Exhibit 10.1
CONSULTING AGREEMENT
THIS AGREEMENT is made as of February 25, 1999, between ISES CORPORATION, an
Iowa corporation with its principal offices located at 2600 72nd Street, Des
Moines, Iowa 50322, U.S.A. ("Company"), and Trivia Mania, residing at 4527 NW
20th, Gainesville, FL 32605 U.S.A. ("Consultant").
1. GENERAL
Subject to this Agreement, Company hereby hires Consultant, and Consultant
hereby agrees, to provide the research, design, development and/or other
consulting services described in the Project Schedules contemplated under
Section 3(b) (collectively, the "Services") to Company as its independent
contractor.
2. TERM
This Agreement will become effective, as of the date set forth above, upon
its execution by Company and Consultant and will expire on December 31, 2001,
unless extended or terminated pursuant to Section 8.
3. SERVICES
a. Best Efforts. Consultant will use its best efforts to perform all
Services in a timely and professional manner satisfactory to Company and in
accordance with Company's instructions. Consultant will not subcontract any of
the Services to a third person without Company's prior authorization.
b. Projects Schedules. Company and Consultant will execute a schedule
substantially similar to Exhibit A (the "Project Schedule") for each research,
design, development and/or other consulting project that Company wants
Consultant to undertake. Company and Consultant acknowledge that all Project
Schedules will form an integral part of this Agreement.
c. Location and Access. Consultant may perform the Services at Company's
premises, Consultant's premises or such other premises that Company and
Consultant may deem appropriate. Company will permit Consultant to have
reasonable access to Company's premises, personnel and computer equipment for
the purposes of performing the Services at Company's premises.
d. Records and Reports. Consultant will keep accurate records of its
activities under each Project Schedule. Company may periodically request
activity reports by Consultant that will be provided to Company in writing.
e. Insurance. Consultant will be solely responsible for obtaining and
maintaining appropriate insurance coverage for its activities under this
Agreement, including, but not limited to, comprehensive general liability
(bodily injury and property damage) insurance and professional liability
insurance. At Company's request, Consultant will provide Company with copies of
the certificates of insurance.
f. Rights Clearance. Consultant will be solely responsible for obtaining
all rights clearances with respect to all Deliverables created or provided by
Consultant to Company in connection with this Agreement.
g. Non-Compete. During the term of this Agreement and for a period of 12
months thereafter, Consultant agrees not to market trivia questions or any other
content produced for Company, directly to Company's customers including, but not
limited to, passenger airlines and consumer electronic manufacturers, unless
Company otherwise agrees.
4. CONSIDERATION
a. Project Fees. In consideration for performing the Services, Company will
pay Consultant the fees that may be contemplated under the Project Schedules
(the "Project Fees"). Consultant acknowledges that, except as otherwise
contemplated under Section 4(b), the Project Fees constitute the entire
consideration that Consultant will be entitled to receive for performing this
Agreement.
b. Payment. Company will pay the Project Fees to Consultant according to
the applicable terms set forth in the Project Schedule.
c. Taxes. Consultant will be solely responsible for complying with all
federal, state, local and other tax laws and regulations applicable to payments
received from Company under this Agreement.
5. OWNERSHIP
Consultant acknowledges that Company will own all rights in any ideas,
concepts, inventions and techniques that Consultant may conceive or develop in
connection with the Services. Consultant hereby assigns to Company all worldwide
patents and patent rights, copyrights, trade secrets or other proprietary rights
in any work product that Consultant may create under this Agreement (the
"Deliverables"). During and after the term of this Agreement, Consultant will
execute the instruments that Company may reasonably request from time to time to
give full legal effect to this Section 5.
6. WARRANTY
Consultant represents and warrants that (i) Consultant has the knowledge,
experience and skill to provide the Services in a professional and timely
manner, (ii) the Deliverables will conform to the specifications contemplated
under the Project Schedules and (iii) the Services and Deliverables will not
infringe any patent, copyright, trade secret or other proprietary right of any
third person, including, without limitation, rights of privacy and personality.
Consultant will indemnify Company against all damages, losses, liability or
expense that Company may suffer or incur as the result of any breach of this
Section 6.
7. CONFIDENTIALITY
a. Information. Consultant acknowledges that (i) Consultant may have access
to certain of Company's confidential and proprietary information in connection
with this Agreement and (ii) the Deliverables will constitute confidential and
proprietary information of Company (collectively, the "Information"). Consultant
will take all reasonable precautions necessary to safeguard the confidentiality
of the Information, including (i) those required under this Section 7, (ii)
those taken by Consultant to protect its own confidential information and (iii)
those which Company may reasonably request from time to time.
b. Use and Disclosure. Consultant will use the Information solely to
perform the Services under this Agreement. Consultant will not disclose, in
whole or in part, the Information or Deliverables to any person, except to
Company and its designees. Consultant will not remove or deface any
confidentiality or proprietary notice that Company may have affixed to items of
Information disclosed to Consultant. Consultant will affix appropriate notices
to all Deliverables that identify the Deliverables as confidential and
proprietary information of Company.
c. Unauthorized Use or Disclosure. The parties acknowledge that any
unauthorized use or disclosure of the Information or Deliverables by Consultant
will cause irreparable damage to Company. If an unauthorized use or disclosure
occurs, Consultant will take, at its expense, all steps which are necessary to
recover the Information or Deliverable and to prevent its subsequent
unauthorized use or dissemination, including availing itself of actions for
seizure and injunctive
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relief. If Consultant fails to take these steps in a timely and adequate manner,
Company may take them at Consultant's expense.
d. Limitation. Consultant will have no confidentiality obligation with
respect to any portion of the Information that (i) Consultant independently
developed before receiving the Information from Company, (ii) Consultant
lawfully obtained from a third party under no obligation of confidentiality or
(iii) became available to the public other than as a result of an act or
omission of Consultant.
8. EXTENSION AND TERMINATION
a. Extension. Company and Consultant may extend the term of this Agreement
by mutual written agreement. In addition, Company may extend the term of this
Agreement by notifying Consultant of such intention at least 30 days before the
then-current expiration date.
b. Termination for Cause. Company may terminate this Agreement immediately
upon notice to Consultant, without judicial or arbitral notice or resolution and
without prejudice to any other remedies, if (i) Consultant breaches any of its
obligations hereunder and fails to remedy such breach to Company's satisfaction
within 10 days after Company demands its cure or (ii) Consultant becomes
insolvent or bankrupt, assigns all or a substantial part of its business or
assets for the benefit of creditors, permits the appointment of a receiver for
its business or assets, becomes subject to any legal proceeding relating to
insolvency, reorganization or the protection of creditors' rights or otherwise
ceases to conduct business in the normal course.
c. Termination for Convenience. Either party may terminate this Agreement,
without judicial or arbitral notice or resolution and without alleging just
cause, as of the end of any calendar month by the other party at least 30 days'
prior notice of termination.
d. Forfeiture. Termination by Consultant not due to Company's default, or
by Company as a result of Consultant's default, shall result in a forfeiture of
any or all deliverables by Consultant to Company under this Agreement.
9. CONSEQUENCES OF EXPIRATION OR TERMINATION
a. Delivery of Items. Upon the expiration or termination of this Agreement
for any reason, Company will promptly pay Consultant the Project Fees and
Reimbursable Expenses that may be due and outstanding, and Consultant will
immediately deliver to Company (i) all notebooks, documentation and other items
that contain, in whole or in part, the Information or Deliverables, and (ii) an
affidavit executed by Consultant stating that Consultant has not retained any
such items.
b. Pending Project Schedules. At Company's request, Consultant will
continue work under any Project Schedule that may remain unfinished as of the
expiration or termination of this Agreement. Under such circumstances,
Consultant will be entitled to retain the notebooks, documentation or other
items that Company may deem appropriate to complete the Project Schedule. Upon
completing the Project Schedule, Consultant will deliver all such items to
Company in accordance with Section 9(a).
c. Disclaimer. Upon the expiration of this Agreement or its termination in
accordance with Section 8(b) or 8(c), Consultant will not be entitled to receive
any payment or compensation for actual, consequential, indirect, special or
incidental damages, costs or expenses, whether foreseeable or unforeseeable
(including loss of profits, investments or good will) or Company's subsequent
use of the Deliverables.
d. Survival. The provisions of Sections 3(f), 3(g), 5, 6, 7, 9 and 15 will
survive the expiration of this Agreement or its termination for any reason.
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10. INDEPENDENT PARTIES
Company and Consultant are independent parties. Nothing in this Agreement
will be construed to make Consultant an agent, employee, joint venturer, partner
or legal representative of Company. Consultant will neither have nor represent
itself to have any authority to bind Company to any obligation.
11. NOTICES
Any notice or approval required or permitted under this Agreement will be
given in writing and will be sent by telefax, courier or mail, postage prepaid,
to the address specified below or to any other address that may be designated by
prior notice. Any notice or approval delivered by telefax (with answer back)
will be deemed to have been received the day it is sent. Any notice or approval
sent by courier will be deemed received one day after its date of posting. Any
notice or approval sent by mail will be deemed to have been received on the 5th
business day after its date of posting.
If to Company:
ISES CORPORATION
2600 72nd Street
Des Moines, Iowa 50322
U.S.A
Attn: Steve Johnson
Telephone: (515) 331-0560
Telefax: (515) 331-3901
Email: steve@ises-amp.com
If to Consultant:
Trivia Mania
4527 NW 20th
Gainesville, FL 32605
U.S.A.
Attn: Mike Dupee or Zana Holley
Telephone: 352-335-2257
Telefax: 352-336-8305
Email: tikha@gator.net
12. ASSIGNMENT
Consultant may not assign, delegate or otherwise transfer this Agreement or
any of its rights or obligations hereunder without Company's prior approval. Any
attempt to do so without Company's approval will be void. Company may assign
this Agreement or any of its rights or obligations hereunder, upon notice to
Consultant, to a related or unrelated person in connection with a sale,
consolidation or other reorganization of Company's business, in whole or in
part.
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13. WAIVER, AMENDMENT OR MODIFICATION
Any waiver, amendment or other modification of this Agreement or its
Exhibits will not be effective unless in writing and signed by the party against
whom enforcement is sought.
14. SEVERABILITY
If any provision of this Agreement is held to be unenforceable, this
holding will not affect the validity of the other provisions of this Agreement,
unless Company deems the unenforceable provision to be essential to this
Agreement, in which case Company may terminate this Agreement, effective
immediately upon notice to Consultant.
15. GOVERNING LAW
This Agreement will be governed by and interpreted in accordance with the
laws of the State of Iowa, U.S.A. Any controversy or dispute will be submitted
to the state or federal courts for Polk County, Iowa, U.S.A., to whose
jurisdiction the parties hereby submit themselves.
16. ENTIRE AGREEMENT
This Agreement and its Exhibits constitute the complete and exclusive
statement of the terms, conditions and representations of the agreement between
Company and Consultant with respect to the Services and Deliverables and
supersedes all other agreements with respect to the subject matter hereof. Any
research, design, development and/or other consulting services that Consultant
may have performed for Company or its related parties before the execution of
this Agreement will be governed by the terms hereof.
IN WITNESS WHEREOF, Consultant executes this Agreement, and Company causes
this Agreement to be executed by its duly authorized representative, on the
dates specified below.
ISES Corporation Trivia Mania
("Company") ("Consultant")
By: /s/ By: /s/
Name: Steven L. Johnson Name: Michael Dupee
Title: VP of MKTG Title: Owner
Date: 3-15-99 Date: 3-7-99
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EXHIBIT A
Project Schedule
THIS PROJECT SCHEDULE is made as of February ____, 1999, between ISES
Corporation ("Company"), and Trivia Mania, Inc. ("Consultant"), pursuant to the
Consulting Agreement that Company and Consultant executed as of February ____,
1999, and of which this Project Schedule forms an integral part.
1. Objective:
Consultant is to research factual trivia information and create
entertaining questions and answers to be delivered to ISES Corporation. The
trivia questions and answers are to target a mass consumer audience of mixed
gender, age and nationality.
2. Methodology:
ISES has defined subject categories and the corresponding number of
questions per subject that Consultant is to create and deliver. The Consultant
is responsible for assuring that the questions and answers have correct English
spelling and correct English grammar.
3. Deliverables:
Consultant will provide [Confidential treatment has been requested for this
portion of this Exhibit] sets of questions with to ISES[Confidential treatment
has been requested for this portion of this Exhibit]. The questions will cover
six topics identified below with corresponding number of questions per topic.
Consultant will supply five (5) answers per question. Up to 5% of the questions
can be True/False requiring only two answers per question.
Delivery Delivery
Subject Question Type #1 #2
------------------------------------------------------------------------
History
[Confidential treatment has been requested
Sports
for this portion of this Exhibit]
Culture
Science and Technology
Entertainment
Geography
Totals
Topic examples per subject:
History: Politics, human interest, education, business, exploration,
weather
Sports: Soccer, rugby, Olympics, chess, basketball, football, baseball,
hockey, golf, etc.
Lifestyles: Language, names, food, religion, festivals
Science and Technology: Computers, mathematics, chemistry, physics,
consumer electronics, etc.
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Entertainment: Music, movies, theatre, games
Geography: Mountains, deserts, bodies of water, cities, etc.
Questions and answers are to be delivered as an attached Microsoft Word 95
or 97 file attached via Email to the ISES contact. One hard copy of the
questions is also to be provided via Fax, post or courier on the delivery date.
4. Schedule:
Each [Confidential treatment has been requested for this portion of this
Exhibit] question set deliverable will be supplied to ISES on the following
dates:
1st Question set: March 1, 1999 by 10 AM CST
2nd Question set: March 15, 1999 by 10 AM CST
5. Acceptance Criteria:
Deliverables must comply with the definitions of Section 1, 2 and 3 of this
Exhibit A. ISES reserves the right to reject any trivia question on the basis of
suitability to ISES target audience. ISES will notify Consultant on any
rejection and Consultant will be allowed 5 business days to submit replacements
for any rejected questions. ISES will inform Content Supplier within one week
from the time it receives each question set on acceptance.
6. Project Fees and Payment Terms:
[Confidential treatment has been requested for this portion of this
Exhibit]
IN WITNESS WHEREOF, Company and Consultant cause this Project Schedule to be
duly executed below.
ISES Corporation Trivia Mania, Inc.
("Company") ("Consultant")
By: /s/ By: /s/
Name: Steven L. Johnson Name: Michael Dupee
Title: VP of MKTG Title: Owner
Date: 3-15-99 Date: 3-7-99
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EXHIBIT B Project Schedule
THIS PROJECT SCHEDULE is made as of October 25, 1999, between ISES
Corporation ("Company"), and Trivia Mania, Inc. ("Consultant"), pursuant to the
Consulting Agreement that Company and Consultant executed as of February 25,
1999, and of which this Project Schedule forms an integral part.
1. Objective:
Content Provider is to translate trivia questions supplied to ISES on March
15, 1999 as well as to translate game help files as provided by ISES.
Content Provider is to provide questions and help text in the French,
German, Spanish and Portuguese language.
2. Deliverables:
Content Provider will provide [Confidential treatment has been requested
for this portion of this Exhibit] sets of questions and answers translated
in the four languages. Content Provider will provide 10 game help texts and
game language screen languages translated in the four languages.
Questions and answers are to be delivered via Email to the ISES contact.
The text shall be delivered in a ASCII text file.
3. Schedule:
All four [Confidential treatment has been requested for this portion of
this Exhibit] question sets (French, Spanish, German and Portuguese) shall
be supplied to ISES on November 8, 1999 by 9 AM CST.
4. Acceptance Criteria:
Content must comply with the content scope, definitions and topics defined
Sections 1 of this Agreement. ISES reserves the right to reject
translations on accuracy and on the basis of suitability to ISES target
customers. ISES will notify Content Provider on all rejections and Content
Provider will be allowed 5 business days to submit replacements for
rejected translations.
5. Project Fees and Payment Terms:
ISES will pay Content Provider the following for translations into the four
languages:
[Confidential treatment has been requested for this portion of this
Exhibit]
ISES will notify Content Supplier within one week on rejection or
acceptance of the translations.
IN WITNESS WHEREOF, Company and Consultant cause this Project Schedule to be
duly executed below.
ISES Corporation Trivia Mania, Inc.
("Company") ("Consultant")
By: /s/ By: /s/
Name: Rick Grewell Name: Michael Dupee
Title: President Title: President, Trivia Mania
Date: 10/25/99 Date: 10/25/99
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