INDEPENDENT CONSULTANT AGREEMENT
THIS AGREEMENT is made and entered into at Tacoma, Washington
this ____ day of ________________, 20__ by and between Aptus Corp., a Delaware
corporation (hereinafter referred to as "Aptus"), and Mark Andre, 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
4
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 such amount of his
productive time and energy to the business of Aptus as he deems 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 directly or 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.
3. TERM. The term of this agreement is for a period of two years,
commencing on the earlier to occur of April 15, 2004 or when the gross revenues
of Aptus exceed $40,000.00 in any one calendar month period and shall end two
(2) years thereafter.
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 $5,000 per month. This agreement will
not be subject to early termination, for any reason by Aptus. In the event of
the death of Consultant during the term of this agreement, the balance of the
consulting fee that would have been payable to Consultant shall become
immediately due and payable to the heirs or estate of Consultant.
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 reasonable
policy statements and regulations adopted by Aptus from time to time respecting
the conduct of business hereunder (but not in conflict with any of the terms
hereof), implemented for the purpose of insuring 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 a portion of
such information may constitute valuable trade secrets belonging to Aptus and
Consultant agrees to keep all information disclosed to him by Aptus which is
designated in advance in writing to be confidential, confidential, except as
Aptus may otherwise consent in writing, and, as to such designated confidential
information, 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 was designated as required above to be 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 (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 actually 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, and acknowledged in advance in writing by
consultant to be work performed pursuant to this agreement, 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. With the exception of an assignment to a
company under the control of Consultant, 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 New York 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.:
John P. Gorst, Chief Executive Officer
1127 Broadway Plaza #203
Tacoma, WA 98402
FAX 253-722-7605
To Consultant:
Mark Andre
PO box 86
Great River, NY 11739
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:_/s/ John P. Gorst
John P. Gorst, Chief Executive Officer
CONSULTANT
/s/ Mark Andre
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Mark Andre