondisclosure Obligations. Consultant's
obligations under Paragraph 4.2(b) ("Nondisclosure") with
respect to Confidential Information shall terminate when
Consultant can document that: (a) the information was in the
public domain at or subsequent to the time it was communicated
to Consultant by the disclosing party through no fault of
Consultant; (b) the information was rightfully in Consultant's
possession free of any obligation of confidence at or
subsequent to the time it was communicated to Consultant by
the disclosing party; or (c) the information was developed by
employees or agents of Consultant independently of and without
reference to any information communicated to Consultant by the
disclosing party. If Consultant is required to disclose the
Confidential Information in response to a valid order by a
court or other government body, or as otherwise required by
law or as necessary to establish the rights of either party
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under this Agreement, Consultant agrees to provide 1st Step
with prompt written notice so as to provide 1st Step with a
reasonable opportunity to protect such Confidential
Information.
4.2.d. Disclosure of Third Party Information. Neither party shall
communicate any information to the other in violation of the
proprietary rights of any third party.
4.3. RETURN OF 1ST STEP'S PROPERTY. All materials (including, without
limitation, content articles, source code, documents, drawings, models,
apparatus, sketches, designs and lists) furnished to Consultant by 1st
Step, whether delivered to Consultant by 1st Step or made by Consultant
in the performance of services under this Agreement (collectively
referred to as the "1st Step Property") are the sole and exclusive
property of 1st Step and/or its suppliers or customers. Consultant
agrees to keep all 1st Step property at 1st Step's premises unless
otherwise permitted in writing by 1st Step. Consultant agrees to
promptly deliver the original and any copies of the 1st Step Property
to 1st Step at any time upon 1st Step's request. Upon termination of
this Agreement by either party for any reason, Consultant agrees to
promptly deliver to 1st Step or destroy, at 1st Step's option, the
original and any copies of the 1st Step Property. Within five (5) days
after the termination of this Agreement, Consultant agrees to certify
in writing that Consultant has so returned or destroyed all such 1st
Step Property.
4.4. OBSERVANCE OF 1ST STEP RULES. At all times while on 1st Step's
premises, Consultant will observe 1st Step's rules and regulations with
respect to conduct, health and safety and protection of persons and
property.
5. NO CONFLICT OF INTEREST. During the term of this Agreement, Consultant
will not accept work, enter into a contract, or accept any obligation,
inconsistent or incompatible with Consultant's obligations, or the
scope of services rendered for 1st Step, under this Agreement.
Consultant warrants that, to the best of its knowledge, there is no
other contract or duty on Consultant's part, which conflicts with or is
inconsistent with this Agreement. Consultant agrees to indemnify 1st
Step from any and all loss or liability incurred by reason of the
alleged breach by Consultant of any services agreement with any third
party.
6. TERM AND TERMINATION.
6.1. TERM. This Agreement is effective as of the Effective Date set forth
below.
6.2. TERMINATION. Either party may terminate this Agreement, with or without
cause, at any time upon fifteen (15) days' prior written notice to the
other party. In the event of termination, Consultant's stock options
shall immediately stop vesting.
6.3. SURVIVAL. The rights and obligations contained in Sections 4
("Intellectual Property Rights") and 7 ("Noninterference with
Business") will survive any termination or expiration of this
Agreement.
7. NONINTERFERENCE WITH BUSINESS. During this Agreement, and for a period
of two years immediately following its termination, and for a period of
two years immediately following its termination, Consultant agrees not
to interfere with the business of 1st Step in any manner. By way of
example and not of limitation, Consultant agrees not to solicit or
induce any employee or independent Consultant to terminate or breach an
employment, contractual or other relationship with 1st Step.
8. SUCCESSOR AND ASSIGNS. Consultant may not assign this Agreement or
subcontract or otherwise delegate its obligations under this Agreement
without 1st Step's prior written consent. Subject to the foregoing,
this Agreement will be for the benefit of 1st Step's successors and
assigns, and will be binding on Consultant's assignees.
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9. CONSEQUENTIAL DAMAGES. Neither party will be liable to the other for
any consequential, special or incidental.
10. NOTICES. Any notice required or permitted by this Agreement shall be in
writing and shall be delivered as follows with notice deemed given as
indicated: (I) by personal delivery when delivered personally; (ii) by
overnight courier upon written verification of receipt; iii) by
telecopy or facsimile transmission upon acknowledgment of receipt of
electronic transmission; or (iv) by certified or registered mail,
return receipt requested, upon verification of receipt. Notice shall be
sent to the addresses set forth above or such other address as either
party may specify in writing.
11. GOVERNING LAW. This Agreement shall he governed in all respects by the
laws of the United States of America and by the laws of the State of
California, excluding California's conflict of law provisions.
12. SEVERABILITY. Should any provisions at this Agreement be held by a
court of law to be illegal, invalid or unenforceable, the legality,
validity and enforceability of the remaining provisions of this
Agreement shall not be affected or impaired thereby.
13. WAIVER. The waiver by 1st Step of a breach of any provision of this
Agreement by Consultant shall not operate or be construed as a waiver
of any other or subsequent breach by Consultant.
14. INJUNCTIVE RELIEF FOR BREACH. Consultant's obligations under this
Agreement are of a unique character that gives them particular value;
breach of any of such obligations will result in irreparable and
cont8inuing damage to 1st Step or which there will be no adequate
remedy at law; and, in the event of such breach, 1st Step will be
entitled to injunctive relief and/or a decree for specific performance,
and such other and further relief as may be proper (including monetary
damages if appropriate).
15. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties relating to this subject matter and supersedes all
prior or contemporaneous oral or written agreements concerning such
subject matter. The terms of this Agreement will govern all Project
Assignments and services undertaken by Consultant for 1st Step. This
Agreement will govern all Project Assignments and services undertaken
by Consultant for 1st Step. This Agreement may only be changed by
mutual agreement of authorized representatives of the parties in
writing.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
"1st Step" "Consultant"
1st Step, Inc.,
a Delaware Corporation
/s/ Xxxxxx Xxxxxxx /s/ Xxxxx Xxxxxxxx
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By: XXXXXX XXXXXXX Xxxxx Xxxxxxxx
Its: President
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