EX-10.27 7 dex1027.htm BUSINESS CONSULTING AGREEMENT BUSINESS CONSULTING AGREEMENT
Exhibit 10.27
This Agreement is entered into between Optio Software, Inc., a Georgia corporation with its principal place of business at 0000 Xxxxxxxx Xxxxx, Xxxxxxxx Xxxxxxxx XX, Xxxxxxxxxx, XX 00000 hereinafter referred to as “Company”, and Xxxxxx Xxxx, with his principal place of business at 000 Xxxxxxxxx Xxxx Xxxxx, Xxxx Xxxxxx, XX 00000 hereinafter referred to as “Consultant”.
1. SERVICES PERFORMED BY CONSULTANT. Consultant agrees to provide to Company the following services:
| • | Planning and Strategy for Company 2004-2006 |
| • | Market Assessment (Industries - Segments - Gap Analysis) |
| • | Recommendations for Value Proposition / Competitive Positioning / Analyst and Press Relations / Etc. |
| • | Analysis of all Marketing Deliverables including web site, collateral, presentations, multimedia, PR etc. |
| • | Recommendations for new Marketing Deliverables and execution as approved in accordance with the operating budget or as approved by Optio’s CEO. |
| • | Work closely with executive staff and establish broad lines of internal communication as strategies are rolled out and programs are executed |
| • | Potentially help organize “quality circles” and/or “customer advisory” panels to transition company into true “Market-Driven” status |
| • | All work done with the goal of returning Optio to a leadership position in its selected markets. |
| • | Such other items as agreed to by the parties during the term of the agreement. |
| • | One Thousand Dollars ($1,000.00) per day |
| • | Xxxxxxxx for any of the individual one month periods shall not exceed Ten Thousand Dollars ($10,000.00) without the express written authorization of the Company’s CEO. |
(a) Upon the termination of relationship with the Company or promptly upon the Company’s request, Consultant shall surrender to the Company all equipment, tangible Proprietary Information, documents, books, notebooks, records, reports, notes, memoranda, drawings, sketches, models, maps, contracts, lists, computer disks (and other computer-generated files and data), any other data and records of any kind, and copies thereof (collectively, “Company Records”), created on any medium and furnished to, obtained by, or prepared by Consultant in the course of or incident to Consultant work, that are in the possession or under control of the Consultant.
(b) Consultant representations, warranties, and obligations as to confidentiality contained in this Agreement shall survive the termination of the Period of Work.
(e) Upon termination of the Period of Work and at the Company’s request, Consultant will execute a document acknowledging compliance with this Agreement in the form reasonably provided by the Company.
(a) Company shall not provide insurance coverage of any kind for Consultant or Consultant’s personnel. Consultant will provide Worker’s Compensation insurance for all personnel who are employees of Consultant but provided to Company hereunder, as well as such General Liability and Automobile Insurance coverage as it deems necessary.
(b) Company shall not withhold from Consultant’s compensation any amount that would normally be withheld from an employee’s pay.
(c) Consultant is providing the services detailed hereinabove on a non-exclusive basis and is free to provide similar services to other organizations without any restrictions other than those specifically set forth in this agreement.
(a) Definitions “Proprietary Information” is all information and any idea whatever form, tangible or intangible, pertaining in any manner to the business of the Company, or any of its Affiliates, or its employees, clients, consultants, or business associates, which was produced by
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any employee or consultant of the Company in the course of his or her work or consulting relationship or otherwise produced or acquired by or on behalf of the Company. All Proprietary Information not generally known outside of the Company’s organization, and all Proprietary Information so known only through improper means, shall be deemed “Confidential Information.” By example and without limiting the foregoing definition, Proprietary and Confidential Information shall include, but not be limited to:
(1) formulas, research and development techniques, processes, trade secrets, computer programs, software, electronic codes, mask works, inventions, innovations, patents, patent applications, discoveries, improvements, data, know-how, formats, test results, and research projects;
(2) information about costs, profits, markets, sales, contracts and lists of customers, and distributors;
(3) business, marketing, and strategic plans;
(4) forecasts, unpublished financial information, budgets, projections, and customer identities, characteristics and agreements; and
(5) employee personnel files and compensation information.
Confidential Information is to be broadly defined, and includes all information that has or could have commercial value or other utility in the business in which the Company is engaged or contemplates engaging, and all information of which the unauthorized disclosure could be detrimental to the interests of the Company. Confidential and Proprietary Information will be clearly marked as such by the Company.
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(e) Location and Reproduction Consultant shall maintain at Consultant’s work station and/or any other place under Consultant’s control only such Confidential Information as Consultant has a current “need to know.” Consultant shall return to the appropriate person or location or otherwise properly dispose of Confidential Information once that need to know no longer exists. Consultant shall not make copies of or otherwise reproduce Confidential Information unless there is a legitimate business need of the Company for reproduction.
(f) Prior Actions and Knowledge Consultant represents and warrant that from the time of Consultant’s first contact with the Company Consultant held in strict confidence all Confidential Information and have not disclosed any Confidential Information, directly or indirectly, to anyone outside the Company, or used, copied, published, or summarized any Confidential information, except to the extent otherwise permitted in this Agreement.
(g) Third-Party Information Consultant acknowledges that the Company has received and in the future will receive from third parties their confidential information subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain limited purposes. Consultant agrees that, during the Period of Work and thereafter, Consultant will hold all such confidential information in the strictest confidence and not to disclose or use it, except as necessary to perform Consultant’s obligations hereunder and as is consistent with the Company’s agreement with such third parties.
(h) Third Parties Consultant represents that to the best of his knowledge, Consultant’s work with the Company does not and will not breach any agreements with or duties to a former employer or any other third party. Consultant will not disclose to the Company or use on its behalf any confidential information belonging to others and Consultant will not bring onto the premises of the Company any confidential information belonging to any such party unless consented to in writing by such party.
10. NO USE OF NAME Consultant shall not at any time use the Company’s name or any of the Company trademark(s) or trade name(s) in any advertising or publicity without the prior written consent of the Company. However, Consultant may list Company’s name and the general scope of work performed for the Company on his resume and work history and disclose same to other third parties.
(a) Consultant warrants that all services performed under this Agreement shall be performed in a manner consistent with generally prevailing professional or industry standards. Company must report any deficiencies in Consultant’s services to Consultant in writing within ten (10) days of performance to receive warranty remedies.
Company’s exclusive remedy for any breach of the above warranty shall be the re-performance of Consultant’s services. If Consultant is unable to re-perform the services, Company shall be entitled to recover the fees paid to Consultant for the deficient services.
THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR
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FITNESS FOR A PARTICULAR PURPOSE AND ANY ORAL OR WRITTEN REPRESENTATIONS, PROPOSALS OR STATEMENTS MADE PRIOR TO THIS AGREEMENT.
12. INJUNCTIVE RELIEF Both parties acknowledge that the other’s failure to carry out any obligation under this Agreement, or a breach by either party of any provision herein, may constitute immediate and irreparable damage to the other, which cannot be fully and adequately compensated in money damages and which may warrant preliminary and other injunctive relief, an order for specific performance, and other equitable relief. The parties further agree that no bond or other security shall be required in obtaining such equitable relief and both parties hereby consent to the issuance of such injunction and to the ordering of specific performance. Both parties also understand that other action may be taken and remedies enforced.
13. MODIFICATION No modification of this Agreement shall be valid unless made in writing and signed by both parties.
14. BINDING EFFECT This Agreement shall be binding upon Consultant, Consultant’s heirs, executors, assigns and administrators and is for the benefit of the Company and its successors and assigns.
15. GOVERNING LAW This Agreement shall be construed in accordance with, and all actions arising under or in connection therewith shall be governed by, the internal laws of the State of Georgia (without reference to conflict of law principles).
16. INTEGRATION This Agreement sets forth the parties’ mutual rights and obligations with respect to proprietary information, prohibited competition, and intellectual property. It is intended to be the final, complete, and exclusive statement of the terms of the parties’ agreements regarding these subjects. This Agreement supersedes all other prior and contemporaneous agreements and statements on these subjects, and it may not be contradicted by evidence of any prior or contemporaneous statements or agreements. To the extent that the practices, policies, or procedures of the Company, now or in the future, apply to Consultant and are inconsistent with the terms of this Agreement, the provisions of this Agreement shall control unless changed in writing by the Company.
17. ATTORNEYS’ FEES Should either Consultant or the Company, or any heir, personal representative, successor or permitted assign of either party, resort to legal proceedings to enforce this Agreement, the prevailing party (as defined in Florida statutory law) in such legal proceeding shall be awarded, in addition to such other relief as may be granted, attorneys’ fees and costs incurred in connection with such proceeding.
18. ASSIGNMENT This Agreement may not be assigned without the Company’s prior written consent.
19. COMPLIANCE with LAW Consultant agrees to abide by all federal, state, and local laws, ordinances and regulations.
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22. LIMITATION ON CONSULTANT’S LIABILITY TO COMPANY.
| (a) | In no event shall consultant be liable to Company for lost profits of Company, or special, incidental or consequential damages (even if Consultant has been advised of the possibility of such damages). |
| (b) | Consultant’s total liability under this Agreement for damages, cost and expenses, regardless of cause, shall not exceed the total amount of fees paid to Consultant by Company under this Agreement. |
| (c) | Company shall indemnify Consultant against all claims, liabilities and costs, including reasonable attorney fees, or defending any third party claim or suit, other than for infringement of intellectual property rights, arising out of or in connection with Company’s performance under this Agreement. Consultant shall promptly notify Company in writing of such claim or suit and Company shall have the right to fully control the defense and any settlement of the claim or suit. |
25. DISPUTE RESOLUTION. If a dispute arises under this Agreement, the parties agree to first try to resolve the dispute with the help of a mutually agreed upon mediator in the following location: Georgia. Any costs and fees other than attorney fees associated with the mediation shall be shared equally by the parties.
If it proves impossible to arrive at a mutually satisfactory solution through mediation, the parties agree to submit the dispute to binding arbitration in the following location: Georgia. The parties agree that the binding arbitration will be conducted under the rules of the American Arbitration Association. Judgment upon the award rendered by the arbitrator may be entered in any court with jurisdiction to do so.
(1) When delivered personally to the recipient’s address as appearing in the introductory paragraph in this Agreement.
(2) Five days after being deposited in the United States mail, postage prepaid to the recipient’s address as appearing in the introductory paragraph to this Agreement, or
(3) When sent by fax or telex to the last fax or telex number of the recipient known to the party giving notice. Notice is effective upon receipt provided that a duplicate copy of the notice is promptly given by first-class or certified mail, or the recipient delivers a written confirmation of receipt.
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Any party may change its address appearing in the introductory paragraph to this Agreement by giving notice of the change in accordance with this paragraph.
| Company: | Consultant: Xxxxxx Xxxx | |||||||
| By: | /s/ XXXXX CAPE | By: | /s/ XXXXX XXXX | |||||
| Xxxxx Cape – CEO | Xxxxx Xxxx | |||||||
| Date: March 17, 2003 | Date: March 17, 2003 |
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