Independent Consultant Services Agreement - 1st Step Inc. and Shaun Edwardes
INDEPENDENT CONSULTANT SERVICES AGREEMENT
-----------------------------------------
This agreement ("Agreement") is made by and between 1st Step, Inc., a Delaware
corporation ("1st Step"), and Shaun Edwardes, an individual ("Consultant") and
is effective as of Feb 18th 2002 ("Effective Date").
1. ENGAGEMENT OF SERVICES. Herein 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 will be a total fee of $84,000.
3. INDEPENDENT CONTRACTOR RELATIONSHIP. Consultant's relationship with 1st
Step 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 1st Step
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 1st Step unless specifically requested or
authorized in writing to do so by a 1st Step 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. 1st
Step 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 1st Step 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 1st Step.
Consultant agrees to promptly disclose every
invention to 1st Step. Consultant hereby assigns and
agrees to assign to 1st Step or its designee its
entire right, title and interest worldwide in all
Intellectual Property.
4.1.c. Assistance. Consultant agrees to execute upon 1st
Step's request a signed transfer of ownership to 1st
Step 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 1st
Step in any reasonable manner to obtain and enforce
1st Step'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 1st Step and any other lawful
documents deemed necessary by 1st Step 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 1st Step. In
66
<PAGE>
the event that 1st Step 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
1st Step 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 1st Step, its
suppliers and customers, 1st Step'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 1st Step.
Consultant agrees that it shall treat all
Confidential Information of 1st Step 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 1st Step in violation of the
Proprietary rights of any third party. Consultant
will immediately give notice to 1st Step of any
unauthorized use or disclosure of the Confidential
Information. Consultant agrees to assist 1st Step 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
1st Step with prompt written notice so as to provide
1st Step 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.
67
<PAGE>
4.3. RETURN OF 1ST STEP'S PROPERTY. All materials (including,
without limitation, content articles, source code, documents,
drawings, models, apparatus, sketches, designs and lists)
furnished to Consultant by 1st Step, whether delivered to
Consultant by 1st Step or made by Consultant in the
performance of services under this Agreement (collectively
referred to as the "1st Step Property") are the sole and
exclusive property of 1st Step and/or its suppliers or
customers. Consultant agrees to keep all 1st Step property at
1st Step's premises unless otherwise permitted in writing by
1st Step. Consultant agrees to promptly deliver the original
and any copies of the 1st Step Property to 1st Step at any
time upon 1st Step's request. Upon termination of this
Agreement by either party for any reason, Consultant agrees to
promptly deliver to 1st Step or destroy, at 1st Step's option,
the original and any copies of the 1st Step 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 1st Step Property.
4.4. OBSERVANCE OF 1ST STEP RULES. At all times while on 1st Step's
premises, Consultant will observe 1st Step'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 1st Step, 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 1st
Step 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 1st Step 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 1st Step.
8. SUCCESSOR AND ASSIGNS. Consultant may not assign this Agreement or
subcontract or otherwise delegate its obligations under this Agreement
without 1st Step's prior written consent. Subject to the foregoing,
this Agreement will be for the benefit of 1st Step'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.
68
<PAGE>
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 1st Step 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 1st Step or which there will be no adequate
remedy at law; and, in the event of such breach, 1st Step 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 1st Step. This
Agreement will govern all Project Assignments and services undertaken
by Consultant for 1st Step. 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.
"1st Step" "Consultant"
1st Step, Inc.,
a Delaware Corporation
/S/ CORBIN BERNSEN /S/ SHAUN EDWARDES
------------------ ------------------
By: CORBIN BERNSEN Shaun Edwardes
Its: President
69