INDEPENDENT CONSULTANT AGREEMENT
THIS AGREEMENT is made and entered into at Tacoma, Washington
this 11th day of December 2003 by and between Aptus Corp., a Delaware
corporation (hereinafter referred to as "Aptus"), and Xxxxxxxx Xxxxxxxx, an
individual (hereinafter referred to as "Consultant").
This Agreement is made with reference to the following facts
and objectives:
RECITALS
WHEREAS, Aptus core business includes Software Solutions and
proprietary technology; and
WHEREAS, Consultant is known by Aptus to possess the knowledge
of the relevant software; and
WHEREAS, Consultant desires to invest a substantial portion of
his time and energies to help Aptus meet these goals and Aptus desires to engage
Consultant's services; and
WHEREAS, Aptus and Consultant desire to enter into this
agreement whereby Consultant will furnish services to Aptus, and Aptus will
compensate Consultant, on the terms and conditions hereinafter set forth.
NOW THEREFORE, in consideration of the foregoing and the
covenants and premises hereinafter set forth to be performed hereunder, and
intending to be legally bound, the parties agree as follows:
AGREEMENT
2
1. ENGAGEMENT OF CONSULTANT. Aptus hereby retains the services of
Consultant, and Consultant hereby accepts its engagement, to act as consultant
on such projects as Aptus and Consultant shall mutually determine on the terms
and conditions set forth in this agreement.
2. NON-EXCLUSIVE SERVICES. Consultant will devote a significant part of
his productive time and energy to the business of Aptus as reasonably necessary
to perform the services described in this agreement. During the term of this
agreement, Consultant may provide consulting services to other clients in
businesses that may indirectly compete with Aptus. The parties recognize that
the demands on Consultant's time to adequately perform the services hereunder
will vary from time to time according to each project. Consultant will both use
its best efforts to communicate with the Aptus management regarding any demands
on Consultant's time or availability to the extent that the same can reasonably
be anticipated. Consultant shall be required to devote at least one-third but no
more than one-half of Consultant's productive time and energy to the business of
Aptus.
3. TERM. The term of this agreement is for 3 months commencing December
11, 2003 and ending March 11, 2004. This agreement shall automatically renew for
additional successive term(s) of 3 months unless either party notifies the other
party in writing not less than thirty (30) days prior to the end of the term,
including any extensions thereof, of said party's intent not to renew.
4. COMPENSATION OF CONSULTANT.
A. CONSULTANT'S EXPENSES. Aptus shall pay all expenses
incurred by Consultant in representing Aptus.
B. CONSULTING FEE. Aptus shall pay to Consultant a consulting
fee during the term of this agreement of $5,500 per month.
5. STATUS OF CONSULTANT AS INDEPENDENT CONTRACTOR. Consultant shall
perform his services hereunder as an independent contractor. Consultant shall
not be deemed an Employee of Aptus for any purpose. Aptus is interested only in
the results obtained by Consultant and, with the exception of general policy
statements and regulations adopted by Aptus from time to time respecting the
conduct of business hereunder, implemented for the purpose of insuring
satisfactory performance of this Agreement and the preservation of the Aptus
goodwill, Aptus shall have no control over the manner or means by which
Consultant performs its services under this Agreement. Consultant shall have the
obligation to supervise and control the persons hired or engaged by it and
Consultant shall be solely responsible for the acts of its agents and/or
Consultants. Consultant warrants and represents that all persons hired or
engaged by Consultant shall be subject to each and all of the terms, provisions
and conditions of this Agreement applying to Consultant. Consultant shall have,
as between the parties, the exclusive right to select, engage, and fix the
compensation of or discharge its agents and/or Consultants and shall, with
respect to all such persons, perform all obligations and discharge all
liabilities imposed upon employers under labor, wage-hours, workers
compensation, unemployment compensation or insurance, social security and other
federal, state, and municipal laws and regulations. Consultant shall not list
the offices of Aptus as Consultant's place of business.
6. LIMITATION OF AUTHORITY. Consultant's authority is strictly limited
to the terms of this engagement as set forth in this agreement. Except as
expressly provided herein, Consultant shall have no right or power to enter into
a contract or commitment on behalf of Aptus or to bind or obligate or to incur
obligations or liabilities on behalf of Aptus in any manner unless such
authority is expressly granted in a writing duly executed by and on behalf of
Aptus. Without limiting the generality of the foregoing, neither party shall
have any authority to employ or engage the services of any person on behalf of
the other.
7. COMPLIANCE WITH LAWS. In performing its duties hereunder, Consultant
and Aptus shall each shall comply with all applicable laws, ordinances, codes,
regulations or orders as may be in effect in each jurisdiction in which services
are performed, whether municipal, county, state or federal.
8. CONFIDENTIALITY. During the performance of services under this
agreement, Consultant will receive information regarding the Company's business,
including, but not limited to, information about the Company's products,
processes, know-how, designs, customers, customer lists, business plans,
marketing plans and strategies, strategic partners, price lists and pricing
strategies, and other subject matter pertaining to the business of Aptus and its
clients, licensees and affiliates. Consultant acknowledges that such information
constitutes valuable trade secrets belonging to Aptus and Consultant agrees to
keep all such information confidential, except as Aptus may otherwise consent in
writing, and not to disclose, or make any use of such confidential information
(other than for the benefit of Aptus) at any time either during or subsequent to
Consultant's engagement under this agreement. Upon termination of this
agreement, Consultant shall account for and surrender to Aptus all records,
samples, displays, books, price lists, customer lists and all computer files,
recording tapes, transcriptions, notebooks, or other media containing any
information which is confidential and proprietary to Aptus, and all other
property or things of value belonging to Aptus in Consultant's possession or
under Consultant's control. The confidentiality provisions herein do not apply
to information which Consultant can show by prior written documents (i) was in
the public domain or publicly known or available prior to the date of
disclosure, (ii) becomes generally available to the public other than as a
result of a disclosure by Consultant, or its Consultants, agents, advisors,
representative, and affiliates, or (iii) becomes available to Consultant on a
non-confidential basis from a source other than any party named in this
Agreement, or their respective advisors, provided that such sources are not
known by Consultant to be bound by a confidentiality agreement with or
obligation of secrecy to any party with respect to such information.
9. WORK PRODUCT PROPRIETARY TO APTUS. All ideas, concepts, themes,
designs, works of art, compositions, inventions, processes, improvements or
other creations of Consultant, its agents or Consultants, conceived, produced,
or developed for Aptus pursuant to this agreement, either individually or
jointly in collaboration with others, shall belong to and be the sole and
exclusive property of Aptus. Consultant shall cooperate with any efforts by
Aptus to obtain copyrights, trademarks, patents, or any other form of protection
of intellectual property, including, upon the Company's request, assisting in
completing and executing applications for registration of the work with the
appropriate office or agency.
10. ARBITRATION. The Consultant and the Company shall submit to
mandatory binding arbitration in any controversy or claim arising out of, or
relating to, this Agreement or any breach hereof. Such arbitration shall be
conducted in accordance with the commercial arbitration rules of the American
Arbitration Association in effect at that time, and judgment upon the
determination or award rendered by the arbitrator may be entered in any court
having jurisdiction thereof. The arbitrator is hereby authorized to award to the
prevailing party the costs (including reasonable attorneys' fees and expenses)
of any such arbitration.
11. MISCELLANEOUS.
A. NO ASSIGNMENT. The services of Consultant under this
agreement are unique and of unusual value to Aptus based on the personal skills
and expertise possessed by Consultant and its key Consultants. Consultant shall
not assign this agreement or its rights hereunder without the written consent of
Aptus. Aptus shall not assign this agreement or its rights hereunder without the
written consent of Consultant.
B. GOVERNING LAW. The laws of the State of Washington
applicable to contracts made and to be performed in the State of Washington
shall govern in any dispute arising out of or under this appointment by Aptus.
C. HOLD HARMLESS. Each party shall indemnify and hold the
other harmless from and against any and all liability, loss, costs, expenses,
including without limitation reasonable attorneys' fees and costs of suit, or
damages however caused by reason of any injury (whether to body, property, or
personal of business character or reputation) sustained by any person or to any
person or to property by reason of any act, neglect, default, or omission of
said party or any of its Consultants, agents or representatives. Nothing herein
is intended to nor shall it relieve either party from liability for its own
act(s), omission, or negligence.
D. NOTICES. Any notices to be given pursuant to this agreement
by either party shall be in writing and shall be deemed given as follows:
(a) when personally delivered to the intended recipient;
(b) when sent by certified or registered mail, upon the date
on which a return receipt was signed by the intended recipient;
(c) twenty-four (24) hours after deposit for next day
delivery, properly addressed, postage and/or fees prepaid or charged to the
sender's account, with the United States Postal Service Express Mail, Federal
Express, United Parcel Service, DHL WorldWide Express, Airborne Express, or
other equivalent carrier (unless said twenty-four hour period expires on a
Sunday or legal holiday, in which case Notice shall be deemed given forty-eight
(48) hours after deposit with a carrier named above);
(d) when transmitted by electronic means, and such
transmission is electronically confirmed by the intended recipient as having
been received; or
(e) when transmitted or delivered by any of the means
described in Section 11.D(a) through (d), and the party accepting or signing for
said delivery or confirming receipt thereof at the home or office of the
intended recipient is a party whom the sender has reason to believe will
promptly communicate the notice to the recipient.
For purposes of mail or overnight delivery, a properly addressed notice
shall be addressed as follows:
To Aptus Corp.:
Xxxx X. Xxxxx, Chief Executive Officer
0000 Xxxxxxxx Xxxxx #000
Xxxxxx, XX 00000
FAX (000)-000-0000
To Consultant:
E. WAIVER OF BREACH. The waiver by Aptus or Consultant of the
breach of any provision of this agreement by the other party, or the failure to
exercise any right granted under this agreement shall not operate or be
construed as the waiver of any subsequent breach by the other party or the
waiver of the right to exercise any such right in the future.
F. ENTIRE AGREEMENT. This agreement, together with any
promotion orders executed by the parties pursuant to this agreement, sets forth
the entire understanding and agreement between the parties with respect to the
services to be performed for Aptus by Consultant. No modification or amendment
to any of the provisions of this agreement shall have any force or effect unless
in writing and signed by both parties.
G. BINDING EFFECT. Subject to the restriction upon assignment
by Consultant contained in paragraph 12.A hereof, this Agreement shall be
binding upon and inure to the benefit of the heirs, executors, personal
representatives, successors and assigns of the parties hereto.
H. TITLES. The headings or titles to the paragraphs of this
appointment are intended for convenience only and shall have no effect upon the
construction or interpretation of any part of this Agreement.
I. ATTORNEYS' FEES. In the event that any arbitration shall be
commenced by either party arising out of the interpretation or enforcement of
this agreement, the prevailing party shall be entitled to recover from the other
party its reasonable attorneys' fees and costs of suit incurred therein.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized officers on the day first
above written.
APTUS CORP.
By:______________________________________
Xxxxxx X. Xxxx, Vice President
CONSULTANT
By:_____________________________________
Name:___________________________________
