EXHIBIT 10.13
-------------
INDEPENDENT CONSULTANT SERVICES AGREEMENT
-----------------------------------------
This agreement ("Agreement") is made by and between EssTec, Inc., a Nevada
corporation ("EssTec"), and Xxxx Xxxxxx, an individual ("Consultant") and is
effective as of September 5, 2001 ("Effective Date").
1. ENGAGEMENT OF SERVICES. Attached hereto as Exhibit A and incorporated
herein by this reference 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 set forth in Exhibit B attached hereto and incorporated herein by this
reference.
3. INDEPENDENT CONTRACTOR RELATIONSHIP. Consultant's relationship with
EssTec 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 EssTec 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 EssTec unless specifically requested or authorized in
writing to do so by a EssTec 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. EssTec 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 EssTec 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 EssTec. Consultant agrees to
promptly disclose every invention to EssTec. Consultant hereby assigns and
agrees to assign to EssTec or its designee its entire right, title and interest
worldwide in all Intellectual Property.
4.1.c. Assistance. Consultant agrees to execute upon EssTec's request a
signed transfer of ownership to EssTec 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 EssTec in any reasonable manner to obtain and enforce EssTec'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 EssTec and any other lawful documents
deemed necessary by EssTec 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 EssTec. In the event that
EssTec 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 EssTec 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 EssTec, its
suppliers and customers, EssTec'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 EssTec. Consultant agrees that it shall treat all Confidential Information
of EssTec 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 EssTec in
violation of the Proprietary rights of any third party. Consultant will
immediately give notice to EssTec of any unauthorized use or disclosure of the
Confidential Information. Consultant agrees to assist EssTec 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 under this Agreement,
Consultant agrees to provide EssTec with prompt written notice so as to provide
EssTec 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 EssTec's Property. All materials (including, without
------------------------------
limitation, content articles, source code, documents, drawings, models,
apparatus, sketches, designs and lists) furnished to Consultant by EssTec,
whether delivered to Consultant by EssTec or made by Consultant in the
performance of services under this Agreement (collectively referred to as the
"EssTec Property") are the sole and exclusive property of EssTec and/or its
suppliers or customers. Consultant agrees to keep all EssTec property at
EssTec's premises unless otherwise permitted in writing by EssTec. Consultant
agrees to promptly deliver the original and any copies of the EssTec Property to
EssTec at any time upon EssTec's request. Upon termination of this Agreement by
either party for any reason, Consultant agrees to promptly deliver to EssTec or
destroy, at EssTec's option, the original and any copies of the EssTec 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
EssTec Property.
4.4. Observance of EssTec Rules. At all times while on EssTec's
-----------------------------
premises, Consultant will observe EssTec'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 EssTec, 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 EssTec 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 EssTec 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 EssTec.
8. SUCCESSOR AND ASSIGNS. Consultant may not assign this Agreement or
subcontract or otherwise delegate its obligations under this Agreement without
EssTec's prior written consent. Subject to the foregoing, this Agreement will
be for the benefit of EssTec's successors and assigns, and will be binding on
Consultant's assignees.
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 EssTec 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
EssTec or which there will be no adequate remedy at law; and, in the event of
such breach, EssTec 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 EssTec. This Agreement will govern all Project
Assignments and services undertaken by Consultant for EssTec. 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.
"EssTec"
EssTec, Inc.,
a Nevada Corporation
/s/ Xxxxx Xxxx
__________________________
By: Xxxxx Xxxx
Its: CEO
"Consultant"
/s/ Xxxx Xxxxxx
____________________________
Xxxx Xxxxxx
EXHIBIT A
DESCRIPTION OF CONSULTING SERVICES
----------------------------------
Consultant shall perform the following services pursuant to the terms of
this Agreement:
(1) Director of Business Development - Greater China Region (including
China, Hong Kong, and Taiwan) for EssTec. In this capacity the
services would include but not limited to:
(a) advising on business development;
(b) advising on marketing; and
(c) developing strategic alliances.
(d) Advising on fund raising
(2) Serving on the board of directors of the Company, including but not
limited to:
(a) assisting the board of directors in developing policies and
procedures; and
(c) assisting the board of directors of the Company in
mergers, acquisitions, and other business combinations.
The above services will be further defined and delineated by the Company's
board of directors from time to time as necessary.
EXHIBIT B
COMPENSATION
Consultant's compensation will be:
1. 3% Commission on all realized revenues.
2. 150,000 Stock Option priced at $3.50 and vested over six months period.
