EXHIBIT 10.50
INDEPENDENT CONTRACTOR AGREEMENT
This Independent Contractor Agreement (this "Agreement") is entered into as
of this 9th day of November, 2004, between OneSource Technologies, Inc., a
Delaware corporation (the "Company") and Xxxxxx X. Xxxxxxxx (the "Contractor").
The term "Parties" shall refer collectively to both of these entities.
Recitals.
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Although designated Recitals, the following constitute covenants and
warranties and are a part of this Agreement.
A. Company is currently engaged in two closely related and complimentary
lines of technology industry services and products: (1) equipment sales
integration and maintenance support services; and (2) providing high quality
compatible imaging supply products. As used herein, however, the term "Line of
Business" shall mean the business described in this Paragraph and shall also
mean any other activity or business enterprise in which the Company or any
subsidiary engages, whether or not related to the foregoing, at any time during
the Term hereof.
B. Contractor is experienced in the Line of Business and as more
specifically described in Section 2 below (the "Services").
C. Company and Contractor desire enter into this Agreement to establish
their rights and duties with respect to each other upon Company's engagement of
Contractor to perform the Services on the terms and conditions herein.
Agreement.
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NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, and in reliance upon the representations, warranties, and
recitals set forth in this Agreement, and in consideration for and pursuant to
Section 5.4 of the Revised Merger Agreement dated November 9, 2004 by and among
the Company, First Financial Computer Services, Inc., the Contractor, Xxxx X.
Xxxxxxxx, Xxx X. Xxxxxxxx and Xxxxx X. Xxxxxxxx (the "Merger Agreement"), the
Parties agree as follows:
1. Engagement. Company engages Contractor and Contractor agrees to provide the
Services to Company, subject the terms and conditions hereinafter set forth.
2. Services to be Performed. Contractor shall perform those services and duties
relating to special projects assigned by the Company from time to time and
accepted by the Contractor. The Contractor's performance of such duties shall
only require occasional travel. Contractor shall furnish his own equipment and
supplies and shall comply with all applicable laws, rules, and regulations of
any state or other governmental, administrative or other authority governing the
Services being performed and shall furnish Company with evidence of such
compliance upon request.
3. Relationship of the Parties. The relationship of Contractor and Company
created hereunder is that of an independent contractor, and nothing contained
herein is intended nor shall be construed to create a joint venture,
partnership, an employer-employee relationship, an association, or relationship
of any other kind whatsoever between Company and Contractor. Company will
specify only results to be achieved, and the conduct and control of Contractor's
work shall be solely with Contractor or such other persons who, by custom in the
industry, are responsible for supervising and directing Contractor's services.
Company shall not be responsible for determining Contractor's work routine, work
schedule, or the amount of time Contractor is to spend on the work project,
except that Contractor is expected to make diligent progress toward completing
any particular work project for which he has been engaged. Contractor shall not
be considered an agent or employee of Company for any purpose, and Contractor
shall not be entitled to any of the benefits that Company provides for its own
employees. Contractor shall be solely responsible for all taxes, unemployment or
workers compensation or any other insurance, and Contractor shall be responsible
for any withholding which is required to be paid or made on all sums paid to
Contractor hereunder.
3.1. Compensation. Subject to the conditions herein, Company shall pay, or
cause to be paid, to Contractor the compensation of $157,000 for the Initial
Term of this Agreement, payable in 26 equal payments bi-weekly for work
performed in the prior two-week period.
4. Benefits. The Company will provide Contractor with the opportunity to
participate in a life and disability insurance plan during the term of this
Agreement, which plan may, in the sole discretion of the Company, be changed at
any time.
5. Term of Agreement and Expiration.
5.1. Initial Term. This Agreement shall be effective for a period of one
year, beginning on November 9, 2004 and continuing to the close of business on
November 9, 2005, except that either party, in its sole discretion, may shorten
the Initial Term upon payment in full of the OneSource Promissory Note to
Contractor in connection with the Merger Agreement (the "Initial Term"), unless
otherwise terminated as provided herein.
5.2. Renewal Term. This Agreement may be renewed in writing for successive
one (1) year periods, if signed by parties; and, in the sole discretion of the
Contractor, this Agreement shall automatically renew for successive one (1) year
periods, as long as the OneSource Promissory Note has not been paid in full
(each called a "Renewal Term").
5.3. Definition of "Term." For purposes of this Agreement, the word "Term"
shall mean the actual time during which this Agreement is effective until it is
terminated, including (unless earlier terminated) the Initial Term plus any
Renewal Term(s).
5.4. Obligations Upon Expiration. If either Party causes the expiration of
this Agreement at the scheduled end of the Initial or any Renewal Term as
provided in this Paragraph, the Company shall have no further obligation to pay
any compensation of any nature whatsoever to the Contractor.
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6. Termination.
6.1. This Agreement (except those provisions that survive the termination
hereof) shall terminate upon the first to occur of the following, regardless
when it occurs, provided, however, in no event will this Agreement be terminated
by the Company before the OneSource Promissory Note is paid in full:
6.1.1. Death or Disability of Contractor. Upon either the death or
disability of Contractor, this Agreement shall terminate immediately without
notice, effective as of the date of such death or disability, and the Company
shall have no liability for any amounts other than any Compensation through the
end of the Initial Term or additional amounts already earned by and not yet paid
to Contractor on the date of death or disability. In the event of the disability
of Contractor, the Company shall continue to maintain any insurance described in
Section 5 during the remainder of the Initial Term. For the purposes of this
Paragraph 6.1.1, "date of disability" shall mean the date upon which the
Contractor begins to receive disability payment under the disability insurance
described in Section 5.
6.1.2. Termination Without Cause. Either party may terminate this
Agreement at will, without cause, by giving at least 30 days' written notice of
such termination.
6.1.3. Termination By Contractor for Cause. Contractor may terminate
this Agreement for "Contractor Cause," by giving at least 10 days' written
notice of such termination. When used herein, the term "Contractor Cause" shall
mean that the Company has materially breached its obligations hereunder, under
the Merger Agreement or the OneSource Promissory Note, and Contractor has given
the Company written notice of the particulars in which the Company is claimed to
have materially breached its obligations, and the Company has failed within
thirty days after receipt of such notice to cure such breach.
6.1.4. Termination By Company for Cause. The Company may terminate
this Agreement for Cause, by giving at least 10 days' written notice of such
termination. For the purposes of this Agreement, Cause means (i) the
Contractor's material breach of this Agreement or the Merger Agreement; (ii) the
conviction of or the entering of a guilty plea or plea of no contest with
respect to, a felony, the equivalent thereof, or any other crime with respect to
which imprisonment is a possible punishment and Company has given the Contractor
written notice of the particulars in which the Contractor is claimed to have
materially breached its obligations, and the Contractor has failed within thirty
days after receipt of such notice to cure such breach.
6.2. Compensation Upon Termination.
6.2.1. If the Contractor terminates the Agreement for Contractor
Cause, or if the Company terminates the Agreement without Cause, and provided
that Contractor has been and continues to be in compliance with the provisions
of Section 9 hereof. Company shall continue to pay the Compensation for the
remainder of the Initial Term, plus any notice period specified above if
termination occurs during any Renewal Term.
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6.2.2. If the Contractor terminates this Agreement without Contractor
Cause, or if the Company terminates this Agreement for Cause, the Company shall
have no further obligation to pay any compensation under this Agreement.
7. Expenses.
7.1. Mileage Allowance. Company shall reimburse Contractor at the rate of
the current IRS mileage allowance for each mile traveled in connection with the
services provided to the Company as set forth herein with which reimbursement is
intended to cover the cost of all gasoline and normal wear and tear on
Contractor's automobile.
7.2. Expense Reimbursement. The Company shall further reimburse Contractor
for all ordinary, necessary, and reasonable expenses incurred by Contractor in
discharging his duties hereunder, including without limitation all costs of a
cell phone and gas for his automobile. Company's reimbursement of expenses shall
be made in accordance with the Company's policies applicable to executive level
employees of the Company.
8. Return of Records and Property. On the termination or expiration of
Contractor's engagement and/or this Agreement, regardless of the manner in which
or the reason for which it expires or is terminated, or at any other time upon
the request of the Company or its successors or assigns, Contractor shall
immediately return to Company all of the following:
8.1. All of Company's property, tangible or intangible, real, personal or
mixed, used by Contractor in rendering services hereunder or otherwise that is
in Contractor's possession or under his control, specifically excluding
Contractor Information as defined below.
8.2. All lists, files, books, accounts, drawings, memoranda,
correspondence, documents, data, notes, reports, proposals, materials, and all
other records of any description whatsoever, including any copies thereof, and
including any software disks on which such records are contained, pertaining to
the Company's business, current or prospective clients or customers, suppliers,
manufacturing or production process, and/or Confidential Information,
specifically excluding Contractor Information as defined below. Contractor shall
have no right to copy or otherwise reproduce such records.
9. Restrictive Covenants. The parties recognize that the Services to be rendered
under this Agreement by Contractor are special, unique and of an extraordinary
character. The parties further acknowledge that in the course of Contractor's
performance of the services hereunder, Contractor will have access to certain
confidential information which is valuable and necessary to Company in the
conduct of its business and its goodwill. Contractor, in consideration of the
compensation to be paid to him pursuant to this Agreement and the other promises
of Company made herein, expressly promises as follows, which promises shall
survive and continue after termination or expiration of this Agreement except as
set forth herein. Moreover, the terms of this Section 9 are a material
inducement to Company entering into the Merger Agreement and this Independent
Contractor Agreement.
9.1. Covenant Not to Compete. Contractor will not, directly or indirectly,
for the duration of the Time Limit and within the Geographical Limit, either as
principal, agent, employee,
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employer, stockholder, co-partner, or in any other individual or representative
capacity whatsoever, directly or indirectly own, manage, operate, control, aid,
or assist another in the operation, organization or promotion of, be employed
by, participate in, advise, or engage in any manner with the ownership,
management, operation, or control of any business competitive with the Line of
Business. Provided, however, Contractor may aid, assist or advise any business
competitive with the Company to the extent of utilizing or providing access to
Contractor Information. In the event of a violation of the covenants contained
in this Paragraph 9.1, the Time Limit shall be extended by a period of time
equal to that period beginning when the activities constituting such violation
commenced and ending when the activities constituting such violation shall have
been finally terminated in good faith.
9.2. Anti-Piracy Covenants. Contractor will not, directly or indirectly,
for the duration of the Time Limit, do any of the following:
9.2.1. Request or advise any present or future actual or prospective
merchandise resource, supply resource or service resource of Company to refrain
from, withdraw, curtail or cancel the furnishing or sales of merchandise,
supplies, or services to the Company.
9.2.2. Induce or attempt to influence any employee of the Company to
terminate his employment or induce or attempt to influence any prospective
employee to decline employment.
9.2.3. Request any entities to withdraw, curtail, or cancel any
business with Company.
9.2.4. Disclose the identity of any entity who was a customer of the
Company during Contractor's engagement by Company to any other person, firm or
corporation, to the extent such information is not already public information.
9.2.5. Solicit or canvas business in the Line of Business from any
entity who was a customer of the Company (or any of its subsidiaries) during
Contractor's engagement by Company.
9.2.6. Solicit or canvas business in the Line of Business from any
entity who was a customer of the Company (or any of its subsidiaries), and with
whom Contractor had contact, during Contractor's engagement by Company.
9.2.7. Provided, however, Contractor may aid, assist or advise any
business competitive with the Company to the extent of utilizing or providing
access to Contractor Information.
9.3. Trade Names. Contractor will not use any corporate, fictitious or
trade name used by Company or Company's subsidiaries or related companies or use
any confusingly similar name.
9.4. Confidential Information.
9.4.1. Definition of Confidential Information. Confidential
information shall mean any confidential or non-public information of any kind,
nature, or description, concerning
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or arising from any matters affecting or relating to the business of Company,
including, without limiting the generality of the foregoing, the following:
9.4.1.1. all intellectual property including, without limitation,
all trademarks, trademark registrations and applications, service marks,
copyrights, patents, trade secrets, proprietary marketing information and
know-how, product designs, formulae, processes, and techniques, and confidential
development or research work of Company;
9.4.1.2. information concerning the manner and details of
Company's operation, organization and management, including without limitation
the names of its personnel, the details of its financial affairs, credit
reports, sales records, and the prices the Company obtains or has obtained or at
which it sells or has sold its services or products;
9.4.1.3. names of, or any other information pertaining to, any of
Company's customers or persons or concerns likely to become customers of
Company, or of any past, present or future supply resources, distributors,
contractors, and vendors of Company, and the terms on which Company deals with
such entities;
9.4.1.4. marketing, sales, product development, financing,
engineering, or other business plans or strategies;
9.4.1.5. nonpublic forms, contracts and other documents used in
Company's business;
9.4.1.6. computer software developed or used by the Company,
including all rights under licenses and other contracts relating thereto, and
all source code and all documents related thereto;
9.4.1.7. any other information of, about or concerning the
business of the Company, its manner of operation, plans, or other data of any
kind, nature or description, if such other information is considered and treated
as confidential information and/or if such information gives to the Company an
opportunity to obtain an advantage over its competitors who do not know or use
it.
9.4.1.8. Confidential Information shall specifically not include
Contractor Information.
9.4.2. Acknowledgement. Contractor acknowledges that during his
engagement by Company, he will have access to Confidential Information (as
defined above), all of which shall be made accessible to Contractor only in
strict confidence; that unauthorized disclosure of Confidential Information will
damage Company's business; that Confidential Information would be susceptible to
immediate competitive application by a competitor of Company's; that Company's
business is substantially dependent on access to and the continuing secrecy of
Confidential Information; that Confidential Information is unique to Company and
known only to Contractor, Company, and certain key employees and contractors of
Company; and that title, ownership, possession and control of Confidential
Information shall at all times remain vested in Company.
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Consequently, Contractor acknowledges that the restrictions contained in this
paragraph are reasonable and necessary for the protection of Company's business.
9.4.3. Obligation to Protect Confidential Information. Contractor
shall use his best efforts and the utmost diligence to guard and protect
Confidential Information and to treat such information as confidential and
prevent its improper disclosure or use. Contractor further agrees to observe and
obey any instructions and directions of Company in respect to Confidential
Information, including without limitation any stated restrictions on removing
Confidential Information from Company premises, any established sign-in and
sign-out procedures for Confidential Information, any directions for secure
destruction of Confidential Information, and any other instructions or
directions that Company, in its sole discretion, may issue for the protection of
Confidential Information.
9.4.4. Restriction Against Disclosure of Confidential Information.
Except in connection with and in furtherance of Contractor's official duties
with and on behalf of Company, Contractor shall not during the term of this
Agreement or at any time thereafter use, copy, divulge, transmit, convey,
furnish, disclose or otherwise communicate the "Confidential Information" (as
defined below) to any person or entity, directly or indirectly, without
Company's prior written consent.
9.4.5. Non-Use of Confidential Information of Others. Contractor shall
not, during the term of this Agreement, improperly use or disclose any
proprietary or confidential information or trade secrets belonging to any former
employer or any third party as to whom Contractor owes a duty of nondisclosure.
9.4.6. Survival of this Paragraph. The Parties hereto expressly agree
and understand that the provisions of this Section 9 shall survive the
termination of this Agreement for any reason.
9.5. Enforcement of Restrictive Covenants.
9.5.1. Injunctive Relief. Contractor agrees that a violation on his
part of any covenant in this Section 9 will cause such damage to Company as will
be irreparable, and for that reason Contractor further agrees that Company shall
be entitled, as a matter of right, and upon notice as provided in Section 13
hereof, to an injunction from any court of competent jurisdiction restraining
any further violation of said covenants by Contractor, his employer, employees,
partners or agents. Such right to injunctive remedies shall be in addition to
and cumulative with any other rights and remedies Company may have pursuant to
this Agreement, including, specifically, the recovery of lost profits and other
monetary damages, whether compensatory or punitive.
9.5.2. Reformation or Deletion of Invalid Provision. The following
provisions are intended to give effect to the agreement and desire of the
parties hereto that the provisions of this Section 9 be enforced to the fullest
extent possible under the laws and public policies applied in each jurisdiction
in which enforcement is sought.
9.5.2.1. Reformation By Company. The parties agree that the
Company may in its discretion at any time (whether before or during any formal
proceeding to enforce this
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Agreement) unilaterally reduce any restriction hereunder to make this Section 9
enforceable to the maximum extent permissible under law.
9.5.2.2. Automatic Reformation. If any provision of this Section
9 is determined by any court of competent jurisdiction (or any arbitrator(s)
mutually agreed upon by the parties) to be invalid, illegal or unenforceable, in
whole or in part, whether before or after reformation by the Company as set
forth in the preceding paragraph, then such provision is automatically deemed
reformed and amended so that the same shall be enforceable to the fullest extent
permissible under the laws and public policies applied in the jurisdiction in
which enforcement is sought. For example, if a court deems the Time Limit
unenforceable, the Time Limit shall be reduced in one-month increments to the
minimum extent necessary to make such restrictions enforceable. If a court would
deem the Geographical Limit overbroad, the same shall be reduced in appropriate
increments to the minimum extent necessary to make such restrictions
enforceable.
9.5.2.3. Reformation by Court. If any provision of this Section 9
is determined by any court of competent jurisdiction (or any arbitrator(s)
mutually agreed upon by the parties) to be invalid, illegal or unenforceable, in
whole or in part, whether before or after reformation by the Company as set
forth in Paragraph 9.5.2.1, and if the automatic reformation set forth in
paragraph 9.5.2.2 does not take effect for any reason, then the court or
arbitrator(s) is/are hereby empowered to reform and amend such invalid, illegal
or unenforceable provision to make it valid, legal and enforceable.
9.5.2.4. Deletion of Provision. If any provision of this Section
9 is determined by any court of competent jurisdiction (or any arbitrator(s)
mutually agreed upon by the parties) to be invalid, illegal or unenforceable, in
whole or in part, and reformation by the Company, automatic reformation, or
reformation by the Court, as described in Paragraphs 9.5.2.2 and 9.5.2.3 does
not take effect for any reason, then the invalid, illegal or unenforceable
provision shall be deemed deleted from the Agreement, and the remainder of the
Agreement shall remain in force.
9.6. Alternative of Royalty if Restriction Unenforceable. In the event that
any applicable restrictive covenant(s) set forth in this Section 9 above is/are
deemed unenforceable for any reason, and cannot be or is/are not reformed or
amended as provided herein, then Contractor shall pay to the Company a royalty
equal to five percent (5%) of the gross dollars generated from business
conducted by Contractor that is described by such restrictive covenant(s). Such
royalty shall be paid to the Company by Contractor monthly for a period of three
(3) years from and after the date of termination of this Agreement.
9.7. Time Limit; Geographical Limit.
9.7.1. The "Time Limit" shall mean the Term of this Agreement.
However, the provisions of Sections 9.1 and 9.2 shall terminate if (1) this
Agreement is terminated by the Company without Cause or by the Contractor with
Contractor Cause during the Initial Term or (2) the OneSource Promissory Notes
due under the terms of the Merger Agreement are not paid in full when due.
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9.7.2. The "Geographical Limit" shall mean United States of America.
The Geographical Limit shall not be construed as a limitation on any provision
in this Section 9 except as expressly stated in such provision.
9.8. Survival of this Paragraph. The Parties hereto expressly agree and
understand that the provisions of this Section 9 shall survive the termination
of this Agreement for any reason.
9.9. Contractor Information. Contractor Information shall mean any and all
information in any form, now existing or hereafter obtained, which has been
prepared or assembled by the Contractor pertaining broadly to Line of Business
industry contacts, including without limitation, contact information for
executives, technicians, sales persons, customers, manufacturers, service
providers and prospective employees.
10. Ownership of Intellectual Property.
10.1. Disclosure of Inventions. Except for Contractor Information,
Contractor shall promptly disclose in writing to Company complete and accurate
information concerning each and every invention, discovery, idea, improvement,
device, concept, design, apparatus, practice, process, trademark or service
xxxx, marketing or business idea, software or computer program or code, method
or product, whether or not patentable or copyrightable, made, developed,
perfected, devised, conceived or first reduced to practice by Contractor, either
solely or in collaboration with others, during Contractor's engagement, whether
or not during regular working hours, and which: (i) relates to the actual or
contemplated business, technologies or products of Company; (ii) results from
any work performed by Contractor for Company; (iii) involves the use of, or is
created with, Company's equipment, supplies, facilities, or Confidential
Information; (iv) results from or is suggested by any work done at Company's
request or by any Company employee other than Contractor, or relates to any work
assigned to Contractor by Company; or (v) results from Contractor's access to
any of Company's Confidential Information or other Company-related information
(hereafter referred to as the "Inventions"). Inventions shall specifically not
include Contractor Information.
10.2. Ownership of Inventions. Contractor hereby acknowledges that all
right, title, and interest in and to the Inventions shall become and remain the
sole and exclusive property of the Company. Contractor hereby assigns to Company
any and all of Contractor's right, title and interest in and to any and all of
the Inventions, without further payment or other form of consideration.
Contractor agrees to take all actions reasonably necessary, including execution
and delivery of such applications, assignments, and other instruments and
documents as Company shall reasonably request, to establish, perfect, exercise,
confirm or protect rights assigned or deemed assigned to Company pursuant to
this paragraph.
10.3. Works for Hire. Except with respect to Contractor Information,
Contractor acknowledges that all original works of authorship which are made by
Contractor (solely or jointly with others) within the scope of his engagement by
Company, and which are protectable by copyright, are "works made for hire," as
that term is defined in the United States Copyright Act (17 U.S.C. ss. 101). To
the extent that any such works, by operation of law, cannot be "works made for
hire," Contractor hereby assigns to Company all right, title, and interest in
and to such works and to any related copyrights, except with respect to
Contractor Information.
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10.4. Assistance of Contractor. Upon the request of Company and without
further compensation therefor, whether during the term of Contractor's
engagement or thereafter, Contractor shall perform all lawful acts, including,
but not limited to, the execution of papers and lawful oaths and the giving
testimony, that in the opinion of Company, its successors and assigns, may be
necessary or desirable in obtaining, sustaining, reissuing, extending and
enforcing United States and foreign Letters Patents, including, but not limited
to, design patents, on any and all of the Inventions, and for perfecting,
affirming and recording Company's complete ownership and title thereto.
10.5. Records. Contractor shall keep complete, accurate and authentic
accounts, notes, data and records of all of the Inventions in the manner and
form requested by Company. Such accounts, notes, data and records relating to
the Inventions shall be the exclusive property of Company, and, upon its
request, Contractor shall promptly surrender the same to it or, if not
previously surrendered upon Company's request or otherwise, Contractor shall
surrender the same, and all copies thereof, to Company upon the conclusion of
his engagement.
10.6. Obligations, Restrictions and Limitations. Contractor understands
that Company may enter into agreements or arrangements with agencies of the
United States Government, and that Company may be subject to laws and
regulations which impose obligations, restrictions and limitations on it with
respect to inventions and patents which may be acquired by it or which may be
conceived or developed by employees, consultants or other agents rendering
services to it. Contractor agrees that he shall be bound by all such
obligations, restrictions and limitations applicable to any said invention
conceived or developed by him during the terms of his engagement and shall take
any and all further action which may be required or discharge such obligations
and to comply with such restrictions and limitations.
11. Ventures. If, during the term of his engagement, Contractor is engaged in or
associated with the researching, investigating, planning or implementing of any
project, program or venture on behalf of or involving Company, all rights in the
project, program or venture shall belong exclusively to Company and shall
constitute a corporate opportunity belonging exclusively to Company. Except as
approved in writing by the Company, Contractor shall not be entitled to any
interest in such project, program or venture or to any commission, finder's fee
or other compensation in connection herewith.
12. Contractor Representations, Warranties, and Covenants.
12.1. No Other Contractual Obligation. Contractor represents and warrants
to the Company that the Contractor's execution and performance of this Agreement
does not conflict with or cause a breach of any contractual obligation,
agreement, or understanding between Contractor and any other party, including
Contractor's past or present employers.
12.2. Disclosure of Confidential Information. Contractor represents and
warrants to the Company that Contractor will not use or disclose any
confidential information obtained in any previous or other employment in a
manner or take any action that results in an action or claim being instigated or
made against the Company for tortious interference with a business relationship
or contract or other similar claims.
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13. Notices.
13.1. Method and Time of Delivery. All notices, requests, demands, payments
and other communications required under this Agreement shall be in writing and
shall be transmitted by one of the following methods:
13.1.1. Hand delivery in which case the notice shall be deemed to have
been given on the date of delivery;
13.1.2. United States mail, return receipt requested, postage prepaid,
in which case the notice shall be deemed to have been given three business days
after the date of mailing; or
13.1.3. Reputable overnight courier, in which case the notice shall be
deemed to have been given on the business day following deposit of the notice
with the reputable overnight courier for delivery.
13.2. The foregoing to the contrary notwithstanding, if any notice is given
by facsimile as well as one of the above three methods, the notice shall be
deemed to have been given on the date of actual receipt by facsimile if earlier
than the time periods set forth for each method above.
13.3. Notice Address. Notices shall be directed to the Parties at the
following addresses.
If to the Company:
00000 Xxxxx 00xx Xxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
If to Contractor:
Xxxxxx X. Xxxxxxxx
00000 Xxxxxxxx Xxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
13.4. Any party may alter the address or addresses to which communications
or copies are to be sent to such party by giving notice of such change of
address in conformity with the provisions of this Paragraph for the giving of
notice.
14. General Provisions.
14.1. Binding Nature of Agreement; Assignment and Nominee. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective heirs, personal representatives, successors, and assigns. Contractor
acknowledges that the services to be rendered by him pursuant to this Agreement
are unique and personal. Accordingly, Contractor may not assign, transfer, or
encumber (whether voluntary or by operation of law) any of his rights or
obligations under this Agreement without the prior written consent of Company.
Any attempted transfer, assignment, or encumbrance in violation of this
provision shall be null and void and shall
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convey no rights or claims against the Company to any third party. Nothing in
this Agreement, whether express or implied, is intended to confer any rights or
remedies under or by reason of this Agreement on any persons other than the
parties to it and their successors and permitted assigns, nor is anything in
this Agreement intended to relieve or discharge the obligation or liability of
any third person or party to this Agreement except as previously provided
herein, nor shall any provision give any third persons any right of subrogation
or action over or against any party to this Agreement except as may be expressly
provided herein.
14.2. Entire Agreement. This Agreement constitutes the entire Agreement and
understanding among the parties hereto with respect to the subject matter hereof
and supersedes all prior and contemporaneous agreements, understandings,
inducements and conditions express or implied, oral or written, of any nature
whatsoever with respect to the subject matter hereof. Any such prior or other
agreements or understandings between Company and Contractor are hereby mutually
terminated without any further rights or obligations of either party thereunder.
This Agreement may not be modified or amended other than by an Agreement in
writing signed by the party to be charged with such modification or amendment.
14.3. Controlling Law. The parties acknowledge that this Agreement was
negotiated, executed, and delivered in the State of Arizona, and further that
this Agreement is effective upon acceptance by the Company at its principal
place of business in Phoenix, Arizona. The parties agree that all questions
relating to the validity, interpretation, and performance of this Agreement
shall be governed by and construed, interpreted and enforced in accordance with,
the substantive laws of the State of Arizona (without reference to choice of law
principles except that giving effect to the parties' express choice).
14.4. Attorneys' Fees. Should any litigation or arbitration be commenced
between the parties hereto concerning the terms of this Agreement, or the rights
and duties of the parties hereto under this Agreement, the prevailing party in
such litigation shall be entitled, in addition to such other relief as may be
granted, to a reasonable sum as and for the prevailing party's attorneys' and
experts' fees.
14.5. Provisions Separable. Except as specifically provided in that portion
of Paragraph 9.5 hereof relating to the Construction of Restrictive Covenants,
the provisions of this Agreement are independent of and separate and severable
from each other, and no provision shall be affected or rendered invalid or
unenforceable by virtue of the fact that for any reason any other or others of
them may be invalid or unenforceable in whole or in part. Notwithstanding the
foregoing, however, the obligations of a party shall become void if the material
consideration for such obligations is or becomes invalid or unenforceable.
14.6. Indulgences Not Waivers. Neither the failure nor any delay on the
part of any party to exercise any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power, or privilege preclude any other or further
exercise of the same or of any other right, remedy, power or privilege, nor
shall any waiver of any right, remedy, power or privilege with respect to any
occurrence be construed as a waiver of such rights, remedy, power, or privilege
with respect to any other occurrence.
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14.7. Costs and Expenses. Each party hereto shall bear its own costs,
including counsel fees and accounting fees, incurred in connection with the
negotiation, drafting and consummation of this Agreement and the transactions
contemplated thereby, and all matters incident thereto.
14.8. Titles Not to Affect Interpretation. The titles of Sections,
Paragraphs and Subparagraphs contained in this Agreement are for convenience of
reference only, and they neither form a part of this Agreement nor are they to
be used in construction or interpretation hereof.
14.9. Interpretation of Agreement. This Agreement shall be interpreted
according to the plain and ordinary meaning of its terms (unless specifically
defined herein). This Agreement shall not be construed against any party on
account of the identity of the person who drafted this Agreement or the
relationship of any party to the person who drafted this Agreement.
(Signature Page to Follow)
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above, effective as of such date.
"COMPANY"
ONESOURCE TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Its: CEO
-----------------------------
"CONTRACTOR"
/s/ Xxxxxx X. Xxxxxxxx
----------------------------------
XXXXXX X. XXXXXXXX
(Signature Page for Independent Contractor Agreement)
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