EXHIBIT 10.25
EPICEDGE CONSULTANT AGREEMENT
This Consultant Agreement ("Agreement") is made by and between EpicEdge,
having a place of business at 0000 Xxx 000 Xxxx, Xxxxxx, XX 00000 ("EpicEdge")
and Xxxx Xxxxxxx, an individual, having a mailing address at 000 Xxxx Xxxxx
Xxxxx, Xxxx Xxx, Xxx 000, Xxxxxx, XX 00000 and tax identification ###-##-####
("Consultant").
AGREEMENT
For good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. Engagement of Services. EpicEdge desires to engage Consultant to
perform the services set forth in Exhibit A ("Services & Fees") to this
Agreement.
2. Compensation. In consideration of Consultant's performance of the
Service, EpicEdge will pay Consultant the fees set forth in Exhibit A ("Services
& Fees"). Consultant will be reimbursed for reasonable and ordinary expenses
within thirty (30) days of receipt of Consultant's invoice, provided Consultant
has furnished such documentation for authorized expenses as EpicEdge may
reasonably request. Upon termination of this Agreement for any reason,
Consultant will be reimbursed for expenses and paid Fees for the Services
completed as of the effective date of termination on a pro rata basis.
3. Independent Consultant Relationship. Consultant's relationship with
EpicEdge is that of an independent consultant, 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 which EpicEdge may make available to its employees. Consultant is
not authorized to make any representation, contract or commitment on behalf of
EpicEdge unless specifically requested or authorized in writing to do so by an
authorized EpicEdge representative. 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 withholding by EpicEdge for the
payment of any social security, federal, state or any other employee payroll
taxes. EpicEdge will regularly report amounts paid to Consultant by filing Form
1099-MISC with the Internal Revenue Service as required by law.
4. Intellectual Property Rights/Confidential Information.
4.1 Disclosure, Ownership and Assignment of Inventions. Consultant
agrees that all inventions or copyrightable works, or any portion thereof,
developed by Consultant during the term of this Agreement, shall be the sole
property of EpicEdge and EpicEdge shall be the sole owner of all rights in
connection therewith. Consultant hereby assigns to EpicEdge any rights
Consultant may have or acquire in all inventions and/or copyrightable works in
connection with Consultant's performance of the Services. Consultant further
agrees to assist EpicEdge in every reasonable way (at EpicEdge's expense) to
obtain and from time to time enforce EpicEdge's rights associated with the
copyrightable works and inventions, if any.
4.2 Confidential Information.
4.2.1 Definition of Confidential Information. "Confidential
Information" as used in this Agreement shall mean any and all technical or
non-technical information in any form, that has been created, discovered,
developed, acquired, or that has otherwise become known to EpicEdge (including
without limitation, information created, discovered developed or made known by
or to Consultant during the period of or arising out of Consultant's retention
by EpicEdge), and/or in which property rights have been assigned or otherwise
conveyed to EpicEdge, which information has commercial value in the business in
which EpicEdge is or may become engaged. By way of illustration, but not
limitation, "Confidential Information" includes patents, trademarks, copyrights,
trade secrets, processes, formulae, data and know-how, improvements, inventions,
information concerning research, experimental work, development, testing,
manufacturing, design details and specifications, engineering, procurement
requirements, techniques, marketing plans, pricing, financial data,
collaborations, strategies, forecasts and customer lists of EpicEdge.
"Confidential Information" also includes proprietary or confidential information
of any third party who may disclose such information to EpicEdge or Consultant
in the course of EpicEdge's business, including without limitation, EpicEdge
associates, clients or customers.
4.2.2 Nondisclosure and Nonuse Obligations. Consultant will use the
Confidential Information solely to perform the Services for the benefit of
EpicEdge. Consultant agrees that it will not disclose, sell, use, lecture upon
or publish any Confidential Information or anything relating to it without the
prior written consent of EpicEdge. Consultant agrees that it shall treat all
Confidential Information of EpicEdge with the same degree of care as it accords
to its own Confidential Information and Consultant warrants that it uses at
least a reasonable degree of care to protect its own confidential information of
like kind. Consultant will immediately give notice to EpicEdge of any
unauthorized use or disclosure of the Confidential Information. Consultant
agrees to assist EpicEdge in remedying any such unauthorized use or disclosure
of the Confidential Information.
4.2.3 Exclusions from Nondisclosure and Nonuse Obligations.
Consultant's obligations under Section 4.2.2 ("Nondisclosure and Nonuse
Obligations") with respect to any portion of Confidential Information shall
terminate when Consultant can document that: (a) it was in the public domain at
or subsequent to the time it was communicated to Consultant by EpicEdge through
no fault of Consultant; (b) it was rightfully in Consultant's possession free of
any obligation of confidence at or subsequent to the time it was communicated to
Consultant by EpicEdge; (c) it was independently developed by Consultant; or (d)
the communication was in response to a valid order by a court or other
governmental body, was otherwise required by law, or was necessary to establish
the rights of either party under this Agreement.
4.2.4 Property. All Confidential Information and all derivative
works or analysis created by Consultant with respect to the Confidential
Information, including without limitation, any copyrightable works or inventions
created by Consultant during Consultant's performance of the Services shall be
the sole property of EpicEdge and its assigns and shall be treated in accordance
with Section 6, below ("Return of EpicEdge's Property").
5. Representations and Warranties Regarding Third Parties.
5.1 No Conflict of Interest. Consultant represents that
Consultant's performance of all the terms of this Agreement do not and will not
breach any agreement to keep in confidence any confidential information acquired
by Consultant from any third party. Consultant warrants that, to the best of its
knowledge, there is no other contract or duty on its part inconsistent with this
Agreement. During the term of this Agreement, Consultant will not accept an
obligation, inconsistent or incompatible with Consultant's obligations, or the
scope of services rendered for EpicEdge under this Agreement. Consultant agrees
to indemnify EpicEdge from any and all loss or liability incurred by reason of
the alleged breach by Consultant of any services agreement with any third party.
5.2 Third Party Property. Consultant understands that, as part of
the consideration for its retention as a consultant by EpicEdge, Consultant has
not and will not bring with it to EpicEdge or use in the performance of
Consultant's responsibilities at EpicEdge any equipment, supplies, facility or
trade secret information of any former employer, client or any third party which
are not generally available to the public,
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unless Consultant has obtained written authorization for their possession and
use.
6. Return of EpicEdge's Property. All documents, data, records,
apparatus, equipment, drawings, designs, models, sketches, lists, other physical
property and any and all Confidential Information, as described in Section 4.4.1
("Definition of Confidential Information") furnished to Consultant by EpicEdge
or produced by Consultant or others in connection with Consultant's consulting
relationship with EpicEdge shall be and remain the sole property of EpicEdge and
its assigns and shall be promptly returned to EpicEdge as and when requested by
EpicEdge, including copies. Notwithstanding the foregoing, Consultant shall,
automatically, upon termination of Consultant's relationship with EpicEdge,
promptly return and deliver all such property to EpicEdge, and Consultant will
not retain any such property or any reproduction of such property upon such
termination. Upon EpicEdge's request, Consultant shall provide written
certification to EpicEdge that all such property has been so returned.
7. Term and Termination.
7.1 Term. This Agreement is effective as of the Effective Date set
forth below and will terminate on the date stated in Exhibit A, unless
terminated earlier as set forth below.
7.2 Termination by EpicEdge.
7.2.1 Termination for Convenience. Either party may terminate
this Agreement without cause, at any time, upon thirty (30) days prior written
notice to the other party.
7.2.2 Termination for Cause. EpicEdge also may terminate this
Agreement immediately in its sole discretion upon Consultant's breach of Section
4 ("Intellectual Property Rights/Confidential Information"), Section 9
("Noninterference with Business") and/or upon any failure of Consultant to
perform any of Consultant's obligations hereunder, including the Services
requested in accordance with Exhibit A hereof.
8. Survival. The rights and obligations contained in Sections 4, 5 and
6 will survive any termination or expiration of this Agreement.
10. Indemnification. Consultant shall indemnify, defend and hold
harmless EpicEdge from and against all claims and any breach of this agreement
or any actions, and all expenses incidental to such claims or actions by third
parties, based upon or arising out of damage to property or injuries to persons
or other tortious acts caused or contributed to by Consultant or anyone acting
under its direction or control or on its behalf in the course of its performance
under this Agreement, provided that Consultant's indemnity and hold harmless
agreement shall not be applicable to any liability based upon the sole
negligence of EpicEdge.
13. Successors and Assigns. Consultant may not subcontract or otherwise
delegate its obligations under this Agreement without EpicEdge's prior written
consent. Subject to the foregoing, this Agreement will be for the benefit of
EpicEdge's successors and assigns, and will be binding for Consultant's
assignees.
14. 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, (ii) by overnight courier upon written
verification of receipt, (iii) by telecopy or facsimile transmission upon
acknowledgement 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.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas, irrespective of choice of law
provisions.
16. Severability. If any provision of this Agreement shall be declared
invalid, illegal or unenforceable, such provision shall be severed and all
remaining provisions shall continue in full force and
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effect.
17. Waiver/Modification. The waiver of EpicEdge 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. This Agreement may only
be changed by mutual agreement of authorized representatives of the parties in
writing.
18. Entire Agreement. This Agreement and the exhibits attached hereto
constitute 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.
IN WITNESS HEREOF, the authorized representatives of the parties have
executed this Agreement as of the date last signed below ("Effective Date").
EpicEdge: CONSULTANT:
EpicEdge
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxxx Xxxxxxx
-------------------------------- -------------------------------------
Print: Xxxxxxx Xxxxxx, CEO Print: Xxxx Xxxxxxx
----------------------------- ----------------------------------
(Name & Title) (Name)
Date: January 10, 2003 Date: January 10, 2003
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EXHIBIT A
SERVICES & FEES
Services
Consultant will provide corporate development services for EpicEdge as directed
and supported by the Board of Directors.
Consultant will focus on the following activities:
o Develop a Market Analysis, Marketing Plan and Sales Plan for the ERP
and eSolutions business areas;
o Design and implement a scalable Organizational Structure to support
growth;
o Achieve or exceed the board approved financial plan for FY 2003
(results to be measured pro-rata over the Term of this engagement);
o Construct and implement incentive plans which align key (Director
and above) employee goals and objectives with the goals of the
Company.
Fees
Consultant and EpicEdge have agreed on a monthly fee of $15,000 (the "Fee") for
all Services to be performed by Consultant, which shall be paid twice per month
($7,500 per payment), on the 15th and 30th, through the Term. Additionally, at
the end of the Term, a one-time bonus of $30,000 shall be paid upon completion
of the activities listed above. Subject to the rights of the parties under
section 7.2.1 of the agreement, the term of this engagement will be from January
1, 2003 through June 30, 2003.
EpicEdge will issue payment on the periods specified above. In the event of
termination of this Agreement, the fee shall be paid in accordance with Section
2 of the Agreement.
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