INDEPENDENT CONTRACTOR AGREEMENT
This independent contractor engagement agreement ("Agreement") dated the 11th
day of March, 2003 by and between Xxxx Xxxxxxxxxxx, Xxxxxx Xxxxx and Xxxxx
Xxxxxxx (hereafter referred to as "Consultants"), whose address is 00 X. Xxxxx
Xx., Xxxxx 000, Xxxxxxxx Xxxxxxx, XX 00000, and Maximum Dynamics, Inc.
(Company), a Colorado corporation whose address is 0 X. Xxxxxxx Xxxxxx, Xxxxx
0000, Xxxxxxxx Xxxxxxx, XX 00000.
WHEREAS, Consultants assist companies with software engineering,
technology consulting, software design and programming; and,
WHEREAS, Company wishes to engage the services of Consultants;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the parties hereto agree as follows:
1. Consultants will assist the Company in connection with its business
endeavors in the fields of software engineering, software design, and
other such services that are mutually agreed upon by both parties from
time to time. This Agreement does not constitute a commitment nor an
undertaking on the part of Consultants to internally ensure the
successful development of a commercially viable software system. As
Consultants to the Company, Consultants will assist with the following:
i. Software design: Within 30 days from when Consultants receive the
necessary information about the Company - which shall include the
current software system, software code, software design plan,
software design documentation papers and any other information
requested by Consultants - Consultants shall provide the Company
with an automation engine that shall compute statements all
designed in a web-based environment (hereafter "Software
Component").
ii. Software engineering: Consultants agree to assist the Company with
creation and testing of the Software Component. Each Consultant
will act only as a consultant and it is the responsibility of the
Company and its affiliates to ensure the proper functioning of the
software system and Software Component to be developed by the
Consultants.
2. The retention by the Company of Consultants as heretofore described
shall be for a period of not less than four months from the date hereof
in order to provide Consultants a reasonable opportunity to perform
their services (as outlined above). Following this four month period,
this Agreement will automatically renew on a month-to-month basis
unless terminated by either party upon 30 day advanced written notice.
3. Any parties introduced to the Company by Consultants, even if declining
participation hereby, shall be deemed a "Protected Party" and
thereafter the Company shall not directly deal with the Protected Party
without the prior written consent of Consultants.
4. In connection with Consultants' activities on the Company's behalf, the
Company will cooperate with Consultants and will furnish Consultants
with all information and data concerning the Company (the
"Information"), which Consultants deem appropriate and will provide
Consultants with access to the Company's officers, directors,
employees, independent accountants, and legal counsel. The Company
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represents and warrants that all Information made available to
Consultants by the Company will, at all times during the period of
engagement of Consultants hereunder, be complete and correct in all
material respects and will not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein not misleading in the light of the
circumstances under which such statements are made. The Company further
represents and warrants that any software code provided by it to
Consultants will have been prepared in good faith by the Company and is
owned legally and completely by the Company. The Company acknowledges
and agrees that, in rendering their services hereunder, Consultants may
be using and relying on the Information without independent
verification thereof by Consultants or independent appraisal by
Consultants of any of the Company's assets. Consultants do not assume
responsibility for any information regarding the Company. Any
recommendations rendered by Consultants pursuant to this Agreement may
not be disclosed publicly without our prior written consent.
5. In consideration of their services pursuant to this Agreement,
Consultants shall be entitled to receive, and the Company agrees to pay
Consultants, consulting fees according to the attached Schedule A,
which may change from time to time with ample notice provided to the
Company before any changes that may effect the course or charges for
services rendered by Consultants.
6. In addition to the consideration paid as described in Paragraph 5
above, Consultants agree that it will charge the Company for any added
expenses only if such expenses are pre-approved by the Company. The
Company agrees to promptly reimburse Consultants, upon request, for all
such pre-approved expenses incurred by Consultants (which may include
fees and disbursements of counsel, and of other consultants and
advisors retained by Consultants) in connection with the matters
contemplated by this Agreement.
7. Either party hereto may terminate this Agreement at any time upon 30
days' prior written notice, following the initial engagement period as
stated in Paragraph 2 without liability or continuing obligation,
except as set forth in the following sentence. Neither termination of
this Agreement nor completion of the assignment contemplated hereby
shall affect: (i) any compensation earned by Consultants up to the date
of termination or completion, as the case may be, (ii) the
reimbursement of expenses incurred by Consultants up to the date of
termination or completion, as the case may be, (iii) the provisions of
Paragraphs 5 through 8 of this Agreement and (iv) the attached
Indemnification Provisions which are incorporated herein, all of which
shall remain operative and in full force and effect.
8. Should this Agreement be terminated by either party as described in
Paragraph 2 and Paragraph 7, Consultants will keep one-twenty-fourth
(1/24) of the equity position (including warrants) for each month that
Consultants were retained. In the case of termination, Consultants
agree to return their stock certificates minus the equity (including
warrants) that are to be kept as described above in this paragraph.
9. The Company agrees to indemnify and hold harmless Consultants against
any and all losses, claims, damages, obligations, penalties, judgments,
awards, liabilities, costs, expenses, and disbursements (and any and
all actions, suits, proceedings, and investigations in respect thereof
and any and all legal and other costs, expenses, and disbursements in
giving testimony or furnishing software code, systems or documents in
response to a subpoena or otherwise), including, without limitation the
costs, expenses, and disbursements, as and when incurred, of
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investigating, preparing, or defending any such action, suit,
proceeding, or investigation (whether or not in connection with
litigation in which Consultants are a party), directly or indirectly,
caused by, relating to, based upon, arising out of, or in connection
with Consultants' acting for the Company, including, without
limitation, any act or omission by Consultants in connection with their
acceptance of or the performance or non-performance of their
obligations under this Agreement; provided, however, such indemnity
shall not apply to any portion of any such loss, claim, damage,
obligation, penalty, judgment, award, liability, cost, expense, or
disbursement to the extent it is found in a final judgment by a court
of competent jurisdiction (not subject to further appeal) to have
resulted primarily and directly from the willful misconduct of
Consultants. The Company also agrees that Consultants shall not have
any liability (whether direct or indirect, in contract or tort or
otherwise) to the Company for or in connection with the engagement of
Consultants, except to the extent that any such liability is found in a
final judgment by a court of competent jurisdiction (not subject to
further appeal) to have resulted primarily and directly from
Consultants' willful misconduct.
These indemnification provisions shall be in addition to any liability
which the Company may otherwise have to Consultants or the persons
indemnified below in this sentence and shall extend to the following:
Consultants, their affiliated entities, directors, officers, employees,
legal counsel, agents, and controlling persons (within the meaning of
the federal securities laws). All references to Consultants in these
indemnification provisions shall be understood to include any and all
of the foregoing.
If any action, suit, proceeding, or investigation is commenced, as to
which Consultants propose to demand indemnification, they shall notify
the Company with reasonable promptness; provided, however, that any
failure by Consultants to notify the Company shall not relieve the
Company from its obligations hereunder. Consultants shall have the
right to retain counsel of their own choice to represent them, and the
Company shall pay the fees, expenses, and disbursements of such
counsel; and such counsel shall, to extent consistent with its
professional responsibilities, cooperate with the Company and any
counsel designated by the Company. The Company shall be liable for any
settlement of any claim against Consultants made with the Company's
written consent, which consent shall not be unreasonably withheld. The
Company shall not, without the prior written consent of Consultants,
settle or compromise any claim, or permit a default or consent to the
entry of any judgment in respect thereof, unless such settlement,
compromise, or consent includes, as an unconditional term thereof, the
giving by the claimant to Consultants of an unconditional release from
all liability in respect of such claim.
10. The Company understands that to the extent Consultants utilize any
third parties that these third parties constitute the proprietary
intellectual property of Consultants. Such contacts, partners and
related information represent a substantial value to Consultants that
Consultants use to offer services to clients and retain a competitive
advantage in the marketplace. Therefore the Company aggress to work
with Consultants, and agrees not to circumvent in any manner, directly
or indirectly, Consultants with regard to any third parties, clients or
contacts that have been identified by Consultants, or Consultants'
clients or contacts. All contacts, discussions and resources with all
identified third parties or partners of Consultants shall be conducted
by, through or in conjunction with Consultants. The Company agrees that
this non-circumvention clause will remain in effect for a period of not
less than 12 months following the termination of this agreement by
either party.
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11. The validity and interpretation of this Agreement shall be governed by
the laws of the State of Colorado applicable to agreements made and to
be fully performed therein. The Company irrevocably submits to the
jurisdiction of any court of the State of Colorado for the purpose of
any suit, action, or other proceeding arising out of this Agreement, or
any of the agreements or transactions contemplated hereby, which is
brought by or against the Company and (i) hereby irrevocably agrees
that all claims in respect of any such suit, action, or proceeding may
be heard and determined in any such court and (ii) to the extent that
the Company has acquired, or hereafter may acquire, any immunity from
jurisdiction of any such court or from any legal process therein, the
Company hereby waives, to the fullest extent permitted by law, such
immunity. The Company hereby waives, and agrees not to assert in any
such suit, action, or proceeding, in each case, to the fullest extent
permitted by applicable law, any claim that (a) the Company is not
personally subject to the jurisdiction of any such court, (b) the
Company is immune from any legal process (whether through service or
notice, attachment prior to judgment, attachment in aid of execution,
execution, or otherwise) with respect to the Company's property or (c)
any such suit, action, or proceeding is brought in an inconvenient
forum.
12. The benefits of this Agreement shall inure to the respective successors
and assigns of the parties hereto and of the indemnified parties
hereunder and their successors and assigns and representatives, and the
obligations and liabilities assumed in this Agreement shall be binding
upon their respective successors and assignees.
13. For the convenience of the parties hereto, any number of counterparts
of this Agreement may be executed by the parties hereto. Each such
counterpart shall be, and shall be deemed to be, an original
instrument, but all such counterparts taken together shall constitute
one and the same Agreement. This Agreement may not be modified or
amended except in writing signed by the parties hereto.
14. Services provided by Consultants to and on behalf of the Company in
connection with this Agreement will be suspended forthwith in the event
of nonpayment of fees or expenses.
15. Consultants hereby represent and warrant as follows:
i. Consultants are independent contractors and have the power and are
duly authorized to carry on their business where and as now
conducted and to own, lease, and operate their assets as they now
do.
ii. The execution, delivery, and performance by Consultants of and the
consummation of the transactions contemplated in this Agreement
have been duly and validly authorized by the Consultants, and
Consultants represent and warrant that they have the right, power,
legal capacity, and authority to enter into and perform their
obligations under this Agreement, and that no consent or approval
of, notice to, or filing with any governmental authority having
jurisdiction over any aspect of the business or assets of
Consultants, and no consent or approval of or notice to any other
person or entity is required in connection with the execution and
delivery by Consultants of or the consummation by Consultants of
the transactions contemplated in this Agreement.
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iii. The execution, delivery, and performance of this Agreement by
Consultants and the consummation of the transactions contemplated
hereby and thereby, do not and will not result in or constitute
(i) a breach of any term or provision of this Agreement; (ii) a
default, breach, or violation, or an event that, with notice or
lapse of time or both, would be a default, breach, or violation of
any of the terms, conditions, or provisions of the Articles of
Incorporation or Bylaws of Consultants; (iii) a default, breach,
or violation, or an event that, with notice or lapse of time or
both, would be a default, breach, or violation of any of the
terms, conditions, or provisions of any lease, license, promissory
note, security agreement, commitment, indenture, mortgage, deed of
trust, or other agreement, instrument, or arrangement to which
Consultants are a party or by which they or any of their assets
are bound; (iv) an event that would permit anyone to terminate or
rescind any agreement or to accelerate the maturity of any
indebtedness or other obligations of Consultants; or (v) the
creation or imposition of any lien, charge, or encumbrance on any
of the assets of Consultants.
16. The Company hereby represents and warrants as follows:
i. Company is a corporation duly incorporated, validly existing, and
in good standing under the laws of the State of Colorado, and has
the corporate power and is duly authorized to carry on its
businesses where and as now conducted and to own, lease, and
operate its assets as it now does.
ii. The execution, delivery, and performance by Company of and the
consummation of the transactions contemplated in this Agreement
have been duly and validly authorized by the Board of Directors of
Company, and Company represents and warrants that it has the right,
power, legal capacity, and authority to enter into and perform its
obligations under this Agreement, and that no consent or approval
of, notice to, or filing with any governmental authority having
jurisdiction over any aspect of the business or assets of Company,
and no consent or approval of or notice to any other person or
entity is required in connection with the execution and delivery by
Company of or the consummation by Company of the transactions
contemplated in this Agreement.
iii. The execution, delivery, and performance of this Agreement by
Company and the consummation of the transactions contemplated
hereby and thereby, do not and will not result in or constitute (i)
a breach of any term or provision of this Agreement; (ii) a
default, breach, or violation, or an event that, with notice or
lapse of time or both, would be a default, breach, or violation of
any of the terms, conditions, or provisions of the Articles of
Incorporation or Bylaws of Company; (iii) a default, breach, or
violation, or an event that, with notice or lapse of time or both,
would be a default, breach, or violation of any of the terms,
conditions, or provisions of any lease, license, promissory note,
security agreement, commitment, indenture, mortgage, deed of trust,
or other agreement, instrument, or arrangement to which Company is
a party or by which it or any of its assets are bound; (iv) an
event that would permit anyone to terminate or rescind any
agreement or to accelerate the maturity of any indebtedness or
other obligations of Company; or (v) the creation or imposition of
any lien, charge, or encumbrance on any of the assets of Company.
17. In their performance hereunder, Consultants and their agents shall be
independent contractor. Consultants shall complete the services
required hereunder according to their own means and methods of work,
shall be in the exclusive charge and control of Consultants and shall
not be subject to the control or supervision of the Company, except as
to the results of the work. Company acknowledges that nothing in this
Agreement shall be construed to require Consultants to provide services
to Company at any specific time, or in any specific place or manner.
Payments to Consultants hereunder shall not be subject to withholding
taxes or other employment taxes as required with respect to
compensation paid to an employee.
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All notices and writings, required or given pursuant to this Agreement, shall be
signed by the party relying thereon to be sent by prepaid postal mail rates or
by facsimile transmission, to a location or number set forth below:
Maximum Dynamics, Inc. Xxxx Xxxxxxxxxxx
---------------------- ----------------
A) Maximum Dynamics, Inc. B) Xxxx Xxxxxxxxxxx
0 X. Xxxxxxx Xxxxxx, Xxxxx 0000 00 X. Xxxxx Xx., Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000 Xxxxxxxx Xxxxxxx, XX 00000
Fax: (000) 000-0000 Fax: (000) 000-0000
In witness whereof the parties have set their hands and seals as of the date
first written above.
Maximum Dynamics, Inc. Xxxx Xxxxxxxxxxx
---------------------- ----------------
By: Xxxx X. Xxxxxx By: Xxxx Xxxxxxxxxxx
Signature: /s/ Xxxx X. Xxxxxx Signature: /s/ Xxxx Xxxxxxxxxxx
---------------------------- ----------------------------
Title: Chief Executive Officer Title: Independent Contractor
Xxxxxx Xxxxx
------------
By: Xxxxxx Xxxxx
Signature: /s/ Xxxxxx Xxxxx
----------------------------
Title: Independent Contractor
Xxxxx Xxxxxxx
-------------
By: Xxxxx Xxxxxxx
Signature: /s/ Xxxxx Xxxxxxx
----------------------------
Title: Independent Contractor
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SCHEDULE A
A. Service Fee. The Company will engage Consultants for the services
described in this Agreement. The service fee charged to the Company for
this service is $45,000.00 (forty five thousand dollars) and is payable
in the following:
(i) By Company check made payable to: Xxxx Xxxxxxxxxxx
(ii) 3,000,000 shares of registered S-8 shares of Common Stock of
Maximum Dynamics, Inc. (priced at $0.015 per share, or a 20%
discount off of today's bid of $0.01875)
a. 1,000,000 shares shall be issed to: Xxxx Xxxxxxxxxxx
b. 1,000,000 shares shall be issed to: Xxxxxx Xxxxx
c. 1,000,000 shares shall be issed to: Xxxxx Xxxxxxx
The Company agrees to issue these shares within forty five (45) days of
the signing of this Agreement.
B. Xxxx Xxxxxxxxxxx deliverables: Consultants' efforts and services will
focus on the following areas:
i. Software design: Within 30 days from when Consultants receive the
necessary information about the Company - which shall include the
current software system, software code, software design plan,
software design documentation papers and any other information
requested by Consultants - Consultants shall provide the Company
with an automation engine that shall compute statements all
designed in a web-based environment (hereafter "Software
Component").
ii. Software engineering: Consultants agree to assist the Company with
creation and testing of the Software Component. Consultants will
act only as Consultants and it is the responsibility of the Company
and its affiliates to ensure the proper functioning of the software
system and Software Component to be developed by the Consultants.
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